Opinion
H031434
5-28-2008
In re BYRON KENNETH MILLS, On Habeas Corpus.
NOT TO BE PUBLISHED
Byron Kenneth Mills, the petitioner herein, was convicted of second degree murder (Pen. Code, § 187) in 1981 and continues to serve a sentence of 15 years to life in state prison. On October 1, 2003, the Board of Prison Terms (now the Board of Parole Hearings; hereafter Board) conducted a hearing on Millss suitability for release on parole. The Board decided that same day that Mills was unsuitable for parole because he could pose a threat to public safety if released. The superior court issued a writ and reversed the Boards decision in an order.
Further statutory references are to the Penal Code unless otherwise indicated.
Effective July 1, 2005, the Board of Parole Hearings replaced the Board of Prison Terms. (See § 5075, subd. (a).)
There was no evidence before the Board that sustains its finding of a nexus between the commitment offense, Millss background, current psychological state, and prison record and any danger to the public safety if he is released. Accordingly, we affirm the superior courts order with a modification we will direct.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prisoners Background
Mills is 48 years old and has spent most of his adult life in prison for the second degree murder of Rosemarie Mills, his first wife. Mills was about 18 years old when he married Rosemarie, who was 15. She was already pregnant by him. Mills became eligible for parole in 1989.
II. History of Antisocial Behavior Toward Rosemarie
Mills had no criminal record before he murdered Rosemarie. He did, however, behave badly toward her.
During the 1990 parole suitability hearing a Board commissioner noted that two months before Mills murdered Rosemarie she had found it necessary to seek a restraining order against him. At the 2003 parole suitability hearing, the victims sister described to the Board the restraining orders contents. Rosemarie had written that "for the last month he has threatened to kill me, saying that if he cant have me, no one else will." The victims sister also provided a pejorative account of Millss behavior during his marriage to the victim: "She was a battered and abused wife. She stayed with him. She tried to make a go of it." "We saw the bruises on my sister while she was alive. My sister and [Mills] had a very violent relationship. She was a young mother who tried to protect her two young children". When "Nicole was born, Byron came to the hospital and stated that she looked like a white bitch. . . . He went into the nursery and the nurses threatened to call the police on him." Rosemaries sister read a letter to the Board that the victims late stepfather had written, in which the stepfather stated, according to the sister, that Mills "kicked [Rosemarie] down a flight of stairs even when she was carrying Nicole in her stomach."
The Board did not cite as a factor (cf. Cal. Code Regs., tit. 15, § 2402, subd. (c)(3)) Millss threats toward people other than Rosemarie. According to the victims sister, Mills menaced Rosemaries family. "[N]ot only did [Mills] threaten to kill my sister, he threatened to kill my mother . . . . He threatened my husband . . . . He threatened Brenda D[e]nnington [and] . . . said that he would kill Brenda, just like he would kill—would shoot her just like he would shoot [Rosemarie]. At the time, of course, my sister was still alive." Dennington had made a similar statement to Millss probation evaluation officer in 1981. Also supported by the probation report is Rosemaries sisters account of Millss threatening her husband. The probation officer wrote that the "brother-in-law[] reported on the only occasion he met the defendant he was threatened by the defendant and the defendant attempted to force him into a fight. In fact, [the brother-in-law] advised the undersigned [that] the defendant, on that occasion, threatened his life and this incident was observed by members of the family." And Mills had similar antisocial tendencies as a youth. The 1992 correctional diagnostic unit evaluation stated that Mills "was considered a bully by his peers."
Further references to the regulations or "Regs." are to title 15 of the California Code of Regulations.
Millss view of his history with Rosemarie is different. The 2001 psychological evaluation report included information obtained from an interview with Mills in December of 2000. The evaluator wrote: "His first marriage [i.e., his marriage to Rosemarie] was stressful and conflictual, frequently leading to verbal abuse. Although prior reports have indicated that their relationship was quite physical and often assaultive, he denies this as being the case, and said, `Yes, we had a physical relationship. However, I was never abusive toward her. " In his testimony before the Board for the 2003 parole suitability hearing—the proceeding we are reviewing here—Mills told the Board panel "I didnt beat her."
III. Commitment Offense
Mills murdered Rosemarie after she told him that she was living with another man and then acknowledged sleeping with him. Mills strangled her to death, telephoned his neighbor, and reported the situation. The neighbor, arriving on the scene, could not cope with the scene—Rosemarie lay on the floor lifeless—so Mills called the neighbors wife and she attempted to revive Rosemarie. The neighbor called the police, who arrived to find Rosemarie on the floor with a towel over her face. An autopsy revealed that Rosemarie had died of strangulation. The crime occurred on July 13, 1980.
IV. Post-conviction Factors
A. Prison Record and Prison Staff Evaluations
A 2003 life prisoner evaluation report written by a correctional counselor was favorable to Mills. The report stated: "Considering the commitment offense[,] prior record[,] and prison adjustment, this writer believes the prisoner would probably pose a low degree of threat to the public if released from prison at this time. Mills has been essentially disciplinary free, has completed three programs that could provide employment upon his release, and has solid plans for establishing his residence. Ive had several occasions to speak with him concerning his crime. He was always candid and forthright. I am confident that the moral flaws that led to his crime are no longer factors when considering his chances for re-offending."
The latter element stands in slight contrast to the counselors 2001 life prisoner evaluation report, which, though also highly favorable to Mills, contained the evaluators caveat that because of the limited time available to the evaluator "I cannot endorse without some reservation the question of his chances for re-offending given the same circumstances." By 2003 the evaluator had met with Mills enough times to no longer have that reservation.
Mills has incurred one disciplinary infraction, in 1986; in 1992 he was reported to be "polite and respectful" in confinement. A 1992 Psychological Council evaluation report stated that Millss "psychological . . . record states that he has completed the Anger Control Group and Rational Behavior Training Group. . . . He also has been involved in the Christian-based self-help group, Yokefellows, during the 1983-85 period and again from 1990-91 . . . . He has also been involved in individual psychotherapy from [January of 1992] . . . to pursue the recommended areas of exploration from the . . . Psychological Council including relationships with women and problematic areas in the past with his mother too. This individual psychotherapy will conclude in [August of 1992] because the doctoral intern will be completing her internship at that time."
In prison, Mills has participated in several rehabilitation programs and learned vocational skills. The 2003 life prisoner evaluation report stated that Mills "has several skills that he has learned while incarcerated (forklift operator, dry cleaning and masonry). Numerous letters with offers of employment were also noted in the Central File." Mills received a job performance evaluation from a supervisor stating, " `The inmate takes pride in his work and works well with peers and supervisors. "
B. Psychological Evaluations
The Board reviewed Millss receipt of a number of laudatory psychological evaluations and his involvement in numerous in-prison psychological programs.
A psychological evaluation dated January 8, 2001, concluded of Mills that "[i]f released to the community, his violence potential is estimated to be no higher than the average citizen in the community." "This inmate has no juvenile criminal history nor has he had any prior arrests or convictions prior to this offense. He also does not have a substance abuse history. The lack of these risk factors would also substantiate a lower violence potential in the community." Mills "would pose a less than average risk for violence when compared to this Level II inmate population." And Mills "is competent and responsible for his behavior. He has the capacity to abide by institutional standards and has overwhelmingly done so during his incarceration period because of his disciplinary-free record since 1986, as well as his positive programming."
The psychological evaluation based the foregoing conclusions on its view that Millss "insight and judgment appeared to be intact." (The evaluation was based in part on an interview with Mills that took place on December 28, 2000.) "In fact, he demonstrated a significant amount of insight into his commitment offense. He admitted to having a prior anger problem and feels that he is able to deal with stress with much more patience and thoughtfulness." Mills "showed remorse over the incident and reported thinking about [his victims] death daily." The report also stated that Mills has "programmed very well while in prison and has participated in [a named course of individual] therapy, as well as Life Skills and numerous self-help groups, including Anger Control and Relaxation and Stress Management."
A correctional diagnostic unit psychological evaluation, written in 1992, stated that Mills "received average and above-average work reports in all his work assignments. He has received no serious disciplinary reports and has numerous laudatory chronos from staff members for his behavior and attitude." The evaluation summarized that at that point "Mills has been able to successfully adjust to the prison environment and has been exemplary in his behavior and attitude. . . . Mills articulates prosocial values and has learned appropriate ways to resolve conflict."
In a 1990 parole suitability hearing before the Board, Mills and a commissioner discussed Millss psychological state. "I have been angry plenty of times since Ive been in prison," Mills said. "And I havent touched anybody." The commissioner replied, "Yeah, but were in a controlled environment here." Mills replied in turn, "I mean anger is anger. If I was mad—I mean theres a difference between me then and me now, you know. When it came to violence, it was—I would react. I would just go off . . . . Well, I dont do that anymore, okay. I dont have to be violent to get my point across. I dont have to act violent, speak violent, . . . or revert to violence to get my point across." Mills asserted that his self-improvement had come about "not because Im in a controlled setting" but because he had matured.
V. Parole Plans
Mills was out on bail following the killing of Rosemarie and met his current wife at that time. They married in 1985 and were still married at the time of the parole hearing. During the hearing, a Board member, after reading a recent letter from Millss wife, summarized that "in essence its a letter of support. Talks about you being married to her and . . . implies that youre welcome in her home." Mills intends to live with her if released. Millss father was prepared to employ Mills in his long-running business, an answering service for the medical profession.
Moreover, Mills "would like to pursue his goal of opening his own forklift operators school and utilize some of the skills he has obtained while incarcerated." At the parole hearing, Mills stated that "I have over 2,200 hours on various forklifts, and my license is still current." The Board reviewed in detail Millss in-prison acquisition of vocational skills at the hearing. There was also evidence that Mills is interested in the refrigerator industry.
VI. Parole Board Hearing
At the hearing before the Board, Mills repeatedly stated that he was "sorry" for killing Rosemarie.
Mills stated that on being paroled "I plan to seek out self-help groups that deal with anger control issues, because I feel that I can never stop learning, nor do I ever want to forget what led me to do this crime. . . . [A] man should never, under any circumstance, put his hands on his wife or his girlfriend, or any woman for that matter. Twenty-three years have gone by and Im not the same man that I was when I just turned 21."
Mills acknowledged that living in a crowded prison dormitory with 370 other inmates caused stress and regularly gave rise to situations that made him angry. He told the Board that he dealt with it in a deflective manner, maintaining a calm external demeanor and addressing anger-producing situations by thinking about them.
Relatives of Mills, including Millss father, supported his release in letters they sent to the Board.
The Deputy District Attorney opposed Millss release and asserted: "I have no level of confidence, no sufficient level of confidence that he will be able to control those feelings of getting mad every day if he is given a date and is in the outside world."
The Board received 20 confidential letters opposing Millss release. At Millss parole hearing, which Mills attended, people related to Rosemarie expressed bitter opposition to the idea of Millss release on parole and characterized him as unworthy of it. These included Millss son and daughter by Rosemarie. The son, Byron Mills, Jr., wrote a letter to the Board regretting that he was the namesake of Mills, whom he called "a cold-blooded murderer." Millss son stated, "I dont recall him ever telling me he was sorry." Rosemaries sister rejected Millss protestations of remorse as insincere. "Every time I come here, I hear his scripted somewhat of an apology. And this is no different. There is no emotion. There is no sincerity. Never once has there been sincerity in this mans voice to whatever he said."
The San Jose Police Department opposed Millss parole.
VII. The Boards Decision
The Board stated in its decision denying parole: "This Panel has reviewed all information received from the public and relied on the following circumstances in concluding that the prisoner is not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison at this time. Paramount reasoning would be the timing and the gravity of the committing offense. [1] The offense was carried out in a vicious and brutal manner. [2] The offense was carried out in a dispassionate manner. And in a dispassionate manner meant, you left two young children without a mother and without a father, with no concern for their well-being. [3] The offense was carried out in a manner which demonstrates an exceptionally insensitive disregard for human suffering. This was the strangulation choking of your estranged wife, [Rosemarie] Mills. . . . [4] [There] was somewhat of a systematic abuse of the young woman. [5] The motive for the crime was inexplicable and very trivial in relationship to the offense." There is "[6] opposition to a finding of suitability," including authorities and the victims next of kin. "[7] the prisoner still needs some self-help and therapy in order to face, discuss, understand, and cope with stress in a non-destructive manner, so that the prisoner can better understand the causative factors." One commissioner explained to Mills that "its hard for us to understand what the level of your insight is into" the commitment offense and that the Board wanted to be assured that "youre not a person that can ever commit this kind of a crime again" before releasing him on parole.
VIII. Superior Court Proceedings
Mills challenged in superior court the Boards decision to deny parole. As relevant to this appeal, Mills filed a petition for writ of habeas corpus in that court, a petition that resulted in the issuance of the writ. The court ordered Millss case remanded to the Board for reconsideration. The court found that the Board had erred in relying on the circumstances and date of Millss murder conviction to deny parole and had improperly weighed or failed to weigh certain parole suitability factors. It ordered the Board not to consider any "static fact," i.e., any immutable factor such as the circumstances of the murder Mills committed, in denying parole to Mills unless the Board explained how the factor applied to its determination.
In its ruling, the superior court took issue with the Boards findings in a number of respects. It rejected the Boards view that the crime was both cruel and dispassionate. "Murder is always an ugly event which will always `involve some amount of viciousness or callousness. [Citation.] For this reason the Board must do more than merely express societys moral outrage at murder in its many and varied manifestations. . . . [I]t is always possible to say something unique, or even extra, about the crime." The court ruled that "victim and law enforcement `opposition cannot add weight where there is no evidence of unsuitability to place in the balance. [Citation.]" With regard to Millss psychological state, the court found that the record "provides no reasonable grounds to reject, or even to challenge the findings and conclusions of the psychologist and other evaluators regarding Petitioners dangerousness at the time of the Board hearing." Rather, the superior court stated, much evidence showed that Mills was psychologically fit for release and would not be a danger to the public. The court further found that "[t]here is not . . . even a modicum of evidence that shows Petitioners motive for the killing is less significant or important than others which account for the commission of a second degree murder, and that his release would therefore pose a greater threat to society than the release of most life prisoners." Contrary to the Boards view, the superior court also stated, Millss crime could not be both inexplicable and committed for a trivial reason. The court decided that the Board improperly relied on "(1) the use of the next of kins statements as substantive evidence, (2) the vague requirement of more `self-help and therapy when there is no indication any more is available or what will ever be deemed satisfactory (especially given the favorable professional reports), and, (3) [the Boards] holding against Petitioner the exercise of his right to not discuss the crime."
DISCUSSION
I. Contentions on Appeal
The Warden contends that the superior courts order should be reversed because some evidence supports the Boards decision to deny parole and the order applies incorrect legal standards, improperly second-guessing the Boards decision finding Mills unsuitable for release.
II. The Legal Framework of Parole Decisions and Judicial Review Thereof
A. Board Decisions
The Board is the administrative agency within the executive branch that is generally authorized to grant parole and fix release dates. (§§ 3040, 5075 et seq.) The specified factors applicable to the Boards parole decisions are stated in section 3041 and regulations setting forth specific considerations that the Board must take into account in determining whether a life prisoner is suitable for parole. (Regs., § 2402.)
Under section 3041, subdivision (a), "The [B]oard shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime." As stated in section 3041, subdivision (b), the Board "shall set a release date unless it 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 . . . ." (Italics added.) Accordingly, the overarching consideration in the suitability determination, and the one that is prescribed by statute, is whether the inmate is currently a threat to public safety. (In re Dannenberg (2005) 34 Cal.4th 1061, 1071, 1083, 1085-1086 (Dannenberg); In re Scott (2005) 133 Cal.App.4th 573, 591 (Scott II).)
That said, "[o]f course, no inmate may be imprisoned beyond a period that is constitutionally proportionate to the commitment offense or offenses." (Dannenberg, supra, 34 Cal.4th at p. 1071.) Such excessive confinement would violate "the cruel or unusual punishment clause (art. I, § 17) of the California Constitution." (Id. at p. 1096.) Thus, "section 3041, subdivision (b) cannot authorize such an inmates retention, even for reasons of public safety, beyond this constitutional maximum period of confinement." (Ibid.)
In the suitability determination for life prisoners, the factors that the Board is required to consider and balance are specified in section 2402 of the regulations. Subdivision (a) thereof reiterates the statutory public safety factor by stating 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." (Regs., § 2402, subd. (a).)
Subdivision (b) provides that "[a]ll relevant, reliable information . . . shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoners 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 prisoners 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." (Regs., § 2402, subd. (b).)
Subdivision (c) specifies six nonexclusive circumstances, which are set forth as "guidelines," tending to show unsuitability. The importance of these circumstances, or combination thereof, is left to the judgment of the Board. These circumstances include, as relevant here, the "(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered [regarding the commitment offense] include: [¶] . . . [¶] (B) The offense was carried out in a dispassionate and calculated manner . . . . [¶] . . . [¶] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense." (Regs., § 2402, subd. (c).) Possibly also relevant is the circumstance of a "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." (Id., subd. (c)(2).)
Subdivision (d) is the converse of subdivision (c). It specifies nine circumstances, likewise set forth as "guidelines," tending to show suitability for release, and the importance attached to any circumstance or combination of circumstances is again left to the judgment of the Board. They include, as relevant here: (1) the lack of a juvenile record; (2) a stable social history; (3) signs of remorse; (4) evidence that significant life stress precipitated the crime; (5) no history of violent crime; (6) the prisoners current age, which may suggest a lower risk of recidivism; (7) realistic plans for the future; and (8) positive behavior in an institutional setting. (Regs., § 2402, subd. (d).) The regulation reemphasizes that the Board also may consider "any other information which bears on the prisoners suitability for release." (Id., subd. (b).)
While the Boards discretion in parole suitability determinations is very broad, it is not complete or absolute. It includes the power to "identify and weigh the factors relevant to predicting `by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts. [Citation.] However, `the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board. [Citation.]" (In re DeLuna (2005) 126 Cal.App.4th 585, 591.) In exercising its discretion, the Board is constrained by the procedures specified by statute. The precise manner in which the specified factors relevant to parole suitability are considered and balanced is within the Boards discretion, but its decision must reflect an individualized consideration of all the specified criteria and it may not be arbitrary or capricious. (Scott II, supra, 133 Cal.App.4th at pp. 590-591, citing In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz).) "`Although a prisoner is not entitled to have his term fixed at less than maximum or to receive parole, he is entitled to have his application for these benefits "duly considered" based upon an individualized consideration of all relevant factors. [Citations.]" (Rosenkrantz, at p. 655.)
B. Judicial Review
Judicial review of the Boards decisions concerning parole suitability is quite circumscribed. First, "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." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) "Due process of law requires that this decision be supported by some evidence in the record. 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 [Board]. . . . 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 [Boards] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the courts review is limited to ascertaining whether there is some evidence in the record that supports the [Boards] decision." (Rosenkrantz, supra, at pp. 676-677.)
As applied in Rosenkrantz, and given its historical roots as explained there, "the `some evidence test may be understood as meaning that suitability determinations must have some rational basis in fact." (Scott II, supra, 133 Cal.App.4th at pp. 590-591, fn. 6.) "Because this requirement gives rise to a liberty interest protected by due process of law, and because due process of law requires that a decision considering such factors be supported by some evidence in the record, the [Boards] decision is subject to judicial review to ensure compliance with this constitutional mandate." (Rosenkrantz, supra, 29 Cal.4th at pp. 663-664.) Thus, while we do not reweigh the evidence or engage in our own balancing of the specified factors, the exceedingly deferential "nature of the `some evidence standard of judicial review set forth in Rosenkrantz [citation] does not convert a court reviewing the denial of parole into a potted plant." (In re Scott (2004) 119 Cal.App.4th 871, 898 (Scott I).) "[T]he evidence must substantiate the ultimate conclusion that the prisoners release currently poses an unreasonable risk of danger to the public. ([Rosenkrantz, supra, 29 Cal.4th at p. 677]; In re Lee [(2006)] 143 Cal.App.4th [1400,] 1408 [(Lee)].) It violates a prisoners right to due process when the Board . . . attaches significance to evidence that forewarns no danger to the public or relies on an unsupported conclusion. [Citations.]" (In re Tripp (2007) 150 Cal.App.4th 306, 313 (Tripp).)
Accordingly, because the overarching consideration is public safety, the test in reviewing the Boards decision denying parole " `is not whether some evidence supports the reasons [the Board] cites for denying parole, but whether some evidence indicates a parolees release unreasonably endangers public safety. " (In re Barker (2007) 151 Cal.App.4th 346, 366, second italics omitted.) "Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolees release unreasonably endangers public safety." "For example, a seriously troubled adolescence, even for an 80-year-old inmate might constitute `some evidence of `a history of unstable or tumultuous relationships with others. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(3).) It would not necessarily be some evidence of an unreasonable danger to public safety." (Lee, supra, 143 Cal.App.4th at p. 1409 & fn. 4.) In reviewing a suitability determination, the Board must remain focused not on the circumstances that may be aggravating in the abstract but, rather, on facts indicating that release currently poses " `an unreasonable risk of danger to society. " (In re Elkins (2006) 144 Cal.App.4th 475, 499 (Elkins).) Accordingly, as is clear from Rosenkrantz, which repeatedly emphasized that the due process—based some-evidence standard applies to the Boards "decision," there must be "some evidence" in the record to support "the decision to deny parole, based upon the factors" rather than merely "some evidence" to support a particular factor. (Rosenkrantz, supra, 29 Cal.4th at pp. 658, 664.)
III. Analysis of Boards Cited Unsuitability Factors
The warden contends that the Boards decision to deny parole must be upheld under the extremely deferential "some evidence" standard of review because some evidence in the record supports the Boards findings that Mills is unsuitable for parole based on various parole unsuitability factors—in a nutshell, the circumstances of the commitment offense, Millss abuse of Rosemarie, and his current psychological state. The warden also mentions the opposition of the district attorney and the victims family members.
We conclude that the relevant record before the Board contains no evidence to sustain the Boards cited reasons for finding Mills too dangerous to be released.
A. Nature of the Commitment Offense
1. Viciousness and Brutality; Disregard for Human Suffering
The Board stated that the offense "was carried out in a vicious and brutal manner" and "in a manner which demonstrates an exceptionally insensitive disregard for human suffering."
As the superior court observed, all murders are brutal and vicious and involve human suffering. "[A]ll second degree murders will involve some amount of viciousness or callousness." (In re Weider (2006) 145 Cal.App.4th 570, 587.) But that is not the standard for keeping Mills in prison. " `[A] life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date. [Citation.]" (In re Rosenkrantz, supra, 29 Cal.4th at p. 683.) " `Particularly egregious "means that "the violence or viciousness of the inmates crime must be more than minimally necessary to convict him of the offense for which he is confined." (Dannenberg, supra, 34 Cal.4th at p. 1095, italics deleted.) That standard is not met here.
Weider aptly noted that "[t]he nature of human activity is such that, given its subjective assessment, the Board could always find some aspect of the crime that exceeds the minimum elements. Rather, an unsuitability determination must be predicated on `some evidence that the particular circumstances of [the prisoners] crime—circumstances beyond the minimum elements of his conviction—indicated exceptional callousness and cruelty with trivial provocation, and thus suggested he remains a danger to public safety. " (People v. Weider, supra, 145 Cal.App.4th at p. 588.)
There is no evidence in this record that Mills "acted with cold, calculated, dispassion; or that he tormented, terrorized, or injured [his victim] before deciding to [kill] her; or that he gratuitously increased or unnecessarily prolonged her pain and suffering. Rather, . . . [h]e became suspicious and very emotional, and . . . [acted] immediately . . . . Was the crime callous? Yes. However, are the facts of the crime some evidence that [he] acted with exceptionally callous disregard for [the victims] suffering; or do the facts distinguish this crime from other second degree murders as exceptionally callous? No." (In re Smith (2003) 114 Cal.App.4th 343, 367.) That is not to say, however, that on remand evidence of particular egregiousness could not be adduced. For example, and as the warden conceded at oral argument, there was no evidence to support the Peoples claim on appeal that Mills strangled Rosemarie to death in front of the couples young son, which could in turn show a depraved indifference to the effect on the couples son of witnessing the murder. (The son was in close enough proximity that Mills could hear him crying as he was strangling Rosemarie.) Indeed, the Board did not even rely on such a possibility in rendering its decision. If, on remand, such evidence is properly before the Board and the Board properly relies on it, it could, perhaps in combination with other evidence, affect the posture of the case.
2. Dispassionate Murder
The Board found that the offense "was carried out in a dispassionate manner." But, as we have explained immediately above and elsewhere in this opinion, there is no evidence that the murder of Rosemarie was dispassionate. The only evidence before the Board was that Mills committed the crime in a rage. There is no other evidence that would suggest the crime took place under other circumstances, e.g., a premeditated and deliberate murder that was not precipitated by Rosemaries disclosure of infidelity. (See Scott II, supra, 133 Cal.App.4th at pp. 600-601 [making the same observation in addressing the record of that case].)
The Acting San Jose Chief of Police, relying on investigative accounts of Millss crime, wrote the Board that Mills was "very unemotional" in its aftermath. The 1990 psychological testing report stated that "[a]ccording to the police report, when [Mills] was taken into custody, he appeared calm and said nothing. Later, at the police station, [he] stated that he strangled his wife in the heat of passion and in a state of diminished capacity." This evidence does not belie defendants version of events, i.e., that he killed Rosemarie in a rage. It is evidence only that Mills was in a controlled state some time after the murder. (See Elkins, supra, 144 Cal.App.4th at p. 498.)
3. Inexplicable or Very Trivial Motive
The Board found that the "motive for the crime was inexplicable and very trivial in relationship to the offense." But there was no evidence in the record that the murder of Rosemarie was inexplicable or done for a trivial reason. There was a ready explanation and a nontrivial reason for his act, namely that Rosemaries spending nights with another man represented a significant betrayal.
B. Prior Abuse of Rosemarie
The Board found that there was "somewhat of a systematic abuse of the young woman." The abuse of Rosemarie was "relevant . . . information" about "the prisoners social history" (Regs., § 2402, subd. (b)) and possibly of violence within the meaning of section 2402, subdivision (c)(2), of the regulations. However, such abuse, though deplorable and quite possibly criminal, does not constitute an element of murder (§ 187) or an aggravating or special circumstance that would elevate Millss crime above the level of second degree murder (see §§ 189, 190.2, 190.3) and thus is not a circumstance of the commitment offense.
C. Others Opposition to Millss Release
The Board relied on "opposition to a finding of suitability," including that of authorities and Rosemaries next of kin. We have noted that various people and agencies were opposed, sometimes vehemently so, to granting parole to Mills. But such opposition "cannot add weight where there is no evidence of unsuitability to place in the balance." (In re Weider, supra, 145 Cal.App.4th at p. 590.) Such is the case here.
D. Current Psychological State
The Board found that Mills "still needs some self-help and therapy in order to face, discuss, understand, and cope with stress in a non-destructive manner, so that [he] can better understand the causative factors" leading to his murder of Rosemarie. There is a complete dearth of evidence to support that finding, let alone a nexus between any such finding and the ultimate question of current dangerousness to the public. As we have noted, the most recent correctional counselors life prisoner evaluation report, dated 2003, stated: "Considering the commitment offense[,] prior record[,] and prison adjustment, this writer believes the prisoner would probably pose a low degree of threat to the public if released from prison at this time." The psychological evaluation dated January 8, 2001, concluded that if Mills is "released to the community, his violence potential is estimated to be no higher than the average citizen in the community." Moreover, the record does not explain what additional measures Mills could take, beyond continued introspection, to satisfy the Boards requirement.
IV. Proceedings on Remand
We conclude that the case must be remanded to the Board for a new hearing consistent with our opinion. The superior courts order, which also ordered the Board to conduct a new hearing, limited the scope of the new hearing, specifying that "[w]hile the Board may receive new evidence," "the Board may not repeat any finding herein found invalid" "unless there actually is new evidence." We see no need to tailor the Boards method of receipt of evidence and subsequent deliberation in an order as precisely as did the superior court. We will remand this case to the superior court with instructions to direct the Board to conduct a new parole hearing in accordance with due process.
DISPOSITION
The case is remanded to the superior court with directions to modify its order granting the prisoners petition for writ of habeas corpus and remanding the matter to the Board of Parole Hearings for a new hearing. The order shall be modified to direct the Board of Parole Hearings to hold a new parole hearing in accordance with due process; to consider all relevant, reliable information available to the Board as required by California Code of Regulations, title 15, section 2402, subdivision (b); to afford individualized consideration of all parole suitability and unsuitability factors (see ibid. & id., subds. (c), (d)); and, if parole is denied, to articulate reasons for finding the prisoner unsuitable for parole. The hearing shall be held by July 28, 2008. As modified, the order is affirmed.
WE CONCUR:
Mihara, Acting P. J.
McAdams, J.