Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 62198
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
After a jury trial, petitioner Daniel Ramos was convicted in 1976 of one count of first degree murder (Penal Code, § 187) and one count of conspiracy (§ 182). He is presently serving a sentence of seven years to life in California State Prison, Solano. Ramos’s 16th parole hearing was held on February 9, 2005. The Board of Prison Terms (now the Board of Parole Hearings; hereafter Board) found that Ramos was unsuitable for parole because he posed an unreasonable risk of danger to society or a threat to public safety if released from prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Effective July 1, 2005, the Board of Parole Hearings replaced the Board of Prison Terms. (§§ 5075, 5075.1; Gov.Code, § 12838.4.)
Ramos challenged the Board’s decision to deny parole by filing a petition for writ of habeas corpus in the superior court. The superior court found that there was no evidence of a “nexus” between Ramos’s criminal conduct of 30 years ago and his present dangerousness, and ordered the Board to conduct a new parole hearing. The court also directed the Board to articulate “[f]or any negative static fact the Board relies upon in finding [Ramos] unsuitable . . . its nexus and relevance to the present determination of suitability.”
On appeal, the Attorney General contends that the superior court’s order should be reversed because (1) some evidence supports the Board’s decision to deny parole; (2) the Board properly relied on the circumstances of the commitment offense and other static factors in finding Ramos unsuitable for parole; and (3) the order unlawfully restricts the Board’s exercise of its discretion in determining Ramos’s suitability for parole.
In our original opinion, we concluded that some evidence supported the Board’s decision that Ramos was unsuitable for parole in part due to the circumstances of the commitment offense and his criminal history. However, we further concluded the Board had failed to consider all relevant, reliable information regarding Ramos’s suitability for parole and consequently the Board did not afford him individualized consideration. For that reason, we remanded the matter to the superior court with directions to modify its order directing the Board to hold a new parole hearing.
We subsequently granted Ramos’s petition for rehearing for the sole purpose of considering his contention that the original opinion erroneously determined that some evidence supported the Board’s finding that the commitment offense was committed in an “especially heinous” manner because the offense was an “execution-style murder.” Upon further consideration, we have modified our discussion of the commitment offense, as set forth below in Part III, subsection C. In all other respects, we refile our original opinion without change.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Social History
Ramos was born in 1952 and is the oldest of four children. His parents divorced when he was nine years old and his mother remarried when he was 13 years old. At his parole hearing, Ramos testified that he did not have a stable home environment, explaining that he did not like his stepfather and for that reason he was “always running away.” Ramos’s mother is still alive and he is in contact with her and his three living siblings. His younger brother is the only other family member to have had contact with law enforcement agencies.
Before his incarceration in 1976, Ramos was in a “common-law” relationship. The couple had two children, who are now adults and have not had any contact with law enforcement agencies. Ramos and his “common-law” wife were married in 1977. They divorced in 1994 and Ramos married his second wife in the same year.
Ramos’s substance abuse history prior to his incarceration included marijuana use and using alcohol “[a]s often as I could . . . .” His employment history included work for a contractor, as a “taxicab courier,” and in sales and delivery.
B. Criminal History
Ramos’s criminal history starts at the age of 11 with two arrests for petty theft. At age 12, Ramos was arrested for committing malicious mischief, made a ward of the court, and placed in a foster home. He was subsequently arrested for petty theft and sniffing glue. When he was 14 years old Ramos was arrested for auto theft and ranch escape. He was committed to the California Youth Authority at the age of 15. While on parole at the age of 16, Ramos was arrested for disturbing the peace and auto theft. At age 17 he was arrested for assault with intent to commit rape, battery, and rape and returned to the California Youth Authority.
Ramos’s adult criminal record includes a 1972 arrest for drunk driving and arrests in 1973 for assault with a deadly weapon, resisting arrest and reckless driving. He pleaded guilty to resisting arrest and served nine months in jail. In March 1974 Ramos resisted arrest, and in November 1974 he was arrested for attempting to kill a public official and assaulting his stepfather with a deadly weapon. However, during his parole hearing testimony Ramos denied that he had been arrested for attempting to kill a public official and claimed that was an error in his record. In January 1976, Ramos was arrested for receiving stolen property.
C. The Commitment Offense
The commitment offense occurred on January 3, 1976, when Ramos was 23 years old. At that time, Ramos wanted to become a member of the Nuestra Familia gang and for that reason he participated in a gang-ordered killing. He also stored part of the Nuestra Familia arsenal in his home, but he did not furnish the weapon used in the murder.
On the day of the murder Ramos was driving in a car with his crime partners, Nuestra Familia members Reynaldo Morales and Jose Cobos, the shooter. About an hour before the murder occurred, Ramos knew there was going to be a killing. He was aware that the gang members were looking for the victim, George Tenario, a Nuestra Familia gang member who was suspected of being a police informant. Ramos was told to go to the door of Tenario’s apartment and bring him out by asking him if he wanted to buy some drugs. Ramos knocked on the door and asked for Tenario. Tenario then came out of the apartment with Ramos and was shot by Cobos.
After the shooting, Ramos left the scene in Morales’s car. Police officers later found Tenario lying on his back in the courtyard of the apartment complex with gun shot wounds to the head, chest and right wrist caused by a .38 caliber handgun. Tenario was transported to the hospital but died during surgery.
D. Conduct While Incarcerated
After the commitment offense occurred, Ramos became a member of Nuestra Familia. He actively participated in gang life during his early years in prison and as a result he spent “many years on lockdown in a management control unit.” However, he decided to get out of the gang in 1985 and by 1998 he was validated by the prison authorities as a Nuestra Familia drop out. He has not had any problems with Nuestra Familia since he got out of the gang. To his knowledge Nuestra Familia does not have a “contract” to kill him.
Ramos’s educational background includes completing the 11th grade while he was incarcerated at the California Youth Authority, as well as obtaining a GED and taking college courses after his incarceration on the commitment offense. He also obtained a vocational certificate in machine shop and was involved in the mill and cabinet shop. He is currently working as a building porter. Additionally, Ramos has participated in Alcoholics Anonymous and Narcotics Anonymous.
Ramos’s history of prison discipline during his nearly 30 years of incarceration on the commitment offense includes one CDC 115 report in 1988 for a physical altercation with an inmate and three CDC 128 reports for minor misconduct. The minor misconduct included failing to follow lock-up instructions in 1991, an undated and unspecified incident described in the prison records as “special confined to quarters” sometime between 1991 and 2001, and refusing a direct order in 2001.
“According to the California Code of Regulations, a CDC 115 documents misconduct believed to be a violation of law which is not minor in nature. A form 128 documents incidents of minor misconduct. (See [Cal. Code Regs., tit. 15] § 3312, subd. (a)(2) & (3).)” (In re Gray (2007) 151 Cal.App.4th 379, 389.)
E. Psychological and Life Prisoner Evaluations
A psychosocial evaluation was prepared by John T. Rouse, Ph.D., in 2004. Dr. Rouse interviewed Ramos and reviewed his medical and prison records. His diagnoses included alcohol abuse in institutional remission and arthritis, cirrhosis, and hepatitis C in remission (by report).
Dr. Rouse found that Ramos had “accepted culpability for his commitment offense and expressed an appropriate amount of remorse for the victim . . . he seems genuinely penitent.” Regarding his assessment of Ramos’s present dangerousness, Dr. Rouse stated that Ramos had “developed good impulse control and prosocial skills and has demonstrated this by his involvement in Squires, Breaking Barriers, AA and NA, Concerned Inmates Talk to Youth, and most importantly, he has renounced his gang affiliation. Mr. Ramos is obviously mature and presents himself as a mature 51-year-old individual. He is no longer impulsive or a substance abuser as evidenced in his participation in NA and AA . . . He is not the same person that he was when he first came to prison. His potential for success on parole is exceedingly good. The gains that he has made in prison will undoubtedly hold in a less structured environment. His potential for violence at the current time is lower than the average inmate incarcerated here at CSP-Solano and, in the opinion of this examiner, is consistent with the average citizen in the community.”
Dr. Rouse concluded as follows: “Mr. Ramos has been assessed by other clinicians over the course of the past few years and the opinions of these examiners are not disparate. All opine that Mr. Ramos is not likely to present a danger to the community and would be able to meet the demands of his parole. There are no mental health issues or special risk factors that the Board should consider when pondering the conditions of Mr. Ramos’ parole.”
The record submitted to this court does not contain any life prisoner evaluations. During the parole hearing a Board member briefly mentioned a life prisoner evaluation report dated March 29, 2004, and two addendum reports dated April 16, 2004, and September 3, 2004, without stating the results of the evaluation. Additionally, the deputy district attorney who attended the parole hearing referred to a “Board Report” that “mentions [a] medium degree of threat.”
F. Parole Plans
Upon his release from parole, Ramos intends to move to Groveland, California with his wife and work for his sister as a clerk in her real estate business. He also plans on continuing his substance abuse program. Ramos has received letters from his brother and his wife stating that they would provide emotional and financial support if he were to be released.
G. The Board Hearing and Decision
On February 9, 2005, Ramos appeared before the Board on a subsequent parole consideration hearing. The Board advised Ramos that it would consider the commitment offense, his criminal history, his social history, his behavior and programming since he was committed, any new psychiatric reports, and any other information that would have a bearing on his suitability for parole. The Board also stated that it had reviewed Ramos’s file and prior transcripts. During the hearing, the Board additionally considered Ramos’s parole plans, Ramos’s statements, and argument from counsel.
Ramos’s attorney contended that he was suitable for parole because Ramos did not pose any degree of threat, had gone through the process to become a gang drop out, and was a mature individual who was not “at all criminally orientated in his actions or in his thinking.” The deputy district attorney opposed parole on the grounds that Ramos had participated in a gang killing while he was on parole, his criminal history was extensive, and the “Board Report” mentioned “a medium degree of threat.” The deputy district attorney was also concerned that Ramos’s parole plans were not firm since his plan to move to Groveland was very recent.
Ramos stated that he had been in prison for 29 years and had “grown up a lot,” that he did not intend to commit any crimes, and he would stay away from drugs and alcohol if released. Ramos also asserted that he had been disciplinary free since 1988.
At the conclusion of the hearing, the Board issued a one-year denial of parole. The Board’s decision was based on its finding of several parole unsuitability factors: (1) the commitment offense was carried out in a manner that was “especially cruel and callous,” as well as “dispassionate and calculated”; (2) the motive for the commitment offense was inexplicable; (3) there was an “escalating pattern of criminal conduct”; (4) Ramos had a history of “unstable, tumultuous relationships with others”; and (5) he had failed previous grants of probation and parole.
The Board also acknowledged several parole suitability factors, including programming well in prison, a psychological evaluation that showed a reduced level of dangerousness, and solid parole plans (although the Board noted that Ramos “could work on his employment plans a little bit”). The Board also commended Ramos for dropping out of Nuestra Familia, involving himself in positive programming, and remaining disciplinary free for a substantial period of time. However, the Board determined that Ramos should continue to involve himself in positive programming that would enable him to cope with stress, and concluded that the parole suitability factors did not outweigh the parole unsuitability factors.
H. Habeas Proceedings
On May 3, 2006, Ramos filed a petition for writ of habeas corpus challenging the Board’s decision and seeking release on parole. He asserted that the Board had erroneously found him unsuitable for parole by relying on the unchanging factors of the commitment offense and his criminal history despite the evidence of his rehabilitation, including the “glowing reports” from the psychologist, his excellent self-help and educational efforts, and his record of being disciplinary free since 1988.
On June 30, 2006, the superior court ordered the Attorney General to show cause why Ramos was not entitled to the relief sought in his habeas corpus petition. The order also directed the Attorney General to “explain why [Ramos], who appears to have achieved the highest level of rehabilitation afforded in the prison system, should not be released on parole under the ISL [indeterminate sentencing law].” The court noted that Ramos was sentenced under the ISL, which provided an “ ‘emphasis on individual rehabilitation.’ ”
In the return to the order to show cause the Attorney General argued that the Board properly used current regulations to determine Ramos’s parole suitability and its decision that Ramos was unsuitable for parole was supported by some evidence.
I. The Superior Court’s Order of December 13, 2006
The superior court’s order of December 13, 2006, granted Ramos’s habeas petition and remanded the matter to the Board “with directions to proceed in accordance with Due Process. For any negative static fact the Board relies upon in finding [Ramos] unsuitable, should it do so, it shall articulate its nexus and relevance to the present determination of suitability.”
The superior court also explained its reasoning in the order of December 13, 2006. First, the court determined that none of the Board’s findings were supported by any evidence in the record and “even if they were, those findings alone do not support a determination of unsuitability.”
With regard to the commitment offense, the court determined that it was “the least reprehensible variety” of murder; that Ramos was not the shooter; and Ramos’s act of “drawing the victim out into the open” was a “minimal part of the crime.” The court disagreed with the Board’s finding that the commitment offense was carried out in a dispassionate and calculated manner, noting that the evidence showed that it was Ramos’s crime partner who premeditated the murder. Further, the court determined that the Board had erred in finding the motive for the commitment offense was inexplicable when the motive clearly was “betrayal of the gang by one of its members.”
While the superior court found there was some evidence that Ramos had an escalating pattern of criminal conduct and he had failed previous grants of probation and parole, the court determined that this finding was insufficient to deny parole. Relying on the decision in In re Elkins (2006) 144 Cal.App.4th 475, the court stated that Ramos’s 30-year-old criminal history was irrelevant absent some evidence of a “nexus” between his prior criminal conduct and the current “unsuitability determination.”
Additionally, the superior court agreed with Ramos’s contention that his parole suitability should be determined under the standard in effect at the time of the ISL. For that reason, the court determined that “application of the Dannenberg [In re Dannenberg (2005) 34 Cal.4th 1061] test is only appropriate under the current statutory scheme, not under the ISL.”
The Attorney General subsequently filed a timely notice of appeal from the order of December 13, 2006. This court denied the Attorney General’s petition for a writ of supersedeas staying the order until final determination of this appeal.
III. DISCUSSION
On appeal, the Attorney General makes several arguments in support of his contention that Ramos’s petition for writ of habeas corpus should be denied, including (1) some evidence supports the Board’s decision that Ramos is unsuitable for parole due to the commitment offense and his criminal history; (2) some evidence supports the Board’s decision that Ramos is unsuitable for parole due to his unstable social history; (3) the order unlawfully restricts the Board’s exercise of its discretion in determining Ramos’s suitability for parole; and (4) the Board may rely on the commitment offense and other static factors in finding a life prisoner sentenced under the ISL unsuitable for parole.
We will begin our analysis of the Attorney General’s claims with an overview of the statutory scheme for parole suitability decisions.
A. The Statutory Scheme for Parole Suitability Decisions
The Board is authorized to determine whether a prisoner sentenced to an indeterminate prison term should be released on parole, in accordance with the provisions of section 3041. Subdivision (b) of section 3041 provides in pertinent part: “The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, 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 at this meeting.”
Section 3041, subdivision (a) provides in part: “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.”
In determining whether the public safety requires the prisoner to serve a more lengthy period of incarceration rather than be released on parole, the Board is guided by the criteria listed in the California Code of Regulations. The Board must deny parole “if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, §§ 2281, subd. (a), 2402, subd. (a).) To assess that risk and thus determine the prisoner’s suitability for parole, the Board must consider “[a]ll relevant, reliable information available to the panel.” (Cal. Code Regs., tit. 15, §§ 2281, subd. (b), 2402, subd. (b).)
The parole suitability criteria applicable to inmates convicted of committing murder prior to July 8, 1978, are set forth in California Code of Regulations, title 15, section 2281 and are identical to the parole suitability criteria stated in California Code of Regulations, title 15, section 2402. (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1232, fn.5.)
Included in the relevant information that the Board may take into account in determining suitability for parole are circumstances that have been termed “parole suitability factors.” (Board of Prison Terms v. Superior Court, supra, 130 Cal.App.4th at p. 1231.) The applicable regulations include the following parole suitability factors: (1) no juvenile record; (2) a stable social history; (3) signs of remorse; (4) the motivation for the crime was significant life stress; (5) battered woman syndrome; (6) no history of violent crime; (7) age; (8) realistic plans for the future; and (9) institutional behavior. (Cal. Code Regs., tit. 15, §§ 2281, subd. (d), 2402, subd. (d).) These parole suitability factors are not exclusive. The Board also may consider “any other information which bears on the prisoner’s suitability for release.” (Cal. Code Regs., tit. 15, §§ 2281, subd. (b), 2402, subd. (b).)
The Board must also consider “parole unsuitability factors,” which are circumstances that “each tend to indicate unsuitability for release.” (Cal. Code Regs., tit. 15, §§ 2281, subd. (c), 2402, subd. (c).) Parole unsuitability factors include: (1) the commitment offense (whether “the prisoner committed the offense 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 in prison or jail. (§§ 2281, subd. (c), 2402, subd. (c).) The presence of several unsuitability factors may have a cumulative effect, because “[c]ircumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Cal. Code Regs., tit. 15, §§ 2281, subd. (b), 2402, subd. (b).)
The parole suitability and unsuitability factors are “general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board].” (Cal. Code Regs., tit. 15, §§ 2281, subd. (c) & (d), 2402, subd. (c) & (d).) Consequently, “the precise manner in which the specified factors relevant to parole suitability are considered and balanced” lies within the “discretion exercised by the Board in making its decision” regarding parole suitability. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz).)
However, individualized consideration of a prisoner’s suitability for parole is required. “[T]he first responsibility of the parole authorities is to evaluate the suitability of an individual inmate for safe release, and, in making that assessment, to take into account all pertinent information and input about the particular case from the inmate’s victims, the officials familiar with his or her criminal background, and other members of the public who have an interest in the grant or denial of parole to this prisoner.” (Dannenberg, supra, 34 Cal.4th at p. 1086.)
B. The Standard of Review
The Board’s decision regarding parole suitability is subject to limited judicial review under the “ ‘some evidence’ ” standard. (Rosenkrantz, supra, 29 Cal.4th at p. 652.) The “ ‘some evidence’ ” standard of review is “extremely deferential.” (Id. at p. 665.) The reviewing court may not weigh the evidence, resolve conflicts in the evidence, or consider whether the evidence establishing suitability for parole “far outweighs” the evidence showing unsuitability. (Id. at p. 677.) Thus, the court may not substitute its own judgment for that of the Board. “[T]he 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.” (Id. at p. 658.) Review under the “some evidence” standard “simply ensures that parole decisions are supported by a modicum of evidence and are not arbitrary and capricious.” (Id. at p. 626.)
“[W]e shall review the trial court’s decision and the contentions of the parties in light of the materials that properly were before the court.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) Where, as here, “the trial court’s findings were based solely upon documentary evidence, we independently review the record.” (Ibid.)
C. Analysis
1. The Commitment Offense
According to the Attorney General, some evidence supports the Board’s finding that the commitment offense was “especially cruel and callous” and carried out in a “dispassionate and calculated manner” because the evidence shows that the offense was, in the Attorney General’s words, a “gang-ordered hit.” The Attorney General acknowledges that the Board erred in finding that the motive for the crime was inexplicable, but asserts that the Board was authorized to consider the fact that Ramos participated in the murder for the purpose of becoming a gang member.
Ramos disagrees, arguing that the Board’s finding was not supported by any evidence because his actions as an accomplice to the murder were not performed in a manner that was especially cruel and callous or dispassionate and calculated. Ramos emphasizes that his role was limited to luring the victim from his apartment so that Cobos could shoot him. Further, Ramos contends that even if Cobos’s actions are considered, the offense was not committed in an especially cruel or callous manner because Cobos shot the victim four times without any gratuitous increase in his pain and suffering.
Ramos additionally argues that the deferential “some evidence” standard of review set forth in Rosenkrantz, supra, 29 Cal.4th at page 652 is limited by the due process requirement that a prisoner be found unsuitable for parole only where there is some evidence that he or she remains a danger to public safety, citing Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, Irons v. Carey (9th Cir. 2007) 479 F.3d 658, In re Tripp (2007) 150 Cal.App.4th 306, In re Lee (2006) 143 Cal.App.4th 1400 and In re Elkins, supra, 144 Cal.App.4th 475. Ramos also points to decisions suggesting that the predictive value of unchanging factors, such as the commitment offense and criminal history prior to imprisonment, is questionable after a period of 20 to 30 years. (See Biggs v. Terhune, supra, 334 F.3d 910; In re Scott (2005) 133 Cal.App.4th 573.)
We observe that in the present case the Board did not rely solely on the commitment offense in determining that Ramos was not suitable for parole. The Board also considered Ramos’s criminal history, his social history, and his previous failures of probation and parole. Therefore, we must determine whether the Board properly relied upon the commitment offense as one of the factors on which the Board based its decision to deny parole.
The applicable regulations provide that a circumstance tending to indicate unsuitability for parole is that “[t]he prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: [¶] (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, § 2281, subd. (c)(1), § 2402, subd. (c)(1).)
In the present case, the evidence before the Board included the following hearing testimony by Ramos concerning the facts of the commitment offense: “I was already with them [Nuestra Familia gang members] in the car to begin with. [W]e were driving around. They had mentioned that they were looking for George [Tenario] and they found the address where he was at, and I already kind of suspected they were to do something to him by the way they were talking. They [were] talking kind of in riddles. But I suspected it. I was asked to go over there and get him. I was supposed to go to the door, which I did. I knocked on the door, asked for George. I was told to ask to see if he wanted to buy some drugs, and he came out with me. That’s when he was shot.” When the presiding commissioner asked Ramos, “So, you knew when you went to the door and brought him out he was going to be shot or did you know?” Ramos answered, “Yes, I had already figured it out, yes.” Ramos also testified that he was participating in the gang-ordered murder because he wanted to become a member of Nuestra Familia.
The evidence therefore disclosed that Ramos acted with cold, calculated dispassion when he carried out his role in the gang-ordered murder. Because he wanted to become a member of Nuestra Familia, Ramos agreed to participate in a gang-ordered murder of a suspected police informant, George Tenario. Ramos was fully aware that Tenario had been targeted when Ramos personally lured him out of his apartment on the pretext of a drug sale so that Tenario could be shot by a Nuestra Familia gang member. Accordingly, we believe that the evidence before the Board concerning the commitment offense constitutes some evidence that supports the Board’s finding that the commitment offense was carried out in a dispassionate and calculated manner. (Cal. Code Regs., tit. 15, §§ 2281, subd. (c)(1)(B), 2402, subd. (c)(1)(B); Rosenkrantz, supra, 29 Cal.4th at p. 678.)
2. Criminal History
The Attorney General contends that some evidence supports the Board’s decision to deny parole on the additional parole unsuitability factor of Ramos’s criminal history because he had an extensive and escalating criminal career before the age of 23.
Ramos responds that his criminal record mostly consists of nonviolent juvenile offenses and that his one violent offense, assault with intent to commit rape, occurred “when he was 17, was highly intoxicated, and his behavior as described barely sufficed to establish the minimal elements of the offense.” He also asserts that because his criminal misconduct occurred over 30 years ago, it is not reasonably indicative of his current dangerousness.
The parole unsuitability factors include a previous record of violence: “The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.” (Cal Code Regs., §§ 2281, subd. (c)(2), 2402, subd. (c)(2).) It is also relevant that “the prisoner has a juvenile record of committing crimes with a potential of personal harm to victims.” (Cal. Code Regs., tit. 15, §§ 2281, subd. (d)(1), 2402, subd. (d)(1).) Additionally, “All relevant, reliable information available to the [Board] shall be considered in determining suitability for parole. Such information shall include . . . past criminal history, including involvement in other criminal misconduct which is reliably documented . . . .” (Cal. Code Regs., tit. 15, §§ 2281, subd. (b), 2402, subd. (b).)
Here, the record reflects that Ramos was involved in criminal misconduct nearly every year of his life from the age of 11 until he was imprisoned on the commitment offense at the age of 23, beginning with petty theft and progressing to auto theft and assault with intent to commit rape. Consequently, some evidence supports the Board’s decision that Ramos’s criminal history constituted a parole unsuitablity factor.
3. Social History
The Attorney General argues that some evidence supports the Board’s decision that Ramos’s social history indicates parole unsuitability because Ramos admitted that he did not have a stable home environment and he frequently ran away because he did not get along with his stepfather. Ramos disagrees, maintaining that there is no evidence to support this factor because the record reflects that every other relationship in his life, other than his relationship with his abusive stepfather, has been stable.
The applicable regulations also provide that a prisoner’s social history is a factor that may be considered in determining parole suitability. A factor tending to show unsuitability is that “[t]he prisoner has a history of unstable or tumultuous relationships with others.” (Cal. Code Regs., tit. 15, §§ 2281, subd. (c)(3), 2402, subd. (c)(3).) On the other hand, a factor tending to show suitability is “[t]he prisoner has experienced reasonably stable relationships with others.” (Id., subd. (d)(2).)
We agree that the record does not contain some evidence to support the Board’s decision that Ramos’s social history indicates parole unsuitability because he had a history of “unstable, tumultuous relationships with others.” The record reflects that Ramos’s mother is still alive and he is in contact with her and his three living siblings. Additionally, his sister has offered him employment as a clerk in her real estate business if he is released upon parole. Although the evidence also shows that Ramos’s parents divorced, his mother remarried, and as a youth Ramos ran away from home to get away from his stepfather, we do not find that these circumstances are sufficient to constitute a history of unstable or tumultuous relationships.
4. The ISL
The Attorney General also contends that the trial court erred in ruling that Ramos’s parole suitability should be determined under the standard in effect at the time of the ISL. Ramos has implicitly conceded the Attorney General’s contention by failing to discuss it in his respondent’s brief. However, for the guidance of the superior court we will observe that it is well established that the parole suitability of a life prisoner sentenced under the ISL is determined under the statutory and regulatory scheme for parole suitability implemented under the DSL (determinate sentencing law).
In Dannenberg, supra, 34 Cal.4th at pages 1077-1078, the California Supreme Court described the ISL and the DSL as follows: “For decades before 1977, California employed an ‘indeterminate’ sentencing system for felonies. The court imposed a statutory sentence expressed as a range between a minimum and maximum period of confinement--often life imprisonment--the offender must serve. An inmate’s actual period of incarceration within this range was under the exclusive control of the parole authority, which focused, primarily, not on the appropriate punishment for the original offense, but on the offender’s progress toward rehabilitation. During most of this period, parole dates were not set, and prisoners had no idea when their confinement would end, until the moment the parole authority decided they were ready for release. [Citations.] [¶] The DSL, adopted in 1976, largely abandoned this system. The DSL implemented the Legislature's finding that ‘the purpose of imprisonment for crime is punishment,’ a goal ‘best served by terms proportionate to the seriousness of the offense,’ with provision for sentence ‘uniform[ity]’ for similar offenses. (§ 1170, subd. (a)(1).)”
With regard to parole, the ISL “established an ‘administrative framework for term-fixing and parole-granting’ by creating the Adult Authority, an administrative agency within the Department of Corrections. [Citations.] The Adult Authority made the determination of unsuitability for parole, as well as (pursuant to statutory guidelines) the actual length of the term a defendant was required to serve. [Citations.] [¶] On July 1, 1977, the ISL was repealed and the [DSL] became effective. The Adult Authority was abolished and replaced by the Board. [Citation.]” (In re Roberts (2005) 36 Cal.4th 575, 588, fn. 6.)
Prior to 1976, no “formal regulations” guided the Adult Authority’s determination of parole suitability. (In re Duarte (1983) 143 Cal.App.3d 943, 947 (Duarte).) Instead, the Adult Authority made a “ ‘deliberate assessment of a wide array of individualized factors on a case-by-case basis, and the striking of a balance between the interests of the inmate and of the public.’ [Citation.]” (Ibid.) The factors considered included the “ ‘ “good conduct of the prisoner while incarcerated,” ’ ” as well as the nature of the offense and the prisoner’s age, prior associations, habits, character, rehabilitation, and the interests of public security. (Ibid.)
In 1976, regulations concerning the determination of parole suitability were promulgated in title 15 of the California Administrative Code. (Duarte, supra, 143 Cal.App.3d at p. 947.) These regulations “provided that at a prisoner’s initial parole hearing, an inmate could be found unsuitable if ‘in the opinion of the hearing panel an unreasonable risk of danger to society would be posed by release.’ [Citation.]” (Ibid.) The regulations also gave “examples of types of factors that could be considered in determining unsuitability. [Citation.]” (Ibid.) However, “the question of suitability was still an individualized balancing of the interests of the inmate and the public.” (Id. at p. 948.)
The 1976 parole suitability regulations were soon replaced by DSL parole suitability regulations that retained the same “criteria used to reach a decision.” (Duarte, supra¸143 Cal.App.3d at p. 950.) “Under both sets of rules the parole suitability decision involves a case-by-case analysis of all relevant factors, the basic criteria being whether the prisoner’s release creates ‘an unreasonable risk of danger to society.’ [Citations.]” (Ibid.) Thus, “ ‘the standards for determining suitability for parole have not been altered under the DSL. The criteria utilized under the ISL as developed through practice and as modified by case law were not altered by the DSL.’ [Citation.]” (Id. at p. 951; see also In re Jackson (1985) 39 Cal.3d 464, 473.)
Accordingly, although Ramos was sentenced in 1976 under the ISL, the question of his suitability for parole is properly determined by the Board under the current statutory and regulatory criteria.
5. Lack of Individualized Consideration
Although we have determined there was some evidence to support the Board’s findings on two parole unsuitability factors, the commitment offense and criminal history, and we have also determined that Ramos’s parole suitability may be determined under the current statutory and regulatory criteria, we believe that remand for a new parole hearing is warranted in this case. Our determination is based upon our review of the record, which persuades us that the Board failed to give individualized consideration to Ramos in deciding that he is unsuitable for parole.
Our Supreme Court has instructed that “ ‘[a]ny official or board vested with discretion is under an obligation to consider all relevant factors [citation], and the [Board] cannot, consistently with [his] obligation, ignore postconviction factors unless directed to do so by the Legislature.’ [Citation.] ‘Although a prisoner is not entitled to have his term fixed at less than maximum or to receive parole, he is entitled to have his application for these benefits “duly considered” ’ based upon an individualized consideration of all relevant factors. [Citations.]” (Rosenkrantz, supra, 29 Cal.4th at p. 655.) Thus, “the decision must reflect an individualized consideration of the specified criteria.” (Id. at p. 677.) Additionally, the applicable regulations require the Board to consider “[a]ll relevant, reliable information available to the panel.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
For several reasons, we conclude that the Board failed to afford Ramos “individualized consideration of the specified criteria.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) First, the record reflects that the Board failed to fully consider Dr. Rouse’s 2004 psychological evaluation. Dr. Rouse concluded that “Mr. Ramos has been assessed by other clinicians over the course of the past few years and the opinions of these examiners are not disparate. All opine that Mr. Ramos is not likely to present a danger to the community and would be able to meet the demands of his parole. There are no mental health issues or special risk factors that the Board should consider when pondering the conditions of Mr. Ramos’ parole.” Dr. Rouse also reported that Ramos’s “potential for violence at the current time is lower than the average inmate incarcerated here at CSP-Solano and, in the opinion of this examiner, is consistent with the average citizen in the community.”
While the Board mentioned during the parole hearing that the psychological evaluation stated that Ramos’s potential for violence “was consistent with the average citizen in the community,” the Board apparently overlooked Dr. Rouse’s conclusion in determining Ramos’s dangerousness. In explaining its decision to deny parole the Board stated that a “[r]ecent Psychological Evaluation shows that the prisoner is making progress, shows that his level of dangerousness in both a structured as well as an unstructured environment is reduced.” This description of Dr. Rouse’s conclusions is not correct, since Dr. Rouse did not state that Ramos was making progress or that his level of violence was reduced. To the contrary, Dr. Rouse concluded that Ramos was not likely to pose a danger to the community and his potential for violence was “consistent with the average citizen in the community.”
Thus, it appears that the Board did not fully consider Dr. Rouse’s psychological evaluation and therefore the Board did not meet its obligation to assess Ramos’s risk of danger to society if released from prison by considering “[a]ll relevant, reliable information available to the panel.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
Second, the Board determined that the motive for the commitment offense was inexplicable although Ramos testified that his motive for his involvement in the gang killing was to join the Nuestra Familia gang. The Board’s failure to consider Ramos’s testimony in this regard is a further indication that the Board did not give individualized consideration to Ramos’s suitability for parole.
Third, the Board determined that Ramos was unsuitable for parole based in part on his social history, which the Board described as a history of “unstable, tumultuous relationships with others.” As we have discussed, there was no evidence in the record to support this finding. It therefore appears that the Board failed to fully consider the specific evidence pertaining to Ramos’s relationships with others.
Because the record reflects that the Board did not consider all relevant, reliable evidence pertaining to Ramos’s suitability for parole or afford him individualized consideration, we conclude that the matter should be remanded to the superior court with directions to modify its order granting Ramos’s petition for a writ of habeas corpus.
IV. DISPOSITION
The case is remanded to the superior court with directions to modify its order granting Daniel Ramos’s petition for writ of habeas corpus and remanding the matter to the Board of Parole Hearings for a new hearing. The order shall be modified to direct the Board of Parole Hearings to hold a new parole hearing in accordance with due process; to consider all relevant, reliable information available to the panel as required by California Code of Regulations, title 15, section 2281, subdivision (b); to afford individualized consideration of all parole suitability and unsuitability factors (Cal. Code Regs., tit. 15, § 2281); and, if parole is denied, to articulate its reasons for finding Ramos unsuitable for parole. As modified, the order is affirmed.
I CONCUR: MCADAMS, J.
Mihara, J., Concurring.
Although I agree with my colleagues that this matter should be remanded to the Board of Parole Hearings for a new parole hearing that comports with due process, I do not believe that the majority opinion adequately addresses the issues raised by the parties. I write separately to explain my analysis of these issues.
I. Introduction
The Warden appeals from the superior court’s order requiring the Board of Parole Hearings (the Board) to hold a new parole hearing for life prisoner Daniel Ramos that comports with due process. The superior court’s order also directs the Board to “articulate [the] nexus and relevance” to suitability of “any negative static fact” upon which it might rely to support a finding of unsuitability. The Warden asserts that no new hearing is necessary because the Board’s unsuitability decision is supported by some evidence. The Warden also maintains that the superior court’s directions are improper. I am convinced that we should modify and affirm the superior court’s order.
II. Background
Ramos’s parents divorced when he was young. His mother remarried, and Ramos did not like his stepfather, who he blamed for splitting up his parents’ marriage. Because they did not get along, Ramos frequently ran away from home. He amassed a considerable criminal record as a juvenile. At the age of 11, he was twice arrested for petty theft. At age 12, he was again arrested for petty theft and “being beyond the control.” These arrests were “settled at intake.” At age 12, Ramos was arrested for malicious mischief, declared a ward of the court and placed in a foster home. Another arrest for petty theft and sniffing glue was also settled at intake.
At age 14, Ramos was arrested for vehicle theft and ranch escape and committed to the California Youth Authority (CYA). After his parole from the CYA, he was arrested at the age of 16 for vehicle theft. At the age of 17, Ramos was again committed to the CYA, this time for assault with intent to commit rape. Ramos completed the 11th grade while at the CYA.
His criminality continued when he became an adult. In 1972, at the age of 19, he was arrested for drunk driving. At the age of 21, in 1973, he was convicted of resisting arrest and sentenced to nine months in jail. He also spent 30 days in jail for reckless driving. In March 1974, Ramos was placed on probation for two years for drunk driving and resisting arrest.
Ramos’s commitment offense occurred in January 1976, when he was 23 years old. At the time, Ramos was storing rifles, shotguns and ammunition for the Nuestra Familia gang at his residence, and he wanted to become a member of Nuestra Familia. Nuestra Familia had ordered the killing of George Tenario, a Nuestra Familia member who was a police informant. Ramos knew that his two compatriots, who were Nuestra Familia members, wanted to kill Tenario. Ramos lured Tenario out of an apartment on a pretense, and Ramos’s two compatriots shot Tenario to death. Ramos was convicted of first degree murder and conspiracy to commit murder, and sentenced to life in prison.
Ramos has been in prison since 1976. During his early years in prison, Ramos remained “involved actively in the gang life,” but he “decided to get out of gangs in 1985” and has remained free of gang involvement since that time. Ramos had a history of alcohol abuse prior to his incarceration, but he has been involved in AA for 20 years and NA since 1994. In 1978, Ramos was arrested for an in-prison assault on staff, but the charge was dismissed. During his decades in prison, Ramos has received just a single CDC 115 (serious misconduct), in 1988, “for a physical altercation with an inmate.” He has received three CDC 128s (minor misconduct), the last in October 2001 for “refusing a direct order.” While in prison, Ramos obtained his GED and took several college classes. He obtained a vocational certificate in machine shop. Ramos has maintained his relationships with his family, including the two children he had with his first wife before he went to prison who are now adults, his mother, and his siblings. Ramos married his current wife in 1994.
“[A] CDC 115 documents misconduct believed to be a violation of law which is not minor in nature. A form 128 documents incidents of minor misconduct.” (In re Gray (2007) 151 Cal.App.4th 379, 389.)
Ramos has been found unsuitable for parole repeatedly since he first became eligible for parole in 1983. In February 2005, the Board held a parole hearing to determine Ramos’s suitability for parole. In a psychosocial assessment prepared for this hearing, a psychologist concluded that Ramos had accepted responsibility for his offense, was “genuinely penitent” and expressed “an appropriate amount of remorse.” He suffered from no mental disorders. The psychologist expressed the opinion that Ramos “clearly made the most appropriate personal, social, and behavioral adjustments in this institutional setting,” and “[h]is potential for success on parole is exceedingly good.” “The gains that he has made in prison will undoubtedly hold in a less structured environment.” His “potential for violence . . . is consistent with the average citizen in the community.” The psychologist noted that psychological evaluations for Ramos had repeatedly concluded that he “is not likely to present a danger to the community and would be able to meet the demands of his parole.”
At the February 2005 hearing, Ramos described his parole plans to the Board. He planned to live with his older sister in Groveland, California. His sister had offered him a job as a clerk working with her in her real estate business. Ramos believed that it would be better to be out in the country, away from San Jose “where all my troubles started,” where he would able to avoid Nuestra Familia. Ramos’s brother in Fremont had also offered him a home and employment training. The deputy district attorney who appeared at the hearing expressed concern about the relatively recent nature of Ramos’s plan to move to Groveland. However, the deputy district attorney did not seriously question that Ramos was otherwise suitable for parole. “I think that in the relatively near future he will be suitable for parole once he gets all of his ducks lined up, but I don’t think that’s quite been done yet.”
The Board found that Ramos was “not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” It provided the following justification for its decision. “The offense was carried out in an especially cruel and callous manner. The offense was carried out in a dispassionate and calculated manner. The motive for the crime was inexplicable. . . . He did have an escalating pattern of criminal conduct, history of unstable, tumultuous relationships with others. He failed previous grants of probation and parole. He failed to profit from society’s previous attempts to correct his criminality, including juvenile probation, adult, I mean, juvenile probation, adult probation, and parole from CYA. . . . The prisoner does have Parole Plans. Certainly he could work on his employment plans a little bit to ensure that he has solid employment plans, but his residential plans appear to be solid.”
In May 2006, Ramos filed a pro se petition for writ of habeas corpus in the superior court. Ramos asserted that the Board’s decision that he was unsuitable for parole was erroneous because it was not supported by some evidence, and, under the applicable regulations, the evidence demonstrated that he was suitable for parole.
In June 2006, the superior court issued an order to show cause in which it ordered the Board to “explain why [Ramos], who appears to have achieved the highest level of rehabilitation afforded in the prison system, should not be released on parole under the ISL [Indeterminate Sentencing Law].” The court appointed counsel to represent Ramos.
The Warden filed a return in which he asserted that the current regulations regarding parole suitability were appropriately applied to a prisoner sentenced under the ISL. The Warden also maintained that the Board’s decision was supported by some evidence.
Ramos filed a traverse in which he argued that (1) the Board erred in applying current criteria rather than the criteria applicable under the ISL, (2) the some evidence standard is not the appropriate standard of review, and (3) the Board’s decision is not supported by some evidence. In support of this last argument, Ramos asserted that (a) there was no evidence that his offense was egregious, (b) even if his offense was egregious, it no longer supported a finding that he was unsuitable for parole, and (c) there was no evidence that he had an “unstable social history.”
In December 2006, the superior court granted relief. It found that the Board’s unsuitability finding was “based entirely on the circumstances of the crime itself and on other pre-offense and pre-incarceration static factors, although 30 years has elapsed.” The court concluded that there was no evidentiary support for the Board’s egregiousness finding and, regardless, such a finding could not support an unsuitability determination. It also found no evidence to support the Board’s finding that the motive for the crime was “inexplicable.” Although there was evidentiary support for the Board’s finding that Ramos had an “escalating pattern of criminal conduct,” the court found this to be an inadequate basis for an unsuitability determination. The court also concluded that the ISL required a focus on the prisoner’s rehabilitation rather than his offense and other static factors. Based on these findings, the court remanded the matter to the Board “with directions to proceed in accordance with Due Process” and directed that, “[f]or any negative static fact the Board relies upon in finding [Ramos] unsuitable, should it do so, it shall articulate its nexus and relevance to the present determination of suitability.” The Warden filed a timely notice of appeal.
III. Discussion
Ramos contended below that, because his commitment offense was sentenced under the ISL, the current parole suitability criteria utilized by the Board and the some evidence standard of judicial review were inapplicable. On appeal, the Warden contends that both the current parole suitability criteria and the some evidence standard are applicable. Ramos also contended below that the Board’s decision was not supported by some evidence. The Warden maintains that the superior court erred in remanding the matter to the Board because the Board’s decision was supported by some evidence.
Ramos does not respond to this contention on appeal.
A. Suitability and Unsuitability Criteria
The general standard for a parole unsuitability decision under both the ISL and the Determinate Sentencing Law (DSL) has always been that “a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a); In re Duarte (1983) 143 Cal.App.3d 943, 950 (Duarte).)
Subsequent references to “Regs.” will be to this title.
Similarly, the current suitability criteria under the DSL do not vary significantly from the suitability criteria that were applied under the ISL. (Duarte, supra, 143 Cal.App.3d at p. 950.) “‘In determining whether the privilege of parole shall be granted a prisoner [under the ISL], that authority is not guided solely by the good conduct of the prisoner while incarcerated. The nature of his offense, his age, his prior associations, his habits, inclinations and traits of character, the probability of his reformation and the interests of public security are all taken into consideration.’” (In re Schoengarth (1967) 66 Cal.2d 295, 300.)
The current regulations under the DSL set forth a number of specific circumstances for the Board to consider, but the Board may consider any relevant circumstances. “[C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)” (In re Rosenkrantz (2002) 29 Cal.4th 616, 653-654, fn. omitted (Rosenkrantz).) “Factors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.” (Rosenkrantz, at p. 653, fn. 11; Cal. Code 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.)
In re Stanworth (1982) 33 Cal.3d 176 (Stanworth) does not preclude the application of current parole suitability criteria to a prisoner sentenced under the ISL. The California Supreme Court held in Stanworth that the criteria for setting the length of a prisoner’s term under the DSL were significantly different from the criteria for setting the length of the term under the ISL and therefore a prisoner sentenced to an indeterminate term under the ISL was entitled to have the length of his or her term calculated under the ISL criteria. (Stanworth, at pp. 186-188.) Unlike the change in the criteria for term length decisions, the transition from the ISL to the DSL has not changed the relevant standard or the relevant criteria for parole suitability decisions. (In re Seabock (1983) 140 Cal.App.3d 29, 40-41; Duarte, supra, 143 Cal.App.3d at pp. 946-951.) Consequently, I cannot credit the superior court’s finding that the ISL required a focus on Ramos’s rehabilitation rather than his offense and other static factors in making a parole suitability decision.
B. Judicial Review
The California Supreme Court’s holding in Rosenkrantz that the some evidence standard of review applies to parole suitability determinations was based on its previous decision in In re Powell (1988) 45 Cal.3d 894 (Powell) that the some evidence standard of review applies to parole rescission decisions. (Rosenkrantz, supra, 29 Cal.4th at p. 652.) The parole decision in Powell was made under the ISL. (Powell, at pp. 898, 904.) The California Supreme Court’s reasoning in Rosenkrantz that the some evidence standard of review is just as applicable to a parole suitability decision under the DSL as it is to a parole rescission decision under the ISL demonstrates that the some evidence standard of review is equally applicable under both the DSL and the ISL to both types of parole decisions. Hence, the Rosenkrantz some evidence standard is applicable here.
“[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.” (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
“[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.)
C. Analysis
The Board based its unsuitability decision on four circumstances. First, it found Ramos’s commitment offense to be egregious because it had been committed in a “cruel and callous” and “dispassionate and calculated manner,” and “[t]he motive for the crime was inexplicable.” Second, the Board determined that Ramos had “an escalating pattern of criminal conduct.” Third, it found that he had a “history of unstable, tumultuous relationships with others.” Finally, the Board noted that Ramos had “failed previous grants of probation and parole.” The Board accepted that Ramos “does have Parole Plans[,]” including “solid” residential plans, although it suggested that “he could work on his employment plans a little bit to ensure that he has solid employment plans.”
The superior court concluded that the Board’s egregiousness finding was not supported by some evidence. The superior court found some evidence supported the Board’s finding that Ramos had an “escalating pattern of criminal conduct,” but it concluded that this circumstance did not support the Board’s unsuitability determination. The superior court also opined that the nature of Ramos’s offense could not support the Board’s unsuitability decision even if the offense were egregious.
The Warden contends on appeal that the Board’s egregiousness finding is supported by some evidence, and that finding alone, or in combination with the Board’s “escalating pattern of criminal conduct” finding, supports the Board’s unsuitability decision. Ramos argues that the Board’s egregiousness finding is not supported by any evidence. He suggests that his criminal behavior prior to the commitment offense was not actually escalating, but he primarily contends, as the superior court concluded, that his pattern of criminal behavior prior to the commitment offense is no longer indicative of the danger he poses to the community. Ramos challenges the Board’s finding that he had a “history of unstable, tumultuous relationships with others” as unsupported by the evidence. Finally, he contends that the Board’s finding that he had failed at probation and parole merely duplicated its “escalating pattern of criminal conduct” finding and similarly no longer has any predictive power.
A crime may be considered particularly egregious if the Board identifies “factors beyond the minimum elements of the crime for which the inmate was committed.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1071 (Dannenberg).) While Ramos’s crime, first degree murder, is necessarily deliberate and premeditated, a first degree murder may be particularly egregious if “the prisoner committed the offense in an especially heinous, atrocious, or cruel manner,” including where “the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder” and/or “the motive for the crime is inexplicable or very trivial in relation to the offense.” (Rosenkrantz, supra, 29 Cal.4th at p. 653, fn. 11.)
The record contains a modicum of evidence that Ramos’s participation in the killing of Tenario was “dispassionate and calculated” beyond the minimum elements of first degree murder. Ramos, having known for an hour that his compatriots wanted to kill Tenario, lured Tenario out into the open so that his compatriots could shoot Tenario to death. Ramos’s motive, which was far from inexplicable, was to ingratiate himself with Nuestra Familia so that he could join the gang. The Board could have concluded that, by calculatedly and dispassionately setting Tenario up to be killed, Ramos’s offense exceeded the minimum elements of first degree murder and therefore was particularly egregious.
On the other hand, the record provides no support whatsoever for the Board’s finding that Ramos’s motive was “inexplicable.” Inexplicable means “incapable of being explained, interpreted or accounted for.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 597.) As offensive as it was, Ramos’s motive was explained and accounted for. He wanted to join Nuestra Familia and hoped that his participation in this killing would earn him membership. It is difficult to discern from the rote nature of the Board’s findings how much of a role its finding regarding Ramos’s motive played in its determination that the offense was egregious. Thus, the lack of evidence to support this finding potentially infects the Board’s overall egregiousness finding.
The Board’s findings that Ramos had an “escalating pattern of criminal conduct” and had failed probation and parole are well supported by the evidence. He progressed from petty theft to malicious mischief to vehicle theft before his initial commitment to the CYA at age 14. He left the CYA unreformed, continued to steal and progressed to assault with intent to commit rape, before being committed to the CYA a second time at age 17. As an adult, he continued to commit crimes including drunk driving and resisting arrest, and he sheltered an arsenal of weapons for a very violent criminal gang. Throughout this time, he repeatedly failed on probation and parole.
On the other hand, the Board’s finding that Ramos had a history of unstable relationships was not supported by any evidence. It is true that Ramos disliked his stepfather and ran away from home as a child, but he has maintained stable relationships with his mother, siblings, children, and his current wife for many years. His childhood differences with his stepfather do not provide even a modicum of support for the Board’s finding.
“In reviewing a decision denying parole, we first determine whether some evidence supports each of the factors stated by the Board to justify the denial of parole. [Citations.] If one or more of the factors lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result ‘satisfies the requirements of due process of law’ because the factors for which there is some evidence ‘constitute a sufficient basis supporting the . . . discretionary decision to deny parole.’ [Citation.] We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion. [Citations.] [¶] On the other hand, the ‘decision cannot stand’ when findings on important factors lack evidentiary support and it is not clear that the Board would have reached the same conclusion based on the supported factors. [Citations.] When the supported factors could justify denying parole, but it is not clear that the Board would have reached this conclusion, . . . the appropriate remedy is to direct the Board to reconsider the prisoner’s parole suitability in accordance with the discretion allowed by law.” (In re Deluna (2005) 126 Cal.App.4th 585, 598; In re Smith (2003) 114 Cal.App.4th 343, 373.)
The patchwork of valid and invalid Board findings precludes a determination that the Board would have reached the same suitability decision if it had relied solely on the supported findings. (Dannenberg, supra, 34 Cal.4th at p. 1099 [reliance on invalid findings harmless if it did not affect the outcome].) While there is evidentiary support for the Board’s finding that Ramos’s commitment offense was “dispassionate and calculated,” the Board’s overall egregiousness finding was based on both that finding and its finding that his motive was inexplicable, which is not supported by any evidence. The Board’s finding that Ramos had an escalating pattern of criminal behavior is supported by some evidence, but its finding that he had a history of unstable relationships is not supported by any evidence. The calculated nature of the offense and Ramos’s escalating pattern of criminal behavior in his youth and young adulthood alone do not preclude a finding that Ramos is suitable for parole.
Because this is not a case in which the Board relied solely on the commitment offense to support its unsuitability decision, this appeal does not require this court to address the parties’ dispute regarding whether the nature of the commitment offense alone may support an unsuitability decision.
Ramos did not appeal from the superior court’s decision to remand the matter to the Board, so the question of whether the Board could base an unsuitability decision on these factors is not before us.
An unsuitability decision based on findings that are not supported by some evidence clearly violates due process, and the appropriate remedy is to “order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law.” (Rosenkrantz, supra, 29 Cal.4th at p. 658.) The remand to the Board should not contain further elaboration. “The proper function of the courts in respect to parole and revocation of parole is simply to ensure that the prisoner is accorded due process” (In re Bowers (1974) 40 Cal.App.3d 359, 362.) The applicable regulations require the Board to articulate the factors supporting its decision, and due process mandates that these factors be supported by some evidence. Nothing further is required by the regulations or due process. Hence, it would be inappropriate for this court to require the Board to explicitly articulate the “nexus and relevance” of the factors upon which it bases its decision. So long as the factors articulated by the Board are based on some evidence and support the Board’s decision, Ramos will be accorded due process.
IV. Conclusion
I would order the superior court to modify its order to delete its direction that, “[f]or any negative static fact the Board relies upon in finding [Ramos] unsuitable, should it do so, it shall articulate its nexus and relevance to the present determination of suitability.” I would affirm the modified order.