Opinion
G045282 Super. Ct. No. M13867
11-28-2011
In re ARTHUR GOLDNER on Habeas Corpus.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Anya M. Binsacca, Claudia H. Phillips, and Gregory Marcot Deputy Attorneys General, for Appellant Randy Grounds, Warden of the Correctional Training Facility. Frank Ospino, Interim Public Defender, Denise Gragg, Senior Assistant Public Defender, and Jennifer L. Nicolalde, Deputy Public Defender, for Respondent Arthur Goldner.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Craig E. Robison, Judge. Reversed.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Anya M. Binsacca, Claudia H. Phillips, and Gregory Marcot Deputy Attorneys General, for Appellant Randy Grounds, Warden of the Correctional Training Facility.
Frank Ospino, Interim Public Defender, Denise Gragg, Senior Assistant Public Defender, and Jennifer L. Nicolalde, Deputy Public Defender, for Respondent Arthur Goldner.
In this appeal, we review whether the trial court properly granted prisoner Arthur Goldner's petition for writ of habeas corpus, in which Goldner asserted he was entitled to parole under relevant California Supreme Court precedent. (See In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence); In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis).)These cases make clear that, to support a finding of unsuitability for parole by the Board of Parole Hearings (Board), there must be "'some evidence'" a prisoner remains a "current danger to public safety." (Lawrence, supra, 44 Cal.4th at p. 1191.) Because we disagree with the trial court's evaluation of the evidentiary record, we reverse.
FACTS
In June 1983, Goldner and Richard Wetherel were drinking at a bar with Patrick Miller. After the bar closed, Miller invited Goldner and Wetherel to join him at his residence to continue drinking. Miller's girlfriend and her two children left the residence due to the disturbance of the three men's activities. According to Goldner, he consumed approximately 22 alcoholic drinks on the night of the crime. Miller (under the influence of alcohol and drugs) became disoriented and pointed a shotgun at Wetherel. Once Wetherel convinced Miller to put down the firearm, Goldner struck Miller with a vacuum cleaner. After beating and hog tying Miller, Goldner and Wetherel robbed the residence. Miller was found dead the next day by his girlfriend; an autopsy revealed the cause of death as asphyxiation due to manual strangulation.
Goldner was convicted of first degree murder and residential robbery. He was sentenced to 25 years to life in prison and began serving his sentence in October 1984. The Board deemed Goldner not suitable for parole in November 2008. The trial court granted Goldner's petition for writ of habeas corpus in January 2010. The court ordered the Board to hold a new parole hearing.
On March 3, 2010, the Board again considered Goldner's case and again denied parole to Goldner. A panel of the Board conducted a lengthy hearing (118 transcript pages) in which it reviewed and considered all of the evidence pertaining to Goldner. Goldner did not testify at the March 3, 2010 hearing. Following its deliberations, the panel announced its reasons for concluding Goldner 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."
First, "[t]he commitment offense was carried out in an especially cruel manner. . . . The motive is very inexplicable in relation to the offense, and the murder of the victim did not deter the prisoner from later committing other criminal offenses, which included the robbery of Patrick Miller, of the victim's house."
Second, "[t]here was a previous record. There was an escalating pattern. There were prior prison terms in which the inmate served, an unstable social history and prior criminality. There is no juvenile record."
Third, "the inmate has more work to do in terms of taking full responsibility for the crime. We heard today a minimization of responsibility. We didn't hear it today, but we noted in the record . . . . When he noted his association with his crime partner, he was unaware of his crime partner's history. . . . You have been in prisons and, you know, who are you to be talking at that time about your crime partner, and so by doing that, you're distancing yourself from your association with him. You said your relationship was negative. That is a form of minimization. That's a form of not taking full responsibility. So we see, we see blaming in the record. . . . [W]e see on page 5 that his alcohol use exacerbated his poor behavioral control, which culminated in the violent acts toward the victim of the life crime, and that is a form of minimization, too, is to blame the state that you're in. . . . Another area of minimization is [Goldner] continues to minimize his role in the description of the life crime relative to his crime partner . . . ."
Fourth, Goldner did not believe alcohol "would be a temptation on parole . . . but [he] plans to attend AA meetings at least once a week. . . . The Panel just had a tough time believing that you've really worked the steps and . . . that you're committed to your recovery in Alcoholics Anonymous." "So you lost your job eight times. You've been fired eight times, and you said it was due to your alcohol use . . . . So we blame the alcohol use for getting fired, and then we blame alcohol because we got to steal to go get money. So then the question becomes if employment prospects are a problem that the psychologist is saying that temptation will be there . . . ." Moreover, Goldner had not prepared an acceptable "relapse prevention plan . . . ."
Fifth, the March 2010 psychological evaluation was "not supportive." "We see Axis I, alcohol, substance use disorder, diagnosis for cannabis and alcohol and adult anti-social behavior. We see a low on the PCL-R. We see a moderate on the HCR-20, in which the comment is he still may underestimate the possibility of relapse."
The panel also noted the positive evidence in Goldner's favor: "[O]ne of the things that obviously jumps out right away is your lack of disciplinaries, particularly with the 115s, and you have received not even one of those during the period of time you've been in custody is very admirable and your 128s, the lesser rules violations, nothing since 1999, and, you know, so obviously, there's one area of your life where you have chosen to be extremely proactive and take a step forward and take control of your actions and what you're doing and how you're conducting yourself. You've also gone well down the road in terms of settling yourself up for vocations, and you have the numerous certificates and chronos regarding your work in telecommunications technologies . . . . [T]he good part about AA is that you've been going. You know, we've been saying you need to do some additional work in there, and do a better job of working the steps, but at least you're getting there." "His plans for parole are well documented and realistic. He has a verified offer of employment . . . as well as numerous marketable skills . . . ."
Goldner's seven disciplinary reports in his file indicated the minor offenses (Form 128) for which he was cited from 1985 to 1999: tardiness, gambling, disobeying orders, unissued property, delayed lock-up, counseling/smoking, and unexcused absence.
Goldner once more petitioned for writ of habeas corpus, and the court again granted Goldner's petition on April 5, 2011. This appeal pertains to the court's April 5 order. We will describe the evidentiary record relied upon by the Board in the discussion section below.
According to appellant, the Board held an additional parole hearing on February 7, 2011, and Goldner received a three-year denial of parole at that hearing. The record of the 2011 hearing is not before us.
DISCUSSION
"When a superior court grants relief on a petition for 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. [Citation.] A reviewing court independently reviews the record if the trial court grants relief on a petition for writ of habeas corpus challenging a denial of parole based solely upon documentary evidence." (In re Lazor (2009) 172 Cal.App.4th 1185, 1192.)
"[T]he statutes and governing regulations establish that the decision to grant or deny parole is committed entirely to the judgment and discretion of the Board, with a constitutionally based veto power over the Board's decision vested in the Governor." (In re Prather (2010) 50 Cal.4th 238, 251.) "[T]he 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." (In re Rosenkrantz (2002) 29 Cal.4th 616, 658.)
"[W]hen a court reviews a decision of the Board . . . the relevant inquiry is whether some evidence supports the decision . . . 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.) "[T]he circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative of 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." (Ibid.)
"Regardless 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." (Cal. Code Regs., tit. 15, § 2402, subd. (a).) "All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Id., subd. (b).)
"The Board's regulations set forth nine factors tending to show suitability for release on parole: (1) the absence of a juvenile record; (2) a history of reasonably stable social relationships with others; (3) tangible signs of remorse; (4) the commission of the crime resulted from significant stress, especially if the stress had built up over a long period of time; (5) battered woman syndrome; (6) a lack of history of violent crime; (7) increased age, which reduces the probability of recidivism; (8) marketable skills and reasonable plans for the future; and (9) responsible institutional behavior." (In re Ross (2009) 170 Cal.App.4th 1490, 1503.) "Factors tending to demonstrate unsuitability for release on parole include the inmate's (1) commission of the offense in an especially heinous, atrocious, or cruel manner; (2) previous history of violence; (3) unstable social history; (4) prior sadistic sexual offenses; (5) lengthy history of mental problems; and (6) serious misconduct in prison or jail." (Ibid.)
We catalogue below the evidence cited by the Board and explain why some (but not all) of the rationales relied on by the Board are supported by some evidence of current dangerousness.
Underlying Offense
First, the Board concluded the commitment offense was particularly cruel and therefore indicative of current dangerousness. There was a single victim who was beaten and strangled to death by Goldner and Wetherel following a heated confrontation, in which the victim aimed a gun at Wetherel. An additional factor damaging to Goldner is that he was aware that he was taking away a potential parental figure from two young children. According to the victim's girlfriend (who testified at the 2010 parole hearing), "they watched me leave at [2:00 a.m.] with one sick child with a fever and a small ten-month-old baby." Goldner and Wetherell then robbed the children's possessions (such as a piggy bank). The callousness and cruelty involved in this case exceeds the bare minimum required for a first degree murder conviction.
Ultimately, however, the underlying conviction is only pertinent to our analysis to the extent it is still relevant nearly 30 years later to Goldner's current dangerousness. "[T]he relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." (Lawrence, supra, 44 Cal.4th at p. 1221.) Goldner's heavy use of alcohol on the night of the murder is a direct link between his dangerousness then and his current dangerousness, as discussed below.
Prior Criminal Record and Social History
Although his mother was an alcoholic, Goldner had a relatively stable and healthy family history in North Carolina while he was a child. Goldner's parents were married until his mother's death in 2009. Goldner maintains contact with his father and brother; there is no criminal history in his family other than himself and a deceased brother. Goldner dropped out of high school prior to graduation, but ultimately earned his general education development certificate in 1976. Goldner has no apparent history of sexual abuse, abnormal sexual behavior, or sexual violence. He had two long-term relationships with women (one formed prior to his life sentence and one formed while in prison) that ended during his prison term. The latter relationship resulted in a daughter, who is now approximately 18 years old. Goldner's social relationships with individuals other than Wetherel were generally positive, but Goldner admitted many of his friends drank alcohol excessively. Goldner maintained employment before his imprisonment, but was fired approximately eight times as a result of irresponsible behavior arising out of his abuse of alcohol.
Goldner was suspended from high school for participating in a race riot; Goldner denied committing any violent acts during the riot. As a young man, Goldner was convicted of larceny of a vehicle (1974), breaking and entering (1975), and breaking and entering/larceny (1980). Goldner was also arrested for passing worthless checks (1983). While not necessarily indicating a violent disposition, there is some evidence Goldner's prior social history and recidivism would make him a current threat to public safety were he released if he were to revert to alcohol abuse. Goldner himself claimed his crimes were all based on his need for money to pay for his consumption of alcohol.
Lack of Insight/Minimization of Role in Offense
Although he did not testify at the 2010 parole hearing, Goldner has stated in the past that Wetherel was the one who strangled the victim and advocated robbing the victim's residence. Goldner has also provided somewhat inconsistent information about whether the victim was "armed" when Goldner was physically attacking the victim (Goldner initially testified as if the victim was armed even after he had placed the gun on the ground). Goldner's views on whether the victim was dead when he left the residence have also evolved from a belief that the victim was alive to more recent uncertainty.
Goldner asserts he was not trying to blame the victim for his actions and further asserts he takes full responsibility for his actions. Goldner was remorseful for his actions and had attempted to express his remorse in letters to the victim's family. The victim's father questioned the sincerity of the letter, claiming it appeared to be a form letter signed by Goldner.
The most recent psychological assessment stated: "Goldner's insight and ability to realistically assess his own behavior is relatively well-developed. Mr. Goldner has developed an understanding into the ways in which his negative emotions led him to use alcohol as a means of coping. Due to his previous incarceration, he felt guilt and shame about the impact of his actions toward his family. He used alcohol to numb these emotions . . . ."
"Expressions of insight and remorse will vary from inmate to inmate and there are no special words for an inmate to articulate in order to communicate he or she has committed to ending a previous pattern of violent or antisocial behavior. [Citation.] Like all evidence relied upon to find an inmate unsuitable for release on parole, in our view 'lack of insight' is probative of unsuitability only to the extent that it is shown by the record and rationally indicative of the inmate's current dangerousness." (In re Twinn (2010) 190 Cal.App.4th 447, 465.)
A common misconception is that, unless one excludes all mitigating context from a description of the crime, describing the crime as it was actually committed demonstrates a dangerous "lack of insight" due to minimization of one's wrongdoing. It is not minimization to tell the truth. (See Rosenkrantz, supra, 29 Cal.4th at p. 680 ["Although the Governor possesses the discretion to characterize petitioner's response to this event as excessive or inappropriate, nothing in the record . . . supports the determination that petitioner lied about the incident . . . or improperly sought to minimize his own culpability by describing it as an attack upon himself"]; In re Powell (2010) 188 Cal.App.4th 1530, 1542.)
It is undisputed in this case that there were two individuals — Goldner and Wetherel — who murdered the victim. It is also apparently uncontested that the altercation resulting in the victim's death began when the victim pointed a shotgun at Wetherel. There is no contrary evidence in the record suggesting Goldner bullied Wetherel into taking part in the crimes or Goldner (rather than Wetherell) choked the victim. Thus, to conclude Goldner has inaccurately minimized his role in the crime is pure speculation. Perhaps he did, but there is no evidence in the record contradicting the story presented by Goldner. Nor is there even a finding by the Board that it believed the event did not occur as Goldner described it. Instead, the Board seems to regard any statement by Goldner contextualizing the event as minimization.
This also holds true for the Board's characterization of Goldner's comments about the role of alcohol in his crimes. The Board apparently accepted that Goldner consumed too much alcohol, both on the night of the incident and during his life generally before he was imprisoned. Nothing in the record supports a charge that Goldner seeks to deflect moral blame by referencing his alcohol use or addiction. To the contrary, it would show a profound lack of insight on Goldner's part were he to discount the role that alcohol played in his life and in this incident — assuming, of course, it is accurate to say Goldner was drinking heavily on the night in question.
Our review of the parole hearing discloses that the victim's girlfriend testified the men were not drinking or drunk when she was at the residence. The Board did not explicitly credit this version of events or otherwise suggest it believed Goldner had not been drinking heavily on the night of the murder.
Failure to Adequately Address Alcoholism
The last time Goldner used alcohol was on the day he murdered his victim. Goldner also used marijuana occasionally and tried cocaine several times prior to his incarceration for murder. Goldner had substance abuse treatment and participated in AA while in prison.
Goldner commented during his psychological assessment that he believes "he will not be tempted to use alcohol in the community, [but] if he were tempted, he would remove himself from the situation or environment and contact his sponsor. Mr. Goldner indicated that he would participate in weekly AA meetings." The psychologist observed: "Because he will likely experience stress upon parole and has used alcohol as a means of coping in the past, Mr. Goldner will likely face some temptation to use. Underestimating the potential for relapse may cause Mr. Goldner to be more vulnerable to high risk situations." But the psychologist also noted: "With regard to his ability to remain free from drug and alcohol use, the prognosis is relatively good."
Goldner's comment about the lack of temptation can be interpreted a number of ways. On the one hand, the Board thought Goldner's view was at odds with the notion that an alcoholic will always be tempted to abuse alcohol no matter how long the individual has demonstrated sobriety. On the other hand, Goldner might simply have meant he would avoid situations in which he would be tempted to consume alcohol and thereby avoid temptation. As Goldner stated at the hearing in his closing statement: "I mean, I see it around me, drugs, heroin, alcohol in [prison], and early on in my alcohol program, I was tempted and stuff, but after 20 years of sobriety, I just remove myself from the environment." And there is a catch-22 aspect to this evidence: Had Goldner said he would have been tempted by alcohol outside prison, the Board might have characterized the statement as an admission of the lure alcohol still held for him. Although we do not agree with the Board's treatment of Goldner's comments as indicative of future dangerousness, we defer to its findings on this point.
As for the purported lack of a relapse plan, it is unclear what the Board expected Goldner to do. The psychologist's report stated: "Given his heavy use in the past, as well as the stress that he is likely to experience, relapse is a possibility that he must address. A well articulated and thorough relapse prevention plan is essential for Mr. Goldner. Should Mr. Goldner relapse to alcohol use his potential for violence would increase." The psychologist assessed Goldner's parole plans generally as follows: "Mr. Goldner's plans for parole are well-documented and realistic. He has a verified offer of employment . . . as well as numerous marketable skills that will be an asset to him in his job search. Mr. Goldner appears to have some sense of the challenges that he will face in the community, however, he may underestimate the difficulties he will face, particularly with regard to employment prospects and the temptation of substance abuse. Mr. Goldner has expressed a commitment to attend substance abuse treatment which will be a necessity for him." The psychologist did not actually assess whether Goldner's relapse plan was "well articulated" or "thorough."
Goldner was accepted into the Partnership for Re-Entry Program (PREP), which, according to its director, "is a nine person, sober living home for men . . . . AA meetings are held weekly at Francisco Home. If it is necessary, Francisco Home will support Mr. Goldner in attending regular AA or NA meetings in the neighborhood." Goldner even had backup housing options, which included relapse prevention programs. Unlike In re Cerny (2009) 178 Cal.App.4th 1303, pages 1313-1315, in which the petitioner was a former drug user who the Board concluded was likely to revert to drug use without verifiable residential and employment plans, it appears Goldner has secured verifiable arrangements. The Board acknowledged Goldner's residential plan was preferable to Goldner's prior plan of staying with a friend.
Despite the record, the Board ultimately found Goldner's plan was not "complete." Nowhere does the Board explain what additional arrangements would result in Goldner's relapse plan being "complete." The purported lack of an adequate relapse plan does not support the Board's decision.
Psychological Assessments
There are two psychological assessments of Goldner in the record: (1) a March 2010 assessment prepared by Lisa Kalich; and (2) an April 2008 assessment performed by Richard Starrett. Goldner, who does not have a significant history of mental illness, has previously been diagnosed as having antisocial traits and alcohol dependence.
The 2010 assessment concluded: "After weighing all of the data from the available records, the clinical interview, and the risk assessment data, it appears that Mr. Goldner presents a low to moderate risk for violence in the free community." (Italics added.) This assessment was based on: (1) the "PCL-R" (Psychopathy Checklist) for which Goldner was placed in the 13th percentile among North American male offenders, i.e., "the low range"; (2) the "HCR-20" (Historical, Clinical, Risk Management test), for which Goldner's score "placed him in the moderate risk category for violent recidivism"; and (3) the "LS/CMI" (Level of Service/Case Management Inventory), "an actuarial instrument designed to evaluate levels of risk to recidivate" generally (not just violent crimes), for which Goldner's scored lower than 90 percent of incarcerated male offenders in North America (somewhat strangely deemed "the medium category" by the psychologist). The assessment cited the following evidence as the basis for Goldner's elevated risk level: Goldner's preincarceration criminal history, his alcohol abuse, and his purported lack of insight and minimization of his crimes.
The 2010 assessment stated: "Though Mr. Goldner has a history of criminal behavior and was twice incarcerated in prison in North Carolina, his behavior prior to the life crime was not suggestive of violence. In fact, his criminal acts, specifically breaking and entering and passing bad checks, were motivated by his desire to obtain money for alcohol. Mr. Goldner committed the life crime during the peak of his alcohol use . . . . It is evident that alcohol has been the most significant factor in Mr. Goldner's past antisocial behavior. Thus, his risk for future violence is closely tied to his ability to avoid alcohol use. In this regard, Mr. Goldner has gained insight into his alcohol dependence. He was able to articulate an understanding of the emotional factors which led to his use, as well as strategies he has developed to cope with negative emotions. Mr. Goldner has participated in treatment consistently for several years and plans to attend treatment in the community. One remaining concern is Mr. Goldner's insistence that he will not be tempted by alcohol in the community. . . . A well articulated and thorough relapse prevention plan is essential for Mr. Goldner. Should Mr. Goldner relapse to alcohol use his potential for violence would increase." (Italics added.)
The 2008 assessment concluded: "Mr. Goldner's level of psychopathy is in the low range. His overall propensity for violence is in the low range when compared to similar inmates. The inmate's general recidivism risk is rated in the low range." The 2008 assessment cautioned: "These results are qualified with the caveat that we have no experience with this individual outside a controlled setting since his current (second) incarceration. If he would return to prior lifestyle issues, his risk of recidivism . . . would considerably increase."
Goldner's attorney asserted at the parole hearing: "[A]ll his psych reports are very favorable prior to this. His '96 report, which is over approximately 14 years ago, considered him less than the average inmate. His '01 report and his '07 report rated him as no more than the average citizen, and his latest report before this report gave him lows in all the same tests that this report has given him mediums . . . and all he's done is positive programming, no 115s, no 128s and yet his score has gone up . . . ."
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Goldner makes a compelling argument on the merits as to whether his ambiguous psychological assessments are favorable or unfavorable. It is odd that he is now considered to be a higher risk than in the past based on the same basic pool of historical information. But the Board was entitled to credit the most recent psychological assessment, which deems Goldner a low to medium risk rather than a low risk. And the 2010 assessment is not without a basis for its analysis, as there is uncertainty as to whether Goldner can actually refrain from alcohol abuse outside prison and thereby avoid the triggers for his criminal behavior. (See In re Cerny, supra, 178 Cal.App.4th at p. 1316 [decision "supported by evidence that Cerny might revert to his prior drug use and, thus, become a danger to public safety"]; In re Criscione (2009) 180 Cal.App.4th 1446, 1461 [upholding Board's decision largely because Board expressed concern with lack of certainty in psychological report about the likely outcome of the prisoner's future interactions with females after release].)
Conclusion
This is a close case. Goldner cannot erase his past: He is an alcoholic who committed horrible crimes and generally led a disreputable life prior to his imprisonment. But the Board is not entitled to deny parole indefinitely and systematically to all alcoholics and drug addicts based on a generalized, unsupported fear they could resume their prior lifestyle upon release, despite years of treatment and abstinence. Moreover, two of the Board's rationales — supposed lack of insight and lack of a relapse prevention program — are dead ends.
The Board's ultimate decision is supported by the cruelty of the alcohol-fueled murder, Goldner's social history as a young adult addicted to alcohol, the 2010 psychological assessment linking Goldner's current dangerousness (low to moderate, not simply low) to his ability to prevent himself from drinking alcohol, and the Board's judgment that Goldner had not yet adequately prepared himself to cope with the temptations of life outside prison. Goldner's efforts to reform his ways are commendable. However, it is not for this court to usurp the discretionary role of the Board. The Board duly considered all of the evidence put before it and all of the factors prescribed by its guiding regulations. Taken as a whole, the Board's stated rationale for denying parole sufficiently "establish[ed] a rational nexus" between its concerns and "the necessary basis for the ultimate decision — the determination of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1210.) There is some evidence that, if Goldner were released now, he would still pose a risk to the public despite the progress he has made while in prison.
DISPOSITION
The trial court's order granting the petition for writ of habeas corpus is reversed.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.