Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 90372
Duffy, J.
At issue in this case is whether the Board of Prison Terms’s 2004 decision that Victor M. Sousa was not yet suitable for parole can be upheld under applicable legal principles on the basis that the decision is supported by “some evidence.” Sousa is serving concurrent life sentences for 1984 convictions of two counts of kidnapping for robbery, plus two years for the use of a firearm. At the time of the Board’s decision, he had been incarcerated for over 20 years. Warden D. Sisto appeals from the trial court’s order granting Sousa’s petition for writ of habeas corpus and directing the Board to conduct a new hearing “which comports with due process” but also directing the Board not to consider Sousa’s commitment offenses in its deliberations “unless different evidence justifies doing so.”
As of July 1, 2005, the Board of Prison Terms had been abolished and replaced by the Board of Parole Hearings. (See Pen. Code, § 5075, subd. (a), further statutory references are to the Pen. Code unless otherwise indicated.) For convenience, we will refer to the parole agency as the “Board” or “BPT.”
We conclude that certain factors cited by the Board in denying parole are supported by some evidence, including Sousa’s most recent disciplinary violation for theft that the Board emphasized in support of its decision. These factors, viewed through the lens of the deferential standard of judicial review applicable here, together support the Board’s conclusion that Sousa would currently remain a risk to society were he to be released. Moreover, it is clear from the Board’s reasoning that it would have denied parole even in the absence of the cited factors that are not supported in the record. Accordingly, we reverse the trial court’s grant of a writ of habeas corpus and reinstate the Board’s 2004 decision denying parole.
STATEMENT OF THE CASE
I. Sousa’s Background
Sousa was born in July 1964 in Portugal, the sixth of his parents’ six children. When he was four, he immigrated to the United States with his family, who made their home in San Jose. He completed the tenth or eleventh grade but while in high school, he began to use drugs and hang around with the “wrong crowd.” Sousa’s father died in 1999 while Sousa was incarcerated. This event deeply affected him. This event also motivated his “most fervent wish” to be released from prison in order to spend time with his mother, who is in her seventies and suffers from diabetes, before she too passes on.
II. Sousa’s Criminal History, Including the Commitment Offense
In 1981, Sousa, then a minor, committed burglary. He was confined to the California Youth Authority (CYA). In 1982, within four months of being released from the CYA, he was convicted of attempted burglary and second degree burglary.
This brings us to the commitment offense. Late at night on July 23, 1983, Sousa, then 19 years old, was driving around with his brother-in-law, Procopio Reyes. They went to a gas station that they had decided to rob, and Reyes brought a gun that had been in his car. They could see two employees inside the station. Reyes and Sousa watched as one of the employees left on his bike. The other, Joe Babineau, closed the station and went to his car to leave. As he attempted to get into his car, Sousa placed the gun to his head and ordered him to scoot over to the passenger side of the car.
Sousa got in the back seat of Babineau’s car and Reyes got into the driver’s seat. Reyes and Sousa traded off pointing the gun at Babineau. Reyes drove the car away while Sousa repeatedly demanded that Babineau tell them the combination to the safe located inside the gas station. Babineau said that he did not know the combination, forgetting that the lock was not combination but instead required a key. While the car was moving, Sousa told Babineau to “ ‘stay quiet or you are dead.’ ”
At some point, Reyes stopped the car so Babineau could use a telephone to call someone to get the combination to the safe, as Sousa had ordered him to do. Unable to contact anyone by phone, Babineau was put back into the car, which Reyes drove back to the gas station. He pulled into an alley where he turned the car off. Sousa then ordered Babineau to give him the combination to the safe by threatening to “ ‘blow [his] head off right now.’ ” Babineau again replied that he did not know the combination. Sousa pressed by asking him who would know it. Babineau replied that a coworker, Noel Scott Smith, would.
Sousa got Smith’s address from Babineau, and Reyes then drove all three in the car a half a mile to Smith’s house where Babineau was ordered to knock on the door. When Smith came out of the house, Sousa accosted him, held a gun to his head, and took a knife from him. Sousa told Smith, “ ‘Don’t move, don’t do anything, because my friend [Reyes] will not mind blowing your partner away.’ ” Smith saw that Reyes held Babineau and was pointing a gun at him. Smith and Babineau were put in the back seat of the car. Sousa demanded that Smith tell him the combination to the gas station safe. Smith replied that there was no combination and that the safe required a key, which he did not have.
Reyes drove back to the station and held Smith inside the car. Sousa took Babineau to the front of the station and had him open the door. To avoid sounding the alarm, Babineau was ordered to call the alarm company to advise that he had reentered the station. When Babineau could not remember his code number for the alarm, Sousa signaled Reyes to bring Smith inside so he could give his number. Reyes and Smith then went inside.
After the call to the alarm company, and with the assistance of the victims, the safe was turned on its side. Sousa then fished into its deposit slot with a coat hanger, removing about $625, while Reyes went back and forth to the front of the office to look out for police.
In the meantime, the alarm company had called the owner of the station to inform him that his employees had reentered the building. He drove to the station with his wife and parked outside. When Reyes saw the owner’s car, he and Sousa left the station with the cash that Sousa had gotten from the safe. As he was leaving, Sousa returned Smith’s knife to him.
For these crimes, and pursuant to a plea bargain, Sousa was convicted of two counts of kidnapping for robbery in violation of section 209, subdivision (b), with an enhancement for use of a gun. He was sentenced on each count to life in prison with the possibility of parole, plus two years for the gun enhancement, the life terms and one two-year enhancement to be served concurrently.
It appears he was also sentenced for violation of probation to a total term of two years, four months, to run concurrently with one of the life terms.
In 1988, during his incarceration for the commitment offenses, Sousa was convicted by plea of possession of marijuana in state prison in violation of section 4573.6 and was sentenced to a term of one year and four months, to be served consecutively.
IV. Post Conviction Factors
Sousa began his incarceration for the commitment offenses in January 1984. He began service of the life terms on August 20, 1988. He was first eligible for parole in 1992. His first parole hearing was in May 1991, and he had five more before the one in October 2004 that is the subject of this appeal, all resulting in two-year denials.
In addition to his post incarceration conviction for possession of marijuana in 1988, Sousa received 13 Rules Violation Reports (form 115) from the time of his incarceration through the October 2004 parole hearing, the most recent of which was just seven months before the hearing. The first violation was in July 1984 and it involved “cell visiting.” This was followed by one in January 1986 for “kick[ing] cell door, break[ing] locking device;” one in November 1987 for “trafficking narcotics on the CTF mainline;” one in October 1988 for destruction of state property; one in March 1989 for destruction of state property; one in September 1989 for “contraband;” one in January 1990 for possession of an altered state jacket; one in March 1990 for disobeying a direct order; one in December 1994 for failure to comply with instructions; one in April 1997 for possession of a controlled substance; one in April 1998 for possession of a controlled substance; and the final in March 2004 for theft.
In 2003, Sousa also received four “laudatory chronos” for participating in Alcoholics Anonymous and another that same year for completing the “Plato Self Instructional Computer Literacy Program,” which consists of a series of self-study programs on different subjects. He also received numerous certificates from the Federal Emergency Management Institute for completing courses in disaster management.
Sousa was initially housed at the California State Prison in Corcoran. He was later moved to the prison in Solano, “due to safety concerns,” where “[t]here is no therapy available to inmates at CSP Solano on Facility IV.”
While in prison, Sousa obtained his GED (General Education Diploma). He also worked in metal fabrication and laundry, receiving positive performance reviews including for his “professionalism and ability to work with others to complete tasks.”
V. Psychological Assessment
Sousa was assessed in February 2004 by a correctional counselor for purposes of the October 2004 parole hearing. Among other things, the report concluded that Sousa would pose a “moderate degree of threat to the public if released from prison at this time.” It further advised that Sousa could benefit from “additional vocational training and continuous participation in [Narcotics Anonymous] and [Alcoholics Anonymous].” A Life Prisoner Evaluation done in 2002 assessed Sousa’s degree of threat to the public if then released as “medium.” Evaluations in 2000 and 1997 assessed his threat level at those times as “unpredictable.” In 1995, his threat level was assessed at “high” and in 1993 and 1991, as “moderate.”
Sousa also underwent a mental health evaluation by a psychologist in 2002, the most recent of such exams prior to the 2004 parole hearing. The report noted that Sousa’s “insight regarding his ability or propensity to participate in such a violent act [as the commitment offenses] was somewhat impaired. He failed to see the qualitative difference between his prior offenses and the violence inherent in his commitment offense. When asked for his reasons for his participation, he was at a loss, stating that he ‘was young and stupid.’ While there was no apparent empathy for his victims, his regrets and remorse seemed sincere.”
Having been prepared in 2002, the report’s conclusions, as observed by the Board panel at the 2004 hearing, did not take into account Sousa’s 2004 disciplinary violation for theft, reflecting only that his last previous violation had been in 1998.
The report further noted that Sousa had begun using crank and heroin in 1997 while incarcerated and he “became addicted to these drugs,” though he had purportedly been drug-free since his father died in 1999. “While he was in no formal substance abuse treatment program, he has attended AA and NA. His commitment to sobriety is sincere and deeply felt but he may underestimate the power of addiction, stating[,] ‘I started it, I can stop it.’ He believes that the problem is behind him.” With regard to this substance abuse issue, the report concluded that “[w]hile [Sousa] appears to have learned to control his drug abuse, this problem may resurface when he is placed in a less controlled environment.”
The report also observed that while Sousa “has adapted his behavior to the correctional setting in an appropriate manner,” he “continues to struggle emotionally and mentally with the severity of his sentence and feels unfairly treated by the legal system. It has been this struggle along with his father’s death three years ago that has motivated the change in behavior[,] including giving up drugs[,] and that fosters his hope for future release.”
The report assessed Sousa’s level of dangerousness within the structured setting of a correctional institution as “well below average.” It acknowledged his “demonstrated commitment and ability to avoid [sic] physical conflicts” and put his risk for recidivism in the general community at “below average.” It noted that he had “matured and seem[ed] committed to a non-violent lifestyle” and that he had “a good support system and employable job skills” with feasible parole plans. The psychologist was accordingly “guardedly optimistic” regarding Sousa’s prognosis for a successful completion of parole.
The 2002 mental health evaluation reflected an improved assessment over prior evaluations. In 2000, a psychologist expressed concern that Sousa’s then recent disciplinary violations relating to drug possession reflected that Sousa was “minimizing both his criminal history and his substance abuse.” “Since he has involved himself with drugs in a highly structured and highly authoritarian maximum-security prison, complete with a resident police force, then he clearly does not understand the meaning of rehabilitation. Therefore, his prognosis is considered negative, at this time, . . . His drug offenses, trafficking and heroin possession would be considered felonies on the outside.”
His 1997 mental health evaluation concluded that Sousa’s “violence potential outside of prison is considered average for inmates on the 3 Yard.” It further noted that while Sousa was making progress and “his personality disorder is improving, he still has a tendency, because of that personality disorder, to try to take things without delay of gratification and he has a history, also, of participating in felonious excitement. He has a history of drug abuse, PCP, and if he participates in drug usage outside of prison, then his prognosis is definitely negative since he will experience poor impulse control and impaired judgment behind street drugs and alcohol.” A 1995 evaluation also assessed Sousa’s potential for violence as “average for inmates on the 3-yard.” The same was true of a 1993 evaluation.
VI. Parole Plans
Sousa’s parole plans were positive. At the hearing, he produced two letters, one from his mother and one from his brother, both of whom had relocated to Manteca. The letters offered Sousa housing and support. His mother’s letter also offered that she had family remaining in Portugal who were willing to support Sousa were he to be deported there upon release due to his being subject to an Immigration and Naturalization Service (INS) hold. Sousa also had a potential job offer in Sacramento from a metal fabrication and installation business; he had had some training and experience in this trade while incarcerated and could thus be considered to be “highly employable.”
VII. The Parole Board Hearing
The hearing took place on October 8, 2004. It began with a summary of the offenses of which Sousa had been convicted and a recitation of his sentence. The Board then outlined what would occur at the hearing by saying that it would consider the commitment offenses, Sousa’s prior criminality and social history, as well as post-commitment behavior and programming, psychological evaluations and prior parole hearing transcripts. Sousa’s counsel confirmed that Sousa would exercise his right not to speak at the hearing.
After considering the circumstances of the commitment offense, the panel turned to Sousa’s post-conviction factors, including that he had received a disciplinary violation for theft within seven months of the hearing. The panel noted that Sousa had submitted a written statement of explanation for the violation, which, in essence, only confirmed that he had taken a pair of work boots from the laundry facility where he worked and when confronted by a correctional officer about this, Sousa had lied and said that the boots were his. The panel discussed Sousa’s then current participation in AA and in an anger management class. The panel went on to consider Sousa’s most recent life prisoner evaluation and the 2002 mental health evaluation, as well as his parole plans.
The district attorney then spoke in opposition to Sousa’s suitability for parole. He emphasized his concerns that Sousa had admitted being high during his commission of the life crimes; that Sousa had initially denied having committed the crimes and “had never come to terms with his criminal involvement,” i.e., that it was Sousa who had made most of the threats to the victims of the crimes; that Sousa had an escalating criminal history; and that the assessment that Sousa would currently pose a “moderate” degree of threat if released was an unacceptable level of risk. The district attorney urged that a “guardedly optimistic” prognosis for successful parole as referenced in the 2002 mental health evaluation was inadequate to warrant release and that Sousa continued to pose a substantial risk to the community if he were to be released at that time.
Finally, Sousa’s own attorney argued for his suitability for release.
VIII. The Board’s Decision
At the conclusion of the hearing, the Board deliberated in private and then announced its decision that Sousa was not yet suitable for release and would pose an unreasonable risk of danger to society or a threat to public safety if then released from prison, resulting in another two-year denial of parole.
The panel also ordered that a new mental health evaluation be prepared, reflecting its judgment that the conclusions of the 2002 report had been undermined or superseded by more recent events.
In support of its decision, the panel cited that “the offense was carried out in an especially cruel and callous manner;” that “[m]ultiple victims were involved in this incident;” that that the “incident was carried out in a calculated manner” that showed that Sousa has “no respect for laws and rules established to protect our society;” that the “motive for the crime was inexplicable;” that Sousa had an escalating pattern of criminal conduct; that he had failed previous grants of probation and parole and had “failed to profit from society’s previous attempts to correct [his] criminality;” that his criminality at an early age established an unstable social history; and that he had failed to demonstrate evidence of positive change by having suffered a recent violation for theft, an act of the same stealthy nature as the kidnap for robbery commitment offenses.
The panel also acknowledged factors favoring suitability, citing positive statements from the 2002 mental health evaluation, Sousa’s family support, and parole plans.
The panel then specifically found in support of its decision to deny parole that Sousa needed to “involve [himself] in positive kinds of programming, the kinds [sic] that would help [him] maintain self-control [and] stay out of trouble” and that “[u]ntil enough progress is made, [Sousa] continue[d] to be unpredictable, thereby [remaining] a threat to others.” Although the panel commended him for his long work history in prison and his work ethic, “those positive aspects of [his] behavior [did] not outweigh the factors of unsuitability.” The panel also emphasized again that Sousa’s recent disciplinary violation for theft was not in his favor given the robbery aspect of the life crimes—“That’s the wrong type of 115 to get . . . [Y]ou’re a thief on the outside and a thief in prison, in your heart, and you have other thefts on your record . . . . You can’t come to prison for kidnap, theft, and then just before you come before your Board date, you go out and steal something else, I mean, that just doesn’t make any sense. … [Y]ou need to become disciplinary-free and you need to remain disciplinary-free.” The panel also found that the commitment offense was carried out in a calculated manner, with the threats to the victims showing that Sousa had no respect for others’ feelings, and that the motive for the crime was “inexplicable.” It finally found that Sousa had not “completed the necessary programming” and that “a longer period of observation and evaluation . . . is required before the Board shall find him suitable for parole.”
IX. Sousa’s Habeas Proceeding and the Trial Court’s Order
In October 2005, Sousa filed his petition for writ of habeas corpus in the trial court. As grounds for relief, he asserted that (1) “A repeated parole denial based on unchanging factors when the record demonstrates satisfactory rehabilitation could violate due process, and did violate due process in this case;” and (2) his due process rights were also violated because “there is no credible evidence to reasonably support the Board’s conclusion that [Sousa] is currently too dangerous to be released on parole.”
In November 2005, the court issued its order to show cause. In it, the court said that the life crimes were “mitigated by the fact that nobody was [physically] harmed, but aggravated by the fact that there were two victims. While that aggravating factor could be used to deny [Sousa] parole at his first several hearings, now that [Sousa] is well past any [minimum eligible parole date] that would have applied had he suffered two convictions and full term consecutive sentences, the Board might have to now point to something more than this static factor given the length of time served. This issue shall be briefed.”
The order to show cause also said, “ ‘[A] determination of unsuitability is simply shorthand for a finding that a prisoner currently would pose an unreasonable risk of danger if released at this time.’ [Citation.] Beyond the fact that there were two victims, it is unclear what the Board’s basis was for its finding that the crime was exceptional. The Board stated, ‘The offense was carried out in a manner that certainly shows that [Sousa has] no respect for laws and rules established to protect our society.’ Because of the Board’s reliance on this reasoning to deny parole, [the Warden] shall explain how a life term offense might ever be committed in a manner that shows ‘respect for laws and rules established to protect our society[.]’ ”
The court’s order to show cause further said, “The Board additionally declared ‘The motive for the crime was inexplicable.’ Yet the motive for committing kidnapping for robbery is always material gain and there was abundant evidence before the Board that [Sousa] committed his crime in order to gain access to the gas station safe containing hundreds of dollars. Under these circumstances, [the Warden] shall elaborate on its interpretation of the word ‘inexplicable’ and the criteria of ‘inexplicable motive.’ ”
The Warden filed a return to the order to show cause. As to the above issues on which the court had specifically ordered briefing, the Warden asserted that the issues were outside of those raised by Sousa’s habeas petition and the Warden accordingly “decline[d] to brief” them, citing “ ‘[T]he well established rules of habeas procedure [that] provide no statutory or decisional authority [permitting] the superior court to issue an order to show cause that requires the respondent to address new claims not expressly or implicitly raised in the original habeas petition. . . .’ ([Board of Prison Terms v. Superior Court (Ngo)] (2005) 130 Cal.App.4th 1212, 1237]” Sousa joined the Warden’s return with a traverse, labeled a “denial.”
In November 2006, the trial court issued its order granting the petition and directing the Board to conduct a new hearing. As to the issues the Warden had declined to brief as directed in the order to show cause, the court determined that the Warden’s remedy was to have sought writ relief, not to have declined to address those issues, which the court “deemed conceded” as a result. The court’s order accordingly made “findings adverse to [the Warden]” on these issues, which included that the Board was “precluded from using the commitment offense as grounds for parole denial unless new evidence is presented to the Board showing materially different facts.” The order further found that the Warden’s failure to have addressed the specific issue concerning the Board’s finding that Sousa has “ ‘no respect for laws and rules established to protect our society’ ” was not due to the issue not having been fairly raised in Sousa’s habeas petition but instead because the Board’s “reasoning” behind this finding was “capricious and arbitrary,” and thus indefensible.
The order also made a finding with respect to the Warden’s failure to have addressed the issue raised by the Board’s finding that the motive for the crime was “inexplicable.” On this issue, the court’s order concluded that the Board’s finding was made out of ignorance of the record before it. The court similarly so found on the issue concerning the Board’s reliance in denying parole on the aggravating fact that Sousa’s life crime had two victims. On this question, the order likewise concluded that the Warden had responded insufficiently and further that Sousa had served more time in prison than the Board could continue to justify based solely on the fact that his crime had multiple victims. In other words, the court concluded that the amount of time he had already served had neutralized this once aggravating fact.
Based on these findings, which appeared largely the result of the court having deemed issues conceded against the Warden, the court granted Sousa’s petition for habeas corpus and directed the Board to provide him with a new hearing that “comports with due process.” The order further directed that the Board “may not use the crime against [Sousa] unless different evidence justifies doing so.”
We stayed the order by the issuance of a writ of supersedeas in effect until final determination of this appeal.
DISCUSSION
I. Appealability and Contentions on Appeal
The Warden properly appeals from a final order of the superior court made upon the return of a writ of habeas corpus under section 1507. He contends (1) that the superior court erred in granting Sousa’s petition because “some evidence” supports the Board’s decision that Sousa is not yet suitable for parole; (2) that the court erred by ordering briefing on issues that were not raised in Sousa’s petition and then finding against the Warden based on his decision not to address those issues; and (3) that the court erred in limiting the issues open to consideration by the Board in Sousa’s future hearings. But we see the first issue—whether the Board’s decision to deny parole based on the conclusion that Sousa remains a risk or danger to public safety is supported by some evidence in the record—as determinative here. This renders it unnecessary for us to address the other two.
The trial court not having conducted an evidentiary hearing and instead basing its decision on filed pleadings and exhibits, in performing our appellate function we conduct an independent review of the record. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz); In re Smith (2003) 114 Cal.App.4th 343, 360-361 (Smith).)
II. The Legal Framework of Parole Decisions and Judicial Review There of
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 Board’s parole decisions are stated in section 3041 and regulations setting forth very specific considerations that the Board must take into account in determining whether a life prisoner is suitable for parole. (Cal. Code Regs., tit. 15, §§ 2280-2281.)
Further references to the regulations or “Regs.” are to title 15 of the California Code of Regulations.
Under section 3041, subdivision (a), “The board 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 inmate’s 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 2281 of the regulations, which consists of four subdivisions. (Rosenkrantz, supra, 29 Cal.4th at p. 667.) Subdivision (a) 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., § 2281, subd. (a) (Italics added).)
For prisoners convicted of murder and specified attempted murders on or after November 8, 1978, these criteria are set out at section 2402 of the regulations.
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 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.” (Regs., § 2281, 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: [¶] (A) Multiple victims were attacked, injured or killed in the same or separate incidents. [¶] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. [¶] . . . [¶] (D) The offense was carried out in a manner [that] demonstrates an exceptionally callous disregard for human suffering. [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense. [¶] . . . [¶] (3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others. [¶] . . . [¶] (6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail.” (Regs., § 2281, subd. (c).)
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 panel, or the Governor, in the particular case. The Board here found that only one of these circumstances was present: “(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.” (Regs., § 2281, subd. (d).)
Sousa does not assert that any of the other factors favoring suitability as set out in the regulations apply to him or that he was deprived of individualized consideration by the Board having failed to consider all factors tending to show suitability for parole.
While the Board’s 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 (DeLuna).) 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 Board’s discretion, but its decision must reflect an individualized consideration of all the specified criteria and it cannot be arbitrary or capricious. (Scott II, supra, 133 Cal.App.4th at pp. 590-591; citing Rosenkrantz, supra, 29 Cal.4th at p. 677.) “ ‘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, supra, 29 Cal.4th at p. 655, italics added.)
B. Judicial Review
Judicial review of the Board’s 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 Board’s decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the Board’s 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 [Board’s] 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 prisoner’s 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 prisoner’s 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 Board’s decision denying parole “ ‘is not whether some evidence supports the reasons [the Board] cites for denying parole, but whether some evidence indicates a parolee’s 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 parolee’s 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.’ ([Regs.] § 2402, subd. (c)(3)[; § 2281, 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.’ [Citations.]” (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 Board’s “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 p. 658, 664.)
III. Analysis of the Board’s Cited Unsuitability Factors
The circumstances relied on by the Board in its finding against Sousa’s suitability for parole essentially break down into five factors—the nature or gravity of the commitment offenses, Sousa’s “escalating pattern of criminal conduct,” his asserted “unstable social history” as reflected by his early criminality, his past failures despite society’s attempts to correct his criminality, and his unsatisfactory institutional behavior as reflected by his disciplinary violations, especially the last one for theft so near in time to the hearing. We analyze these circumstances in turn, keeping in mind that it is the inmate’s threat to public safety that must be at the core of any unsuitability determination by the Board.
A. The Commitment Offenses
Regarding the commitment offenses, the Board specifically cited or found that the crimes were carried out “in an especially cruel and callous” and “calculated” manner; that multiple victims were involved; that the motive for the crimes was “inexplicable;” and that the crimes were committed in a manner that showed that Sousa had “no respect for laws and rules established to protect our society.” Except for the last one, these factors directly derive from section 2281, subdivision (c), of the regulations, which, as we have said, provides that a commitment offense tends to show unsuitability if the prisoner committed it in an “especially heinous, atrocious or cruel manner.” (Regs., § 2281, subd. (c)(1).)
The Board in this case did not rely solely on the gravity of the commitment offenses in denying parole. But even so, as our Supreme Court has explained, “an unsuitability determination [based on the commitment offense] must be predicated on ‘some evidence that the particular circumstances of [the inmate’s] 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.’ ([Dannenberg, ] supra, 34 Cal.4th at p. 1098.)” (Scott II, supra, 133 Cal.App.4th at p. 598.) A life term offense underlying an indeterminate sentence must accordingly be “particularly egregious” to justify the denial of a parole date. (Rosenkrantz, supra, 29 Cal.4th at p. 683.) In this context, “particularly egregious” is understood to mean that there is violence or viciousness beyond what is “minimally necessary” for a conviction. (Dannenberg, supra, 34 Cal.4th at p. 1095.)
Moreover, “[e]stablishing that the commitment offense involved some elements more than minimally necessary to sustain a conviction is [but] a step on the path of evaluating a prisoner’s current dangerousness, but it is not the final step under the regulations. Due process affords an inmate ‘an individualized consideration of all relevant factors.’ ([Rosenkrantz], supra, 29 Cal.4th at p. 655.)” (Tripp, supra, 150 Cal.App.4th at p. 319.) “Under the regulations applicable to evaluating an inmate’s current dangerousness, the viciousness of the commitment offense must be balanced against the passage of time and any evidence of an inmate’s rehabilitation.” (Id. at p. 320.)
Thus, our deferential standard of review, which requires us to credit the Board’s findings if they are supported by a modicum of evidence, does not mean that the fact that there is a modicum of evidence that a commitment offense was carried out in an “especially cruel and callous” or “calculating” manner, or that it had multiple victims or that its motive was “inexplicable” will eternally provide adequate support for a decision that a prisoner is unsuitable for parole. Indeed, in the wake of the California Supreme Court’s decision in Dannenberg, the courts of appeal have elaborated on the critical distinction between the finding of the gravityof the commitment offense and the nexus that links that finding to the Board s conclusion that the prisoner currently poses an unreasonable risk of danger to society if released. (Scott II, supra, 133 Cal.App.4th at p. 595; Elkins, supra, 144 Cal.App.4th at p. 496; In re Burdan (2008) 161 Cal.App.4th 14; In re Singler (2008) 161 Cal.App.4th 281.)
We note that this analysis in parole board cases was also recently endorsed in In re Singler, supra, 161 Cal.App.4th 281. In that case, a panel of the Third District Court of Appeal first summarily denied Singler’s petition for a writ of habeas corpus that challenged the Board’s denial of parole. In doing so, the court “strictly construed the California Supreme Court’s holding in [Rosenkrantz, supra, ] as compelling [the court] to deny the petition.” (Id. at p. 286.) The Supreme Court then granted Singler’s petition for review and transferred the matter back to the court of appeal with directions to “vacate [the] denial of the petition and to order the Board to show cause why it ‘did not abuse its discretion and violate due process in finding [Singler] unsuitable for parole in June 2006, and why [Singler] remains a danger to public safety. (See Pen. Code, § 3041; [Rosenkrantz, supra,] 29 Cal.4th [at p.] 683; [Elkins, supra, ] (144 Cal.App.4th [at pp.] 496-498; [Lee, supra, ] 143 Cal.App.4th [at p.] 1408; [Scott II, supra, ] 133 Cal.App.4th [at pp.] 594-595.)’ ” (Id. at p. 286.) The court of appeal then concluded that because of its citation to Elkins, Lee, and Scott in its directions on transfer and notwithstanding its holding in Rosenkrantz, the Supreme Court “has endorsed subsequent Court of Appeal decisions that give courts greater leeway in reviewing the Board’s determination that an inmate remains a danger to public safety.” (Id. at p. 287.) Further concluding that the Supreme Court was of the view that the court of appeal’s former construction of Rosenkrantz was too narrow and too deferential to the Board, and that Elkins, Lee, and Scott are not inconsistent with Rosenkrantz, the court of appeal in Singler ultimately reversed the Board’s decision denying parole, “applying the judicial gloss that Scott, Elkins, and Lee placed on the standard of review articulated in Rosenkrantz,” and finding that the Board’s decision to deny parole was not supported by the evidence presented at the hearing. (Id. at p. 301.)
We analyze the Board’s conclusions regarding Sousa’s commitment offenses with this legal backdrop in mind, even though the Board did not rely solely on the commitment offenses in denying parole here. Doing so requires that we view the commitment offenses in context with the other cited factors in denying parole to assess whether the decision that Sousa remains a threat to public safety is supported by some evidence. In performing this assessment here, we first ascertain whether some evidence supports the Board’s five findings with regard to the offense. If the findings are so supported, we then consider them in context with the other cited factors of which there is also some evidence. Together, this evidence must support the Board’s ultimate conclusion that the inmate currently poses an unreasonable risk of danger to society if released. (Elkins, supra, 144 Cal.App.4th at pp. 495-502; Lee, supra, 143 Cal.App.4th at pp. 1407-1409.)
The California Supreme Court currently has on review at least five cases that involve the proper scope of judicial review in parole cases. The first case is In re Lawrence [S154018, review granted September 19, 2007] in which the issue presented as reflected on the Court’s website is “In making parole suitability determinations for life prisoners, to what extent should the Board of Parole Hearings, under Penal Code section 3041, and the Governor, under [a]rticle V, section 8(b) of the California Constitution and Penal Code section 3041.2, consider the prisoner’s current dangerousness, and at what point, if ever, is the gravity of the commitment offense and prior criminality insufficient to deny parole when the prisoner otherwise appears rehabilitated?” Another case is In re Shaputis [S155872, review granted October 24, 2007] in which the issues presented include: “(1) In assessing whether ‘some evidence’ supports a decision by the Governor to deny parole, is the inquiry limited to whether the reasons stated have a factual basis or should a reviewing court also examine whether the evidence supports a finding that the inmate presents an unreasonable current risk of danger to the public? (2) When a reviewing court determines that a gubernatorial parole decision is not supported by sufficient evidence, should it remand the matter to the executive branch to proceed in accordance with due process, or should it order the inmate’s immediate release?” See also In re Cooper [S155130, review granted October 24, 2007]; In re Jacobson [S156416, review granted December 12, 2007]; and In re Dannenberg [S158880, review granted February 13, 2008]. (See http://appellatecases.courtinfo.ca.gov.)
In order to support the Board’s finding that Sousa committed the life crimes in an “especially heinous, atrocious or cruel manner,” it was necessary for the Board to cite to aggravating facts beyond the minimum necessary for a conviction under section 209, subdivision (b)(1), kidnap for robbery. (See also CALJIC No. 9.54.) Under this section, “[a]ny person who kidnaps or carries away any individual to commit robbery, . . . shall be punished by imprisonment in the state prison for life with the possibility of parole.” (§ 209, subd. (b)(1).) Kidnapping is defined in section 207 as “[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person . . . into another part of the same county, is guilty of kidnapping.” (§ 207, subd. (a).) Robbery is defined in section 211 as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (See also CALJIC No. 954.) We conclude that there is some evidence to support one of the Board’s findings that Sousa’s commitment offenses were more aggravated than what was the minimum necessary to sustain convictions for these crimes.
The Board relied on the fact that there were two victims attacked in separate incidents. Sousa does not dispute this fact. But he argues that the aggravating effect of the fact has been neutralized because he was separately sentenced for each of the two counts of kidnap for robbery. Regardless of Sousa’s sentence and the time that has passed since his commission of the crime, however, the Board was entitled—and even bound—to consider that multiple victims of his life crimes tends to show the heinousness of the crime and thus favors unsuitability for parole by statute and regulation. (§ 3041, subd. (a); Regs., § 2281, subd. (c)(1)(A).)
Further with regard to the commitment offenses, the Board stated that they were carried out in an especially “cruel and callous” and “uncaring” manner in that the victims were threatened with their lives, which demonstrated that Sousa had no respect for “another person’s feelings” and he also “had no regard for personal property.” We conclude that although these characterizations of the crimes were intended to invoke section 2281, subdivision (c)(1)(D) (the offense was “carried out in a manner which demonstrates an exceptionally callous disregard for human suffering”), the verbal threats made by Sousa to each victim, in isolation from the use of the gun, were simply a means by which Sousa and his accomplice were able to accomplish the kidnapping and robbery: The threats instilled fear in the victims, who then submitted to their demands. The fact of the verbal threats thus satisfied an element of the offenses only minimally necessary to sustain convictions, but did not further aggravate the crimes. And other than that there were two victims, the Board cited nothing about the manner in which the life crimes were committed that made them “especially heinous, atrocious or cruel,” under section 2281, subdivision (c), of the regulations. (Italics added.) That the crimes demonstrated a disregard for personal property or that they were committed in an “uncaring” manner does not elevate the offenses to this level of egregiousness as set out in the regulations.
And, like the trial court, we further conclude that all criminal actions tend to show that the perpetrator has no respect for rules and laws established to protect society. That is exactly what defines the actions as criminal—they violate the law. The fact that Sousa’s life crimes displayed a lack of respect for society’s rules and laws does not escalate or aggravate the crimes beyond what was minimally necessary to sustain convictions or demonstrate their particular egregiousness.
We also conclude that there is no evidentiary support in the record for the Board’s finding that the crimes were carried out in a “calculated” manner. This expression invokes section 2281, subdivision (c)(1)(B), which provides that an offense may be especially heinous, atrocious, or cruel if it was carried out “in a dispassionate and calculated manner, such as an execution-style murder.” The life crimes here, as terrible as they were, are hardly on the order of an execution style murder. No one was physically harmed. And the evidence about the crimes that appears in the record suggests only that they were committed on the fly, with the perpetrators reacting to the situation as it developed, with little or no advance planning. This sort of incident simply cannot be described as having been carried out in a “calculated” manner, which denotes something planned or contrived to accomplish an intended purpose.
We further conclude, as did the trial court, that the motive for the crimes, which was to obtain money, is not “inexplicable,” such that the offenses can be said to have been committed in an “especially heinous, atrocious or cruel manner.” (Regs., § 2281, subd. (c)(1).) To intend to commit robbery is to do no more than what is minimally necessary to satisfy an element of kidnap for robbery. This motive therefore does not elevate Sousa’s actions, which were for the felonious but explicable and successful purpose of obtaining money, beyond what was minimally necessary to sustain convictions for those offenses.
We thus conclude that with regard to the commitment offenses, there is evidence that multiple victims were attacked by the use of the gun. But neither the verbal threats nor the material motive for the crimes nor the manner in which they were committed are some evidence of aggravating factors beyond what was minimally necessary to sustain convictions for kidnap for robbery—the commitment offenses in this case.
B. Criminal History
The Board specifically cited Sousa’s “escalating pattern of criminal conduct” as a factor in its determination that he was not yet suitable for parole. The record does indeed support that Sousa began his criminal career as a juvenile with simple burglaries and ended up serving life terms for committing two kidnaps for robbery. Although there is not a specific unsuitability factor in the regulations into which this cited fact neatly fits, the Board acted well within its discretion in considering this fact, though over 20 years old and immutable, to favor nonsuitability. The specifically enumerated factors are not exclusive and the Board is directed to consider “[a]ll relevant, reliable information available to the panel.” (Regs., § 2281, subd. (b).) Moreover, any prior criminal conduct, whether violent or nonviolent, may be relevant to the Board in its discretion and thus may be properly considered in the suitability determination. (Regs., § 2281, subd. (b).)
C. Previous Parole and Probation Failures
The Board likewise cited that Sousa had failed previous grants of parole and probation and that he had “failed to profit from society’s previous attempts to correct [his] criminality” in support of its decision to deny parole. These facts, though they also occurred over 20 years ago and are similarly immutable, find support in the record and they are relevant to parole suitability.
D. Unstable Social History
The Board cited Sousa’s “involvement in criminality at a very young age” as evidence of an unstable social history, which is a factor favoring unsuitability under section 2281, subdivision (c)(3)—“Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others.” Although it is true that Sousa had engaged in criminal behavior at a young age, this fact relates to Sousa’s criminal history, an unsuitability factor already taken into account, not his relationships with others. Indeed, there is no evidence that Sousa had a history of unstable or tumultuous relationships with others and he even received a positive performance review while incarcerated for his “ability to work with others to complete tasks.” In short, there is not some evidence in the record to support the cited fact that Sousa had an unstable social history.
E. Institutional Behavior
Finally, the Board cited Sousa’s disciplinary violation for theft just seven months before the hearing as support for its decision to deny parole. In doing so, the Board emphasized how this violation showed that Sousa had failed to “demonstrate evidence of positive change” and that he needed additional programming to help him to “maintain self-control” and to “stay out of trouble.” This negative factor certainly finds support in the record. Even Sousa’s written explanation of the incident admitted that he had taken work boots and then had lied about it when confronted by a correctional officer. Sousa was later found “guilty” of “theft” for this action and he received his thirteenth disciplinary violation. His prior violations, though much earlier in time, included some for using, possessing, and trafficking illegal drugs while in prison, which are very serious violations. And, in 1988, Sousa was even convicted of possessing marijuana in state prison in violation of section 4573.6, for which he received an additional prison sentence.
A prisoner’s participation in “serious misconduct in prison or jail” tends to establish unsuitability for parole under section 2281, subdivision (c)(6). The Board was therefore amply justified in relying so resoundingly on Sousa’s recent violation for theft in denying parole.
F. Conclusion of “Some Evidence” Review and Nexus to Public Safety
We have concluded that as to some of the unsuitability factors cited by the Board—one aspect of Sousa’s commitment offenses, his criminal history, his escalating pattern of criminal conduct, his previous probation and parole failures, and his negative institutional behavior—there is some evidence in the record. As to other aspects of the commitment offenses and Sousa’s asserted unstable social history, we conclude that these factors are not supported by the record.
As to the cited factors that find evidentiary support, we further conclude that these factors in this particular case combine to establish some evidence in support of the Board’s ultimate decision—that Sousa’s release at this time would currently endanger public safety. There is the required nexus between those Board findings that are supported and its conclusion that Sousa remains a risk to society if released, notably that finding concerning Sousa’s more recent institutional behavior, a factor that demonstrates that more rehabilitative efforts are required to warrant his safe release. This factor is not static or immutable and it is unrelated to the commitment offense per se.
Moreover, based on the Board’s emphasis on Sousa’s disciplinary violation and the effect that this violation obviously had on the ultimate finding of parole unsuitability, it is not equivocal what the Board would have decided in the absence of the cited factors that lack evidentiary support. Accordingly, we need not remand to the Board for a new determination in light of our conclusions about the unsupported factors.
Given the deferential scope of our judicial review here, and based on the foregoing determinations, we conclude that the trial court erred in granting Sousa’s petition and in directing the Board to conduct a new hearing.
This result makes it unnecessary for us to address or resolve the Warden’s other contentions.
DISPOSITION
The order granting Sousa’s habeas petition is reversed and the Board’s 2004 decision denying parole is reinstated.
WE CONCUR: Mihara, Acting P.J., McAdams, J.