Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. HCN1129
McINTYRE, J.
Original proceeding on a petition for writ of habeas corpus. Relief granted.
Robert Watson has been incarcerated for over 20 years on a 17 years-to-life sentence for the second degree murder of Dale Tenney. After two unsuccessful parole hearings, the Board of Parole Hearings (the Board) again found him unsuitable for parole at his 2007 suitability hearing. Watson challenged that denial by a petition for habeas corpus. In 2009, we concluded that the Board's decision was not supported by some evidence, and therefore granted Watson relief. (In re Watson (June 9, 2009, D053205) [nonpub. opn.] (the 2009 Opinion).)
On remand to the Board, it found Watson suitable for parole, but noted that it felt compelled to do so by the 2009 Opinion. Governor Arnold Schwarzenegger reversed the Board's decision. Watson challenges the Governor's conclusion, contending: (1) it is not supported by "some evidence" in the record as required under In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis); (2) the Governor's practice of rarely granting parole deprived him of due process; and (3) his parole period should be reduced by the extra time he has spent in custody because of the Governor's unsupported reversal of the Board's parole grant.
We conclude that the evidence does not support the Governor's decision and grant relief; accordingly, we do not address Watson's due process argument. We reject Watson's argument that he is entitled to a reduction in his parole.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Commitment Offense
We take the facts from our unpublished opinion in People v. Watson (Jan. 6, 1992, D011908) [nonpub. opn.] (the 1992 Opinion).
In 1989, Watson operated a recycling business out of a rented house he shared with Tenney and William Edward 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. Because Watson was being evicted, Tenney and McDaniel removed Watson's possessions from, and moved their cars into, the garage. Watson argued with his roommates about their actions, reported the fight to a sheriff's deputy, and claimed that Tenney had struck him. The deputy, however, saw no evidence of injury and Watson decided not to press charges. The next day, the deputy investigated a complaint by Watson that his roommates had stolen and vandalized his possessions, but the deputy saw no evidence of theft or vandalism. (The 1992 Opinion, at pp. 2-3.)
The following day, 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." (The 1992 Opinion, 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.) Although Watson claimed that he and Tenney struggled over the rifle, forensic evidence could not confirm that the shot had been fired from close range. (Id. at p. 3, fn. 2.)
Tenney's skull showed a two and one-half inch tear on the right temple with a skull fracture underneath, consistent with being hit with a pipe wrench or the trigger guard of a rifle. He had a smaller laceration on the left temple and fracture at the base of the skull, consistent with being jammed with the barrel of a rifle. Tenney also suffered a chin laceration and had three broken teeth. (The 1992 Opinion, at p. 3, fn. 2.)
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 received a prison term of 17 years to life.
B. Watson's Pre-Conviction History
Watson has no juvenile record; however, he was previously convicted of arson. He described his father as an abusive alcoholic, but claimed that he and his father became good friends after his father "cleaned-up his act." Watson obtained a GED while in the Navy. After six years, Watson received a dishonorable discharge after being absent without leave to take care of his sick mother. He worked for many years as a trucker, and did hauling and recycling jobs.
C. Watson's Postconviction Conduct
Since his incarceration in 1990, Watson has been completely discipline free. He has vocational training as a forklift operator, roofer, and offset printer. While incarcerated he worked as a maintenance clerk, library clerk and in the sign department. Over the years, Watson has received numerous laudatory chronos, with supervisors routinely describing him as "respectful" and a "good worker." At least four correctional officers recommended that Watson be paroled.
After observing Watson for a year, one correctional officer stated in 2009 that: Watson is "an extremely intelligent, polite and well-mannered individual. He has always conducted himself in a respectful manner towards staff and inmates alike.... [H]e demonstrates his rehabilitation in how he conducts himself each and every day. I have no doubt in my mind that inmate Watson will be a responsible and productive member of society. I believe that he has sincerely changed for the better, and that he will become a law-abiding citizen upon his release."
Watson has participated in many self-help and therapy programs, including: Alternatives to Violence, Anger Management, AA/NA, Christian Chapel Ministry, Veterans Group, Literacy Tutor Program volunteer, and Insight Workshop. The instructor for the Insight Workshop stated that "Watson fully applied himself to all of the assignments and discussions. He is committed to living out the rest of his life crime-free and as a productive member of society."
D. The Present Proceedings
At Watson's 2007 parole hearing, the Board concluded Watson was unsuitable for parole primarily based on the circumstances of the offense, stating the crime went "beyond the minimum threshold required for the conviction of a second degree murder." However, it 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. Watson challenged that denial by a petition for habeas corpus. In 2009, we concluded that under the standards articulated in Lawrence and Shaputis, the Board's decision was not supported by some evidence, and therefore granted Watson relief. (The 2009 Opinion, at p. 2.) We directed the Board to find Watson suitable for parole unless new evidence of Watson's conduct in prison subsequent to his July 2007 parole hearing supported a determination he currently posed an unreasonable risk of a danger to society if released on parole. (Id. at pp. 24-25.)
On remand, the Board noted that it felt compelled by the 2009 Opinion to find Watson suitable for parole. At that hearing, Watson declined to discuss the facts of the commitment offense. This caused the Board to comment that Watson's refusal "reflected poorly" on him and that it did not see any signs of remorse.
The Governor reversed the Board's parole grant, citing the commitment offense, Watson's lack of insight, his failure to accept full responsibility for his behavior, and a rating by the 2009 evaluator that Watson ranked in the "low to moderate risk" for violence if released. The San Diego County Superior Court denied Watson's petition for a writ of habeas corpus. Watson filed a writ petition in this court, and we issued an order to show cause why the relief requested should not be granted.
DISCUSSION
A. General Legal Principles
An inmate is entitled to be released on parole if the inmate does not currently pose a danger to public safety. (Lawrence, supra, 44 Cal.4th at p. 1191.) A parole decision is an inherently subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that is guided by a number of factors identified in Penal Code section 3041 and the Board's regulations (Cal. Code Regs., tit. 15, §§ 2281, 2402). In making the suitability determination, the Board must consider "[a]ll relevant, reliable information, " such as the nature of the commitment offense including behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude towards the crime; and parole plans. (Cal. Code Regs., tit. 15, § 2402, subd. (b).) Circumstances tending to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
The Governor has the authority to review the Board's decision to parole an inmate convicted of murder. (Cal. Const., art. V, § 8(b); Pen. Code, § 3041.2.) The Governor's decision to reverse a grant of parole by the Board is governed by the same factors that guide the Board's decision (Cal. Const., art. V, § 8(b)), and is based on "materials provided by the parole authority." (Pen. Code, § 3041.2, subd. (a).) The judicial branch is authorized to review the factual basis of the Governor's decision. (Rosenkrantz, supra, 29 Cal.4th at p. 667.) Although due process requires that the Governor's decision be supported by "some evidence" in the record, only a modicum of evidence is required and the Governor has the authority to resolve any conflicts in the evidence and to decide the weight to be given the evidence. (Id. at p. 677.)
In determining whether "some evidence" supports the Governor's determination, we focus on whether there is "some evidence" of the core statutory determination that the inmate remains a current threat to public safety, not merely whether "some evidence" supports the Governor's characterization of the facts in the record. (Shaputis, supra, 44 Cal.4th at p. 1254.) Where one or more factors are relied upon to support a denial of parole, we must determine whether those factors, when considered in light of the other factors in the record, are predictive of the current danger posed by the inmate. (Id. at pp. 1254-1255.)
B. Analysis
1. Acceptance of Responsibility and Lack of Insight into Crime
An inmate cannot be required to discuss the circumstances of the commitment offense or to admit guilt in order to be found suitable for parole. (Pen. Code, § 5011; Cal. Code Regs., tit. 15, § 2236.) If an inmate chooses to discuss the circumstances of the commitment offense, or the inmate's responsibility and remorse for an offense, the Board and Governor may consider the inmate's remarks to the extent the remarks are relevant to the inmate's parole suitability. (Cal. Code Regs., tit. 15, § 2402, subd. (b) ["All relevant, reliable information available to the panel shall be considered in determining suitability for parole."].)
"Lack of insight" is a very subjective factor, which is not listed as a parole suitability factor in the governing regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) Nonetheless, evidence that an inmate has failed to gain insight into his conduct is indicative of his current attitude to the crime and is a factor to consider in determining suitability for parole. (Shaputis, supra, 44 Cal.4th at p. 1246; Cal. Code Regs., tit. 15,
§ 2402, subds. (b) [inmate's present attitude toward crime a relevant consideration], (d)(3) [petitioner's understanding of nature and magnitude of offense a factor to consider in determining suitability].) Similarly, the acceptance of responsibility is not listed in the regulatory factors the Board is to consider in determining parole suitability (see Cal. Code Regs., tit. 15, §§ 2281, 2402); however, it is closely related to showing signs of remorse, one of the factors tending to show suitability for parole. (Id. at §§ 2281(d)(3) [relevant consideration is whether "the prisoner has given indications that he understands the nature and magnitude of the offense"], 2402(d)(3).)
In reversing the Board's decision to release Watson on parole, the Governor stated: "I am also concerned that, although Watson says he accepts responsibility and despite his participation in self-help and therapy programs, he has still failed to obtain insight into the life offense or accept full responsibility for his behavior. Over the years, Watson has consistently claimed that he acted in self-defense. Additionally, he has maintained that he felt threatened by Tenney." The Governor then recited statements that Watson made about the commitment offense over the years, the 2009 Board's statement that it did not see any signs of remorse, and the 2009 evaluator's opinion that Watson could "decrease his risk of violent reoffense by developing insight into his history of violent behavior, anger control problems, and personal abuse history." The Governor concluded that: "Watson's efforts to characterize his actions as self-defense constitute a refusal to accept responsibility for Tenney's murder."
The official account of the fatal altercation is simple: Tenney attacked Watson with a knife, Watson hit Tenney once in his face and once across his head with a pipe wrench, Tenney followed Watson to Watson's trailer, Watson got his rifle from the trailer and struck Tenney with the rifle, they further struggled, and he shot Tenney in the shoulder, killing him. (The 1992 Opinion, at p. 3.) To determine whether Watson's description of the fatal encounter has changed over time we take judicial notice of the appellate court record in the 1992 Opinion. (Evid. Code, § 452, subd. (d).)
Watson's defense at trial was self-defense. Based on the guilty verdict, however, the jury rejected this defense. At his 1994 and 2004 evaluations, Watson continued to claim self-defense. The 2004 evaluator concluded that "Watson has not fully accepted responsibility for his actions."
At his 2007 evaluation, however, Watson did not claim self-defense. Rather, the evaluator noted that Watson "was sincere and emotional and on the verge of tears at times while telling his story." Watson stated: "I feel terrible. I affected everybody in his family. … I allowed the heat of the moment to rule over me. In a split second I made the wrong decision. I am a changed person now. I do not know what to do to change the past but I am willing to do whatever it takes to pay for my crime." The evaluator concluded that Watson "appeared to feel guilty for his actions and can empathize at an emotional level with the harm done to the victim and the victim's family. When asked he shared extensive expressions of remorse. He took full responsibility and does not appear to rationalize or minimize his role. He demonstrated good awareness of the circumstances in his committing this serious offense."
Similarly, Watson did not claim self-defense during his 2009 evaluation. Watson told the 2009 evaluator: "I feel terrible... I should have left the property and come back when things cooled down." Watson later added: "I let the property arrangement get out of hand... I wasn't welcome on the property... I should have moved faster to keep the peace... I take responsibility for what happened... I should have left."
The inmate's "present attitude" toward the crime is relevant in determining parole suitability. (Cal. Code Regs., tit. 15, § 2402, subds. (b).) Watson's earlier claims of self-defense are not germane to the ultimate issue whether he currently lacks insight or refuses to accept responsibility for his crimes. As our high court stated in Lawrence, the "Legislature explicitly recognized that the inmate's threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living within the strictures of the law... it is evident that the Legislature considered the passage of time—and the attendant changes in a prisoner's maturity, understanding, and mental state—to be highly probative to the determination of current dangerousness." (Lawrence, supra, 44 Cal.4th at pp. 1219-1220.)
Watson's statements to the 2007 and 2009 evaluators indicate that he understood the nature and magnitude of the life crime. (Cal. Code Regs., tit. 15, §§ 2281(d)(3), 2402(d)(3).) These recent statements constitute affirmative evidence reflecting a change in Watson's mental state from a claim of self-defense, to an acceptance of responsibility. (In re Elkins (2006) 144 Cal.App.4th 475, 495 ["acceptance of responsibility works in favor of release '[n]o matter how longstanding or recent it is, ' so long as the inmate 'genuinely accepts responsibility....'"].) Watson has participated in treatment, education and rehabilitation programs while incarcerated and has been a model prisoner. The Governor's reliance on the static fact that Watson initially claimed self-defense is not rationally related to his current dangerousness and does not support the denial of parole.
In denying parole, the Governor also cited Watson's recent refusal to discuss the life crime to support his conclusion that Watson continued to claim self-defense and has not accepted responsibility for the life crime. However, an inmate cannot be required to discuss the circumstances of the commitment offense or to admit guilt in order to be found suitable for parole. (Pen. Code, § 5011; Cal. Code Regs., tit. 15, § 2236.)
During the 2009 evaluation, Watson spoke about a conflict with Tenney and his other roommate regarding their heavy drinking habits. He stated: "I had received notice to move because of delinquent rent, but I had paid my share of the rent... plus, I had paid a heavy deposit." He then claimed that he was being evicted because his roommates "hung-out" with the landlord and he was an outsider. Watson stated that the fight erupted as he argued with Tenney about moving some of Watson's possessions out of the garage. Thereafter, Watson's description of the fight followed that set forth in our 1992 Opinion, except for the addition of details that were not included in the 1992 Opinion. Specifically, the evaluator wrote:
"Mr. Watson says that it was he who was attacked by the victim, and that he struck the victim with a wrench. He alleges of the victim, 'He kept coming... I went into the trailer to get my.22 single shot rifle... he grabbed it... we fought... he was bigger than me... after the shot, he lunged at me... so I hit him with the butt of the gun... it broke into three pieces, I believe.' "
The Governor repeats some of the comments Watson made to the 2009 evaluator as if they were fiction: "Watson told the 2009 mental-health evaluator that he was attacked by the victim and that he struck the victim with a wrench. He asserted that Tenney kept pursuing him." However, Watson has simply recited the facts of the life crime. We fail to see how describing the facts as they occurred amounts to a lack of insight or acceptance of responsibility. Moreover, we reviewed Watson's trial testimony and note that he testified that the altercation continued after the shot, that he struck Tenney with the rifle, and that the rifle broke into pieces. Thus, Watson's description of the altercation has not varied in over 20 years. Significantly, no one witnessed the crime.
The Governor then comments on a purported contradiction between the facts contained in the record and Watson's version of the life offense as recited by the 2009 evaluator, stating: "Watson denied being at fault for failing to pay rent or the scattering of materials around the property. Instead, he claimed that his roommates and the landlord were friends and drank together." Watson, however, has simply added new details to the events and circumstances leading up to the life crime. The Governor has not cited anything in the record to support a conclusion that these details are false, and our examination of the record does not support such a conclusion.
More importantly, whether Watson had or had not paid his rent, whether his roommates had or had not vandalized his belongings, or whether his former roommates and landlord were friends are not relevant to the analysis as Watson has never cited these facts as justification for the murder. The Governor's focus on these purported contradictions to show a lack of insight or acceptance of responsibility is misguided.
Close examination of the Governor's rationale for his reversal of the Board's grant of parole reveals he relied on the facts of the commitment offense to show a lack of insight or acceptance of responsibility. As we shall discuss, the Governor does not articulate a rational nexus between the commitment offense and Watson's present dangerousness. (Post, Part B.3.)
2. Low to Medium Risk of Violence Assessments
The 2009 evaluator utilized three assessment instruments to evaluate Watson's violence potential in the free community: the Psychopathy Checklist-Revised (PCL-R); the History-Clinical-Risk Management-20 (HCR-20); and the Level of Service/Case Management Inventory (LS/CMI). The evaluator expressed the results of the instruments and estimated Watson's risk for future violence using the categories: low, moderate/medium or high. The evaluator concluded that Watson's score on the PCL-R and HCR-20 placed him in the low to moderate range for psychopathy and risk for violent behavior, but in the low range on the LS/CMI for risk of recidivism.
The PCL-R "is a psychometric scale for the assessment of psychopathy, " which is "strongly linked with risk for future violence." "People who are psychopathic prey ruthlessly on others using charm, deceit, violence or other methods that allow them to get with they want." (Haycock, Hare Psychopathy Checklist, Gale Encyclopedia of Mental Disorders (2003). <http://www.encyclopedia.com/doc/1G2-3405700188.html> [as of July 13, 2011] ("Hare Psychopathy Checklist").) The twenty traits assessed by the PCL-R score are: glib and superficial charm; grandiose (exaggeratedly high) estimation of self; need for stimulation; pathological lying; cunning and manipulativeness; lack of remorse or guilt; shallow affect (superficial emotional responsiveness); callousness and lack of empathy; parasitic lifestyle; poor behavioral controls; sexual promiscuity; early behavior problems; lack of realistic long-term goals; impulsivity; irresponsibility; failure to accept responsibility for own actions; many short-term marital relationships; juvenile delinquency; revocation of conditional release; and criminal versatility. (Ibid.)
The evaluator concluded that Watson's total score placed him in the low to moderate range for psychopathy. He stated:
"The items requiring some level of endorsement included revocation on conditional release, irresponsibility, failure to accept responsibility for own actions, criminal versatility, pathological lying, shallow affect, grandiose sense of self worth, lack of remorse/guilt, and callous/lack of empathy.
"Current reports and presentation suggest that Mr. Watson has been free of disciplinary problems receiving strong work reports, and engaging in self-help activities. Mr. Watson's records and presentation do not suggest the presence of psychopathy. He does not have a lifestyle of selfish and callous functioning involving the remorseless use of others. Also, he does not have a life history of chronically unstable, antisocial functioning, and social deviance."
The Governor recited in full the first paragraph of "items requiring some level of endorsement, " apparently under the mistaken belief that he was citing the evaluator's findings, concluding: "The evaluator's findings further support my belief that Watson continues to pose an unreasonable threat to the community." However, the paragraph cited by the Governor as the evaluator's "findings" simply listed nine of the 20 character traits assessed by the PCL-R that the evaluator believed Watson's history might support. (Hare Psychopathy Checklist, supra.) The Governor completely ignored the evaluator's actual findings, including the finding that "Watson's records and presentation do not suggest the presence of psychopathy." Thus, the Governor's conclusion that "Watson's most recent mental-health evaluation raises additional concerns" does not withstand scrutiny.
Critically, both the PCL-R and HCR-20 heavily weigh the inmate's history. As the evaluator noted, the PCL-R is "scored within the lifetime history of the individual rather than more recent behavior alone" and the HCR-20 weighs "static or past factors, " "as heavily as the sum or combination of present and future variables." Thus, the Governor's conclusion that these scores supported his belief that "Watson continue[d] to pose an unreasonable threat to the community" is largely based on historical facts that cannot be improved. As we shall discuss, the Governor does not articulate a rational nexus between the commitment offense and Watson's present dangerousness. (Post, Part B.3.)
At the end of his report, the evaluator reviewed the psychological issues he needed to appraise: (1) Watson's violence potential in the free community as determined using the three assessment instruments; (2) a comparison of the official summary of the crime, with reasons given by the inmate; and (3) review of Watson's prior arson and its relationship to current dangerousness. The evaluator reiterated that Watson presented a relatively low to moderate risk for violence in the free community. The evaluator then concluded that Watson's account of the life crime contradicted the official version. The Governor commented on the purported contradiction. As we discussed, Watson recited the official version of the facts with additional details regarding the events and circumstances leading up to the life crime. The additional details are not demonstratively false, nor did Watson rely on them as justification for the murder. (Ante, Part B.2.) Accordingly, this factor does not support the Governor's decision.
Finally, the 2009 evaluator reviewed Watson's arson and its relationship to current dangerousness, concluding that Watson's view of the arson case conflicted with the official account. The evaluator noted that Watson pleaded nolo contendere to the arson in 1986, and recited "the official facts" of the offense, Watson's earlier statements, and Watson's statements during the interview:
"... [T]he inmate bought a vehicle from a private party, and agreed to pay off the balance owed in installments. Subsequently, he made no payments to the victim, offering excuses and finally refusing to respond to her messages.... When [the victim] tried [to repossess the truck] with her teenage son, the inmate became irate and began damaging the vehicle. As the victim and her son got in to the vehicle to drive it away, the inmate began pouring gasoline on the hood and bed of the pick-up truck. The female victim observed him start a fire in the truck bed. Fearing for her life, she left the vehicle and reported the matter to the police.
"According to the 1986 POR, the inmate admitted that 'he did keep putting the victim off when she continually called him regarding his payments.' He also states that he 'poured gasoline over some trash which was in the truck bed and struck a match lighting the gasoline... he was never in the truck when I put gasoline on it.' According to the subsequent 1990 POR, he failed his grant of probation on his Arson conviction his address without permission, by failing to complete any of the 200 hours of community service, and by failing to make any payment on the restitution.
"During the present interview, when asked about his arson case, Mr. Watson reports that he was 'not late in making payments' to the victim. He claims, 'The lady wanted to get paid all at once... that was not our agreement... I wasn't late making payments… so we had an argument' He denies the victim was in the vehicle at the time he lit the fire. He asserts, 'The board report was in error… the lady wasn't in the vehicle when I lit it.' He also denies pouring gasoline on the vehicle itself. He says that he only poured gasoline into 'a metal trash can' sitting in the bed of the truck. 'I was trying to frighten her to not steal the truck... it was a foolish thing... but her son was shouting and threatening me.'"
Later in his report, the evaluator again discussed the arson as it related to Watson's current dangerousness. He stated:
"(3) Mr. Watson's view of his prior arson case also conflicts with the official account. He denies being late making payments to the victim, pouring gasoline on the truck hood, pouring gasoline into the truck bed, starting a fire while the victim and her son were in the car, and having any recollection of kicking the truck or using a flashlight to break the side mirror off the vehicle. Rather, he states that the victim was demanding full payment on the vehicle, 'which was not our agreement.' He focuses on the victim and claims that 'she wanted to sell the truck twice' and that 'she had another buyer.'
"When compared to the official version in the POR, Mr. Watson's view is of himself being victimized by the original truck owner. He denies personal fault, and explains how he was justified in his anger towards the victims. In this evaluator's opinion, Mr. Watson does not admit or recognize the contributions and actual extent of his participation in his difficulties at the time. This only increases his risk for future dangerousness."
We cannot find the "official" facts, account or version of the arson anywhere in the record before us. At the 2009 Board hearing, Watson's counsel confirmed that the facts relied upon by the evaluator came from a probation officer's report. The appellate record in the 1992 Opinion contained a probation officer's report for the life crime. Therein, the probation officer included a summary of the crime derived from "CII and L.A. County Probation files." The 2009 evaluator apparently relied on this summary as being the "official" version of the facts.
However, anyone familiar with the format of a probation report knows that such reports contain descriptions of the events from the victim, the defendant and third party witnesses derived from various sources such as police reports, preliminary hearing transcripts, or conversations with the victim or defendant. (Calif. Rules of Court, rule 4.411.5 [listing the required contents of a probation officer's presentence investigative report in a felony case].) An "official" version of the facts is not one of the required sections in a probation report. (Ibid.)
Notably, our 1992 Opinion described the arson conviction as involving "a truck Watson apparently had purchased from an individual. When Watson stopped making payments on the truck, the seller herself attempted to repossess the truck, whereupon Watson poured gasoline on trash in the truck bed and started a fire." (The 1992 Opinion, at p. 11, fn. 5) This description more closely tracks Watson's version of the facts, rather than the reportedly "official" version cited by the 2009 evaluator.
The Governor relied on the 2009 evaluator's assessment of the arson to conclude that: "Watson's consistent attempts to validate his criminality indicate that he has not developed an adequate understanding of his prior criminal behavior that he is still capable of rationalizing future crimes." As we shall discuss, the Governor does not articulate a rational nexus between the arson offense and Watson's present dangerousness. (Post, Part B.3.)
3. The Commitment Offense
One of the circumstances "tend[ing] to indicate unsuitability for release" is whether "[t]he prisoner committed the [commitment] offense in an especially heinous, atrocious or cruel manner." (Cal. Code Regs., tit. 15, § 2402, subd. (c).) Among the factors relevant to applying this circumstance are whether there were multiple victims involved, the prisoner carried out the offense in either a dispassionate and calculated manner (such as an execution-style murder), the victim was abused, defiled or mutilated during or after the offense, the prisoner carried out the offense in a manner which demonstrated an exceptionally callous disregard for human suffering, and the motive for the crime was inexplicable or very trivial in relation to the offense. (Cal. Code Regs., tit. 15, § 2402, subd. (b)(1).)
The "Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.]" (Lawrence, supra, 44 Cal.4th at p. 1221.) "[T]he 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 of the statutory determination of a continuing threat to public safety." (Id. at p. 1214.)
The Governor found that Watson posed an unreasonable risk of danger to society, stating that the commitment offense was "especially atrocious because [Watson] brutally beat and shot his roommate to death, " and "displayed an exceptionally grave disregard for human life and suffering."
There is no evidence to support the Governor's conclusion that the murder was "especially atrocious." The murder occurred during an altercation involving some mutual combat, and Tenney suffered injuries consistent with Watson's statements that he hit Tenney with a wrench and a rifle butt during the altercation. (The 1992 Opinion, at pp. 3-4.) These injuries do not support a conclusion that Watson "abused, defiled or mutilated" Tenney. (Cal. Code Regs., tit. 15, § 2402, subd. (b)(1).) Nor do these injuries or the facts of the life crime support the Governor's conclusion that Watson acted with a grave disregard for human life and suffering, such as repeated blows when the victim was already incapacitated. Rather, Tenney apparently continued to fight after Watson shot him, and fell only after Watson later struck him with the rifle. Notably, " '[s]econd degree murder is defined as the unlawful killing of a human being with malice aforethought, ' [citation] [and] '[m]alice itself involves ' "an element of viciousness-an extreme indifference to the value of human life."' [Citation.] Thus, all second degree murders will involve some amount of viciousness or callousness. [Citation.]" (In re Weider (2006) 145 Cal.App.4th 570, 587.)
The Governor also relied heavily on the 2009 evaluation and Watson's purported refusal to accept the "official" versions of the life crime and prior arson to conclude that Watson remained dangerous because he refused to accept responsibility for his behavior. As we previously detailed, however, Watson's recitation of the life crime did not differ from the official version of the life crime except for the addition of details regarding the events and circumstances leading up to the life crime. (Ante, Part B.2.) Moreover, there is no "official" version of the arson; rather, it appears that Watson and the victim had a different recollection of the facts. This severely undercuts the Governor's conclusion. Significantly, there is no evidence that Watson's current attitudes toward the life crime or arson provide a rational nexus for concluding that these crimes continue to be predictive of his current dangerousness.
On the other hand, it is undisputed that nearly all of the circumstances tending to show suitability apply to Watson. (Cal. Code Regs., tit. 15, § 2281, subd. (d).) He has no juvenile record and no history of violence before the life crime. He has never abused drugs or alcohol and has remained discipline free while incarcerated. This history does not show a pattern of violence or poor decision making.
Watson has maintained a stable relationship with his remaining family members, and would like to live with them if released. He has expressed remorse and an understanding of the nature and magnitude of his offense. Watson has participated in numerous self-help and therapy programs, has a number of marketable skills, and has made realistic parole plans.
Over 20 years have passed since the commitment offense, and there are no other facts in the record that provide a rational nexus for concluding the offense continues to be predictive of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221.) Accordingly, we conclude the Governor's determination that Watson remains a current danger is without evidentiary support, and we therefore reverse the Governor's reversal of the Board's 2009 determination that Watson is suitable for parole.
C. Reduction of Parole Term
A second degree murder conviction requires a lifetime parole period; the parole is discharged after five years of continuous parole since release from confinement unless the Board finds good cause to continue the parole. (Pen. Code, § 3000.1.) Watson contends his parole period should be reduced by the extra time he has spent in custody because of the Governor's unsupported reversal of the Board's parole grant, but acknowledges that other courts have rejected this same assertion for cases involving a second degree murder conviction. (In re Gomez (2010) 190 Cal.App.4th 1291, 1309-1310 [holding that the time spent in prison after the effective date of a grant of parole, but where such grant is reversed by the Governor and ultimately reinstated by the court, does not satisfy any part of the five-year period between "release" from prison and eligibility for discharge under Penal Code section 3000.1]; In re Chaudhary (2009) 172 Cal.App.4th 32, 37-38.)
We reject Watson's contention that these cases were wrongly decided under state law. We also reject his contention that his state and federal right to due process mandates a reduction of his parole period. The language of Penal Code section 3000.1 regarding parole discharge requires that the parolee serve five continuous years on parole "since [the parolee's] release from confinement" before parole discharge is appropriate. Thus, to credit Watson with time that he spent in custody rather than on parole against his parole term would violate the plain language of Penal Code section 3000.1. Watson has not explained how this result violates his state or federal right to due process.
DISPOSITION
The relief sought in the petition for writ of habeas corpus is granted. The Governor's decision to reverse the Board's order granting parole to Watson is vacated, and the Board's parole release order is reinstated. In the interests of justice, this opinion is made final as to this court seven days from the date of filing.
WE CONCUR:McDONALD, Acting P. J., AARON, J.