Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. BH005824 Peter Espinoza, Judge.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Julie A. Malone and Kim Aarons, Deputy Attorneys General, for Appellant.
James M. Crawford for Petitioner.
TURNER, P. J.
I. INTRODUCTION
Ken Clark, Warden of the Substance Abuse Treatment Facility at Corcoran, appeals from the trial court’s October 20, 2009 order granting the habeas corpus petition of the inmate, Thomas Owen. The trial court’s order vacated the September 18, 2008 determination by the Board of Parole Hearings (the board) denying parole to the inmate. The basis of the board’s denial was: the particularly heinous and cruel nature of the crime which was carried out in a manner which demonstrated callous disregard for human suffering; the inmate’s history as a drug dealer and extensive history of alcohol and drug use; the absence of evidence of insight; and a non-credible psychological evaluation. We reverse the trial court’s order and reinstate the board’s parole decision.
II. EVIDENCE BEFORE THE BOARD
At the hearing, the board began by reciting the facts concerning the commitment offense in our opinion on direct appeal and the 2007 board report. Our published opinion described testimony concerning contacts at two bars and a home near the residence of the decedent, Lise Singrin, and the inmate and the codefendant, Arthur Jacobs, prior to the killing. (People v. Jacobs (1987) 195 Cal.App.3d 1636, 1645.) Our published opinion stated: “On May 15, 1983, Mrs. Jean Singrin and her 20-year-old daughter, Lise, spent the evening together. Following dinner at a local restaurant, they returned to their home in Long Beach. Mrs. Singrin retired to her bedroom, while Lise remained in the den. As Mrs. Singrin began to fall asleep, she heard her daughter yelling in an angry, indignant and strident voice, ‘Get away from me. Get away from me. Leave me alone. Don’t touch me. Get away from me. Get away from me. Leave me alone.’ Mrs. Singrin rushed from her bed to aid Lise. As she ran past Lise’s bedroom door, she was grabbed by a man, who pulled her close to his body. She did not get a good look at the man, but did observe that he had dark hair and a beard, a light face, dark eyes, and was about six feet tall. The man said, ‘Don’t yell. Don’t scream. We aren’t going to hurt her. Don’t yell. Don’t scream.” (Id. at pp. 1642-1643.)
Our opinion continued: “At the felony preliminary hearing, and again at the trial, Mrs. Singrin identified Jacobs as the man who had grabbed her. Her identification was based on his build, the feel of the man, and, most of all, his voice. She said that his voice was ‘etched’ in her memory, and that she would never forget it. [¶] Mrs. Singrin is a teacher of mentally retarded children in the Long Beach public schools. Voice and speaking characteristics are very important to her in her work, and she is conscious of voice at all times. Part of her assignment in the public schools is to teach the retarded children in her charge to speak better. Language development and speech patterns have been the primary emphasis of her teaching for 12 years. She was able to describe, compare and distinguish speech patterns of various persons in the courtroom, including the prosecutor, defense counsel and the judge. [¶] Mrs. Singrin’s identification of Jacobs also was aided by a demonstration conducted at the preliminary hearing and repeated at the trial. In this demonstration, Jacobs approached Mrs. Singrin in the manner that she described, and spoke to her. Following this, Mrs. Singrin confirmed her conclusion that Jacobs was her assailant; his voice and tone were the same as the man who had grabbed her.” (People v. Jacobs, supra, 195 Cal.App.3d at pp. 1642-1643.)
Our opinion described her identification of the inmate and what happened as follows: “Mrs. Singrin broke away from her assailant and ran towards the den. When she arrived, she found Lise screaming as another man was beating her with a shotgun. Mrs. Singrin later positively identified this man as Owen. She said that she was ‘one hundred percent’ certain of her identification, and that she will never forget the face of the man who was assaulting her daughter. She saw him from the front, and from both sides. [¶] In an effort to ward off the blows to her daughter, Mrs. Singrin spread her body over Lise. She was struck at least eight or ten times. She next remembers being on the floor, flailing her legs and feet in an effort to keep Owen’s gun away from her. At that point, she heard Jacobs say in a calm voice, ‘lets get out of here, ’ and both men then left the home. Mrs. Singrin stood up and saw blood beginning to pool on the floor. She then again lapsed into unconsciousness. Her next recollection is that of looking at a clock on a microwave oven; it showed 9:01. Several policemen were in the home. She later learned that her daughter was dead. [¶] Mrs. Singrin was bruised on her arms and shoulders. She also suffered a laceration in one of her ears, which required sutures. [¶] Mrs. Singrin identified Owen’s photograph from a group of 12 in a photographic lineup about a year and a half later. The picture ‘leaped out’ at her. She had carried Owen’s image in her mind and had looked for him everywhere she went.” (People v. Jacobs, supra, 195 Cal.App.3d at pp. 1643-1644.)
Further, our opinion described other testimony: “While only Mrs. Singrin, her daughter and the two assailants were in the Singrin home at the time of the attack, there were other percipient witnesses to the events. A neighbor of the Singrins, James Cook, lived across the street. He had been an officer of the Long Beach Police Department for 21 years. On this particular evening, his daughter and son-in-law, Randy Debois, were visiting. Just before 9 p.m., Mr. Debois heard screaming; the screaming lasted for several minutes. Mr. Debois could not identify the source of the screams. He then heard a loud, explosive noise, followed by silence. He alerted Mr. Cook, who looked toward the Singrin residence and saw two males walk from the house and around the corner. Mr. Cook and Mr. Debois then ran towards the intersection. Mr. Cook asked for Debois to keep the two men in sight by car. [¶] As Mr. Debois followed the two men in his car, he saw them break out of a run and come toward him. His headlights shone fully on the man closest to him; he had dark hair and a long, full beard. Mr. Debois drove past the men, turned around, and drove past them again. He then turned the corner and parked with the lights off. He saw a man run down an alley. [¶] Mr. Debois cooperated with a police sketch artist, who prepared a composite of the man Mr. Debois had seen in his headlights. Some time later, after Mr. Debois had returned to his home state of Washington, he picked out Jacobs’s picture from a photographic lineup. At trial, however, he was unable to positively identify Jacobs. By that time, Jacobs had changed his hairstyle and no longer wore a beard. [¶] While Mr. Debois was following the two men, Mr. Cook went over to the Singrin residence. Entering, he found Mrs. Singrin dazed and asking for Long Beach police on the telephone. It was obvious from the massive injuries to Lise Singrin’s head, that she was dead. (People v. Jacobs, supra, 195 Cal.App.3d at pp. 1642-1644.)
Other testimony described the Long Beach Police investigation: “Long Beach police arrived about one minute later. Officer Thornfield testified that, based on shotgun remnants found at the scene, Lise had been struck by two shotgun shells. A homicide investigator concluded that she had been killed by a shotgun-inflicted injury; the den wall was covered with blood, hair and tissue. Later, after an autopsy, a deputy coroner testified that the massive damage to Lise’s head had been caused by two shots; he concluded that a double-barreled shotgun had been used.” (People v. Jacobs, supra, 195 Cal.App.3d at pp. 1642-1644.)
While in county jail awaiting trial, the inmate made several inculpatory statements to two cellmates. The inmate stated he would present a false alibi defense and falsely claim he was working on an offshore oil drilling platform at the time of the killing. The inmate admitted to the fellow county jail prisoner it was actually very easy to get ashore from the oil platform and return. Our opinion described the inmate’s in custody admissions: “Owen said that on the night of the killing, ‘the other guy’ had picked him up and that they had gone to ‘that girl’s home’ because his friend wanted to talk with her. He had taken a shotgun in order to scare the girl, but a fracas had erupted when the girl became hysterical. Her mother came running into the room. The shotgun discharged, killing the girl. Owen and his friend ran from the residence; they were followed and ‘hollered at’ as they did so. Owen was taken back to work by ‘the other guy.’” (People v. Jacobs, supra, 195 Cal.App.3d at p. 1646.) The inmate admitted to another prisoner prior to trial that the visit to the “girl” was drug-related. The inmate admitted bringing a shotgun to the meeting and that it had discharged off accidentally. Our opinion related: “[T]he gun went off when the girl’s mother broke loose from the other person and went after Owen. Owen[] also stated that ‘the other guy’ had been seen by a man as they were leaving the girl’s residence.” (Ibid.) Our opinion described the evidence as overwhelming. (Id. at p. 1655.) The inmate was convicted of second degree murder and deadly weapon assault and found to have used a firearm. (Pen. Code, §§ 187, 245, subd. (a)(2), 12022.5.)
The probation report states: “At about 8:45 p.m., victim Jean [Singrin] was awakened from sleep by the voice of her daughter screaming, ‘Leave me alone, you get away from me.’ Jean [Singrin]got up and ran down the hall. Momentarily, she was stopped there by codefendant Jacobs but she broke from his grasp and entered the den. There she saw the defendant hitting her daughter on the face with a.12 gauge shotgun. Jean [Singrin]tried to get between Owen and her daughter Lise [Singrin]. Jean [Singrin] was pushed by the defendant. She was kicking at him when defendant fired his weapon blowing off the top of Lise [Singrin’s] head. Lis[e]’s hair, scalp, bone, and brain matter was scattered about the room.... [¶] Jean [Singrin] had a cut on her right ear lobe which required five stitches. There was puncture would on her right forearm and her right hand. She was bruised from her wrist to her shoulder and had powder marks on her arm. Additionally she had a bruise on the palm of her left hand and scratches and scrapes.” The inmate was arrested on November 30, 1984. A 2009 parole report listed as aggravating factors the inmate’s role as a leader in the killing and there were two victims. The parole report identified no mitigating circumstances.
The inmate refused to discuss the circumstances of the homicide, aggravated assault and firearm use at the parole hearing. But the current psychologist’s report states: “He now maintains his innocence and feels he is in somewhat of a difficult position of not being able to say he did not do the crime after being found guilty. [¶] The inmate is able to express remorse and empathy towards the family. He has continually stated.. he knows the mother of the victim wants closure to make sense of it all; he states, ‘I know I would.’”
At the hearing, the inmate stated that his early life “was wiped” out due to alcohol and drug abuse. He began using alcohol when he was 12 years old. He began smoking marijuana at age 15. Eventually, the inmate tried almost all types of narcotics. When asked about drug trafficking, the inmate said: “I sold to people that I knew to help pay for -- you know, you get a -- the more you buy, the better price break you get, so I would buy more, sell to people I know so that I could get a better deal on what I was using. When asked how much narcotics he sold in a week, the inmate testified: “A week? I don’t know, maybe -- the dealing I did, sometimes I would like buy a little marijuana and then sell a little bit of marijuana, so it wasn’t really very much, but the coke I was dealing, I’d say – I don’t know, maybe a thousand dollars a week.” He sold narcotics while working for an oil company. The inmate blamed his poor high school attendance on his drug use and lifestyle.
The inmate’s brother was also involved in alcohol and drug abuse. The inmate told the board: he began attending Alcoholics Anonymous in 1983 and became sober; he began “hanging around” exclusively with Alcoholics Anonymous members; and had Alcoholics Anonymous meetings in his house. The inmate described his leadership in Alcoholics Anonymous prior to his arrest: “We ended up renting a five-bedroom house and letting about nine people move in, and they were all from AA. We used to have meetings at my house. We had AA birthdays at my house. I mean I was just totally involved in the program and stayed sober. I was sober for... almost two years before I came to prison.” The inmate explained that participation in Alcoholics Anonymous is an “ongoing process” and did not believe the lessons stop at any point. After participating in Alcoholics Anonymous, the inmate stopped traveling in his old social circles.
At first, the inmate denied he had ever been on probation or parole. But the inmate, when asked about his juvenile record, testified: “I think -- I don’t know -- I think I was on probation when I was a juvenile. It was just -- I don’t remember what it was for. I know I got arrested with some friends and we, you know, we got in trouble and they put us on probation and I don’t -- I think it lasted like six months.” The inmate denied knowing why he was placed on probation.
While incarcerated, the inmate completed training in four areas: the silk screen program; the vocational janitorial program; office services; and vocational electronics. He had been involved for 10 years in Narcotics and Alcoholics Anonymous programs and was a volunteer tutor in an arts program. He had participated in the Life Skills Program which provided training for: anger management; forgiveness; parenting; “Breaking Barriers”; and “Criminal and Addictive Thinking.” The inmate had earned an associate of arts degree in general studies from Coastline College and his grade point average was 3.75. The inmate had three CDC Form 115 violations: May 27, 2003, participation in a work stoppage; December 30, 1986, unauthorized telephone use; and October 24, 1986, conduct that could lead to violence. In terms of the May 27, 2003 work stoppage, the inmate denied he participated in a work stoppage; rather there was “an unresolved situation on the yard” which prevented him from reporting to work. The inmate characterized his failure to report to work, “I’m a worker -- but that was just one of those situations.” If paroled, he expected: to live in San Diego with his wife, to be employed by “J&B Construction Supplies”; but not to continue with his education. The inmate had received between 17 and 27 letters of support, many of them from relatives. A 2009 life prisoner evaluation indicated the inmate would benefit from: computer training; “[u]pgrading academically/vocationally”; and participation in “self help/therapy programs.” The Long Beach Police Department opposed paroling the inmate noting this court’s conclusion the evidence of guilt was overwhelming notwithstanding his denials of culpability.
The psychological evaluation prepared by Dr. Robert E. Record, Ph.d, indicated the inmate’s polysubstance abuse disorder was in remission. Further, Dr. Record did not believe the inmate had a personality disorder. Moreover, Dr. Record believed the inmate expressed remorse for and empathy towards Ms. Singrin’s family. Dr. Record concluded the inmate presented a very low risk for future violence. On the other hand, Dr. Record concluded: “Mr. Owen does have increased factors of risk of violence to the community. The inmate has an alcohol and drug problem in the past. Should he utilize alcohol or drugs it would increase his risk of violence. [¶]... At this time there is significant evidence that the inmate has the skills and insight necessary for decreasing his risk of violence.”
The murder victim’s sister addressed the board: “My name is Jean Singrin Cross. I am one of Lisa’s surviving sisters. It was my mother who was in the room with Tom Owen when he killed my sister who was inches away from his face. From the moment when we first saw her in the hospital there was no doubt of the face, of the voice, of the smell, of the breathing of the man who beat her and murdered my sister. Never a doubt. To hear the homicide detectives describe what my mom - - how my mom behaved when she saw Owen’s picture in the suspect photo, she was uncontrollable, she was shaking, she had uncontrollable diarrhea, she had no doubt, no doubt again, that [it] was Tom Owen who murdered Lisa, who came into her house and was beating Lisa on the couch and awakened my mom. So my mom died August 9th and one of the last requests to us as family members was ‘Be my eyes and be our voice, ’ meaning Lisa and Mom, and I think the hardest thing for us honestly is that my mom survived his attack, to have seen Lisa’s head blown off, and for us to as a family to go back into that house day after day, year after year, and act as though we can continue moving forward. That was 25 years ago. We still remember the phone call, get over here, something terrible has happened, and walking into that house, Susan spending time in the hospital with my mom immediately, my crawling up along the side of the window and seeing Lisa on the floor, with strangers with her head. We cleaned up the house. So the impact of that shotgun, two pumps, deer slug, on Lisa’s head is the same effect it had on us as a family.”
Ms. Cross continued: “You limp along, you try to be together. We try forgiveness. We try in our hearts to forgive, and because my mom has always been so clear that this was the man who murdered Lisa, all she ever asked of him when she was alive is, ‘Please tell me why you were in my home at nine o’clock on Sunday evening.’ So it is easer for us now because we can say things that - - because my mom isn’t here to listen to the details, and it’s easier for us to say don’t let this man out. He is known his entire life to have a hairpin trigger temper. In a controlled situation he can behave, and that’s where he needs to stay. Don’t subject another family to what we’ve been through. There are three surviving sisters, two surviving brothers, eight nieces and nephews who never saw Lisa. Lisa was murdered when she was 19 years old. So I would beg you on behalf of our family, on behalf of future victims, I have no doubt that this man, if pushed, would be violent again. No doubt. So - - and thank you for considering our voice and my mom’s voice through us.”
III. THE BOARD’S DECISION
The board concluded that Mr. Owen, if paroled, would pose an unreasonable risk of danger to society or a threat to public safety. The board explained: “The finding of unsuitability is based on weighing considerations provided in Title 15, including the first consideration is the commitment offense. This was a particularly heinous and cruel crime in that multiple victims were attacked. The mother of the deceased, Lisa [Singrin], was injured by being hit with the stock end of a shotgun. She was knocked unconscious after sustaining numerous injuries, and her daughter was shot twice with the shotgun in the head and was instantly killed, and the impact of this is felt to this day. The offense was carried out in a manner which demonstrates a callous disregard for human suffering in that not only multiple victims but the beating of this mother of this girl was extremely callous. She clearly was trying to protect her daughter and keep something happening from - - to her when she herself became a victim through only trying to protect her daughter.” The board further noted Mr. Owen’s extensive history of alcohol and drug use and drug dealing. In addition, Mr. Owen denied knowing Ms. Singrin, but several witnesses saw him drinking in a bar with her. The board further noted: “It’s impossible to explore a person’s insight and remorse when the crime is - - involvement in the crime is denied, and that’s what concerned us about Dr. Record’s report. This psychological report dated August 4th, ’08 is inclusive [sic] in that it fails to examine your violence, if this offense was committed by you. If this murder - - if you committed this murder and you are culpable for this murder, then his conclusion may have been quite different because therein he could say you lack remorse and insight and without it your violence risk may be elevated, but it appears that he took the other tact, which he believed that - - it’s based on him believing, it seems to us, that you didn’t commit the offense and therefore you can’t have - - it’s hard to have insight and remorse and therefore you have a low risk. So it’s sort of, you know, like [Deputy Commissioner] Weaver explained to me, it’s more like a fork in the road, you know, you take one or the other path, and that’s a concern of ours. So we decided it’s inconclusive to use. We - - he doesn’t advocate parole, just indicates there’s a low risk.”
IV. THE TRIAL COURT’S ORDER
On October 20, 2008, the inmate’s habeas corpus petition was granted. The trial court began by reciting the facts giving rise to the second degree murder and aggravated assault convictions and the firearm use finding. The trial court further noted the inmate had received three disciplinary actions, noting incorrectly that the last was committed in 1994 rather than 2003, for a “prison wide” work strike. The trial court ruled: “At [the inmate’s] 2008 parole suitability hearing, he presented a supportive psychiatric evaluation which found that [the inmate] was: 1) in the very low range of psychopathy meaning that he is not particularly selfish, callous or lacking in remorse or empathy; 2) at a very low risk for recidivism; and 3) at a very low risk for future violence. The report also indicated that while [the inmate] maintained his innocence, he was able to express remorse and empathy towards the family. [The inmate] explained that he knows that the victim’s mother wants closure to make sense of the crime and added that he ‘know[s] [he] would.’” The trial court noted the inmate also presented residency and employment plans at the board hearing.
The order continued: “The Court finds some evidence that the commitment offense is especially heinous, atrocious or cruel because multiple victims were attacked. Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(A). However, the crime occurred over twenty-five years ago. For inmates who have served their base term, as in this case, immutable factors, such as the commitment offense ‘will rarely constitute a valid basis for a denial or reversal of parole’ absent other evidence of current dangerousness. [In re] Lawrence[ (2008)] 44 Cal.4th [1181, ] 1211. Therefore, although the Board’s findings regarding the facts of the offense are supported by evidence in the record, absent a rational nexus between those facts and current dangerousness, those findings do not provide some evidence of [the inmate’s] current unsuitability. Id. at 1227. [¶] The Court also finds with the Board that [the inmate] did use drug prior to the commitment offense, however, the record also indicates that [Mr. Owen] has been substance free for his entire incarceration period. An inmate’s prior addiction is not an appropriate consideration in determining parole suitability, even where drugs are involved in the life crime. In re Smith (2003) 109 Cal.App.4th 489, 505. The Court finds that [the inmate’s] previous substance use from over twenty years ago does not indicate that he is an unreasonable risk of danger today. [¶] The Board also found that [sic] had insufficient insight into the commitment offense. An inmate’s lack of remorse or insight into the nature and magnitude of his offense may be some evidence that she currently poses an unreasonable risk of danger to society. In re Shaputis (2008) 44 Cal.4th 1241, 1260. Here, the Board stated that because [the inmate] refused to admit guilt, ‘it could not find that he had gained insight or remorse for his offense.’ The Board tried to specify that they were not denying [the inmate] parole based on his failure [to] admit guilt, but rather on his failure to ‘address the circumstances of the commitment offense.’ The Court finds in this case that the distinction cited by the Board is non-existent because the Board explained to [Mr. Owen] that he was to state why he committed the crime and how it made him feel. By requiring such admissions as conditions for granting parole, the Board is in essential requiring [Mr. Owen] to admit guilt, which is an improper consideration for parole suitability. [¶] Additionally, the record indicates that [the inmate] has gained sufficient insight and remorse into the crime, despite maintaining that he was not involved. [The inmate’s] psychological report found that because he knew Victim’s mother prior to the crime, he fully understood and emphasized [sic] with her feeling and her need to have closure in this matter. Such signs of remorse are supportive of parole. Cal. Code Regs., tit. 15, § 2402, subd. (d)(3). [¶] The Court also finds other evidence on the record that is supportive of release. [The inmate] has participated in extensive self-help therapy programs and serves as a church Chaplin [sic] in the prison. [The inmate] has enhanced his ability to function within the law upon release by earning an associate degree from Coastline Collage [sic] with a grade point average of 3.75 and becoming vocationally certified in silk screening and janitorial services. Cal. Code Regs., tit. 15, § 2402, subd. (d)(9). [The inmate] also presented viable parole plans with his wife in San Diego and has strong family support in the community. Cal. Code Regs., tit. 15, § 2402, subd. (d)(8). Overall, while there is evidence on the record of the reasons the Board cited for denying parole, the Court finds that the Board did not articulate how these reasons show that [Mr. Owen] currently remains an unreasonable danger to society. See [In re] Lawrence, supra[, 44 Cal.4th 1181].”
V. DISCUSSION
Penal Code section 3041, subdivision (a) states that one year prior to the inmate’s minimum eligible parole release date the board “shall normally” set a parole release date. Our Supreme Court has explained: “‘Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ ([In re] Rosenkrantz[ (2002)] 29 Cal.4th [616, ] 654, italics added.)” (In re Shaputis, supra, 44 Cal.4th at p. 1258.) California Code of Regulations title 15, section 2402, lists the factors to be considered by the board in determining whether the inmate poses “an unreasonable risk of danger to society” if released from custody. In the case of In re Shaputis, supra, 44 Cal.4th at page 1254, our Supreme Court held: “In the companion case of Lawrence, filed concurrently with this opinion, we conclude that, because of the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety, and because the inmate’s due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor. (Lawrence, supra, 44 Cal.4th at p. 1191.)” (In re Prather (Jul. 29, 2010, S172903) __ Cal.4th __, __.)
California Code of Regulations, title 15, section 2402, subdivision (b) lists the information to be considered as follows: “Information Considered. 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.” Factors indicating unsuitability are set forth in California Code of Regulations, Title 15, section 2402, subdivision (c): “Circumstances tending to show unsuitability include: [¶] (1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner.... [¶]... [¶] (2) Previous Record of Violence.... [¶] (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.” On the other hand, suitability factors include: “(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims. [¶] (2) Stable Social History. The prisoner has experienced reasonably stable relationships with others. [¶] (3) Signs of Remorse.... [¶] (4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time. [¶] (5) Battered Woman Syndrome.... [¶] (6) Lack of Criminal History. The prisoner lacks any significant history of violent crime. [¶] (7) Age. The prisoner’s present age reduces the probability of recidivism. [¶] (8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release. [¶] (9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.”
Our Supreme Court further explained: “‘[T]he Board... 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....’ [Citation.]” (In re Shaputis, supra, 44 Cal.4th at p. 1255, quoting In re Lawrence, supra, 44 Cal.4th at p. 1221.)
A lack of insight, when coupled with an especially heinous, atrocious, or cruel homicide can support a board decision to deny a parole request. A lack of insight and failure to accept full responsibility for a killing, coupled with other circumstances, has been held by our Supreme Court to be probative of an inmate’s current dangerousness. (In re Shaputis, supra, 44 Cal.4th at p. 1261, fn. 20 [“In the present case, the Governor’s decision is supported by some evidence—not merely because the crime was particularly egregious, but because petitioner’s failure to take full responsibility for past violence, and his lack of insight into his behavior, establish that the circumstances of petitioner’s crime and violent background continue to be probative to the issue of his current dangerousness”]; In re Lawrence, supra, 44 Cal.4th at p. 1228 [“In some cases, such as those in which the inmate... has shown a lack of insight... the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerous even decades after commission of the offense. [¶]... [W]here the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration”].)
We now evaluate the board’s decision. First, we agree with the trial court that some evidence supports the board’s finding the murder was especially heinous, atrocious or cruel. There was some evidence: two unarmed victims were attacked and one killed; the killing was drug related and arose from the inmate’s role as a narcotics trafficker; the killing of the Ms. Singrin resulted in her blood, hair and brain tissue being spread all over the den wall; and she was shot twice with a double barreled shotgun. (People v. Jacobs, supra, 195 Cal.App.3d at pp. 1642-1644, 1646.) This constituted some evidence to support the board’s especially heinous, atrocious, or cruel, finding. (Cal. Code of Regs., title 15, § 2402, subd. (b); In re Shaputis, supra, 44 Cal.4th at pp. 1259-1260; In re Dannenberg (2005) 34 Cal.4th 1061, 1095; In re Rosenkrantz, supra, 29 Cal.4th at p. 678.)
Second, we agree with the Attorney General that there is some evidence the inmate lacks insight into the events leading up to and occurring on May 15, 1983. At the outset, we address the issue of whether the board relied on the inmate’s claimed refusal to address the circumstances of offense. Penal Code section 5011, subdivision (b) states in part: “The Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed.” In a similar vein, California Code of Regulations, title 15, section 2236 states: “The facts of the crime shall be discussed with the prisoner to assist in determining the extent of personal culpability. The board shall not require an admission of guilt to any crime for which the prisoner was committed. A prisoner 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.”
We respectfully disagree with the trial court’s characterization of the board’s decision as being one which relied on the inmate’s alleged refusal to discuss the offense or refusal to admit guilt. A deputy commissioner explained there were disparities between the inmate’s version of the events leading up to the killing and the aggravated assault. Deputy Commissioner John Weaver stated: ‘“Now I respect your position and what [the inmate’s counsel] has indicated is your choice today to not talk about the crime and so I’m not anticipating that you will. However, the Probation Officer’s Report originally indicates things that are somewhat contrary to what you told the doctor in terms of having any prior knowledge or association whatsoever, and I’d just thought I’d put that on record because apparently that is a point of contention that you have with regard to the historical factors. So we can leave we can leave it at that or if you want to talk to your attorney. I’m not urging you to talk about the crime if you don’t care to but there appears to be a slight disparity in what was originally reported and what you have told the doctor. The doctor goes on to say: [¶] ‘He now maintains his innocence, feels that he is in somewhat that he is in somewhat of a difficult position of not being able to say he did not do the crime after being found guilty. The inmate is able to express remorse and empathy toward the family and he has continually stated in the records that he knows that the mother of the victim wants closure to make sense of it all. He states, “I know I would.” So there’s a slight disparity there, and you may want to talk to that at some point in time in the future with regard to step eight [of the Alcoholic’s Anonymous 12 step program] and then the doctor indicating you’re able to express remorse and empathy toward the family.” Later in articulating the board decision, the presiding commissioner said, “We’re noting it but not giving it any weight, the fact that you maintain your innocence in spite of the jury trial and the appellate decision and they indicate there’s overwhelming evidence to support the conviction. We just note it for the record.” The two times the issue of the inmate’s claim he was innocent were mentioned, the board did so in a manner reflecting respect for his right to maintain his innocence. In fact, the presiding commissioner expressly stated the inmate’s claims of innocence were given no weight in refusing to set a parole date. When we view the record deferentially, we conclude the board did not require an admission of guilt concerning the murder and aggravated assault nor was his refusal to discuss the facts held against him. (Cal. Code Regs., tit. 15, § 2236; Pen. Code, § 5011, subd. (b).) Given our resolution of this issue, we need not address the question of whether Penal Code section 5011 applies only to the setting of a parole date after the decision to parole has been made.
Nonetheless, there is some evidence to support the board’s lack of insight finding. The inmate expressed remorse to the psychologist. Remorse is defined as follows: “Moral anguish arising from repentance for past misdeeds; bitter regret.” (American Heritage Dictionary (2d College ed. 1976) p. 1046.) Yet, the inmate denied participating in the killing, aggravated assault and firearm use. The board could reasonably find that the inmate in fact has no remorse for the killing, aggravated assault and firearm use he claims he never committed. This is different from the scenario identified in California Code of Regulations, title 15, section 2236 and Penal Code section 5011, subdivision (b). Here the board’s focus was on the absence of insight as illustrated by the inmate speaking out of both sides of his mouth—claiming moral anguish from his misdeed while at the same time claiming he never committed the killing, aggravated assault and firearm use. This analysis in entirely consistent with the inmate’s claim he had been sober for well over a year prior to the killing, aggravated assault and firearm use and stopped selling narcotics. The probation report explicitly states that the victim had purchased narcotics from the inmate and Mr. Jacobs at their homes. Our opinion notes there was evidence the killing arose from the inmate’s actions as a drug trafficker. And the inmate denied ever seeing Ms. Singrin. (People v. Jacobs, supra, 195 Cal.App.3d at p. 1646.) According to the police, the inmate was a drug trafficker. The board could reasonably deduce the inmate made false statements under oath as to his role as a drug trafficker in the year after the homicide and its role in his relationship with the victim demonstrates a lack of insight as to the criminal conduct which resulted in the commission of the killing, aggravated assault and firearm use.
Even if the board relied on the inmate’s protestations of innocence, there is no reason the board would have granted parole given his continued deceit concerning drug trafficking and its role as a causative factor in the killing, aggravated assault and firearm use. As noted, there is evidence: the killing, aggravated assault and firearm use arose from the inmate’s drug trafficking; the inmate misrepresented his familiarity with the victim and possibly his sobriety after the killing; and those misrepresentations were made to Dr. Record and the board. Without acknowledging the truth of defendant’s sobriety claims, Commissioner Gillingham noted: “Interesting to me is that when you were arrested approximately a year and half after this murder you indicated you’d been sober a year. I interpret that to mean that you may have decided you were in deep trouble and decided that the drug use and that was not for you anymore. I don’t know, but that’s my take.” The inmate’s false statements concerning his drug trafficking after the killing made to Dr. Record and under oath to the board can support an absence of insight finding particularly in their context of a homicide which is drug related. Thus, there is some evidence to support the board’s current dangerousness finding.
Further, some evidence supports the board’s analysis concerning Dr. Record’s report. Dr. Record’s insight conclusions were premised on the inmate’s alleged remorse and sobriety after the killing. But the board was entitled to view the inmate’s remorse statement; i.e. he purportedly possessed moral anguish and bitter regret arising from his repentance for past misdeeds; as dissembling which is evidence of lack of insight.
VI. DISPOSITION
The order granting the habeas corpus petition is reversed. Upon remittitur issuance, a new order is to be entered denying the habeas corpus petition.
We concur: KRIEGLER, J. KUMAR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.