Opinion
H036891
12-13-2011
In re EFRAIN REYES, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 101413)
I. INTRODUCTION
After killing his wife, Laura Reyes, with a single gunshot to the head in 1985, petitioner Efrain Reyes was convicted of second degree murder with a firearm enhancement. Following a parole hearing held on July 8, 2010, the Board of Parole Hearings (the Board) found that Reyes was unsuitable for parole because he would pose an unreasonable risk of danger if released from prison. Reyes challenged the Board's decision by filing a petition for a writ of habeas corpus in the superior court. The superior court granted the habeas corpus petition, vacated the Board's decision, and remanded the matter to the Board "with directions to proceed in accordance with due process and to consider all relevant reliable information."
On appeal, Warden Kathleen Dickinson (the Warden) contends that the superior court erred because some evidence supports the Board's finding that Reyes would pose an unreasonable risk of danger if released from prison. For the reasons stated below, we conclude that under the standard of review established by the California Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), and In re Prather (2010) 50 Cal.4th 238 (Prather) some evidence supports the Board's decision. Therefore, we will reverse the superior court's order and remand the matter to the superior court with directions to issue a new order denying the petition for writ of habeas corpus.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Social History
Reyes was born in Mexico in 1955. He grew up in San Jose, California with two younger brothers and a younger sister. One of his brothers drowned when Reyes was 17 years old. Reyes dropped out of high school but returned to graduate in 1976. His employment history includes working as an assembler at Ford Motor Company, IBM, and Hewlett Packard.
Reyes began a relationship with the victim of his commitment offense, Laura Reyes, when they were both teenagers. Laura became pregnant when she was 17 years old. Reyes felt obligated to marry her and they subsequently had six children. During the marriage, Reyes had a significant drug and alcohol problem. He also physically abused Laura. When Laura attempted to leave the marriage on two occasions, Reyes contemplated suicide.
Although Reyes's father was abusive, Reyes has maintained contact with both of his parents. He also has contact with his six children and with his relatives in Mexico.
B. Criminal History
Reyes had two juvenile adjudications for petty theft. As an adult, he was convicted of 22 misdemeanor vehicle and traffic violations. In 1975, Reyes was convicted of being under the influence of a controlled substance and possession of a hypodermic needle. He also assaulted his father-in-law with a tire iron and was convicted of assault with a deadly weapon in 1978. Reyes's wife received community service for welfare fraud, which Reyes helped her to commit.
C. The Commitment Offense
Reyes murdered his wife Laura on May 28, 1985, when he was 29 years old. The following summary of the commitment offense is taken from the May 12, 1986 probation report.
The record in this appeal does not include a life prisoner evaluation.
During the month preceding the commitment offense, Reyes was off work because he had an eye injury. At the time, he and Laura were experiencing severe financial problems. The day of the murder was Reyes's first day back at work. While on the job, he ingested methamphetamine and drank two beers and several shots of bourbon. He was also taking codeine for the eye injury.
When Reyes arrived home, he resumed his consumption of alcohol. He also began to argue with Laura, eventually striking her and pushing her to the floor. She threatened to leave him, as she had done on prior occasions. Reyes was afraid that Laura would leave him again and take the children. When Laura went into their bedroom, Reyes remembered that his shotgun was in there. Fearing that Laura would use the shotgun against him, he went to the bedroom and retrieved the shotgun without her knowledge. Reyes then put the shotgun under the couch in the living room.
When Laura tried to leave the house, Reyes stopped her by hitting her in the leg with a brick. He told her " 'you're not going to do this to me no more. They're my kids too. If you leave, we both might as well be dead.' " Reyes also recalled that he pointed the shotgun at Laura and shoved it towards her head. He then telephoned the authorities and requested an ambulance. Reyes told the police officers who arrived on the scene that the shotgun had hit the floor and discharged accidentally, resulting in Laura being shot. He also told them, " 'I did it. I shot her. We were in an argument. I'm sorry I did it. I have six kids in the rear bedroom. I should be dead. I want to kill myself. Is she dead?"
The police officers who arrived on the scene described a major head injury to Laura, with a large quantity of blood, brain matter, and tooth fragments found on the floor and walls of the living room. The shotgun was on the floor next to her and it was apparent that she had been shot at close range. The officers also found the couple's six young children in the back bedrooms of the house.
One of Reyes's children told the police officers that their parents frequently argued and he had seen his father strike his mother. Other family members reported that they had often seen bruises on Laura's face, arms, legs, and neck, and she had taken refuge in a home for battered wives on at least two occasions. The coroner who examined Laura's body found bruises indicative of previous and recent beatings.
After pleading no contest, Reyes was convicted of second degree murder with a firearm enhancement (Pen. Code, §§ 187, 12022.5) and received a sentence of 15 years to life.
D. Conduct While Incarcerated
Until 2007, Reyes was a participant in the Department of Corrections' Mental Health Delivery System with a diagnosis of major depressive disorder with psychotic features. Reyes is currently classified in the general prison population at the California Medical Facility.
Reyes's history of prison discipline during his more than 23 years of incarceration includes two CDC 115 reports of serious rule violations and six CDC 128 reports of minor administrative rule violations. The serious rule violations include theft of lighters from the canteen in 1992 and possession of contraband radio parts in 2000.
"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.)
Reyes's prison programming has included participation in self-help programs, including Narcotics Anonymous, Alcoholics Anonymous, the long-term commitment group, and the Katargeo-Going Home Workshop. He has also participated in substance abuse treatment.
Educational and vocational programming has included Reyes's completion of programs for office services, electronics, and horticulture. While in prison, Reyes has been employed as a clerk, a porter, and a cook. Most recently, Reyes has worked as a records clerk in the Blind Project. He has received good work evaluations.
E. Psychological Evaluations
During the parole hearing, the Board considered the May 4, 2009 comprehensive risk assessment prepared by Lisa Kalich, Psy.D., and the February 23, 2010 subsequent risk assessment prepared by Kristina Reynoso, Ph.D.
Dr. Kalich assessed Reyes's future risk of violence in the community after weighing the data she had obtained from interviewing Reyes, reviewing his records, and utilizing three assessment tools. The results of the assessment tools placed Reyes in the low range for psychopathy, the low to moderate category for violent recidivism, and the low risk category for general recidivism.
Additionally, Dr. Kalich found that Reyes had "taken considerable steps to address his severe drug and alcohol addiction. For the past 23 years, he has consistently attended NA/AA meetings and is committed to maintaining his sobriety in the community." She also found that Reyes "has a realistic assessment of his need to refrain from all alcohol use and appeared to offer an honest portrayal of the extent of his use. Though it may be somewhat unrealistic that Mr. Reyes would not be tempted to use drugs and alcohol again, it is very encouraging that he understands the risk of vulnerability to relapse and plans to attend treatment consistently."
Regarding insight, Dr. Kalich determined that "Mr. Reyes has good insight into the issues which led to his physical abuse of his wife and the life crime. These are discussed in more detail in the Relationship History section of this report." In that section, Dr. Kalich quoted Reyes's statement that " '[a]busing Laura just came so naturally,' as he had witnessed domestic violence between his parents." Dr. Kalich also noted that Mr. Reyes described himself at the time of the life crime as " 'controlling,' 'short-tempered,' and 'a very dependent person.' " Reyes also told Dr. Kalich that " 'I was unhappy. I felt empty. I was blessed . . . but had a spiritual void inside of me. . . . I couldn't live life on life's terms.' "
As to Reyes's expressions of remorse for the crime and the impact on his children, Dr. Kalich found that his "expressions of remorse, both in the current interview and in previous reports, seem genuine, particularly in light of his commitment to improve himself and to understand further the events of that day." She noted, however, that "[i]n the past, Mr. Reyes has not always assumed responsibility for his role in the life crime. He has minimized the shooting by stating that it was an accident. Currently, after viewing the autopsy report, he has accepted that he did shoot his wife at close range. However, he continues to maintain that he has no memory of shooting his wife . . . . Clearly, Mr. Reyes has made significant progress in assuming full responsibility, however it continues to be difficult for him to accept that he may have, albeit momentarily, intended the result of his actions."
As to Reyes's mental health, Dr. Kalich reported that although Reyes was no longer undergoing treatment or prescribed medication for depression, he lacked "some insight into his depression. He identified as 'emotional' depression rather than mental, and does not appear to understand that depressive feelings often have a psychological and biological basis." Dr. Kalich further stated, "It will be important for Mr. Reyes to have a good understanding of his depressive condition, to be able to recognize the early symptoms of depression, and to be willing to seek treatment if necessary."
Finally, Dr. Kalich reported that Reyes's risk for violence in the community was likely to increase if he returned to using drugs and alcohol, became involved with an antisocial peer group, became homeless, lacked sufficient income to meet his living expenses, and/or lacked social support in the community. Conversely, his risk for violence in the community would decrease if he remained drug and alcohol free, sought substance abuse treatment in the community, developed "added insight into his depression," continued to "utilize appropriate coping strategies," sought out positive social relationships, and maintained a steady source of income.
Based on her consideration of "all of the data from the available records, the clinical interview, and the risk assessment data," Dr. Kalich concluded that "it appears that Mr. Reyes presents a low risk of violence in the free community."
In her February 23, 2010 subsequent risk assessment, Dr. Reynoso determined that she "had no concerns about the presence of new risk factors that would elevate his overall risk to violently re-offend." Dr. Reynoso stated, however, that "it may be to Mr. Reyes' benefit to critically examine his true intentions towards his wife on the day of the crime." She also reported that "[w]hile his personal level of insight into the motives of his wife's shooting still remains limited, Mr. Reyes appears to have fairly good insight into his psychological processes, personal limitations and ineffective coping skills at the time. . . . [He] appeared to have a good level of understanding that the function of [the] abuse he inflicted on his wife was in large part the result of projected feelings of guilt he felt stemming from a number of infidelities, financial difficulties and prior incidents of emotional and physical abuse; repressing his feelings of guilt and placing blame on his wife for his own internal struggles."
Dr. Reynoso further reported that Reyes "has gained considerable insight into the causative factors that led him to shoot his wife and is gradually taking more responsibility for her death (in terms of understanding his motive). . . . Additionally, he appears to have a good level of insight into the ramifications of his depression, how to handle any potential future flare-ups and how to maintain behavioral stability is crucial to his long-term sobriety efforts." Dr. Reynoso recommended that Reyes continue with substance abuse treatment in order "to further increase his chances of long-term sobriety in the community given the prominent role alcohol and drugs played in his life prior to and at the time he murdered his wife."
F. Parole Plans
Reyes is subject to an active Immigration and Naturalization Service (INS) hold. If Reyes is deported to Mexico following his release on parole, his plans include living with a relative in his home state in Mexico, where he believes that he would be employable. There is an Alcoholics Anonymous group in the area of Mexico where he intends to live.
If Reyes is able to remain in San Jose, California, he plans to live in a six-month Salvation Army drug and alcohol rehabilitation program. He also has an offer to live with his eldest son in San Jose.
G. The Board Hearing
During the Board hearing held on July 8, 2010, the Board questioned Reyes about his physical abuse of Laura during their nine-year marriage. Reyes responded that he had abused her "[t]oo often," and acknowledged that "even once is too much." He also acknowledged that Laura had left him on prior occasions because they were arguing and he would abuse her. Reyes explained that he continued to abuse Laura because he had seen his father beat up his mother as he was growing up. Also, Laura would yell at him about their financial problems, and he was afraid that Laura would abandon him.
Regarding his 1978 conviction for assaulting Laura's father with a tire iron, Reyes explained that he was 22 years old at the time and did not like Laura's father, who he felt was a racist and was encouraging Laura to leave him. The day before the assault, Reyes broke the front window of Laura's father's house. The next day, Reyes returned and knocked down the plywood board that had been put up. Laura's father "came at [Reyes] with an iron pick." Reyes got the tire iron from his truck and when Laura's father "jabbed" him, he hit him on the head.
When asked about the commitment offense, Reyes stated that his circumstances at that time included being off work for a month due to his eye injury and taking codeine, which allowed him to "drink and use drugs even more, and not fully feel the effects . . . ." He was also afraid that Laura was going to abandon him. On the day of the murder, Reyes "had done two lines of crank at about one o'clock at work." After arriving home at about 3:15 p.m., Reyes drank Jack Daniels and beer and worked on mini-bikes in the garage with his sons. Laura was there and complained to Reyes that creditors had called.
The family then went into the house, where Reyes told the children to get ready for a bath. He then sat down to watch television and lost track of them. As he was watching television, Reyes recalled that his gun was in the bedroom and became afraid that Laura would get the gun and shoot him. Reyes then took the gun out of the closet with the intention of putting it in the garage. Laura came out of the bathroom and saw him, so Reyes instead put the gun under the sofa. He then sat down to watch television again.
A few minutes later, Reyes remembered that the children were in the bathtub. As he went into the bathroom, Laura ran out, pushed him against the bed, and ran towards the front door. Reyes shut the door and the couple fell to the floor and began "wrestling." To prevent Laura from getting up and leaving, Reyes hit her in the leg with a brick.
According to Reyes, Laura's hand then went towards the sofa. Remembering that the gun was under the sofa, Reyes grabbed it. He heard Laura say, "oh, no," then he saw a flash and heard a muffled sound. Reyes called Laura, but she did not move. He does not remember pulling the trigger and had no intention of taking her life. Although Reyes told the police officers that the shooting was accidental and the shotgun had gone off after hitting the floor, after reading the autopsy reports about a year and a half ago he has realized what he actually did. However, Reyes continued to maintain that the shooting was unintentional.
The Board also inquired about Reyes's mental state, noting that the psychological evaluation stated that he presented a low risk for violence in the free community but lacked insight into his depression, as he believed that treatment would never be necessary in the community. Reyes responded that he knew "that terrible depression will never come back," because he now has spiritual help and has been addressing the same issues for the past 25 years.
Additionally, the Board reviewed Reyes's parole plans and prison programming, and heard from the prosecutor and Laura's sister, who opposed Reyes's release on parole, as well as Reyes's attorney and Reyes' son, who spoke in favor of his release. The Board also heard Reyes's closing statement to the Board.
H. The Board's Decision
After the conclusion of the July 8, 2010 hearing, the Board announced its decision denying parole for a three-year period pursuant to Marsy's Law. The Board concluded that Reyes was "not suitable for parole because he currently poses an unreasonable risk of danger if released from prison."
The Marsy's Law amendments to Penal Code section 3041.5 went into effect on November 5, 2008, after voters approved Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law." (Pen. Code, § 3041.5; Cal. Const., art. I, § 28.) Where parole is denied, under Marsy's Law the minimum deferral period for the next parole suitability hearing is three years. (§§ 3041.5, subd. (b)(3)(C).)
Although the Board acknowledged that parole had been granted at the previous parole suitability hearing, the Board stated that "this Panel had serious concerns about your depth of remorse and understanding of the nature and the magnitude of this murder, because we heard very little about Laura, your wife, who you shot and killed with a shotgun. We heard more about Mr. Reyes, Mr. Reyes, Mr. Reyes, and how all this had affected him. . . . . We heard very little about her." The Board also noted that Reyes had first failed to mention, and then minimized, that the reason Laura had attempted to leave on the day of the commitment offense was that he had been beating her.
We take judicial notice of this court's prior opinion, In re Efrain Reyes (May 20, 2011) H035986 [nonpub. opn.], which affirmed the Governor's December 23, 2009 decision to reverse the Board's grant of parole on July 27, 2009. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
The Board further stated, "So, we don't believe that you understand the seriousness of what you did and the magnitude of this murder. We didn't hear about what she lost, not being able to raise her children, seeing them get married, graduate high school, no grandchildren, all those things." And, "this was a very cold and calculated situation, because you got that shotgun in there, and you used it on her, you said today, so she couldn't use it on your first. And you shot her. And we don't believe that you understand how horrible that must have been. We really don't. And you're beating her before you get the shotgun, and the whole works. And afterwards, you feel bad and call 911. Well, maybe you were thinking about what was going to happen to you. Because so far, we haven't heard much about how sorry you feel about Laura. We really didn't. So, that's a concern, because that tells us that you can say you're sorry, you can say you have insight, and all this other stuff. We did not feel that. We did not find that credible. We did not believe that you actually realize the magnitude of this murder."
Additionally, the Board was concerned about Reyes' statement that depression would never be a problem for him again. The Board noted that "depression and addiction were such components of the person who committed the murder, that to discount the work you've done on yourself here and just say the problem is never going to happen again, is not realistic and causes concern."
The Board commended Reyes's vocational accomplishments and self-help programming, and recognized the psychologists' opinions that he presented a low risk for future violence. However, the Board concluded that because Reyes did not "have an understanding of the magnitude and the great loss . . . that Laura suffered, then we can't find you credible when you say you're sorry for it, and all those other things, because it just doesn't ring true."
I. Habeas Proceedings
Reyes challenged the Board's three-year denial of parole by filing a petition for writ of habeas corpus in the superior court on November 10, 2010. He argued that the Board's decision that he presented a risk of danger to society if released was not supported by some evidence, since the commitment offense was remote in time, parole had previously been granted, and the record did not support the Board's finding that he failed to discuss Laura and the impact of the murder on her. Reyes asserted that he had expressed "sincere and profound insight and remorse for his actions on the fateful day twenty-five years ago."
The superior court issued an order to show cause on November 19, 2010, stating that the "Board denied [Reyes] parole because of a purported lack of insight. . . . [T]he finding appears to be based on an inexplicable rejection of the psychological report in favor of a vague and subjective 'we don't believe that you understand the seriousness of what you did and the magnitude of this murder.' "
The Warden filed a return on January 7, 2011, arguing that the record showed that there was some evidence to support the Board's finding that Reyes was unsuitable for parole, consisting of the heinous nature of the commitment offense, as well as his prior history of violence, unstable social history, institutional behavior, minimization of his conduct, lack of remorse, and questionable credibility.
Reyes filed a denial/traverse on March 7, 2011. He disputed the Warden's contentions that the commitment offense was particularly heinous and that his prior history of violence, social history, institutional behavior, lack of insight, and mental health evaluations showed that he currently posed a risk of danger if released on parole.
J. The Superior Court's Order
On April 1, 2011, the superior court issued its order granting the petition for writ of habeas corpus. In so ruling, the court rejected the Board's finding that Reyes's lack of insight showed that he was unsuitable for parole. The court stated, "These Board observations, on the inherently vague concept of insight, seem based on intuition or undefined criteria that are impossible to refute. One always remains vulnerable to a charge that he or she lacks sufficient insight into some aspect of past misconduct even after meaningful self-reflection and expressions of remorse. The Board has not pointed to any identifiable and material deficiency in this case."
The superior court therefore vacated the Board's decision and remanded the matter to the Board "with directions to proceed in accordance with due process and to consider all relevant reliable information. The new hearing shall be held within 100 days."
The Warden filed a notice of appeal from the superior court's order on May 4, 2011. Thereafter, on May 27, 2011, we granted the Warden's petition for a writ of supersedeas and ordered a stay of enforcement of the superior court's order until final determination of this appeal.
III. DISCUSSION
A. The Parties' Contentions
On appeal, the Warden emphasizes the California Supreme Court's ruling in Lawrence that the aggravated nature of the commitment offense may remain predictive of the inmate's current risk of danger where "the record also establishes that something in the prisoner's pre- or post-incarceration 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 Warden contends that in this case, the evidence of Reyes's "lack of remorse for and understanding of the life crime, rationalizations for having murdered his wife, unstable social history, and the commitment offense itself" constitute some evidence of Reyes's current risk of danger. Additionally, the Warden asserts that "the Board reasonably considered Reyes's unrealistic attitude that his depression would never return in determining whether he remains a public safety threat."
Although Reyes agrees that an inmate's attitude towards the commitment offense may show parole unsuitability, Reyes disagrees that his attitude constitutes some evidence that he is unsuitable. According to Reyes, the Board unfairly questioned him at the parole hearing in a manner that caused him to focus on himself instead of the victim. Reyes also asserts that he expressed his remorse and sorrow for the commitment offense.
As to lack of insight, Reyes relies on this court's decision, In re Ryner (2011) 196 Cal.App.4th 533 (Ryner) for the argument that since the evidence showed that he has acknowledged the material aspects of his conduct and demonstrated remorse, the Board could not reasonably conclude that he lacked insight. Reyes also notes that the psychological evaluation stated, among other things, that he had "fairly good insight into his psychological processes, personality limitations and ineffective coping skills at that time."
Regarding his depression, Reyes asserts that the evidence before the Board shows that he has acknowledged that his depression could return, and that he would seek help if it did. Specifically, Reyes points to his statement that he "had received great 'spiritual or emotional help from [his] fellow AA/NA brothers and other spiritual persons. I use that, I talk to them all the time. And I would not hesitate to continue doing that.' "
Reyes therefore contends that his "statements at the hearing demonstrating acceptance of responsibility for the crime and great remorse for having committed it, combined with favorable psychological reports and a high level of family support indicate that he no longer poses an unreasonable risk of danger in the community if released. There was not some evidence to support the Board's denial of parole."
We will begin our analysis with the statutory and regulatory framework that governs the Board's parole suitability decisions and the standard for judicial review, which was established by the California Supreme Court in Lawrence, supra, 44 Cal.4th 1181, and Shaputis, supra, 44 Cal.4th 1241, and restated in Prather, supra, 50 Cal.4th 238.
B. The Legal Framework for Parole Suitability Decisions
The Board is the administrative agency within the executive branch that is generally authorized to grant parole and set release dates. (Pen. Code, §§ 3040, 5075 et seq.) The Board's parole decisions are governed by section 3041 and title 15, section 2400 et seq. of the California Code of Regulations.
All statutory references hereafter are to the Penal Code unless otherwise indicated.
All further undesignated references to regulations are to title 15 of the California Code of Regulations.
Subdivision (a) of section 3041 provides that the Board " 'shall normally set a parole release date' one year prior to the inmate's minimum eligible parole release date, and shall set the date 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public . . . .' " (Lawrence, supra, 44 Cal.4th at p. 1202, fn. omitted; § 3041, subd. (a).) " 'Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.' [Citation.]" (Shaputis, supra, 44 Cal.4th at p. 1258.)
"Subdivision (b) of section 3041 provides that a release date must be set 'unless [the Board] 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.' [Citation.]" (Lawrence, supra, 44 Cal.4th at p. 1202, italics omitted.)
In assessing whether "the inmate poses 'an unreasonable risk of danger to society if released from prison,' and thus whether he or she is suitable for parole," the Board is guided by the factors set forth in Title 15, section 2402 of the California Code of Regulations. (Prather, supra, 50 Cal.4th at p. 249.)
Section 2402 "lists several circumstances relating to unsuitability for parole (such as the heinous, atrocious, or cruel nature of the crime, or an unstable social background) and several circumstances relating to suitability for parole (such as an inmate's rehabilitative efforts and demonstration of remorse, and the mitigating circumstances of the crime). (Regs., § 2402, subds. (c), (d).)" (Prather, supra, 50 Cal.4th at pp. 249-250, fns. omitted.)
Subdivision (c) of section 2402 provides, "Circumstances Tending to Show Unsuitability. The following circumstances each tend to indicate unsuitability for release. These circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate unsuitability include: [¶] (1) Commitment Offense. The 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. [¶] (2) 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. [¶] (3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others. [¶] (4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. [¶] (5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense. [¶] (6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail."
Subdivision (d) of section 2402 provides, "Circumstances Tending to Show Suitability. The following circumstances each tend to show that the prisoner is suitable for release. The circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate suitability include: [¶] (1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims. [¶] (2) Stable Social History. The prisoner has experienced reasonably stable relationships with others. [¶] (3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense. [¶] (4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time. [¶] (5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization. [¶] (6) Lack of Criminal History. The prisoner lacks any significant history of violent crime. (7) Age. The prisoner's present age reduces the probability of recidivism. [¶] (8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release. [¶] (9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release."
"Finally, the regulation explains that the foregoing circumstances 'are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.' [Citation.]" (Lawrence, supra, 44 Cal.4th at p. 1203.) Thus, the statutory and regulatory framework for parole suitability decisions "establish that the decision to grant or deny parole is committed entirely to the judgment and discretion of the Board . . . ." (Prather, supra, 50 Cal.4th at p. 251.)
C. Judicial Review
"When a superior court grants relief on a petition for [writ of] habeas corpus without an evidentiary hearing, as happened here, the question presented on appeal is a question of law, which the appellate court reviews de novo. [Citation.] A reviewing court independently reviews the record if the trial court grants relief on a petition for writ of habeas corpus challenging a denial of parole based solely on documentary evidence. ([In re Rosencrantz (2002) 29 Cal.4th 616, 677].)' (In re Lazor (2009) 172 Cal.App.4th 1185, 1192.)
The California Supreme Court has established the standard that governs our independent review. In Prather, the California Supreme Court reaffirmed its prior determination in Lawrence and Shaputis that "a petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate's due process right 'cannot exist in any practical sense without a remedy against its abrogation.' [Citation.]" (Prather, supra, 50 Cal.4th at p. 251.)
Since "the paramount consideration for [the Board] under the governing statutes is whether the inmate currently poses a threat to public safety, and because the inmate's due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists 'some evidence' that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor. [Citation.]" (Shaputis, supra, 44 Cal.4th at p. 1254; Prather, supra, 50 Cal.4th at pp. 251-252.)
Thus, "as specified by statute, current dangerousness is the fundamental and overriding question for the Board . . . . In addition . . . evidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate's attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record—must, by statute, be considered and relied upon by [the Board], whose decisions must be supported by some evidence, not merely by a hunch or intuition. By reviewing this evidence, a court may determine whether the facts relied upon by [the Board] support the ultimate decision that the inmate remains a threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1213.)
Regarding the commitment offense, the Supreme Court further instructed that "although [the Board] 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 post-incarceration 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 Supreme Court also recognized that "certain conviction offenses may be so 'heinous, atrocious or cruel' that an inmate's due process rights would not be violated if he or she were to be denied parole on the basis that the gravity of the conviction offense establishes current dangerousness. In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide 'some evidence' of current dangerousness even decades after commission of the offense." (Lawrence, supra, 44 Cal.4th at p. 1228.)
Therefore, "where the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. [Citations.]" (Lawrence, supra, 44 Cal.4th at p. 1228.)
D. Analysis
To evaluate the merits of Reyes's habeas corpus petition, we have carefully reviewed the record pursuant to the direction of the California Supreme Court in Lawrence, supra, 44 Cal.4th 1181; Shaputis, supra, 44 Cal.4th 1241; and Prather, supra, 50 Cal.4th 238, to determine whether some evidence supports the Board's conclusion that Reyes "currently poses an unreasonable risk of danger if released from prison." Our review indicates that the Board's decision was based on (1) the commitment offense; (1) Reyes's lack of insight into the magnitude of the commitment offense; and (3) Reyes's lack of insight regarding his depression.
1. The Commitment Offense
The Board found that "this was a very cold and calculated situation, because you got that shotgun in there, and you used it on her, you said today, so she couldn't use it on your first. And you shot her. And we don't believe that you understand how horrible that must have been. We really don't. And you're beating her before you get the shotgun, and the whole works." Thus, the Board's decision implicitly relied, in part, upon a finding that the aggravated circumstances of the commitment offense showed that Reyes was unsuitable for parole.
Under the regulatory scheme, one of the circumstances tending to show parole unsuitability 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." (Regs., § 2402, subd. (c)(1).)
We find that some evidence supports the Board's implicit determination that circumstances of the commitment offense, where Reyes beat his wife and then shot her in the head at close range while the couple's six children were nearby, show the aggravated nature of the crime. In accordance with the Supreme Court's instruction in Lawrence, supra, 44 Cal.4th at page 1214, that the aggravated circumstances of the commitment offense alone are not sufficient to show current dangerousness, we next consider whether some evidence supports the Board's determination that additional factors establish that the circumstances of the commitment offense "remain probative of the statutory determination of a continuing threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1214.)
2. Lack of Insight into the Magnitude of the Commitment Offense
Explaining its decision that Reyes was not suitable for parole, the Board stated, among other things, that "we don't believe that you understand the seriousness, and the nature and magnitude of this whole crime. We didn't hear much concern about Laura and what she lost, and it basically all about Mr. Reyes, and we need you to broaden your view. Because if you don't have an understanding of the magnitude and great loss that she suffered . . . then we can't find you credible when you say you're sorry for it . . . because it just doesn't ring true."
The regulatory scheme provides that a circumstance tending to show suitability for parole is that the inmate has indicated that he or she "understands the nature and magnitude of the offense." (Regs., § 2402, subd. (d)(3).) Additionally, although there is no express provision for "lack of insight," the California Supreme Court has established that "where the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. [Citations.]" (Lawrence, supra, 44 Cal.4th at p. 1228.)
In Shaputis, our Supreme Court determined that some evidence supported the Governor's decision that Shaputis remained a threat to public safety "in that he has failed to take responsibility for the murder of his wife, and despite years of rehabilitative programming and participation in substance abuse programs, has failed to gain insight into his previous violent behavior, including the brutal domestic violence inflicted upon his wife and children for many years preceding the commitment offense. By statute, it is established that the gravity of the commitment offense and petitioner's current attitude towards the crime constitute factors indicating unsuitability for parole . . . ." (Shaputis, supra, 44 Cal.4th at p. 1246.)
The Supreme Court further stated that the evidence pertaining to insight also included Shaputis's statements at his parole hearing describing the commitment offense as an accident—despite the evidence showing that he had intentionally shot his wife— and minimizing his responsibility for years of domestic violence. (Shaputis, supra, 44 Cal.4th at p. 1260.) Additional evidence of lack of insight included the psychological evaluations reporting Shaputis's "reduced ability to achieve self-awareness." (Ibid., fn.18.)
Thus, as this court has stated, "an inmate's 'lack of insight' can provide a logical nexus between the gravity of a commitment offense and a finding of current dangerousness." (In re Rodriguez (2011) 193 Cal.App.4th 85, 98.) We recognize, however, "that expressions of insight and remorse will vary from prisoner to prisoner and that there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior." (Shaputis, supra, 44 Cal.4th at p. 1260, fn.18; In re Rodriguez, supra, 93 Cal.App.4th at p. 99.)
In the present case, we find that some evidence supports the Board's finding that Reyes lacks insight into the nature and magnitude of the commitment offense. (Regs., § 2402, subd. (d)(3); Lawrence, supra, 44 Cal.4th at p. 1228.) The evidence includes Reyes's statements at the parole hearing that killing Laura was unintentional or accidental, which is obviously inconsistent with the evidence showing that he used a shotgun to shoot her in the head at close range.
Additionally, Dr. Kalich stated in her 2009 comprehensive risk assessment that "[i]n the past, Mr. Reyes has not always assumed responsibility for his role in the life crime. He has minimized the shooting by stating that it was an accident. Currently, after viewing the autopsy report, he has accepted that he did shoot his wife at close range. However, he continues to maintain that he has no memory of shooting his wife . . . . Clearly, Mr. Reyes has made significant progress in assuming full responsibility, however it continues to be difficult for him to accept that he may have, albeit momentarily, intended the result of his actions." In 2010, Dr. Reynoso stated in her subsequent risk assessment that "it may be to Mr. Reyes' benefit to critically examine his true intentions towards his wife on the day of the crime." She also reported that "[w]hile his personal level of insight into the motives of his wife's shooting still remains limited, Mr. Reyes appears to have fairly good insight into his psychological processes, personal limitations and ineffective coping skills at the time. . . . ."
Thus, Reyes's own statements at the parole hearing and the psychological evaluations show that Reyes continues to deny that he intentionally shot his wife, despite the evidence to the contrary, which constitutes some evidence of Reyes's lack of insight into the nature of the commitment offense. There is also some evidence that Reyes lacks insight into the magnitude of the offense. Although Reyes maintains that his self-focused statements at the hearing were the result of manner in which the Board questioned him and do not reflect his actual attitude, we find that the Board could reasonably determine that Reyes lacks insight into the magnitude of the commitment offense because he generally views it in terms of the impact on himself, rather than the victim.
For example, when the Board commented that Reyes did not talk much about Laura, Reyes responded as follows:
"DEPUTY COMMISSIONER BLONIEN: I was struck when you were talking about being in the jail cell and asking God to forgive you. You don't talk much about Laura.
"INMATE REYES: Me?
"DEPUTY COMMISSIONER BLONIEN: Yeah.
"INMATE REYES: I might not talk too much about her, but I think a lot about her.
"DEPUTY COMMISSIONER BLONIEN: You would think that when you were sitting in your jail cell, you'd be remorseful about your actions towards her.
"INMATE REYES: Well, that's what it, that's what it was all about. But along with it - - That was a culmination, you know. There was a lot of other things that I've done wrong . . . .
"DEPUTY COMMISSIONER BLONIEN: But your articulation always comes out about you first.
"INMATE REYES: Well, you know . . . it's not that I want to articulate that. But I know when I come here, I have to talk a lot about the changes, what I was and what I've done, you know. And sometimes I might concentrate too much and that. But that doesn't mean that . . . that's all I do. Because I don't, you know. I consider myself insignificant. I consider myself really worthless. But I know that I am not. . . . In the eyes of the world, and sometimes me, I think I am a failure. I mean, I've spent 25 years here. I hurt a lot of people. I committed a horrible murder. And I did so many other things. But yet, like I told you, I look at the other side. And I see, I consider myself, you know, . . . like a miracle. Because I know . . . what I was. And now I know I am different."
The following colloquy is another example of Reyes's lack focus on the impact of the commitment offense on the victim, despite the Board's attempt to elicit his understanding of the impact on Laura.
"PRESIDING COMMISSIONER GILLINGHAM: Well, how do you think it affected Laura.
"INMATE REYES: I masked it.
"PRESIDING COMMISSIONER GILLINGHAM: I mean, that's who this is about, isn't it?
"INMATE REYES: I masked it with drugs and alcohol. I masked it. I covered it.
"PRESIDING COMMISSIONER GILLINGHAM: But, I mean, she's dead.
"INMATE REYES: I know.
"PRESIDING COMMISSIONER GILLINGHAM: She didn't get an opportunity to raise her children. Now, how about that?
"INMATE REYES: And I think about that every single day. I thought about that back then. And what I thought back then about our children walking around without their mother . . .
Thus, although the magnitude of Reyes's commitment offense is obviously huge—the taking of his wife's life after years of physically abusing her—at the time of the hearing Reyes displayed little understanding of it. When asked about the impact on Laura, Reyes continually turned to the impact of the crime on himself, and, despite the Board's questioning, expressed limited appreciation for the impact on the victim. He did not show comprehension that Laura's life had value apart from him and that he had intentionally terminated that life.
As we have discussed, "where the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. [Citations.]" (Lawrence, supra, 44 Cal.4th at p. 1228.) Here, where the record shows that Reyes's current attitude towards the crime of murdering Laura includes a lack of insight into the magnitude of the offense and the impact on the victim, the aggravated circumstances of the crime constitutes some evidence to support the Board's decision that Reyes is unsuitable for parole because he is currently dangerous.
3. Lack of Insight Regarding Depression
The Board also found that Reyes's belief that depression would never be a problem for him again to further indicate that he was unsuitable for parole. Deputy Commissioner Blonien stated, "I was also shocked when we talked about depression . . . when you said that's never going to be a problem for me again. That's unrealistic, because you don't know what's out there for you. None of us has a crystal ball. And the depression and the addiction were such components of the person who committed the murder, that to discount the work you've done on yourself here and just say that the problem is never going to happen against, is not realistic and causes concerns."
Thus, the Board determined that Reyes lacked insight into his depression and the potential need for mental health treatment in the community, and that this lack of insight was probative of his current dangerousness. We determine that some evidence supports the Board's determination, including Dr. Kalich's 2009 comprehensive risk assessment.
Dr. Kalich reported that Reyes had contemplated committing suicide, prior to the commitment offense, on the two occasions when his wife left him. Then, "[a]fter murdering his wife in 1985, Mr. Reyes experience a 'very intense' depression that started lifting in 1998." From the time of his initial incarceration until 2007, Reyes was included in the Mental Health Delivery System where he "was diagnosed with Major Depressive Disorder (with psychotic features)." Reyes made one suicide attempt in 1986 or 1987.
In the "current, dynamic domain of risk assessment" for violent recidivism, Dr. Kalich included Reyes's "lack of insight into his depression, as he believes that treatment will never be necessary in the community." Dr. Kalich determined that Reyes's lack of insight was based upon his belief that the cause of his depression was emotional rather than mental, noting that "[he] does not appear to understand that depressive feelings often have a psychological and biological basis."
Dr. Kalich further stated, "It will be important for Mr. Reyes to have a good understanding of his depressive condition, to be able to recognize the early symptoms of depression, and to be willing to seek treatment if necessary." Additionally, Dr. Kalich found that Reyes would decrease his future risk of violence in the community if he developed "added insight into his depression" and continued to "utilize appropriate coping strategies[.]"
In contrast to Dr. Kalich's 2009 report, Reyes told the Board at his 2010 hearing that he knew "that terrible depression will never come back," because he now has spiritual help and has been addressing the same issues for the past 25 years. Reyes therefore continues to display a lack of insight into his depression and the potential need for mental health treatment in the community in order to decrease his risk of violence.
Thus, we find that some evidence supports Board's conclusion that Reyes's lack of insight into his depression, as well as his lack of insight into the nature and magnitude of his commitment offense, show that he currently poses an unreasonable risk of danger if released from prison. Reyes's continued failure to accept responsibility for the intentional shooting of his wife and to comprehend the impact on the victim, as well as his lack of insight into his potential need for mental health treatment after his release, show that he is currently unsuitable for parole.
IV. DISPOSITION
The superior court's April 1, 2011 order granting Efrain Reyes's petition for a writ of habeas corpus is reversed, and the matter is remanded to the superior court with directions to issue a new order denying the petition for writ of habeas corpus.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
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ELIA, ACTING P. J.
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Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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