Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Super. Ct. Nos. CR37808 & RIC454914
Law Offices of Marc Elliott Grossman, Marc Elliott Grossman; and Rich Pfeiffer for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman and Amanda Lloyd, Deputy Attorneys General, for Respondent.
OPINION
KING, J.
In this matter, petitioner Lee Staben challenges a decision by the Board of Parole Hearings (Board) finding him unsuitable for parole. In our initial opinion in the case, we found that no evidence supported the Board’s finding of unsuitability and directed the Board to set a parole date.
Following a hearing before the Board on December 20, 2002, petitioner was found suitable for parole. However, this was reversed by the Governor under the authority granted by Penal Code section 3041.2. The instant petition involves the Board’s decision following a hearing held on August 8, 2005.
(In re Staben (Nov. 6, 2007, E041712) [nonpub. opn.], review granted Feb. 27, 2008, S159042, judg. vacated and cause remanded for further consideration in light of In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis).)
However, following the filing of our first opinion, the People sought review. The Supreme Court granted review and held the case pending its decisions in two other cases dealing with the question of appropriate factors in determining “suitability.” (Lawrence, supra,44 Cal.4th 1181; Shaputis, supra,44 Cal.4th 1241.) It has now retransferred the matter to us with directions to reconsider it in light of those cases. We asked for supplemental briefing and recalendared the case.
Having thoroughly considered the Supreme Court’s decisions, we again conclude that no evidence supports the finding of unsuitability. We reissue our previous opinion with appropriate modifications.
FACTS OF THE OFFENSE
In 1991, petitioner was convicted of two counts of second degree murder (Pen. Code, § 187) and the jury also found true that petitioner used a firearm (§ 12022.5, subd. (a)), as to each count. He received concurrent terms of 15 years to life for the murders and a consecutive three-year term for one of the use enhancements. The three-year term for the other use enhancement was stayed. With one significant exception, which we will discuss post, the circumstances surrounding the killings are not in dispute. We take our primary recitation of facts from that given by the Board, which in turn derived from a correctional counselor’s report, which is not itself part of the record. Elements added by petitioner at the hearing are so noted.
All further statutory references are to the Penal Code unless otherwise indicated.
This represented the low, or mitigated, term for the enhancement. (§ 12022.5, subd. (a).)
In May 1990, petitioner and his girlfriend had moved into a residence that was to be shared with Wayne Goodhue and his girlfriend, Donya Boyd. According to petitioner, Goodhue was twice his age (43 years of age as against petitioner’s 19). Goodhue, however, did not pay his portion of the rent, and after an argument with petitioner, Goodhue and Boyd moved out. Petitioner was evidently concerned because on July 12 he contacted the Riverside County Sheriff’s Department concerning the argument and apparently stated that Goodhue had threatened him with a stick or club. He also told the Board that Goodhue had threatened to harm him or his family after that altercation. He also borrowed a shotgun from his brother-in-law.
At the 2002 hearing, petitioner explained that the older Goodhue was named on the lease because petitioner had no credit history. Petitioner gave his share of the rent money to Goodhue, but Goodhue never gave it to the landlord.
At the hearing, petitioner described the weapon as a “pickax handle.” Our opinion on appeal also contains the details corroborating petitioner’s anxiety. (People v. Staben (Mar. 10, 1993, E010375) [nonpub. opn.].) Petitioner seemed frightened of Goodhue after the argument: He changed the locks, boarded up and covered the windows, and would not let his girlfriend go outside.
Goodhue and Boyd moved into a small trailer. On July 15, 1990, petitioner and his girlfriend were away from home on a “family outing.” When they returned, they found that their home had been burglarized and vandalized; petitioner testified that “unmentionables” had been done to the house. Among the items stolen was a television set.
Petitioner suspected Goodhue and drove angrily to Goodhue’s trailer with the shotgun. It was well after dark, but before 10:30 p.m. Petitioner’s testimony was (and has consistently been) that he banged on the door of the trailer and shouted but received no response. When he saw what he believed to be his stolen television set against a window, he pulled the extruding cord until it crashed to the floor. He still heard nothing.
Petitioner then went to his truck and drove off, but almost immediately returned to the trailer and fired one blast from his shotgun through a window. He told the Board that his intention was simply to cause damage to Goodhue’s home in retaliation for the damage he believed Goodhue had caused to his home, and to warn Goodhue not to trifle with him. Tragically, however, both Goodhue and Boyd were in the trailer; Boyd was fatally wounded and her eight-month-old fetus also died. Goodhue suffered minor injuries.
The window was boarded up on the inside, so petitioner could not have seen into the trailer. However, he also stated that he did not realize it was boarded up.
According to petitioner’s version, he was unaware that Goodhue and Boyd were in the trailer. The only “evidence” to the contrary was a statement by a neighbor, Carrie McClearan, who had recognized petitioner and heard him yelling obscenities and profanities at the trailer. According to the deputy district attorney who attended the parole hearing, Ms. McClearan’s statement also indicated that she believed that petitioner was “getting some response” to his shouts. This statement is not in the record before us, although it may have been presented to the Board.
Petitioner did not deny the use of vulgar language.
It is, however, reasonably clear that there was no testimony at trial that suggested petitioner knew the trailer was occupied. In 1993, the deputy district attorney who prosecuted petitioner, E. Michael Soccio, wrote a letter, which wound up in petitioner’s file. While acknowledging that petitioner’s actions were “inappropriate and deadly,” Soccio expressed the belief that “he did not know he would injure anyone when he fired a shotgun... and there was no evidence to indicate that he probably did not know that anyone was in there.”
Our opinion indicates that eyewitness testimony was provided by a neighbor named Robin Farrington, but there is no reference to Ms. McClearan. Farrington testified only that petitioner appeared to be “listening” at the windows. Evidence tending to show that petitioner was aware that someone was inside the trailer would have been extremely relevant and critical to the prosecution’s attempt to prove first degree murder.
The letter was addressed to “Mr. Zarate” at a post office box in Calipatria. The letter states that Soccio was “writing to provide you with information regarding my impression of [petitioner],” but it is not clear who Zarate is or was.
Goodhue apparently also did not testify. The probation report indicates that he could not be located at the time the report was prepared.
Soccio, at that time, recommended leniency and confirmed this position in a letter submitted in approximately 2000.
Although a detailed legal analysis is unnecessary, if he were to be retried today, petitioner would be entitled to instructions on manslaughter. It appears that such instructions were refused at the time because it was believed that intent to kill was an element of voluntary manslaughter; we now know that this is not the case. (See, e.g., People v. Lasko (2000) 23 Cal.4th 101, 110.)
FACTORS PERTINENT TO PETITIONER
At the time of the killings, petitioner was 19 years old and had no prior criminal or juvenile record. After graduating from high school, he became employed in a cabinet shop but was terminated for taking excess time off after the birth of his son. He then began to support himself trading motor vehicles, at which time he became acquainted with Goodhue. He had no history of substance abuse although he had experimented with marijuana and alcohol while in high school.
His son was borne by his then girlfriend, to whom he later had a brief marriage.
While incarcerated, petitioner has been virtually discipline free. In 1993, he received a “115” for pilferage. On the other side, he has consistently received good work reports; particularly, a laudatory “chrono” for his accomplishments in vocational welding, which he hopes to pursue on release. The most recent document in the file, covering an unspecified period beginning sometime in 2004, notes that he had acquired two new certificates (plumber and electrician) and had received numerous “laudatory chronos” relating to his “positive, respectful attitude, cooperation with staff and excellent work performance.” He also received a total of 10 favorable reports relating to work performance. At the hearing, the Board quoted briefly from several of his supervisors, who consistently used terms such as “self-motivated,” “hard worker,” “positive attitude,” “nonaggressive,” and “mature and calm.”
The 2002 panel evidently examined the record in detail and learned that it involved the theft of cans of soda from the canteen. The prison authorities could not determine who was responsible, but gave “115’s” to everyone working in the canteen.
Petitioner has also participated in a number of “self-help” programs, primarily religiously oriented. Among his support letters submitted to the Board were two commending him for his efforts to reach at-risk youth as part of Convicts Reaching Out to People (CROP). He also participated regularly—three to four times a week—in “church programs.”
If released, petitioner intended to live with his parents in Orange County, joined by his wife. He had offers of employment in both plumbing and welding. He indicated that although he considers welding to be his primary trade, he would be inclined to accept the plumbing job because he viewed the employer as better established. He had letters of support from his sister-in-law, aunts, stepdaughter, niece, and cousins. One cousin represented that petitioner “comes from a large family of productive and responsible members of society. He has a huge support network waiting for him.”
After his marriage to the mother of his child dissolved, petitioner married his current wife in 2001.
He had an additional job offer from a cousin in Washington who operates a sign graphics business. However, this out-of-state offer was deemed secondary.
THE HEARING
After the presentation of general information, the Board read into the record portions of a letter from the district attorney’s office in Riverside County opposing petitioner’s release on parole. The only stated reason was “evidence of premeditation and deliberation.” The Board referred to the Governor’s denial letter of 2002, which expressed concern that petitioner’s record did not exhibit substantial self-help efforts between 2002 and 2005; petitioner’s response was that he had for some time been compelled to choose, time wise, between Alcoholics Anonymous, Narcotics Anonymous, and his church meetings, and that he had felt that the latter better served his needs. Nevertheless, and despite a letter from the prison pastor, the Board expressed concern that there was no specific “proof” of his participation.
It did note a certificate of completion for a religiously-based correspondence course in 2005 and petitioner’s participation in Feed the Children, also in that year. There was also corroborating evidence of his participation in the CROP program.
The Board also referred to the Governor’s concerns that petitioner needed “anger management.” Petitioner responded that he had participated in the Hands of Peace program, which the Board noted was “some time ago.” Petitioner then explained that no such program was currently available to him, and cogently pointed out that in over 15 years of incarceration, he had not been cited for a single violent or impulsive act. The Board then asked if he read any books on such topics, and petitioner answered that he read several self-help books each year. When asked, he was able to name the last two books he had read. The Board then suggested that he should prepare “book reports” in the future.
“I’m Okay; You’re Okay” and “The Purpose Driven Life.”
The Board then reviewed petitioner’s 2001 psychological report—the most recent available. Salient points noted were the absence of any significant drug or alcohol history; no mental disorder; and his lack of the typical “risk factors” such as gang affiliation, substance abuse, lack of support, and chronic aggression. However, the Board also noted that the report listed petitioner’s insight as “fair” and that no opinion was given as to petitioner’s risk of violence in society. Petitioner commented that he had requested a current evaluation but that this had been refused because only the Board could order this, which it had not done. Interestingly, at petitioner’s 2002 hearing, the Board quoted from a 1998 evaluation, which did specifically state that “[petitioner’s] potential for violence within the community, as well as the free community, are considered to be less than average at this time and to remain so in the future.” There was no reference to such an evaluation at the current hearing.
The evaluator considered him a low risk in a controlled setting.
After reading numerous letters from Boyd’s family opposing parole, the Board allowed a representative from the district attorney’s office to question petitioner about the statement by Carrie McClearan; petitioner continued to deny the accuracy of any suggestion that he heard responses. The district attorney representative also suggested that shooting into the trailer was somehow inconsistent with an intent to do vandalism. He also insinuated that petitioner might have intended his shot to ignite a propane tank at the front of the trailer; petitioner denied knowing that a tank was there.
Finally, the Board asked petitioner to explain what insights he had acquired that would prevent him from offending again. Petitioner attempted to express how his responsibility for Boyd’s death had motivated him to “become a better
person... to take a good honest look at myself. I think that the only way that I could make amends for what I did is by... developing changes in myself, mentally, physically, spiritually, educationally, vocationally.” Told that he was not answering the question, petitioner indicated that he was reluctant to “throw [the religious card] out there,” but asserted that his spiritual experiences had resulted in positive changes. Earlier in the hearing, when asked about his feelings about the crime, petitioner had stated, “I feel horrible about it.... Donya was my friend.... [H]er death has been a motivation for me to better myself and to change my life, not because of what your expectations might be of me, but because of being able to look at myself in the mirror.... [I]t disturbs me as much today as it did then. And I don’t think I’ll ever get beyond that.”
In a final statement, the district attorney continued to assert that petitioner “probably did know that there was somebody inside that trailer sleeping,” referring again to the McClearan report.
The prosecutor’s attempt to paint a picture of a sleeping victim is unpersuasive. Not only had petitioner spent 15 to 20 minutes banging on the door and yelling; he had also pushed a television set onto the floor.
In finding petitioner unsuitable for parole, the Board relied “primarily” upon the “gravity of the offense,” which it found to be “especially cruel and callous” and “carried out in a... calculated manner.” It also expressed the view that petitioner had not “sufficiently participated in beneficial and self-help programs, specifically in the area of anger management and other self-help programs that would focus on the development of insight and remorse.” It found that the most recent psychological report “does not appear to be totally supportive of release” and was critical of parole plans. It ruled that no further hearing would be held for two years.
DISCUSSION
As is true for most decisions involving the confinement of inmates, a decision granting or refusing parole must be upheld if it is supported by “some evidence” and as long as the Board considers all relevant circumstances and factors. (In re Rosenkrantz (2002) 29 Cal.4th 616, 626; see also Superintendent v. Hill (1985) 472 U.S. 445, 455-456.) “[C]onsideration of public safety” is the primary statutory issue to be determined by the Board in determining whether to set a parole date. (§ 3041, subd. (b).) However, the Legislature also instructs the Board to follow guidelines set out in the California Code of Regulations.
The “suitability/unsuitability” factors are set out in California Code of Regulations, title 15, section 2402. “Unsuitability” factors relate to: Commitment offense being “especially heinous, atrocious or cruel”; multiple victims; commission of the offense was in a dispassionate and calculated manner; abuse, defilement, or mutilation; “exceptionally” callous disregard for human suffering; and triviality of motive. Others relate to the inmate: Previous record of violence; unstable social history; sexual sadism; mental problems; and institutional misconduct. On the “suitability” side: Lack of juvenile record; stable social history; remorse; significant stress as a motivation; battered woman syndrome; lack of criminal history; current age; plans for the future; and institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).)
Although our review is deferential, as the court aptly commented in In re Scott (2004) 119 Cal.App.4th 871, 898, this “does not convert a court reviewing the denial of parole into a potted plant.” Not only must there be “‘“some evidence”’” supporting the decision; that evidence must have “‘“some indicia of reliability.”’” (Id. at p. 899, quoting Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 915; see also In re Ramirez (2001) 94 Cal.App.4th 549, 570-572 (Ramirez), disapproved on another ground in In re Dannenberg (2005) 34 Cal.4th 1061, 1100.)
The critical issue in this case involves the Board’s belief that the “nature of the crime” was particularly egregious, and the related issue of whether such a belief, if correct, was evidence of unsuitability. Much of the analysis in our original opinion has been rendered unnecessary by Lawrence and Shaputis, and we will briefly summarize the holdings of those cases before proceeding to the case at hand.
In Lawrence, the Supreme Court explained that although the courts reviewed decisions by the Board or the Governor under a deferential “some evidence” standard (Lawrence, supra,44 Cal.4th at p. 1204, citing In re Rosenkrantz (2002) 29 Cal.4th 616, 677) the crucial analysis was whether a factor on which the decision was based itself constituted “some evidence” of the essential fact: The inmate’s release would unreasonably endanger public safety. (Lawrence,at p. 1209.) That is, even if “some evidence” supports the finding of factor such as—in this case—the egregious “nature of the offense” (although we find that it does not), parole should not be denied unless the evidence also supports the conclusion that the inmate constitutes an unreasonable risk to the public. Simply put, the court concluded that “current dangerousness (rather than the mere presence of a statutory unsuitability factor) is the focus of the parole decision.” (Id. at p. 1210.)
The basics of this holding played out as follows in the companion cases. In Lawrence, the inmate had confronted the wife of her fickle boyfriend after the latter had yet again changed his mind about his future with the inmate. The two women struggled, but the inmate—who had come armed with a pistol and potato peeler—shot the wife several times and stabbed her repeatedly. After several years “on the run,” the inmate turned herself in and was convicted of first degree murder. (Lawrence, supra, 44 Cal.4th at pp. 1192-1193.) It appears that she had no previous criminal history.
By the time of the subject parole hearing, the inmate in Lawrence had spent 23 years in prison with no serious disciplinary action. She had obtained both a bachelor’s degree and a master’s degree. She actively worked to improve and add to her job skills and was active not only in “self-help” programs, but also in programs assisting others such as tutoring and sports training. She was described as a “‘superb motivator and trainer’” and a “‘team player who interacts with everyone in a courteous manner.’” Her psychological reports, in the court’s words, “map[ped] the path of her rehabilitation,” and her parole plans, which included ample support both from family, social workers, and clergy, were solid. (Lawrence, supra, 44 Cal.4th at pp. 1192-1200.)
In Shaputis, the inmate was convicted of second degree murder in the death of his second wife. He had a history of violent abuse of both his first and second wives, as well as his children. This abuse included holding a knife to the throat of his children and beating his second wife so badly that she needed plastic surgery to repair the damage. He was also a “problem drinker with a history of violence when drunk.” (Shaputis, supra,44 Cal.4th at pp. 1246-1247.) He also had a substantial prior criminal history. The inmate’s wife was fatally shot.
The inmate in Shaputis, like the inmate in Lawrence, had been discipline free for some 20 years, had a positive work and self-help record, and “appeared very committed” to maintaining his sobriety. (Shaputis, supra, 44 Cal.4th at p. 1250.) However, his psychological reports—while generally favorable and deeming him to be “low risk”—noted that he had difficulty forming bonds with his family and appeared indifferent to his estrangement from his daughters. Significantly, he had been charged with sexual offenses relating to one of his daughters, resulting in a guilty plea to soliciting a lewd act. Although in 2004 he had admitted inappropriate touching, a mental health update from 2005 reported that he maintained that he had gone into his daughter’s room “by mistake.” He also considered himself a “‘mellow... outgoing’” drinker. Finally, he clung to a self-exculpatory version of the offense, which bordered on the incredible. (Id. at pp. 1248-1249.)
In Lawrence, the Supreme Court found that the only factor arguably supporting denial of relief was the “nature of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1224.) However, assuming arguendo that the killing was egregious, the court explained that because 1) all the relevant factors of suitability existed, 2) the crime was the result of unusual stress unlikely to recur, 3) the psychological reports had for 15 years found the inmate to pose no risk of violence, 4) the lapse of time (36 years from the commission of the offense), 5) the inmate’s “extraordinary” rehabilitative efforts and positive reports, 5) her insight and remorse, and 6) her family support and viable parole plans, “the unchanging factor of the gravity of petitioner’s commitment offense has no predictive value regarding her current threat to public safety....” (Lawrence, supra, 44 Cal.4th at pp. 1225-1226.) Hence, she was suitable for parole.
The inmate in Lawrence had spent about 11 years after the crime “on the run” before deciding to turn herself in. (Lawrence, supra, 44 Cal.4th at p. 1193.)
With respect to the inmate in Shaputis, however, the Supreme Court held that the Governor, reversing the Board’s grant of parole, properly relied on the “aggravated” nature of the offense, which, unlike that in Lawrence, it noted was not an isolated incident and did not result from a stressful episode. (Shaputis, supra, 44 Cal.4th at pp. 1258-1260.) Further, the court agreed that the inmate’s inability (or unwillingness) to accept responsibility for the crime as it actually occurred suggested that he was “unable to gain insight into his antisocial behavior” and “remains dangerous and... unsuitable for parole.” (Id. at p. 1260.)
In this case, our initial opinion focused on the lack of evidence that petitioner’s offense was in any way “egregious” or “worse” than a typical second degree murder. We continue to find that this is the case. In light of Lawrence and Shaputis, however, our focus turns to the question of whether anything about the crime—or anything else in petitioner’s preconviction history or prison performance—gives rise to a viable conclusion that he represents an “unreasonable risk” if released. Consistent with the conclusions in our initial opinion, we determine that petitioner is suitable for parole.
We will not repeat the discussion on the point from our original opinion. We merely point out that all second degree murders involve death and many, if not most, are facilitated by the perpetrator’s possession of a weapon. Petitioner fired a single shot through a boarded-up window, making a fatal outcome—although of course an unacceptable and criminal possibility—very far from inevitable. Further discussion focused on what light the killing cast on petitioner’s character follows.
The elements relating to the crime, which are set out in the California Code of Regulations (see fn. 21), tend to show that a killing reflects an innately antisocial personality or dangerous personality element, and thus do tend to indicate that an inmate who has committed such a murder may be unlikely to change. For example, a killer who deliberately inflicts pain, who mutilates a body, or who kills multiple victims may reasonably be considered to display permanent personality characteristics that require extreme caution before parole can be considered.
By contrast, a killing such as that committed by petitioner, while clearly deserving of punishment, carries no such “red flags.” The fact that two victims were killed did not tend to show that petitioner is “comfortable” with the idea of killing; while we by no means intend to minimize the death of a fetus, petitioner, as we have noted, can have had no knowledge that his shot was likely to take a single life, let alone two. The fact that Boyd not only suffered fatal injuries, but that those injuries also proved fatal to her child, is tragic, but it does not increase petitioner’s moral culpability or indicate that he is at increased risk for future violence.
Nor, as we explained in our original opinion, was petitioner’s offense either “calculated” or “cruel and callous.” While it is true that petitioner armed himself before going to Goodhue’s trailer, this would be equally true of many second degree murders. The guidelines make clear that far more is necessary to make a killing “calculated” by giving as an example “execution-style murder,” which obviously does not apply here. And “‘[a]ll second degree murders by definition involve callousness....’ [Citation.]” (In re Scott, supra, 119 Cal.App.4th at p. 891.) Here, there was no evidence that petitioner intended to, was aware that he did, or even did inflict cruelly extreme pain, and none that he was indifferent to the victims’ sufferings. (Cf. People v. Misa (2006) 140 Cal.App.4th 837, 842-843 [a torture case under § 206].) His motive—to protect his family from a perceived risk of harm—was not “explicable or very trivial.” In short, nothing about the offense was in any way “egregious” or independently suggested that petitioner posed an inherent and inalterable risk of violence.
In our original opinion, we compared cases finding a killing to be “average” (e.g., In re Lee (2006) 143 Cal.App.4th 1400) with those upholding a finding of “egregious” (e.g., In re Van Houten (2004) 116 Cal.App.4th 339). As the Supreme Court has placed the focus on the predictive value of various circumstances, a detailed analysis of “egregious” versus “nonegregious” killings is no longer necessary.
Correctly, the Board did not purport to rely on the other “unsuitability” factors such as a history of crime or criminal record, or mental illness, none of which apply to petitioner. The other grounds on which the Board did rely are not substantiated. As described above, petitioner had excellent parole plans with firm job offers, and there was no evidence to refute the showing that he has a “huge support system” waiting for him comprised primarily of “his large family of productive and responsible members of society.” The Board’s only criticism was that his plans involved Orange County rather than Riverside County, his last legal residence. But while it is true that an inmate’s last county of legal residence is the presumptive county for parole, the Board has authority to approve parole to any county. (§ 3003, subds. (a), (b).) Under subdivision (b), parole to another county is appropriate if the inmate has a “(3)... verified... work offer” and “(4)... family in another county with whom the inmate has maintained strong ties and whose support would increase the chance that the inmate’s parole would be successfully completed.” That is exactly this case, and the Board’s reluctance to effectuate this option appears to have been completely arbitrary.
Parole to a different county is also appropriate where the inmate’s last county of legal residence presents negative issues such as public hostility (the statute says “concern”) or danger to the victim, the parolee, a witness, or anyone else. (§ 3003, subd. (b)(1), (b)(2).) Nothing in the record suggests that Orange County would be inappropriate under these standards.
The Board also criticized petitioner for not participating in an “anger management” program. Leaving aside the fact that no program under that heading has been available to him, there is absolutely no evidence that going through such a program would tend to make him more suitable for parole. Although it is, of course, true that the life offense was committed in anger—as petitioner admits—it was also prompted by unique stresses and even fear. Nothing in petitioner’s preoffense history suggests that he had difficulty managing his temper, and the descriptions of him while incarcerated consistently refute the need for treatment in this respect: Petitioner is “nonaggressive” and “mature and calm.” It is also to be noted that petitioner’s psychiatric reports have consistently concluded that he has no mental health issues requiring treatment or supervision.
Recall that petitioner did participate in a program called “Hands of Peace,” which apparently encourages nonviolent methods of conflict resolution. The Board simply commented that this was “some time ago.” There is no reason to suppose that any lessons learned in “Hands of Peace” did not “take.”
The Board also mentioned that petitioner had not demonstrated sufficient “insight or remorse” and that the most recent psychological report was “not totally favorable.” On the first point, if this kind of “quantity” analysis were permitted to stand, no decision could ever be challenged. How much remorse is “enough?” By any standard, we think the Board’s concerns were unjustified.
Petitioner has never denied responsibility for the crime. In his 2001 psychological evaluation his remorse is described as “appear[ing] genuine.” Although it is difficult to analyze a cold record, his statements at the hearing read as sincere expressions of regret and resolve to make “amends” by changing himself as a human being to ensure that nothing similar would ever happen again. The fact that an inmate may not express himself in the precise terms desired by the Board (which can never be known to the inmate in advance) cannot be a basis for a finding of unsuitability.
As for petitioner’s “insight,” the 1998 psychiatric evaluation considered his insight to be “good.” The unexplained “downgrade” to “fair” in the 2001 report does not justify a finding of unsuitability. The fact is that petitioner has always shown ample insight into his particular offense. He was angry and frightened and wanted to teach Goodhue a lesson. This is not a situation, for example, in which an inmate has failed to make progress in understanding the social, economic, and psychological forces that led him into a life of gang violence. Petitioner was a law-abiding young family man who reacted foolishly and criminally to a perceived threat, and there is no indication that he does not understand this. Contrary to the People’s assertion, petitioner is not comparable in this respect to the inmate in Shaputis, who was reluctant to accept the facts of his criminal behavior and refused to recognize that he had an alcohol problem.
Finally, we deal with the Board’s concerns over the most recent psychiatric report. It is true that the evaluator does not expressly state an opinion on petitioner’s level of risk outside prison. However, the Board overlooked the evaluator’s comment that petitioner’s “[p]rognosis for community living appears to be good.” As we noted above, the 1998 evaluation rated petitioner as a less than average risk “in the free community” and reflected the opinion that this was likely to hold true in the future. There is simply no basis to conclude that petitioner’s level of risk has increased or that his “prognosis” has deteriorated. Again, where the clear tenor of an evaluation is favorable, it is unfair to penalize an inmate because the evaluator did not express his views in the precise language desired by the Board. We stress that the reports are consistent in the conclusion that petitioner has no mental health issues whatsoever that require treatment or supervision.
The evaluator did consider him to be a low risk “[w]ithin a controlled setting.”
As a last point, the Board noted that the district attorney of the county in which petitioner was tried opposed release. The prosecutor is entitled by statute to represent the interests of the People at a parole hearing and the Board is entitled to consider the comments. (§§ 3041.7, 3042, 3046, subd. (c).) However, where the district attorney is represented by a deputy with no personal knowledge of the case, and where the prosecuting attorney has recommended leniency, the pro forma opposition by the office is entitled to little weight. Somewhat similarly, although the Board could properly consider the opposition of the victims’ family (§ 3043, subd. (e)), where that opposition was not based on any facts unique to this case or outside the trial record, it could not have substantial weight.
In summary, there is no evidence that petitioner presents an “unreasonable risk” and is therefore unsuitable for parole. None of the specified factors tending to show unsuitability exists in this case, and all of the factors tending to show suitability were established (with the inapplicable exception for “battered woman syndrome”). Petitioner had no previous criminal history and his employment and personal history reflected conforming responsibility. While the killing was abhorrent and punishment was justified, the Board completely ignored the mitigating factor that the offense was committed under circumstances of unusual stress—a factor which was applied to mitigate the much more savage killing in Lawrence. Petitioner had been threatened by Goodhue and believed that his home had been burglarized and vandalized by the latter; even before that incident, he had expressed concern over his and his family’s safety. Significantly, this stress was not related to the pressures endemic in modern life, such as economic or relationship issues; rather, it involved a perceived serious threat to the safety of petitioner and his family of a type unlikely to be repeated.
Where an offense is prompted at least in part due to stress experienced by the actor, the fact that the stress—or at least a similar trigger—is unlikely to recur is a valid consideration in evaluating the inmate’s suitability for parole. (In re Scott (2005) 133 Cal.App.4th 573, 601.)
Petitioner was 19 at the time of the killing; he is now approaching middle age. His institutional history of responsibility, accomplishment, and conformity with the rules is virtually unblemished and is consistent with his preconviction behavior. He has no mental health issues. He has marketable skills and a supportive family prepared to welcome him into a law-abiding environment. There was no evidence predictive of undue risk or any predictable risk at all. The Board erred in finding petitioner not suitable for parole.
We concede the existence of the single “115” relating to pilferage, which could not be pinned on any particular inmate.
DISPOSITION
In our original opinion, we acknowledged that in reviewing a decision of the Board, courts “should be reluctant to direct a particular result.” (Ramirez, supra, 94 Cal.App.4th at p. 572.) Accordingly, we simply remanded the matter with directions to the Board to conduct a new hearing with specific guidelines.
The People now ask that we again send the matter back to the Board to reconsider whether petitioner “poses a current threat to public safety.” We recognize that this is usually the appropriate procedure where the case involves a decision by the Board denying parole. (Cf. In re Lee, supra, 143 Cal.App.4th at pp. 1414-1415; In re Elkins (2006) 144 Cal.App.4th 475, 503 [cases in which the Court of Appeal reverses a decision by the Governor, which reverses a Board grant of parole; in such a case the original grant and parole date may be reinstated].) However, petitioner has informed us that in January 2008—after the issuance of our original opinion and prior to the grant of review by the Supreme Court—the Board conducted another parole hearing and again found petitioner unsuitable for parole. We do not, of course, have the record of those proceedings and it is always possible that petitioner has committed some act of gross misbehavior that calls his suitability for parole into question. Absent this or something similar, however, we are not inclined to allow the Board to conduct yet another hearing at which it might again display an improper reluctance to follow our instructions. As this opinion makes clear, there is simply no evidence of unsuitability to be found and the Board cannot make such a finding on the record before us.
Accordingly, we will again grant the petition for writ of habeas corpus. The Board is directed to find petitioner suitable for parole unless, within 30 days of the finality of this opinion, the Board holds a hearing and determines that new, substantial, and objective evidence of petitioner’s conduct in prison subsequent to the 2005 hearing supports a finding that he poses an unreasonable risk to the public if released on parole.
In the interests of justice and to prevent frustration of the relief granted, this opinion shall be final as to this court five days after it is filed. (See In re Gaul (2009) 170 Cal.App.4th 20, 41.)
We concur: GAUT, Acting P. J., MILLER, J.
On appeal, we commented that because the prosecutor obtained instructions on first degree murder, it was reasonable to suppose that there was sufficient evidence of intent to support voluntary manslaughter. However, we found any error harmless because the evidence of “heat of passion” was inadequate. Absent the “intent” issue, the trial court might well have instructed on manslaughter; and defense counsel’s conversations with a number of the jurors after the trial strongly suggests that the jury might well have been eager for the opportunity to convict on a lesser charge. As it was, the only options were acquittal or a murder conviction.