Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. CR76417, HC17675
McDONALD, Acting P. J.
Petition for writ of habeas corpus after the Board of Parole Hearings found petitioner unsuitable for parole. Petition denied.
In 1986, petitioner Rufus Thompkins killed his wife (Emma) and wounded her boyfriend. In 1988, a jury convicted Thompkins of the first degree murder of his wife, assault with a deadly weapon on her boyfriend, and burglary. Thompkins was sentenced to 27 years to life on the murder count, and concurrent terms on the remaining counts. Thompkins, 52 years old, has remained in prison for the past 19 years and has largely avoided serious disciplinary actions while incarcerated. The Board of Parole Hearings (BPH) found him unsuitable for parole at several hearings, the most recent of which was in 2006. The denial of parole challenged by this petition for writ of habeas corpus was based on BPH's conclusion that several factors showed Thompkins was unsuitable for parole.
Thompkins asserts BPH's conclusion has no evidentiary support, and therefore violates his due process right to parole. He argues the BPH's conclusion was improperly based solely on the circumstances of his offense and there is no evidence he currently poses a risk of danger if released on parole.
I
FACTS
A. The Offense
Approximately three months before the murder, Thompkins and Emma separated because Emma wanted a divorce. During the separation, Thompkins stalked Emma, parking outside her home, following her from place to place, including into department stores, and continuously called her on the telephone.
Emma wanted a divorce because she feared Thompkins would kill the whole family. Thompkins had beaten her on numerous prior occasions, including one beating that split her lip and required stitches, and had threatened her with a knife at a party.
Thompkins made several threats to Emma's life prior to the murder, including telling their 12-year-old son (Ray) that Thompkins would kill Emma if he caught her with another man and "was ready to go to jail for what he might have to do . . . ." Thompkins also discussed his marital problems with his brother-in-law and friend Mr. Hampton, telling Hampton that he was lifting weights to prepare himself to "deal physically with anybody who got in the way of his attempts to 'get Emma back.' " Thompkins told Hampton "if [Thompkins] couldn't have Emma nobody else could have her either."
On January 29, 1986, Battle was with Emma at her apartment together with Ray and Thompkins's one-year-old grandchild. Thompkins drove to Emma's apartment and parked next to Battle's car. Thompkins waited outside the apartment for about 30 minutes before knocking on the door. Ray answered the door, stepped outside, and told Thompkins that Battle was inside with Emma. Ray told Thompkins to wait outside but he followed Ray to Emma's closed bedroom door. After Ray announced Thompkins's presence through the closed door, Thompkins pushed Ray aside, opened the door, and found Emma and Battle together in bed. After an exchange of words, Battle started to get up. Thompkins then pulled a gun from his waistband, pulled back the hammer, and fired one shot at Emma, striking her. As Emma fell, Thompkins turned and fired one shot at Battle, striking him. Ray looked into the bedroom as Thompkins shot Battle, and saw Thompkins turn and shoot Emma a second time. Thompkins then fled. Emma died from a shot to the heart, and Battle suffered significant injury.
One hour later, after disposing of the gun, Thompkins flagged down a patrol car and surrendered. When police told him Emma was dead, he replied, "Why did she make me do it?" Thompkins later told the probation department that Emma was "using [Battle] against me."
Thompkins's defense claimed he went to the house to exchange a television and had no intent to kill anyone. He claimed he became upset when he overheard Emma and Battle engaged in lovemaking, and he entered the bedroom to confront them. Thompkins claimed he saw Battle make a quick move and saw Emma reaching for a jewelry box, which Thompkins interpreted as threatening, so he shot Battle and then shot Emma.
B. Thompkins's Criminal Background
Thompkins had no prior convictions.
C. Thompkins's Performance in Prison
Thompkins's record during his incarceration was good. He has received one major disciplinary citation (for possessing drugs) and one minor citation for conduct directed at prison staff, but has been discipline free since 1996. He has participated in anger management classes and has a good work history while incarcerated.
D. Psychological Evaluation
The BPH's primary concern appears to have been that Thompkins lacked sufficient insight into his crimes to ameliorate the danger that he might repeat his violence. The BPH believed Thompkins continued to minimize and rationalize his criminal conduct by denying full culpability and instead continued to ascribe partial responsibility for his lethal violence to the victims. Because of this concern, the BPH directed the psychological examiner to focus on Thompkins's " 'insight into causative factors of [the] crime,' " and his " 'Minimization of crime--does the inmate downplay his actions?' " in the examiner's report prepared for submission at the 2006 parole suitability hearing.
The examiner's 2006 report noted Thompkins's version of the crime remained "generally consistent with versions [Thompkins gave] to previous psychological examiners, although he does dispute some details in the Probation Officer's Report. For example, he disputes that prior to the commitment offense there was any domestic violence, or that he ever made threats to anyone about doing harm to his wife." Thompkins also cited the various stresses he was experiencing from a variety of transitions he was experiencing (e.g. his separation from the military for "political" reasons; his separation from Emma and pending divorce; his homelessness) as causative factors.
Thompkins's description of the crime was that, when he entered the bedroom and found his wife and Battle together in bed, " 'everything happened at once.' [Thompkins] says [Emma] got up and went to the dresser, and that [Battle] made a move as if reaching for a gun . . . and that at that moment he thought that his wife and [Battle] were trying to get weapons to use against him, and so he shot them." When the examiner asked why he entered the apartment armed with a gun, Thompkins claimed he carried it with him everywhere to prevent it from again being stolen from his car. When the examiner asked why he believed the crime had occurred, Thompkins stated, "When I seen what I seen, it was more than I could handle. My wife didn't give me enough time to handle the whole situation." When asked whether Thompkins thought it may have been different had he not been armed when entering the bedroom, Thompkins stated he "probably [would] have gotten shot by them in that case, since he believes that they were going for weapons." The examiner concluded Thompkins had "some insight into the causative factors of the crime" and his potential for violence was low "in comparison with the average inmate" and "[w]ithin a controlled setting."
II
HISTORY OF PROCEEDINGS
A. The Prior BPH Proceedings
Thompkins was apparently first considered for parole in September 2002, and again in 2005. Parole was denied on those prior occasions.
B. The Present Proceeding
At the 2006 parole hearing, the BPH concluded Thompkins was not suitable for parole because he posed "an unreasonable risk of danger to society or a threat to public safety if released from prison." The BPH cited the circumstances of the crime, together with his insufficient insight and remorse, to support its conclusion Thompkins posed an unreasonable risk to society. The BPH found the commitment offense was particularly cruel and callous because Thompkins attacked multiple persons, who were in a particularly vulnerable position, in the presence of and endangering his son and grandchild, and the motive was trivial in comparison to the harm inflicted considering Thompkins acted out of jealousy rather than impulse. Additionally, the BPH found Thompkins lacked sufficient insight into and remorse regarding his responsibility for the crimes, and instead continued to minimize his responsibility for the crimes; and until Thompkins fully understands and accepts unalloyed responsibility for his actions, he would pose an unreasonable risk to public safety if released on parole.
The Habeas Proceedings
Thompkins petitioned the San Diego County Superior Court for a writ of habeas corpus alleging the BPH violated his due process rights because its unsuitability determination was not supported by the evidence and was therefore arbitrary and capricious. The court denied the writ, concluding the BPH's decision was supported by some evidence.
Thompkins then petitioned this court for a writ of habeas corpus. We issued an order to show cause and the People filed a return. Thompkins's petition asserts the BPH's decision to deny parole violated due process because its conclusion that he posed an unreasonable risk of danger was based on the immutable facts of his offense and was contrary to other reliable evidence that he was not currently dangerous.
III
LEGAL STANDARDS
A. The Parole Decision
The decision whether to grant parole is a subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a number of factors, some objective, identified in Penal Code section 3041 and the BPH's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) In making the suitability determination, the BPH must consider "[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b); hereafter, reference to section 2042 refers to the regulations), such as the nature of the commitment offense including behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude towards the crime; and parole plans. (§ 2402, subd. (b).) The circumstances tending to show unsuitability for parole include: the inmate (1) committed the offense in a particularly heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (§ 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (Id. at subd. (b).)
Factors supporting the finding that the crime was committed "in an especially heinous, atrocious or cruel manner" (§ 2402, subd. (c)(1)), include the following: (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; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.
Circumstances tending to show suitability for parole include: the inmate (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) 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) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (§ 2402, subd. (d).)
These criteria 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 [BPH]." (Rosenkrantz, supra, 29 Cal.4th at p. 679; § 2402, subds. (c), (d).) Thus, the endeavor is "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, at p. 655.) Because parole unsuitability factors need only be found by a preponderance of the evidence, the BPH is free to consider facts apart from those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.)
B. Standard for Judicial Review of Parole Decisions Rosenkrantz
In Rosenkrantz, the California Supreme Court addressed the standard the court must apply when reviewing parole decisions by the executive branch. The court first held that "the judicial branch is authorized to review the factual basis of a decision of the [BPH] denying parole in order 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 [BPH] supports the decision to deny parole, based on the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
The some evidence standard is extremely deferential and requires "[o]nly a modicum of evidence." (Rosenkrantz, supra, 29 Cal.4th at p. 677.) A court may not vacate an administrative decision subject to the some evidence review simply because it disagrees with the assessment of the BPH. (Id. at p. 679.) Instead, the decision must be "devoid of a factual basis" to be overturned. (Id. at p. 658.) Because judicial review of a parole denial is to ensure that a decision is not arbitrary and capricious, thereby depriving the prisoner of due process of law, "the court may inquire only whether some evidence in the record before the [BPH] supports the decision to deny parole, based upon the factors specified by statute and regulation." (Id. at pp. 657-658.)
The discretion over parole suitability determinations, although broad, is not absolute. (In re Scott (2004) 119 Cal.App.4th 871, 884.) Rosenkrantz explained "that the judicial branch is authorized to review the factual basis of a decision of the [BPH] denying parole in order 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 [BPH] supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the [BPH] to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) Thus, the extremely deferential standard, although vesting in the BPH the power to resolve evidentiary conflicts and assign the weight to be given to the evidence (id. at p. 677), is not the equivalent of judicial abdication, because the court must be satisfied the evidence substantiates the ultimate conclusion that the prisoner's release currently poses an unreasonable risk of danger to the public. (In re Lee (2006) 143 Cal.App.4th 1400, 1408 (Lee).) It violates a prisoner's right to due process for the BPH to attach significance to evidence that forewarns no danger to the public or relies on an unsupported conclusion. (See, e.g., In re DeLuna (2005) 126 Cal.App.4th 585, 597 [Board of Prison Terms concluded, contrary to psychological evaluations, that inmate needed therapy, and faulted inmate facing deportation for failing to learn English]; In re Scott (2005) 133 Cal.App.4th 573, 597-603 (Scott) [Governor misconceived inmate's history of violent crime and nature of the commitment offense]; Lee, supra, 143 Cal.App.4th at pp. 1411-1414 [Governor overstated seriousness of commitment offense and improperly faulted inmate for late acceptance of responsibility].)
The Scott/Lee Application of Rosenkrantz
In Scott and Lee, the courts sought to reconcile Rosenkrantz's deferential some evidence standard with the Supreme Court's commensurate recognition that two other principles must also guide appellate review of a parole decision: the inmate has a liberty interest in the hope for parole, and the central inquiry under the statutory scheme must remain focused on whether the inmate would currently pose a danger to society if released on parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 654-655, 683.) In Scott and Lee, the courts sought to apply Rosenkrantz's standards where the sole reason for denying parole was that the circumstances of the offense involved conduct above the minimum necessary to commit the offense. In Scott, the court cautioned, where the sole basis for denying parole is that the gravity of the offense showed the inmate posed a current danger if released, the test to be applied "must be properly understood" to encompass a recognition that "[t]he commitment offense is one of only two factors indicative of unsuitability a prisoner cannot change (the other being his 'Previous Record of Violence'). Reliance on such an immutable factor 'without regard to or consideration of subsequent circumstances' may be unfair [citation], and 'runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation.' [Citation.] The commitment offense can negate suitability only if circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison. Yet, the predictive value of the commitment offense may be very questionable after a long period of time. [Citation.] Thus, denial of release solely on the basis of the gravity of the commitment offense warrants especially close scrutiny" on appeal. (Scott, supra, 133 Cal.App.4th at pp. 594-595, italics added, fns. omitted.) The Lee court, also seeking to apply Rosenkrantz's test, noted evidence that a commitment offense involved conduct above the minimum necessary to commit the offense is not the end of the inquiry because such evidence "does not necessarily equate to some evidence the [inmate's] release [on parole] unreasonably endangers public safety." (Lee, supra, 143 Cal.App.4th at p. 1409, fn. omitted.) Lee also echoed Scott's sentiments when Lee confirmed the lengthy passage of time in its case made the "crimes have little, if any, predictive value for future criminality." (Lee, at p. 1412.)
Although both Scott and Lee examined decisions citing one factor in addition to the circumstances of the offense, those courts found no evidentiary support for the added reason. (Scott, supra, 133 Cal.App.4th at p. 603; Lee, supra, 143 Cal.App.4th at p. 1414.)
Rosenkrantz, explaining why the nature of the offense must "involve particularly egregious acts beyond the minimum necessary to sustain a conviction for second degree murder," stated, "In some circumstances, a denial of parole based upon the nature of the offense alone might rise to the level of a due process violation--for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .' [Citation.] 'The [BPH's] authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate's current or past offenses should not operate so as to swallow the rule that parole is 'normally' to be granted. . . . [¶] Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.' [Quoting In re Ramirez (2001) 94 Cal.App.4th 549, 570.]" (Rosenkrantz, supra, at p. 683, italics added; accord, In re Dannenberg (2005) 34 Cal.4th 1061, 1094-1095.)
The federal courts have also recognized the diminishing value of the circumstances of the offense as it recedes into history. Although it is true "the circumstances of the crime and motivation for it may indicate a petitioner's instability, cruelty, impulsiveness, violent tendencies and the like . . ., after fifteen or so years in the caldron of prison life, not exactly an ideal therapeutic environment to say the least, and after repeated demonstrations that despite the recognized hardships of prison, this petitioner does not possess those attributes, the predictive ability of the circumstances of the crime is near zero." (Irons v. Warden (E.D. Cal. 2005) 358 F.Supp.2d 936, 947, fn.2, rev'd Irons v. Carey (9th Cir. 2007) 505 F.3d 846.)
Other courts have agreed the appropriate inquiry focuses not on whether a reason given by the BPH finds evidentiary support, but instead on whether the evidence supports the conclusion of dangerousness. (See In re Tripp (2007) 150 Cal.App.4th 306, 313 [" 'Only a modicum of evidence is required.' . . . On the other hand, the evidence must substantiate the ultimate conclusion that the prisoner's release currently poses an unreasonable risk of danger to the public. [Citations.] It violates a prisoner's right to due process when the Board or Governor attaches significance to evidence that forewarns no danger to the public or relies on an unsupported conclusion."]; In re Barker (2007) 151 Cal.App.4th 346, 366 [same].) Additionally, other courts have declined to uphold a denial of parole when the sole cited basis for finding current dangerousness was the commitment offense where such offense was of increasingly ancient vintage and unaccompanied by more recent manifestations of continued antisocial tendencies. As articulated by the court in In re Elkins (2006) 144 Cal.App.4th 475, 498-499, "[t]he commitment offense . . . is an unsuitability factor that is immutable and whose predictive value 'may be very questionable after a long period of time [citation].' [Citing Scott, supra, 133 Cal.App.4th at p. 595.] We have also noted, as has our Supreme Court, strong legal and scientific support that 'predictions of future dangerousness are exceedingly unreliable,' even where the passage of time is not a factor and the assessment is made by an expert. [Citation.] Reliance on an immutable factor, without regard to or consideration of subsequent circumstances, may be unfair, run contrary to the rehabilitative goals espoused by the prison system, and result in a due process violation. [Citation.]"
Singler
The court in In re Singler (2008) 161 Cal.App.4th 281 (Singler) examined Rosenkrantz's deferential standard of judicial review in light of the construction articulated by the Scott/Lee/Elkins line of cases and distilled a slightly modified test for judicial review of a denial of parole in those limited cases where the sole articulated ground for denying parole consisted of the facts of the offense. Singler first noted that, when it originally considered the inmate's writ petition challenging the BPH's denial of parole, the court summarily denied the writ petition because it interpreted Rosenkrantz's deferential standard of review as conferring on the BPH "great, indeed almost unlimited, discretion" to predict future dangerousness (Singler, at p. 285) and, under this strict interpretation of Rosenkrantz, the Singler court originally believed it was constrained to affirm the denial of parole as long as there was any evidence the commitment offense involved any conduct beyond the minimum necessary to sustain a conviction for second degree murder. (Singler, at pp. 285-286.) However, Singler then noted the Supreme Court subsequently granted Singler's petition for reviewand transferred the matter back to the appellate court 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 [the inmate] unsuitable for parole . . . and why [the inmate] remains a danger to public safety,' " followed immediately by citations to the specific pages of the Scott, Lee, and Elkins cases construing Rosenkrantz in the manner discussed above. (Singler, at p. 286.)
The Singler court, noting its original disposition was reached based on a strict construction of Rosenkrantz's "great deference" standard, stated that "[i]t appears, however, that in granting review and transferring the matter back to us for reconsideration in light of additional authorities, the California Supreme Court believes we construed the standard of review articulated in Rosenkrantz too narrowly and were too deferential to the Board's finding. We reach this conclusion because of the specific citations to authority included in the Supreme Court's order, i.e., authorities interpreting Rosenkrantz in a manner that appears to give courts greater leeway in reviewing the Board's finding that an inmate remains a danger to public safety" (Singler, supra, 161 Cal.App.4th at p. 299), and that "the Supreme Court's order . . . indicates to us the Supreme Court has endorsed subsequent Court of Appeal decisions that give courts greater leeway in reviewing the Board's determination . . . ." (Id. at p. 287.)
Singler's review of the analysis contained in the passages in Scott, Lee, and Elkins cited in the Supreme Court's remand order led Singler to conclude these cases applied a "judicial gloss" on Rosenkrantz and created a slightly modified approach to judicial review of parole denials based solely on the commitment offense. (Singler, supra, 161 Cal.App.4th at pp. 300-301.) Singler concluded, "[a]s we now understand the test apparently embraced by the California Supreme Court, a court may overturn the Board's denial of parole based solely on the nature of the commitment offense if (1) a significant period of time has passed since the crime, (2) there is uncontroverted evidence of the inmate's rehabilitation, and (3) the crime was not committed in such an especially heinous, atrocious, or cruel manner so as to undermine the evidence that the inmate's rehabilitative efforts demonstrate he no longer would be a danger to society if released on parole." (Id. at p. 301.)
Applying this analysis to the facts presented in Singler, the court concluded a significant amount of time (nearly 25 years) had passed, the other suitability factors uniformly favored parole, and the facts of the crime (although above the minimum necessary to sustain a conviction for second degree murder) were not so " 'especially heinous, atrocious or cruel' [citation] as to undermine the evidence that his rehabilitative efforts demonstrated he no longer would be a danger to public safety if released on parole." (Singler, supra, 161 Cal.App.4th at p. 301.) Accordingly, the Singler court ruled the circumstances of the commitment offense did not provide evidence supporting denial of parole.
Conclusion
We agree that the discretion conferred on the BPH is broad but not absolute, and the Scott/Lee/Elkins construction of Rosenkrantz gives substance to the role of the judiciary to ensure due process is satisfied by closely reviewing the factual basis of a decision finding the inmate's release currently poses an unreasonable risk of danger to the public based solely on the facts of a decades-old offense. Accordingly, where a significant period of time has passed since the crime, we will closely scrutinize the facts of the offense to determine whether it was committed in such an especially heinous, atrocious, or cruel manner such that the facts of the crime, viewed in conjunction with and through the prism of the evidence concerning the inmate's present condition, provide "some evidence in the record" (Rosenkrantz, supra, 29 Cal.4th at p. 658) to support the BPH's conclusion Thompkins would be a danger to society if released on parole.
IV
ANALYSIS
The evidence on many "suitability" factors favored the grant of parole. Thompkins did not have any convictions for violent crimes (either as a juvenile or as an adult) before the commitment offense, and committed the crime during a period marked by significant stress in his life. Thompkins has made realistic plans for release and has marketable skills that can be put to use on release, his age reduced the probability of recidivism, and his record while incarcerated indicates some capacity to function within the law on release. (§ 2402, subd. (d).) The BPH did not suggest the evidence on these considerations militated against parole, and we presume these factors were considered by the BPH in its decision.
The BPH nevertheless found Thompkins posed an unreasonable risk of danger to society because of two principal considerations. First, it found his crime was especially heinous. There is some evidence to support this finding: he attacked multiple victims while they were particularly vulnerable; he killed Emma in front of her 12-year-old son, thus demonstrating an exceptionally callous disregard for the suffering his son experienced from witnessing the violent death of his mother; Thompkins's motive of jealousy appears trivial in relation to the offense; he premeditated the offense and expressed a willingness to kill despite knowing that he would face penal consequences and would inflict sorrow on his children; and there is evidence he had numerous opportunities to abandon his murderous course but nevertheless committed the murder.
The evidence showed Thompkins waited outside the apartment for about 30 minutes before going to the door and knocking, providing him with his first opportunity to reconsider his plan. Second, when Ray answered the door and told Thompkins to wait outside while he got Emma, Thompkins (instead of abandoning his planned confrontation) followed his son to Emma's closed bedroom door and barged in to confront the victims. Finally, even after shooting Emma once, and then firing a shot at Battle, Thompkins could have safely withdrawn, but instead chose to fire a second shot into Emma as their son watched.
However, because a significant period of time (approximately 20 years) has passed between the crime and the parole hearing, we must evaluate whether there is any evidence from which the BPH could have concluded that Thompkins, who had shown himself capable of committing this crime in the past, still retains the potential capacity for violence that would make him a danger to society if released on parole. Although Thompkins committed no other violent offense while imprisoned, there is some evidence from which the BPH could have concluded Thompkins retained remnants of the same character he had in 1986 that facilitated his violence against the victims and could facilitate violence against other members of society. At the time of his 1986 violence, Thompkins sought to excuse or minimize his violence by portraying himself as a victim of circumstances. He claimed he reacted violently because he was provoked by Emma (he told police, "Why did she make me do it?" and later told the probation department that Emma was "using [Battle] against me") and by Emma's and Battle's response to his invasion of the bedroom (Thompkins claimed he thought they were reaching for weapons and acted in self-defense). He further sought to excuse his violence by portraying himself as a victim of circumstance because he reacted in a heat of passion to discovering Emma and Battle in bed together, although there was ample evidence Thompkins was not operating under heat of passion when he killed Emma.
The mitigating impact of a "heat of passion" defense requires both an objective component (adequate provocation) and a subjective component (the killing was actually done while acting under heat of passion). (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) The subjective component contemplates the defendant acted "emotionally rather than rationally . . . [due to] rage, anger, or any other intense emotion (except a desire for revenge)." (1 Witkin, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 217, p. 828.) Thompkins's prior threats against Emma, coupled with the evidence that he spent 30 minutes contemplating his entry into the apartment before arming himself and entering to confront Emma, would permit a trier of fact to conclude his acts were not the product of heat of passion.
There was some evidence from which the BPH could have concluded this same psychological profile remained operative in Thompkins as of 2006. Thompkins told the psychological examiner the various stress he was experiencing from a variety of transitions he was experiencing (e.g. his separation from the military for "political" reasons; his separation from Emma and pending divorce; his homelessness) were principal causative factors, thereby portraying himself as acting under the duress of external circumstances rather than as fully responsible for a premeditated killing. He continued to rationalize carrying his gun to the confrontation as necessary (e.g. to avoid someone stealing it) and continued to adhere to his perception that the shooting was attributable to Emma and Battle, claiming "[Emma] got up and went to the dresser, and that [Battle] made a move as if reaching for a gun . . . and that at that moment he thought that his wife and [Battle] were trying to get weapons to use against him, and so he shot them," and by asserting that the crime occurred because, "When I seen what I seen, it was more than I could handle. My wife didn't give me enough time to handle the whole situation."
Indeed, Thompkins continued to deny any domestic violence or prior threats to his wife's life, thereby attempting to buttress his claim that his violence was the product of impulse from a single traumatic event rather than as the result of jealousy, possessiveness, and a desire for revenge.
The BPH had some evidence from which to conclude Thompkins continued to harbor the perception that violence was excusable or mitigated when directed against persons who committed wrongs against him, and the BPH could conclude that as long as he continued to lack insight into his behavior and continued to minimize his culpability, he continued to pose an unreasonable risk of danger to the public if paroled. Thompkins argues the conclusion of dangerousness is against the weight of the evidence because the same psychological examiner concluded Thompkins posed a "low risk" of violence and had "some" insight into the causative factors behind the crime. However, the examiner concluded Thompkins' risk of violence was low compared to other inmates and in a controlled setting, not that Thompkins posed a low risk of violence compared to unincarcerated persons or would remain a low risk outside of a prison setting. A court "may inquire only whether some evidence in the record before the [BPH] supports the decision to deny parole, based upon the factors specified by statute and regulation" (Rosenkrantz, supra, 29 Cal.4th at p. 658), and this "extremely deferential" standard vests in the BPH the power to resolve evidentiary conflicts and assign the weight to be given to the evidence. (Id. at pp. 665, 679.) The BPH considered the evidence gathered by the psychological examiner, albeit not necessarily all of the conclusions reached by the examiner, and relied on the evidence of Thompkins's continued minimization and rationalization of his conduct for its conclusion that his release currently posed an unreasonable risk of danger to the public. Under the extremely deferential standard that constrains our review, we cannot conclude the BPH's finding was devoid of evidentiary support.
DISPOSITION
The petition is denied.
I CONCUR: McINTYRE, J.
O'Rourke, J., concurring.
I concur in the result. I agree with the majority's conclusion that the record contains some evidence supporting the Board of Parole Hearing's (Board) conclusion that Thompkins poses "an unreasonable risk of danger to society or a threat to public safety if released from prison" and is therefore unsuitable for parole. However, I disagree with the majority's reasoning. As my colleague Justice Haller has recently expressed in the context of a parole suitability determination (In re Viray (2008) ___ Cal.App.4th ___ [2008 D.A.R. 5332] (dis. opn. of Haller, J.)), in reaching its conclusion the majority adopts reasoning of other appellate courts (e.g., In re Singler (2008) 161 Cal.App.4th 281; In re Tripp (2007) 150 Cal.App.4th 306; In re Lee (2006) 143 Cal.App.4th 1400; In re Scott (2005) 133 Cal.App.4th 573) that departs from the extremely deferential standard set forth by the California Supreme Court in In re Rosenkrantz (2002) 29 Cal.4th 616 and In re Dannenberg (2005) 34 Cal.4th 1061. In reviewing the factual basis of the Board's decision to deny parole, this 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 the statute and regulation." (Rosenkrantz, at p. 658, italics added.) Under Rosenkrantz, a court should grant a prisoner's petition if "the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis . . . " (Ibid., italics added.) The court is not to judge the weight of the evidence or balance the various factors considered by the Board. (Id. at p. 677.) Because in this case, there is abundant evidence in the record to support the unsuitability factors relied upon by the Board – the especially heinous nature of Thompkins's crime, and his continued rationalization and minimization of his culpability – Thompkins's petition is properly denied.