Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 101274
Duffy, J.
Earthy Evonia Young, respondent here, was convicted by plea in 1985 of second degree murder. He was sentenced to 15 years to life in prison. After passing his minimum eligible parole date in July 1994 and receiving multiple parole denials thereafter, in 2008 the Board of Parole Hearings (Board) granted him parole. But exercising the constitutional power under Article V, section 8 of the California Constitution, Governor Arnold Schwarzenegger reversed the Board’s grant of parole, citing the nature of the commitment offense, what he perceived as Young’s lack of insight about the crime, isolated aspects of a 2007 psychological evaluation that focused on static historical factors, and Young’s lack of a concrete job offer.
Young filed a petition for writ of habeas corpus, which the trial court granted, reinstating the Board’s grant of parole. In doing so, the court determined that the record lacked some evidence of Young’s current dangerousness—the ultimate issue relevant to the granting of parole—and that the Governor had failed to articulate any rational nexus between the factors cited and Young’s current dangerousness as required by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), which was existing law at the time of the Governor’s reversal.
Warden Gary Swarthout appeals from the trial court’s grant of habeas relief. Like the trial court, we find that the record lacks some evidence of Young’s current dangerousness were he now to be released from prison and that the record is devoid of evidence from which to establish a rational nexus to current dangerousness. We accordingly affirm.
Under Penal Code section 1474, the Warden where the prisoner is incarcerated is the proper respondent party in a petition by the prisoner for habeas relief. Further statutory references are to the Penal Code unless otherwise specified.
STATEMENT OF THE CASE
I. Background
We take the facts of the crime from the probation report and discussions of the event that appear in various reports in the record and transcripts of parole hearings.
In June 1985, Young was 22 years old. He was living at home with his parents and had fathered a daughter, who was then about six months old. This event had caused changes in his relationship with the child’s mother and Young was experiencing stress because of it. He had previously quit his job of three years working at Syntex Corporation in Palo Alto because of a cocaine addition and had been working at Fiesta Lanes Bowling Alley for the preceding two years. In those two years, he had overcome his cocaine addiction but was drinking heavily and daily and had suffered two drunk-driving convictions.
On June 4, 1985, Young had cashed his paycheck at the end of his shift and began drinking with his cousin at around 3:00 in the afternoon. They also smoked some marijuana. The two went to a few different places to drink and also bought liquor at a store. At around 9:30 that night, after about five hours of drinking, Young and his cousin went to a bus stop and waited to catch a bus home. His cousin stepped away to make a phone call. While he was gone, Young became engaged in a physical confrontation with another inebriated man, Alberto Bustamante, who was also at the bus stop. Bustamante was smaller in stature than Young and was 64 years old. He was an alcoholic and drank every day, using public transportation because of this. He would sometimes pick fights when he had been drinking. Due to his consumption of a lot of alcohol, Young does not remember just what had started the fight. But a witness said that he saw Young deliver “a karate-type kick into victim Bustamante’s face, causing Bustamante to fall to the ground, ” and then repeatedly kick and punch Bustamante while he was down. Other witnesses said they heard screaming and shouting coming from the bus stop area and they saw Young punching Bustamante, who was on the ground. One witness said she heard Young say “something to the effect [of], ‘I told you to give me what you had, motherfucker.’ ” When Young’s cousin returned to the scene, he saw Young and Bustamante fall to the ground in a struggle. But he did not intervene. When the fight was over, Young and his cousin “left, unhurriedly” and went to the bowling alley where Young worked. Young’s cousin repeatedly asked Young what had happened but he never got an explanation and assumed that Bustamante had said something to anger Young.
It did not occur to Young that Bustamante was gravely injured. But Bustamante, whose blood alcohol level registered.16 and.26 according to differing information in the record, was not able to speak very clearly or coherently due to the severe injuries to his face. He was taken to the hospital and he told police that three men had stolen his brown wallet from him. Yet, his brown checkbook was found near him and, according to a family member, he did not carry a wallet in addition to this. And the record does not reveal that Bustamante was missing anything or that Young possessed any stolen property.
Young and his cousin were arrested at the bowling alley after witnesses identified Young as the one who had beaten Bustamante. Young spent the night in jail but only remembers waking up there the next morning. His blood alcohol content level was.25. Bustamante died from internal bleeding that next day. Young, who is African American, told officers that “he had been simply sitting at the bus stop... when someone struck him on the right side of his face. He did not know who struck him, but he became extremely angry as approximately twenty to thirty minutes earl[ier] some ‘white kids’ had thrown an orange at him. In any event, he stated he began hitting out, however, did not know whether or not he had actually struck anyone. He stated, ‘I don’t know what happened. I guess I went wild.’ ” But he denied robbing Bustamante and later offered that he didn’t need money as he had just been paid.
Witnesses said that Young’s cousin was never part of the fight and the charges against him were dismissed after a preliminary hearing.
A probation officer who interviewed Young later reported that he “had very little recollection of the offence due to his grossly intoxicated state.... [A]ll he recalls happening at the bus stop where he was waiting for the bus to go home was being punched in the mouth. He did not really remember what he did next, but is under the impression he did realize he had been involved in a fight. He did not realize the seriousness of the injuries involved and in fact went with [his cousin] back to Fiesta Lanes to bowl....” He did not deny guilt but insisted that he had little or no memory of the event. He was not sure why he had acted as he did but “assume[d that] he did so after being struck by someone.”
A 1989 psychological evaluation noted that Young did not remember much about the incident but that “a racial slur and subsequent fight occurred.”
Young told a psychologist in 2007 that he did not have much recall of the event but over the years, he had tried to remember what had happened and believed he may have filled in gaps in his memory with imagined events so that, years later, it was difficult to decipher real events from what he had constructed as his memory of them. He said that he knew that the victim had punched him but he was unclear about why. A 2008 Life Prisoner Evaluation echoed that Young did not recall much about the event but only that he was “confronted by the victim” and the “confrontation escalated.” He told the Board in 2008 that he really did not remember what happened that day, and that he had blacked out from alcohol. He did not “blame the alcohol” for the beating but believed it was a contributing factor. He told the Board in 2006 that he wasn’t making any excuses for taking Bustamante’s life but due to his intoxication, he didn’t remember anything about him. He was then even questioning whether his memory of first being hit in the face was accurate and he really did not know anymore what had happened after playing it over and over in his mind in the years since the event happened.
Within six months of the crime, Young pleaded no contest to second degree murder. About his early plea, he later told the Board at a hearing that from the beginning, he was shaken up because he didn’t know he had committed such a crime. But he “didn’t fight it” and did not want to face a jury because if “I done this, you know, let me pay for it.”
Young was sentenced to an indeterminate term of 15 years to life in prison. He entered the prison system in February 1986 and was first eligible for parole in July 1994.
A. Criminal History
Young had no juvenile criminal history. But he was on probation when he committed the life crime. He had twice been convicted of drunk driving, and had four times been convicted of driving with a suspended license.
In 1983, Young was charged with battery and theft but it is not clear from the record whether this resulted in a conviction.
B. Social History
Young was born in Mississippi in July 1962. He has one younger brother and two younger sisters, none of whom has been involved in criminality. He characterized his upbringing as “traditional” and “southern” with strong morals and very loving and caring parents, both of whom worked, his father in the furniture business and his mother as a cook. He grew up in Memphis and he played sports and was in a band, playing several different instruments. His family moved to East Palo Alto when he was a teenager. He started drinking alcohol at the age of 11 or 12 and later used cocaine in addition. He quit school in the 12th grade when he learned he did not have enough credits to graduate on time. He began to hang around with the “wrong crowd” and became involved in drugs and negative behavior—“[d]riving around in cars all day, showing off tires, our rims, listening to loud music, smoking, drinking, partying, chasing girls.” As noted, before committing the life crime, he had held a full time job at Syntex Corporation for some three years and for the two years before the crime, had worked full time at Fiesta Lanes Bowling Alley. Although keeping down his job, because of his uncontrolled daily drinking he was experiencing “personality changes, memory and blackout periods, along with increasing irritability.”
After his arrest, Young married the mother of his daughter. That marriage ended in divorce after about four years. He married another woman while incarcerated but she was a fugitive and was later arrested. According to Young, he did not know that she married him using an alias, but this resulted in a disciplinary violation to him for falsification of documents. The marriage was not valid and didn’t last. At the time of the 2008 Board hearing, he was engaged to marry a woman he had met through his mother and with whom he had developed a relationship. Young’s daughter is now an adult and in 2007, she had visited Young a few times and they had corresponded.
C. Postconviction Disciplinary Record
Young was written up for serious disciplinary violations (CDC-115) for violent behavior three times within the first five months of his incarceration, the last of which was in 1987. In one of these incidents, he was the victim of violence but was written up for fighting nonetheless. He received another 115 in 1991 for falsification of records, relating to his second marriage. The last of his five 115’s was in 1993 for possession of pruno. That relapse involving alcohol made him realize that he had a problem with it and was “headed down... the wrong type of road” and that he could not “play with [his] life” any more. After that, he “changed” and sought help and “from that day, [he has] truly been pushing positivity” and has attained sobriety.
When an inmate commits misconduct that is “believed to be a violation of law or is not minor in nature, ” it is reported on a CDC Form 115 rules-violation report whereas minor misconduct is documented on a CDC Form 128, a custodial counseling chrono. (Cal. Code Regs., tit. 15, § 3312, subds. (a)(2) & (3).) Further references to regulations or “Regs.” are to title 15 of the California Code of Regulations.
He also received three counseling chronos for minor misconduct (CDC-128) during his incarceration—for failure to report to the visiting search room (1995), “window cover” (1989), and “covering of rear cell window” (1987). At the time of the Board hearing in 2008, he had been free of serious disciplinary violations for some 15 years.
Young received a laudatory chrono in 2007 for his work performance on assignment to the Substance Abuse Program (SAP). He was noted to have a positive and helpful attitude and his involvement with the re-entry aspect of the program was thought to enable him to better prepare for his own re-entry into the community upon parole. He showed a “keen sense of understanding towards relating to peers and counselors alike” and he was consistent about helping other inmates. A laudatory chrono from 2005 also noted that Young entered SAP “as a client and soon after became a peer [monitor] expeditor to help facilitate the program’s curriculum.” Young was thought to be an asset to any re-entry program upon release.
D. Prison Behavior and Programming
Young had a classification score of 19—the lowest possible classification score for an inmate with a life term. He obtained his GED in 1987. He also took training and received a certificate in aviation—vocational air engines and vocational air frames—and one in silk-screening. He held numerous jobs while in prison, including an assignment for 10 years with the Prison Industry Authority, where his work ratings were always above average or higher. He also worked in metal fabrication for over 10 years, receiving positive work reports. At the time of the 2008 Board hearing, Young was working as a SAP clerk, administering a variety of programs and classes serving incoming and reentry inmates, with good to exceptional work reports. The position involves mentoring other inmates about SAP, a comprehensive rehabilitation program that serves inmates from the time they are new to the system through their reentry into society, and is one reserved for people who “the prison trusts.” Young considered the work to have enhanced his social skills, drawing him out of being “anti-sociable.”
Young has also participated in a variety of self-help programs. He was involved with Alcoholics Anonymous during his entire incarceration, including the 16 years preceding the 2008 hearing during which he remained completely sober. He participated in SAP himself, achieving four certificates between his 2007 parole denial and his 2008 parole hearing. He also received certificates for other programs—Centerpoint, Domestic Violence, Parenting, and Anger Management—and he participated in still others such as Circle of Life, Relationship Awareness Workshop, P.H.A.S.E.S. Life Skills, Breaking Barriers, Anger Management, Sexual Abuse/Assault Prevention and Intervention, and Basic and Advanced Alternatives to Violence. He has sometimes attended church and has also engaged in self-study. And he completed First Aid and Adult and Child CPR courses with the Red Cross.
According to Young, participating in self-help programs furthered his rehabilitation. He told the Board that although he was remorseful for his crime even when he began his incarceration, he was then “still a little feisty, maybe a little reckless with [his] behavior and a little stressed.” He later began to participate in programs, viewing them as “an opportunity” to take advantage of the “positive things” they offered. His interactive participation with other people helped him to understand that he was “not alone” and that others were “going through the same thing.” This enabled him to take “a closer look at [him]self” and “start changing.” He “tapped into [his] spirituality” and “went into a higher power, a little more praying.” He returned to values “instilled in [him] as a young man” and incorporated them into “who [he] wanted to be and what [he] c[ould] become.” He began to see the potential in himself and to start realizing it, pushing himself to grow through challenges. He has been tested in situations, such as with the death of his father, but he was “humble” and “patient, ” responding by listening and using “good decision making instead of the bad decision making.” Specifically through his participation in Alcoholics Anonymous (AA), Young learned to make amends and take one “step at a time. Put it in the hands of [his] higher power. Keep... searching and [making a] moral inventory of [himself].” He learned to promptly admit when he was wrong and to admit through the 12 steps of AA that he is “powerless over alcohol.” But he also learned to establish a support system to prevent relapses, which included keeping a “relapse book” and a “hotline” phone number he can call if he finds himself in a “stressful type[, ] trigger type situation” that he needs to extract himself from. He also finds support from his mother, his fiancée, and AA itself.
E. Psychological and Life Prisoner Evaluation
The most recent psychological evaluation that appears in the record is from August 2007. A 2006 Board panel had requested that the evaluator specifically assess Young’s potential for violence if released, the extent to which he had explored the commitment offense and come to terms with its causes, and any Axis II diagnosis.
In his report, the psychologist relayed his discussions with Young about his remorse for the crime, noting that although Young took full responsibility for it, according to him, he could not ever fully make restitution because it’s “impossible to bring back a life. You can’t repair the misery I’ve caused this family. [You] can try to give back, but you can’t ever give back enough.” When asked what had changed from his commission of the crime such that something like this would not ever happen again, Young said that his “thinking, attitude, and behavior had all changed.” He described himself as “more positive and mature. He does not have a criminal nature, and he is not into alcohol and drugs. [Young] has tried to deal with his past lack of empathy... and has started to develop appropriate coping skills.” In response to the question how he had made these changes, Young said, “It has been a slow process. I’ve had a lot of time while incarcerated to do self-analysis and try to figure out why it happened and why I was drinking so heavily. I wanted to be a better individual and develop my human qualities and I believed that I could change.”
The psychologist concluded that Young had no serious mental health problems but that he met the Axis I criteria for Polysubstance Dependence “in controlled environment remission.” He also met the “diagnostic criteria for Adult Antisocial Behavior” on Axis I in that he had a history of arrests and substance abuse prior to the life crime and had received some disciplinary violations early on while in prison.
In terms of evaluating Young’s potential for violence if released from prison, the psychologist used two separate assessment guides—the Psychopathy Check List Revised (PCL-R) and the History Clinical Risk Management 20 (HCR-20). He also used the Level of Service/Case Management Inventory (LS/CMI) to assess Young’s general potential for recidivism.
On the PCL-R, the psychologist rated Young in the low range of psychopathy. With respect to the historical factors aspect of the HCR-20, which assesses violence potential based purely on historical factors, he assessed Young in the “low moderate” range. This was based on the static factors of Young’s “history of substance abuse, his involvement in unstable relationships, his age at the time [of the crime], and his having a prior arrest history.” With respect to the clinical insight aspects of the HCR-20, the psychologist assessed Young’s propensity for violence as low, noting that he does not have “a negative attitude, ” he does not have “active mental health symptoms, and he is not impulsive.” Young “has had a good response to treatment. His insight and remorse seem appropriate for his level of cognitive functioning.” With respect to the risk management aspect of the HCR-20, the psychologist also rated Young’s risk as low, observing that he has been “able to handle compliance, and stress and destabilizers well while incarcerated” and his “parole plans seem feasible.” With respect to the LS/CMI, the psychologist assessed Young’s potential for general recidivism in the low range. He thus rated Young’s overall risk assessment in the low range for psychopathy, in the low range for overall propensity for violence compared to similar inmates, and in the low range for general recidivism.
In terms of the extent to which Young has explored the commitment offense and come to terms with the underlying causes, what might be referred to as “insight” into the crime, the psychologist observed that Young readily admits the role alcohol played in the crime and in his previous criminality. But, he further noted, Young “believes his substance abuse allowed him to cope because he was falling short of his goals, and alcohol gave him a sense of security and assurance that such failures really didn’t matter. It also made him feel comfortable with himself. [Young] has now been clean and sober for many years and continuously involved in treatment. He understands the need for life-long treatment. [On t]he day of the crime, [he] had been drinking heavily and reportedly experienced a blackout or a partial blackout before taking the victim’s life. There continues to be a lot of ‘gaps’ in his memory; however, he verbally takes full responsibility for the crime. [He] has spent a considerable amount of time attempting to understand the underlying causes, and gaining insight, into his criminal behavior. [He] has taken significant steps to rectify his problems through self-help and substance abuse treatment. This is to be commended and encouraged.”
In terms of an Axis II diagnosis, the psychologist observed that “[i]n earlier evaluations, [Young] was either diagnosed as not having a Personality Disorder, having Passive Aggressive Personality with some Antisocial traits, or having Dependent and Avoidant features. The most recent evaluation, dated August 24, 2006, identified Narcissistic features, Dependent features, predominantly resolved. [Young] appears to have never met the full-blown criteria for a Personality Disorder, but rather, only traits or features of an Axis II disorder. It is obvious [Young] has had antisocial traits or criminal traits in the past given his multiple arrests, use of alcohol and drugs in the community, his actions in the controlling case, and his history of 115s and 128As in prison, ending sometime between 1987 and 1993. [Young] appears to have the kind of antisocial traits that we see in a number of inmates that are not linked to psychopathy, as reflected in his low PCL-R score, but rather to his background, environment, school failure, behaviors, and other issues that have a tendency to remit with age.”
As noted, a 2006 psychological report included an Axis I diagnosis of “Poly Substance Dependence, which is In Institutional Remission. Under Axis II, there’s a Personality Disorder Not Otherwise Specified, with Narcissistic and Dependent Features Predominantly Resolved.” The psychologist observed that Young had been able to demonstrate his ability to maintain and sustain a level of “impulsive behavior control” in the institutional environment and that he had shown a “great deal of insight and understanding into the social and emotional issues that contributed to [the] life crime.” The psychologist concluded that “there is a high reasonable probability that [Young’s] risk of dangerousness continues to be lower than that of the average inmate incarcerated” with him and that his “risk of dangerousness is consistent with those individuals who have committed similar offenses and who have successful paroles in the community.”
A 2005 psychological report diagnosed Young with “Alcohol Abuse, by history, Polysubstance Dependence, in [institutional] remission, and Adult Antisocial Traits.” The report observed that Young has “a great sense of remorse” for the crime and he believes that his “actions on that day were uncharacteristic of him.” He accepts responsibility and knows there was no excuse for it. At the time he was “intoxicated and blacking out” but now lives with the “miserable feeling” that because of his own “wrongful actions, ” he took someone’s life. This is not how he was raised and he “has to look at it everyday (sic) of his life.” He is sorry about it and feels remorseful. When asked what had changed about him since the crime, Young offered that his “character ha[d] developed. He is ‘aware of who [he is].’ He said he looks at other people, society, laws of society, and living in a good way.” He was no longer drinking and “is growing towards positive versus negative.”
In terms of his potential for danger based on historical factors, the psychologist in 2005 rated Young in the “low moderate range” compared to other inmates who have committed similar violent crimes. “In rating [Young] on the clinical factor, ” the psychologist also assessed him in the “low moderate range.” But in terms of environmental and risk management, he placed Young in the low-risk range.
A 1999 psychological report diagnosed Young with “Alcohol Dependence, by history, Polysubstance Dependence, in full remission, and Personality Disorder, Not Otherwise Specified with Passive and Aggressive features.” His dangerousness if released to the community was considered to be “average or lower compared to other inmates.”
A 1995 psychological report noted that although Young did not remember what had actually taken place because he was under the influence of alcohol and marijuana, he expressed an appropriate level of remorse and regret about his crime. He was diagnosed with “Alcohol Dependence with Physiological Dependence, sustained full remission” and “Polysubstance Dependence, sustained full remission” on Axis I. On Axis II, he was diagnosed with “Personality Disorder NOS with Passive-Aggressive and Antisocial Features, much improved.” He was noted to have made some psychological gains since being incarcerated, which were considered to be “permanent and stable as he would be able to maintain them in a less structured environment such as the community. His potential for violence in the community is considered below average for the general prison population.”
A 1989 psychological evaluation noted no mental health problems. Young was self described as a life-long alcoholic and was participating in AA. He expressed remorse for his crime and can “almost not believe that he could [have been] involved in such [an] offense. Yet he takes full responsibility and accepts his penalty.” The psychologist opined that Young did not “appear to be criminal or delinquent oriented as such” and he was “struck by his pleasantness, attention to detail, and inquiring attitude.” He detected no “signs or symptoms suggestive of a thought disorder, delusions, or hallucinations” but Young acknowledged that when under the influence of alcohol, he experienced “blackouts, memory lapses, early withdrawal, symptoms of agitation resulting in repeated drinking and changes in personality and marked irritability.” Young was diagnosed with Alcohol Dependence in institutional remission under Axis I and there was no diagnosable personality disorder under Axis II. He was noted to be able to hold present gains and continue improvement in a less controlled setting and his violence potential if released was considered to be average based on the “ready accessibility of alcohol and its unpredictability with regard to his personality.”
A 1987 psychiatric report did not diagnose Young beyond Alcohol Dependence and it did not assess his violence potential.
G. Parole Plans
Upon being paroled, Young planned to participate in an in-patient program through SAP in Santa Clara County. He alternatively planned to live with his mother in Fremont. He had no current job offer but if “admitted to the residential setting, the SAP program would arrange for employment and treatment options. [His] community support would also be through the SAP program.” He planned to work with “temporary services” to find a job and could perform “landscaping, hauling, window washing, miscellaneous-type stuff.” But he also hoped to be able to study and work in counseling, furthering the work he had been doing with SAP while incarcerated. He recognized that he would first go into a “basic job” paying minimum wages but he hoped to get educated and “develop a skill that’s marketable and acceptable.”
Young had letters of support from his mother, who visits him regularly, and his fiancée, both of whom offered “clothes, food, transportation, housing, and any other necessities that he will need.”
He also planned to “set up a new AA package, ... new self-help groups and just center [his] life around that... [be] around people [who] understand sobriety” and who are “working toward that.”
II. Procedural Background
A. The Board’s 2008 Grant of Parole
The September 2008 hearing followed five previous annual hearings resulting in parole denials. During the hearing, the Board panel discussed with Young all of the above mentioned topics, and found that he would not pose an unreasonable risk to public safety if released and was suitable for parole. The Board considered the nature and gravity of the commitment offense and found the crime “particularly troubling” and “really horrible.” Other factors not favoring suitability cited by the Board were Young’s “unstable social history, ” which included his severe alcohol use, the fact that he “was a high school drop out” and his early misconduct while in custody. Factors favoring suitability that were determined to outweigh the negatives were that Young was under significant stress in his life at the time of the crime as a result of his alcohol use and the birth of his daughter; that he demonstrated “significant remorse” for the crime, which included identifying the victim’s death with the grief he felt when his own father died; and that the 2007 psychological report assessed Young’s risk of dangerousness and potential for recidivism as low. The Board also cited the age of Young’s five disciplinary violations and three counseling chronos, the 15 years he had been free of disciplinary issues, his vocational coursework, his self-help programming that was significant and recent, his lengthy involvement with AA and his leadership position within SAP, his laudatory chronos and work record, his “viable parole plans, ” and his lack of a criminal history as a juvenile and relative lack of a criminal history. In spite of the factors favoring unsuitability, the Board observed that Young had done everything that was asked of him for 15 years, that he had been a “model prisoner, ” and that he “had” remorse and insight “as much as [he] possibly could.”
The Board directed that special conditions of parole would include random drug testing and avoidance of alcohol, along with continuing rehabilitation evaluation and treatment if deemed appropriate.
B. The Governor’s Reversal
On February 11, 2009, the Governor reversed the Board’s grant of parole. He cited the “especially atrocious” crime, so described because, in the Governor’s view, the “victim was particularly vulnerable. Mr. Bustamante was unarmed, outnumbered, and posed no threat to Mr. Young. As the probation officer noted, this was a ‘brutal beating of a 64-year-old man....’ ”
The Governor also said that Young’s “articulation of responsibility, and his version of events surrounding the life offense, has varied widely over the years, indicating that he still lacks insight into his responsibility for the murder. He initially told the probation officer that he ‘had very little recollection of the offense due to his grossly intoxicated state.’ He further indicated that he was ‘punched in the mouth’ while he was waiting for the bus. In 1989, he told his mental-health evaluator that he remembered very little about the incident, but recalls ‘a racial slur and subsequent fight occurred.’ Mr. Young told the 1995 mental-health evaluator that he did not remember exactly what happened but that he had no intention of killing Mr. Bustamante and that it was ‘an accident.’ In 2005, he told the mental-health evaluator that ‘he was intoxicated and blacking out.’ The 2006 Board asked Mr. Young what led to the fight and he replied, ‘I don’t know exactly what led up to the start of the fight.’ Mr. Young also told his 2006 correctional counselor that ‘he was confronted by the victim (who had also been drinking) and the confrontation escalated resulting in the severe beating of Mr. Bustamante.’ He told the 2008 Board that ‘I actually don’t even remember what happened that day. It was like a blackout for me.’ ”
The Governor also cited the 2007 psychological evaluation as raising “additional concerns.” He observed the evaluator “opined that ‘Mr. Young meets the diagnostic criteria for Adult Antisocial behavior’ and noted his ‘history of arrests and substance abuse prior to the controlling case.’ In addition, the evaluator noted that ‘[i]t is obvious the inmate has had Antisocial traits or criminal traits in the past given his multiple arrests, use of alcohol and drugs in the community, his actions in the controlling case, and his history of 115s and 128As in prison, ending sometime between 1987 and 1993.’ With regard to ‘historical factors that predict future violence, the inmate would rate in the low moderate range in his propensity for future violence.’ ”
Although the Board had found that Young was experiencing significant stress in his life at the time of the crime, the Governor disputed this, citing the 2007 psychological evaluation for its statement that Young’s “ ‘girlfriend’s pregnancy had created some stress in his life, but he was not experiencing any extraordinary stressors at the time.’ ” The Governor recognized “the difficulty Mr. Young may have experienced as a result of his drinking, ” but stated his belief that this “factor alone does not sufficiently mitigate the nature and circumstances of the crime he committed.”
The Governor further cited as a factor in support of his reversal that Young did “not have a current job offer” despite earlier admonitions from correctional counselors and the 2007 Board panel that he needed to develop employment plans.
In reversing the Board’s grant of parole, the Governor said that he was “particularly concerned by Mr. Young’s lack of insight into the circumstances of the life crime and the 2007 mental-health evaluation.” He cited the 2006 Board panel’s statement to Young that “ ‘until you can talk about at least to some extent what took place leading up to [the crime], what took place during, it’s going to be very difficult for you to convince a Panel that you won’t repeat it....’ The record indicates that Mr. Young has given different accounts of the crime, often simply stating he doesn’t remember, but other times remembering details that are inconsistent with witness accounts. This indicates to me that he does not yet understand the circumstances of the crime enough to avoid such a crime in the future, and that he is a current risk. His most recent mental-health evaluation confirms this, indicating that he may still pose a risk of violent recidivism and that he currently meets the diagnostic criteria for Adult Antisocial Behavior. These combined factors indicate to me that his release from prison at this time would pose an unreasonable risk to public safety.”
C. The Instant Habeas Proceeding
Young challenged the Governor’s reversal of the Board’s grant of parole by petition for writ of habeas corpus in the trial court. He primarily contended that the decision was not supported by some evidence of his current dangerousness to the public were he now to be released and that the Governor erroneously relied on immutable or static factors in denying parole.
The trial court issued an order to show cause. The order questioned whether the Governor’s characterization of the offense as aggravated added “anything to the analysis” in light of Lawrence, which had been issued and was the law when the Governor reversed the Board’s grant of parole in this case. And regarding the Governor’s conclusion that Young “ ‘lack[ed] insight, ’ ” the order questioned whether the evidence the Governor cited actually bore on Young’s current dangerousness, distinguishing the evidence from the facts in In re Shaputis (2008) 44 Cal.4th 1241(Shaputis), and observing that in view of Young’s state of intoxication when he committed the crime, it is unremarkable that he is not today able to “present a crystal clear picture of those distant events.” Regarding the Governor’s “ ‘concerns’ ” stemming from the 2007 psychological report, the court’s order suggested that the Governor was “pars[ing]” too finely, extracting from the eight-page report “negative static factors while ignoring the Psychologist’s ultimate conclusion that the ‘overall risk assessment’ places [Young] in the lowest range possible for all three categories” and taking conclusions out of context, as expressly “forbidden by the Lawrence decision, ” i.e., relying “on static factors without an identified nexus” to current dangerousness. The order directed the filing of a return.
The Warden filed a return, which generally contended that some evidence supported the Governor’s decision but did not specifically address the court’s stated concerns. And Young filed a traverse.
On September 10, 2009, without having conducted a hearing, the court granted habeas relief by written order, reinstating the Board’s grant of parole. The court concluded that the Governor’s reversal had failed to articulate a rational nexus between the evidence relied on and Young’s current dangerous, in violation of Lawrence. And, with respect to the Governor’s finding of Young’s lack of insight, the order concluded that in violation of the law, the Governor had in effect required Young to admit guilt as a condition to being paroled by his citation to the 2006 Board panel’s observation that until Young could explain the events leading up to and during the crime, it would be difficult for him to be released. “What remains of the Governor’s ‘lack of insight’ finding is based on an improperly parsed psychologists’s report... and a selective extraction of distant, unrelated, and sometimes irrelevant facts. [Young]’s account of the crime has not been significantly impeached or shown to be inconsistent... in any way that reflects on the real issue of present dangerousness, and the Governor has provided no more here than what was insufficient in Lawrence.... [Citation.] This case is not meaningfully distinguishable from Lawrence... and is entirely unlike Shaputis....”
Finally, the court’s order concluded that the Governor’s “desire that [Young] have a waiting job offer provides no support” for the denial of parole. The court found this “desire” to be “unrealistic, even in a good economic climate and entirely unreasonable today. The Board correctly found [Young] had realistic housing and financial support from family, and a work ethic and skills that could lead to a job. This is all the regulations require and all that can be expected.”
We stayed the trial court’s order pending resolution of the appeal.
DISCUSSION
I. Contentions on Appeal and Standard of Review
The Warden raises two specific contentions on appeal. They are first that there is some evidence in the record supporting Young’s current dangerousness—the “interrelation of the commitment offense, Young’s lack of insight, [the] 2007 mental health evaluation, and [the] lack of a current job offer.” Secondly, he contends that assuming the decision was not supported by some evidence, the court nevertheless erred by reinstating the Board’s grant of parole and not remanding the matter back to the Governor to conduct a new review in accordance with due process.
In conducting our appellate review where, as here, a trial court has granted habeas relief without an evidentiary hearing, the question presented is one of law, which we review de novo. (In reRosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz) [reviewing court independently reviews grant of habeas petition challenging parole denial based solely on documentary evidence]; In re Zepeda (2006) 141 Cal.App.4th 1493, 1497.) We proceed accordingly after setting forth the substantive legal principles that govern parole decisions and review thereof.
II. General Legal Principles
The California Constitution places the “supreme executive power” with the Governor. Inherent in this authority are purely executive functions that include the powers of reprieve, pardon, and commutation. (Cal. Const., art. V, §§ 1, 8, subd. (a).) In 1988, the electorate broadened these powers by amending article V, section 8 of the California Constitution to vest the Governor with the final authority to “affirm, modify, or reverse” a Board decision concerning parole of a prisoner convicted of murder. (Cal. Const., art. V, § 8, subd. (b); § 3041.2; In re Dannenberg (2005) 34 Cal.4th 1061, 1086 (Dannenberg).)
Article V, section 8, subdivision (b) of the California Constitution provides in relevant part that “[n]o decision of the parole authority of this state with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider.”
In performing his review, the Governor has broad discretion, but he is bound to consider the same parole suitability factors that restrict the Board’s parole decisions. He is also constrained by the same procedures specified by statute and regulation that define the parameters of the Board’s exercise of discretion in parole suitability matters. (Rosenkrantz, supra, 29 Cal.4th at pp. 660-661; In re Lowe (2005) 130 Cal.App.4th 1405, 1424.)
Section 3041 subdivision (b) requires a parole release date to be set “unless [the Board] 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.” (Italics added.) “[A]s set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after considering the circumstances enumerated in section 2402 [or section 2281] of the regulations, that the prisoner is unsuitable for parole.” (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
“Title 15, section 2402... provides parole consideration criteria and guidelines for murders committed on or after November 8, 1978.” (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, fn. 5; see Regs., § 2400.) For murders committed before that date, section 2281 of the regulations applies. But the sections are identical, and the reasons for this repetition are set out at section 2400 of the regulations. (Regs., § 2402.) Section 2402, subdivision (c), of the regulations states that “[c]ircumstances tending to indicate unsuitability include: [¶] (1)Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: [¶] (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. [¶] (2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age. [¶] (3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others. [¶] (4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. [¶] (5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense. [¶] (6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail.” Regulations, section 2402, subdivision (d), states in part that “[c]ircumstances tending to indicate suitability include: [¶] (1)No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims. [¶] (2) Stable Social History. The prisoner has experienced reasonably stable relationships with others. [¶] (3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense. [¶] (4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress had built over a long period of time. [¶] (5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization. [¶] (6) Lack of Criminal History. The prisoner lacks any significant history of violent crime. [¶] (7) Age. The prisoner's present age reduces the probability of recidivism. [¶] (8) 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. [¶] (9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.”
Once the Board determines that an inmate is suitable for parole, “the Governor undertakes an independent, de novo review of the inmate’s suitability for parole [citation]” under article V, section 8, subdivision (b) of the California Constitution. (Lawrence, supra, 44 Cal.4th at p. 1204.) The Governor “must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation. [Citation.]” (Id. at p. 1219.) While the Governor’s discretion in his review of parole suitability determinations is very broad, it is not complete or absolute. His discretion, like that of the Board, includes the power to “identify and weigh the factors relevant to predicting ‘by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.’ [Citation.] However, ‘the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the [Governor].’ [Citation.]” (In re DeLuna (2005) 126 Cal.App.4th 585, 591.) In exercising his discretion, the Governor, like the Board, is constrained by the procedures specified by statute. The precise manner in which the specified factors relevant to parole suitability are considered and balanced is within the Governor’s discretion, but his decision must reflect an individualized consideration of all the specified criteria and it cannot be arbitrary or capricious. (In re Scott (2005) 133 Cal.App.4th 573, 590-591 (Scott II), citing Rosenkrantz, supra, 29 Cal.4th at p. 677.)
Before the California Supreme Court decided Lawrence and Shaputis in 2008, that court had articulated the “some evidence” standard of judicial review that authorized a court to grant habeas relief from a parole decision denying parole where the factual basis of such decision was not supported by some evidence in the record. (Rosenkrantz, supra, 29 Cal.4th at pp. 658, 667, 670.) In Lawrence, the court clarified that “the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1221.)
The Supreme Court further explained in Lawrence that a parole decision “is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude. [Citations.]” (Lawrence, supra, 44 Cal.4th at p. 1221.) “[U]nder the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.” (Id. at p. 1212.) “[A]s specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor.” (Id. at p. 1213.)
As to judicial review of a parole decision, “because the core statutory determination entrusted to the Board and the Governor is whether the inmate poses a current threat to public safety, the standard of review properly is characterized as whether 'some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.” (Lawrence, supra, 44 Cal.4th at p. 1191.) There must be something “more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1210.)
In exercising parole authority, the governing statute requires the Board, and thus the Governor, to consider and rely upon “evidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate's attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record....” (Lawrence, supra, 44 Cal.4th at p. 1213.) “By reviewing this evidence, a court may determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety.” (Ibid.)
But Lawrence reaffirmed that judicial review of parole decisions is deferential, stating that its “clarification that the ‘some evidence’ standard of review focuses upon evidence supporting the core statutory determination of public safety [did] not alter [its] recognition in Rosenkrantz and Dannenberg that the [parole] decisions of both the Board and the Governor are entitled to deference.” (Lawrence, supra, 44 Cal.4th at p. 1191, fn. 2; Dannenberg, supra, 34 Cal.4th at p. 1095, fn. 16; Rosenkrantz, supra, 29 Cal.4th at p. 665.) “Resolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board” or Governor. (Rosenkrantz, supra, 29 Cal.4th at p. 656.) The deferential “some evidence” standard of review still requires only a “modicum of evidence” of unsuitability for parole. (Lawrence, supra, 44 Cal.4th at p. 1226; Rosenkrantz, supra, 29 Cal.4th at p. 677.) But the deferential review afforded does not mean that courts simply rubber stamp the determination as long as there is some evidence to support any of the unsuitability factors; the “standard is unquestionably deferential, but certainly is not toothless.” (Lawrence, supra, 44 Cal.4th at p. 1210.)
Under the “some evidence” standard then, “the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.” (Lawrence, supra, 44 Cal.4th at p. 1221.) This inquiry asks “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. [Citations.]” (Id. at p. 1212.)
“[T]he Board or 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 to the statutory determination of a continuing threat to public safety.” (Id. at p. 1214.) On the other hand, “the unexceptional nature of the commitment offense will not inevitably reflect a lack of current dangerousness without due consideration of the inmate's postconviction actions and progress toward rehabilitation.” (Id. at p. 1218.)
As noted, a decision concerning an inmate’s suitability for parole must be based on a consideration of all relevant factors. (Lawrence, supra, 44 Cal.4th at pp. 1191, 1219; Regs., § 2402, subd. (b) [“All relevant, reliable information available to the panel shall be considered in determining suitability for parole”].) The factors specified by the regulations for determining parole suitability set forth in the Code of Regulations are guidelines and are not exclusive. (Regs., § 2402, subds. (c) & (d).) “Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Regs., § 2402, subd. (b).)
“[I]n determining whether further incarceration is necessary to protect the public, the Board (and the Governor) must consider, among other factors, whether the inmate exhibits signs of remorse, has made realistic plans for release or has developed marketable skills that can be put to use upon release, and whether the inmate's institutional activities reflect an enhanced ability to function within the law upon release. [Citation.] Moreover, the Board must consider the inmate's past and present mental state and past and present attitude toward his or her crime. [Citation.] These suitability factors clearly establish that the statutes contemplate the consideration of an inmate's rehabilitation as an integral element of a parole suitability determination, and that a determination of the current threat posed by an inmate necessarily involves consideration of the inmate's postconviction conduct and mental state as it relates to his or her current ability to function within the law if released from prison.” (Lawrence, supra, 44 Cal.4th at p. 1220, fn. 19; Regs., § 2402, subds. (b) & (d)(3).)
Psychological evaluations of an inmate's risk of future violence also provide information that “bears on the prisoner's suitability for release” (Regs., § 2402, subd. (b)), but such assessments do not necessarily dictate the Board's parole decision. It is the Board's job to assess current dangerousness and parole must be denied to a life prisoner “if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Regs., § 2402, subd. (a).) But the Board retains authority “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.’ (Rosenkrantz, supra, 29 Cal.4th at p. 655.)” (Lawrence, supra, 44 Cal.4th at pp. 1205-1206.)
As applied by courts conducting judicial review of parole decisions, “the ‘some evidence’ test may be understood as meaning that suitability determinations must have some rational basis in fact.” (Scott II, supra, 133 Cal.App.4th at p. 590, fn. 6.) As confirmed by Lawrence, while courts do not reweigh the evidence or engage in judicial balancing of the specified factors, the exceedingly deferential “nature of the ‘some evidence’ standard of judicial review set forth in [Rosenkrantz] does not convert a court reviewing the denial of parole into a potted plant.” (In re Scott (2004) 119 Cal.App.4th 871, 898 (Scott I); Lawrence, supra, 44 Cal.4th at pp. 1211-1212.) “[T]he evidence must substantiate the ultimate conclusion that the prisoner’s release currently poses an unreasonable risk of danger to the public. ([Rosenkrantz, supra, 29 Cal.4th at p. 677]; In reLee [(2006)] 143 Cal.App.4th [1400, ] 1408.) It violates a prisoner’s right to due process when the Board or Governor attach[] significance to evidence that forewarns no danger to the public or relies on an unsupported conclusion. [Citations.]” (In re Tripp (2007) 150 Cal.App.4th 306, 313.) “Accordingly, the judiciary is empowered to review a decision by the Board or the Governor to ensure that the decision reflects ‘an individualized consideration of the specified criteria’ and is not ‘arbitrary and capricious.’ [Citation.]” (Lawrence, supra, 44 Cal.4th at p. 1205.)
III. The Governor’s Decision Was Not Supported by Some Evidence in the Record of Young’s Current Dangerousness
A. The Commitment Offense
Young does not dispute that his crime of second degree murder was indeed grave or serious. (In re Smith (2003) 114 Cal.App.4th 343, 366 [all murders by definition involve “some callousness—i.e., lack of emotion or sympathy, emotional insensitivity, indifference to the feelings and suffering of others”].) The Governor’s decision termed the offense “especially atrocious” but cited no regulatory factors the consideration of which establishes this conclusion. (See, Regs., § 2402, subd. (c).) Instead, the Governor cited his view that the victim was “particularly vulnerable, ” being “unarmed, outnumbered, and pos[ing] no threat” to Young.
But the record does not support the victim’s cited vulnerability. It is true that Bustamante was 64 years old and smaller in stature than Young, facts not cited by the Governor. And it is also true that he was unarmed, as far as we know. But Young himself was not armed, Bustamante was not outnumbered as Young was the only other combatant, and it can’t be said on this record that Bustamante absolutely did not pose a threat to Young. Bustamante was known to pick fights when he was drunk and it is not clear from the record just how this fight started and whether Young was provoked. What is clear is that both men were extremely intoxicated.
But even if the crime were especially atrocious as characterized by the Governor, a crime involving aggravated circumstances “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 postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.) As noted, Lawrence and Shaputis make clear that “ ‘the relevant inquiry... 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 or the Governor.’ ” (Shaputis, supra, 44 Cal.4th at p. 1255, italics added, quoting Lawrence, supra, 44 Cal.4th at p. 1221.)
The Governor did not here articulate a rational nexus between Young’s commitment offense and the conclusion that he remains a threat to the public were he to now be released. And we see nothing in this record that would continue to render the historical facts of the crime probative to the issue of the Young’s current dangerousness, in light of the many factors favoring suitability that are present.
The Warden contends that it is not a single factor alone but the “interrelation of the commitment offense, Young’s lack of insight, [the] 2007 mental health evaluation, and [the] lack of a current job offer” that establishes some evidence supporting the conclusion that Young remains dangerous. But under Lawrence, if the Board or the Governor rely on the commitment offense, or other immutable factors, to deny parole, the connection between it and the inmate’s present danger to society must be clear. (Lawrence, supra, 44 Cal.4th at p. 1227; In re Criscione (2009) 173 Cal.App.4th 60, 79; In re Ross (2009) 170 Cal.App.4th 1490, 1513.) In the abstract, citation to other factors in a particular record might illustrate how an inmate’s life crime remains probative of dangerousness. But that is not the case here. The Governor made no effort to relate the historical facts of the crime to his conclusion of dangerousness, whether by expressly linking the crime to other cited factors such that it remains probative or by implying such a connection in reasoning. And, as we will see, the other factors cited by the Governor here either find no support in the record or they are not themselves probative of current dangerousness.
Thus, we reject the Warden’s contention that on this record, the unexplained interrelation of the cited factors is enough to elevate the commitment offense to some evidence of Young’s current dangerousness, particularly in the absence of any articulated reasoning connecting the historical facts of the crime to present risk, whether through interrelation to other presently probative factors or otherwise. Under Lawrence, the significant circumstance is how the factors interrelate to support a conclusion of current dangerousness to the public. (Lawrence, supra, 44 Cal.4th at p. 1212.) Here, there is no rationale offered as to how an interrelationship between the cited factors, including the commitment offense, supports a conclusion of current dangerousness.
Accordingly, on this record, the commitment offense is not probative of, and does not constitute some evidence of, Young’s current dangerousness such that it can support the Governor’s reversal of the Board’s grant of parole. As Lawrence teaches, the immutable gravity of the commitment offense, no matter how egregious, standing alone as the sole factor favoring unsuitability among multiple factors favoring suitability, will only rarely serve as the basis for continued parole denial, particularly after the inmate has already served the equivalent of a base term for the crime. (Lawrence, supra, 44 Cal.4th at pp. 1211, 1219.) Offering this factor as one among several “interrelated” factors does not change this in the absence of some articulated rational connection between the crime and the ultimate issue of the inmate’s present danger, or a rational explanation as to how the other cited factors interrelate to render the 25-year-old crime probative of current dangerousness. Contrary to the Warden’s approach, just citing other factors, whether or not they are supported in the record, does not, in and of itself, establish or support the conclusion of current dangerousness.
B. Lack of Insight
The Governor concluded that Young lacked insight into the circumstances that gave rise to the commitment offense because, in the Governor’s view, Young gave inconsistent versions of the crime over time and his statements were inconsistent with those of witnesses. According to the Governor, this suggests that Young fails to understand the circumstances of the crime enough to avoid such an act in the future, rendering him a current risk of danger. The trial court found that Young’s account of the crime “has not been significantly impeached or shown to be inconsistent, in any way that reflects on the real issue of present dangerousness” and we agree with this conclusion.
The Governor noted that Young had initially told his probation officer that because of his intoxicated state, he had very little recollection of the offense but said that someone had punched him in the face. Then, in 1989, Young said that although he remembered little of the crime, it followed a racial slur. In 1995, he denied having had the intention to kill his victim and characterized the crime as an accident. In 2005, he said he was intoxicated and blacking out. In 2006, he said on the one hand that he didn’t know what caused the fight and on the other hand that the intoxicated victim had confronted him and this escalated to a fight. Finally, in 2008, Young said he did not even remember what happened that day because he blacked out due to his drinking.
First, the degree of meaningful difference among these accounts of the crime is minimal. On one end of the spectrum, Young did not recall the fight or what caused it due to his extreme intoxication. On the other end of the spectrum, he said that Bustamante hurled a racial insult or hit him in the face, which led to escalation, but he still did not clearly remember what had occurred because he was blacking out. He only later realized the severity of the beating he had inflicted and it came as a shock to learn the next day that Bustamante had died, a result he had not planned. What is consistent throughout is that Young was very drunk, blacking out, and did not remember exactly what had happened. Bustamante may have provoked him with an insult or a punch to the face, but Young really does not remember and perhaps even conjured those events in an attempt to explain his violent response, even to himself. As Young told a psychologist in 2007, over the years he has tried to remember what happened by playing out the events in his mind over and over such that he may have filled in gaps in his memory by confabulation, leading to even less certainty in his own mind about what really happened. This is entirely plausible, and is supported by what Young later told the Board he would say to Bustamante if he had the chance: He would ask him what had happened, what incident caused him to brutally and viciously beat him the way he did. And to the extent the accounts over time are different, Young has most recently moved away from his initial telling that Bustamante first punched him in the face, leaving his own violent actions more inexplicable, which helps him less, not more.
Yet, despite his hazy grasp of the actual events, the record shows that Young has accepted responsibility for his actions from the start, avoiding a trial with an early plea and expressing willingness to pay his debt to society. As he told the Board in 2006, “I... think about the crime on a daily basis and I try to replay the part of it that I can remember, and when I say that I’m remorseful, I think about that victim[‘s] family, I think about the things that [were] going on in my life... I was drinking. I don’t even say that... as... [an] excuse. I[‘ve] talked to many different people on many different occasions, and they say [there] might have been, and I’m sure [there were], a lot of other factors that played into it. I don’t use that as [an] excuse. I accept... full responsibility for my action.... I accepted the full responsibility for my actions from day one [¶]... [¶]... when I understood that I was being charged with murder. [There] wasn’t [anything] for me to go up in the courtroom and argue about because I did that. It was ugly.... [I]t’s still just as ugly... to me today, because that was a part of me that I didn’t think could ever happen, and that was something that I would [n]ever think... would happen to me. I took this man[‘s] life. I regret that.”
In short, in light of the whole record, the inconsistencies in Young’s proffered version of the events of the crime over time are not fundamental and do not signal his lack of insight into its circumstances and causes or an attempt to downplay or minimize his responsibility. For example, when asked by the Board what he thought his victim had experienced, he replied that Bustamante “went through torment. I think he went through agony. I think he really suffered. I think he died a horrible death.” Similarly, Young told the Board that his remorse “lives” in him, that “[i]t’s actually alive” and it “breathes.” He went on: “Every day, I’m regretful. Every day I sing a different song, different prayer. I sympathize with the burdens and hurts and the pains that I’ve inflicted upon his family, his friends, society. I respect the system... and I understand rehabilitation.... [I]f a person truly want[s] to change, he [has] to understand remorse.” On another occasion he told the Board, “I’m very remorseful for this man’s life that I have taken. I was remorseful the very first day and I’m sorry. I believe in change. I believe I have changed. It takes work. It takes a lot of work. There’s a lot of things I had to understand about myself, understand about my behavior at the time as a young man being addicted. There’s a lot of factors [that] came into play. I’ve reached a stage in my life now where through this understanding I’m able to maybe help other people... move into a better understanding of their situations, so it’s time for me to give back. I think the biggest thing that I want the panel to understand today regardless of whether I get a date or not, is that I am truly remorseful.”
Although the Governor was not specific about his reference to Young’s version of the crime being inconsistent with witness accounts, we gather he was referring to someone having reported hearing a demand that Bustamante hand over “what [he] had” and Bustamante’s own statement the next day that three men had robbed him. But there is no evidence in the record that supports that there were multiple perpetrators or even that Bustamante was robbed. Accordingly, that Young’s account of events has differed from these statements is not indicative of a lack of insight and does not speak to his current dangerousness.
And we note, as the trial court did, that an inmate in the parole context cannot be compelled to admit guilt for his life crime as a condition of being paroled. (§ 5011, subd. (b); Regs., § 2236.) The Governor’s reference to the 2006 Board’s comments to the effect that Young would find difficulty being paroled until he could talk about events leading up to and during the crime comes close to this prohibition, if not indirectly violating it. (In re Palermo (2009) 171 Cal.App.4th 1096, 1110-1111, disapproved on other grounds in In re Prather (2010) 50 Cal.4th 238 (Prather) [notwithstanding Lawrence and Shaputis, an inmate cannot be required in contravention of statute to admit guilt as a display of his insight]; In re Juarez (2010) 182 Cal.App.4th 1316, 1340-1342 [while BPH can rely on finding that inmate lacks credibility to deny parole as where inmate asserts he did not engage in criminal or other misconduct despite evidence to the contrary, inmate’s failure to recall details of commitment offense has no bearing on current dangerousness where he accepts full responsibility for the crime and his explanations for what induced his actions are not disputed].)
If substantiated by the record, an inmate’s lack of insight about the circumstances or causal factors of his offense may be probative of his current dangerousness and justify a denial of parole, even though this factor is not specifically addressed in the governing statute or the governing regulations. In Shaputis, the companion case to Lawrence, the Supreme Court upheld the denial of parole because the inmate’s lack of insight into his offense and its causes together with the aggravated nature of the offense supported a finding that he was currently dangerous and thus unsuitable for parole. (Shaputis, supra, 44 Cal.4th at pp. 1258-1261 & fn. 20). Inmate Shaputis, who had killed his wife, failed to acknowledge a lifetime of violent and abusive behavior and he considered the killing accidental. His psychological reports concluded that he had not grasped the degree to which alcohol had played a causative role in that history and despite years of rehabilitative and substance abuse programming, he had a reduced ability to achieve self-awareness and his abusive character remained essentially unchanged. (Shaputis, supra, 44 Cal.4th at pp. 1246-1248, 1259-1261 & fn. 20.) This reflected an inability to recognize the circumstances, forces, and impulses that led to the commitment offense. Such an inability can imply that the inmate remains vulnerable to those circumstances and, if confronted by them again, would likely react in a similar way. (Id. at pp. 1260, 1261, fn. 20; Lawrence, supra, 44 Cal.4th at pp. 1214, 1228; In re Lazor (2009) 172 Cal.App.4th 1185, 1202.) Accordingly, the inmate’s ‘lack of insight’ can provide a logical nexus between the gravity of a commitment offense and a finding of current dangerousness.
As the trial court here found, this factual context is distinguishable from the instant case.
At the same time, the meaning of an asserted “lack of insight” is vague and subjective and only has relevance in the parole context when it reflects an identifiable and material deficiency in the inmate’s understanding and acceptance of responsibility for his or her commitment offense. Conversely, where undisputed evidence shows that the inmate has acknowledged the material aspects of his or her conduct and offense, shown an understanding of its causes, and demonstrated remorse, the mere refusal to accept such evidence is not itself a rational or sufficient basis upon which to conclude that the inmate lacks insight, let alone that he or she remains currently dangerous. As with any other factor relied on to find an inmate unsuitable for release on parole, “lack of insight” is probative of unsuitability only to the extent it is both demonstrably shown by the evidence in the record, and is rationally indicative of the inmate’s current dangerousness. (In re Powell (2010) 188 Cal.App.4th 1530, 1542.)
One court has recently observed that since Lawrence and Shaputis, the most frequently cited reason for denying parole has gone from the gravity of the commitment offense to the inmate’s asserted lack of insight, so much so that it has become “ ‘the new talisman’ ” for parole denial. (In re Shippman (2010) 185 Cal.App.4th 446, 481 (dis. opn. of Pollak, J.).)
Our review of cases in which a lack of insight has been shown to be probative of current dangerousness are those in which there was a factual discrepancy between the undisputed, or at least compelling, evidence of the inmate’s conduct and its causes and the inmate’s own version of them, and that discrepancy involved highly material, if not elemental, aspects of the commitment offense, such as the requisite acts, the mental elements, and motivation. Thus, the inmate’s version demonstrated not only a failure to acknowledge his or her misconduct but also an effort to minimize or deny it and thus mitigate his or her mental state or culpability despite strong evidence to the contrary. Also in these cases, there was little, if any, psychological evidence or expert testimony to contradict a finding that the inmate lacked insight, and in some cases, there was a failure by the inmate to engage in meaningful rehabilitative programming or a demonstrable inability to benefit from it. (Shaputis, supra, 44 Cal.4th 1241; In re Rozzo (2009) 172 Cal.App.4th 40; In re Smith (2009) 171 Cal.App.4th 1631; In re Van Houten (2004) 116 Cal.App.4th 339; In re McClendon (2003) 113 Cal.App.4th 315.)
What is common to all these cases is an inmate who exhibited a lack of understanding concerning the nature of his or her conduct or the very pressures, circumstances, and impulses that triggered it. In each, the finding that the inmate lacked insight was based on a factually identifiable deficiency in perception and understanding, which involved an aspect of the criminal conduct or its causes that was significant and which by itself, or together with the commitment offense, had some rational tendency to show that the inmate currently posed an unreasonable risk of danger. This is in contrast to cases in which the parole authority ignored or rejected undisputed evidence that the inmate had taken responsibility for his or her actions and had shown a causal understanding, and demonstrated remorse, yet the authority still posited a lack of insight as the basis for parole denial, only to be later overturned by courts. (In re Singler (2008) 169 Cal.App.4th 1227; In re Dannenberg (2009) 173 Cal.App.4th 237; In re Rico (2009) 171 Cal.App.4th 659, abrogated on other grounds in Prather, supra, 50 Cal.4th at pp. 252-253; In re Roderick (2007) 154 Cal.App.4th 242.)
Particularly in light of the many parts of this record that consistently show that Young has indeed accepted responsibility for the crime, that he feels empathy for his victim, and that he has great remorse for his actions, the inconsistencies the Governor cited about Young’s recall of the crime events do not reflect a lack of insight, are not probative of Young’s current dangerousness, and establish no factual nexus to such a conclusion, whether alone or as part of an unexplained “interrelationship” among other cited factors. On this record, the prediction of future dangerousness based on a perceived lack of insight amounts to no more than pure speculation, not a permissible basis on which to deny parole. (In re Loresch (2010) 183 Cal.App.4th 150, 153.) If a “lack of insight” is invoked as a reason to deny parole, that finding must be based on a factually identifiable deficiency manifested by the inmate that concerns a matter of probative significance on the issue of current dangerousness. And as Shaputis illustrates, “lack of insight” is only probative when it is demonstrably shown in the record and rationally indicative of the inmate’s current dangerousness. (In re Powell, supra, 188 Cal.App.4th at p. 1542.) Here, it was not.
C. Risk For Violence
The Governor also cited as support for his decision portions of Young’s 2007 psychological evaluation. As noted, the evaluator used two accepted instruments that predict risk for violence, one of which had three components including one that is based purely on historical factors, and one additional instrument used to predict general recidivism. Based on these various instruments, the evaluator’s overall risk assessment placed Young in the low range for psychopathy, in the low range for overall propensity for violence compared to similar inmates, and in the low range for general recidivism. Yet the Governor overlooked that positive conclusion and plucked out only the historical-factor component of the HCR-20 instrument, on which Young was assessed in the slightly higher “low moderate” range. This aspect of the HCR-20 was based purely on the static factors of Young’s “history of substance abuse, his involvement in unstable relationships, his age at the time [of the crime], and his having a prior arrest history.”
The Governor’s isolation of this single, slightly higher assessment in the 2007 evaluation ignored or dismissed the report’s dominant and overall risk assessments in the low range, which were also reflected in other preceding psychological evaluations. This single emphasis by the Governor placed the slightly higher score out of context, isolating it over all other factors and available information relating to risk assessment, with the effect of distorting the record as a whole and depriving Young of individualized consideration.
The Governor also cited a diagnostic aspect of the same 2007 psychological evaluation. He said that Young currently “meets the diagnostic criteria for Adult Antisocial behavior, ” from which the Governor reached the conclusion that Young poses a current threat. But quoted in full, that part of the report states: “The inmate also meets the diagnostic criteria for Adult Antisocial Behavior. [He] had a history of arrests and substance abuse prior to the controlling case. [He] has had three (3) 128As with the most recent in 1995, and five (5) CDC-115s with the most recent in 1993.” Taken in context, what this diagnosis, which is based again on purely historical factors, reflects is that as an adult, Young engaged in antisocial behavior, something no one disputes. But this is not to say that there is any evidence in the record that he currently engages in antisocial behavior—all the evidence is to the contrary—or that there is any evidence from which to rationally predict that he will, if released. In fact, though not mentioned by the Governor, the same report later states on the diagnostic topic that Young “appears to have the kind of antisocial traits that we see in a number of inmates that are not linked to psychopathy, as reflected in his low PCL-R score, but rather to his background, environment, school failure, behaviors, and other issues that have a tendency to remit with age.” Accordingly, the Governor’s interpretation of diagnostic aspects of the report is a distortion of the record as a whole, depriving Young of due process and individualized consideration based on his entire record.
The Governor has cited isolated statements and conclusions about Young’s threat potential and his psychological diagnosis without accounting for whether these threads were supported by the record as a whole or whether they are actually predictive of his current dangerousness. We find no evidence in the 2007 psychological report taken as a whole that supports the conclusion that Young is currently dangerous. Certainly the evaluator himself did not come to that conclusion, placing Young in low-risk range. Accordingly, whether taken by itself or as part of an “interrelationship” of factors, the 2007 psychological evaluation provides no evidence supporting the conclusion that Young remains a danger. Nor does it render any other cited factor more probative of this ultimate conclusion. The Governor’s contrary conclusion is based on parsed and selective aspects of the report and consequently rests on no more than hunch or speculation, far short of the modicum of evidence required. (Lawrence, supra, 44 Cal.4th at p. 1213.)
D. Parole Plans
The Governor also cited in support of his decision what he perceived to be inadequate parole plans in that Young, then having been incarcerated for 23 years, did not have a “current job offer.” The Governor did not explain or suggest how this fact, alone or among others, leads to the conclusion that Young is currently dangerous. The pertinent regulations do not require an inmate to have a current job offer in order to be released on parole. They provide as a factor favoring suitability that the prisoner “has made realistic plans for release or has developed marketable skills that can be put to use upon release.” (Regs., § 2402, subd. (d)(8).)
Here, as the Board found, Young’s parole plans were viable in that he had made contacts in order to become involved in in-patient SAP, a program in which he has successfully worked while incarcerated with positive work reports, so as to take advantage of available assistance in housing and employment, and that he had alternate housing plans to live with his mother. He also had developed vocational skills that he could use to find employment and was willing to start at a minimum wage in order to have a job. No more was required. As the trial court observed, it is unrealistic in this economic climate, when so many are unemployed, to expect and require an inmate who has been incarcerated for many years to obtain a concrete job offer before he has even been granted a parole date in order to be released. Such a condition would amount to a monumental obstacle to parole. What’s more, the lack of a current job offer, whether considered alone or in conjunction with the other cited factors, has not been shown, at least in this case, to support a finding of current dangerousness or establish the requisite nexus to that conclusion.
E. Conclusion re Some Evidence of Current Dangerousness
In order to constitute some evidence of current dangerousness in support of a denial of parole, the cited factors must have “ ‘ “some indicia of reliability” ’ ” (Scott I, supra, 119 Cal.App.4th at p. 899) so that the unsuitability determination has “some basis in fact.” (ScottII, supra, 133 Cal.App.4th at p. 590, fn. 6.) On this record, none of the three factors cited in addition to the commitment offense—lack of insight, threat risk, and lack of a current job offer—either alone or as part of an unexplained “interrelationship, ” constitute some evidence or are probative of current dangerousness. Consequently, the Governor’s decision denying parole falls short of due process requirements, lacking as it does an evidentiary basis or a rational nexus or connection between the cited factors and its ultimate conclusion. (Lawrence, supra, 44 Cal.4th at p. 1210 [“ ‘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”.) Because the Governor has cited no evidence of Young’s current dangerousness or of a factual nexus connecting the gravity of the crime or other cited factors to current threat, his decision reversing the Board’s grant of parole violates due process and cannot stand.
IV. In This Procedural Posture, Remand to the Governor is Not Required
The Warden contends that if we conclude, as we have, that the Governor’s decision is not supported by some evidence of Young’s current dangerousness, we should remand the matter back to the Governor to allow reexamination of the matter in the exercise of his discretion, a result contra to that in Lawrence itself (Lawrence, supra, 44 Cal.4th at pp. 1190, 1229). Remand to the executive branch is the proper remedy where the Board has denied parole and the inmate has successfully challenged that denial by judicial grant of habeas relief. (Prather, supra, 50 Cal.4th at pp. 258-259.) But where the parole review process within the executive branch has already been exhausted through Board grant and gubernatorial reversal under the current state of the law as set out by our Supreme Court, and where we have already reviewed the entire record and found no evidence that the inmate poses a current threat of danger, remand to the Governor is not necessary or warranted. Further consideration by the Governor will not change what we already know—that this record presents an absence of evidence that Young is currently dangerous and would pose a risk if released.
Accordingly, remand of this case to the Governor would serve no useful purpose. “Where... the superior court finds that there is no evidence supporting the Governor’s reversal of the Board’s decision granting an inmate parole, the superior court has the authority to reinstate the Board’s decision without remanding the matter to the Governor.” (In re Masoner (2009) 179 Cal.App.4th 1531, 1534; see also In re Loresch, supra, 183 Cal.App.4th at pp. 162-163; In re Dannenberg, supra, 173 Cal.App.4th at pp. 256-257; In re Moses (2010) 182 Cal.App.4th 1279, 1313-1314; In re Aguilar (2008) 168 Cal.App.4th 1479, 1491-1492; In re Vasquez (2009) 170 Cal.App.4th 370, 386-387.) Reinstatement of the Board’s decision does not divest the Governor of his right to review decisions because the Governor “was given a full opportunity to exercise his constitutional and statutory right of review.” (Masoner, supra, 179 Cal.App.4th at p. 1537.) Remanding to the Governor would be an idle act because the Governor has already reviewed the materials provided by the Board and we, as well as the superior court, have concluded after our review of those materials that the Governor’s decision was erroneous. (Id. at p. 1538.) As the court in Masoner observed, if we were to adopt the Warden’s position, “a prisoner’s due process rights and the writ of habeas corpus would be meaningless under the circumstances of this case because the Governor could arbitrarily detain a prisoner indefinitely, without evidence of the prisoner’s current dangerousness and in violation of California law, and the courts would have no practical power to grant the prisoner relief. The rule proposed by appellant would entitle the Governor to repeatedly ‘reconsider’ the release of the prisoner no matter how many times the courts found that there was no evidence that the prisoner was currently dangerous. Such a rule would violate principles of due process and eviscerate judicial scrutiny of the Governor’s parole review decisions. We thus reject appellant’s arguments and hold that the superior court acted well within its authority in declining to remand to the Governor.” (Id. at p. 1540.)
As we have said, the recent Prather decision by our high court does not compel a contrary conclusion. At issue there was the proper remedy to be ordered when the Board’s decision to deny parole is not supported by some evidence that the prisoner remains a current threat to public safety. In such an instance, the court concluded, “a decision granting habeas corpus relief... generally should direct the Board to conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of the court, and should not place improper limitations on the type of evidence the Board is statutorily obligated to consider.” (Prather, supra, 50 Cal.4th at p. 244.) The reviewing court may not “direct the Board to reach a particular result or to consider only a limited category of evidence in making a suitability determination.” (Id. at p. 253.)
That the matter must be remanded in the circumstances in Prather does not mean that the same result must obtain here, where the inmate has successfully sought writ relief from the Governor’s decision to reverse the Board’s decision to grant parole. When the Board conducts a parole hearing, it is required to consider evidence. The evidentiary record created by the Board provides the sole basis of the Governor’s review. (In re Smith, supra, 109 Cal.App.4th at p. 507.) Once an appellate court determines that this record is devoid of “some evidence” of current danger to society, the Board’s decision should be reinstated because the Governor has no authority to “ ‘disregard a judicial determination regarding the sufficiency of the evidence [of current dangerousness] and to simply repeat the same decision on the same record.’ ” (Prather, supra, 50 Cal.4th at p. 258, quoting Masoner, supra, 172 Cal.App.4th at p. 1110.) In this case, the Governor has already been afforded and has exercised his constitutional right to review the Board’s determination.
This does not leave the Governor or the Board without options if there is new information indicating Young would be a danger to the public if released. As the Supreme Court has noted: “[T]here are a variety of other procedures a Governor may utilize upon obtaining information that raises questions as to the propriety of a Board decision granting parole. Under Penal Code section 3041.1, the Governor has authority, up to 90 days prior to a scheduled parole release date, to request the full Board to grant in bank review of a panel’s parole decision.... Further, the Board itself retains the authority to rescind the grant of parole for good cause prior to the prisoner’s release (Pen. Code, §§ 3041.5, 3041.7), and the Governor may bring to the Board’s attention any information that may warrant the rescission of parole. Finally, after a prisoner has been released on parole, both the Board and the Governor have the power to suspend or revoke parole for cause. (Pen. Code, §§ 3060, 3062, 3063.)” (Rosenkrantz, supra, 29 Cal.4th at p. 659, fn. 13.)
DISPOSITION
The trial court’s grant of habeas relief is affirmed. The Governor’s reversal of the Board’s 2008 grant of parole is vacated and the Board’s grant of parole reinstated.
I CONCUR: Mihara, J.
I CONCUR IN THE JUDGMENT ONLY: Bamattre-Manoukian, Acting P.J.