Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Reversed. Los Angeles County Super. Ct. No. BH003806
SUZUKAWA, J.
Nancy L. Tetreault for Petitioner Kenneth Williams.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and J. Conrad Schroeder, Deputy Attorneys General, for Respondent Board of Parole Hearings.
On July 29, 2005, a panel of the Board of Parole Hearings (Board) denied petitioner Kenneth Williams parole for a period of two years. On April 28, 2006, petitioner filed a writ of habeas corpus in the superior court. On July 10, 2006, the superior court issued an order to show cause and appointed counsel for petitioner. On December 18, 2006, the superior court found that the Board’s decision denying parole was not supported by “some evidence,” and ordered the Board “to reconsider its decision and to conduct a new hearing within 45 days of service of this order to reconsider defendant’s suitability for parole using, without restriction, the factors deemed appropriate by the relevant statutes and regulations and in accordance with the requirements of due process.” The Attorney General filed a timely appeal, and we issued a stay of supersedeas on February 27, 2007. The Attorney General contends the superior court erred by applying a more stringent standard of review of the Board’s decision than that established by the Supreme Court in In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz). We agree and reverse the superior court order.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Commitment Offenses
Petitioner was received by the Department of Corrections on April 7, 1978. He had been convicted of first degree murder, the theft of a vehicle, and robbery. The latter two convictions arose from proceedings separate from the murder conviction. We summarize the facts from the record of the parole hearing.
Petitioner complains that the Attorney General’s statement of facts come from the probation report, which contains inadmissible hearsay. As we examine the record presented to the trial court, which includes the transcript of the parole hearing, petitioner’s objection is without substance.
On May 25, 1977, petitioner and an accomplice, entered the Mini Service Drive Up Dairy. They were wearing stocking masks and petitioner was armed with a handgun. The owner, Mr. Kim, and an employee were closing the store. Mr. Kim and his employee were ordered to lie on the floor. The cash register and the victims were searched. At one point, Mr. Kim sat up, and petitioner fired one shot, striking Mr. Kim in the stomach. He recovered from his wounds.
On June 4, 1977, at approximately 2:30 a.m., James Jackson and Jean Collins were sitting in a parked automobile near 54th Street and St. Andrews Place in Los Angeles. Mr. Jackson was seated in the driver’s seat and Ms. Collins was in the front passenger’s seat. Petitioner approached the vehicle, pointed a handgun at the couple, and demanded Mr. Jackson’s wallet and Ms. Collins’s purse. Ms. Collins reached for her purse and accidentally closed the window by activating the control button. Petitioner stepped back from the vehicle and fired two shots through the window, striking Mr. Jackson. Mr. Jackson succumbed to his wounds 16 days later.
II. The Parole Hearing
The Board reviewed the facts of the murder and separate robbery. It heard petitioner admit his culpability for the crimes and attempt to explain his conduct. In describing the events leading up to the murder, petitioner asserted that “when you got a gun[,] you’re supposed to be wielding power.” When the window of the vehicle went up, he claimed that he was not sure what was happening. He said, “And I lost my power when the window came up. I was disregarded. That’s why I stepped back and shot through the window.”
Petitioner stated that committing robberies was part of his lifestyle from age 13 to age 18, when he committed the murder. He also admitted to using marijuana on a daily basis and PCP three to four times a week. He claimed that he was under the influence of drugs at the time of the murder. Petitioner expressed remorse and shame for having murdered Mr. Jackson.
The Board discussed petitioner’s criminal history, noting that he was arrested for the first time in 1967, at the age of eight. He had a number of arrests for robbery, theft, possession of narcotics, and assault, initially becoming a ward of the juvenile court in 1973.
Petitioner told the Board that he maintained contact with many family members, including his mother and his 28-year-old daughter. He also had regular contact with his wife of 18 years and their 15-year-old son. The Board received a number of laudatory letters from petitioner’s friends and family.
The Board commented favorably on petitioner’s parole plans. It commended his participation in job training and self-help seminars. Petitioner explained that he had practiced the Christian Science faith for the past year, and had read religious and spiritual material virtually every day during that time.
The Board reviewed petitioner’s disciplinary record in prison. He had received “a total of 12 115s,” none during the past nine years. It noted petitioner’s favorable psychological report, which indicated that he had a below average potential for violence when compared with the average citizen.
The Board concluded that petitioner was not suitable for parole. It found that the murder was carried out in “an especially cruel and callous manner in that the victim of the life crime was shot at pointblank twice. . . .” Referring to the shooting of Mr. Kim, the Board found that multiple victims were attacked, with one killed and the other suffering severe injuries from a single gunshot wound. The Board further found that the offenses were carried out in a dispassionate and calculated manner, pointing out that petitioner had armed himself for the express purpose of committing robberies. It determined that the motive for the crime was very trivial in relationship to the offense in that the killing was carried out for the purpose of robbery.
The Board also determined that petitioner had “an escalating pattern of criminal conduct dating back to when [he was] eight years of age. . . .” It found that he has an unstable social history that includes prior criminality and extensive use of narcotics.
In discussing the psychologist’s belief that petitioner’s capacity for violence was low, the Board pointed out that although petitioner had remained discipline-free for the past nine years, it also had to consider the fact that petitioner had been incarcerated for 19 years before “programming” and conforming his conduct to the rules.
The Board noted the positive strides petitioner had made with his job training, participation in self-help counseling, and discipline-free behavior. It concluded, “[h]owever, these positive aspects of your behavior do not outweigh the factors of unsuitability,” and denied parole.
III. The Decision of the Superior Court
In granting the petition, the superior court concluded: “In denying petitioner parole, the Board relied upon the circumstances of the commitment offense. The Court finds that because 28 years have passed since petitioner’s crime, the usefulness of the crime in predicting the likelihood of future offenses diminishes in time. (In re Scott (2005) 133 Cal.App.4th 573, 595.) In addition, the Board denied petitioner [parole] based upon its finding that petitioner has an ‘escalating pattern of criminal conduct,’ starting from petitioner’s conduct at the age of eight. While petitioner’s juvenile criminal history does involve a battery and a theft, the Court finds that this finding is also unreliable evidence since at least 31 years have passed since then. The Board cited to petitioner’s juvenile record and drug abuse to support their finding that petitioner had an unstable social history. However, this finding does not account for petitioner’s stable history with his friends and family while incarcerated.
“The Court finds that the Board’s continued reliance on an inmate’s commitment offense, criminal history and unstable social history at the time of the offense violates due process when viewed in light of a record of rehabilitation. (In re Elkins (2006) 144 Cal.App.4th 475, 520; In re Scott (2005) 133 Cal.App.4th 573, 593-594.) Furthermore, the true ‘test is not whether some evidence supports the reasons the [Board] cites for denying parole, but whether some evidence indicates a parolee’s release unreasonably endangers public safety.’ (In re Lee (2006) 143 Cal.App.4th 1400, 1408; [s]ee also In re Elkins (2006) 144 Cal.App.4th 475, 521.) After nearly three decades of incarceration, reliance upon such unchanging circumstances violates due process because these immutable circumstances become unreliable predictors of petitioner’s dangerousness such that they can no longer fulfill the ‘some evidence’ standard.”
The court found that by relying on circumstances that can never change to deny parole, the Board “will essentially convert petitioner’s original sentence of life with the possibility of parole into a sentence of life without the possibility of parole.”
DISCUSSION
I. Standard of Review
In reviewing the decision of the Board, we “may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation.” (Rosenkrantz, supra, 29 Cal.4th at p. 658.) “Only a modicum of evidence is required.” (Id. at p. 677.) In addition, the Board is vested with the authority to resolve any conflicts in the evidence and to determine the weight to be given to the evidence. And “the precise manner in which the specified factors relevant to parole suitability are considered and balanced” lies within the discretion of the Board. (Ibid.) We need only insure that the Board’s decision is based on “an individualized consideration of the specified criteria and [is not] arbitrary or capricious.” (Ibid.)
We are aware of conflicting authority that holds the test is “not whether some evidence supports the reasons the Governor [or the Board] cites for denying parole, but whether some evidence indicates a parolee’s release unreasonably endangers public safety.” (In re Lee, supra, 143 Cal.App.4th at p. 1408 (Lee); see also In re Roderick (2007) 154 Cal.App.4th 242, 263; In re Lawrence (2007) 150 Cal.App.4th 1511, 1533; In re Elkins (2006) 144 Cal.App.4th 475, 496.) These courts considered the reasons given for denying parole and factors relevant to the specific prisoners (such as their advanced age and poor health), reweighed the evidence, and concluded that the denial of parole was improper because the prisoners no longer posed an unreasonable risk to public safety.
However our individual sense of justice may affect our view of a particular parole decision, we are bound by the Supreme Court’s decision in Rosenkrantz. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nowhere in that decision do we find the mandate to secondguess the Board. When we consider the genesis of the Supreme Court’s “some evidence” standard, we are convinced that our role is much more limited.
The Supreme Court applied the “some evidence” test in connection with its review of the Board of Prison Terms’ (BPT) decision to rescind a parole date. The BPT granted Gregory Powell, the killer whose crime was chronicled in the movie The Onion Field, a parole release date. After the BPT received opposition from a number of parties, it reviewed its decision to grant parole. It ordered new psychological evaluations of Powell, and relying on those evaluations, the BPT rescinded Powell’s parole date.
On appeal, Powell argued that the BPT decision should be reviewed using the independent judgment standard utilized in the review of administrative orders pursuant to Code of Civil Procedure section 1094.5. The court disagreed. The court then considered “whether a parole rescission must be supported by substantial evidence or merely by ‘some’ evidence.” (In re Powell (1988) 45 Cal.3d 894, 903 (Powell).) It noted that “[i]n the only California case specifically addressing the present question, the Court of Appeal rejected the ‘standard sufficiency of the evidence rule’ and held that a parole rescission was an abuse of discretion only when the authority acted ‘without information, fraudulently, or on mere personal caprice.’ [Citation.] We agree with this conclusion.” (Id. at p. 904.)
The Powell court was guided by the United States Supreme Court decision in Superintendent v. Hill (1985) 472 U.S. 445 (Hill). The Hill court considered the standard of review for a prison board’s decision to revoke good time credits, and held that due process was satisfied as long as there was “some evidence to support the findings made in the disciplinary hearing. (Id. at p. 457.) The Hill court stated that “[t]he fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction [citation], and neither the amount of evidence necessary to support such a conviction [citation], nor any other standard greater than some evidence applies in this context.” (Id. at p. 456, italics added.)
The Powell court concluded that “[t]he same reasoning applies in the present context. A parole date, like a good time credit, is a prospective benefit that is conditioned on the inmate’s continued good performance and subject to review and withdrawal for cause by the BPT. While the board cannot rescind a parole date arbitrarily or capriciously, it does not abuse its discretion when it has some basis in fact for its decision. As stated above, the BPT must strike ‘a balance between the interests of the inmate and of the public.’ [Citation.] If it is to accomplish this delicate task, it must operate with broad discretion and not be ‘subject to second-guessing upon review.’ [Citation.] Accordingly, we hold that due process requires only that there be some evidence to support a rescission of parole by the BPT.” (Powell, supra, 45 Cal.3d at p. 904, fn. omitted, italics added.)
The Rosenkrantz court held that the same standard that governed judicial review of a decision to rescind a parole date applied to a review of a decision to deny parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 655-656.) Clearly, if our task is to insure that the Board did not act “‘“without information, fraudulently or on mere personal caprice”’” (In re Spence (1974) 36 Cal.App.3d 636, 639-640), we need only be convinced that its decision is supported by some basis in fact. “It is irrelevant that [we] might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) “Rather, the court determines only whether the factual basis on which the [Board] relies—which must be tailored to the individual inmate and give due consideration to the factors the [Board] is required by law to consider—is supported by ‘some evidence’ in the record before the Board. If it is, the court is powerless to strike the balance of relevant factors differently, and powerless to declare that the inmate no longer poses a risk to public safety.” (In re Jacobson (2007) 154 Cal.App.4th 849, 861.)
As we conclude that Rosenkrantz does not allow for the heightened scrutiny utilized in Lee and the cases that adopted its reasoning, we decline to follow them.
II. The Standard of Review Applied to Petitioner’s Case
As discussed, the Board denied parole on three grounds: 1) the murder was committed in an especially cruel and callous manner; 2) petitioner had an escalating pattern of criminal conduct; and 3) petitioner had an unstable social history.
The nature of the prisoner’s offense or offenses, alone, can constitute a sufficient basis for denying parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 682-683; In re Ramirez (2001) 94 Cal.App.4th 549, 569 (Ramirez), disapproved on another ground in In re Dannenberg (2005) 34 Cal.4th 1061, 1100.) Factors that the Board must consider in determining whether the offenses were committed in an especially heinous, atrocious, or cruel manner include whether multiple victims were attacked, injured, or killed in the same or separate incidents, whether the crimes were carried out in a dispassionate and calculated manner, and whether the motive for the crimes is inexplicable or very trivial in relation to the offenses. (Cal. Code Regs., tit. 15, § 2402, subds. (c)(1)(A), (B), & (E).)
When we examine the circumstances of the murder of Mr. Jackson and the shooting and robbery of Mr. Kim, we conclude some evidence supports the Board’s finding that the offenses were committed in an especially heinous or cruel manner. Petitioner approached Mr. Jackson and Ms. Collins as they sat in a car, and demanded their property. Petitioner decided to shoot into the vehicle when Ms. Collins accidentally rolled up the window because petitioner was “disregarded.” Petitioner fired from point blank range and killed Mr. Jackson with two shots. In the dairy robbery committed 10 days before the murder, the victims were ordered to lie on the floor at gunpoint. Mr. Kim sat up and petitioner shot him through the abdomen. There was no evidence that Mr. Kim was attempting to flee or thwart the robbery. In each case, the motive for the shooting was both inexplicable and very trivial in relation to the offense. The evidence in the record establishes that multiple victims were attacked and injured in separate incidents.
Petitioner argues “it was highly disingenuous for the Board to use a victim from an unrelated crime to satisfy the multiple victim circumstance of section 2402, subdivision (c).” We disagree. Although the language of the regulation refers to the commitment offense in the singular, the factors inform the Board to consider whether “[m]ultiple victims were attacked, injured or killed in the same or separate incidents.” (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(A), italics added.) Thus, by necessity, the Board may be asked to consider the facts of more than one offense. Moreover, the Board “shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.” (Pen. Code, § 3041, subd. (b), italics added) We conclude that the Board may properly consider the facts of any of the offenses which are the basis of the prisoner’s commitment in evaluating the parole factors set forth in the regulations.
An argument similar to that raised by petitioner was rejected where a prisoner was committed pursuant to his plea to second degree murder and two robberies. In appealing the Board’s denial of parole, the prisoner argued the Board erred by relying on the circumstances of the robberies to conclude that he had displayed a callous disregard for human suffering. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(D).) He asserted the regulations required the Board to examine only the facts of the murder, which was the life offense. The appellate court rejected his claim, finding that “the Board is free to consider not only all offenses underlying the inmate’s present sentence, but also any earlier convictions.” (Ramirez, supra, 94 Cal.App.4th at pp. 568-569.)
We also find some evidence supports the Board’s finding that petitioner had an escalating pattern of criminal conduct at the time he committed the offenses. The record clearly revealed that he had his first contact with law enforcement at the age of eight. Although petitioner had not suffered a significant number of criminal convictions, by his own admission committing robberies was part of his lifestyle from ages 13 to 18.
Petitioner argues that the Board’s finding that he has a history of unstable relationships is belied by his current 18-year marriage and his significant positive contacts with friends and family. We agree. However, even if we were to disregard this factor, the Board made it clear that it considered the nature of the offenses to be the primary factor in support of the denial of parole. Indeed, after determining that it was not reasonable to expect that petitioner would be paroled during the next two years, the presiding commissioner stated: “Again, the reason and it is the opinion of this Panel that the offense was carried out in an especially cruel and callous manner.” The commissioner then went on to summarize the facts of the shootings of Mr. Jackson and Mr. Kim. Thus, the lack of evidence in support of the Board’s finding that petitioner has a history of unstable relationships is not fatal to its ultimate decision denying parole.
Petitioner urges that we follow the articulation of the “some evidence” standard set forth in Lee. He contends that “[r]ecent appellate court decisions uniformly agree that the ‘some evidence’ rule of Dannenberg and Rosenkrantz means not just that ‘some evidence’ support the Board[’s] ultimate decision, but that ‘some evidence’ supports the conclusion that the inmate presently poses an unreasonable risk to society.” For the reasons outlined above, we decline to do so.
Petitioner argues that after 28 years, the circumstances of his crimes and criminal record become immutable factors whose predictive value is unreliable. He contends that the Board’s reliance on unchanging factors constitutes a due process violation. (Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 917.) Initially, we note that the decisions of lower federal courts, even those interpreting federal law, are not binding on this court. (People v. Williams (1997) 16 Cal.4th 153, 190.) Moreover, as we have noted, the only United States Supreme Court opinion on the subject states that due process does not require that courts overturn a prison administrator’s decision that has a basis in fact. (Hill, supra, 472 U.S. at p. 456.)
The Rosenkrantz court recognized that a denial of parole based on the nature of the offense might constitute a due process violation where, for example, “no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense.” (Rosenkrantz, supra, 29 Cal.4th at p. 683.) Petitioner argues the murder he committed was not “especially heinous, atrocious or cruel” to merit a denial of parole. (Cal. Code Reg., tit. 15, § 2402, subd. (c)(1).) We disagree. As we have discussed, the Board properly considered the circumstances of both shootings. The shooting of the murder victim twice at point blank range because petitioner felt “disregarded” and the unnecessary shooting of the helpless robbery victim provide “some evidence” that the commitment crimes were more aggravated or violent than the minimum necessary to sustain a conviction for the offenses of murder and robbery.
Petitioner suggests that the gains he has made in prison necessarily outweigh the factors militating against parole. Again, his argument misses the mark. We do not reweigh the factors presented to the Board. We need only find that the Board gave due consideration to all the appropriate statutory and regulatory factors. We conclude it did. The Board stated that it considered petitioner’s lack of misconduct during the previous nine years, his educational endeavors, his family ties, and his parole plans. The Board also considered the fact that petitioner did not remain discipline-free during the first 19 years of incarceration. Petitioner complains this was improper. We disagree. It is appropriate for the Board to consider all of the evidence that bears on the factors underlying the parole decision, not merely the most recent. Further, it is within the Board’s purview to resolve any conflicts in the evidence and to determine the weight to be given to the evidence. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
The record establishes that the Board gave due consideration to the parole factors and applied them to petitioner’s individual circumstances. As we have determined that “some evidence” supports the Board’s denial of parole, our inquiry ends, and we must uphold the Board’s decision.
DISPOSITION
We concur: EPSTEIN, P. J., MANELLA, J.