Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 145134
ELIA, J.James D. Hartley, Warden at Avenal State Prison, appeals from a March 2009 order of the Santa Clara County Superior Court granting Ermias Below's petition for writ of habeas corpus. With modifications, we affirm the order of the superior court.
Generally, although a habeas petition is "directed to the person having custody of or restraining the person on whose behalf the application is made" (Pen. Code, § 1477), in his habeas petition, Below challenged the actions of the Board of Parole Hearings. Accordingly, we refer to appellant as the Board.
In 1990, Ermias Below (Below), currently a California state prison inmate, shot and killed Jacob Tesfai. Following a jury trial, he was found guilty of second degree murder and false imprisonment, with the jury finding true a gun enhancement pursuant to Penal Code section 12022.5 as to each count. The court sentenced Below to an indeterminate term of 19 years to life in state prison. His minimum eligible parole date was August 14, 2003.
Proceedings Below
On March 14, 2006, the Board conducted a parole consideration hearing for Below. At the end of the hearing the Board denied Below parole based on a finding that Below posed an unreasonable risk of danger to society if released because his commitment offense was carried out in a cruel manner. On June 4, 2008, the Santa Clara County Superior Court granted Below's petition for habeas corpus and ordered the Board to conduct a new hearing to comport with due process. The Board appealed the order to this court. However, we refused to grant a stay of the order. Thereafter, the Board abandoned the appeal.
In its June 4, 2008 order, the superior court directed the Board to consider all relevant reliable information. The court went on to say "[t]he Board, may, but is not required to, 1) substantiate the inmate's lack of insight, and 2) explain the nexus between the inmate's lack of insight as well as other evidence as it relates to the inmate's unreasonable danger to public safety." However, the superior court found that Below's case was indistinguishable from a case this court decided In re Weider (2006) 145 Cal.App.4th 570, and a case decided by the First District Court of Appeal, In re Scott (2005) 133 Cal.App.4th 573 / In re Scott (2004) 119 Cal.App.4th 871. Specifically, the court found "Mr. Weider, Mr Scott, and Mr. Below were all law abiding citizens before their life crime and model prisoners thereafter. Each inmate shot the man whom the inmate blamed for the alienation of his wife's affection. In each instance the tensions, pressures and emotional turmoil that led to the crime squarely places the circumstances of the offense under parole suitability criteria 2402 (d)(4): 'The prisoner committed his crime as a result of significant stress in his life, especially if the stress has built over a long period of time. [Fn. omitted]' [¶] Even without the clear applicability of suitability criteria 2402 (d)(4)... it was error for the Board to characterize [Below]'s crime as exceptionally 'cruel' or 'callous.' The aggravated factor of an 'exceptionally callous disregard for human suffering' requires deliberate actions such as 'gratuitously' tormenting, terrorizing, or unnecessarily prolonging pain and suffering. [Citations.] Because there is no evidence whatsoever that [Below]'s actions in this case were more than the minimum necessary to justify his murder conviction it was error for the Board to use the commitment offense itself... as grounds to deny parole."
On July 11, 2008, the Board conducted a new hearing. Again, the Board denied Below parole based on "a number of factors." Thereafter, Below filed a motion to compel and memorandum of points and authorities in support thereof, alleging that the Board had violated the superior court's June 4, 2008 order. Construing the motion as a new habeas petition, the superior court issued an order to show cause (OSC) on December 24, 2008. The OSC directed the Board to show cause why the superior court's June 4, 2008 order had not been violated and why Below should not receive another parole consideration hearing. Specifically, the superior court stated that in its June 2008 order it had determined that Below's murder offense "was not exceptional and instead suitability criteria 2402 (d) (4) [crime committed as a result of significant stress] squarely applies." Further, that the Board's 2008 parole denial had "illegally refused to make this finding," instead denying parole using "substantially similar language [that] 'the offense was carried out in a manner that demonstrates the exceptional disregard for human suffering and the motive was jealousy.' "
On January 7, 2009, the Board filed a return in which the Board argued that its 2008 parole denial was consistent with the superior court's June 4, 2008 order and satisfied the existing legal standards at that time. Moreover, the Board asserted that its "decision to deny Below parole based on his commitment offense, insufficient insight into the causative factors of his crime, inadequate self-help, and inadequate parole plans is supported by some evidence that Below is currently dangerous."
On February 6, 2009, Below filed a traverse in which he asserted that the Board's July 11, 2008 decision was not consistent with the superior court's June 4, 2008 order, nor did it satisfy the existing legal standards at the time of the hearing. Furthermore, there was no evidence in the record supporting the Board's characterization of the commitment offense as particularly egregious.
On March 2, 2009, the superior court issued an order granting Below's petition for writ of habeas corpus. The court remanded the matter to the Board with instructions to provide Below a new hearing comporting with due process as outlined by In re Lawrence (2008) 44 Cal.4th 1181. The court ordered that if the Board again denied Below parole, the Board had to "isolate the parts of [Below]'s commitment offense that qualified for invocation of an unsuitability factor or factors and state the nexus between the factor or factors and the ultimate decision of current dangerousness.' [Citation.]"
The order went on to direct the Board to consider all relevant reliable information, but in so doing the Board "should not again disobey the final and binding Superior Court order of June 4, 2008. In that order there was a ruling that suitability factor 2402 (d)(4) was 'clear[ly]' and 'squarely' applicable."
The court went on to note that for the "Board to disobey a court order is punishable as contempt." The court went on to say that Below had requested such a finding of contempt, but his request for an OSC would be processed separately. Accordingly, currently, that issue is not before this court.
On March 16, 2009, the Board filed a notice of appeal. On application of the Board by petition for writ of supersedeas, this court granted a stay of the superior court's order on April 20, 2009.
The Board's Regulatory Scheme and this Court's Scope of Review
Penal Code section 3041, subdivision (a) states that the Board, prior to the inmate's minimum eligible parole release date shall meet with the inmate and "shall normally set a parole release date...." California Code of Regulations, title 15, section 2402, subdivision (b) sets forth the manner in which an inmate's suitability for parole is to be determined by the Board. Section 2402, subdivision (a) states that "[r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison."
Unless noted, all undesignated regulation and section references are to Title 15 of the California Code of Regulations.
Section 2402, subdivision (c) identifies six nonexclusive circumstances tending to show unsuitability, the relative importance of which "is left to the judgment of the panel." One of the specified circumstances is "(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner."
The remaining circumstances are "(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." (§ 2402, subd. (c).)
Factors 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; [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense." (§ 2402, subd. (c)(1).)
Circumstances tending to show suitability for parole include that the inmate (1) does not have a juvenile record of assaulting others or committing crimes with the potential of personal harm to victims; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress built up over a long period; (5) committed the crime 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 suggesting an enhanced ability to function within the law upon release. (§ 2402, subd. (d); In re Lawrence, supra, 44 Cal.4th at p. 1203, fn. 8.)
In In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz), our Supreme Court held that "the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but... in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Italics added.)
Before its opinions in Lawrence, supra, 44 Cal.4th 1181, and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), the California Supreme Court had held that this " 'some evidence' standard is extremely deferential." (Rosenkrantz, supra, 29 Cal.4th at p. 665.) "Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor [or Board].... [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor [or Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board]'s decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's [or Board's] decision." (Id. at p. 677.)
In Lawrence and Shaputis, the court clarified, but did not overrule, this scope of review.
In Lawrence, the inmate's commitment offense was a result of her having an affair with a dentist. The dentist ended the affair and told the inmate that he was staying with his wife. Armed with a gun and potato peeler, the inmate confronted the dentist's wife, shot her, and repeatedly stabbed her with the potato peeler. The inmate fled and remained a fugitive for 11 years. After turning herself in and being sentenced to life in prison, the inmate became an exemplary prisoner, had no discipline violations, took numerous self-help classes, and had positive psychological examinations. The Board granted her parole three times, but the Governor reversed the decision each time. In 2005, the Board granted parole for the fourth time, and the Governor again reversed the decision. The Governor found that the inmate (1) remained an unreasonable safety risk due to the callous nature of the commitment offense, (2) had had some negative psychological evaluations when she was first incarcerated, and (3) had been counseled regarding discipline problems while in prison. The Court of Appeal reversed the Governor's decision, finding that the Board had properly determined that defendant was suitable for parole. The Supreme Court granted review to resolve the dispute that had arisen in several appellate court cases as to the appropriate scope of review. (Lawrence, supra, 44 Cal.4th at pp. 1190-1192.)
Before Lawrence, some cases had interpreted Rosenkrantz to require that a parole denial must be upheld if "some evidence" supported one of the circumstances tending to establish unsuitability for parole such as that the commitment offense was particularly egregious. (See In re Bettencourt (2007) 156 Cal.App.4th 780, 800; In re Andrade (2006) 141 Cal.App.4th 807, 819; In re Burns (2006) 136 Cal.App.4th 1318, 1327 1328.) Other cases had interpreted Rosenkrantz to require that "some evidence" supported the ultimate determination that the inmate remained a current threat to public safety. (See In re Lee (2006) 143 Cal.App.4th 1400, 1409; In re Scott, supra, 133 Cal.App.4th 573, 595; In re Elkins (2006) 144 Cal.App.4th 475, 499.)
In Lawrence, the Supreme Court reasoned that "[i]f we are to give meaning to the statute's directive that the Board shall normally set a parole release date ([Pen. Code,] § 3041, subd. (a)), a reviewing court's inquiry must extend beyond searching the record for some evidence that the commitment offense was particularly egregious and for a mere acknowledgment by the Board or the Governor that evidence favoring suitability exists. Instead, under 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. [¶] Accordingly, when 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.)
The Lawrence court discussed the appropriate weight to be given to the commitment offense. Thus, in evaluating the crime, "it is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole—it is the implication concerning future dangerousness that derives from the prisoner having committed that crime." (Lawrence, supra, 44 Cal.4th at pp. 1213-1214.)
The Lawrence court went on to state, "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 .) The court continued, "[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's current dangerousness." (Id. at p. 1219.)
The Lawrence court recognized that despite an egregious commitment offense, "it is evident that the Legislature considered the passage of time―and the attendant changes in a prisoner's maturity, understanding, and mental state―to be highly probative to the determination of current dangerousness." (Lawrence, supra, 44 Cal.4th at pp. 1219-1220 .) Finally, the Lawrence court concluded: "In sum, the 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.] Accordingly, 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." (Id. at p. 1221.)
In applying this scope of review to the facts in Lawrence, supra, 44 Cal.4th 1181, the court concluded that, although the crime committed by the inmate was egregious, it rejected that other factors—prior poor psychological evaluations and being counseled eight times for misconduct such as being late to appointments—supported that the inmate was currently dangerous. Accordingly, the Lawrence court concluded: "[E]ven as we acknowledge that some evidence in the record supports the Governor's conclusion regarding the gravity of the commitment offense, we conclude there does not exist some evidence supporting the conclusion that petitioner continues to pose a threat to public safety." (Id. at p. 1225.) "When, as here, 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 Governor 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." (Id. at pp. 1226-1227.)
In a companion case, the Supreme Court applied the scope of review set forth in Lawrence. In this companion case, the inmate had a long history of domestic violence and eventually shot and killed his second wife. The other factors of unsuitability and suitability were that the inmate had (1) a long criminal history (but the instant offense had resulted in his first felony conviction), (2) severe substance abuse problems, (3) little contact with his family throughout his incarceration, (4) participated in self help programs, (5) been discipline free throughout his incarceration, and (6) positive psychological examinations. The Board initially denied parole, citing to the callous nature of the crime and the fact that the inmate had a history of domestic violence. The superior court upheld the Board's ruling, but the Court of Appeal reversed the decision after finding that the Board had erred in concluding that the inmate was not suitable for parole. The Court of Appeal ordered a new parole hearing, the Board thereafter granted parole, but the Governor reversed the Board. After the Court of Appeal reversed the Governor's decision, the Supreme Court granted review. (Shaputis, supra, 44 Cal.4th at pp. 1245-1251.)
The Shaputis court reiterated what it had held in Lawrence. The court stated: "[T]he 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.) The Shaputis court explained the proper scope of review as follows. "When a court reviews the record for some evidence supporting the Governor's conclusion that a petitioner currently poses an unreasonable risk to public safety, it will affirm the Governor's interpretation of the evidence so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors." (Id. at p. 1258.) In applying that standard to the facts in Shaputis, the court concluded that the inmate was not suitable for parole due to both the aggravated circumstances of the commitment offense, and " 'his lack of insight into the murder and the abuse of his wife and family.' " (Id. at pp. 1255, 1259-1260.)
When a superior court grants relief on a petition for writ of habeas corpus without an evidentiary hearing, as happened here, the question presented on appeal is a question of law, which the appellate court reviews de novo. (In re Zepeda (2006) 141 Cal.App.4th 1493, 1497;In re Rosenkrantz, supra, 29 Cal.4th at p. 677 [if the trial court grants relief on a petition for writ of habeas corpus challenging a denial of parole based solely upon documentary evidence a reviewing court independently reviews the record].)
Background
The summary of the commitment offense is taken from the record of Below's July 11, 2008 parole hearing. In turn, this summary is taken from the probation officer's report in this case, which was derived from crime reports and a review of the preliminary hearing transcripts.
On December 17, 1990, police were dispatched to a residence on Leigh Avenue on a report of a shooting. The 37 year-old victim Jacob Tesfai was found on a bedroom floor unconscious and bleeding from a wound to his head. Subsequently, the victim was pronounced dead on December 19, 1990, after a trauma physician advised his family that he had suffered major brain damage.
Below, who had called the police to report the shooting was at the scene and was taken into custody outside the front door of his apartment. Below took a small automatic handgun from his pocket, which he placed on the ground. He told the officers that he shot the victim and that he "deserved it." Below's wife and 17-month-old child were present when the police arrived.
Below had for some time suspected that his wife and the victim, who was Below's cousin, were having an affair. Below had left the apartment at approximately 6:10 p.m. to go to a restaurant. He left his wife and son at home. Tesfai arrived at the apartment uninvited and was seated in the living room while Below's wife was talking on the telephone. Below came home because he had forgotten his wallet. He saw Tesfai's car parked outside.
Below, who had purchased a.32 caliber handgun approximately three months before the incident, took the gun from the glove box of his vehicle. Below had told his wife not to see Tesfai again. Below put an ammunition clip in the gun, placed the gun in his jacket and went into the apartment. Below called his wife into the bedroom and angrily began accusing his wife of infidelity. Below asked Tesfai to enter the bedroom and told both his wife and Tesfai to sit on the bed. As they began to deny his accusations of infidelity, Below removed the gun from his jacket, activated the slide and pointed the gun at his wife and Tesfai. Below's wife stood up and grabbed Below's hand, pushing the gun upward and begging him to stop. Tesfai approached Below and told Below's wife to let go of Below's hand because of the danger. Below pushed his wife to the floor. As she was getting up she heard one gunshot and saw Tesfai fall to the floor. She saw Below reactivate the slide and thereafter she fled the apartment. Witnesses in the apartment complex reported hearing two gunshots approximately five seconds apart.
Below was interviewed at the Santa Clara County jail where he was housed in the mental health unit. Below was receiving treatment for depression and to help him sleep. Below was emotionally and visibly upset and insisted that his cousin's death was an accident, which occurred when Tesfai grabbed his hand and attempted to remove the gun from his grasp. According to Below, Tesfai's behavior was destroying his life. Below stated that Tesfai was guilty of incest and that on two occasions he had arranged a meeting to discuss the situation, but Tesfai did not show up. On two occasions Below arrived home to find his wife and Tesfai in his house. On another occasion while he was sick in bed, he listened on an extension phone when Tesfai called his wife. He heard Tesfai ask if he could come over when Below was gone. Below confronted his wife about the situation but she told him that she and Tesfai were planning an upcoming religious ceremony. Below said that his wife became so angry she slapped him.
Below explained that he bought the gun to "advise" Tesfai of the danger of his behavior. Below stated he had never been involved in acts of violence and was not a "killer." Below insisted that he heard only one gunshot and has no memory of the second gunshot being fired. Below denied ever pointing the gun at or threatening his wife. He said his wife was in the bedroom voluntarily. He explained the purpose of cocking the gun was to scare Tesfai. As to his statement that the Tesfai deserved it, with his limited knowledge of English he did not know what deserved meant and would not have used that word.
The Hearing
The Board asked Below how far he had advanced in school prior to his prison commitment. Below explained that he had finished technical school in Asmara, Ethiopia, and progressed to a "polytechnic" from which he graduated "for power plants and equipment for turbines and boilers." His first job was as a senior turbine operator. The Board conceded that Below was a "smart man."
A member of the Board read a summary of the commitment offense into the record. Below was asked if he remembered the incident and whether what the Board had read sounded accurate or were there some changes he would like to tell the Board from what he recalled. Below replied, "Not exactly. It's okay." The Board asked Below about the gun and whether it had a slide. Due to the fact that Below speaks English with difficulty, his reply is difficult to discern, but it appears that he tried to explain that the gun had a slide, but it was automatic so that it only needed to be "cock[ed]" once. Below confirmed that he heard only one shot and explained that he was struggling with Tesfai in near darkness when the gun went off so he did not really know how the gun was at head height.
When asked why he brought the gun into the apartment, Below said that his intent was to show Tesfai the gun, but that he had made "a bad decision."
The Board noted that Below had no juvenile criminal history and no adult record other than the commitment offense. The Board reviewed Below's family history. Below was born in Asmara, Eritrea, which was then a province of Ethiopia. Two brothers and one sister still live in Asmara. Below's wife divorced him in 2002 and he has lost touch with his son. Below had no substance abuse issue although he did drink alcohol, but never became drunk. Below confirmed that he has an INS hold on him.
Regarding post-commitment factors, the Board noted that Below's classification score was the legal minimum. Currently, he was assigned to work as a porter in the prison, but had been a painter, had worked in the kitchen and repaired computers. The Board remarked that Below "obviously [had] skills." When the Board asked what Below would do if released, Below explained that he wanted to go back to farming in Ethiopia. He would be able to drive tractors and mend pumps. Below explained that he had been doing research to keep his engineering skills current.
The Board commented that at Below's last hearing the Board had recommended that Below remain disciplinary free, which he had, and participate in self-help programs and earn positive "chronos." The Board noted that Below had not participated in any self-help programming or received any laudatory chronos. Below explained that he had been in medical treatment since July of the previous year; and had been in the hospital for three months so he was not able to participate in self-help programs. He had requested that he be able to participate in correspondence courses, but was on a waiting list. The Board pressed Below to explain why he had not read books on anger management. Below stated that he had, and had seven certificates. The Board wanted to know why he had nothing since 2006. However, Below's attorney pointed out that Below had completed a course on June 7, 2007, for which he had received a chrono. The course was entitled "Cause, Prevention, Treatment, and Management of STDS." The Board commented that was not exactly what they had in mind. Again, Below pointed out that for most of the time since his last course he had been in hospital. Below's attorney told the Board that Below had participated in anger management classes in 1994 and 1996.
Favorable notes placed in his prison file.
The Board commended Below on his lack of a serious disciplinary record, no "115s" while in prison, but noted that Below had a "128" for being out of bounds in 1999. It appears that Below took a shower without permission from one correctional officer, but had permission from another correctional officer.
A CDC 115 documents misconduct believed to be a violation of law or otherwise not minor in nature. (See § 3312, subd. (a)(3); In re Gray (2007) 151 Cal.App.4th 379, 389.) A CDC 128-A documents incidents of minor misconduct. (See § 3312, subd. (a)(2); In re Gray, supra, 151 Cal.App.4th at p. 389.)
As to Below's psychological evaluation, the Board noted that during his interview with Dr. Luckerman, when she discussed recommendations for an anger management or self-help group or independent study, Below had " 'revealed noticeable frustration and a flash of anger,' " but he had promptly apologized for his response.
Dr. Luckerman wrote that Below's insight into his behavior appears minimal, but he had accepted responsibility for his actions. She noted that in a previous psychological evaluation Dr. Macomber had opined that Below's potential for dangerous behavior if released to the community was no more that the average citizen in the community. The offense was quite situational and not at all likely to ever occur in the future. "The prognosis when paroled for successful adjustment... in this case is excellent." In Dr. Luckerman's opinion, Below's parole plans were viable, he had marketable skills and appeared to have family support. She concluded that overall Below poses a low risk to recidivate in a violent manner.
Nevertheless, Dr. Luckerman commented that during the interview Below demonstrated his difficulty handling information that was adverse to his perceived interests. Further, his failure to participate in self-help groups or independent study "speaks to his inability to process and use information to better his situation when it goes against his sense of what is right. Participation in self-help programs focused on anger management might afford him an opportunity in a structured environment to explore the reasons for his actions."
Regarding his parole plans, Below told the Board that he wished to be paroled to Eritrea to reside with his sister and work on her farm. Alternatively, he had received an offer of work from Manuel Tesfay to work with computers and expand his business. If that were not feasible, then he would go to Oakland to live with a friend. He had a job offer to work as a cashier or clerk from Kahsai, who owns King's Market.
After the Deputy District Attorney was allowed to question Below and give a closing statement, at the end of which he commented that Below had "a long way to go in order to deal with" how he handles stress, the Deputy District Attorney read a statement by Tesfai's widow. Tesfai's widow stated that she felt "more secure" knowing that Below remains imprisoned and would "feel betrayed" if he was paroled.
After deliberating for 12 minutes, the Board announced its decision. The Board concluded that Below was not suitable for parole and would pose an unreasonable risk of danger or threat to the public if released from prison based on "a number of factors." Specifically, the commitment offense, which was "carried out in an especially cruel manner" and "carried out in a matter [sic] that demonstrates disregard for human suffering"; a need for greater understanding of his anger; lack of realistic parole plans; lack of insight; and an unfavorable psychological evaluation.
Discussion
The statutory parole scheme vests in every inmate a constitutionally protected liberty interest in parole release. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 660-661.) Thus, a parole release date must be set unless the Board determines that public safety requires a lengthier period of incarceration. (In re Lawrence, supra, 44 Cal.4th at p. 1191.)
Here, primarily, the Board's decision identified an immutable factor to deny Below parole, the commitment crime, but failed to relate the identified immutable factor to circumstances that would make them probative of Below's current dangerousness. (See Shaputis, supra, 44 Cal.4th at p. 1260 [decision must reflect "due consideration of specified factors as applied to the individual prisoner in accordance with applicable legal standards"].) "[T]he aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness...." (Lawrence, supra, 44 Cal.4th at p. 1214.)
"[M]ere 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.) Thus, immutable facts, such as the circumstances of the commitment offense, may be relied upon but must be related to the ultimate determination of current dangerousness. (See id. at p. 1221.) " '[D]ue 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." (Id. at p. 1210.)
At the outset, we take issue with the Board's evaluation of the commitment offense as carried out in an especially cruel manner and carried out in a manner that demonstrates disregard for human suffering, which appears to be the primary ground upon which it denied parole. No evidence supports the Board's conclusion the crime was carried out in an exceptionally cruel manner, demonstrating disregard for human suffering. "The measure of atrociousness is not general notions of common decency or social norms, for by that yardstick all murders are atrocious." (In re Lee (2006) 143 Cal.App.4th 1400, 1410.) The facts upon which the Board apparently relied—that the victim lingered for about a day and a half on life support—are not some evidence of exceptionally callous disregard for human suffering. Murder necessarily involves some type of traumatic, serious bodily injury, which does not always result in instant death. There is no indication here that Below deliberately prolonged Tesfai's suffering, if Tesfai suffered at all since he had suffered a massive brain injury.
Moreover, in deciding whether the crime was particularly heinous, atrocious, or cruel, the Board should have considered whether "[t]he offense was carried out in a dispassionate and calculated manner, such as an execution-style murder." (§ 2402, subd. (c)(1)(B).) The murder as described by the Board is not at all like an execution-style murder. The fatal wound was delivered during the struggle over the gun. Furthermore, there was no evidence that he conducted himself dispassionately. To the contrary, the evidence shows that he was angry over his wife's perceived infidelity.
It appears that the Board thought that because the victim was shot twice, once in the head and once in the neck, that Below's description of the event was not true. If there was anything in the record to substantiate this belief, for instance evidence concerning the nature of the weapon and how it operated that could refute Below's description of the events, it might be reasonable to conclude that Below had not gained insight into his behavior because he would be denying that he was responsible for Tesfai's death. However, no such evidence exists.
Here, the Board failed to acknowledge that the crime was the result of significant stress in Below's life -- stress that had built up over the preceding several months. This is a circumstance tending to show that Below is suitable for release. (§ 2402, subd. (d)(4).) We recognize that weighing the evidence is for the Board. However, it does not appear that the Board took this factor into consideration, as it was bound so to do. (§ 2402 , subds. (b) & (d).)
Furthermore, the Board was obligated to weigh the factors indicating unsuitability against factors tending to show suitability for parole (see § 2402, subd. (c)) -- to determine whether, on balance, currently, Below poses an unreasonable risk of danger if released on parole. (Lawrence, supra, 44 Cal.4th at p. 1210.)
Nevertheless, the Board argues that there is some evidence supporting its decision that Below poses an unreasonable risk of danger to society if released from prison. The Board argues that the commitment offense, insufficient insight into the causative factors of his crime, failure to participate in adequate self-help therapy, unfavorable psychological reports, and inadequate parole plans is some evidence supporting its conclusion that Below is a current unreasonable risk to public safety and thus, is not yet suitable for parole.
The Board asserts that in reaching its decision it was concerned with the " 'depth and level of [Below's] responsibility,' in that he created a situation that he was not able to control (resulting in the victim's death) and that he could do it again 'unless [he had] a greater understanding of [his] anger, of [his] jealousy, of what it is to deal with those kinds of things.' "
We are at a complete loss to know what the Board means by this statement. Certainly, Below created the situation that ultimately led to the victim's death, but the circumstances were such that he was under tremendous stress and emotional turmoil perceiving that the victim was having an affair with his wife. We have to ask how does that currently make him dangerous if released into society? He is no longer married to his wife.
If the Board meant that they were concerned that Below had anger management issues that were likely to cause him to kill again, Dr. Macomber in his 2006 clinical assessment of Below's dangerousness wrote, "He is living in an environment that has a great deal of racial tension and strife. He has remained disciplinary free in spite of the fact that there are racial riots at this prison. This is certainly commendable. It is no doubt that his potential for violence is definitely below average in comparison to other inmates. [¶] His potential for dangerous behavior, if released to the community is again no more than the average citizen in the community. Mr. Below is a spiritual individual, who studies his Bible regularly. He knows that violence is not acceptable in God's eyes. He knows how to resolve interpersonal conflicts, arguments or disagreements in a responsible, level-headed manner at this time in his life. [¶] This conclusion is supported by the administration of the Level of Service Inventory-Revised."
Furthermore, the Board's concern is not supported by the findings of Dr. Luckerman. Although she found that Below's insight into his behavior was minimal, she found that Below posed a low risk to recidivate in a violent manner. Moreover, our Supreme Court has acknowledged that "expressions of insight and remorse will vary from prisoner to prisoner and that there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior." (Shaputis, supra, 44 Cal.4th at p. 1260, fn. 18.) Although Below showed a flash of anger during his evaluation, the overall tenor of the psychological assessment was very positive.
In fact, a prisoner does not have to admit guilt (Pen. Code, § 5011, subd. (b)) and "may refuse to discuss the facts of the crime in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner." (§ 2236.)
Below explained to the Board that during his evaluation he had tried to tell Dr. Luckerman that the move from one prison to another had disrupted his self-help studies.
In Shaputis, supra, 44 Cal.4th at page 1260, the inability of the inmate "to gain insight into his antisocial behavior despite years of therapy and rehabilitative programming," was some evidence of his dangerousness and unsuitability for parole for two reasons: first, the killing of his wife "was the culmination of many years of [his] violent and brutalizing behavior toward the victim, his children, and his previous wife" (id. at p. 1259); and second, his continuing claim that the killing was unintentional was contrary to undisputed evidence that the gun he used "could not have been fired accidentally, because the hammer was required to be pulled back into a cocked position to enable the trigger to function, and the gun had a 'transfer bar' preventing accidental discharge" (id. at p. 1248), and (3) his recent psychological reports reflected that his character, as shown by the killing and his "history of domestic abuse," "remain[ed] unchanged" at the time of the parole hearing (id.at p. 1260). Thus, the Supreme Court determined that, due to Shaputis's attitude and prior conduct, the commitment offense was not "an isolated incident, committed while [Shaputis] was subject to emotional stress that was unusual or unlikely to recur.... Instead, the murder was the culmination of many years of [Shaputis's] violent and brutalizing behavior toward the victim, his children, and his previous wife." (Id.at p. 1259.) In addition, Shaputis had "found 'inexplicable' his daughters' prior allegations of molestation and domestic violence [and] had a flat affect when discussing these allegations[.]" (Id. at p. 1252.) Nothing similar to these facts can be found in the record in this case.
Turning to Below's circumstances, he has no criminal record other than the commitment offense and has no history of violent behavior. Also, it appears that he has abundant support in the community, both here and in Eritrea. His institutional record is exemplary considering the time he has spent in prison. Had the Board relied solely on the commitment offense, it would be a relatively straightforward matter to review the record to determine whether the Board had articulated a rational nexus between the life crime and the Board's finding that Below posed an unreasonable risk of danger to society. Here, however, it appears that the Board also relied on what it perceived was Below's need for greater understanding of his anger; lack of realistic parole plans; lack of insight; and an unfavorable psychological evaluation; factors for which we find no support in the record.
The Board expressed concern that Below's back injury could possibly prevent him from doing farm work and that the offer to work on computers was too vague. The panel made this finding despite the fact that Below addressed concerns during the hearing indicating there was work at his sister's farm that would not be impaired by his back injury and that the job offer from Tesfay could not be more specific without a known parole date. This statutory factor focuses on whether the prisoner has "made realistic plans for release or has developed marketable skills that can be put to use upon release." (§ 2402, subd. (d)(8)) As the Board remarked when discussing Below's work history in prison, "you [Below] obviously have skills that you could obtain employment." Nothing about the plans readily leads to a conclusion Below will fail on parole.
Nevertheless, it is important to note that the Board rendered the decision in this case before Lawrence and Shaputis were decided. In these circumstances, we cannot presume that the Board applied the evidentiary standard as clarified by Lawrence or that it would have reached the same conclusion had it done so. Accordingly, remand is warranted.
We are mindful that our judicial review of a parole decision must be exercised carefully so that it does not violate the separation of powers by intruding upon the executive branch's broad discretion in parole-related matters. (See, e.g., In re Lugo (2008) 164 Cal.App.4th 1522 [order requiring Board to state a significant change in circumstances justifying decision to deny parole for more than one year following a prior one-year parole denial violated separation of powers doctrine]; Hornung v. Superior Court (2000) 81 Cal.App.4th 1095, 1099 [court order allowing inmate to question commissioners about their parole-related decision process violated separation of powers]; In re Masoner (2009) 172 Cal.App.4th 1098 [trial court's order directing inmate's release violated separation of powers because Board must be given opportunity to determine if new evidence of his conduct or change in his mental state support a determination that he is currently dangerous].)
Even so, we remind the Board that "in directing the Board to consider the statutory factors relevant to suitability, many of which relate to postconviction conduct and rehabilitation, the Legislature explicitly recognized that the inmate's threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living within the strictures of the law." (Lawrence, supra, 44 Cal.4th at p. 1219.)
Finally, the Board asserts that neither Lawrence nor Shaputis requires the Board to explicitly articulate a nexus finding when denying an inmate parole before a reviewing court determines whether some evidence supports the Board's decision. The Board asserts, "[w]hen read in context, it is apparent from Lawrence that the executive authority is not procedurally required to articulate a nexus, but that the courts must determine whether a nexus exists."
Past decisions of our Supreme Court "make clear that the requirement of procedural due process embodied in the California Constitution [citation] places some limitations upon the broad discretionary authority of the Board." (Rosenkrantz, supra, 29 Cal.4th at p. 655.)
In the case of In re Sturm (1974) 11 Cal.3d 258 (Sturm), our Supreme Court confronted the question of what procedural due process is required in a parole release hearing. (Id. at p. 265.)
The Sturm court observed that beginning with In re Schoengarth (1967) 66 Cal.2d 295 (Schoengarth), they had recognized that a prisoner not only has a right to apply for parole, but also was entitled to have his application "duly considered," which means an examination of the inmate's institutional conduct, the nature of his offense, his age, his prior associations, his habits, inclinations and traits of character, the probability of his reformation, and the interest of public security. (Sturm, supra, 11 Cal.3d at p. 268.)
The Sturm court went on to note that in the case of In re Minnis (1972) 7 Cal.3d 639 (Minnis) they had held that "due consideration" necessarily entails a periodic reconsideration of parole potential, stating that a Board policy automatically rejecting applications from inmates who had been convicted of selling narcotics had unfairly reduced the release proceeding to a pro forma denial. (Sturm, supra, 11 Cal.3d at p. 268.)
Furthermore, the Sturm court stated that in the case of In re Prewitt (1972) 8 Cal.3d 470, they had relied on Minnis in holding that inmates about to appear at a proceeding for rescission of an unexecuted grant of parole were entitled to copies of statements submitted to the Board for consideration, in order that they could have a reasonable opportunity to respond to them. (Sturm, supra, 11 Cal.3d at p. 268.)
The Sturm court concluded that these decisions "evince[] a limited cognizance of rights of parole applicants to be free from an arbitrary parole decision, to secure information necessary to prepare for interviews with the [Board], and to something more than mere pro forma consideration." (Sturm, supra, 11 Cal.3d at p. 268.)
"Recognizing that the existence of such rights could not exist in any practical sense without a remedy against their abrogation" (Rosenkrantz, supra, 29 Cal.4th at p. 655), our Supreme Court held in Sturm that the "remedy available to correct arbitrary actions by the Board was the writ of habeas corpus, and that the effectiveness of this remedy necessarily depended upon a statement of reasons for the Board's decision." (Ibid.) Accordingly, in Sturm our Supreme Court held that the "Board must provide a definitive written statement of its reasons for denying parole." (Ibid.)
The Sturm court pointed out that the United States Supreme Court in Kent v. United States (1966) 383 U.S. 541, considered the validity of an informal denial of reformative as distinguished from criminal treatment in the case of a juvenile accused of an offense, and held inter alia that a statement of reasons for the denial is indispensable to a due process review thereof. (Sturm, supra, at p. 269.)
As our review of these decisions demonstrates, procedural due process requires that a prisoner must have his application for parole "duly considered" (Sturm, supra, 11 Cal.3d at p. 268); and be provided with a written statement of reasons for denying parole. (Rosenkrantz, supra, 29 Cal.4th at p. 655.)
Turning to our Supreme Court's decision inLawrence, supra, 44 Cal.4th 1181, as noted, " '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." (Lawrence, supra, 44 Cal.4th. at p. 1210, italics added.) In other words, "due consideration," which is part of procedural due process(Lawrence, supra, at p. 1210), now requires that the Board articulate a rational nexus between the factors that it has considered and the determination of current dangerousness. (See,In re Ross(2009) 170 Cal.App.4th 1490, 1513 [Governor's written decision flawed because it did not contain an explicit articulation of a rational nexus between facts and current dangerousness].)
It was in the following context that Lawrence held that the Governor's decision to deny parole must contain an articulation of a rational nexus between the facts and current dangerousness: "When, as here, 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 Governor 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 pp. 1226-1227.) Having reviewed the history of the development of the "due consideration" standard, we agree with the Third District Court of Appeal that although Lawrence couched it as an evidentiary standard, "the holding is more akin to a procedural requirement to allow meaningful judicial review. As such, it logically extends to all facts upon which the Governor [and here the Board] rel[y] to deny parole." (In re Ross, supra, 170 Cal.App.4th at p. 1513, fn 3.)
Disposition
The order granting Below's petition for writ of habeas corpus is affirmed. The Board of Parole Hearings is directed to vacate its 2008 parole decision and to hold a new hearing and issue a new decision within 60 days of this order. The Board shall proceed in accordance with due process in light of In re Lawrence (2008) 44 Cal.4th 1181, and In re Shaputis(2008) 44 Cal.4th 1241, taking into account all relevant regulating factors for which the record provides support.
WE CONCUR: RUSHING, P. J., PREMO, J.