Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 07F02394
MORRISON, Acting P.J.
In 1989, petitioner Phillip Sieler was convicted of second degree murder with an enhancement for use of a firearm after he shot and killed Charles Horner, whom Sieler believed was his wife’s lover and drug dealer. In 2005, the Board of Parole Hearings (the Board) found him suitable for parole. The Governor reversed the decision, finding Sieler’s crime was especially atrocious because it was dispassionate and calculated. Sieler filed a petition for a writ of habeas corpus and the trial court found he was entitled to relief because the Governor’s decision was arbitrary and capricious. The court remanded the matter to the Governor for a new decision. Again, the Governor found Sieler unsuitable for parole based on the commitment offense. This time the Governor found the crime especially heinous because Sieler demonstrated an exceptionally callous disregard for his victim’s suffering and life, and his actions placed two others at risk of death or serious bodily injury. Once more the trial court granted Sieler’s petition for habeas corpus, finding the Governor’s new reasons were merely restatements of the old reasons and barred by collateral estoppel. The court also found there was not some evidence that Sieler’s release would endanger public safety.
The warden appeals, contending the trial court erred in applying collateral estoppel. He further contends that under the test set forth in In re Rosencrantz (2002) 29 Cal.4th 616 (Rosenkrantz), there is some evidence supporting the Governor’s decision. We find it unnecessary to decide the issue of collateral estoppel because we find there is not some evidence to support the Governor’s decision. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Commitment Offense
Sieler’s wife left him a few days before the shooting. She asked friends to help her retrieve her car, to which Sieler had the keys. Tracey Loube drove her to Sieler’s and Charles Horner accompanied them. When they were unable to get the car started, they left. As they did so, they encountered Sieler in his van. Sieler had just learned he would be laid off work due to slow business. Sieler followed Loube’s car. The car sped up and Sieler chased it. He bumped the car several times at a stop sign. Horner told Loube to pull over. She did and Horner got out. Sieler got out of his van, armed with a 12-gauge shotgun. Horner said something to Sieler and Sieler fired, striking and killing Horner.
The Governor’s summary of the offense in his 2005 reversal included that the bumping occurred at a stop sign. This fact comes from the police report and Loube’s witness statement. The Governor’s 2007 reversal omits this fact, suggesting the bumping occurred while the car was speeding away. A second witness to the shooting said she saw, “what looked like a white van pushing a brown smaller car.” At oral argument, the Attorney General cited the description of the crime at the parole hearing. That description stated that Sieler bumped the car a couple of times without indicating whether the car was moving.
Sieler left the scene and drove to his mother-in-law’s house. There he called 911 and reported the shooting. The police came and arrested him. Sieler’s mother-in-law reported Sieler came in the house covered in blood. When she asked what happened, Sieler replied, “‘I shot him. I did it. He jumped on me. I jumped back. He grabbed the gun and I shot him.’”
Sieler pleaded guilty to second degree murder with a firearm use enhancement. Defense counsel explained the plea was a compromise between first degree murder and manslaughter. Sieler maintained Horner had confronted him on a prior occasion with a bulge in his pocket that Sieler took to be a gun. Due to that threat, Sieler took a gun with him. The district attorney indicated Sieler was allowed to plead to second degree murder due to the circumstances of the shooting, including his low IQ, previous threats by Horner, and the domestic nature of the incident.
Sieler believed Horner was both his wife’s lover and her drug dealer. His mother-in-law confirmed her daughter had returned to drug use and hung around Horner who supplied her with drugs.
Sieler was sentenced to 17 years to life in prison. The probation report found two factors in aggravation: great violence and the use of a weapon. There were four circumstances in mitigation: Sieler’s insignificant record of one conviction for petty theft, his organic brain damage and the great stress on him at the time of the shooting, his early acknowledgement of wrongdoing, and his productive life as a law-abiding, employed family man.
Sieler’s Background
Sieler was 27 years old when he shot Horner. He was born to an unwed mother and never knew his father. He moved around a lot as a child, had trouble making friends, and was bullied by his peers. He was hyperactive as a child and placed in special education in grade school. He dropped out of high school after the ninth grade. He received his high school diploma while in jail.
Sieler married in 1984 and had two children. Before the offense he had steady employment as a plumber and a carpenter. He did not drink and smoked marijuana about twice a month.
Sieler fell off a skateboard and injured his head in 1986. His IQ was measured at 77-79, the high end of borderline mentally retarded and below low average intelligence. His scores were consistent with organic brain damage. Two doctors who examined him found Sieler showed signs of brain damage and an inability to deal with stress due to limited intellectual ability and emotional problems.
Sieler had no juvenile record. He had one adult conviction for petty theft, for which he was fined.
Conduct While Incarcerated
While in prison, Sieler had one discipline write-up in 1991 and a lesser discipline in 2001. Otherwise, he had been discipline-free.
Sieler was disciplined for lifting weights at inappropriate times.
He completed 18 courses in plumbing, including certificates for pipe cutting, blueprints, equipment and uniform. He was also certified in vocational welding and office machine repair. He completed the vocational dry cleaning program. He had 32 units in the San Quentin College program.
Sieler had a number of laudatory “chronos” (Inmate Chronological Report). He had been an active participant as a tutor in Project REACH and in RISK. The programs he had participated in included Anger Management, Developing a Positive Attitude, Narcotics Anonymous, KATAREGO, Mankind-The Men’s Program, Real Choices Program, impulse control training, substance abuse counseling, training in self-confrontation and peer education. He took part in trust programs, including the Independent Responsibility Workshop and the Sexual and Reproductive Health Workshop. Sieler was one of nine inmates selected to participate in and complete a 15-week Victim Offenders group, VOEG. He had donated candy to the San Quentin Toy Program and sponsored the Vietnam Veterans Group. A correctional officer had praised Sieler’s “friendly and respectful behavior and attitude towards staff and inmates alike.”
Psychological Evaluation
A psychiatric report by Dr. Carrera concluded, “Mr. Sieler has taken every step possible to rehabilitate himself. He has endeavored to educate himself and work on the issues that led to his incarceration and would be in . . . my opinion as fine a candidate for parole as I’ve ever interviewed.” The doctor stressed the knowledge Sieler had attained through various programs in prison and his desire to share it with others. “He has developed a strong ability to express himself emotionally and maintain a pleasant, calm, open demeanor even when pressed. He speaks sincerely about his acquired ability to talk things out now rather than stuff them or act out. He is energized when he speaks about the wealth of knowledge he’s gained -- but I want to learn even more -- and is well versed in psychology, his and others. He speaks fervently about the change this knowledge has made in his life and his desire to share it. He spoke passionately about the pleasure it gives him to spark something in a younger person and proclaimed a profound need to share with others the vast amount of information he’s assimilated in the education he’s received to spare others the fate he endured.”
Dr. Carrera had personally observed Sieler’s job performance when Sieler worked in the infirmary. “He was unfailing, personable, courteous, appropriate and hardworking.”
Even more impressive was Sieler’s reaction to adversity. “Though no doubt devastated by the reversal of his parole only a few days before he was to leave, Mr. Sieler has developed a wonderful ability to [indiscernible] events quickly. This is a psychological tool which allows someone to turn a negative event into a positive one by looking at it from a different point of view. When asked how he dealt with the disappointment, he replied he didn’t take it personally at all because the Governor didn’t know him and that while he was sad about the reversal he figures it was a good thing because he would be able to complete the vocational training he started and would be an even more valuable employee to the company who was holding a job for him. This ability to turn things around in one’s mind and see the sunny side of the situation is invaluable and a difficult one for many inmates to grasp. He, however, does it routinely and easily and even took notes when I gave a label to what it is that he has learned to do.”
The Board had previously granted Sieler a parole date. Governor Davis reversed that decision.
Parole Board Hearing
In April 2005, the Board held a hearing on Sieler’s suitability for parole. Sieler expressed remorse for his crime. He explained he had taken advantage of prison programs to understand why he did it and to learn new conflict resolution skills. He had “learned a lot” and had been able to handle “a lot of stressful situations in here in a peaceful manner.”
Sieler told the Board that Horner had threatened him three days before the shooting. Horner came to Sieler’s house with a bulge in his pocket that looked like a gun. He told Sieler not to interfere with his relationship with Sieler’s wife or Horner or one of his boys would take care of Sieler.
Sieler indicated he would treat stressful situations differently now because he had learned to talk about his emotions instead of keeping them bottled up and letting them fester, as he had done before. When questioned as to how he felt about Horner, who had ruined his life, Sieler corrected the commissioner stating, “I ruined my life.”
Sieler’s future plans included continuing a relationship with a woman, who would move to Sacramento if necessary. Sieler planned to accept one of the offers for housing and to reunite with his children. Sieler had various job offers and support from family and friends. Sieler had been in contact with his ex-wife. “We have a mutual friendship. We don’t dislike each other and we communicate, but that’s basically as far as it goes.” Sieler explained he had never talked with his wife about the serious issues in their relationship and the lack of communication was as much his fault as hers. “I was a responsible, working person. I could have divorced her and took the kids and moved on, . . . I put as much into the destruction of our relationship as she did.”
Sieler’s former mother-in-law supported his bid for release. In several letters to the Board, she indicated her daughter’s drug use had put the grandchildren in a horrible situation.
The Sacramento County chief of police opposed parole, claiming Sieler had been abusive to his wife. Sieler “‘displayed little compassion for others and showed a complete lack of concern for the law.’”
The district attorney opposed parole, characterizing the shooting as “in cold blood” and asserting Sieler “obviously had no control whatsoever on his actions.” He acknowledged that Sieler had done everything he could do to rehabilitate himself, but concluded that “just says that he’s smart.” The district attorney did not trust Sieler to control himself. “[H]e’s a danger to society.”
Sieler’s attorney noted other psychological evaluations echoed Dr. Carrera’s assessment of Sieler’s suitability for parole. Counselor Tate found Sieler “a very, very strong candidate for parole” and his release posed a very low threat to the public.
The Board found Sieler suitable for parole. It found a reduced probability of recidivism due to “maturation, growth, greater understanding and advanced age.” Sieler had realistic parole plans, including job offers and family support. The psychiatric and psychological evaluations were favorable.
The Governor’s Decision
In August 2005, the Governor reversed the Board’s decision. Recognizing the factors supporting Sieler’s release, the Governor found “the nature and circumstances of the murder he committed alone are enough for me to conclude at this time that his release from prison would pose an unreasonable public-safety risk.” The Governor found the murder “especially atrocious” because it was carried out in a dispassionate and calculated manner with no aggressive conduct by the victim. The stress Sieler was under at the time did not tip the scales in favor of parole suitability.
Sieler filed a petition for a writ of habeas corpus. The trial court denied it. He then filed a petition in this court. We requested opposition addressing the applicability of In re Scott (2005) 133 Cal.App.4th 573, 579. We issued an order to show cause, returnable to the superior court. The trial court found the Governor’s decision was not supported by some evidence, that it was arbitrary and capricious. The court remanded the matter to the Governor for a new decision. “Upon reevaluation, it is possible that the Governor could find some other ground upon which to reverse the grant of parole, and the Governor should be given that opportunity.”
In January 2007, the Governor issued a second decision, again reversing the decision to grant Sieler parole. The Governor noted Sieler’s efforts at rehabilitation in prison. “Despite the positive factors I considered, the second-degree murder for which Mr. Sieler was convicted was especially heinous because his actions--chasing a car full of people, including Mr. Horner, running into the back of the car several times, and then shooting Mr. Horner once in the chest at point blank range--demonstrated an exceptionally callous disregard for Mr. Horner’s suffering and life.” The Governor again stressed the lack of direct provocation. “In addition, Mr. Sieler’s actions put at least two other people at risk of death or serious bodily injury.” The gravity of Sieler’s offense was alone sufficient for the Governor to conclude his release would pose an unreasonable public-safety risk. The Governor also noted the opposition of the district attorney and the police department.
The Trial Court’s Decision
Sieler filed a petition for a writ of habeas corpus challenging the Governor’s decision (case No. 07F02394). Meanwhile, the Board held a subsequent parole suitability hearing and this time found Sieler unsuitable for parole. Sieler petitioned for a writ of habeas corpus challenging the Board’s decision (case No. 07F04348). The trial court issued orders to show cause in both cases and consolidated them. The court granted the petition in case No. 07F02394 and ordered the Board to set a parole date forthwith. It dismissed the petition in case No. 07F04348 as moot.
The court found the Governor’s new reasons “are mere restatements of his old reasons.” Collateral estoppel prevented the Governor from relying on them. Further, there was not some evidence to support the Governor’s reversal of parole. Sieler did not manifest an exceptionally callous disregard for Horner’s life and suffering. Instead, he immediately called the police and turned himself in. Horner’s relationship with Sieler’s wife provided provocation. That Sieler put others at risk of death or great bodily injury was unsupported by the evidence. While bumping the car did endanger others, the evidence did not indicate there was sufficient force to push the car off the road. Sieler’s actions were directed solely at Horner.
The court found, “The Governor’s second decision is different from the first only with respect to emphasis and semantics. The facts of and surrounding the offense have not changed. The second reversal of parole was unjustified and unlawful.” The court remanded the matter to the Board with directions to forthwith grant Sieler an immediate parole release.
The warden appealed the trial court’s decision. He filed a petition for writ of supersedeas, requesting stay of the trial court’s order. This court granted the request for a temporary stay. This court treated the petition as an application for stay of enforcement and ordered the temporary stay to remain in effect until further order or final disposition of this appeal.
DISCUSSION
I. Law Governing Parole Suitability Decisions
Parole suitability decisions for inmates serving indeterminate life terms are made, in the first instance, by the Board. (Pen. Code, § 3041.) One year prior to the inmate’s minimum parole eligible release date, a panel of the Board shall meet with the inmate and “shall normally set a parole release date.” (Pen. Code, § 3041, subd. (a).) “The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates.” (Ibid.) The panel or Board shall set a release date unless it determines that the gravity and timing of any current or past offense is such that public safety requires a longer period of confinement of the inmate. (Id., § 3041, subd. (b).)
Regulations guide the Board’s determination. The panel must first determine whether the inmate is suitable for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (a).) All relevant, reliable information available to the panel shall be considered. (Id., § 2402, subd. (b).) No matter how long the inmate has been incarcerated, he is not suitable for parole if the panel finds he “will pose an unreasonable risk of danger to society if released from prison.” (Id., § 2402, subd. (a).)
The regulations list six circumstances tending to show unsuitability for parole: (1) commission of the offense in an especially heinous, atrocious or cruel manner; (2) previous record of violence; (3) unstable social history; (4) previous sexual assault in a sadistic manner; (5) lengthy history of severe mental problems; and (6) serious misconduct in prison or jail. (Cal. Code Regs., tit. 15, § 2402, subd. (c).) In considering whether the offense was committed in an especially heinous, atrocious or cruel manner, various factors should be considered. These factors are: (1) multiple victims were attacked, injured or killed; (2) the offense was carried out in a dispassionate and calculated manner; (3) the victim was abused, defiled or mutilated; (4) the offense was carried out in a manner demonstrating an exceptionally callous disregard for human suffering; and (5) the motive for the crime was inexplicable or very trivial in relation to the offense. (Id., § 2402, subd. (c)(1).)
Nine circumstances tending to show suitability for parole are listed: (1) no juvenile record; (2) stable social history; (3) signs of remorse; (4) the crime was committed as a result of a significant stress; (5) battered woman syndrome; (6) lack of criminal history; (7) the inmate’s present age reduces the probability of recidivism; (8) realistic plans for the future; and (9) institutional activities that indicate an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)
The importance attached to any circumstance or combination of circumstances is left to the judgment of the panel. (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).)
Any parole decision by the Board with respect to a life term inmate is subject to review by the Governor pursuant to the California Constitution, article V, section 8, subdivision (b). “The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider.” (Ibid.) When reviewing the Board’s decision, the Governor shall review the materials provided by the Board. (Pen. Code, § 3041.2, subd. (a).) If the Governor decides to reverse the Board’s decision, “he or she shall send a written statement to the inmate specifying the reasons for his or her decision.” (Id., subd. (b).)
II. Standard of Review
“[A] Governor’s decision granting or denying parole is subject to a limited judicial review to determine only whether the decision is supported by ‘some evidence.’” (Rosenkrantz, supra, 29 Cal.4th 616, 625.) “This limited judicial review of a gubernatorial parole decision, for the purpose of determining whether it is supported by some evidence, does not usurp the executive’s discretionary authority over parole matters or otherwise violate the separation of powers doctrine. Rather, such review simply ensures that parole decisions are supported by a modicum of evidence and are not arbitrary and capricious.” (Id. at p. 626.)
“Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor. As with the discretion exercised by the Board in making its decision, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor, but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
The overriding concern in parole decisions is public safety. (In re Dannenberg (2005) 34 Cal.4th 1061, 1084.) A parole release decision entails an “attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.” (Rosenkrantz, supra, 29 Cal.4th at p. 655.) Accordingly, “the evidence must substantiate the ultimate conclusion that the prisoner’s release currently poses an unreasonable risk of danger to the public.” (In re Tripp (2007) 150 Cal.App.4th 306, 313.) “The test is not whether some evidence supports the reasons the Governor cites for denying parole, but whether some evidence indicates a parolee’s release unreasonably endangers public safety.” (In re Lee (2006) 143 Cal.App.4th 1400, 1408, italics in original.)
The warden contends it is error to rely on appellate court decisions that focus on the ultimate question of the inmate’s suitability for parole because the validity of these cases has been called into question. The California Supreme Court is considering the question of the extent to which the Board and the Governor should consider an inmate’s current dangerousness in making a parole suitability determination. (See In re Lawrence (2007) 150 Cal.App.4th 1511, review granted Sept. 19, 2007, S154018; In re Shaputis 2007 WL 2372405, review granted Oct. 24, 2007, S155872; In re Cooper (2007) 153 Cal.App.4th 1043, review granted Oct. 24, 2007, S155130; In re Jacobson (2007) 154 Cal.App.4th 849, review granted Dec. 12, 2007, S146416; In re Dannenberg (2007) 156 Cal.App.4th 1387, review granted Feb. 13, 2008, S158880; In re Montgomery (2007) 156 Cal.App.4th 930, review granted Feb. 20, 2008, S159141; In re Staben 2007 WL 3257191, review granted Feb. 27, 2008, S159042.) Until our high court resolves this uncertainty, we believe the appropriate inquiry is not whether there is some evidence to support the individual suitability or unsuitability factors, but whether there is some evidence supporting the ultimate decision that the prisoner will pose an unreasonable risk of danger to society if released from prison. (See Rosenkrantz, supra, 29 Cal.4th at p. 664 [the Governor’s decision is subject to judicial review to ensure due process compliance]; Cal. Code Regs., tit. 15, § 2402, subd. (a) [an unsuitability decision is a conclusion that “the prisoner will pose an unreasonable risk of danger to society if released from prison"].)
III. Sufficiency of the Evidence
Sieler contends, and the trial court found, that collateral estoppel bars the Governor from finding the commitment offense was “especially heinous, atrocious or cruel,” making Sieler unsuitable for parole. The application of collateral estoppel in these circumstances was an issue left open by the Supreme Court in Rosenkrantz, supra, 29 Cal.4th at page 668, footnote 15. Since we find no evidence supports the Governor’s decision, we need not determine whether collateral estoppel applies. (See In re Weider (2006) 145 Cal.App.4th 570, 586, fn. 5; In re Scott, supra, 133 Cal.App.4th 573, 597, fn. 10.)
The Governor found “the gravity of the second-degree murder perpetrated by Mr. Sieler is alone sufficient for me to conclude that his release from prison would pose an unreasonable public-safety risk at this time.” The Governor relied upon two factors. The crime was especially heinous because in chasing a car full of people, running into the back of the car, and shooting Horner at point blank range, Sieler demonstrated an exceptionally callous disregard of Horner’s suffering and life. Second, Sieler’s actions put two others at risk of death or serious bodily injury.
A decision that an inmate is unsuitable for parole may be based solely on the circumstances of the commitment offense. (In re Dannenberg, supra, 34 Cal.4th at p. 1094; Rosenkrantz, supra, 29 Cal.4th at p. 682.) To prevent the case-by-case determination of parole suitability from swallowing the rule that parole should “‘normally’” be granted, the commitment offense must be “‘particularly egregious’” to justify a denial of parole. (In re Dannenberg, supra, 34 Cal.4th at p. 1095.) That means “the violence or viciousness of the inmate’s crime must be more than minimally necessary to convict him of the offense for which he is confined.” (Ibid., italics in original.)
Since the commitment offense is an immutable factor, it “can negate suitability only if circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison. Yet, the predictive value of the commitment offense may be very questionable after a long period of time. Thus, denial of release solely on the basis of the gravity of the commitment offense warrants especially close scrutiny.” (In re Scott, supra, 133 Cal.App.4th 573, 595, fn. and citation omitted.)
Sieler was convicted and sentenced to life in prison for second degree murder. Second degree murder is the unlawful killing of a human being with malice aforethought. (Pen. Code, §§ 187, subd. (a), 189.) All second degree murders involve some callousness, as the murderer acted with an intent to kill or a conscious disregard for life. (In re Smith (2003) 114 Cal.App.4th 343, 366.) To justify denying parole, the callousness must be “‘particularly egregious.’” (In re Dannenberg, supra, 34 Cal.4th at p. 1095.)
No evidence supports a finding that Sieler’s offense was particularly egregious because it showed an exceptionally callous disregard for Horner’s life and suffering. Sieler killed Horner with a single shot at close range, presumably killing him instantly. When the police arrived, Horner had no vital signs. There is no evidence Sieler acted in cold dispassion; rather, he acted out of rage. There was no evidence he tormented or terrorized Horner before he shot him or unnecessarily prolonged his pain and suffering. (See In re Smith, supra, 114 Cal.App.4th at p. 367 [shooting wife three times not exceptionally callous].) After the shooting, Sieler called the police and turned himself in. As the trial court found, these actions suggest the opposite of exceptional callousness.
The Governor also found that Sieler put two others at risk of death or great bodily injury by chasing the car and bumping it. The record does not support the Governor’s characterization of Sieler’s actions. The record indicates Sieler bumped the car at a stop sign, thus the danger to his wife and Loube was slight. There is no evidence either the car or the van were moving at any great speed when the contact occurred. Loube pulled the car over to the curb around the corner from the stop sign. Sieler’s actions were directed solely at Horner.
“Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee’s release unreasonably endangers public safety.” (In re Lee, supra, 143 Cal.App.4th 1400, 1409.) The Governor did not explain how the presence of two others at the murder shows Sieler remains a danger to public safety. In In re Weider, supra, 145 Cal.App.4th 570, the inmate shot and killed his wife’s boyfriend in a struggle in a bar. He also wounded two others. In finding no evidence that the crime was committed in an especially callous or cruel manner, the court addressed that multiple victims were injured. “The existence of multiple victims in this case is the inadvertent result of Weider’s perpetrating the crime in a restaurant during business hours. . . . The evidence that two additional victims were injured shows that the crime was callous and showed Weider’s indifference to human life when he fired the gun in the restaurant. But this does not make the murder of Laird so excessively violent or vicious that it suggests Weider remains a public safety risk.” (Id. at p. 589.) The existence of potential--though not actual--victims in this case was the inadvertent result of their being with Horner when Sieler saw him and followed in a rage. Their presence shows Sieler’s actions were callous, but not exceptionally so for second degree murder. “[A]ll second degree murders by definition involve some callousness[.]” (In re Smith, supra, 114 Cal.App.4th 343, 366.) Sieler’s actions were less callous than those in Weider.
The warden contends the Governor did not rely solely on the commitment offense in reversing the Board’s decision. He asserts the Governor also noted Sieler’s past conviction for petty theft and admitted marijuana usage before the murder, and the opposition of law enforcement and the district attorney.
While the Governor noted Sieler’s past conviction and drug use, he did not rely on these facts in his decision. Instead, he found the gravity of the commitment offense “‘alone sufficient’” to show Sieler’s release posed an unreasonable public safety risk. (See In re Scott, supra, 133 Cal.App.4th at p. 593 [Governor’s statement that gravity of offense “alone is sufficient” suggests Governor relied only upon that factor].) Minor criminal activity and drug use are not among the factors listed in the regulations as tending to show unsuitability for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (c).) Neither shows a previous record of violence. (Id., § 2402, subd. (c)(2).) Indeed, the lack of “any significant history of violent crime,” which is true of Sieler, tends to show his suitability for parole. (Id., § 2402, subd. (d)(6).) Further, the warden does not explain how a minor crime and drug usage twenty years ago indicates Sieler is currently a risk to public safety. “To deny parole, the reason must relate to a defendant’s continued unreasonable risk to public safety.” (In re Lee, supra, 143 Cal.App.4th 1400, 1414.)
The Governor properly considered opposition from law enforcement and the district attorney. (Pen. Code, § 3042.) “But the opposition cannot add weight where there is no evidence of unsuitability to place in the balance.” (In re Weider, supra, 145 Cal.App.4th at p. 590.)
The trial court did not err in finding no evidence to support the Governor’s decision reversing the Board’s decision that Sieler was suitable for parole.
IV. Remedy
The warden contends the trial court erred in ordering the Board “to forthwith grant petitioner a date for immediate release on parole.” The warden contends that where the court finds the Governor’s decision is not supported by some evidence,the proper remedy is to vacate the decision and remand for further proceedings in accordance with due process. The warden notes that Courts of Appeal are divided on the proper remedy and urges this court to follow In re Smith, supra, 114 Cal.App.4th 343, 373-374, and In re Capistran (2003) 107 Cal.App.4th 1299, 1307.
In both In re Smith and In re Capistran, the Governor relied on several factors in finding the inmate unsuitable for parole. The court found no evidence to support some of the factors, but some evidence to support others. (In re Smith, supra, 114 Cal.App.4th at p. 373; In re Capistran, supra, 107 Cal.App.4th at p. 1306.) Here, by contrast, we have found no evidence to support any of the reasons relied on by the Governor.
Moreover, the warden’s argument ignores that the Governor has already had two chances to identify some evidence to support his decision to reverse the Board’s finding of parole suitability and he has failed each time. In these circumstances, a remand to the Governor would be “an idle act.” (In re Smith, supra, 109 Cal.App.4th 489, 507.)
DISPOSITION
The judgment (order granting Sieler’s petition for a writ of habeas corpus) is affirmed and the stay of that order is vacated.
We concur: HULL, J., BUTZ, J.