Opinion
NOT TO BE PUBLISHED
Petition for a writ of habeas corpus following order of the Superior Court of Los Angeles County Nos. A369273, BH0043, Steven R. Van Sicklen, Judge.
Rufus Young, in pro. per., and Melanie K. Dorian, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman and Kim Aarons, Deputy Attorneys General, for Respondent.
MALLANO, P.J.
In 1981, Rufus Young was sentenced to a term of life plus two years for kidnapping for robbery with the use of a firearm. In 2006, at his 13th subsequent parole hearing, the Board of Parole Hearings (Board) found Young unsuitable for parole. Young filed a petition for a writ of habeas corpus. As the Board’s decision is not supported by “some evidence,” we grant the petition.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
A. Commitment Offense
On June 9, 1981, the victim climbed into his truck after completing a phone call in a public place when Young approached the truck, opened the door, and pointed a handgun at him. Young ordered the victim to lie face down on the floor of the truck. Young climbed in and covered the victim’s head with a sweater, while still pointing the gun at him. Young sat on top of the victim and said, “We won’t hurt you if you’ll do what you’re told.” The victim heard another person enter the truck. The truck was driven for approximately 15 minutes, then stopped at an unknown destination. The second person got out of the truck; Young continued sitting on the victim. The victim listened to conversations outside the truck and heard the cargo being removed, which took about five minutes. He heard someone get back into the truck, and the truck was driven about another 10 minutes. The truck stopped, and the victim heard Young tell the driver to wipe his fingerprints off the steering wheel. Young told the victim to remain on the floor of the truck for five minutes and not to move. The victim heard both parties race away in another vehicle. The victim got out of the truck, looked around, and did not see anyone. When he checked the rear of the truck, he saw that 33 cases of cargo were gone. He went to a nearby store and contacted the police. He later found his truck keys on the floor of his truck.
The victim was not physically injured.
Young was arrested, pleaded guilty, and was sentenced as stated at the outset.
B. Social History
Young was born on December 12, 1952. He was an only child. His parents separated when he was four years old, and he had very little contact with his mother growing up. His mother died in 1964, when he was 12, and his father died in 1969, when he was 17. At that point, he moved in with an uncle who provided no real parental guidance. He has never married and has no children. Young has phone and mail contact with cousins on his mother’s side who live in Compton.
Young had dropped out of high school by the time of the commitment offense. When he was received at CDC in 1981, standardized educational testing placed Young at the 3.7th grade level. (While he was in prison, Young later earned his GED).
From 1969 to 1970, Young worked in a factory. From 1976 to 1980, Young worked as a deli manager supervising one to two others for about four years until the business’s ownership changed, and he was replaced by the new owner’s family members. After that, he did a number of “odd jobs” that he found through a state program.
Young has said he started “hustling” on the streets at age 16 both selling and using drugs. When he was 16, he stole a car, was arrested and released to his family. Apparently in a separate incident, he drove a vehicle without the owners’ consent in 1969 and 1970, and was released to his family. He was committed to the California Youth Authority in 1972 and served three and a half years. In 1977, Young was arrested and convicted in connection with an attempt to purchase a shotgun while on probation. Young’s only adult conviction (other than the commitment offense) was in 1972 for possession of drugs for sale; he was sentenced to 60 days in jail.
Young said he first smoked marijuana when he was 12. He never liked alcohol, but his substance abuse escalated up until he was incarcerated for the commitment offense. “[H]e felt that marijuana was his drug of choice and other drugs were ‘experimental.’” “He reported that drugs might have contributed to his poor decisions as a youth.”
C. Prison Record
Young was received at the Department of Corrections (now the Department of Corrections and Rehabilitation) in 1981. His disciplinary record includes three “CDC 115” rule violations (two for “horseplay” and one for failure to report to class), the last of which was in 1989. He has received four “CDC 128-A” counseling chronos, the most recent in 1989 for failure to complete extra duty as assigned (the others were for deficient performance as leadman on a production line and for an absence from work).
A“CDC 115” documents misconduct believed to be a violation of law or otherwise not minor in nature. (See Cal. Code Regs., tit. 15, § 3312, subd. (a)(3); In re Gray (2007) 151 Cal.App.4th 379, 389.)
A “CDC 128-A” documents incidents of minor misconduct. (See Cal. Code Regs., tit. 15, § 3312, subd. (a)(2); In re Gray, supra, 151 Cal.App.4th at p. 389.)
Young has acquired several trades while in prison. He is most proud of his success in learning to make sausages, which requires skills in chemistry, measuring, and mixing. He has also worked as an assistant supervisor in textile manufacturing, “supervis[ing] approximately 28-30 other inmates in the production of a variety of products from bed sheets to clothing.” He was placed in charge of the production line, training, assigning tasks, and ensuring that various items were produced as needed. He also took plumbing courses. Since May 2005, he has been assigned to “Joint Venture,” earning $6.75 per hour manufacturing pharmaceutical vials.
Forty percent of Young’s wages are deposited in his Inmate Trust Account.
Young’s supervisors’ reports frequently refer to his work ethic, skills, and dependability. As a sewing operator and leadman in the mattress factory, he earned mostly 1’s (exceptional) and some 2’s (above average). As a trainee in sausage production, Young received glowing reviews.
In 2002, Young received a “Prison Industry Authority Certificate of Excellence for his outstanding grades on his “Quarterly 101 Work Supervisor’s Report for the period of: May 2002 to July 2002.”
Young has also participated in numerous self-help and life skills programs. He has participated in meditation practice in the prison’s Buddhadharma Sangha. He also participated in the Millati Islami 12-Step Program, the IMPACT workshop on relationships, and in both Alcoholics Anonymous and Narcotics Anonymous. His record contains a certificate of appreciation for his support of programs sponsored by the Vietnam Veterans Group of San Quentin.
D. Psychological Evaluations and Insight Into Offense
As the Supreme Court recently stated, “Petitioner’s psychological reports map the path of . . . rehabilitation.” (In re Lawrence (2008) 44 Cal.4th 1181, 1194.)
In the 2006 mental health evaluation, the psychologist’s diagnostic impressions per the DSM-IV criteria were Adult Antisocial Behavior on AXIS I, No Diagnosis on AXIS II, Hypertension on AXIS III, and Incarceration on AXIS IV. Young’s GAF (Global Assessment of Functioning) score was 80 (on a 100 point scale). Assessing Young’s risk factors for violence if released to the outside community, the psychologist noted that Young acknowledged his prior criminal behavior, but denied any intent to physically harm his victims, “as his motive for the robberies was purely financial.” Young took “full responsibility for his role in the crime and understands that his actions violated the rights of the victim. He also understands that the hijacking was traumatic for the victim.” The psychologist stated that Young did not view himself as a violent individual, and “there is no information in his record that counters this self-perception.” Young’s substance abuse appeared to be in “sustained recovery,” and he actively participated in 12-step programming. The psychologist added: “His thinking is not characterized by paranoia or violent thoughts. He has no recent history of loss of control or impulsive behavior. His personal history also does not suggest that he has poor impulse control or harbors malevolent thoughts toward others. He has a significant positive work history and appears to get along well with others. He is socially appropriate and enjoys the company of others.”
The American Psychiatric Association publishes the Diagnostic and Statistical Manual of Mental Disorders, Text Edition (4th ed. 2000) (hereafter DSM-IV-TR), which includes all currently recognized mental health disorders.
The American Psychiatric Association’s classification system of mental disorders includes five axes or dimensions. (DSM-IV-TR, supra, p. 27.) Generally, the system calls for information to be organized into five “axes” in order to assist clinicians in planning treatment and assessing prognosis: (1) clinical disorders; (2) personality disorders; (3) medical conditions; (4) psychosocial and environmental problems; and (5) global assessment of functioning. (DSM-IV-TR, supra, p. 27.)
The Global Assessment of Functioning (GAF) is one of five axes or dimensions included in the American Psychiatric Association’s classification system of mental disorders. Using a point scale from one hundred down to one and organized into ten-point descriptive ranges, e.g., 80-71, 50-41 or 20-11, GAF scoring reflects higher functioning in the higher numbers. (DSM-IV-TR, supra, at p. 33.)
The psychologist’s main concerns regarding Young’s prospects for success were his ability to earn a living and to stay away from people who might engage in criminal behavior. Young did have, the psychologist stated, “the personal maturity, social skills and job skills needed to succeed in society.” As his criminal activity appeared to have been motivated by financial considerations, “[h]is risk for recidivism would remain low as long as he is able to meet his financial goals by legitimate means.” Young seemed to be readily employable as a sausage maker. Young “stated that he was not willing to engage in any activity that would cause him to be incarcerated, as he has spent his adult life locked up.” The psychologist considered Young “a good candidate for parole provided that his transition back to the community includes the monitoring of his association with known law violators, or other individuals likely to engage in criminal behavior.” The psychologist stressed that Young should not have access to firearms, “as much violent crime is not intentional, but occurs when other criminal activity does not go according to plan.” Further, “[c]ontinued participation in NA is also advisable.” In the clinical observations/comments/recommendations section, the psychologist reported that Young suffered from no “psychiatric disorder or mental impairment that would place him at risk for violence. Even without further programming, he would be expected to be able to conduct himself in a non-violent manner.”
Young’s 2003 mental health evaluation similarly reported his motivation for his criminal activity was financial and that he was strongly motivated “to stay out of prison and would never repeat his offenses. He felt that the risks of return to prison were too great to ever consider breaking the law again.” The psychiatrist’s diagnostic impressions were the same as those in 2006 except that the psychiatrist listed Antisocial Personality Disorder for AXIS II and “None” for AXIS I. Assessing Young’s dangerousness, the psychiatrist stated there was “no indication that Mr. Young is predisposed towards acting violently[,]” and that his “risk of violence would increase were he to resume his past criminal behavior.” The psychiatrist’s observations/comments/recommendations included his opinion “to a reasonable degree of medical probability,” that Young was “currently at a low risk of violent behavior.” In addition, his current plans if paroled “appear reasonable and within his ability to complete.” The psychiatrist stated that Young’s behavior in prison had been appropriate and he was motivated to refrain from criminal activity “due to fears of being re-incarcerated.” The psychiatrist concluded: “Mr. Young has no major psychiatric illness, which would interfere with the likelihood of success on parole.”
In the 2002 mental health evaluation, the psychiatrist’s diagnostic impression on AXIS I was Adult Antisocial Behavior, past history and Nicotine Dependence, In Remission. On AXIS II, No Diagnosis; on AXIS III, History of Hypertension, and AXIS IV, Incarceration. His GAF was 80. The psychiatrist noted Young had “a good prognosis for maintaining his current level of stability.”
Reviewing the life crime, the psychiatrist reported that Young saw his offense as “a result of poor decision-making and immaturity, which he feels[] has significantly changed since he has been incarcerated in 1981.” The psychiatrist found Young “able to empathize with the plight of his victims and feels appropriately remorseful at the trauma he inflicted.” Young viewed his behavior as “reprehensible and demonstrate[d] altruistic tendencies in his plan to work with other troubled youth in peer counseling and big-brother type programs, ‘to avoid making the same mistakes that I did.’”
The psychiatrist reviewed both the “static” and “dynamic” risk factors for violence and found that the static factors present in Young were his history of previous violence and criminality, history of drug use, and male gender. The psychiatrist found no dynamic risk factors for violence, partially due to his environment, “but he has addressed issues within his control such as seeking treatment for substance abuse as well as getting job skills that will reduce the necessity for criminal behavior for financial support.” The psychiatrist concluded that Young was at low risk for violent behavior at that time. The psychiatrist further observed: “Mr. Young appears to have matured significantly in the correctional setting. He has had only three 115’s while incarcerated — two for horseplay and one for failure to report to his class. He has been discipline free since 1989. He has applied himself learning several trades and thereby enhance[ed] his job prospects outside of prison. He has received exemplary evaluations for his job performance and his job responsibilities have included complex tasks requiring cognitive, managerial, and interpersonal skills. His plans for parole appear reasonable and carefully planned. He is currently involved in an alternative form of NA that emphasizes coping skills and non-violent approaches to novel situations that he would face outside the institutional setting. He appears enthusiastic as well as engaged in this self-help program, which will likely enhance his chances for a productive existence outside of prison. . . .”
E. Parole Plans
Young plans to reside with his cousin Dorothy in Los Angeles upon parole. His employment goal is to obtain entry level work in the textile industry or as a sausage maker. He also has experience and skills gained in the Prison Industries wood factory and mattress factory. Young has saved a portion of his wages, which he estimated to be between one and two thousand dollars. His cousin Maggie also offered him a position in property maintenance, cleaning, gardening, painting, and doing light handiwork for her four apartment buildings.
Young explained that if he began to feel stressed, he would “work out. Run. Do a little exercise. Work out.”
F. District Attorney’s Position on Parole
The District Attorney opposed parole based on the crime.
G. The Board’s Decision
On March 14, 2006, the Board found Young unsuitable for parole. After announcing the decision, the presiding commissioner said: “Mr. Young, I’ve got a very serious question for you. Do you want to get out?” Young responded, “Yes. Yes.” The presiding commissioner told Young “the commitment offense is a long time behind you. It’s still a serious commitment offense. It was a stupid thing to do, no question about that. It was cruel, it was callous, it was calculated, you had a gun, . . . you terrorized this poor guy, and fortunately nobody got hurt. Just lost his property and made our insurance rates go up. . . . [Y]ou did have a callous disregard for human suffering and when the victim in this case . . . didn’t know if he was going to live or die but he lived and everything was fine. But, you did kidnap him and you did rob him at gunpoint, and you do have some history that had you headed in that direction.” The commissioner cited Young’s pre-commitment offense crimes, his escalating pattern of conduct, his failure to profit from society’s previous efforts to correct his criminality, and his tumultuous relationships with others.
Turning to Young’s programming, the presiding commissioner listed Young’s current work assignment in a “Joint Venture” that had him working on an assembly line making vials for pharmaceuticals, and “great work reports, some good letters.” Young’s disciplinary history, whether the three 115’s or the 128-A’s, was “not an issue any more.” Young had participated in AA and NA. The problem, the commissioner explained, was that Young did not know the location of an AA or NA near where he hoped to live once paroled, and “that tells us . . . you’re not staying in touch with the outside or maybe you’re not paying attention to and you are in touch with it.” The commissioner added: “You need somebody that you can call the first day that you’re outside in case — just so that you can make me feel — us feel comfortable knowing that you’ve got somebody you can call who’s been trained in dealing with somebody under stress and is thinking about re-offending.” Noting that his latest psychiatric report indicated Young was a low risk, and he had a place to live and marketable skills, the commissioner indicated Young needed an address for his future employer, as well as the rate of pay and benefits. “Given your health situation, you need health insurance. And what’s that gonna cost you out there?” Young answered: “I have no idea.” The commissioner responded: “Okay, that’s the reason you’re still here. You get it?” He said Young simply was not “closing the deal.”
H. The Habeas Corpus Proceedings
Young filed a petition for a writ of habeas corpus in this court on September 18, 2007, which we denied without prejudice on October 1, 2007, because he failed to show he first sought relief in Los Angeles County Superior Court.
Young filed the instant petition for a writ of habeas corpus on October 12, 2007. We issued an alternative writ or order to show cause on February 8, 2008 and appointed counsel to represent Young. We subsequently ordered the matter off calendar on June 27, 2008.
The Hon. Steven R. Van Sicklen, Los Angeles County Superior Court, denied the petition, Case No. BH004391, on December 28, 2006.
On December 2, 2008, we reset the matter for hearing and requested that the parties file letter briefs addressing the application of the California Supreme Court’s opinions in In re Lawrence, supra, 44 Cal.4th 1181, and In re Shaputis (2008) 44 Cal.4th 1241, to the issues raised in the petition for a writ of habeas corpus. The letter briefs were timely filed, and the matter is now ready for decision.
DISCUSSION
Young contends there is no evidence that he would currently “pose an unreasonable risk of danger to society if released from prison[,]” and the Board’s decision violated his due process rights. (Cal. Code Regs., tit. 15, § 2281, subd. (a).) We agree.
A. Governing Law
The purpose of parole is to help prisoners “reintegrate into society as constructive individuals as soon as they are able,” without being confined for the full term of their sentence. (Morrissey v. Brewer (1972) 408 U.S. 471, 477 [92 S.Ct. 2593].) Although a prisoner has no constitutional or inherent right to be conditionally released before the expiration of his sentence (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7 [99 S.Ct. 2100]), in this state, Penal Code section 3041 creates in every inmate a cognizable liberty interest in parole, and that interest is protected by the procedural safeguards of the due process clause. (In re Lawrence, supra,44 Cal.4th at p. 1205 [“petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate’s due process right ‘cannot exist in any practical sense without a remedy against its abrogation’”], quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 664; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 914-915.)
All references to section 3041 are to that section of the Penal Code. Section 3041, subdivision (a), provides as relevant: “One year prior to the inmate’s minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in [s]ection 3041.5. . . . The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.”
Section 3041, subdivision (b), establishes a presumption that parole will be the rule, rather than the exception, providing that the Board “shall set a release date unless it determines that the gravity of the current convicted offense . . . 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.” (See Board of Pardons v. Allen (1987) 482 U.S. 369, 377-378 [107 S.Ct. 2415] [unless designated findings made, parole generally presumed to be available].) “[I]n light of the constitutional liberty interest at stake, judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights.” (In re Lawrence, supra, 44 Cal.4th at p. 1211; Irons v. Carey (9th Cir. 2007) 479 F.3d 658, 662 [section 3041 vests “California prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause”].)
When assessing whether a life prisoner will “pose an unreasonable risk of danger to society if released from prison[,]” the panel considers all relevant, reliable information available on a case-by-case basis. (Cal. Code Regs., tit. 15, § 2281, subd. (a).) The regulations set forth a nonexclusive list of circumstances tending to show suitability or unsuitability for release. (Cal. Code Regs., tit. 15, § 2281, subds. (c), (d).) Factors tending to indicate suitability include: (1) the absence of a juvenile record, (2) a stable social history, (3) signs of remorse, (4) significant life stress motivated the crime, (5) battered woman syndrome, (6) no significant history of violent crime, (7) the inmate’s age, (8) realistic plans for the future, and (9) institutional behavior. (§ 2281, subd. (d).) Circumstances tending to show unsuitability include: (1) the commitment offense was committed “in an especially heinous, atrocious or cruel manner,” (2) a previous record of violence, (3) an unstable social history, (4) sadistic sexual offenses, (5) psychological factors, and (6) serious misconduct while incarcerated. (§ 2281, subd. (c).) “In sum, the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1205.)
Regulation references are to Title 15 of the California Code of Regulations unless otherwise indicated.
The regulation specifies the factors to be considered in determining whether the offense was committed in an especially heinous, atrocious or cruel manner as: “(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 which demonstrates an exceptionally callous disregard for human suffering. [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense.” (§ 2281, subd. (c)(1).)
The “core determination” thus “involves an assessment of an inmate’s current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at p. 1205, emphasis in original.) The Board is authorized “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.’” (In re Lawrence, supra, 44 Cal.4th at pp. 1205-1206, quoting In re Rosenkrantz, supra, 29 Cal.4th at p. 655.) “[D]irecting the Board to consider the statutory factors relevant to suitability, many of which relate to postconviction conduct and rehabilitation, 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.” (In re Lawrence, supra, 44 Cal.4th at p. 1219.) As a result, the “statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at p. 1211.) The Board can, of course, rely on the aggravated circumstances of the commitment offense as a reason for finding an inmate unsuitable for parole; however, “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 established 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 . . . commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1214, emphasis in original.)
B. Standard of Review
“[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry 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.” (In re Lawrence, supra, 44 Cal.4th at p. 1212, emphasis in original.) The standard is “unquestionably deferential,” and “limited to ascertaining whether there is some evidence in the record that supports the [Board’s] decision.” (In re Lawrence, supra, 44 Cal.4th at p. 1210.) Nonetheless, the standard “certainly is 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.” (In re Lawrence, supra, 44 Cal.4th at p. 1210.) Our inquiry thus 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 before the Board.” (In re Lawrence, supra, 44 Cal.4th at p. 1221, emphasis in original.) The Board or Governor must articulate a “rational nexus” between the facts of the commitment offense and the inmate’s current threat to public safety. (In re Lawrence, supra, 44 Cal.4th at pp. 1226-1227 [finding no evidence supported Governor’s determination that Lawrence remained a threat to public safety in view of her “extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board”].)
C. Analysis
The Board all but conceded Young was not dangerous and that his parole would not pose an unreasonable risk to public safety. The main reason given for his unsuitability related to his parole plans, which included his not “know[ing] where the AA or NA is”; not knowing his pastor’s affiliation; his need for “a few more letters of support”; his need to find out “where . . . the local Salvation Army” is; his need to “[f]ind out where [he] could go to work other than the maintenance”; and the need to state how much his employer would pay him and how he would pay for health insurance. In short, Young was unsuitable “because [he’s] not closing the deal.”
While this information would no doubt make for a perfect parole plan, the regulations do not establish such a standard. Subdivision (d)(8) of section 2281 provides: “Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.” Young’s plans for release are realistic: he has an offer of employment, a place to live, and family support. And there is no dispute that he developed marketable skills while in prison. As Young’s attorney pointed out during the hearing, an AA or NA meeting can be found on every corner. Young is committed to staying out of prison, as the mental health professionals reported, and is committed to doing whatever his parole officer requires, as he stated during the parole hearing. While Young did not provide an address for the AA or NA group he hoped to attend once paroled, nothing in the record suggests that Young could not or would not seek the assistance of a 12-Step program, particularly if made a condition of his parole. To the contrary, when asked whether he would go to a 12-Step program if paroled, he said: “If my parole officer (indiscernible), yes. Yes, I am [sic].”
Most important, nothing in Young’s pre- or post-incarceration history, or his current demeanor and mental state support a prediction of current dangerousness. The Board failed to offer a single reason why Young, in failing to “close the deal” by not providing the “missing” information about AA or NA locations and the like, remained a public safety risk, 25 years after the commitment offense, nor did the Board “establish[] a rational nexus between those factors and the necessary basis for the ultimate decision — the determination of current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at p. 1210.) Rather, as in Lawrence, “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.” (In re Lawrence, supra, 44 Cal.4th at p. 1227.) We conclude that, just as in Lawrence, there was no evidence in the record to establish that Young’s parole currently poses a risk of danger to the public, and the Board’s reliance upon the purported inadequacies in Young’s parole plan was arbitrary and capricious. Accordingly, we grant his petition for a writ of habeas corpus.
DISPOSITION
The petition for a writ of habeas corpus is granted. The Board is directed to find Young suitable for parole unless, within 30 days of the finality of this decision, the Board holds a parole suitability hearing and finds, based on new evidence, that he currently poses an unreasonable risk of danger to society if released on parole.
We concur: ROTHSCHILD, J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.