Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 149169
RUSHING, P.J.
I. Statement of the Case
In December 2008, October 2009, the Parole Board (Board) found that defendant Richard Sena would pose an unreasonable risk to public safety if released from prison and denied him parole. In April 2010, defendant filed a petition for habeas corpus challenging the Board’s decision. On August 11, 2010, the superior court granted the petition, vacated the Board’s decision, and ordered the Board to conduct a new hearing in accordance with due process within 30 days.
Respondent Kathleen Allison, Warden at the California State Substance Abuse Treatment Facility and State Prison, appeals from the order granting habeas relief. (Pen. Code, § 1507.) She claims the Board’s decision is supported by some evidence and therefore the court erred in failing to uphold it. She further claims the court’s remand order impermissibly instructs the Board how to weigh the evidence on remand and orders an expedited hearing.
Although the habeas petition challenges the decision by the Board, the respondent is the warden of the prison where Sena is incarcerated. (Pen. Code, § 1477.)
We modify the trial court’s order to require the Board to conduct a new hearing after giving notice as provided by statute and affirm the order as modified.
II. Background
The facts concerning the offense are derived from the probation report.
On the evening of October 30, 1990, defendant, then 17, slashed and stabbed a former girlfriend, Rachel Cordova, 36 times and left her in the street. At the time, she was 14 years old and pregnant, allegedly with his child. According to the autopsy report she died due to the loss of blood (exsanguinations) from cuts, slashes, and stabs, primarily to her face, neck, and abdomen, one of which severed her spinal cord.
Defendant initially denied involvement and gave a false alibi, but after his arrest, he admitted the killing at that time, he said that Cordova had called him that night and insisted on seeing him. He did not want to meet her. She yelled at him and threatened Gracie Gutierrez, defendant’s current girlfriend, who was also pregnant. He relented, and they met. They were walking, and when he said he was thinking of Gutierrez, Cordova got angry and threatened them both. As they were walking, defendant found a knife. A short time later, Cordova bent down for something, and defendant repeatedly stabbed her because he “couldn’t take it anymore.” He could not remember how many times he stabbed her. He then ran home, ditched the knife, and washed his clothes.
The autopsy report disclosed that the victim bled to death from 36 stab wounds, cuts, and slashes on the face, neck, abdomen, and arms, most on the neck, some three inches deep, one of which severed her spinal cord.
Although a minor, defendant was prosecuted as an adult and pleaded guilty to second degree murder and admitted personally using a knife. (§§ 187, 12022, subd. (b).) Thereafter, during his interview with the probation officer, he reluctantly discussed the incident. He was agitated and tearful. He said he could not remember the actual stabbing, had blocked it from his mind, but suffered nightmares. He explained that when he decided to stop seeing Cordova, she and her friends harassed him. She knew he planned to marry Gutierrez, who was also pregnant, but was against it and threatened both of them. Although defendant was somewhat remorseful, he felt that Cordova instigated the incident because she pursued him and “drove him crazy.”
At sentencing, the court imposed a term of 16 years to life. His minimum parole eligibility date was July 1, 2001.
B. Defendant’s Personal History
Defendant was born in 1973 in San Jose. His parents started having children when they were 14. They never married and separated when defendant was six. He lived with his father until his mother married in 1981. He then lived with his mother and step-father. He took care of his siblings during the day while his parents were at work.
Defendant needed special education instruction in his early years because of severe oral language problems and low reading and math abilities. At age 13, he was still performing at third grade level or below. Because he was failing the ninth grade, he transferred to the Foundry School.
Defendant started drinking and using drugs at age 13, primarily abusing alcohol and phencyclidine (PCP). He did some work for his stepfather as a landscaper.
C. Defendant’s Prior Criminal History
In 1989, defendant was placed on probation for auto burglary. In 1990, he was cited for possession of alcohol. Defendant was on probation when he killed Cordova.
D. Defendant’s Institutional Record
Defendant was originally incarcerated at the Youth Authority (YA) and later transferred to a Department of Corrections facility.
In 1999, defendant received one minor disciplinary citation (CDC 128 citation) for sexual misconduct and one serious citation (CDC 115 citation) for participating in a work stoppage.
Minor misconduct in prison is documented on a “CDC Form 128-A”; more serious misconduct or violations of the law are documented on a “CDC Form 115.” (Cal.Code Regs., tit. 15, § 3312.)
Defendant obtained a high school diploma. He also completed vocational training programs in welding; milling and cabinetry; Orientation/Shop and Site Safety; and mechanical drawing, technical sketching, technical lettering, equipment and use, and pictorial sketching. He also completed a variety of construction industry related classes. He regulary maintained attendance in Alcoholics Anonymous (AA) and violence prevention programs and become an asset to the program. In addition, he participated in a wide variety of self-help and therapy programming, including Wounded Child Workshop, Life Skills Management, Anger Management and Conflict Resolution, Men’s Violence Prevention, Domestic Violence, Gang Awareness, Parenting Education, HIV/Hepatitis Education, Christian Living, Human Development, Communications Skills, Self-Esteem Group, Tobacco Use Prevention, and reading programs. Defendant also became a valued member of a Substance Abuse Treatment team.
As of 2008, defendant was working in the kitchen as a porter and cook.
E. Defendant’s Parole Reports, Psychological Evaluations, and Parole Hearings
1. The 1995 Psychiatric Report
The 1995 psychological evaluation summarized three earlier evaluations. A 1990 YA amenability report described defendant as a criminally unsophisticated, non-gang member, whose substance abuse was under control. A 1991 evaluation found no psychosis or organic developmental disabilities but diagnosed him with substance abuse in a dependent-personality disorder. A 1992 assessment found a mild attention disorder and below average language skills.
In the more recent evaluation in 1995, the doctor noted that defendant, then 22, had completed numerous self-help and therapeutic programs and was making significant progress dealing with anger, frustration, and rejection. According to the doctor, defendant explained when he chose to be with Gutierrez, who was pregnant, Cordova harassed and threatened him, Gutierrez, and her unborn baby. He thought Cordova got pregnant to get him back. He did not think her unborn baby was his. Defendant said he could not understand why he killed Cordova. He felt remorse for it and for hurting his family, Cordova’s family, and Gutierrez and her family. The doctor opined that defendant did not attempt to minimize his actions or shift any responsibility for them onto others. He was, however, feeling helpless and chronically depressed because Gutierrez had not visited him or allowed him or his parents to see their son and had gotten married and had another child.
2. The 2000 Psychosocial Report and Parole Hearing
In a report for defendant’s first parole hearing, the staff psychologist reported that defendant, then 27, had not talked about the crime much but recently had acknowledged to a counselor that the crime was entirely his fault and he had accepted full responsibility for it. He reiterated the basic explanation of what happened—not wanting to associate with Cordova and her friends, intending to marry Gutierrez, receiving threats from Cordova and her friends for months, and meeting with her that night. Contrary to Cordova’s claim, he maintained that her unborn child was not his.
The psychologist observed that since 1992, defendant had received high marks for completing numerous self-help programs focused on anger, violence, self-esteem, and critical thinking. Defendant had only one 115 citation that did not involve violence, and he appeared able to control his impulses, emotions, attitude, and anger. The psychologist noted that there had been little counseling available for defendant, who lacked insight because of his limited recall of the offense. This plus defendant’s tendency toward social isolation could constrict his options if he was confronted with similar stressful circumstances. If the Board denied parole, the psychologist recommended that defendant continue his current programming and self-help groups with a focus on insight, abstract verbal skills, problem solving, and social connectedness.
After a hearing, defendant was denied parole for four years with recommendations that he remain discipline free, upgrade his vocational skills, and participate in self-help programming.
A transcript of the hearing is not part of the record on appeal.
3. The 2005 Psychological Report and Inmate Evaluation
The staff psychologist reported that defendant had insight in to his offense, he did not exhibit any mental symptoms, and he did not use defense mechanisms such as denial or rationalization concerning his offense or current situation. He accepted the blame for his role, acknowledged that he had used poor judgment, and expressed remorse for Cordova’s death and that of her unborn baby.
The psychologist noted that defendant had remained discipline free, had continued his long time participation in AA and Narcotics Anonymous (NA) and had programmed well and completed a number of additional self-help, rehabilitative, and therapeutic programs focused on violence prevention, anger management, and conflict resolution. He had also been allowed entry into substance abuse program (SAP) that life inmates are not ordinarily allowed into. He had no desire to use drugs or alcohol and had developed sufficient coping skills to have abstained while incarcerated and to continue to do so if released. He had maintained relations with his family, had a place to live if paroled as well as job offers, and had arranged continued self-help programming in the community at either of two programs, both of which had provided letters of support.
In short, the psychologist concluded that defendant posed a low risk of danger if released provided he had a stable living environment and employment, remained clean and sober, and did not associate with negative individuals.
The prisoner evaluation report for his next parole hearing confirmed in greater detail the information in the psychological report concerning defendant’s extensive self-help, rehabilitative, substance abuse, and therapeutic programming and his future plans for housing, employment, and further self-help programming.
The Board denied parole for three years. It recommended that he continue self-help programming, stay discipline free, learn a trade, get therapy, and earn good-behavior reviews.
4. The 2008 Psychological Report, Inmate Evaluation, and Parole Hearing
In the 2008 psychological report, the psychologist observed that defendant looked and conducted himself well; was polite, cooperative, and forthcoming; and responded sincerely with sufficient effort. There was no evidence of thought disorder or deficits in cognitive functions. He diagnosed defendant with polysubstance dependence.
Since his last hearing, defendant had continued to program well, received no disciplinary citations, and demonstrated a good ability to control his behavior and abide by the rules. He had been working as a cook, completed milling and cabinetry vocational training, and had continued with the SAP and other programs. He had received exceptional reviews from SAP and his work supervisor and had good reviews also from AA.
Defendant reported that he started drinking at age 13 or 14 and drank regularly with the other teenagers whenever alcohol was available. Around that time, he also started smoking marijuana regularly with his friends. At 14 or 15 he started smoking PCP whenever it was available. Defendant said he was probably not under the influence when he committed the offense. Defendant said he could maintain his sobriety if released by associating with his family members and others who do not drink. He also considered AA to be the place for him to get continued support, although he had not as yet arranged with a local chapter where he would be paroled.
Defendant discussed how he had changed over the years. He said that as a teenager, he was like two people. He cared for his family and watched over his siblings during the day while his parents were working; but at night, he left, hung out on the street, used alcohol and drugs, and made bad choices. Now, however, he did not use alcohol or drugs, he tried to examine each situation, and he chose to associate with different people. He believed that the best way to stay out of trouble if released was to avoid his old life style and to continue to associate with his family and people who work and go to church. He explained it was always stressful in the yard at prison, where people fight, but he had learned how to step back and relax no matter what the situation. He said there were always options besides violence, and if you treated people with respect, they responded that way. The psychologist opined that the effectiveness of defendant’s strategies was reflected in his disciplinary record and lack of need for mental health services.
Defendant planned to go to Victory Outreach, which supported him, and then live with his family, getting work in welding or a fast food restaurant if necessary. He believed his biggest challenge would be getting a chance at a decent job. But he was not nervous.
Concerning his crime, defendant said it was hard to explain. He said that he and Cordova were teenagers and shared friends, all of whom used drugs and alcohol. He decided to shun Cordova and her friends to be with Gutierrez, who did not use drugs or alcohol. When Gutierrez said she was pregnant, he wanted to raise a family. He also decided to go back to school and change his lifestyle. Cordova and the others responded by threatening him and Gutierrez. Cordova’s friends thought he had gotten her pregnant and had to choose between her and Gutierrez. He was not sure if he or Cordova’s boyfriend was the father. In any event, he spoke to Cordova and told her to stop calling him.
Defendant said he could not make sense of what happened and made bad choices. Instead of speaking to his mother or her family to get advice, he acted out. He thought he was an adult and could work things out on his own, but he used poor judgment. He said the incident was nobody’s fault but his own. He said that the combination of threatening calls that he received over a long period, things her friends were saying, and fear for his family snowballed to cause him to act. He explained that the night of the incident, Cordova wanted him to take her out to eat, he wanted to go home, they started arguing, and he acted out. He could not remember more detail about the killing, saying he probably did not want to remember or had his eyes closed. He said he was probably not under the influence at the time. He said he thought about the incident all of the time. He could not imagine what Cordova went through, and he realized that she did not get the opportunity to grow and change as he had.
The psychologist opined that defendant’s account of the offense was “convoluted” and “somewhat hard to understand, ” which reflected the expressive verbal difficulties that he had always had. Although he could describe antecedent events, he still lacked memory traces of the killing, perhaps because, as he claimed, he had his eyes closed. Noting evidence that defendant had blackouts when he was six years old in response to anxiety over his parent’s separation, the psychologist considered it possible that defendant dissociated when faced with overwhelming circumstances. The psychologist noted that although defendant was “not able to articulate well” the factors that contributed to his offense, it was clear that he accepted full responsibility for his actions and demonstrated appropriate remorse for the victim and her family, and despite his lengthy sentence, he never complained about it or felt sorry for himself. Moreover, he had demonstrated skills in coping with stress and learned techniques for diverting problems with others which, given his record of conduct in prison, had proven effective.
The psychologist administered two empirical risk-assessment tests. The results of both tests reflected a low risk of danger to others. Given all of the previous evaluations and available records, defendant’s personal background, institutional programming, parole plans, current clinical presentation, and the likelihood of continued sobriety, the psychologist opined that defendant posed a low risk of violent recidivism if released.
However, the psychologist recommended that if defendant remained incarcerated, he could benefit from refining his parole plans, continuing with AA/NA programming, formulating a relapse prevention program, developing effective skills to cope with stress, writing about the circumstances and causes of his crime, and exploring his expectations for the transition to the community.
The prisoner evaluation reported that defendant had continued his AA programming and had not received any disciplinary citations.
At the parole hearing, defendant explained that he and Cordova had been friends for awhile. In the evenings, after his parents got home, he would leave home and hang out with Cordova and others, drinking and using drugs. Gutierrez was not part of this group, and Cordova and Gutierrez did not know each other. His parents did not know what he did when he left the house. At some point, he started being with Gutierrez, and she became pregnant. He decided he would marry her, go back to school, and seek vocational training. Consequently, he stopped hanging out with Cordova and the others. They reacted as if rejected, and Cordova and the others wanted him to return to the group. They ridiculed him and accused him of being gay. Cordova and the others wanted him to be with them. When he resisted, Cordova threatened him, but he did not take her seriously. Then, her friends started to make threats of harm to his family and to Gutierrez, and these made him fear for their safety. The threats and arguing back and forth with Cordova continued for several months, and she said she would have her friends from East Palo Alto follow through on the threats. During this time, Cordova also told him she was pregnant with his child, and her friends said he was responsible. He was not sure he was the father because by the time of the incident, she had another boyfriend. Defendant said he just wanted to be friends with Cordova and begged her to have her friends stop making threats.
On the night of the incident, Cordova called him up and wanted to meet and get something to eat, but he did not want to go, and they went back and forth on the phone. He relented, and they met and walked around looking for a place to eat. He denied that he was under the influence of drugs or alcohol that evening or anything that would have affected his judgment. Again, he asked her to tell her friends in East Palo Alto to stop making threats, and they argued back and forth. She said she was going to have her friends follow through on threats to his family. They could not find a burrito place open, and he wanted to walk her home, but she said no. They walked through an isolated area, heading toward Cordova’s cousin’s home, which was near where defendant lived. She was walking more slowly behind him, wanting to stop and talk. He just wanted to get home. Then, angry and scared, he pulled a knife from his pocket, turned, and stabbed her in the neck. He could not say how many times he stabbed her. He said he was in a daze, perhaps with his eyes closed. He did not know whether he had killed her but knew he had done something terrible. He acknowledged that he left her there and did not summon medical help.
Defendant denied that his explanation about feeling angry and afraid because of the threats to his family and Gutierrez was an attempt to shift the blame for his offense to others. He said that was no justification for acting out the way he did, and he accepted full responsibility. He now realized that what he did to Cordova would not protect his family, and he should have talked to his parents or called the police about the threats. He was also sorry that he had not called for medical help and could not explain why he did not do so.
When asked whether he simply killed Cordova so that he could be with Gutierrez, defendant said he understood that the circumstances—Cordova being pregnant and demanding that he be with her and her friends; and he wanting to marry Gutierrez and raise a family—suggested a motive to eliminate the problem that a pregnant Cordova posed. However, he denied that that was the reason he acted. He explained that he and Cordova had been friends, and he simply wanted to remain her friend and was happy for her to have a child, even if it was his. Having helped raise his siblings, he loved children. Rather, the killing had more to do with his fear about something bad happening to his family. However, now, that he was older and more mature, he understood that the fear that motivated him did not make any sense.
Defendant also denied that there was a gang-related motivation for the incident. He was not a Norteño gang member and had never been one. He explained that he was housed with Norteños in prison because he is from the North. Prison officials separate everyone into northern or southern Hispanics, and he had to be classified one way. He acknowledged that he had been attacked by Norteños in prison because he was not part of the group. Later he was housed with southerners for his own protection, and they left him alone because they knew he was not a Norteño.
Defendant said that he planned to live with his parents or his aunt, whoever is closest to the Victory Outreach program and AA. He said he would work doing maintenance on houses that his aunt owned. He also would work on a vocation through the program. He received a certification in welding 1996 and milling and cabinetry in 2007. At the moment he had no welding or cabinetry employment opportunities. He also had completed the core curriculum through the National Center for Construction Education and had been working in the kitchen as a cook and thought of that as another vocational path.
The district attorney opposed parole. He noted that defendant gave inconsistent stories about where the knife came from, could not articulate what caused him to stab Cordova, did not know what made him “tick, ” and had vague parole plans.
The Board concluded that defendant would pose an unreasonable risk of danger if released and thus was unsuitable for parole. In support of its conclusion, the Board cited a number of unsuitability factors: the heinous, atrocious, and cruel manner in which defendant committed the offense; his past criminal history; and his unstable social background and tumultuous relationships. In addition, the Board found that defendant lacked insight into the impact that his substance abuse had had on his life. The Board also found that defendant lacked insight into what had caused him to commit the offense and instead attempted to minimize his conduct. Finally, the Board found that defendant lacked a relapse prevention plan and viable parole plans concerning housing and employment.
F. The Superior Court’s Ruling
The trial court found the Board’s decision to be invalid because it did not consider that defendant was a minor when he committed the offense and had acted under an accumulation of stress and did not articulate “why there is no nexus or weight for a mitigating factor such as Petitioner’s youth at the time of the crime.”
III. Legal Framework for Parole Decisions
Section 3041 and title 15 of the California Code of Regulations govern the Board’s parole decisions. Under the statute, the Board is required to set a parole release date one year before an inmate’s minimum eligible parole 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.” (§ 3041, subd. (b), italics added.) Thus, “the fundamental consideration in parole decisions is public safety, ” and, therefore, “the core determination of ‘public safety’... involves an assessment of an inmate’s current dangerousness.” (In re Lawrence (2008) 44 Cal.4th 1181, 1205 (Lawrence).)
All further unspecified references to the Regulations (or Regs.) are to title 15 of the California Code of Regulations.
A decision by the Board concerning whether to grant parole is inherently subjective (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)), but the Board is guided by a number of factors identified in section 3041 and the Board’s regulations. (Regs., §§ 2281, 2402.) In making a determination, the Board must consider “[a]ll relevant, reliable information” concerning suitability for parole, such as the nature of the commitment offense including behavior before, during, and after the crime; the inmate’s social history; mental state; criminal record; attitude towards the crime; and parole plans. (Regs., § 2402, subd. (b).) The Regulations enumerate circumstances showing suitability and unsuitability. (Regs., 2402, subds. (c) & (d).)
Unsuitability factors include: the inmate (1) committed the offense in a particularly heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously 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. (Regs., § 2402, subd. (c).) Suitability factors include: the inmate (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 had 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. (Regs., § 2402, subd. (d).)
Factors that support the finding that the crime was committed “in an especially heinous, atrocious or cruel manner” (Regs., § 2402, subd. (c)(1)), 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.
These factors are “ ‘general guidelines, ’ ” illustrative rather than exclusive, and “ ‘the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the Board.’ ” (Rosenkrantz, supra, 29 Cal.4th at p. 654; Regs., § 2402, subds. (c), (d).) However, in exercising their discretion, the Board must give individualized consideration of the specified criteria as applied to a particular inmate. (Rosenkrantz, supra, at pp. 676-677.) Moreover, “It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.” (Lawrence, supra, 44 Cal.4th at p. 1212.) Thus, “ ‘due consideration’ of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1210.) Accordingly, where parole is denied, not only must there be some evidence to support factual findings but also there must be a rational connection between the findings and the ultimate conclusion that the inmate is currently dangerous.
IV. Standard of Review
Courts are authorized to review the factual basis for a decision by the Board in order to ensure that they comported with due process. (Rosenkrantz, supra, 29 Cal.4th at pp. 658, 667.) Our review, however, is deferential and limited to the question of whether there is “some evidence” in the record before the Board that supports the decision to deny parole, that is, a finding of current dangerousness. (Id. at pp. 658, 677.)
In applying the “some evidence” standard, we are precluded from independently resolving conflicts in the evidence, determining the weight to be given the evidence, or deciding the manner in which the specified factors relevant to parole suitability are to be considered and balanced, because these are matters exclusively within the discretion of the Board Governor. (In re Scott (2004) 119 Cal.App.4th 871, 899 (Scott I).) Indeed, “[i]t 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.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) Nevertheless, the evidence underlying a decision must exhibit some indicia of reliability. (In re Moses (2010) 182 Cal.App.4th 1279, 1300; Scott I, supra, 119 Cal.App.4th at p. 899.) And “ ‘suitability determinations must have some rational basis in fact.’ ” (In re Elkins (2006) 144 Cal.App.4th 475, 489 (Elkins).)
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 inmate’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.)
Where, as here, the trial court granted habeas relief without an evidentiary hearing, our appellate review concerns a question of law, which we review de novo. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
V. Discussion
With these principles in mind, we turn to the findings that underlie the Board’s conclusion that defendant was currently dangerous and unsuitable for parole. As summarized above, the Board cited the aggravated nature of the crime, defendant’s criminal history, and his unstable social background, including tumultuous relationships. The Board also found that defendant lacked insight into his crime and the impact of his substance abuse on his life, and he lacked viable parole plans.
A. Immutable Circumstances
The aggravated nature of a commitment offense, an inmate’s prior criminal history, and his or her unstable social background are listed in the Regulations as factors tending to show unsuitability for parole. (Regs., § 2402, subd. (c)(1), (2) & (3).) However, these factors predate incarceration and are immutable. More importantly, even when there is some evidence to support reliance on such factors, they do not support a denial of parole unless they have some rational tendency to show that an inmate now eligible for parole is currently dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1212.)
In Lawrence, supra, 44 Cal.4th 1181, the court explained that parole for murderers is the rule, not the exception, and therefore, the immutable aggravated circumstances of an offense alone rarely will provide a valid basis to deny parole after an inmate has served the suggested base term and when there is strong evidence of rehabilitation and no other evidence of current dangerousness. (Id. at pp. 1211, 1218-1219.) Under such circumstances, the aggravated nature of the offense realistically loses probative value to show current dangerousness unless there is other, more recent evidence reasonably indicating that the offense still has some tendency to show that the inmate poses a risk of harm to others. (Id. at pp. 1214, 1219.) Thus, for example, where an 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.” (Id. at p. 1228.)
“[T]he relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude.” (Lawrence, supra, 44 Cal.4th at p. 1221.)
Thus, where the Board relies on the aggravated nature of an offense to deny parole, not only must there be some evidence to support a finding that the offense was aggravated, but also the Board must point to some other evidence that provides a rational nexus between the nature of the offense and its ultimate determination of current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1227.) This rational nexus requirement applies to all immutable circumstances and not just the aggravated nature of a commitment offense. (Id. at p. 1221.)
1. The Commitment Offense
The Board found that, motivated by a “trivial” reason, defendant abused, defiled, or mutilated Cordova and then left her in the street to die. (Regs., § 2402, subd. (c)(1)(C) & (E).) For these reasons, the Board concluded that the manner in which defendant committed the crime was heinous, atrocious, and cruel, a conclusion that weighed against suitability for parole.
We find no evidence that the motive for the crime was “trivial.” The Board acknowledged defendant’s initial explanation that Cordova was “constantly pressuring him” and “driving [him] crazy.” However, the Board failed to discuss why defendant felt pressured and what he was feeling pressured about. He consistently explained that he quit hanging out with Cordova and a group of others with whom he drank and took drugs and wanted to change his life. He wanted to be with Gutierrez, marry her, raise their child, and go to school. However, Cordova and group were put off by his rejection and over a several month period, they pressured him to return by repeated threats that escalated to include Gutierrez and defendant’s family. Cordova also told defendant that she was pregnant with defendant’s child. On the night of the incident, he reluctantly agreed to meet her, and while out with her, the issue of his leaving her and the group reignited. He asked her to have her friends stop making threats; she declined. They argued, she was yelling at him, he was angry about the threats, and he overreacted and killed her. Defendant admitted at the hearing that now, as an adult, the threats provided no reason for what he did, and it was irrational for him to think that killing her would somehow protect Gutierrez and defendant’s family from the people making the threats.
Although defendant said that the threats scared him and he acted out of anger and fear in some sort irrational belief that he was protecting his family and Gutierrez, the Board did not believe that he acted out of fear, finding instead that “[t]his crime, by all accounts, appears to have all the elements of extreme rage and anger.”
In Scott I, supra, 119 Cal.App.4th 871, the court explained that because murder is such an egregious crime, all motives could be considered trivial. However, because parole is the rule for murder inmates, not the exception, “[t]he reference in Board regulations to motives that are ‘very trivial in relationship to the offense’ therefore requires comparisons; to fit the regulatory description, the motive must be materially less significant (or more ‘trivial’) than those which conventionally drive people to commit the offense in question, and therefore more indicative of a risk of danger to society if the prisoner is released than is ordinarily presented.” (Id. at p. 893, fn. omitted.)
Thus, for example, stabbing a barista to death because he made a caffeinated latte by mistake instead of a decaf would reflect a trivial motive to commit murder. The same, however, cannot be said of people who even wrongly and unjustifiably feel pressured and angered by apparent threats of harm to loved ones and kill in response.
Although there is no evidence to support a finding that the motive for killing Cordova was trivial, it is undisputed that she suffered 36 stab and slash wounds. She died from loss of blood, which indicates that no one wound or combination of them instantly killed her; rather defendant inflicted numerous nonfatal, necessarily painful wounds. Many of the slashes were focused on Cordova’s face, which would probably result in disfiguration. Moreover, despite knowing that Cordova was pregnant, defendant stabbed her in the abdomen more than once. Finally, when he finished this vicious attack, defendant fled, leaving Cordova on an isolated street to bleed to death. These circumstances constitute “some evidence” that defendant abused, defiled, or mutilated Cordova in callous disregard of life, pain, and suffering and thus amply support the Board’s finding that the crime was heinous, atrocious, and cruel.
“Heinous” means “shockingly evil, ” “grossly bad, ” and “enormously and flagrantly criminal”; “atrocious” means marked by “extreme wickedness, ” “extreme brutality or cruelty, ” and “grossly inhumane”; and “cruel” means “disposed to inflict pain [especially] in a wanton, insensate, or vindictive manner, ” indicating an “inclination to enjoy another’s pain or misfortune.” (Webster’s 3d New Internat. Dict. (1993) pp. 139, 546, 1050; In re Ross (2011) 170 Cal.App.4th 1490, 1507.)
2. Criminal History
The Board noted that when defendant was 16, he was arrested for auto burglary and placed on probation, and he committed the instant offense while on probation. The Board also noted that he was once found in possession of alcohol.
Given the focus of parole decisions on current dangerousness, the Regulations explain that “Previous Record of Violence” is an unsuitability factor where “[t]he 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.” (Regs., § 2402, subd. (c)(2).)
Defendant’s relatively insignificant criminal record does not constitute “some evidence” of violence against others and has no rational tendency to show that at any time before the instant offense he posed a threat of physical harm to anyone. (In re Smith (2003) 109 Cal.App.4th 489, 504-505 [misdemeanors not some evidence that criminal history constitutes unsuitability factor].) Nor does defendant’s record add any probative value to the inference of dangerousness inherent in the aggravated nature of his offense.
3. Unstable Social History
The Board noted defendant’s extensive history of drug and alcohol use, his tumultuous relationship with Cordova, and his CYA commitment after committing the instant offense.
Under the Regulations, an “Unstable Social History” is an unsuitability factor where it involves “unstable or tumultuous relationships with others.” (Regs., § 2402, subd. (c)(3).)
By defendant’s own admission, his relationship with Cordova was tumultuous for several months before he killed her. However, there is no evidence that defendant had difficult or tumultuous relationships with anyone, even Cordova, before he decided to disassociate himself with her and the group with whom he abused drugs and alcohol.
Defendant also admitted to the psychologist that he started drinking and using drugs at age 13, using mostly alcohol and PCP, and regularly did so up to the time he committed the offense, which shows that drugs and alcohol were, as the Board found, a significant part of defendant’s life.
A history of substance abuse is not separately listed as an unsuitability factor. However, if an inmate’s past substance abuse reveals that when under the influence, he or she became belligerent or aggressive or tended to engage in conflicts, confrontations, or acts of force or violence, all of which would directly relate to a history of social instability, then prior substance abuse could be relevant in determining current dangerousness.
Here, however, there is no evidence that defendant was under the influence when he killed Cordova, and any such finding would be pure speculation, which is not a proper basis for parole findings. (Lawrence, supra, 44 Cal.4th at p. 1213; Rosenkrantz, supra, 29 Cal.4th at p. 677.) Indeed, defendant had already decided to dissociate himself from his substance-abusing friends and was at home during the evening before he went out with Cordova.
The Board noted that defendant told the psychologist in 2008 that he was “probably” not under the influence at the time. However, standing alone that statement is not sufficient to support a finding that he was under the influence. Moreover, at the hearing, defendant expressly denied that he was under the influence of anything that would have affected his judgment. Although the Board was free to reject his denial, their rejection does not constitute affirmative evidence that defendant was under the influence. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1205.)
Although the record reflects that from the time of his arrest to the current hearing, defendant had difficulty remembering the details of the actual stabbing, there was no evidence, medical or otherwise, to support a finding that defendant’s alleged partial amnesia or blackout during the stabbing was caused by or related to being under the influence at the time. Moreover, neither the probation report nor any of the reports and evaluations generated during defendant’s incarceration suggested that defendant was under the influence when he committed the offense or that the crime was drug or alcohol related. Finally, there is no evidence that at some other time prior to the offense, defendant used force or violence or even became enraged or angry while under the influence.
In short, although there is “some evidence” that defendant had one tumultuous relationship and a history of substance abuse, the Board’s findings have little, if any, rational tendency to show that defendant posed a risk of violence at the time of the offense and no tendency to show that the aggravated nature of the offense remained probative of current dangerousness after so many years of incarceration. Nor do these findings by themselves constitute some evidence that defendant was currently dangerous.
B. Additional Circumstances
Because the immutable factors cited by the Board, neither individually nor collectively, constitute “some evidence” that defendant was currently dangerous, we turn to the Board’s additional findings to see whether they independently or together with the immutable factors support the Board’s decision.
1. Lack of Insight
An inmate’s inability to recognize the circumstances, forces, and impulses that led him or her to commit the underlying crime; an inmate’s refusal to acknowledge his or her conduct; and an inmate’s attempt to blame others for the crime, an unreasonable belief that the offense was mitigated or excused, or denial of responsibility can reflect a lack of insight into the nature of the commitment offense. Such a lack of insight can imply that the inmate remains vulnerable to the same circumstances, forces, and impulses such that if confronted with them again, he or she would likely react in a similar way. (In re Shaputis (2008) 44 Cal.4th 1241, 1260, 1261, fn. 20 (Shaputis); see Lawrence, supra, 44 Cal.4th at pp. 1214, 1228; In re Lazor (2009) 172 Cal.App.4th 1185, 1202.) For this reason, a lack of insight into a material aspect of the commitment offense can provide a rational nexus between an aggravated offense and a finding of current dangerousness. (See, e.g., Shaputis, supra, 44 Cal.4th at p. 1261, fn. 20; In re Rozzo (2009) 172 Cal.App.4th 40, 61-63; In re Smith (2009) 171 Cal.App.4th 1631, 1637-1639; In re Van Houten (2004) 116 Cal.App.4th 339, 353, 355-356.)
Here, the Board concluded defendant lacked insight into his crime and what caused it. In particular, the Board found that defendant “attempted to minimize” his criminal conduct. The Board noted that although he could remember the stabbing, he could not articulate the “specific details for how or why that occurred.” Given Cordova’s wounds, the Board rejected defendant’s claim that he attacked her with his eyes closed. The Board also rejected defendant’s claim that he committed the offense out of fear and concluded instead that he acted out of rage and anger at Cordova, which, quoting his statement in the probation report, defendant could explain only by saying that Cordova “drove him crazy.” The Board also rejected defendant’s statement that he did not intend to stab Cordova, noting that he did so and then left her to die without summoning help.
The Board’s finding that defendant “minimized” his criminal conduct is based on defendant’s inability to articulate in sufficient detail what he did to Cordova that night. However, the record reveals that defendant had always had trouble recalling and describing the incident, and his difficulty in articulating what happened was partly attributable to the fact that he had suffered his whole life from deficiencies in verbal expression. Even as his memory of the event improved over time, he still could not provide exacting factual and chronological detail.
At the hearing, defendant was able to provide greater detail than before and explained that he reluctantly agreed to meet Cordova for something to eat. As they walked to find a burrito place, he asked her to have her friends stop making threats, and she declined. As they passed through an isolated area, they argued, she was yelling at him, and he was angry about the threats. At some point, she was walking more slowly behind him. He had a knife. Angry and afraid, he pulled it out of his back pocket, turned, and started stabbing her. He said he stabbed her in the neck but could not recall where else or how many times. He also admitted that he simply fled and did not summon help for her.
It is true that defendant failed to articulate exactly what he and Cordova said to each other, the precise path they took, his thoughts as he attacked Cordova, or the number and location of his stabs and slashes. However, his failure to do so merely represented an inability to remember factual detail. Defendant did not deny or attempt to refute the evidence concerning the number of times Cordova was stabbed or slashed or the types of injuries he caused. Nor did he attempt to mitigate his conduct by blaming Cordova or suggesting that he was reasonably provoked. Thus, his inability to remember details does not reflect an insistence that his actions were less violent, brutal, and gruesome than they actually were; nor does it suggest an attempt to portray his actions as less aggravated than they were. In other words, although defendant was able to provide only a minimal version of what happened, his failure to provide greater detail cannot reasonably be characterized as an effort to minimize some material aspect of his conduct or culpability or a significant failure to fully recognize the nature and scope of his actions and their consequences and accept responsibility for them. As such, defendant’s limited memory does not constitute some evidence that defendant lacked insight into his offense.
More importantly, however, we fail to see how defendant’s inability to provide greater detail constitutes some evidence that he currently poses an unreasonable risk of danger to others, given that he acknowledged stabbing Cordova multiple times and leaving her to bleed to death; he recognized and admitted that the killing was senseless and accepted complete and sole responsibility for his actions; he did not attempt to excuse his conduct, blame Cordova or anyone else, or mitigate his culpability; and he has consistently expressed remorse for his crime. (Cf. In re Juarez (2010) 182 Cal.App.4th 1316 [inability to recall details does not imply current dangerousness]; In re Palermo (2009) 171 Cal.App.4th 1096; 1110-1112 [where defendant accepts responsibility and expresses remorse, insistence on his version of crime not some evidence of dangerousness].) Indeed, the Board acknowledged that defendant had accepted full responsibility for his offense and expressed remorse for his conduct and its consequences.
In finding that defendant lacked insight into “the causative factors of his conduct with regard to the life crime, ” the Board focused on defendant’s substance abuse. The Board adopted the psychologist’s view in his 2008 report that drugs had played a “significant” role in defendant’s life up to the time of the offense. However, the Board further found that defendant lacked insight into the role that drugs played because he “minimized” his drug use and was unsure whether he was under the influence when he stabbed Cordova.
Defendant’s explanation of his substance abuse history recorded by the psychologist amply supported a finding that drugs and alcohol were a significant aspect of defendant’s life as a teenager. The Board’s finding that defendant minimized his substance abuse was based on an inconsistency between what he said to the psychologist in 2008 and what he said at the hearing. Defendant told the psychologist he started drinking at age 13 or 14 and drank regularly with the other teenagers whenever alcohol was available. Around that time, he also started smoking marijuana regularly with his friends. At 14 or 15 he started smoking PCP and used it whenever it was available, which, he said, it always seemed to be.
At the hearing, the Board only briefly questioned defendant about his drug history. It asked what substances he had tried, and he said he drank alcohol and smoked marijuana and tried cocaine and PCP. He admitted being an alcoholic and having used alcohol between the ages of 13 and 17. The Board asked if he was a regular abuser of marijuana, cocaine, and PCP. He responded, “No, I’ve used it, though. But it wasn’t regular as if [sic] alcohol was.” The Board asked no further questions.
Defendant’s response is ambiguous. The Board asked about the regular use of three different drugs in the conjunctive, but defendant’s response—“No, I’ve used it”—suggests that he was focused on only one. And if his focus was cocaine, then there is no inconsistency between his testimony and statements because he never told the psychologist he used cocaine, let alone that he regularly used it. On the other hand, even if he was referring to marijuana or PCP, both of which he admitted using regularly, his response reflected more a comparison to how regularly he used alcohol than an unequivocal denial that he regularly used marijuana or PCP. However, even if his answer constituted some evidence that defendant downplayed his use of marijuana and PCP, he nevertheless fully acknowledged using those drugs and others for years and regularly drinking alcohol and felt he was an alcoholic at that time.
Where, as here, defendant recognized and admitted that he was a regular alcohol and drug abuser, it seems unreasonable, if not forced, for the Board to fault defendant for minimizing his substance abuse on the basis of his ambiguous answer to one question during a brief review of his drug history. Moreover, it seems unfair for the Board to jump on defendant’s one answer as evidence of minimization without having asked him about his statements to the psychologist and given him a chance to clarify his answer and the apparent inconsistency concerning how regularly he used marijuana and PCP. Indeed, the Board’s failure to ask defendant about his previous statements gives the appearance that it was playing “gotcha.”
In any event, we reiterate: there is no evidence that defendant was high on either drug or any drug or alcohol for that matter at the time of the offense. Nor is there any evidence that when defendant was high on drugs and/or alcohol, he had a tendency to get angry or act violently. Certainly, defendant’s significant abuse of alcohol and drugs as a teenager reflected poor judgment as do his actions the night of the incident. However, apart from that general connection, we fail to see how the relatively insignificant inconsistency between what defendant said to the psychologist and what he said at the hearing about his use of marijuana and PCP constitutes some evidence that defendant lacked insight into his offense.
In addition to defendant’s minimization, the Board had some “concern” over the fact that he was “not sure” whether he was under the influence at the time of the crime. The Board’s concern arose from defendant’s statement to the psychologist that he “probably” was not under the influence when he stabbed Cordova.
At most, defendant’s statement reveals some uncertainty. As we previously discussed, that statement was not evidence that he was under the influence of anything at the time, and there is no other evidence that he was; nor any evidence that drugs or alcohol made defendant angry or violent. Thus, although defendant had a significant history of substance abuse for years before and leading up to his offense, it is pure speculation to infer that drugs and alcohol were a “causative factor” in the crime—i.e., that his use of alcohol and drugs was somehow related to his becoming angry at Cordova or that they loosened his inhibitions and clouded his judgment, allowing him to vent his anger wildly in an explosion of murderous violence.
Certainly, exploring what made drugs and alcohol so attractive as a teenager could help defendant understand who he was during the years leading up to his offense and perhaps help explain some of the poor decisions he made, including getting one, if not two, young women pregnant. However, neither defendant’s statement to the psychologist implying some uncertainty about whether he was under the influence nor the Board’s finding that defendant failed to appreciate the significant role substance abuse played in his life have any tendency to show that he lacked insight into some material aspect of his conduct and crime.
In short, defendant’s inability to remember more details about his crime, his inconsistent statements about how much he used marijuana and PCP, and his statement implying some uncertainty about whether he was under the influence do not constitute some evidence that he lacked insight into his conduct and crime. Moreover, given defendant’s consistent acceptance of responsibility and expression of remorse, his extensive rehabilitative programming, and his lengthy incarceration with only one disciplinary citation for non-violent conduct, the circumstances listed above do not constitute some evidence that defendant was currently dangerous or establish a rational nexus between defendant’s crime and a finding that he would pose an unreasonable danger to the community if released.
The Board’s analysis of defendant’s crime and his insight is not only unsupported by the evidence but also flawed by the Board’s own lack of insight into the relevance of additional circumstances concerning defendant’s suitability for parole.
As noted, the Board was required to consider all circumstances relevant to suitability and unsuitability for parole. (Regs., § 2402, subd. (b).) Thus, if there was evidence that the offense was the result of significant stress in his life, especially if the stress has built up over a long period of time, the Board must consider it as a suitability factor. (In re Weider (2006) 145 Cal.App.4th 570, 590.) Here, there was ample evidence that defendant was under significant stress at the time of the offense. According to defendant, when Gutierrez got pregnant, he had decided to change his lifestyle, return to school, and get married. This meant being clean and sober and dissociating himself from his substance abusing friends, including Cordova. However, she and the others reacted to being rejected and started to threaten him and then his family and Gutierrez. He did not change his mind and the threats continued for a period of months. Then Cordova confronted defendant, saying that she too was pregnant with his child. He felt pressure from the group to choose between Cordova and Gutierrez. On the night of the incident, he reluctantly agreed to meet Cordova and get something to eat. They argued, she yelled at him, he asked her to stop her friends from making threats, she declined, and he killed her. (Regs., § 2402, subd. (d)(4); In re Vasquez (2009) 170 Cal.App.4th 370, 385.)
Equally relevant to a proper individualized consideration of defendant’s offense and suitability for parole was defendant’s age at that time he committed the offense. Here, the Board did consider the fact that defendant was 17 when he killed Cordova. However, it appears the Board considered this to be a factor tending to show that he was unsuitable for parole.
In discussing the factors it relied on to deny parole, the Board first cited the aggravated nature of the offense. It then said, “Other considerations against suitability, prior criminality. The prisoner in his matter was 17 years of age. The prisoner did have a juvenile arrest history.” (Italics added.)
In In re Barker (2007) 151 Cal.App.4th 346, the court discussed the relevance of age when the commitment offense was committed by a teenager and how important it is to consider it in determining suitability for parole. There, Barker was 16 when he agreed to help a friend kill his parents and grandfather. (Id. at pp. 352-353.) The friend shot his mother and father. Barker hit the friend’s grandfather in the head several times with a chisel and then shot him. (Id. at p. 353.) Barker was convicted of three counts of second degree murder. In 2005, when Barker was 45, the Board denied parole. (Id. at pp. 352, 360.) Barker then sought habeas relief, and the court vacated the Board’s decision. The court found no evidence to support the Board’s specific findings. Moreover, the evidence supported most of the suitability factors and did not support the unsuitability factors. (Id. at pp. 366-375.) Last, in rejecting the Board’s conclusion that Barker was currently dangerous, the court faulted the Board for failing to consider Barker’s age. (Id. at pp. 375-377.)
The Barker court’s discussion is apropos here. “In Elkins, supra, 144 Cal.App.4th 475, we agreed with the observations of the federal district court in Rosenkrantz v. Marshall (C.D.Cal.2006) 444 F.Supp.2d 1063, that ‘ “the general unreliability of predicting violence is exacerbated in [a] case by... petitioner’s young age at the time of the offense [and] the passage [in that case] of nearly twenty years since that offense was committed....” ’ (Elkins, supra, at p. 500.) There, granting the petition for habeas corpus, the district court talked of Rosenkrantz’s age, one month past 18. (Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at p. 1085.) This fact, the district court noted, ‘further diminished’ the ‘reliability of the facts of [Rosenkrantz’s] crime as a predictor for his dangerousness.’ (Ibid.) Stating that ‘[w]hile [Rosenkrantz] was not legally a minor, he was very close to being one, ’ the district court confirmed the recognition by the United States Supreme Court that the ‘evidentiary/predictive value of the conduct of such a young person is diminished.’ (Ibid.) Then, after making the statement quoted by us in Elkins, the district court went on to quote various observations of the Supreme Court about young criminals: ‘Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. [Citation.] The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” [Citations.]’ (Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at p. 1085, fn. omitted.) These observations are a fortiori applicable to the 16-year-old Barker who committed the crimes here.” (Barker, supra, 155 Cal.App.4th at pp. 376-377.)
Here too, defendant’s age and level of psychological and emotional development were highly probative of why he badly handled the accumulation of stress related to dealing with two young pregnant women; the threats to him, his family, and Gutierrez; and his complicated feelings toward Cordova in general as well as his anger at her the night of the incident. Defendant’s age was equally relevant as a base line to determine whether he had matured during his 18 years of incarceration and thus whether his current age “reduces the probability of recidivism, ” a circumstance, like stress, that shows suitability for parole. (Regs., 2402, subd. (d)(7).)
We disagree with the trial court’s view that the Board must do more than consider suitability factors such as youth at the time of the offense but must also state why it gave little or no weight to that or other mitigating or suitability factors.
2. Lack of Relapse Plan and Need for Additional Therapy
In denying parole, the Board noted that defendant did not have a relapse prevention plan and opined that he needed additional self-help programming and therapy.
We note that part of one of the risk assessment tests administered in 2008 focused on risk management factors. In discussing these factors, the psychologist opined that defendant had not “thoroughly” considered various potential destabilizing factors such as drugs and alcohol and did not have a comprehensive relapse prevention plan for managing the increased exposure to potentially destabilizing risks he would face in the community. “Stress and destabilizers correlate with his risk of recidivism.”
The psychologist explained, however, that a discussion of risk management factors was necessarily “speculative” because it required “the examiner to forecast how individuals will adjust to future circumstances.” Despite the increased risk of relapse due to potential exposure and the lack of a formal relapse prevention plan, the psychologist did not suggest that defendant was unaware or insufficiently aware of the hazards that exposure to drugs and alcohol in the community could pose and, therefore, inadequately prepared to deal with them and at a heightened risk of relapse. On the contrary, the psychologist noted that defendant could identify some potentially challenging risk factors he might face. Moreover, he found that defendant reasonably and realistically believed his family could and would support him and help mediate potential stressors in the community. On balance, therefore, neither the analysis of risk management factors nor the lack of a relapse plan altered the overall conclusion that the psychologist drew from the results of the whole assessment test that defendant posed a low risk of danger if released. That conclusion was only reinforced by the results of the other assessment test. Nevertheless, the psychologist recommended that defendant continue with substance abuse programming and develop a relapse prevention plan regardless of whether he is released.
The record reveals that defendant decided to change his lifestyle and stop associating with his substance-abusing crowd before the commitment offense. During his incarceration, he remained clean and sober and by his continuous participation in AA and NA programs demonstrated a long term commitment to and intent to remain clean and sober. Moreover, these circumstances further demonstrated that he had matured and implicitly reflected recognition that his teenage substance abuse was wrong.
At the hearing, defendant noted that he had not consumed drugs or alcohol since he was 17. When the Board pointed out that he had been in prison during that time, defendant noted that drugs were always available in prison, but he has completely avoided them and those who used them.
When viewed realistically in context, defendant’s lack of a formal relapse prevention plan and the psychologist’s recommendation that he do so and continue substance abuse programming do not constitute some evidence that defendant’s substance abuse programming in prison had been inadequate or that without more programming and a relapse prevention plan, defendant was likely to return to drugs and alcohol abuse if released. (Cf. In re Smith (2003) 114 Cal.App.4th 343, 371 [no evidence to support the Governor’s finding that defendant might relapse if released]; In re Loresch (2010) 183 Cal.App.4th 150, 161-162 [history of substance abuse without more is not some evidence of dangerousness].) This is all the more so given the fact that defendant abused substances as a teenager and the lack of evidence that at that time, he was ever aggressive or violent when under the influence.
The Attorney General cites In re Cerny (2009) 178 Cal.App.4th 1303 for the proposition that parole may properly be denied where an inmate lacked verifiable parole plans addressing his substance abuse and addiction problems. However, in that case, the inmate was an adult heroin addict when he murdered someone over a $60 drug deal gone bad. As noted, defendant’s crime was not directly or causally related to his substance abuse as a teenager.
3. Parole Plans
The Board found defendant unsuitable for parole because he had no “viable residential plans, ” no “acceptable employment plans, ” and no plan to use the vocational skills he had learned in prison to get a job. The Board further opined that defendant needed more vocational training.
The Regulations list as a suitability factor that an inmate has made realistic plans for release or has developed marketable skills that can be put to use upon release. (Regs., § 2402, subd. (d)(8).)
In Criscione, supra, 173 Cal.App.4th 60, the inmate explained that if paroled, he planned to live with his brother, who had formerly operated a bakery but had now retired, and would look for part-time work. He had completed both the bakery and dry cleaning vocations while in prison and he believed his brother would be able to help him find work. The Board found that the inmate’s plans were “ ‘marginal.’ ” It noted that although he had a small fixed income without employment, he would have to seek additional employment to sustain himself. However, he had had only minimal vocational programming in prison and needed to train for a new profession or have employment offers. (Id. at p. 70.)
The reviewing court noted that defendant’s relatives had offered housing and other assistance. He had bakery skills and believed he would be able to find part-time work in that field. And his brother, who had operated a bakery before retiring, was willing to help him. Thus, given the inmate’s age, familial support, and projected retirement benefits, the court found that his plans were realistic. (Criscione, supra, 173 Cal.App.4th at pp. 75-76.) The court further explained that even if the Board felt that further vocational training would be helpful to the inmate upon release, its reference to a lack of realistic parole plans or marketable skills as a factor supporting the unsuitability determination “was not individualized consideration in that it had no connection to this inmate’s potential for dangerousness. The potential for dangerousness in this case, if there is one, is limited to [the inmate’s] potential for violence against women with whom he shares intimate relations. We fail to see how the lack of a job offer or additional vocational training has any bearing upon this concern.” (Id. at p. 76; In re Loresch, supra, 183 Cal.App.4th 150, 162 [lack of formal job offers does not tend to show unsuitability for parole].)
At the hearing in this case, defendant explained that upon release, he planned to continue his substance abuse programming and would live with his parents or his aunt or parole to the Victory Outreach residential drug program, of which his parents were members. He said that initially he would work for his aunt doing maintenance and landscaping for several properties that she owned, skills he had learned in prison. Defendant’s aunt had in the past written to the Board and made this offer of transitional employment to defendant, whose release she fully supported. Defendant would then seek a parole vocational program to pursue more substantial employment.
Defendant also stated that he had received vocational training and certification in welding in 1996 and cabinetry in 2007. He explained that he had been unable to keep up his welding skills because the institutions where he had been incarcerated did not have welding classes. Defendant had also worked as a cook. When asked why he had chosen to work in the kitchen rather than seek another vocational training program, defendant explained that he wanted to become a cook and thought that it was a “pretty good vocation in itself.” As a result, he had no potential employment opportunities in welding or cabinetry.
It is unclear what the Board meant when it found that defendant’s residential plans were not “viable.” It appears entirely realistic for him to live with his parents or aunt upon his release or, if admitted, at the Victory Outreach residential program.
It is also unclear what the Board meant when it found that defendant had no “acceptable” employment plans. His aunt offered to hire him to maintain her properties, and defendant was formally trained and certified in welding and cabinetry and had worked as a cook, all of which were marketable skills.
We acknowledge that defendant’s parole plans were not the most elaborate or substantial plans possible, and he did not have letters of interest from potential employers. However, that does not mean that his plans were unrealistic or that he had no reasonable basis to expect to eventually find employment as a cook. Moreover, we do not see, and the Board failed to articulate how the deficiencies in defendant’s parole plans tended to show that he posed an unreasonable risk of danger to others.
C. Suitability Factors
A review of the record reveals suitability factors that favored granting parole. Defendant did not have a juvenile record of assaulting others or committing crimes with the potential of personal harm to victims; he has consistently shown remorse; he lacked any significant history of violent crime or misbehavior; his youthfulness and the circumstances of the offense and his age at the time of the hearing reduced the probability of recidivism; and his institutional behavior reflected an enhanced ability to function within the law when released. (Regs., § 2402, subd, (d)(1), (3), (4), (6), (7), & (9).)
D. Conclusion
We conclude that the record does not contain “some evidence” to support the Board’s finding that defendant would pose an unreasonable risk of danger to the community if released. Accordingly, the trial court properly vacated the Board’s decision and directed it to conduct a new parole hearing.
VI. Remand Order
The Attorney General contends that even if a remand for a new hearing is necessary, the trial court erred in ordering that the Board conduct it “within 30 days” of the order. Defendant counters that this claim is now moot because this court stayed the order pending appeal, and therefore, a new hearing cannot be held within 30 days of the trial court’s order.
The claim is not moot. Upholding the trial court’s order vacating the Board’s decision and lifting the stay would, in effect, require the Board to hold a hearing within 30 days. That the hearing would commence more than 30 days after the date the trial court’s order was filed is irrelevant.
We note, however, that section 3043, subdivision (a)(1) provides, “Upon request, notice of any hearing to review or consider the parole suitability or the setting of a parole date for any prisoner in a state prison shall be sent by the Board of Parole Hearings at least 90 days before the hearing to any victim of any crime committed by the prisoner, or to the next of kin of the victim if the victim has died, to include the commitment crimes, determinate term commitment crimes for which the prisoner has been paroled, and any other felony crimes or crimes against the person for which the prisoner has been convicted. The requesting party shall keep the board apprised of his or her current mailing address.” (Italics added.)
The trial court’s order requiring a new hearing within 30 days is inconsistent with the 90-day notice requirement in section 3043 and precludes compliance with that statutory mandate.
In its order, the trial court cited Justice Moreno’s concurring opinion in In re Prather, supra, 50 Cal.4th 238, in which he opined that it was not improper for the court of appeal in that case to order an expedited hearing on remand in the interests of justice. (Id. at p. 262 (conc. opn. Moreno, J.).) Justice Moreno’s concurring opinion is not binding authority and did not consider the mandatory notice provisions in section 3043 and the impossibility of complying with that mandate under a 30-day hearing requirement.
Defendant argues that the mandatory provisions of section 3043 apply only to “the setting of the original hearing, but this is a hearing on remand.” We are not persuaded. Section 3043 is not expressly or implicitly limited to the original hearing. Moreover, where, as here, the court remands the matter for a new hearing that comports with due process, we fail to see why the parties entitled to 90-day notice at an “original hearing” should not be entitled to the same notice at a new hearing.
Finally, defendant notes a number of appellate cases in which the court remanded the case for a new hearing within 30 days of the remittitur. (See, e.g., In re Juarez, supra, 182 Cal.App.4th 1316, 1347.) However, “ ‘[i]t is axiomatic, ’ of course, ‘that cases are not authority for propositions not considered.’ ” (People v. Jones (1995) 11 Cal.4th 118, 123, fn. 2, quoting People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7.) In none of the cases cited by defendant did the court consider or even acknowledge the mandatory 90-day notice requirement. And some of the cases cited were decided before section 3043 required 90-day notice. (See Stats. 2004, c. 289, § 1 [requiring only 30-day notice].)
Given our disposition, we need not address defendant’s supplemental claim that his federal constitutional right to due process requires that a decision to deny parole be reviewed under the “some evidence” standard.
We modify the trial court’s order and replace the requirement that the Board hold a hearing within 30 days with the requirement that the Board hold a new hearing after giving notice as currently provided by statute and to proceed in accordance with due process. As modified, the order is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
This court stayed the trial court’s order pending resolution of the appeal. (Order dated Nov. 30, 2010.)
All other unspecified statutory references are to the Penal Code.
In determining suitability for parole, the Board has the authority to make credibility determinations, which we must accept. (In re Tripp (2007) 150 Cal.App.4th 306, 318.)
Although the Board must consider “[a]ll relevant, reliable information” related to the parole suitability and unsuitability factors set forth in section 3041 and the Regulations (Regs., § 2402, subd. (b); In re Prather (2010) 50 Cal.4th 238, 251), including that a commitment offense was committed by a minor (Barker, supra, 151 Cal.App.4th at pp. 375-377), the manner in which the suitability and unsuitability factors interrelate and the weight to be given to each are considerations for the Board. (In re Criscione (2009) 173 Cal.App.4th 60, 78 (Criscione).) Accordingly, the Board need only articulate a rational nexus between the unsuitability factors that it relies on to deny parole and its conclusion that an inmate is currently dangerous. (Lawrence, supra, 44 Cal.4th 1181, 1210; e.g., In re Moses, supra, 182 Cal.App.4th 1279, 1304-1312.) It need not, as the trial court reasoned, conversely state “why there is no nexus or weight for a mitigating factor such as Petitioner’s youth at the time of the crime.”