Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. CR127285
NARES, Acting P. J.
Petition for writ of habeas corpus following the Governor's reversal of a grant of parole. Relief granted.
In this September 1991 drive-by shooting case in which petitioner Victor Solis was the driver and not the shooter, a jury in 1992 convicted him of second degree murder (Pen. Code, § 187, subd. (a)), based on his participation as an aider and abettor, and found true an allegation that he committed that offense while armed with a handgun (Pen. Code, § 12022, subd. (a)(1)). The trial court sentenced him to a prison term of 16 years to life.
Solis, now 37 years old, has remained in custody for almost 19 years and for the last 13 years has been an exemplary prison inmate. He became eligible for parole in 2002. At a hearing in August 2008, the Board of Parole Hearings (the Board) found Solis suitable for parole. However, in a written decision issued on January 9, 2009, the Governor reversed the Board's 2008 decision, finding Solis "would pose an unreasonable risk of danger to society if released from prison at this time."
Solis petitioned this court for a writ of habeas corpus (In re Victor Solis, D055403) challenging the Governor's reversal of the Board's 2008 parole suitability decision. By order dated August 28, 2009, this court denied the petition "without prejudice to refiling the petition with a full record that was before the Governor when he reached his decision."
On November 20, 2009, Solis refiled in this court his writ of habeas corpus petition with an expanded record. Solis contends the Governor's decision reversing the Board's 2008 decision violates his federal right to due process because the Governor's reversal, which is based (among other things) on the gravity of the life offense and the Governor's concern that Solis "lacks full insight into his role in the murder, " is not supported by any evidence.
As we shall discuss, post, the record does not, as the People contend, contain "some evidence" to support the Governor's findings that Solis currently poses an unreasonable risk to public safety and thus is unsuitable for parole. Accordingly, we grant Solis habeas relief under the California Supreme Court's recent decisions in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis).
FACTUAL AND PROCEDURAL BACKGROUND
A. The Commitment Offense (Second Degree Murder)
The following pertinent facts of Solis's commitment offense are quoted from the published opinion of the United States Court of Appeals for the Ninth Circuit in Solis v. Garcia (2000) 219 F.3d 922, 924-925.
"On September 2[7], 1991, around 7:30 pm, petitioner Victor Solis drove his cousin, Jesus Lobato, to the Linda Vista Boys and Girls Club ('Boys Club') in San Diego, where they planned to pick up Rosalina Ramos and go cruising. When they arrived, three teenage males, Patrick Tiherina, Starr McCullough and Kenneth O'Brien (the 'Linda Vista boys') recognized Solis and Lobato, who were not from Linda Vista, and challenged them to fight. Solis left without getting out of his car, but vowed to return.
"Solis then drove to Mission Beach where he picked up his friend, Christopher Moffat. A witness saw Moffat stick a hand gun in his belt before getting into Solis' car. They returned to the Boys Club around 8:00 pm, looking for their adversaries, and spotted them walking up the street. When Solis drove by them, the two groups shouted challenges at each other. Solis left and returned about fifteen minutes later. As Solis drove past the Linda Vista boys, Moffat leaned out of the passenger's window and swung a baseball bat at them. The Linda Vista boys retaliated by throwing bottles at Solis' car.
"About twenty-five minutes later, Solis, Moffat and Lobato drove by Tiherina, McCullough and O'Brien a third time. Unlike his first two passes, this time Solis darkened his headlights as he approached. As Solis drove up, Moffat pointed a handgun out of the passenger window and fired once, when he was about twenty-five feet from the Linda Vista boys. As their car slowly passed directly in front of the Linda Vista boys, Moffat fired twice more. Then Solis sped up and drove off. One of the bullets struck Kenneth O'Brien in the chest, killing him.
"The State charged Solis with murder. The prosecutor argued either that Solis, Moffat, and Lobato were joint perpetrators of an intentional killing, or that Solis aided and abetted a planned crime which foreseeably resulted in a homicide. Solis pleaded not guilty. He testified at trial that he returned to Linda Vista to look for his friend, Rosalina Ramos. He claimed he did not know that Moffat had a gun until just before he drove to the final confrontation, and even then he believed that Moffat would only shoot the gun in the air. He further testified that when he heard shots he thought someone was shooting at his car, and that he did not know Moffat had fired until after he drove off. [¶]... Ultimately, the jury found Solis guilty of second degree murder."
The following summary of Solis's testimony is taken from our published opinion in People v. Solis (1993) 20 Cal.App.4th 264, 268-269 (disapproved on another point in People v. Prettyman (1996) 14 Cal.4th 248, 268, fn. 7).
"Testifying in his defense, Solis admitted participation in the various events leading up to the homicide, including the transportation of Moffat back to Linda Vista. While Solis admitted knowing that Moffat had a gun, he denied knowing or expecting that Moffat would use it for any purpose other than to shoot in the air to scare the opposing gang. He further testified that he had turned off his lights, at Moffat's bidding, heard shots and thought someone was shooting at his car, and did not know that Moffat had fired his gun until later informed of it by his other passenger."
B. The Present Proceedings
1. Suitability hearing
At Solis's August 14, 2008 parole consideration hearing before the Board, during which Solis occasionally used the assistance of a Spanish-English translator, it was noted that his minimum parole eligibility date was May 28, 2002. The presiding commissioner noted the Board had reviewed Solis's central file and the prior hearing transcript. Solis elected not to speak about the commitment offense, and the Board incorporated by reference the facts of the commitment offense found in the report prepared for the Board's August 2005 hearing, which included Solis's version of the crime. It was noted that Solis's life crime was his only crime of record, and he had no other arrests as a juvenile or adult.
In response to questions from the Board regarding his background, Solis indicated he was born in 1972 in the State of Guerrero, Mexico, he came to the United States in 1990 with his parents when he was almost 17 years old, he attended Mission Bay High School at the time of his arrest, he worked as a carpenter's assistant, and his parents worked in a restaurant in La Jolla. He never experimented with drugs, he drank alcohol one time and did not like it, and he drank wine on another occasion and did not like it. In 1997 he married a woman he knew "from the streets, " but they were currently separated.
Regarding Solis's parole plans, the Board noted there was an immigration hold, and, if paroled, he would be deported to Mexico and would live in Acapulco with his sister. He has job offers in Mexico to work in a restaurant or in an auto repair shop.
It was noted that the San Diego County District Attorney submitted to the Board a letter dated June 26, 2008, questioning whether Solis was suitable for parole because, although he had done well in prison, he lacked insight into his crime and seemed to minimize his culpability by portraying himself as an unwilling participant by asserting he did not know that his crime partner (Moffat) had a gun or that he was going to shoot at the rival gang members. It was also noted that the San Diego Police Department also submitted a letter dated June 23, 2008, recommending that Solis remain in custody. The Board also received letters of support from Solis's mother, who was offering him the opportunity to live in her home in Acapulco; and from his father, who was currently living in San Diego and offering him work and a place to stay on his ranch in Guerrero.
With respect to Solis's postconviction behavior in prison, it was noted that Solis's last suitability hearing had been held in May 2007, at which time he received a one-year denial of parole, and the Board recommended that he remain discipline-free, involve himself in self-help, and learn a trade. Solis acknowledged he had been a member of a gang known as the Dead End gang, but he was no longer a member. In prison he obtained two "128s" for minor disciplinary violations, most recently in 1997 for having a clothesline, and one "115" for a serious disciplinary violation in 1993 for urinating in the scullery area in the kitchen where the dishes are washed. Solis said "[i]t sounds bad, but it's not that bad, " explaining that "other inmates" told him he could urinate in the drain.
Solis obtained a vocational certificate in welding, and his GED certificate in early 2000. He works as a porter and does sweeping and mopping. Solis, who has been attending Alcoholics Anonymous (AA) since 2003 or 2004, stated, "I go there, not because I need it, because I never used alcohol." He explained that AA is helpful because his father is an alcoholic. It was noted that Solis took classes called "Cage Your Rage" and "Healing for the Angry Heart" and earned certificates for attending Owning Your Own Business, Anger Management, IMPACT Program, Lifer GROUP Therapy, Creative Conflict Resolution, and Parenting. Solis stated he had been trying "everything that will benefit me not to come back to prison."
The Board considered Solis's psychological evaluation, which evaluator Susan Hoyt, Psy.D., submitted on May 3, 2008. Dr. Hoyt's report noted that Solis "admitted that he currently views himself as a criminal 'because I committed a crime, and nothing I ever do will change what I did'"; and, "[w]hen [he] was asked why this crime occurred, he replied, 'There's no explanation. We took someone's life for nothing.'" Regarding the issues of minimization, insight and remorse, Dr. Hoyt commented, "Inmate Solis did not appear to be minimizing when discussing his involvement in the crime. He admitted being in the vehicle and... participat[ing] in the crime." She also stated:
"He affirmed that his impulse control was poor, and accurately described the crime and his behaviors therein as 'meaningless.' He stated that he takes full responsibility for his actions. He has significantly matured while in prison and demonstrated appropriate behaviors without violence or substance abuse during his entire incarceration, and there is no reason to believe that this inmate would not continue to maintain his current gains after release, particularly as he appears to have strong family ties/support in Acapulco, Mexico, where he plans to parole. The inmate's insight and regret present[] as appropriate as discussed throughout the report."
Regarding her assessment of Solis's risk for violence, as the Board noted, Dr. Hoyt concluded: "Overall, then, risk assessment estimates suggest that [Solis] poses a low likelihood to become involved in a violent offense, and is also at low risk for general recidivism if released into the free community."
Solis told the Board he agreed with his psychological evaluation. In his closing remarks, Solis stated, "I take full responsibility for what I did, for what happened that night. I took someone's life and I know that. Nothing that I say or do will bring him back. I know the pain that I caused to his family...."
2. The Board's 2008 decision granting parole
In its August 14, 2008 decision, based on the totality of the record, the Board concluded that Solis was "suitable for parole and would [not] pose an unreasonable risk of danger to society or a threat to public safety if released from prison." The Board noted that Solis has no juvenile record or prior criminal history; he has enhanced his ability to function within the law upon release through participation in education and self-help programs, his participation in AA was "not based on any record of significant alcohol problems", and he had earned his GED and a welding certificate. The Board also considered Dr. Hoyt's 2008 psychological report and noted that when she asked Solis why the crime occurred, he replied, "There's no explanation. We took someone's life for nothing." (Italics added.) The Board also noted Dr. Hoyt's conclusion that Solis has a low likelihood of becoming involved in a violent offense, and he has a low risk for recidivism if released back into the free community. The Board also based its decision on the April 2006 psychological evaluation performed by Dr. Macomber, a correctional psychologist, noting that Dr. Macomber's report indicated that Solis's release "would pose no more threat to society than the average citizen in the community and there are no significant risk factors in the case."
The Board imposed conditions of parole, including that Solis not associate with any prison gang, disruptive group or street gang, that he not return to the United States; and reminded Solis that the Governor would review the Board's decision.
3. The Governor's 2009 reversal of the Board's 2008 decision
On January 9, 2009, the Governor reversed the Board's 2008 decision to grant Solis parole. After summarizing the facts of the offense set forth in People v. Solis, supra, 20 Cal.App.4th 264, and crediting "various positive factors" (such as Solis's lack of a prior criminal record, the efforts he has made in prison to enhance his ability to function within the law upon release, and his plan to return to Mexico to live with family and work upon his release), the Governor concluded that Solis "would pose an unreasonable risk of danger to society if released from prison at this time, " noting that the San Diego County District Attorney's Office and the San Diego Police Department both registered opposition to Solis's parole.
The Governor cited three principal reasons for his reversal of the Board's decision. First, he found that "the second-degree murder for which [Solis] was convicted was particularly heinous because there is evidence that [he] premeditated on some level to commit murder." (Italics added.) The Governor reasoned that, "[a]ccording to the probation officer, the murder was 'deliberate and calculated.' And [Solis's] motive for the crime─gang-related retaliation─was extremely trivial in relation to the magnitude of the crime he committed. Moreover, after shooting Kenneth O'Brien, the crime partners fled and left him there to die, demonstrating an exceptionally callous disregard for human life and suffering. The autopsy report indicated that Mr. O'Brien bled to death from gunshot wounds to the chest and abdomen."
Second, the Governor expressed concern that Solis "still lacks full insight into his role in the murder." (Italics added.) The Governor reasoned that Solis "initially told the probation officer that after the initial confrontation, he and his crime partners returned to 'look for Rosalinda.' The appellate record indicates that when [he] testified in his defense at trial, [Solis] 'admitted participation in the various events leading up to the homicide.' [Solis] testified that he knew [Moffat] had a gun, but he denied knowing that [Moffat] would use it 'for any purpose other than to shoot in the air to scare the opposing gang.' He also testified that he turned off his lights at [Moffat's] request. According to his 1995 mental-health evaluator, [Solis] said that the offense occurred 'while he was hanging around with a cousin who was affiliated with gangs, and that [Solis] was at the wrong place at the wrong time.' The evaluator noted that '[i]nsight seems to be impoverished.' [Solis] later changed his story, telling his 2001 correctional counselor that 'I didn't know that [Moffat] had a gun. As I drove up, [Moffat] pulled out a gun. I said, "Don't shoot nobody." ' When asked why the crime occurred, [Solis] told his 2008 mental-health evaluator that '[t]here's no explanation.' ''
Third, the Governor found that Solis "has also given differing stories regarding his substance abuse history." (Italics added.) The Governor stated that "[o]ver the years, [Solis] has maintained that he did not have a problem with drugs or alcohol. He told the 2008 Board that he tried alcohol twice in his life and did not care for it. Later in the hearing, he said he 'never used alcohol.' But his 2008 mental-health evaluator said '[t]he inmate reportedly began abusing alcohol on occasion when he was 16 years old."
4. The Board's 2009 decision again granting Solis parole, and the Governor's 2010 reversal of that decision
As we shall discuss, post, Solis has filed a request for judicial notice of the Governor's January 9, 2010 reversal (the Governor's 2010 reversal) of the Board's 2009 decision to again grant Solis parole.
Although the instant habeas proceeding involves Solis's challenge to the Governor's 2009 reversal of the Board's 2008 decision granting Solis parole, we note that on August 13, 2009, the Board held another parole suitability hearing in this matter, and again concluded that Solis "is suitable for parole and will not pose an unreasonable risk of danger to society or threat to public safety if released from prison."
Attached to Solis's November 2009 petition at issue here, marked as exhibit "B, " is a copy of the portion of the transcript (i.e., pp. 90-101) of the Board's August 13, 2009 suitability hearing that sets forth the Board's second and most recent decision (the Board's 2009 decision) to grant Solis parole. On December 18, 2009, Solis submitted, as an additional exhibit, a copy of the remaining portion (i.e., pp. 1-89) of the transcript of the Board's August 13, 2009 suitability hearing in this matter.
5. The instant habeas proceeding
a. Solis's petition
On November 20, 2009, Solis refiled in this court, with an expanded record, his petition for writ of habeas corpus (the petition) challenging the Governor's reversal of the Board's 2008 decision to grant him parole. Solis claims the Governor's reversal violates his federal right to due process because it is not supported by any evidence. Specifically, he asserts "[t]he attached exhibits as well as the records of the Board are devoid of any evidence that [he] lacked full insight into the circumstances of the offense and there is no credible evidence that [he] has any 'substance abuse history' whatsoever." He also asserts there is no evidence to show he premeditated on some level to commit murder because the jury "found [him] guilty of unpremeditated murder and requested instructions on homicide less than murder[, ] which were refused by the [court]."
Solis also argues his commitment offense "by itself is insufficient to show a current unreasonable risk to public safety if released and deported to Mexico where a loving family awaits him." He asserts his "long history of embracing his numerous programs in prison... obviously impressed the Board." Solis points out that "the State's forensic psychologists... determined that his parole does not pose an unreasonable risk to public safety." Furthermore, he asserts, the transcript of his trial testimony shows there were no "differing stories."
b. The People's informal response
In an informal response filed on January 14, 2010, which this court deems the return to the order to show cause issued in this matter in February 2010 (discussed, post), the People summarize the concerns and findings set forth in the Governor's 2009 reversal of the Board's 2008 decision and claim Solis's petition should be denied because "some evidence supports the Governor's finding that Solis's release poses an unreasonable risk of danger to the public." Citing Lawrence, supra, 44 Cal.4th 1181, the People support this claim by asserting "the Governor properly considered and relied on the circumstances of Solis's commitment offense to deny him parole." More specifically, the People state, "[T]he Governor properly analyzed the interplay of the various factors, including Solis's crime, in determining whether all of the factors together indicated that Solis was a current, unreasonable risk to public safety."
Next, citing Lawrence, supra, 44 Cal.4th at page 1204, the People assert the Board's 2009 decision granting Solis parole is irrelevant because this court's inquiry is limited to whether there is some evidence in the record supporting the Governor's 2009 reversal of the Board's 2008 decision, and "the Board's 2009 parole grant has no effect on this Court's decision."
Last, citing Shaputis, supra, 44 Cal.4th at page 1260, the People suggest that Solis is improperly "asking this court to reweigh the evidence to overturn the Governor's [2009 reversal of the Board's 2008 decision]" and assert in a conclusory manner that here "some evidence supports the Governor's decision that Solis's release to parole poses an unreasonable risk of danger to the public."
c. Solis's reply
In his reply to the People's informal response, which this court deems the traverse to the order to show cause (OSC) (for reasons discussed, post), Solis first argues there is no evidence to support the Governor's 2009 reversal of the Board's 2008 decision. Specifically, Solis asserts the claimed discrepancies on which the People rely "were not discrepancies at all" and, even if they were, "they would not be evidence that [he] presents an unreasonable current risk of harm to society." "There is no rational nexus, " he argues, "between the facts of this tragedy 19 years ago and current dangerousness of petitioner Solis."
Solis also argues that if this court grants his petition, the appropriate remedy is his immediate release because "the record contains no evidence of an unreasonable current risk to public safety and remand to the Governor would be an idle act." Noting that the "[t]he Governor has reviewed th[is] case twice, " he cites In re Smith (2003) 109 Cal.App.4th 489, 507, for the proposition that the Governor's constitutional authority is limited to a review of the materials provided by the Board and argues that "further review is not necessary, " and "[i]t is unlikely the Governor will do anything other than reverse a grant of parole for [Solis] as he has repeatedly done."
d. OSC
On February 23, 2010, after the informal response and reply (discussed, ante) were filed, we issued an OSC why the relief requested in the petition should not be granted. In the OSC, we ordered that, absent an objection, the People's response and Solis's reply "will be deemed the return and traverse to the [OSC]." As neither party filed an objection, the People's informal response is deemed the return, and Solis's reply is deemed the traverse, to the OSC.
e. Solis's supplemental letter brief
With this court's leave, Solis filed a supplemental letter brief that discusses the facts and holding in In re Loresch (2010) 183 Cal.App.4th 150 (Loresch) and argues that, as in Loresch, the Governor has employed, in his 2009 and 2010 reversals of the Board's 2008 and 2009 decisions to grant Solis parole, "a cookie cutter reversal letter depending on speculation and talismanic phrases devoid of evidentiary support to overturn the decision of his experienced appointees who do not grant parole easily."
f. The People's supplemental informal brief
In response, the People filed (also with this court's leave) a supplemental informal response asserting that (1) this court's inquiry is limited to whether "some evidence" in the record supports the Governor's 2009 reversal of the Board's 2008 decision; (2) both the Governor's decision in Loresch, supra, 183 Cal.App.4th 150, and his 2010 decision to deny Solis parole are irrelevant to this inquiry; and (3) if Solis wishes to challenge the Governor's 2010 parole denial, he should file a new petition for writ of habeas corpus. The People complain that Solis is improperly asking this court to reweigh the evidence and asserts that some evidence supports the Governor's 2009 decision that Solis's release on parole poses an unreasonable risk of danger to the public.
DISCUSSION
I. SOLIS'S OPPOSED REQUEST FOR JUDICIAL NOTICE
On April 6, 2010, citing Evidence Code section 459 and rule 8.252(a)(1) of the California Rules of Court, Solis filed a request for judicial notice of the Governor's 2010 reversal of the Board's 2009 decision to grant Solis parole. The People filed written opposition to Solis's request, arguing that (1) the Governor's 2010 reversal of the Board's 2009 decision "is not relevant to this Court's adjudication of whether there is some evidence supporting the Governor's 2009 parole denial"; and (2) under Evidence Code section 452, subdivision (c), "this Court is limited to judicially noticing the existence of the official act, but not the truth of the factual matters therein."
By order dated May 4, 2010, this court ordered that Solis's opposed request for judicial notice be considered concurrently with his habeas petition.
A court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), but it may only notice relevant material. (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7.)
We deny Solis's opposed request for judicial notice of the Governor's 2010 reversal of the Board's 2009 decision granting Solis parole because the Governor's 2010 reversal is not relevant to the issues raised in Solis's petition, which challenges only the Governor's 2009 reversal of the Board's 2008 decision.
II. MERITS
Solis contends the Governor's decision reversing the Board's 2008 decision violates his federal right to due process because the Governor's reversal, which is based (among other things) on the gravity of Solis's life offense and the Governor's concern that Solis "lacks full insight into his role in the murder, " is not supported by any evidence. We conclude the record does not contain "some evidence" to support the Governor's finding that Solis currently poses an unreasonable risk to public safety and thus is unsuitable for parole. Accordingly, we grant Solis habeas relief.
A. The Parole Suitability Framework
In In re Vasquez (2009) 170 Cal.App.4th 370, 379, this court recognized that "[t]he granting of parole is an essential part of our criminal justice system [that] is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities." (Original italics.)
In reviewing an inmate's suitability for parole, 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...." (Pen. Code, § 3041, subd. (b).)
Once the Board sets a parole release date, the California Constitution empowers the Governor to review any decision by the Board to grant, deny, revoke, or suspend the parole of an inmate (like Solis) convicted of murder and sentenced to an indeterminate prison term. (Cal. Const., art. V, § 8, subd. (b).) After reviewing the Board's parole decision, the Governor "may only affirm, modify, or reverse the decision... on the basis of the same factors [the Board] is required to consider." (Ibid.; see also Pen. Code, § 3041.2, subd. (a) [when reviewing the Board's decision, the Governor "shall review materials provided by the [Board]"].)
Article V, section 8, subdivision (b) was added to the California Constitution in November 1988 by initiative (Prop. 89). (In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz).)
"The foregoing constitutional and statutory provisions thus set forth standards and criteria that limit the Governor's review of a parole decision... and give rise to a protected liberty interest under the California due process clause." (Rosenkrantz, supra, 29 Cal.4th at p. 660.) "Although these provisions contemplate that the Governor will undertake an independent, de novo review of the prisoner's suitability for parole, the Governor's review is limited to the same considerations that inform the Board's decision." (Id. at pp. 660-661.)
The decision whether to grant parole is an inherently subjective determination. (Rosenkrantz, supra, 29 Cal.4th at p. 655) In making the parole suitability determination, the Board and the Governor must consider "[a]ll relevant, reliable information, " such as the nature of the commitment offense, including behavior before, during, and after the crime; and the prisoner's social history, mental state, criminal record, attitude towards the crime, and parole plans and conditions. (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
All further citations to regulations are to the California Code of Regulations, title 15.
Because Solis committed the life offense in 1991, the Board's parole decision in this case was governed by Penal Code section 3041 and section 2402 of the regulations. (Shaputis, supra, 44 Cal.4th at p. 1256, fn. 13.)
Because Solis committed the murder in 1991, his parole suitability is governed by section 2402 of the regulations, which provides parole consideration criteria and guidelines for murders committed on or after November 8, 1978. (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, fn. 5.) Section 2281, which is identical to section 2402, provides parole consideration criteria and guidelines for murders committed before November 8, 1978. (Shaputis, supra, 44 Cal.4th at p. 1256, fn. 13.)
Section 2402 of the regulations sets forth the factors that "guide the Board's assessment of whether the inmate poses 'an unreasonable risk of danger to society if released from prison, ' and thus whether he or she is suitable for parole." (Shaputis, supra, 44 Cal.4th at p. 1256; see also Regs., § 2402, subd. (a) ["a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison"].) A factor that, "[when] taken alone, may not firmly establish unsuitability for parole may contribute to a pattern that results in a finding of unsuitability." (Regs., § 2402, subd. (b).)
The factors or circumstances that tend to show unsuitability for parole include: (1) commission of the commitment offense in "an especially heinous, atrocious or cruel manner"; (2) a previous record of violence; (3) a history of "unstable or tumultuous relationships with others"; (4) commission of a sadistic sexual offense; (5) a "lengthy history of severe mental problems related to the offense"; and (6) serious misconduct in prison. (Regs., § 2402, subd. (c).)
The factors or circumstances that tend to show suitability for parole include: (1) lack of a juvenile record of violent crime; (2) a history of "reasonably stable relationships with others"; (3) signs of remorse, such as "attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that [the inmate] understands the nature and magnitude of the offense"; (4) the mitigating circumstance that the inmate committed the crime "as the result of significant stress in his life, especially if the stress had built over a long period of time"; (5) the mitigating circumstance that the inmate committed the crime as a result of Battered Woman Syndrome; (6) lack of "any significant history of violent crime"; (7) being of an age that reduces the probability of recidivism; (8) preparation of realistic plans for release or development of marketable skills that can be put to use upon release; and (9) participation in institutional activities indicating an enhanced ability to function within the law upon release. (Regs., § 2402, subd. (d).)
The foregoing factors or circumstances are "general guidelines, " illustrative rather than exclusive, and " 'the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board or Governor].' " (Rosenkrantz, supra, 29 Cal.4th at p. 654, quoting Regs., § 2402, subds. (c), (d).) Thus, a parole release decision entails "an attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, supra, at p. 655.) The Board or Governor is free to consider facts apart from those found true beyond a reasonable doubt by a jury or judge. (Id. at pp. 678-679.)
Although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for finding an inmate unsuitable for parole, "the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1214.)
B. "Some Evidence" Standard of Judicial Review
In Rosenkrantz, the California Supreme Court addressed the standard a court must apply when reviewing a parole decision by the executive branch. Holding that a parole decision by the Board is subject to what it referred to as the "some evidence" standard of review, the Supreme Court stated that "the judicial branch is authorized to review the factual basis of a decision of the Board denying parole... to ensure that the decision comports with the requirements of due process of law, but that 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 on the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added.)
Rosenkrantz also held that the same "some evidence" standard of review applies when a court reviews a decision by the Governor to reverse a decision of the Board granting parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 658, 667.) Specifically, the Supreme Court concluded that "such review properly can include a determination of whether the factual basis of such a decision is supported by some evidence in the record that was before the Board." (Id. at p. 667, italics added.) The high court explained that it is "irrelevant" that a reviewing court "might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole." (Id. at p. 677.) Although a court must ensure that the Governor considered the same factors the Board considered, "the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision." (Ibid., italics added.)
In Lawrence, supra, 44 Cal.4th 1181, our Supreme Court reaffirmed its holding in Rosenkrantz that the Governor's decision of parole suitability is subject to the "some evidence" standard of review. (Lawrence, supra, at p. 1205.) However, in doing so it recognized that the characterization of that standard in Rosenkrantz as extremely deferential and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, 29 Cal.4th at pp. 665, 667) had generated confusion and disagreement among the lower courts "regarding the precise contours of the 'some evidence' standard." (Lawrence, supra, at p. 1206.) Recognizing that the legislative scheme contemplates "an assessment of an inmate's current dangerousness" (id. at p. 1205, original italics), the high court in Lawrence clarified that "when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212, italics added.)
As to this "some evidence" standard of judicial review, the Lawrence court further explained that although the standard is "unquestionably deferential, [it] certainly is not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision─the determination of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1210, italics added.)
In the companion case of Shaputis, supra, 44 Cal.4th 1241, our Supreme Court reiterated that "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." (Id. at p. 1254, citing Lawrence, supra, 44 Cal.4th at p. 1191.)
C. Analysis
We conclude that, notwithstanding our deferential review of the Governor's decision (Rosenkrantz, supra, 29 Cal.4th at p. 665), the Governor's findings that Solis currently poses an unreasonable risk to public safety, and thus he is unsuitable for parole, are not supported by "some evidence." Applying the criteria set forth in section 2402, subdivision (c), of the applicable regulations, the only circumstance tending to indicate Solis is unsuitable for parole is that he "committed the offense in an especially heinous, atrocious, or cruel manner." (Regs., § 2404, subd. (c)(1).) As the Governor noted in his decision, Solis and Moffat drove away after Moffat shot the victim, leaving him to die, and the autopsy report indicated the victim bled to death from the gunshot wounds to his chest and abdomen. Such criminal conduct indeed demonstrated, as the Governor found, "an exceptionally callous disregard for human life and suffering."
However, Solis, who is now 37 years of age, committed the second degree murder almost 20 years ago. Although the Governor expressed concern there was evidence Solis "premeditated on some level to commit murder" (italics added), at trial the judge instructed the jury on both first degree murder and second degree murder under the doctrine of natural and probable consequences, and the jury opted to convict Solis of unpremeditated second degree murder. (Solis v. Garcia, supra, 219 F.3d at p. 925.)
Furthermore, as already discussed, the aggravated nature of Solis's crime alone does not provide some evidence of current dangerousness to the public "unless the record also establishes that something in [his] pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding [his] dangerousness that derive from [the] commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1214.)
Here, there is no evidence in the record to show that something in Solis's pre- or postincarceration history, or in his current demeanor and mental state, indicates that any "implications regarding [his] dangerousness" that derive from the callous nature of his crime remain probative on the dispositive issue of whether he currently poses an unreasonable risk to public safety if he is released on parole. The Governor found that Solis "still lacks full insight into his role in the murder." This finding, however, is unsupported by the evidence and is contradicted by the observations of the psychological evaluator in her May 2008 report that Solis "did not appear to be minimizing when discussing his involvement in the crime"; he "admitted being in the vehicle and... participat[ing] in the crime"; he "stated that he takes full responsibility for his actions"; and "[his] insight and regret [are] appropriate as discussed throughout this report." The Governor's finding is also contradicted by the finding in the 2002 psychological evaluation report that Solis "has excellent insight into the senselessness of his life crime, " and by the findings in the 2001 psychosocial assessment report that Solis "demonstrated excellent understanding of the underlying factors culminating in his crime" and that he seemed "penitent and remorseful for the crime, acknowledging the damage done both to the victim and relatives of the victim."
In support of his finding that Solis "lacks full insight into his role in the murder, " the Governor asserted that when Solis's 2008 mental health evaluator asked him why the crime occurred, Solis told her that "[t]here's no explanation.'' Had this been Solis's entire response, it indeed would have indicated he still lacks full insight into his role in the murder. The record shows, however, that the foregoing quote is incomplete. The evaluator's report shows that Solis actually responded, "There's no explanation. We took someone's life for nothing." (Italics added.) Solis's acknowledgment that he and Moffat "took someone's life for nothing" supports the evaluators' findings that Solis has demonstrated appropriate insight into his role in, and responsibility for, the murder.
In support of his finding that Solis is unsuitable for parole, the Governor also found that Solis has given "differing stories regarding his substance abuse history." Noting that Solis has maintained over the years that he did not have a problem with drugs or alcohol, the Governor cited the statement of Solis's 2008 mental health evaluator in her report that Solis "reportedly began abusing alcohol on occasion when he was 16 years old." (Italics added.) However, the record is devoid of any evidence that Solis has or ever had a substance abuse history. In her report, Solis's 2008 mental health evaluator found at page 3 that there was not "any suggestion or documentation of a substance abuse disorder." When viewed in context, the evaluator's use of the adverb "reportedly" in her comment that Solis "reportedly began abusing alcohol on occasion when he was 16 years old" indicates her disagreement with any such report; it does not show that Solis has a substance abuse history; and it does not support the Governor's finding that Solis has given "differing stories regarding his substance abuse history." The 2006 psychological evaluation report specifically found that, "[a]ccording to the records and according to [Solis's] statements, there is no history of drug or alcohol abuse."
The Governor's decision in Loresch, supra, 183 Cal.App.4th 150, which Solis discusses in his supplemental letter brief, is limited to the facts of that case. Accordingly, we need not discuss it further.
Since we have reviewed the materials that were before the Board and found no evidence to support the Governor's findings and his reversal of the Board's 2008 decision, a remand to the Governor in this case would amount to an idle act. We conclude Solis is entitled to the relief sought in his petition for writ of habeas corpus.
DISPOSITION
The Governor's 2009 order reversing the Board's 2008 decision granting Solis parole is vacated, the Board's 2008 parole release order is reinstated, and Solis is ordered released from custody on parole on the conditions imposed by the Board.
WE CONCUR: McDONALD, J., McINTYRE, J.