Opinion
NOT TO BE PUBLISHED
Petition for writ of habeas corpus, Runston G. Maino, Judge, San Diego County Super. Ct. Nos. CRN16004, HCN0956
McDONALD, J.
In 1990, Robert Watson was sentenced to 17 years to life in prison after a jury found him guilty of second degree murder. Watson, now 53 years old, has remained in prison since 1990. After two unsuccessful parole hearings, the Board of Parole Hearings (BPH) again found him unsuitable for parole at his 2007 suitability hearing. The most recent denial, challenged by the petition for writ of habeas corpus, was based on BPH's conclusion that he posed an unreasonable risk of danger to public safety were he released from prison, even though all psychological evaluations have consistently concluded he posed a low risk of danger to the public should he be paroled.
Watson asserts the BPH's conclusion has no evidentiary support, and therefore violates his due process right to parole; the BPH's conclusion was improperly based primarily upon the circumstances of his offense and there is no evidence he poses a risk of danger to public safety in his current condition.
After the BPH made its ruling, the California Supreme Court issued In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241, which opinions refined the appropriate approach to assess whether some evidence supports the denial of parole. We conclude, under Lawrence and Shaputis, the BPH's decision is not supported by some evidence, and therefore grant Watson relief.
I
FACTS
A. The Commitment Offense
In 1989, Watson was living in an apartment with the victim, Mr. Tenney, and a Mr. McDaniel. The landlord decided to evict Watson (and served a 30 day notice to vacate on Watson) but planned to allow Tenney and McDaniel to remain as tenants. Tenney and McDaniel decided, because Watson was being evicted, they were allowed to use the garage. Accordingly, on July 1, 1989, they removed Watson's possessions from, and moved their cars into, the garage. When Watson returned home that day, an argument ensued. Watson reported the fight to Deputy Sheriff Cripe, claiming Tenney had struck him, but Cripe saw no evidence Watson had sustained any injury. Cripe returned the following day to investigate a complaint by Watson that his roommates had stolen and vandalized his possessions but Cripe saw no evidence of theft or vandalism. (People v. Watson (Jan. 6, 1992, D011908) [nonpub. opn.], p. 2-3.)
On July 3, 1989, Watson and Tenney had a confrontation that resulted in Tenney's death. As this court summarized the evidence in the appeal affirming Watson's conviction, "Tenney and Watson had begun arguing in the garage. Tenney came after Watson with a linoleum knife; Watson picked up a pipe wrench and hit Tenney once in his face and once across his head. Tenney followed Watson out of the garage to Watson's trailer. Watson opened the trailer door, reached in and got his rifle. He struck Tenney with the rifle, they further struggled, and he shot Tenney in the shoulder, killing him. Watson then dragged Tenney's body into a corral on the property and covered it with plywood." (People v. Watson, supra, D011908, p. 3.) Watson then left, but that evening told a friend of the murder and, after some discussion, turned himself in to police. (Id. at p. 4.) At trial, Watson claimed the rifle discharged accidentally when they were struggling, but forensic evidence did not confirm the shot was fired from close range. (Id. at pp. 3-4.)
Watson was 33 years old at the time of Tenney's death. A jury convicted him of second degree murder, with a true finding that he intentionally inflicted great bodily injury to Tenney, and Watson admitted he used a firearm in committing the offense. Watson was sentenced to a prison term of 17 years to life.
B. Watson's Performance in Prison
Watson has remained entirely discipline free during his time in prison. In addition to his unblemished discipline record, he completed vocational training in two different trades, became involved in Alcoholics Anonymous, Narcotics Anonymous and other self-help programs, and consistently received laudatory reviews from prison staff. The psychological reports prepared for his parole hearings have consistently been favorable, and the report prepared for the 2007 BPH hearing concluded his potential for violence was "equal if not slightly less than that of the average citizen" in the community.
C. Other Suitability Factors
Watson has marketable skills, realistic parole plans, available support from his family, and a job offer on release. Watson's single prior criminal record was a 1986 conviction for which he was sentenced to three years' probation along with community service and restitutionary fines. He has no criminal record of violence or juvenile adjudications. At the time of the offense, Watson was undergoing stress associated with the loss of his abode and conflict with the victim.
The record is unclear whether the prior offense was a misdemeanor or a felony.
II
HISTORY OF PROCEEDINGS
A. The Prior BPH Proceedings
Watson's minimum eligible parole date was in 2000. Although Watson apparently had two other hearings before the BPH, it found him unsuitable for parole at each of the prior hearings.
At his 2007 parole hearing, the BPH again concluded Watson was unsuitable for parole. The BPH explained that its paramount consideration was the circumstances of the offense, but also cited his criminal history as demonstrating an "escalating pattern of criminal conduct," and his "unstable and tumultuous relationships" with others, to support its assessment that Watson was currently dangerous to public safety.
The BPH apparently disregarded the contrary conclusions contained in the psychological report prepared for Watson's 2007 parole hearing that concluded Watson posed a low risk of danger, because the BPH requested another psychological report be performed and directed the psychologist to "consider the record of [Watson's] prior criminality, [his] social history in its totality, and use those as sources... to get a better balance of what exactly is true and not true." However, the prior psychological exams (which clearly did consider the facts the BPH perceived were inadequately addressed) had reached the same conclusions as to Watson's dangerousness. Moreover, the 2007 examiner expressly noted Watson's central file was examined, and the examiner adverted to Watson's social and criminal history when describing how he reached his opinion on Watson's current dangerousness.
B. The Habeas Proceedings
Watson petitioned the San Diego County Superior Court for a writ of habeas corpus, alleging the BPH's decision violated his due process and equal protection rights because the unsuitability determination was not supported by the evidence, was arbitrary and capricious, and was incorrectly based solely on the offense and other immutable factors. The trial court denied the writ, concluding the BPH's decision was supported by some evidence.
Watson then petitioned this court for a writ of habeas corpus, and we issued an order to show cause. Watson's petition asserts the BPH's decision to deny parole, based on its conclusion that he posed an unreasonable risk of danger to public safety, violated due process.
III
LEGAL STANDARDS
A. The Parole Decision
The decision whether to grant parole is a subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a number of factors, some objective, identified in Penal Code section 3041 and the BPH's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) In making the suitability determination, the BPH must consider "[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b); hereafter, reference to § 2042 refers to the regulations), including the nature of the commitment offense; behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude toward the crime; and parole plans. (§ 2402, subd. (b).) The circumstances that tend to show unsuitability for parole include the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has a history of unstable or tumultuous relationships with others; (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. (§ 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (Id. at subd. (b).)
Factors supporting the finding that the crime was committed "in an especially heinous, atrocious or cruel manner" (§ 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.
Circumstances tending to show suitability for parole include that 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 or her 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 on release; and (9) has engaged in institutional activities that evidence an enhanced ability to function within the law on release. (§ 2402, subd. (d).)
These criteria 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 [BPH]." (Rosenkrantz, supra, 29 Cal.4th at p. 679; § 2402, subds. (c), (d).) Thus, the endeavor is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, at p. 655.) Because parole unsuitability factors need only be found by a preponderance of the evidence, the BPH may consider facts other than those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.)
B. Standard for Judicial Review of Parole Decisions
In Rosenkrantz, the California Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch. The court first held that "the judicial branch is authorized to review the factual basis of a decision of the [BPH] denying parole... to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the [BPH] supports the decision to deny parole, based on the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
In Lawrence, the Supreme Court noted its decisions in Rosenkrantz and In re Dannenburg (2005) 34 Cal.4th 1061, and specifically Rosenkrantz's characterization of the "some evidence" standard as extremely deferential and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, 29 Cal.4th at p. 667), had generated confusion and disagreement among the lower courts "regarding the precise contours of the 'some evidence' standard." (Lawrence, supra, 44 Cal.4th at p. 1206.) Lawrence explained some courts interpreted Rosenkrantz as limiting the judiciary to reviewing whether "some evidence" exists to support an unsuitability factor cited by the BPH, while other courts interpreted Rosenkrantz as requiring the judiciary to instead review whether "some evidence" exists to support "the core determination required by the statute before parole can be denied--that an inmate's release will unreasonably endanger public safety." (Lawrence, supra, 44 Cal.4th at pp. 1207-1209.)
The Lawrence court, recognizing that the legislative scheme contemplates "an assessment of an inmate's current dangerousness" (Lawrence, supra, 44 Cal.4th at p. 1205), resolved the conflict among the lower courts by clarifying that the analysis required when reviewing a decision relating to a prisoner's current suitability for parole is "whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212.) Lawrence clarified that the standard for judicial review, although "unquestionably deferential, [is] certainly... not toothless, and '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, at p. 1210, italics added.) Indeed, it is Lawrence's numerous iterations of the requirement of a "rational nexus" between the facts underlying the unsuitability factor and the conclusion of current dangerousness that appear to form the crux of, and provide the teeth for, the standards adopted in Lawrence to clarify and illuminate "the precise contours of the 'some evidence' standard." (Id. at p. 1206.)
The implementation of a "rational nexus" standard finds confirmation in Lawrence's numerous references to that standard or to functional equivalents of that standard. For example, in at least two other places in the opinion, Lawrence reiterated the requirement that there be a "rational nexus" between the facts relied on by the Governor and the conclusion of current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1213 [suggesting court applied inappropriate standard when it affirmed denial of parole "without specifically considering whether there existed a rational nexus between those egregious circumstances and the ultimate conclusion that the inmate remained a threat to public safety"] & p. 1227 ["mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required 'modicum of evidence' of unsuitability"].)
Additionally, other critical passages in Lawrence reinforce the requirement of some rational connection between the facts relied on and the conclusion of dangerousness. (See, e.g., Lawrence, supra, 44 Cal.4th at p. 1211 ["If simply pointing to the existence of an unsuitability factor and then acknowledging the existence of suitability factors were sufficient to establish that a parole decision was not arbitrary, and that it was supported by 'some evidence,' a reviewing court would be forced to affirm any denial-of-parole decision linked to the mere existence of certain facts in the record, even if those facts have no bearing on the paramount statutory inquiry"], italics added.)
Indeed, Lawrence's "rational nexus" requirement is echoed by its repeated references to a slightly different variant of that concept: whether the factor relied on to deny parole is probative of current dangerousness. (See, e.g., Lawrence, supra, 44 Cal.4th at p. 1212 [factors will "establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger"], p. 1214 ["the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety"], & p. 1221 [the "relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record"].) Because evidence is "probative" only when it has some "tendency in reason to prove" the proposition for which it is offered (see, e.g. People v. Hill (1992) 3 Cal.App.4th 16, 29, disapproved on other grounds by People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5), the Lawrence court appears to have employed the terms "rational nexus" and "probative" interchangeably.
After clarifying the applicable standard of review, Lawrence then turned to and specifically addressed how one "unsuitability" factor--whether the inmate's commitment offense was done in a particularly heinous, atrocious, or cruel manner--can affect the parole suitability determination, and whether the existence of some evidence supporting the finding that the offense was particularly heinous, atrocious, or done in a cruel manner is alone sufficient to deny parole. Lawrence concluded that when there has been a lengthy passage of time, reliance on the nature of the commitment offense as a basis to deny parole is permissible only when there are other facts in the record, such as the prisoner's history before and after the offense or the prisoner's current demeanor and mental state, that provide a rational nexus for concluding an offense of ancient vintage continues to be predictive of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221.)
IV
ANALYSIS
The People do not dispute that the evidence on all relevant suitability factors, as well as the only evidence on most of the unsuitability factors, uniformly militated in favor of finding Watson suitable for parole. Watson's latest psychological evaluation showed he no longer sought to minimize his culpability by claiming the rifle discharged accidentally; instead, the psychologist reported that Watson was "on the verge of tears" when discussing the killing, and that Watson felt "guilty for his actions," "shared extensive expressions of remorse," and "took full responsibility and does not appear to rationalize or minimize his role." In addition to this evidence of remorse (§ 2402, subd. (d)(3)), all of the other suitability factors favored a finding that Watson was suitable for parole: he has made realistic plans for release and developed marketable skills that can be put to use upon release; he engaged in institutional activities that indicate an enhanced ability to function within the law upon release; he had a stable social history; and he had no record of violent crime committed while a juvenile or any other significant history of violent crime. (§ 2402, subd. (d).) A careful consideration of all the relevant factors led the psychological evaluator to conclude Watson's "propensity for violence would be equal [to] if not slightly less than that of the average citizen...."
In this evidentiary context, the BPH nevertheless found Watson was unsuitable based primarily on its conclusion that the commitment crime showed Watson remained a danger to society if released on parole. Because we are charged with the obligation to ensure this decision comports with the requirements of due process of law, and we can only discharge that obligation if we are satisfied there is some evidence in the record before the BPH providing a rational nexus between the evidence and the conclusion of current dangerousness (Lawrence, supra, 44 Cal.4th at pp. 1211-1212), we examine the articulated grounds of the BPH to determine if some evidence supports its decision.
In the present case, paraphrasing Lawrence, "[a]lthough the [BPH] alluded to other possible grounds for denying petitioner's parole, [it] expressly relied... upon the nature of petitioner's commitment offense to justify petitioner's continued confinement, because [the BPH ruled that] 'the gravity [of Watson's crime is] alone... sufficient... to conclude presently that [Watson's] release from prison would pose an unreasonable public safety risk.' " (Lawrence, supra, 44 Cal.4th at p. 1222.) We believe the BPH's express declaration that the circumstances of Watson's crime constituted the paramount basis for its finding regarding current dangerousness would justify limiting our review to that factor. However, because the BPH alluded to two other considerations in its decision, and again paraphrasing Lawrence, "[b]efore evaluating the [BPH's] reliance upon the gravity of the commitment offense, we first consider [its] discussion of facts not related to the circumstances of the commitment offense" (ibid.) mentioned in the decision denying parole to Watson.
History of Unstable or Tumultuous Relationships
The People argue the BPH properly relied on Watson's history of unstable or tumultuous relationships with others, a factor the BPH may consider (§ 2402, subd. (c)(3)), to conclude Watson posed a current danger to society. This reliance is unpersuasive for several reasons. First, the only evidence of any tumultuous relationships with others (apart from the victim) is that Watson's father was an alcoholic and abusive toward Watson and Watson's mother. Watson's victimization by an unstable person is not evidence Watson is unstable, and the only evidence of Watson's relationships with others was that he did maintain stable social relationships with others: he was successfully employed for many years prior to incarceration; he maintained stable relationships with fellow inmates and prison staff while incarcerated; and he retained strong and ongoing ties with his extended family during his incarceration.
The BPH also cited, as evidence of Watson's instability, that he had been dishonorably discharged from the Navy in 1979 for being AWOL, and had engaged in destructive behavior in 1986 that led to his conviction for arson. The People's argument--that these historical facts are within the ambit of the factor contemplated by section 2402, subdivision (c)(3)-- reveal independent inadequacies in the BPH's ultimate determination. For example, the fact Watson was AWOL cannot be divorced from the only evidence as to why he was AWOL, which was to remain at his mother's bedside when she appeared to be critically ill. Watson's willingness to remain to support a family member, notwithstanding the personal consequences to himself, appears to be the antithesis of an unstable or tumultuous relationship with another person.
The other historical fact--that Watson had engaged in a single criminal act prior to the commitment offense--while potentially relevant to his criminal history under section 2402, subdivision (b)(2), seems irrelevant to whether he maintained stable social relationships with others. (See In re Gaul (2009) 170 Cal.App.4th 20, 37 [fact that prisoner moved frequently during a seven-month period in 1989 and was in arrears in child support is not evidence he had " 'history of unstable or tumultuous relationships with others'-the definition of 'unstable social history' in the regulations governing the Board's suitability determination"].) More importantly, we perceive no conceivable, rational relationship between the long-ago events described by the BPH and an assessment of Watson's current dangerousness, especially considering his productive and discipline-free years of stability in prison. (See Lawrence, supra, 44 Cal.4th at pp. 1205-1206 ["a parole release decision authorizes the [BPH] to identify and weigh only the factors relevant to predicting 'whether the inmate will be able to live in society without committing additional antisocial acts' "].) Thus, to the extent the BPH considered Watson's destructive act nearly 25 years ago (and his AWOL status over 30 years earlier) as evidence of his current dangerousness, the BPH appears to have relied on "immutable conduct" of ancient vintage to assess current dangerousness that Lawrence expressly cautioned was error absent some rational nexus suggesting those acts remain predictive of current dangerousness.
Most importantly, as Lawrence repeatedly emphasized, there must be some rational nexus between the facts found and the conclusion that Watson would pose a danger to society if released. We cannot perceive any rational nexus between the fact that Watson was AWOL over 30 years ago, or that he had a single nonviolent conviction, and the conclusion that Watson is a danger to society. Because Watson's entire postconviction history reflects an unblemished ability to maintain stable interpersonal relationships, the historical facts alluded to by the BPH are not "probative to the determination that [he] remains a danger" if released on parole. (Lawrence, supra, 44 Cal.4th at p. 1212.) We conclude, as did the Lawrence court, that this noncommitment offense factor adverted to by the BPH lacks the requisite rational nexus to the conclusion of current dangerousness.
Prior Criminal History
The People assert the BPH properly relied on Watson's criminal history of escalating offenses. A previous record of violence is an express unsuitability consideration (§ 2402, subd. (c)(2)), and conversely, the absence of any significant history of violent crime or of violent crime committed while a juvenile are express suitability considerations (§ 2402, subds. (d)(1) & (d)(6)). However, it is undisputed that application of these expressly enumerated considerations militates in favor of suitability, because Watson has no prior record of violence.
Instead, the People argue the fact that Watson had a single conviction, and thereafter committed the commitment offense, shows an escalating pattern of criminal behavior from which the BPH could conclude Watson is currently dangerous. We cannot conclude a lone nonviolent conviction predating the commitment offense permits the BPH to conclude a prisoner is a current danger to society because of escalating criminal behavior. First, if that argument were given currency, any prior conviction could foreclose parole in a life term (because the subsequent commitment offense would necessarily represent an "escalating pattern of criminal behavior"), in disregard of the legislatively prescribed criteria that contemplates consideration of violent prior offenses.
More importantly, we are convinced the reasoning of Lawrence does not permit parole to be denied merely based on isolated historical events. In Lawrence, the court jettisoned the prior "minimum elements" inquiry, which had permitted parole to be denied based solely on the historical event of an isolated criminal act, reasoning that the minimum elements test relied solely on events of ancient vintage "regardless of whether other evidence in the record clearly attenuates the predictive value of the offense... many years after [its] commission." (Lawrence, supra, 44 Cal.4th at p. 1218.) Lawrence, after citing with approval several cases that recognized the predictive value of these historical relics recedes over time, reasoned that:
Among the cases cited by Lawrence was In re Roderick (2007) 154 Cal.App.4th 242, 277, in which the court ruled (although the record showed the petitioner had a long criminal history) the Board was required to hold a new hearing because of the inmate's age and "the immutability of [his] past criminal history and its diminishing predictive value for future conduct." Lawrence also cited with approval In re Elkins (2006) 144 Cal.App.4th 475, 498-499 as "recognizing that the predictive value of the commitment offense may be very questionable after a long period of time, and concluding that '[g]iven the lapse of 26 years and the exemplary rehabilitative gains made by [the petitioner] over that time, continued reliance on these aggravating facts of the crime no longer amount to "some evidence" supporting denial of parole' " (Lawrence, supra, 44 Cal.4th at pp. 1218-1219) and In re Lee (2006) 143 Cal.App.4th 1400, 1412 as recognizing that "the petitioner's crimes had 'little, if any, predictive value for future criminality,' because the crimes committed 20 years ago had 'lost much of their usefulness in [predicting] the likelihood of future offenses.' " (Lawrence, at p. 1219.)
An evaluation of the circumstances of the crime in isolation allows a fact finder or reviewing court to determine whether a commitment offense was particularly egregious... and to conclude that the prisoner was a danger to the public at or around the time of his or her commission of the offense. Absent affirmative evidence of a change in the prisoner's demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner's dangerousness for some time in the future. At some point, however, when there is affirmative evidence, based upon the prisoner's subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner's current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1219.)
The rationale of Lawrence--that historical events increasingly lack predictive value of current dangerousness as time recedes and intervening subsequent behavior demonstrates the prior violence to be aberrations--applies with even greater to force to an isolated act of even greater antiquity not involving violence. We conclude, both under the relevant regulations and under Lawrence's rationale, there is no rational nexus between the fact Watson suffered a single conviction involving nonviolent conduct and the BPH's conclusion of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1211-1212.)
Circumstances of the Offense
The paramount ground for finding Watson posed an unreasonable risk of danger to society was the BPH's finding that the commitment offense was especially cruel and callous because it was committed in a dispassionate manner and was for a trivial reason.
First, we have substantial doubt there is any evidence to support these factual determinations. This court previously described the evidence regarding the circumstances of the crime suggesting the victim was killed during an altercation involving some mutual combat. Under section 2402, subdivision (c)(1)(B), the BPH could find an especially cruel or callous murder when there is evidence the murder was "carried out in a dispassionate and calculated manner, such as an execution-style murder, " but there is no evidence the victim was executed or that Watson killed the victim in a calculated manner; instead, the victim suffered injuries consistent with an initial altercation and was killed by a single shot to the shoulder apparently not fired from close range. (People v. Watson, supra, D011908, at pp. 3-4.) Similarly, under section 2402, subdivision (c)(1)(E), the BPH could find an especially cruel or callous murder when there is evidence the "motive for the crime is inexplicable or very trivial in relation to the offense," but the only evidence is that Watson killed the victim during an altercation involving anger and mutual combat. The court in In re Rico (2009) 171 Cal.App.4th 659, rejecting a similar finding of a "trivial motive" by the BPH, stated:
"Nor can the motive for the crime be fairly characterized as trivial or inexplicable. 'An "inexplicable" motive... is one that is unexplained or unintelligible, as where the commitment offense does not appear to be related to the conduct of the victim and has no other discernible purpose. A person whose motive for a criminal act cannot be explained or is unintelligible is therefore unusually unpredictable and dangerous.' [Quoting In re Scott (2004) 119 Cal.App.4th 871, 893.] Rico's motive, while unlawful and wrong, was not inexplicable; the shooting was apparently committed in retaliation for the rival gang's shooting at Rico's car. Likewise, the motive cannot fairly be characterized as 'trivial' in relationship to the offense. ' "Given the high value our society places upon life, there is no motive for unlawfully taking the life of another human being that could not reasonably be deemed 'trivial.' " ' [Quoting In re Barker (2007) 151 Cal.App.4th 346, 374.] Shooting in retaliation for being shot at is indisputably wrong and unlawful, but on the facts of this case it cannot fairly be characterized as trivial." (In re Rico, at p. 682.)
Similarly, Watson's motive for killing the victim--retaliation and anger--is indisputably wrong and lacking legal justification but "cannot fairly be characterized as trivial." (Ibid.)
However, even assuming the BPH could have ignored the facts as found by this court, and there was a modicum of evidence that the commitment offense was more heinous, atrocious, or cruel than the minimum elements for second degree murder, Lawrence cautioned:
"As noted above,... few murders do not involve attendant facts that support such a conclusion. As further noted above, the mere existence of a regulatory factor establishing unsuitability does not necessarily constitute 'some evidence' that the parolee's release unreasonably endangers public safety. [Citation.] Accordingly, even as we acknowledge that some evidence in the record supports the... conclusion regarding the gravity of the commitment offense, we conclude there does not exist some evidence supporting the conclusion that petitioner continues to pose a threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1225.)
Here, as in Lawrence, all of the factors listed in the regulations suggesting suitability for release on parole (except the "age" and the "battered spouse" factors) appear to militate in favor of suitability. As in Lawrence, Watson's long-standing involvement in self-help, vocational, and educational programs, his insight into the circumstances of the offense, his acceptance of responsibility and remorse, and his realistic parole plans favored parole. As in Lawrence, Watson had no prior criminal record of violent crimes or assaultive behavior or any juvenile record, and we have concluded there was no evidence of unstable or tumultuous relations with others. (Lawrence, supra, 44 Cal.4th at p. 1225.) As in Lawrence, Watson's psychological examinations had been uniformly positive for many years, finding him psychologically sound and presenting no unusual danger to public safety should he be released. As in Lawrence, Watson had been free of any misconduct for nearly two decades of incarceration, and exhibited exemplary efforts toward rehabilitative programming. Finally, as in Lawrence, the only statutory factor relevant to an inmate's unsuitability for parole even arguably supported by the evidence is the commitment offense. (Id. at pp. 1225-1226.)
Here, a significant period of time (nearly 20 years) had passed between the crime and the parole hearing. The evidence is also uncontroverted that, during these two decades, Watson committed no other violent offense, either before being incarcerated or during his 19 years of incarceration. Indeed, during his time in prison, he did not commit a single infraction of prison rules that might have suggested any lingering inability to conform his behavior to the requirements of society. Instead, there is uncontroverted evidence of Watson's rehabilitative efforts while incarcerated.
We conclude that, given the lengthy passage of time and the gains made by Watson in prison, his 1989 crime does not provide some evidence to support the conclusion he remains a danger today, the paramount basis articulated in the BPH's decision for concluding Watson remains dangerous to society. Under these circumstances, we adhere to our Supreme Court's instruction in cases like the present one that, although:
"[o]ur deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. [Citation.] This does not mean... that evidence suggesting a commitment offense was 'especially heinous' or 'particularly egregious' will eternally provide adequate support for a decision that an inmate is unsuitable for parole. As set forth above, the Legislature specifically contemplated both that the Board 'shall normally' grant a parole date, and that the passage of time and the related changes in a prisoner's mental attitude and demeanor are probative to the determination of current dangerousness. When, as here, all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner's rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required 'modicum of evidence' of unsuitability. [¶] Accordingly, under the circumstances of the present case--in which the record is replete with evidence establishing petitioner's rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that [he] continues to pose a threat to public safety--petitioner's due process and statutory rights were violated by the Governor's reliance upon the immutable and unchangeable circumstances of [his] commitment offense in reversing the Board's decision to grant parole." (Lawrence, supra, 44 Cal.4th at pp. 1226-1227.)
Conclusion
We conclude, under the standards adopted by Lawrence and the application of those standards to facts substantively indistinguishable from the facts in Lawrence, the BPH's decision to deny Watson parole is not supported by some evidence and therefore violated Watson's due process rights.
V
THE APPROPRIATE REMEDY
The People assert that, even if the BPH's decision lacks evidentiary support, the appropriate remedy is to remand for another hearing, rather than to order Watson released on parole, to consider other evidence that might support a finding Watson was unsuitable for parole. However, it appears from the record that the BPH considered Watson's entire file, and fully articulated all of the reasons supporting its conclusion Watson was unsuitable for parole in compliance with Penal Code section 3041.5, subdivisions (a)(4) and (b)(2), and we have concluded those reasons do not support the ruling.
In In re Gaul, supra, 170 Cal.App.4th 20, the court confronted an identical question of the appropriate remedy. The Gaul court noted that, in Rosenkrantz, supra, 29 Cal.4th 616, our Supreme Court stated "[i]f the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Rosenkrantz, at p. 658; Gaul, at p. 33.) However, Gaul noted that when a reviewing court concludes no evidence supporting current dangerousness exists, "vacating the denial of parole and directing the Board to conduct a new hearing on the same record would be a meaningless exercise." (Gaul, at p. 39; accord, In re Smith (2003) 109 Cal.App.4th 489, 507 [affirming order granting petition for writ of habeas corpus and declining to remand to Governor because it "would amount to an idle act"]; In re Gray (2007) 151 Cal.App.4th 379, 411 [same].) Indeed, Gaul noted "after granting Sandra Lawrence's petition for writ of habeas corpus, this court ordered 'she be released forthwith,' notwithstanding the Attorney General's argument the matter should be returned to the Governor to permit him to determine whether some other basis existed for denying Lawrence parole. The Supreme Court affirmed 'the judgment of the Court of Appeal.' (Lawrence, supra, 44 Cal.4th at p. 1229.)
Although Lawrence involved the denial of parole by the Governor, not the Board itself, we understand the Supreme Court's affirmance of our judgment to mean, when the reviewing court has determined there is no evidence in the record that would support the denial of parole, there is no reason to order the Board to conduct any further hearing on the matter, at least in the absence of some new evidence about the inmate's post-hearing conduct. [Citations.]" (In re Gaul, supra, 170 Cal.App.4th at p. 40.) Although Gaul construed the analysis and disposition in Lawrence as permitting an order requiring the BPH to immediately grant parole to the prisoner, Gaul also "acknowledge[d] the theoretical possibility--however unlikely it may be--that Gaul has engaged in conduct since the [prior] parole hearing that would suggest he is no longer suitable for parole. Accordingly, rather than simply order Gaul released forthwith, as we did in Lawrence, we direct the Board to find Gaul suitable for parole unless, within 30 days of the finality of this decision, the Board holds a hearing and determines that new evidence of Gaul's conduct in prison subsequent to his [prior] parole hearing supports a determination he currently poses an unreasonable risk of a danger to society if released on parole." (Ibid.)
We agree with Gaul that, because nearly two years have elapsed since Watson was denied parole, it is theoretically possible some intervening event has transpired since the prior parole hearing that might support a finding Watson is no longer suitable for parole. Accordingly, we remand for the limited purpose of providing the BPH the opportunity to determine whether events since July 2007 support an unsuitability determination.
DISPOSITION
The relief sought in the petition for writ of habeas corpus is granted. The BPH is directed to find Watson suitable for parole unless, within 15 days of the finality of this decision, the BPH schedules a hearing that shall be scheduled for a date not more than 120 days after the finality of this decision to permit compliance with Penal Code section 3043, subdivision (a), for the limited purpose of determining whether new evidence of Watson's conduct in prison subsequent to his July 2007 parole hearing supports a determination he currently poses an unreasonable risk of a danger to society if released on parole. In the interests of justice and to prevent frustration of the relief granted, this decision shall be final as to this court 10 days after it is filed. (In re Gaul, supra, 170 Cal.App.4th at p. 41.)
WE CONCUR: McCONNELL, P. J., BENKE, J.