Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 81643
McAdams, J.
INTRODUCTION
On October 14, 1981, defendant Frank Joe Bautista stabbed 17-year-old Ricardo Rodriguez to death during a verbal altercation in the parking lot of a San Jose restaurant. In 1982, a jury convicted Bautista of second degree murder. He is presently serving an indeterminate life sentence.
Bautista first became eligible for parole on October 25, 1992. Bautista has been denied parole nine times, most recently on July 31, 2007. The Board of Parole Hearings (hereafter Board) found that Bautista was unsuitable for parole because he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.
Bautista filed a petition for writ of habeas corpus in the Santa Clara County Superior Court challenging the Board’s denial of parole. On February 6, 2008, the superior court granted the habeas corpus petition and ordered the Board to conduct a new hearing in accordance with due process as outlined in the order. On appeal, the Attorney General contends that the superior court erred because the Board’s decision is supported by some evidence.
We stayed the superior court’s order pending appeal. For the reasons stated below, we conclude that the Board should conduct a new hearing. We will therefore remand the matter to the superior court with directions to modify its order granting Bautista’s habeas corpus petition. The order shall be modified to direct the Board to vacate its July 31, 2007 parole decision and to conduct a new hearing in accordance with due process and in light of the recent California Supreme Court decisions in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), including consideration of all relevant statutory factors as required by California Code of Regulations, title 15, section 2281, subdivision (b). We will affirm the order as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Social History
Bautista was born in San Jose, California in 1957 and was 50 years old at the time of the July 31, 2007 Board hearing. He is the oldest of three children born to Gloria and Jose Bautista, who divorced when defendant was 19 or 20 years old. Both parents remarried to others. Neither parent had alcohol, drug, criminal or mental health problems, and both parents worked when he was growing up, often leaving defendant to be his younger siblings’ babysitter. Bautista’s father worked as a printer at Lockheed Industries, and his mother worked first as a legal secretary and later took a job at Lockheed Aircraft. Defendant consistently reports that he had a happy childhood.
When he was between the ages of 11 and 13 his family moved to a new neighborhood in the foothills near San Jose where they were the only Mexican-American family. He told the Board at the 2007 hearing that he “started hanging out with the older kids” in the new neighborhood and began “drinking and partying” with them to gain their acceptance. His parents “did not have a clue what was going on.”
In 1987, Bautista told staff psychiatrist Douglas Farr that he began drinking heavily at the age of 12 and used PCP, LSD, heroin and “speed.” Prior to the murder, he was using PCP daily and was drinking up to a case of beer a day in addition to tequila and vodka.
This is the earliest detailed mental health evaluation in the appellate record. An earlier, one-page 1985 report by staff psychologist Robert Bolin contains only conclusions.
In 2003, Bautista reported to staff psychologist Joe Livingston that he had good grades up to fourth grade, but after that his grades were “only average in junior high.” Although his grades were “pretty good” his first year in high school, he became involved with other peers who were “drinking and not caring about school,” and he was eventually expelled in the 11th grade for “cutting classes.”
Bautista entered the United States Army at the age of 17 and was given a general/honorable discharge at the age of 19 due to problems caused by alcoholism.
Bautista has two daughters by a former girlfriend/common law wife. In 1987, he reported being close to them. He married in 1980, when he was in his early twenties; the marriage lasted one year and the parties divorced in 1983. In 1987, he reported that he had no contact with that wife. At the age of 37, he married his current wife with whom he has been friends since he was eight years old. His wife has one daughter. He has 11 grandchildren. As of 2003, his children and grandchildren visited him regularly. In 1999, he reported that both parents also visited him two to four times a year, and kept in contact through telephone calls and letters. Bautista’s father died in 2001.
In 1999, he described his second marriage as having helped him “appreciate the love and support he receives.” In 2003, he credited his wife with helping him “change [his] life.” In 2006, Bautista reported to staff psychologist Melvin Macomber that his wife’s strong Christian faith had deeply affected him to the point that in 2004 he had begun seriously studying the Bible with her.
B. Criminal History
At the parole hearing, Bautista testified that he was twice arrested as a juvenile. When he was 14 or 15, he was walking by the sporting section of a mall when he saw fishing lures, grabbed a rubber worm, and started chewing on it. He was charged with petty theft. The second arrest took place when he tried to get back into a skating arena to find his little sister from whom he had become separated when a big fight broke out at the arena.
The probation report from 1982 shows arrests in 1975 for resisting arrest and assault and battery, which resulted in one year probation and 180 days in county jail; an arrest in 1976 for damage to city property, which resulted in one year probation and a $75 fine; arrests in 1978 for assault with a deadly weapon and burglary, which resulted in a denial of probation and a referral to CYA; an arrest in 1978 for welfare fraud, for which defendant was placed on probation which was repeatedly revoked and reinstated until its termination in 1981; arrests in 1980 for escape by a felon and possession of a concealable firearm by an felon or addict, for which he served one year in the county jail as a condition of one year’s summary probation; and arrests in 1981 for drunk driving and driving with a suspended license, for which probation was denied and sentence was suspended.
At the 2007 hearing, Bautista recalled that the 1975 arrest occurred when he was 19 or 20 years old and he was pulled over “for having loud pipes on the car.” He “got smart” with the officers and raised his hand to them. In the 1976 destruction of property case, Bautista was driving in circles on grass; he had been drinking. According to Bautista, the 1987 assault and burglary case involved a party at his house that turned into a brawl. Bautista went to get help, “[a]nd the person had jumped in his car and I was trying to get to him, and when I stuck my hand in to get him, they charged me with a second degree burglary and assault.” The person was not injured. Bautista spent nine months in the Youth Authority for that offense. The welfare fraud case in 1978 occurred when he was with his common law wife and involved “defraud[ing] the AFDC [Aid to Families with Dependent Children] by working and not reporting it.” Bautista believed that his probation in that case was revoked for failing to attend an alcohol rehabilitation, education and counseling program, and for failing to make restitution. The 1980 escape and concealment of a weapon case involved walking away from a camp with an inoperable, antique weapon someone had given him. Finally, Bautista recalled that he was arrested for drunk driving five times, and that the court never required alcohol counseling in connection with those cases.
C. The Commitment Offense
The Board relied on the November 2004 calendar Board report, which drew on information in the Santa Clara County Probation Officer’s Report regarding the commitment offense. The following statement, which Bautista acknowledged to be “accurate,” was read into the record at the July 31, 2007 Board hearing.
“ ‘On 10/14/81, at approximately 9:21 p.m., the victim, Ricardo Rodriguez, age seventeen, was in the rear parking lot of the Zapata’s Restaurant when he became involved in an altercation with Bautista’ ” who stabbed him repeatedly. “According to the witnesses who observed the fight, Bautista was in the area of Second Street just south of Santa Clara Street in San Jose, California, conversing with two other people. The victim was observed conversing with other people. Bautista then informed one of the witnesses of his intention to fight with the victim because he was talking bad about him. Bautista was quoted as saying, ‘He was going to take him to the back and beat him up.’ The witnesses also conveyed that Bautista’s reason for wanting to fight the victim was that Bautista considered the victim a ‘snitch’ (informant). As the victim was standing near the rear of Zapata’s Restaurant, Bautista was quoted as saying, ‘All right, I’ll be right back. I’m going to deal with this guy over here.’ At that time Bautista approached the victim in close proximity of the witnesses and the victim was overheard saying he did not want to fight Bautista due to Bautista’s having a knife. Bautista then swore at the victim and stabbed him in the right side. After the victim fell, Bautista jumped on him and stabbed him two more times in the back.... Witnesses stated that the victim was not trying or was unable to protect himself after being stabbed. Prior to inflicting two additional wounds, Bautista stated to witnesses, ‘I stabbed him and I’ve got to kill him now. I’ve got to kill him because I can’t have nobody coming back on me.’ Bautista was then observed boarding a county transit bus. He was soon apprehended by authorities after the bus was halted. A witness was transported to the bus to positively identify Bautista as his assailant. According to the autopsy report, the victim succumbed due to multiple stab wounds.’ ”
At the time, Bautista was 24 years old.
At the July 31, 2007 Board hearing, Bautista expressed his profound remorse and explained that throughout the years he has reflected on his actions and has tried to figure out what happened, but he does not remember the events clearly because, at that time, he had been using a variety of drugs (PCP, marijuana, LSD, cocaine) “pretty much every day,” for about three years. At that time, he supported himself by doing odd jobs, “just little things to keep me going, just enough to continue to buy,” and he was homeless. On the day he stabbed Mr. Rodriguez, he was drinking, and had smoked PCP and marijuana. He did not know Mr. Rodriguez or his friends, and he did not understand how the argument started; he just knew “that it took place.” Bautista said he was not involved in gang activities at the time.
On March 22, 1982, a jury convicted Bautista of second degree murder (Pen. Code, § 187) and found true that he was armed with a deadly weapon during the commission of that offense. (Pen. Code, § 12022, subd. (b).) He was not adjudged a habitual criminal. (Pen. Code, § 644, subds. (a), (b).)
The abstract of judgment actually states that Bautista was found “not guilty” and that he admitted, among other prior convictions, one for arson. However, nothing else in the appellate record suggests that Bautista was ever convicted of arson, and we assume he was found guilty of murder.
D. Conduct While Incarcerated
While in prison, Bautista became an associate of the Northern Structure prison gang for three or four years. He withdrew from the gang in 1990 while in Pelican Bay State Prison and engaged in the process of debriefing until 1992. Throughout Batista’s 25 years of incarceration, he has received 13 misconduct citations (115’s), the most recent on January 14, 1998, for mutual combat. Bautista was given a SHU (Secure Housing Unit) term for an earlier citation for possession of a weapon stock. However, Bautista successfully appealed that matter and upon rehearing the citation was dismissed. He has received 14 “counseling chronos and CDC 128a’s,” the most recent dated July 14, 2000, for leaving a job assignment. Thus, at the time of the hearing, the current record reflected that Bautista had not been involved in any instances of institutional wrongdoing for at least seven continuous years.
In his 2006 report, Dr. Macomber noted that that this incident stemmed from Bautista’s debriefing after his withdrawal from the Northern Structure gang. Dr. Macomber wrote: “Debriefing involves the identification of other active gang members and their activities.... [¶] Because of [Bautista’s] drop-out status, he was assaulted on 7-14-96 by active gang members. He was also assaulted by active gang members on 1-14-98 and received a disciplinary for mutual combat. He stated that he sensed that there was going to be trouble on the yard, and while he was trying to get to the custody office to report this, he was attacked.”
Although Deputy Commissioner Mitchell stated that “the actual 115” for this citation is no longer in Bautista’s file, he also indicated that follow-up information from “classification chromos” about what happened to the citation is in the file and the record is not clear on whether the thirteen 115’s includes this dismissed citation.
Bautista completed his GED in 1989 while in prison. Bautista has completed several self-help courses including Christ Centered Marriage, Family Secrets, Personal Growth, Anger Management, Conflict Resolution and Confrontation, and a lecture series on the book Men Are from Mars, Women Are from Venus. He had read several other self-help books, including The Purpose Driven Life and The Foundation of Love. He continues to study the Bible and participate in the Christian church. During his incarceration, Bautista has participated in Alcoholics Anonymous and/or Narcotics Anonymous for 14 years. He was not able to participate in those groups after 2004, when he was placed in Administrative Segregation (Ad Seg). When he came out of Ad Seg, he was placed on the waiting list and, at the time of the 2007 hearing, was number four or five on that list. He participates informally with an inmate sponsor. At the time of the hearing, Bautista was taking two self-help correspondence courses.
Bautista has earned a total of 17 certificates for vocational training in several trades, including electronics, drafting, painting, asbestos abatement, lead operations and maintenance, emergency preparedness, radiological emergency response, and professional emergency management.
E. Psychological Evaluation
During the July 31, 2007 hearing, the Board reviewed a psychological evaluation done by Dr. Katherine Twohy in June of 2007. The Board also considered Dr. Macomber’s December 2006 report, noting that it had been privately commissioned by the defense.
Dr. Macomber’s report was commissioned in response to a report by staff psychologists Cynthia Glines and Joe D. Livingston who concluded, based on certain risk assessment tools (PCL-R, HCR-20, & VRAG), that Bautista posed a moderate risk to public safety. Dr. Macomber’s report criticized the use of those assessment tools. As will be seen, Dr. Twohy’s 2007 report also used the PCL-R and the HCR-20 to assess Bautista.
Dr. Twohy’s report is an addendum to the prior report in response to the Board’s request at Bautista’s 2005 parole hearing for “an updated psychological evaluation of the inmate to include just one item, the prisoner’s violence potential in the free community.” The Board summarized Dr. Twomy’s findings and read certain passages into the record.
Regarding Bautista’s institutional programming, the Board quoted the following passage from the report: “Mr. Bautista has worked in the Paint Shop and received exceptional work reports, and has worked in the dining room, receiving satisfactory work reports. He reported and documentation confirmed that he is on the waiting list for Narcotics Anonymous (NA). In December 2006 he received a laudatory chrono for his participation in a 16-week program entitled ‘Christ Centered Marriage.’ The inmate also reported that he is involved in ‘Crimanon’ through a correspondence course, and that he is very active in the Apostolic Pentecostal Christian Church.”
Regarding Bautista’s insight and self assessment, the Board quoted the following passage from Dr. Twohy’s report. “[Bautista] opined that the biggest change in him over the past twenty-five years of his incarceration was that he now cares about life, people, self and family.” Regarding Bautista’s understanding of the life crime, the Board quoted Bautista’s statement to Dr. Twohy that “I accept total responsibility for what I did. I have worked hard and will continue to work hard to be a good person now and for the rest of my life.”
The Board noted that Dr. Twohy gave Bautista an Axis I diagnosis of “Polysubstance Abuse in Remission in a Controlled Environment.” The Board also noted that she did not give defendant an Axis II diagnosis. She noted that Bautista’s Axis I diagnosis was justified by his pre-incarceration history. The Board quoted Dr. Twohy’s statement that Bautista’s “diagnosis remains essentially the same as in previous psychological evaluations and, as reported below, his risk of violence is lower than that which had been found in earlier psychological evaluations.”
Dr. Twohy found “no signs or symptoms of any other emotional, psychological, or behavioral issues that would qualify for any other psychiatric diagnosis.”
The Board summarized Dr. Twohy’s assessment of Bautista’s present dangerousness. She used three separate assessment guides to assess Bautista’s violence potential in the free community. These were: (1) the Pyschopathy Check List –Revised (PCL-R); (2) the Learning Styles/Case Management Inventory (LS/CMI); and (3) the History-Clinical-Risk-20 (HCR-20). With respect to the PCL-R, Dr. Twohy reported that Bautista’s score placed him in the Low risk range. The Board noted that her report states: “Scores in the low range suggest that this individual does not possess traits or patterns consistent with a psychopathic profile.”
With respect to the LS/CMI, Dr. Twohy’s report states that “[t]his instrument is focused on risk of general recidivism and not violence per se.” The Board noted that Bautista’s score placed him at the low end of the Moderate category; he scored lower than 89.6 percent of North American incarcerated male offenders.
According to the report, the HRC-20 consists of several subcategories or “domains.” The historical domain assesses the likelihood of future violence based on past performance, such as prior crimes and prison disciplinary actions, mental health diagnoses, self-help programming and education, both vocational and academic. The Board noted that, in this domain, Dr. Twohy considered Bautista “a High risk of future violence.” The Board noted Dr. Twohy’s statement that “[g]iven that the bulk of data contributing to this estimate is historical, then by definition, this score is not amenable to significant change regardless of the number of years of his incarceration.”
The Board noted that with respect to the “clinical” domain, which is “more current and dynamic,” Dr. Twohy believed Bautista presented a Low risk of future violence. The Board quoted the following passage from Dr. Twohy’s report: “[Bautista] demonstrated an adequate insight. There was no evidence of psychopathology or psychopathy, and he does not currently have any apparent negative attitudes or impulsivity problems. He has shown emotional growth and increased maturity in response to treatment. In this domain, the inmate presents a Low risk of future violence. [¶] As for the ‘management of future risk’ domain, Mr. Bautista will be exposed to a variety of situations in the community which may have led to violence in the past and which may try his coping skills in the future. He appears to have a wife and stepchildren in the community who will continue to support him emotionally, and this may be helpful to assist him to manage new stressors effectively. The inmate has been adherent to prison programming, rules, and regulations for the past seven years; and he is amenable to any recommendations or requirements as set forth by the Board of Parole Hearings in helping justify a parole. In this domain, the inmate presents a Low risk of future violence while in prison, and a Low to Moderate risk of future violence outside of prison. [¶] Overall, then, risk assessment estimates suggest that the inmate poses a Low to Moderate likelihood to become involved in a violent offense if released into the free community.”
The Board also quoted Dr. Twohy’s conclusion in full: “[C]urrent psychological evaluation indicates that the inmate poses a low likelihood to become involved in a violent offense if released into the free community. Mr. Bautista has developed and maintained positive behaviors, a prosocial attitude, and vocational skills. He continues to appropriately abide by institutional expectations, while maintaining a respectful attitude. His parole plans appear to be stable and feasible. His efforts to meet the recommendations of the BPH have been well documented, and it appears that he has continued in the behaviors that the BPH recommended at the last hearing.”
The Board interpreted Dr. Twohy’s report as “still indicat[ing] some concerns.” However, the “only negative comment” it identified was Dr. Twohy’s statement that Bautista posed a low to moderate risk to get involved in a violent offense. The Board expressed confusion about Dr. Twohy’s last paragraph, but noted that her conclusion was more favorable than Dr. Glines’ prior report had been.
F. Parole Plans
If Bautista is released on parole, he plans to live with his wife and work in construction. He has two job offers from general contractors. He also wants to work in his brother’s car repair business. The counselor’s report stated that Bautista’s parole plans appeared to be very viable. The Board viewed the counselor’s report as “supportive of [Bautista’s] release.” Under questioning, Bautista testified that he considered himself an addict and did not think he could ever drink again. Either AA or NA was part of his parole plan.
Chief of Police Robert L. Davis and Deputy District Attorney Ronald R. Rico opposed Bautista’s release on parole.
G. The Board Hearing and Decision
The Board issued its parole decision after the July 31, 2007 hearing, finding that Bautista was not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Board arrived at this conclusion based upon several parole suitability factors, including, first and foremost, “the commitment offense itself,” defendant’s prior record, his unstable social history and prior criminality, his institutional behavior, and the psychological report.
With regard to the commitment offense, the Board stated that “[t]he offense was carried out in an especially cruel and callous manner,... in a dispassionate and calculated manner, and the motive for the crime was inexplicable in relation to the offense.” The Board also found that “the actions of Mr. Bautista do go beyond the minimum necessary for his conviction of Murder in the Second Degree.”
With regard to defendant’s criminal history, the Board found that “there is an escalating pattern of criminal conduct and violence, a failure of previous grants of both probation and parole, and a failure to profit from society’s previous attempts to correct criminality.” The Board also found “there was an unstable social history and prior criminality, including a long history of drug and alcohol abuse, receiving a general discharge from the Army, and being homeless at the time of the murder.” As for institutional behavior, the Board found that “there were 14 128a counseling chronos, the last of which was in July of 2000, and 13 serious 115s disciplinary reports, the last of which was in January of 1998.”
Finally, with regard to Dr. Twohy’s psychological report, the Board found that “the report itself is at once not totally supportive of release and also somewhat inconclusive in that while one portion of the report on page 6 of 7, the doctor does cite that there’s a low risk for future violence while in prison and a low to moderate risk for future violence outside of prison, she also does conclude in the final section of the report, under ‘Conclusions,’ that the current psychological evaluation indicates that the inmate poses a low likelihood to become involved in a violent offense if released to the free community. And it goes on to state that Mr. Bautista has developed and maintained positive behaviors, a prosocial attitude and vocational skills; he continues to appropriately abide by institutional expectations while maintaining a respectful attitude, his parole plans appear to be stable and feasible, and his efforts to meet the recommendations of BPH have been well documented, and it appears that he has continued in behaviors that the BPH recommended at his last hearing. The Panel finds that that paragraph does not seem to fit with the previous paragraph read into the record.”
The Board also noted that it had considered Dr. Macomber’s report, but had given greater weight to Dr. Twohy’s report, which used assessment instruments that are currently approved. The Panel reiterated that it found Dr. Twohy’s report “inconclusive” and indicated it would be asking for clarification at a future hearing.
The Board found that Bautista’s parole plans were appropriate. It noted the District Attorney’s and Police Chief’s opposition to parole, but “[d]espite that, we do want to commend you for several things,” including Bautista’s self-help programming in the last many years, the length of time without disciplinary action, and his educational and vocational accomplishments. The Board recommended that Bautista continue with AA or NA or similar programming and that he continue his independent reading and document it by writing two or three paragraphs about the book to show he understood it. The Board commended Bautista on his documentation binder, but suggested he include an index next time.
The Board concluded that “these positive aspects of behavior do not outweigh the factors for unsuitability,” and particularly noted his self-reported gang affiliation during his “early years in prison” and his non-conformance with rules up to and including “the last 115 for mutual combat in 1998.” The Board denied parole for one year.
I. Habeas Proceedings
On October 24, 2007, Bautista, through counsel, filed a petition for a writ of habeas corpus challenging the Board’s denial in Santa Clara Superior Court. The Attorney General, nominally representing the Warden of the prison in which Bautista is incarcerated, filed a return on January 16, 2008. (Pen. Code, § 1474.) Bautista filed a traverse, denominated a denial, on January 24, 2008.
On February 6, 2008, the superior court filed an order granting habeas corpus petition and remanding the matter to the Board to conduct a new hearing at which (1) Bautista’s crime is to “be examined and compared as though it were a first degree conviction”; (2) should parole be denied, “it is explained why the commitment offense is ‘especially heinous, atrocious or cruel’ for a first degree conviction;” and (3) “for this and any other finding the Board may make (should it again deny parole), the Board must state the nexus between the finding and ‘the ultimate conclusion that the prisoner’s release currently poses an unreasonable risk of danger to the public.’ ” The Attorney General timely appealed and we granted a stay of the trial court’s order.
III. DISCUSSION
In his briefs on appeal, the Attorney General argued that “the Board conducted an individualized consideration of Bautista’s suitability for parole and found that he was unsuitable for parole based on the gravity and circumstances of his commitment offense, his extensive criminal history, his failure to profit from society’s previous attempts to rectify his criminality through probation and jail time, an unstable social history, inconclusive psychological reports, and opposition to parole by the Santa Clara District Attorney and San Jose Police Department,” disciplinary history and prior status as a gang member. The Attorney General contended that each of these factors is supported by some evidence and therefore the Board’s decision must be upheld by this court. Specifically, he contended that the “some evidence” standard of review does not permit this court to review “the Board’s decision for a nexus of current dangerousness.” Finally, the Attorney General argued that the trial court’s order was erroneous in that it required “the Board to articulate a nexus between the factual basis for the Board’s decision and Bautista’s current risk of dangerousness to society” and in “ordering the Board to analyze Bautista’s second degree murder conviction as if it were first degree murder.” Relying on numerous, then-extant Court of Appeal opinions, Bautista responded that “some evidence” of a non-suitability factor or factors is not enough; the record must also demonstrate a nexus between non-suitability factors and the Board’s ultimate conclusion that Bautista remains a current danger to the public safety if released.
After briefing was completed, our Supreme Court issued its opinions in Lawrence, supra, 44 Cal.4th 1181, and Shaputis, supra, 44 Cal.4th 1241. Although the Attorney General noted the pendency of those two cases in his reply brief, neither he nor Bautista’s appellate counsel subsequently requested permission to file supplemental briefing after Lawrence and Shaputis were decided on August 21, 2008. Therefore we asked the parties to address these recent decisions at oral argument. At oral argument, the Attorney General maintained that, the decisions in Lawrence and Shaputis notwithstanding, defendant’s pre-incarceration history of escalating offenses and, most importantly, the 2007 psychological report by Dr. Twohy, constitute some evidence that provides the requisite rational nexus between the circumstances of the commitment offense and the Board’s ultimate conclusion that Bautista remains a threat to public safety. (Lawrence,at pp. 1210, 1213, 1227.) As we understand it, the Attorney General also maintains that no remand is required here because, so long as the record contains evidence that supports the Board’s decision to deny parole, the Board need not articulate the nexus. Bautista’s appellate counsel argued at oral argument that the decisions in Lawrence and Shaputis compel reversal of the Board’s decision to deny parole because the Board’s stated reasons for that decision do not support a finding of nexus between the 28-year-old commitment offense and present dangerousness, in light of the evidence of defendant’s rehabilitation.
We begin our analysis of the parties’ contentions with an overview of the statutory criteria for parole suitability decisions, as set forth in the California Supreme Court’s decisions in Lawrence, supra, 44 Cal.4th 1181, Shaputis, supra, 44 Cal.4th 1241, and In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz).)
A. The Statutory Criteria for Parole Suitability Decisions
“The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. ([Pen. Code,] §§ 3040, 5075 et seq.) The Board’s parole decisions are governed by section 3041 and title 15, section 2281 of the California Code of Regulations (Regs., § 2230 et seq.).[] Pursuant to statute, the Board ‘shall normally set a parole release date’ one year prior to the inmate’s minimum eligible parole release date, and shall set the date ‘in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public....’ (§ 3041, subd. (a), italics added.)” (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, fn. omitted.) “ ‘Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ ” (Shaputis, supra, 44 Cal.4th at p. 1258.)
All further undesignated references to Regulations are to title 15 of the California Code of Regulations.
“Subdivision (b) of section 3041 provides that a release date must 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.’ ” (Lawrence, supra, 44 Cal.4th at p. 1202, italics omitted.) “Title 15, Section 2281 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statute. The regulation is designed to guide the Board’s assessment of whether the inmate poses ‘an unreasonable risk of danger to society if released from prison,’ and thus whether he or she is suitable for parole. (Regs., § 2281, subd. (a).)” (Ibid.)
The regulation specifies that the “circumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release.” (Rosenkrantz, supra, 29 Cal.4th at p. 654; Regs., § 2281, subd. (d).)
The regulation also specifies that the “circumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison.” (Rosenkrantz , supra, 29 Cal.4th at pp. 653-654, fn. omitted; Regs., § 2281, subd. (c).)
Regarding the commitment offense, the regulation further provides that the “[f]actors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.” (Rosenkrantz, supra, 29 Cal.4th at p. 653, fn. 11; Regs., § 2281, subd. (c)(1).)
“Finally, the regulation explains that the foregoing circumstances ‘are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.’ (Regs., § 2281, subds. (c), (d).)” (Lawrence, supra, 44 Cal.4th at p. 1203.)
B. The Board’s Decision
The Board must conduct “an individualized assessment of the continuing danger and risk to public safety posed by the inmate. If the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
C. The Standard of Review
In Lawrence and Shaputis, the California Supreme Court also set forth the standard of review that applies to a decision by the Board (or Governor) to deny parole.
“[B]ecause the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety, and because the inmate’s due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor.” (Shaputis, supra, 44 Cal.4th at p. 1254.)
Thus, “as specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor. In addition... 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—must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition. 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.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
Regarding the commitment offense, the Supreme Court further instructed that “although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
Accordingly, where “all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the [Board] has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
On the other hand, “[i]f the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date.... [T]he Board has the express power and duty, in an individual case, to decline to fix a firm release date, and thus to continue the inmate’s indeterminate status within his or her life maximum sentence, if it finds that the circumstances of the inmate’s crime or criminal history continue to reflect that the prisoner presents a risk to public safety.” (Lawrence, supra, 44 Cal.4th at pp. 1227-1228.)
The Supreme Court also recognized that “certain conviction offenses may be so ‘heinous, atrocious or cruel’ that an inmate’s due process rights would not be violated if he or she were to be denied parole on the basis that the gravity of the conviction offense establishes current dangerousness. In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerousness even decades after commission of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
Therefore, a Board decision denying parole is not arbitrary or capricious “when evidence in the record supports the conclusion that the circumstances of the crime continue to be predictive of current dangerousness despite an inmate’s discipline-free record during incarceration.... [W]here the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
Applying this standard of review, the Supreme Court determined in Lawrence that there was no evidence to support the Governor’s decision that the release on parole of the petitioner, who had been convicted of first degree murder for shooting and stabbing her lover’s wife multiple times, would pose an unreasonable risk of danger to the public. (Lawrence, supra, 44 Cal.4th at p. 1223.) The court concluded that “under the circumstances of the present case—in which the record is replete with evidence establishing petitioner’s rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety—petitioner’s due process and statutory rights were violated by the Governor’s reliance upon the immutable and unchangeable circumstances of her commitment offense in reversing the Board’s decision to grant parole.” (Id. at p. 1227.)
In Shaputis, on the other hand, the Supreme Court upheld the Governor’s reversal of the Board’s decision to grant parole to the petitioner, who had been convicted of second degree murder after shooting his wife at close range. (Shaputis, supra, 44 Cal.4th at p. 1245.) The court found that “[s]ome evidence in the record supports the Governor’s decision that petitioner remains dangerous,” including the aggravated nature of the offense and the “evidence of petitioner’s history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming.’ ” (Id. at p. 1260.)
D. Analysis
To evaluate the merits of Bautista’s habeas corpus petition, we have carefully reviewed the record pursuant to the direction of the California Supreme Court in Lawrence and Shaputis: “[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (Lawrence, supra, 44 Cal.4th at p. 1212; Shaputis, supra, 44 Cal.4th at p. 1254.) We conclude that remand is appropriate to enable the Board to conduct a new parole suitability hearing in accordance with due process, as guided by the principles elucidated in Lawrence and Shaputis.
The California Supreme Court issued the decisions in Lawrence and Shaputis after the Board’s decision in this case. As we have discussed, the Lawrence and Shaputis decisions considered the Governor’s review of the Board’s parole decisions and articulated the rule that “as specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor. In addition... 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—must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
We recognize that the Board considered several parole unsuitability factors, including the commitment offense of second degree murder, which the Board viewed as having been carried out in an especially cruel, callous, dispassionate and calculated manner for an inexplicable motive. In addition, the Board considered Bautista’s prior criminal history of multiple convictions between the ages of 17 and 24, his 14 counseling chronos, the last of which occurred nine years before the hearing, and 13 disciplinary reports, the last of which occurred eight years before the hearing. Lastly, the court considered Dr. Twohy’s psychological report, which it considered “somewhat inconclusive,” despite its generally supportive tone and content. The Board considered but gave relatively little weight to Dr. Macomber’s report.
We also recognize that the Board considered several parole suitability factors, including Bautista’s positive programming “in the last many years,” the fact that Bautista’s had remained discipline-free for nine years and counseling-free for eight years; the fact that he had acquired “strong skills” in two distinct vocations and had earned his GED “many years ago”; had appropriate parole plans and had compiled “an excellent binder” for display of his accomplishments. Nevertheless, in the Board’s estimation, these “positive aspects of behavior” did not outweigh his gang affiliation during his early years in prison up to his debriefing in 1992, or his nonconformance with rules up to 1998.
However, our review of the record reveals that the Board did not consider all relevant statutory factors as required under the new Lawrence standard in its determination that Bautista currently poses a threat to public safety and parole should therefore be denied. We emphasize that the Supreme Court instructed in Lawrence that “when evaluating whether an inmate continues to pose a threat to public safety, both the Board and the Governor must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation.” (Lawrence, supra, 44 Cal.4th at p. 1219.)
Additionally, the Supreme Court instructed that where “all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the [Board] has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
Therefore, on remand, the Board should consider all relevant evidence including, for example, whether Bautista has shown signs of remorse; whether his polysubstance addictions and homelessness were significant stressors in his life at the time of the commitment offense; whether Bautista, now in his 50’s, is of an age that reduces the probability of recidivism; and perhaps most significantly, whether the eight psychological reports written since 1985, in addition to those authored by Dr. Twohy and Dr. Macomber, chronicle any growth or progress on Bautista’s part. Under Lawrence, psychological evaluations must be considered in determining parole suitability: “[E]vidence 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—must, by statute, be considered and relied upon by both the Board and the Governor....” (Lawrence, supra, 44 Cal.4th at p. 1213, italics added.)
The Board’s decision also does not comply with the new Lawrence standard for other reasons. While the Board commended Bautista for his “programming in the last many years” and acknowledged his acquisition of a GED and marketable job skills, the Board did not consider, as Lawrence requires, whether “any further rehabilitation might change the ultimate decision that petitioner remains a danger.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
Furthermore, the Board placed primary reliance on the circumstances of the commitment offense, which it characterized as going “beyond the minimum necessary for his conviction of Murder in the Second Degree.” However, as our Supreme Court observed in Lawrence, “[T]here are few, if any, murders that could not be characterized as either particularly aggravated, or as involving some act beyond the minimum required for conviction of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1218.) The Board’s decision failed to consider that “[a]bsent affirmative evidence of a change in the prisoner’s demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner’s dangerousness for some time in the future. At some point, however, when there is affirmative evidence, based upon the prisoner’s subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner’ current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1219.)
The Board also did not articulate “a rational nexus between” the facts of the commitment offense and “current dangerousness,” as required by Lawrence where the Board relies upon the commitment offense as a reason to deny parole. (Lawrence, supra, 44 Cal.4th at p. 1227.) Lawrence teaches that absent such “articulation,” the mere “recitation of the circumstances of the commitment offense... fails to provide the required ‘modicum of evidence’ of unsuitability.” (Ibid.) We further observe that the Board did not address Bautista’s attitude concerning his commission of the commitment offense. (Id. at p. 1213)
Thus, we are not convinced, based on our careful review of the record on appeal, that the Board’s decision complies with the new standard for evaluating parole suitability articulated in Lawrence and Shaputis, which specifies that “current dangerousness is the fundamental and overriding question,” to be answered after consideration of “all relevant statutory factors.” (Lawrence, supra, 44 Cal.4th at pp. 1213, 1219.) It is also unclear whether the Board would have reached the same conclusion regarding Bautista’s parole suitability under the Lawrence and Shaputis standard, in light of the factors weighing for and against his parole suitability. Accordingly, we believe that the appropriate remedy is to direct the Board to reconsider its decision denying parole in light of Lawrence and Shaputis. (See, e.g., In re DeLuna (2005) 126 Cal.App.4th 585, 598.)
IV. DISPOSITION
The matter is remanded to the superior court with directions to modify its order granting Frank Joe Bautista’s petition for writ of habeas corpus. The order shall be modified to direct the Board of Parole Hearings to vacate its July 31, 2007 parole decision and to conduct a new parole consideration hearing in accordance with due process and in light of the decisions in In re Lawrence, supra, 44 Cal.4th 1181 and In re Shaputis, supra, 44 Cal.4th 1241, including consideration of all relevant statutory factors as required by California Code of Regulations, title 15, section 281, subdivision (b). As modified, the order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.