*1 Dist., A113370. First Div. Four. Aug. [No. 2007.] In re ALFRED WILLIAM RODERICK on Habeas Corpus.
Counsel Jr., Brown, General, Bill and Edmund G. Lockyer Attorneys Robert R. Graves, Anderson and Jo General, Chief Mary Assistant Attorneys Julie L. Garland, General, Binsacca, Assistant Attorney Anya M. A. Jennifer Neill Blonien, General, and Jessica N. Deputy State of Attorneys Appellant California. Littlefield,
Michael Satris and Margaret under the Court of appointments by Appeal, Alfred William Roderick. Respondent
Opinion
RIVERA, J. Attorney General from a superior court order appeals granting a for writ of petition habeas filed by Alfred William corpus Roderick, who years is now 75 old. The court determined that the superior factors relied officers upon by panel the Board of hearing representing Parole Roderick Hearings denying were not some supported by evidence.1 The court granted Roderick’s and referred the matter back petition to the Board for further review consistent with the court’s ruling. decision, Attorney General us to urges reverse court’s arguing that there is some evidence in the record to each of the factors which Panel relied in denying Roderick We affirm. parole.
I. FACTUAL BACKGROUND A. The Commitment Offense 11, 1986,
On Roderick was April convicted of one count of second degree murder with the use and sentenced to 16 deadly weapon life years man, The murder occurred when prison. Roderick stabbed another Michael Obie, outside aof saloon in Eureka. as summa- According police reports, rized in the officer’s Roderick and Obie probation report, began arguing inside the bar and Roderick him to challenged fight. outside and go door, Obie reportedly as were out the and then hit him punched they going again Obie exited the saloon.2 The altercation continued outside and a few seconds later “it was had been stabbed.” reported [Obie] hearing We will refer to panel officers as the Panel and the Board of Parole *7 Code, 12838.4; Code, (see Hearings (formerly 5075)) the Board of Prison Terms Gov. Pen. § § as the Board. consistently Roderick has fight they maintained that was Obie who started the left bar. facts; Obie additional the following us also discloses record before that Roderick he ascertained the bar when inside Roderick
began harassing Obie’s aunt had arrested who Safeway a security guard the father of was saloon, Obie outside took place During fight for shoplifting. knife, and, ultimately, knife, over struggled the two hunting pulled Roderick Obie in chest. and stabbed of the knife control gained Roderick degree for first Obie on parole the crime. was at the time of was drunk murder. Hearings Parole History
B.
1. Accord- 1995. August date was eligible parole Roderick’s minimum life In the took 1994. hearing initial parole place ingly, behavior in prison for that hearing, evaluation report prepared and other with staff relationship an “marginal,” “average” described as with he which indicates history also sets forth a disciplinary inmates. The report was stabbed and that he marijuana a CDC 1153 for possessing had was assessed cellmate in 1989. Roderick an altercation with his during evaluation released. A psychiatric threat to the if public “moderate” pose self-understanding “demonstrates little states that Roderick in 1994 prepared or his offense previ- factors regarding commitment] about causative [the intoxication” and diagnosed ous offenses.” Roderick was “[a]lcohol disorder,” lifestyle repetitive “reflects which personality “[a]ntisocial a less states that substance abuse.” The report crime “[i]n compounded sobriety, if he maintains his be less dangerous controlled he would setting, No treatment nor guaranteed.” psychiatric but that can not predicted indicated. risk of danger an unreasonable Roderick would pose
The Panel found reasons: released, following articulating and denied parole, if society exhibits a in a manner which carried out (1) commitment offense “was another”; (2) failed the life and suffering callous disregard skill; failed to demonstrate (3) Roderick a marketable develop a controlled CDC 115 possession a recent change; received positive “not substance; totally supportive (4) report psychological to have a that Roderick appeared commented One commissioner release.” misconduct which documents report rules violation “CDC refers A 115” (Cal. Regs., tit. in nature.” Code is not minor of law or to be a violation [that] “believed (a)(3).) subd. § *8 nonchalant, situation, “very indifferent attitude about whole about [his] [his] life history and the crime.” Another commissioner stated: “I’m really puzzled the solution as what can ... do to out of keep [Roderick] [himself] which I prison, don’t think cares much out really about in or of prison.” [he] that, sure, Roderick responded that’s one he would be thing doing.
2. 1997 Roderick’s next occurred in The hearing 1997. life evalua- parole prisoner tion added report new from the nothing to state that previous report except (moderate) of threat degree was “based upon consumption evaluation, alcohol in the instant offense.” The psychological [commitment] however, reflected a fundamental shift in attitude. the crime describing Roderick and “expressed regret” “wished he had handled [the situation] somehow It differently.” that Roderick is attending Alcoholics reports “ ” (AA) and he Anonymous ‘done with drinking forever.’ Roderick is described as having normal intellectual with good insight and functioning disorder, judgment. still Although diagnosed antisocial it is personality described as concludes that “improved.” report Roderick is showing and, released, in his behavior if improvement should be able to maintain the made, gains has if he continues to abstain from especially alcohol. to the According his level of “is report, dangerousness likely to less now than for the inmate.” average
The Panel found Roderick to again pose unreasonable risk the public released, if based stated following reasons: commitment offense callous; was he had an unstable history, social including history offenses; predatory he had failed at previous grants probation terms; and had he had not prior or vocation- prison upgraded educationally he had not ally; sufficiently in and he participated self-help therapy; disorder, with an antisocial diagnosed “but he’s personality improved.” Roderick for Commending his excellent record and for recent disciplinary gains, Panel noted the need for additional in AA and other participation self-help his vocational therapy programming, upgrading skills education, and for free. remaining disciplinary
3. 1999 given hearing another Salient in the life 1999. evaluation for that is information report prepared hearing concerning Roderick’s criminal 28 convictions of 28 history—some over period years, *9 half of the robbery. Roughly armed driving from negligent
ranging violations, or con- drunkenness to Vehicle Code public relate convictions related, and including petty theft crimes are remaining primarily tempt; theft, violent robbery. previous and armed burglary grand forgery, and in 1970 (assault deadly weapon), occurred in 1959 offenses CDC 115 had another that Roderick (armed The also notes robbery). report in first incarcerated orders) which he incurred when (work performance/obey essence, is, as the previous the same the evaluation In other 1986. respects to the of threat degree to be a “moderate and assesses Roderick evaluations however, evaluation, steady reflects if released.” His psychological public time of understands that Roderick now to the gains. According report, could he been sober he been that had drinking, not have the crime should decision, he made was irresponsible. and that the decision have made better the victim’s causing remorseful” “very states that Roderick is The report own The family. this time from his as well as for grief, taking family incarceration, concludes, of years age, and 67 years “after 14 psychologist an extent that he his to such maturity believe this has developed inmate] [I . . . . If . . be an excellent candidate at this time parole, would [f] HD than the average this inmate no more poses danger released to the community citizen.” its reasons following denied listing
The Panel again parole, The commit- danger: an unreasonable risk of conclusion that Roderick posed manner and cruel and callous ment offense was carried out in especially offense; had a trivial in relation to the motive for crime was escalating and an pattern and assaultive behavior record of violence conduct, and and probation parole, criminal had failed grants previous Roderick had failed criminality; not be counted to avoid therefore could skill, and vocation- educationally a marketable failed upgrade to develop self-help therapy in beneficial and had not ally, sufficiently participated for possession had a serious CDC 115 and Roderick programs; which “states evaluation note of the psychological The Panel took marijuana. goes is minimal into his commitment offense [but] insight [Roderick’s] Panel com- The about very things on to some positive [Roderick].”4 say evaluations, and participation excellent work mended Roderick for his however, found, “needs that Roderick It AA and in the life skills program. insight the commitment into state that Roderick’s psychological evaluation does however, “minimal”; additional assessment qualified, is this statement is offense psychological appropriate.” of the offense place development within the structure “his understanding drinking part that his goes then on describe Roderick’s evaluation longer diagnosed as Additionally, no irresponsible. he is behavior was problem, and that his having personality disorder. face, discuss, continued in order therapy understand and with stress in cope a nondestructive manner.” The Panel recommended that Roderick “remain disciplinary-free, upgrade vocationally educationally participate continued self-help therapies programs as become available.” they
4. Roderick’s next hearing was 2001. The life evaluation re- there port—if absent one—is from record. No new psychological for this report prepared under a new hearing; Panel was to protocol, on the rely 1999 evaluation. Panel again declined set date for parole on the ground would an unreasonable pose risk of danger public This safety. was based following factors: The commitment offense manner; was carried out in an cruel especially Roderick had an extensive had prior history criminality, served terms prior and thus had failed prison from profit previous to correct his attempts Roderick had a criminality; well; with alcohol and problem “at some used point” Roderick had marijuana not sufficiently beneficial participated programs; and Roderick’s self-help he believed would a “moderate pose degree “counselor[]” threat found, if released public at this time.” The Panel that Roderick again, “needs face, discuss, understand, continued order to therapy and with stress cope in a nondestructive manner.” hand,
On the other Roderick was commended for his TABE increasing score,5 reviews, for above receiving average and work for exceptional partici- now,” in AA “for a number of and pating years in a class participating on subject sexually transmitted diseases. The Panel gave Roderick his (a first one-year denial new hearing two) in one year instead of and recommended remain free—to come back disciplinary “completely clean”—and continue to in available participate self-help, meaning just AA anything but else that was offered. Significantly, following exchange then took I place: wrote letter to here place they over “[Roderick]: wrote me a (indiscernible), letter back had saying they no self-help self-help (indiscernible) Well, now. opening right we’re Okay. just [f] [Commissioner]: Yeah, telling I you—[f] know that. if [Roderick]: [][] [Commissioner]:—that trying I’m to do that. available—[][] [Roderick]: [][] [Commissioner]:—if anything—[][] Right, We [Roderick]: up. [f] [Commissioner]:—comes know is limited. programming We know that. Okay. [][] [Roderick]: [][] (tests education) The TABE of adult basic score reflects an inmate’s educational achieve (2000) (Frequently ment level. Asked about TABE: Tests of Adult Basic Education Questions 2p. (TABE <http://www.lacnyc.org/resources/adult/assess/tabefaq.pdf> Aug. [as 2007] see, post, FAQ’s); fn. recommending you why we’re that. That’s We understand
[Commissioner]: to you. available [][] [Roderick]: else that’s in AA and anything continue Okay.” Roderick, “Mr. this comment: made commissioner another
Additionally, track. right on the [][]... our opinion, you’re opinion in—In my you’re comers, turned number [|] having to be commended you’re And .track.” right on that our Continue opinion. had which no included the recommendation longer decision
The Panel’s 70 years almost denial that Roderick—then been included in every previous educationally. vocationally old—upgrade 5. *11 the 1999 evaluation report updated the life
For the 2002 hearing, and perfor- Roderick’s work assignments a summary and added report One reviews, activities. self-help and Roderick’s therapy and of mance to a was reduced threat assessment was that Roderick’s significant change Pursuant if released.” community of risk to the degree “moderate to minimal evaluation was prepared new to the new no psychological protocol, hearing. date, com- the Panel again a release Roderick was not
Although given on essen- the Panel relied In denying parole, him for his progress. mended denial, stated, again, and as those for his 2001 the same reasons tially given to in order programming needed “continued and/or self-help therapy that he face, discuss, in a non-destmctive . . . with stress understand and cope note, the most recent that a the Panel observed manner.” On positive no more a 1999) Roderick “was (from stated that evaluation psychological citizen,” offers included that Roderick’s parole plans than the danger average 1993, that home, since Roderick had no “115s” that of both and job and that Roderick above-average reports, work satisfactory had skills, CHANGE, a class on AA, in life and in Project in had participated stated, “we one commissioner “Next year,” transmitted diseases. sexually Roderick, con- you that recommend, disciplinary-free, that remain you Mr. that might programming and/or any self-help therapy tinue to participate with clinicians cooperate and you available you, become come [the] When you [back] new clinical evaluation. of a completion don’t and we be four old years will Board, your psychological] evaluation] want that to be held against you the next Board so we ask for a appearance new eval to be psych I don’t think there completed. will be any problems there. We [1] I want wish just want to make sure you good luck. You’ve done some you have fresh one on pretty good file. . time here. . . [f].. . I’m a little hadn’t disappointed you vocation in this completed term or terms, your but to the prior you’re age now where you’re probably going need really to use that on the outside and would probably just taking up space that would somebody need to learn a really vocational skill. But just continue areas mainly and continue self-help your positive programming. comer, And I think that you’re coming around the moving in the right direction. And some you’ve got more time to do.”
6. 2003 record contains no of the Panel’s transcript decision in 2003. The does, however, record contain a psychological evaluation for the “November 2003 Lifer Calendar.” The evaluation that Roderick reports admitted “freely ato former problem alcohol has dealt with this issue through membership attendance Anonymous Alcoholics meetings.” The report on to state that Roderick goes spoke about circumstances “openly offense, instant and his comments reflect a new sense of into his insight incarceration.” remorseful, According Roderick “is report, fully aware of the effect of his actions on the victim’s family.” report agrees *12 with the 1999 assessment that Roderick “would no more pose than the danger citizen” and he average concludes that has “an low extremely probability recidivism.”
There is a also life prisoner evaluation for the “November 2003 report Calendar.” In that report, Roderick’s threat assessment was reduced again, as concluded Roderick report would “a minimal degree of risk to the pose if released on community this time.” parole was held in
Apparently, hearing December of because in the life evaluation for the report December 2004 prepared calendar was noted: “On following 12/18/03 Roderick attended Subsequent parole #6, consideration denied for 1 hearing year and made the parole [Board] (1) following (2) recommendations: Remain in disciplinary-free, Participate self-help new programs requested evaluation.” psychological 7.
The next in the hearing—resulting parole denial we review here—was held Panel, May in 2005. As evaluation requested psychological updated in 2005. April states there no new information to prepared Primarily, “attended that Roderick does note The report. psychologist add to Management as Anger such prison available groups all the self help a “supportive and that his release Anonymous,” plans provide and Alcoholics is excel- for success environment, inmate Roderick’s prognosis [in which] disorders, and Roderick mental or are no diagnosed personality lent.” There released to states that The report “[i]f of 90 95.6 rating GAF assigned citizen. than the danger average no more community inmate Roderick poses inmate would be factor to violence risk only significant [][]... be 1991). will (which He he drugs stopped alcohol or using Roderick[’s] is thoroughly and he benevolent environment in a very living supportive he would It is very unlikely terrible effects. convinced of alcohol’s concludes, Roderick has inmate everything “[g]iven violent.” The report learned, ‘slowing he has and the fact that years] experienced his age [73 excellent make an due would year, aging, down’ the last during candidate for parole.” for the “December evaluation report
A life prisoner prepared Calendar,” hearing. used for the May report and we it was assume Roderick as (assessing posing from the 2003 report does not differ materially Panel had denied reoffending), risk of states that the a “minimal” Roderick the Panel recommended in December year one free and continue to self-help programs, remain disciplinary participate that, fact, free and continued participate Roderick remained disciplinary in AA. of the commitment the Panel reviewed the circumstances
At the hearing, crime, which summarized police reports. on the relying probation report the two accounts differed account of the incident. Although gave it is uncontradicted fight, who initiated respect physical saloon, Obie who that it was Roderick inside began victim Obie harassing bar, was drunk that Roderick outside the during fight knife pulled *13 a he had inflicted was unaware took and that Roderick when crime place, Roderick’s by occurred. Under questioning wound the time it fatal younger a and much larger out that the was was victim attorney, brought man than Roderick.7 judgment of the is a clinician’s functioning. This global to assessment “GAF’ refers daily living, and is functioning ability carry activities of and out overall level of
individual’s 100-point a The GAF scale is outcomes. planning predicting treatment and useful social, and occu subject’s psychological, a overall level scale that measures “Superior means of 91 to 100 hypothetical continuum. A score functioning on a pational hand, activities, get out of problems never seem functioning range a life’s in wide symptoms.” No many qualities. positive or her sought by out others because of his 17, 2007].) Aug. (<http://psyweb.com/Mdisord/DSM_IV/jsp/Axis_V.jsp> [as wounds,” implying Roderick stabbed knife “multiple Roderick inflicted The dissent states however, record, 290, that post, (Dis. indicates multiple opn., pp. times. the victim The Panel then reviewed Roderick’s extensive criminal record and asked it, it. him about Roderick and stated he had “no excuse for it.” acknowledged The Panel also reviewed his that his had family history: been parents bom, divorced before he was Roderick was raised his grandmother, he did not see his mother until he was that he did not have a father, with his that he relationship school the 11th completed through grade, that he was married for 20 years, that he has two that he daughters, is still ex-wife, close his that he is in close contact with his that he has daughters, nine grandchildren and a great-grandchild on and that way, this prior incarceration he worked as a climber.” mostly “high When asked why, given behavior, that he had a he had in criminal he family job, engaged is all I can tell responded: “Stupid When Panel member commented you.” “[didjn’t it,” that Roderick seem to know just doing Roderick why [he was] admitted, sense, “It don’t make agree you,” I’ll with but he that he admitted was drinking too much during that time and was an alcoholic. Roderick denied habit. any drag released,
The Panel then Roderick’s reviewed If Roderick parole plans. would live with his daughter son-in-law in Eureka. He would work with son-in-law, who a contract $850 and would logger, receiving also month income from per Social These Security. were plans supported letter from Roderick’s daughter where he would and the describing live environment the loving would Roderick also family provide. planned attend AA meetings in Eureka. incarceration,
The Panel also reviewed matters relating that, level of “Medium A.”9 noting custody The Panel recited as of August 2004, Roderick was to the and had assigned yard crew received an “excep- Further, tional” performance was no rating. treatment psychiatric “[t]here no negative discipline.”
The Panel then asked what Roderick been had since 2004. doing August had been from the explained reassigned yard crew to canteen, but the inmates had been “locked the time over complained up all there” and had been out a few he had “only days He stated year.” attended AA time a chance to but he had “every they got go” gone only about four times because locked all the there.” up time over “[w]e’re Roderick stated he had been in AA for 12 years. eighth When asked what the victim, found, bleeding when from “chest wounds” which is consistent *14 chest, statement that the course of Roderick’s in the altercation he “cut” the victim on the and later him. stabbed logging industry, specializing Roderick worked in the in topping redwoods. (Cal. Regs., This is the least restrictive custody prisoner. level of for a life-term Code tit. 3377.2, (a)(16), (b)(3)(C).) subds. § were, difficulty responding, Roderick had “12 ninth steps” steps making it “deals with that prompted he was nervous. When that
explaining “Yeah, I’ll tell amends. Wait minute. making Roderick responded, amends” just think. I’ll tell in you bit I can’t in I’m a little nervous. a second here. you amends had done to make what he I know them all.” When asked a minute. and that family, a letter to victim’s his had written daughter he stated that sister, when jail who was with the victim’s had he spoken [Roderick] said she there, just about it. She “she didn’t much say Roderick was to recite had to When asked say.” That’s all she knew how was. [Obie] where inventory, to take personal “Continue fourth Roderick step responded, taken a “moral if Roderick had admit it.” When asked wrong promptly himself, thinking I’ve been years. “I’ve been in 20 he inventory” replied, [sic\ And wish it didn’t have just happened this know. I you about everyday, I change but can change I can’t what happened that sorry happened. myself.” ex- Roderick training was also discussed.
Roderick’s lack of vocational due “A lot age. that he had not vocation in prison acquired plained into class—get place. if over 50 don’t want to you’re they get you places age.” a trade that don’t want a they They guy taking Then at won’t. [at] Roderick had undertaken remarked on the various jobs The commissioners not his GED school (high on the fact that he had gotten commented prison, on nevertheless scored 12.9 and noted that he diploma), general equivalency Roderick he achieved such a score high TABE.10 When asked how had did but he all the time.” he not know explained “read[s] CHANGE Project what he had learned in The Panel asked Roderick he a drinking problem that he learned had 2003. He responded program that if do something stated that and he learned (and already) you he knew do[, how treat other for what you people should accountable “you a]nd had Roderick Beyond like to be treated yourself.” explanation you’d he “took from the but stated lessons learned articulating program, difficulty on sexually noted Roderick had taken a class all tests.” It was also transmitted diseases. reviewed; there it was noted actions in were disciplinary prison had in more When he why participated
had been none since asked 1993. there,” that over nothing don’t have replied “[t]hey he self-help groups time,” management, he did anger locked all the participate up “[w]e’re before CHANGE Project involved in other get programs and that did not the kitchen working in the up morning he was two “getting because FAQ’s, (TABE reflecting grade level. expressed in a number TABE score is Thus, 2; see, ante, grade level. tested above the 12th fn. *15 So, and—go[ing to in the afternoon. I’d at two in the sleep get up back] tired, I’m I can’t I morning. nowheres. had that for seven go job years.” When if asked he a threat to the he “no posed public, replied threat to nobody.” The Panel then asked “what makes different man you “Well, today than the man that came into and Roderick prison,” responded: I’ve been in years I want to live the rest ... life I can outside. my And I’m not do going nothing got that. ... ... I jeopardize [f] [ft] them, grandkids. I’ve never been around never did see them. And I haven’t either, seen kids . my . . I’m different I’m different than I guy. guy [ft] [ft] that, was 20 I can tell . years you . . I’ve been ago. about all thinking [ft] [ft] this for 20 years for one All done thing. that I’ve and I’m not proud myself.” evaluation,
The Panel then reviewed the favorable 2005 very psychological the conclusion that Roderick including “does not a threat to present society more than the any average citizen.” Additionally, Panel from quoted “ evaluation, the observation that ‘re- including Roderick’s comments ’’ “ flect a incarceration,’ new sense of into his he insight ‘fully ” remorseful and aware of the effect his actions on the victim’s family,’ due and that to his advanced and low risk age factors appropriate release consideration. was,
One Panel then asked members Roderick what it from the apart there,” fact he family had “this out would make commissioner feel comfortable that if released he would not commit another crime. Roderick that he is “not responded into more all crimes. That’s in the committing past for me. Then my age. I’m It’s out of going up my daughter’s place. town. . . . The Police and The Department District Office wouldn’t Attorney’s even know I’m in the as a matter of fact. I’m county, And not to live going forever. And I want to if my I can. And I’m not to do enjoy grandkids going to make them anything think worse of me than what I’ve done already them.”
Then came what to be a critical . . appeared exchange: . “[Commissioner]: Commissioner asked you at the of the questions beginning hearing [Another] were, Well, exact words is all I tell repeatedly your can stupid you. [sic] good that’s not . . . not enough. enough That’s because the issue good [ft] [ft] is whether or we can you to the door and release into give keys you If community. you don’t know answer how in the question, you world can we let out because do all the same over you might thing again. So, the answers are questions And there extremely important. you sit[] Well, [sic], [ft| us is all I I telling you. can tell repeatedly stupid [Roderick]: can’t just believe someone would think a out my age would there guy go
259 Older done 30 ago. do them crimes that I’d years [f] [Commissioner]: and But [|] It might happened. the time. [have] kill all [Roderick]: people people age think that guy my that someone could I that I can’t believe can say 40 there 30 years ago, them crimes I’d done out there and commit would go that to any thought Have real you given . . . years ago. [Commissioner]: [f] Well, thinking been I a lot—I’ve thought type question? [f] [Roderick]: that thinking somebody And can I can’t say, imagine about it for 20 I years. years ago. do I did there 40 something out and like my go would guy age I with you how the issue presented Do see you important [Commissioner]: [f] and getting group been in involved self-help earlier of how weak you’ve what, in the in those programs if you’d partook because know programs you were But today. you be able to answer those past, you might questions If I was working, because were tired from you sleeping [f] [Roderick]: and you were tired from working You what? sleeping, [][] [Commissioner]: to those programs, could have been going fit] were when sleeping you Well, into doing other than I’m not you I don’t know what tell [Roderick]: not I’m Okay, . . some more. . [f] [Roderick]: crimes [Commissioner]: [f] I’m I can’t it and ago, change 30 and 40 things years out there—These going go think I would imagine it I can’t again. you’d going doing sir, I’ll return you, and Thank again, out there do that [f] [Commissioner]: the Chair.”11 He argued district was then attorney permitted speak.
The assistant remorse,” his not understand that had “no real that he still “[did] his rendition of the events Michael and that killing wrong,” Obie statements and the verdict. jury’s inconsistent with the witnesses’ injuries, that his release Roderick had a criminal argued “long history” He the community. an unreasonable risk of danger would pose release, citing positive Defense counsel in favor Roderick’s argued his self-help programs, various completion “Board report,”12 115’s, CDC his lack of recent meetings, any consistent attendance AA (concluding over the last several years evaluations psychological supportive “the for commu for release and that prognosis that Roderick is appropriate between 90 and and his excellent”), his rating is GAF nity living to make She went on plans. income and solid residential stable anticipated feel[ing]s articulate his Roderick does not that Mr. this point: “Perhaps know But it important of the hearing. under the stress thoughts fully and even work above-average reports receive that he does consistently crime had not commitment record that Roderick’s chair noted for the thereafter only years earlier. years ago but occurred 30 prisoner evaluation positive December 2004 life reference to appears This to make above. report, discussed ones.[13] so, excellent And this is a man who shows up doesn’t every day, get trouble, formal, into and even limited self-help that is programming he has to avoid managed since been problems big way he’s in prison.” recess,
After the Panel returned announced its decision. The Panel *17 denied Roderick’s request parole, that he would unreason- pose able risk of to or a threat danger society if public safety released from decision, first, and, The Panel based prison. its on “the commitment offense” on the fact that specifically, once Obie started harassing Roderick “there are a lot of other choices could have made .... could have just [Roderick] [He] left. could just have home. could gone have called But [He] police. [He] Next, that wasn’t choice that made.” the Panel cited Roderick’s [he] 1980, extensive criminal history from and 1952 his failure from “profit society’s -tocorrect his previous attempts Those included criminality. attempts term, Third, county jail, a prior and the Panel prison relied probation.” social “unstable history certainly related to that crimi- [which] nal history but also the abuse of alcohol.” The Panel also that stated manner,” Roderick had in a “programmed limited that he had very “failed to either or upgrade vocationally educationally,” and that he had “not yet sufficiently in beneficial participated self-help.” side,
theOn the Panel remarked fact positive upon the that Roderick had “128(a) 1991,” one only Chrono that was in he counseling back had 115’s, 1993, three only serious CDC one in last that the psychological evaluation was favorable “largely and that he good had supportive,” with a lot of parole plans and an family for work. opportunity however, found, the Panel Ultimately, that “the again, needs to in in participate order to understand and self-help with stress in a cope manner,”14 that, non-destructive and concluded view of the prisoner’s “[i]n history and his lack there’s no program indication participation would behave if differently paroled.” 13 fact, average” “exceptional" ratings In Roderick received “above during for his work 1987, 1990, 1992, following periods: April March to April December December 1991 1993, 1992, 2000, 2000, May May through July February 1994 December 2001 to October 2001, August August 2003 to 2004. 14 deny This stock used phrase to Roderick it Apparently four times. is also (See, 1061, genetically (2005)
used e.g., Dannenberg across the state. In re 34 Cal.4th 417, 1074-1075 Cal.Rptr.3d (Dannenberg); (2002) P.3d re [23 104 In 783] 29 Rosenkrantz 616, 104, (Rosenkrantz); Cal.Rptr.2d (2007) Cal.4th 633 [128 59 P.3d In re Barker 174] 151 346, 570, (Barker); (2006) Cal.App.4th Cal.Rptr.3d 360 re Cal.App.4th In Weider 145 [59 746] 147]; 1318, (2006) 1]; 582 In re Cal.Rptr.3d Cal.App.4th Burns 136 Cal.Rptr.3d [52 1324 [40 (2005) (DeLuna); In re DeLuna Cal.App.4th Cal.Rptr.3d 126 596 re In Scott [24 643] (2004) (Scott Cal.App.4th I); (2002) 119 Cal.Rptr.3d 883 In re [15 Morrall 32] 391]; (2001) Cal.App.4th In re Cal.Rptr.2d [125 Ramirez 381], Cal.Rptr.2d disapproved ground Dannenberg, on another [114 34 Cal.4th at Roderick, that you we recommend simply “Mr. the Panel stated: closing sir. self-help, You need do some really
continue to remain disciplinary-free. institution, then you through if to do in going program And you’re tous feel expect But can’t you do own some books. reading can it on your history citizens your out with law-abiding back sending you comfortable did.” you led the life why you know and this crime if don’t you Corpus C. Petition Habeas Writ of 29, 2005, filed a for writ habeas corpus
On Roderick July petition decision. On October reverse the Panel’s that the court superior requesting 28, 2005, Roderick was held an which evidentiary hearing trial court while prison. examined regarding programs various participation to attend AA meetings he was unable frequently explained *18 which time no inmates dinner after 8:00 after because he would finish p.m., Otherwise, attended all AA meetings leave their cells. were allowed to the life skills and CHANGE Project available. He also described briefly programs. 3, 2005, issued a ruling granting
On November the court superior Panel in by the factors relied Roderick’s that petition, in the record. were not some evidence supported by denying parole reconsideration, that arguing The then filed a motion for Attorney General 3, 2005, since the failed to November court ruling the court should vacate its cause. The court warden and the Board with the order show serve the writ, motion, and filed a return to the this General Attorney granted 2006, 21, an court entered superior Roderick filed a traverse. On March 3, 2005, ruling petition order the November granting reaffirming this timely filed Attorney appeal.15 for writ of habeas General corpus.
II. DISCUSSION A. Scheme Statutory Regulatory and section by Penal Code governed decisions are parole Board’s 15,16 (Cal. tit. 2230 et Code regulations Regs., seq.). §
3041 and Board 1084-1085, 1100; 2003) (9th (Biggs):) A Westlaw Biggs Cir. 334 F.3d 913 pp. v. Terhune this court in which reason up unpublished 25 federal district cases search turned an additional applied deny parole. issued, hearing; eighth had parole Shortly after the trial court’s decision of judicial transcript notice of the again grant petitioner’s request We parole was denied. hearing. that indicated, Code of are to title 15 of the California section references Unless otherwise Regulations. statute, Pursuant the Board “shall set normally release date” one parole date, to the inmate’s year prior minimum release and shall set eligible parole date “in manner that will uniform terms for offenses of similar provide Code, gravity (Pen. and to their to the magnitude threat ....” respect public (a).) of (b) subd. Subdivision Penal Code § section 3041 provides release date must be set “unless determines that the of gravity [the Board] offenses, current convicted offense or or the timing gravity current or offenses, convicted offense or past is such that consideration public individual, safety a more of incarceration for requires lengthy period date, therefore, parole cannot fixed this meeting.” “Accordingly, in this have parole state will be applicants they granted expectation finds, discretion, unless Board the exercise of its parole they are unsuitable light circumstances statute specified by (Rosenkrantz, 654; see also In re Smith regulation.” Cal.4th (2003) 114 (Smith) is the Cal.Rptr.3d [“parole [7 655] rule, rather than the exception”].)
Section 2402 sets forth various factors to be considered the Board out the mandates carry designed statute. These are regulations guide Board’s assessment whether poses “an unreasonable risk if released danger society from and thus whether he or she prison,” (§ (a).)17 is suitable for subd. This parole. also lists several regulation *19 circumstances to show and tending for unsuitability18 suitability19 parole. 17 history; These factors include “the of the prisoner’s past present circumstances social and state; history, past including mental criminal involvement in other criminal misconduct which documented; offenses, before, reliably including is base the and other commitment behavior crime; crime; during and past present any after the and attitude toward the conditions of control, including special treatment or the use of the prisoner may conditions under which safely community; any to and released the other which bears on the prisoner’s information suitability may firmly unsuitability for release. Circumstances which taken alone not establish 2402, (§ parole may for to pattern unsuitability.” contribute which results in a of (b).) subd. 18 (1) heinous, Unsuitability “especially factors are: a commitment done in an offense manner”; (2) [violence”; (3) or “[pjrevious history atrocious cruel of “a of unstable [r]ecord others”; (4) “[sjadistic [ojffenses”; (5) or relationships lengthy tumultuous with “a [s]exual offense”; history (6) of problems prisoner engaged severe mental related to the and has “[t]he 2402, (§ prison jail.” (c)(l)-(6).) in serious misconduct subd. This subdivision further provides importance any that “the attached to circumstance or combination of circumstances in (§ (c).) particular judgment panel.” is left the case of the subd. 19 record; (1) Suitability (2) “reasonably juvenile factors are: the absence of a stable others”; remorse; (3) (4) relationships signs of a crime “as the result committed of life”; (5) (6) significant syndrome; prisoner’s] “any stress battered woman lack [the crime”; (7) significant history age prisoner’s present probability of violent reduces “[t]he recidivism”; (8) plans developed has made realistic or has for release “[t]he release”; (9) put prisoner’s marketable skills that can be use and upon “[[Institutional (§ ability upon activities indicate an enhanced to function within the law release.” (d)(1)—(9).) subd.
B. Standard Review Rosenkrantz, standard forth the appropriate our Court set Supreme of a review the factual basis is authorized to
of review. branch judicial “[T]he the decision to ensure that in order denying of the Board parole decision law, in conducting of due but that with the process comports requirements review, in the whether some evidence only the court may inquire such a based decision to deny parole, upon before the Board record supports consideration of and If the decision’s regulation. factors statute by specified in the record and thus not some evidence by factors is supported specified basis, for petition the court should grant prisoner’s is devoid a factual its decision the Board to vacate writ of habeas should order corpus in accordance with due process and thereafter denying proceed parole (Rosenkrantz, 658.) supra, law.” Cal.4th at record, but of the entire only This standard “does not a review require there is any to determine whether such review as requires necessary (In re Van Houten (2004) 116 evidence the record the denial.” supporting 406].) there “some Once 347-348 Cal.App.4th Cal.Rptr.3d [10 Board, “the relied evidence” the section 2402 factors support are suitability relevant to parole manner which factors specified precise It is discretion of the .... considered and balanced lies within the [Board] in the record tending irrelevant that a court determine that evidence might unsuit far outweighs demonstrating establish suitability parole However, (Rosenkrantz, “the Cal.4th ability parole.” criteria consideration of decision must reflect individualized specified (Ibid.) Thus, it is enough cannot be arbitrary capricious.” denial; that evidence cited for there is some evidence factors support the statute must also the core determination rationally required i.e., denied, release will unreasonably before can be that a prisoner’s (In Lee re (2006) endanger public safety. [49 *20 573, (Lee); In re Scott (2005) 595 133 Cal.App.4th [34 Cal.Rptr.3d 931] II).) (Scott of a “Some evidence of existence particular Cal.Rptr.3d 905] evidence release necessarily factor does not to some equate parolee’s (Lee, at supra, 143 Cal.App.4th unreasonably endangers public safety.” 1408.) p. In re Elkins articulated in Lee and applied
The dissent standard rejects 503], In re (2007) Tripp 475, (2006) 144 Cal.Rptr.3d Cal.App.4th [50 Barker, 64], and Cal.App.4th Cal.Rptr.3d supra, [58 at 366. The dissent’s standard of page review would proposed judicial require affirmance of Board decision if even a every single factor unsuitability found, regardless of whether that factor would a conclu rationally support sion, consideration, based on individualized that the inmate would an pose unreasonable risk (Dis. 311-312.) danger. If were opn., post, pp. standard, the courts be would indeed relegated to status potted plants. (Scott I, supra, 119 Cal.App.4th p. for a only ground denial is found in Penal Code section (b), subdivision which release date shall be provides set “unless determines that. . . consideration public safety
[the Board] requires standard, more lengthy period incarceration.” our Interpreting high court has that the Board’s decisions not be or required arbitrary capricious (Rosenkrantz, 677), 29 Cal.4th at and supra, that the Board’s decisions be “on made relevant grounds” the evidence supported by (Dannenberg, 34 Cal.4th added). italics We read those directives as Board, decisions, that the mandating in its must articulate that are reasons grounded rationally related basis statutory for denial. standard, think, The dissent’s we proposed goes beyond even the deferential “some evidence” standard and would annul any meaningful judicial review. Were we in the kind of required engage efforts undertaken prodigious our to shore dissenting colleague Board’s decisions up denying parole, affirmance would case. guaranteed every
C. Factors Relied Panel in Roderick Parole Denying
1. Roderick’s Commitment Offense
Section (c)(1) subdivision that a commitment offense provides heinous, “in carried out atrocious or cruel manner” especially tends to indicate unsuitability determining whether the offense parole. manner, committed in such a the Board should consider whether attacked, “(A) were victims or killed in the same or Multiple injured separate incidents, (B) The offense was carried out dispassionate [f] murder, manner, calculated such as an execution-style (C) The victim was [f] offense, abused, (D) defiled or mutilated during after The offense [f] *21 was carried out in a manner which demonstrates an callous exceptionally (E) for crime is The motive the
disregard suffering. inexpli for human [][] (Ibid.) to the offense.” very cable or trivial relation it the the commitment offense in denying parole, While Panel relied upon 2402, (c)(1) subdivision its cite factors under section failed to of the any “not its that Roderick was yet The Panel stated conclusion decision. simply certainly that we considered for and that “the information suitable parole” the recited the facts Panel then included the commitment offense.” Although offense, factors identified its the no on the findings any it made his offense “in for whether defendant committed regulations determining heinous, (§ (c)(1).) subd. The atrocious or cruel manner.” especially court, thus, was for the Panel’s ostensible trial found that there no basis “No forth. that the basis set particularly egregious. offense was finding [was] court, was trial and is familiar with the case. No evidence This court the very trial, before the transcript none has set forth in been presented [Panel], to make the finding.”20 the offense met argues General nonetheless Attorney because record (c)(1) supports
section subdivision standard gives likewise that the motive for murder was trivial. dissent the commitment concerning an assist the Panel by findings implying 284-286, post, (Dis. its pp. offense articulated in decision. opn., 293-294.) already Given the deferential standard of review we extraordinarily decisions, to salvage to the Board’s it would be for courts apply inappropriate been factors that have findings by inferring might Board’s inadequate minimum, At articulating grounds relied the Board is upon. responsible its those findings citing grounds. and for to evidence supporting “[T]he an individual evaluating Board must detailed standards when whether apply When safety inmate is unsuitable for on public grounds. [Citations.] on the circumstances commitment unsuitability Board bases the mini beyond offense, cite evidence’ of facts aggravating must ‘some (Dannenberg, mum 34 Cal.4th at supra, elements [Citation].” offense. our to the stated 16.) fn. must confine review Accordingly, “[w]e Board, at the parole and all the evidence presented factors found by that the Attorney not to findings which is relevant those hearing findings, (DeLuna, . . . the Board have made.” might General suggests 593-594.) pp. had the crime particularly But even if the Panel determined trivial in relation to “very for the murder was because motive egregious such a (§ (c)(1)(E)), evidence would not support the offense” subd. finding. familiarity trial reference its reaching decision we do not consider the court’s our Panel. during only the before the the trial. We review record the facts revealed (Rosenkrantz, supra, Cal.4th at
Here, the facts contained in record reflect that the victim began Roderick in a harassing saloon. Roderick was intoxicated and started a altercation, In physical fight, punching victim twice. the course of the knife, victim a hunting and Roderick pulled away wrestled and stabbed him. There is evidence that had the victim also been and that drinking, Roderick did not realize he had effected a mortal wound. Without trivializing life, tragic this loss the scenario to more than a drunken appears nothing midnight brawl outside of a saloon that escalated—with the appearance knife—to mortal combat. The motive for was not killing or inexplicable I, trivial in its context. As Scott supra, at in this Cal.App.4th page case there no finding that motive for the murder support was less significant than other second murder degree cases.
The dissent takes issue with Scott 7’s analysis” “comparative approach cases, the relative of motive in determining triviality second homicide degree with the I agrees Scott dissent that motive must be tested merely against (Dis. 286-288.) the crime to determine its triviality. opn., post, Under pp. view, this few—if would not be trivial any—motives relative the kind of that are findings (Barker, to convict on first or required second murder. degree supra, our [“[g]iven value high society places life, there is no motive for the life of unlawfully taking another human not ”].) could be deemed being reasonably ‘trivial’ But we need not to, to, this resolve issue because Scott I is not nor central even necessary our conclusion that the here was killing core egregious. The test particularly heinous, whether a crime is determining carried out a particularly atrocious or cruel manner whether the crime involves actions that are more or violent than the aggravated minimum to sustain a conviction necessary (Rosenkrantz, conclude, offense. supra, Cal.4th We cannot stated, and the Panel has not crime involves actions more aggravated violent than minimum sustain conviction for necessary second murder. degree General also Attorney contends that Roderick’s failure to avoid the
murder when he had the to do so opportunity would under (c)(1) section subdivision that the crime was particularly egregious. decision, its the Panel stated are a there lot other choices that you “[a]nd made, have could Mr. Roderick. You could have left. You could have just just home. could have gone You called the But that wasn’t the choice that police. made.” you
That a could her have avoided his or commitment offense is not one of the section (c)(1) subdivision factors to be considered Board in whether the offense was committed determining “especially heinous, Rosenkrantz, (See atrocious or cruel manner.” 29 Cal.4th at
267 in record the whether some evidence only court may inquire 658 p. [“the factors the the to based deny parole, before the Board decision supports however, observe, the that in We Smith statute and regulation”].) specified by of his the defendant’s murder determination that court Governor’s upheld that included use of of factors wife based on a constellation “aggravated” was victim; and professional a of the gun; planning, sophistication vulnerability victim; and an ism; trust with the a relationship special premeditation; abuse; as the fact that mental well ongoing pattern physical but instead continued.” “had an to his crime stop defendant opportunity view, 349, not 368.) In our Smith is (Smith, at supra, pp. Cal.App.4th useful precedent. with, that, not as a a lost general
To we are convinced begin principle, heinousness, cruelty crime ever tend to a would opportunity stop prove a of other or crime. The mere fact that “there are lot atrociousness of a from could have made—as distinguished, example, choices” person Rosenkrantz, (see, or Cal.4th stalking supra, evidence of premeditation e.g., DeLuna, 678; 593)—does rationally not supra, Cal.App.4th p. heinous, finding that a crime was committed an support especially or just or cruel To that a defendant “could have left” atrocious manner. state home” more than the defendant could “could have just gone says nothing victim; do have these facts chosen wound his fight mortally pick committed. if But even not describe manner which murder was did, after having Smith held with crime they only continuing consti taken with the other enumerated factors together opportunity stop (Smith, tuted that the offense aggravated. support Here, circumstances exist. no other similar sum, there offense was is no evidence Roderick’s commitment heinous, set forth carried out “an atrocious or cruel manner” as especially (c)(1). in section subdivision History
2. Roderick’s Social Board directed consider (b), Under section subdivision his or her determining of the social prisoner’s history” “circumstances “a is defined as [h]istory,” An which suitability parole. “[u]nstable [s]ocial others,” with is one circum of unstable or tumultuous history relationships decision, (§ (c)(3).) In its stance to show subd. tending unsuitability. is a statement that Roderick’s only history generalized Panel’s reference to social to the criminal but also history social related to certainly “unstable history [his] its cited no or circumstances abuse of alcohol.” But the Panel facts his (as from history distinguished had an social unstable premise out. that would bear it criminal and we see no evidence history) General cites as Attorney “some evidence” of Roderick’s unstable social history (1) facts that Roderick was raised his grand- paternal mother and (2) out of school after 11th had contact dropped grade; no until estranged his mother even she lived within 40 though him; miles of and (3) continued to in criminal engage activity during *24 The dissent also the first 20-year marriage. cites two enumerated factors as (Dis. some evidence of an unstable social history. 293-294.) at opn., post, pp. We agree cannot that these factors an constitute [hjistory,” “[u]nstable [s]ocial nor do evidence provide of unstable or tumultuous they any relationships with others.
The record shows an absence of with his natural any relationship parents, not unstable or tumultuous That any he raised his relationships. and failed grandmother his final of school complete year high is also Indeed, a evidence of history or it was problematic relationships instability. this that Roderick to have during period seems had his most stable social because his chronic criminal history, behavior did not commence until he turned 20.21
With to his adult respect years, long shows a term “history children whom he a marriage, good two with has producing relationship.” While Roderick committed crimes and experienced with alcohol problems his there is no that during marriage, evidence this affected his relationship DeLuna, with wife (See either his or his children.22 126 at no evidence that the [finding alcohol contributed to prisoner’s problem unstable the contrary, To relationships].) Roderick’s 1999 psychological evaluation indicates he that has maintained stable his with relationships in “Letters Central file from ex-wife family. his express[] [Roderick’s] interest in his to live with her coming parole so this inmate still has a very good with Roderick also touch relationship stays close family.” with his two daughters; hearing range indicated readily age his nine and volunteered the fact grandchildren, that his oldest granddaughter was about a Even to have the Panel noted that Roderick lot of baby. has “a and that his letter was family support” “daughter’s offering very supportive a home and also an for work.” opportunity there is evidence
Additionally, no Roderick had finding difficult with other staff. record relationships prisoners prison psychologist Roderick told clinical been he had incarcerated accurate, Authority” age 14. Assuming appears “Youth to be isolated be an incident, any juvenile as there no record of in his arrests file. argued regulation premised upon assumption stability It can be that the that the crime, helps prevent and in did not Whether relationships premise Roderick’s case the hold. regulation, or not intent still to support that is the of the there is no relationships. unstable “has noted that Roderick Dr. Hewchuk conclusion. contrary
supports full . maintained institutional . . has continued to be model [and] a near Roderick “has had And Dr. Steward compliance.” reported has been He only of years prison. record number given exceptional 115’s], numerous self programs CDC has attended help found guilty [three reports Roderick’s work drinking seriously.” and takes his problem were, no There were average exceptional. most above part, “counseling negative and he has received one only unsatisfactory ratings, Chrono.”23 as and criminal history to Roderick’s alcohol abuse dissent points 293-295.) (Dis. opn., post, pp.
some evidence of an unstable social history. criminal and social history We read the between regulations distinguishing *25 2402, in of social (§ (b)) the latter defined terms history being subd. with 2402, activity. as from criminal (§ (c)(3)) subd. distinguished relationships while and not be conflated. Similarly, The two factors are thus distinct should contributed to his criminal there is evidence that Roderick’s alcoholism ample activities, or any there is no evidence that it resulted in unstable tumultuous to from criminal or his any [h]istory” relationships apart “[u]nstable [s]ocial DeLuna, (See any Nor there history. supra, 126 Cal.App.4th abuse he were that is at risk of to alcohol if returning evidence Roderick released, 20 and than of years after more than more 12 years sobriety Smith, (See active AA. participation [if “then for drugs defendant’s use of established his past unsuitability parole, based on could for rest of life deny parole [Board] [the defendant’s] factor, this immutable without or consideration regard subsequent drugs and he has no current desire for indicating circumstances ,”].)24 and there is current . . drug relapse little likelihood of sum, have In which the Panel could we see no evidence in record upon relied has an social finding history problematic, that Roderick unstable 2402, (c)(3). subdivision On tumultuous section pursuant relationships has actually that Roderick “experienced evidence indicates contrary, others,” suitabil- tending a factor show relationships stable reasonably (§ (d)(2).) subd. ity for .parole. 128-A) (CDC minor Counseling A Form documents misconduct “Custodial Chrono” (§ 3312, (a)(2).) counseling it. subd. provided for could be conditioned Panel also failed to consider that Roderick’s (§ safety. meetings public
regular testing and random to further ensure attendance AA (b).) subd. 3. Roderick’s Past Present Attitude Toward His Commitment
Offense Under (b), section subdivision the Board must consider the prisoner’s attitude toward the “past present crime” in [commitment] In determining suitability stated parole. denying Panel parole, “needs in order ... to understand the participate self-help offense, factors that led underlying only this commitment but also to his entire criminal and also into the history, insight impact his develop criminal and in behavior of this crime particular, where man lost impact General, his life.” to the According Attorney the Panel relied on Roderick’s factor, at the its testimony hearing making on this including his is all I can reply you” tell when asked for an “[s]tupid explanation extensive criminal history.
We see no evidence to conclusion that Roderick lacked insight into the of his impact criminal behavior or his commitment crime. In evaluation, Roderick’s 2003 Dr. Hewchuk stated that “Roderick talked openly offense, about the circumstances of the instant and his comments reflect a remorseful, new sense insight into his incarceration. He is and aware fully of the effect of his actions on victim’s Dr. family.” Carswell stated that inmate is remorseful for very causing victim’s family “[t]his grief, and he taking this time from sorry away his own family.” While in the early stages his incarceration Roderick denied criminal any *26 self-defense, act and insisted the was in over the after stabbing years, AAin and other he able participating to his programs, acknowledge and his and then responsibility express regret remorse his actions. We can find no that Roderick does currently not understand the impact his crime.
The dissent concludes Roderick’s attitude toward the crime was “poor,” Roderick’s statement role in the as characterizing regarding his crime merely (“the a one or defensive victim was passive fatally injured during struggle fact, (Dis. over the knife”). 297.) In Roderick at the opn., post, admitted Obie; he hearing that stabbed he stated that he about intentionally thought butt, and, instead, him in the or the but stabbing leg decided against stabbed him in the chest. He asserted no claim of self-defense in describing claims, the crime. This is contrast to Roderick’s and early “ 1994, that the that he killing self-defense and had been ‘rail- ” time, however, incarceration, roaded.’ that Since and over course of his discussed, as has been Roderick came to and accept responsibility express remorse for crime. General district and the dissent cite the Attorney argument attorney’s shown and Roderick had no remorse his that Roderick believed argument But (See to dis. opn., post, “was the do.” right thing
the murder and the arguments Attorney the district attorney’s the record does not support cites no evidence in corroboration.25 General factors, (b) the Panel also the section subdivision Expanding upon he a life of crime. Roderick led concerning why questioned it, record, no admitted he had excuse for extensive criminal acknowledged his alcoholism, and his its to his described seemed to connection appreciate was insufficient to as The Panel felt this criminal behavior “[s]tupid.” to factors that led not “underlying only demonstrate that he understood offense, history” but to his entire criminal commitment also [his] concluded, back out sending us to feel comfortable you can’t “you expect if don’t know you and this crime law-abiding your history with citizens with That the Panel members were dissatisfied led life did.” why you you us, however, before Roderick’s was manifest. responses question on it is for the Panel those rely responses whether arbitrary capricious denial of support parole. and lacked analytical were Certainly, Roderick’s responses unsophisticated But is his a more inability insightful why to articulate depth. explanation danger he committed crimes some evidence that Roderick poses multiple record conclusion.26 The evidence safety? The does public does show that Roderick has a limited either'to understand or capacity led is a criminality. the mechanisms that to his But limitation explain known and has been factored into his risk assessment. Roderick’s quantity difficult time understanding evaluation observes that Roderick “had a abuse,” insight demonstrated “minimal” into of substance complexity commitment But Dr. went on explain offense. Carswell of the offense appropriate” within structure “place development crime, because, “he shall never drink about the Roderick stated that talking time[,] . . . had he not been and should not have been again drinking decision, and that the decision did he could have made better drinking, *27 of rather level rudimentary make was not one.” Despite responsible Roderick, years that of after 14 years age, the concluded 67 insight, report 25 argument that Attorney attorney’s also to the Roderick’s version General cites district injuries, the of witnesses and the with “the victim’s statements the of crime inconsistent Attorney that these jury.” Again, General cites no evidence demonstrates the verdict of alleged discrepancies. 26 hearing. stating, parole demeanor at his In so we do not mean to undervalue inmate’s best to both the judges, hearing position like are in the evaluate parole Just trial commissioners hearing, to credibility course and we must defer and the attitude of the inmate in the of Roderick, however, Here, they did nor judgments. the Panel members did not disbelieve those attitude—something they are to known displaying take him to task for a defiant indifferent ante, 249-250.) of (See, e.g., only the content pp. It comment when it occurs. satisfy responses that did not the Panel. Roderick’s 272
of “has incarceration his to such an he developed maturity extent would an be excellent candidate at this time for and that released to the parole”; “[i]f more community no than the citizen.” pose danger average [he would] on the 1999 Building the 2003 evaluation also concluded Roderick report, would “be able to integrate back into with few community problems,” “would no more than the pose danger citizen .... with average extremely low of recidivism.” probability Without on Roderick’s level of commenting insight, the 2005 evaluation reaches same conclusion. These are in reports stark contrast early (1989-1994) Roderick’s evaluations reflect which “little self-understanding” failure accept his responsibility commitment or his crime criminal The watershed year prior history. appears where that Roderick regret his for the reported expressed crime “wished had handled it somehow differently.” Roderick a less than incisive for his provided chronic criminal- explanation alcoholism, but his also of ity, reflected responses acceptance acknowl- remorse, crimes, edgement of for his and shame. responsibility Ignoring unanimous clinical evidence to the trained contrary presented experts— since 1999 all conclude he would no more psychological reports danger pose than the society average citizen—the Panel’s arbitrary pronouncement insight limited an unreasonable risk to poses cannot public safety (Biggs, be considered some evidence to a denial of parole. evidence, F.3d at must be on p. 915 based some and the parole [denial “ ”].)27 ‘must have some indicia of reliability’ subjective The dissent we analysis maintains must defer to the of an Board’s inmate’s suitability and, hearing hearings year because the officers conduct thousands of each thus, in, of, have opportunity participation completion and successful “evaluate[] (Dis. Further, great programs prisoners.” post, having for a number of opn., listened inmates, Board, to a multitude the hearing officers can assess an inmate’s attitude toward crime, history, (Ibid.) and toward his programs. criminal his commitment and his But Indeed, experience necessarily together does not into expertise. translate the dissent we spent pages trying denying have more than to divine what evidence the Panel on in relied manner, parole. inability nonconclusory Panel’s clarity, to state with in a parole system is central role in subjective analyses which to its California’s indicates that such required objective not analysis predicated upon do suffice. What is an evidence and Further, adequately given statistically actually articulated. small number life-term inmates released, it is possible draw credible conclusions either about “success[]” programs insightfulness subjective institutional or the of the analyses Board’s over time. For 31, 2002, 10,000 example, nearly as of December were serving there inmates time for second murder; Rehabilitation, degree (Cal. during 13 were released. Dept. Corrections & Parolees, (2005) Prisoners & table 33 <http://www.cdcr.ca.gov/ReportsResearch/ 17, 2007]; OffenderInfoServices/Annual/CalPris/CALPRISd2003.pdf> Aug. Dept. Cal. [as Rehabilitation, (Recidivism Rates), (Apr. of Corrections & Recidivism Rates *28 2007) table, 1st 1p. <http://www.cdcr.ca.gov/ReportsResearch/OffenderInfoServices/ 17, Annual/RECID3/Recid3d2003.pdf> Aug. 2007].) In preceding of each of the three [as Rates, years, serving (Recidivism four inmates sentences for murder were released. 22, table, (Mar. 2006) <http://www.cdcr.ca.gov/ReportsResearch/OffenderInfoServices/ 1st
4. Roderick’s Institutional Behavior relevant institutional behavior is prisoner’s] postcommitment
“[A 595; see (DeLuna, suitability his parole.” factor, following findings: to this the Panel made the (d)(9).) As subd. § He’s failed in a limited manner. very “Mr. Roderick has programmed not yet sufficiently and has either or vocationally educationally upgrade that Roderick The Panel concluded in beneficial self-help.” participated with “in order to understand and cope in more self-help needed to participate is Panel’s that Roderick “finding]” in a manner.” The stress non-destructive and educational as well as vocational in need of additional “programm[ing]” record, not of in the and there is a scintilla without support “upgrade[s],” these demonstrate findings that would the conclusion that support evidence safety. an risk to public Roderick’s release would constitute unreasonable Programming Roderick’s “[LJimited” a. more had in AA for than
At the time Roderick hearing participated one that met hour had a life skills years, group program completed course, weeks, an had anger management each week for 10 had completed diseases, on and had also sexually completed course transmitted completed during 44-week called CHANGE. His work Project performance program most re- from with his incarceration ranged “satisfactory” “exceptional,” There cent reflecting rating.” report “exceptional performance supervisor evaluations are no recommendations recent institutional any Roderick’s For example, a need for additional or indicating therapy self-help. related that Roderick attended all the self help Dr. Steward “has Alcoholics Management such as Anger available in groups prison In Dr. since Roderick’s last psycho- Hewchuk noted that Anonymous.” has be a within evaluation in “he continued to model logical admitted to former “freely facility,” problem alcohol, and attendance at through and has dealt with this issue membership Anonymous Alcoholics meetings.” short, there no the Panel’s determination deficient. The Panel “limited” or any way programming evidence that record—any we cannot find
did describe—and or that there were programs in need of Roderick was specific programs Rather, the evidence or to attend. to him that failed refused available because was unable to attend programs that Roderick only indicates schedule, lockdowns, schedule, because of his meal work because these as denigrates the dissent Although were available. because no programs 17, 2007]; reports at this online address Annual/RECID3/Recid3d2002.pdf> Aug. see [as (Recid3d2000).) (Recid3d2001) and 2000 years 2001 *29 274 (dis. 303),
convenient excuses there is not a shred of opn., post, Indeed, controverting legitimacy Roderick’s explanations. the Panel has past dearth of available acknowledged programming. The Panel also concern that Roderick had expressed gained enough not from the classes he we insight had taken. As have already explained, Roderick’s or articulate a better inability gain of his understanding that, is a behavior known factor to all does not according reports, negatively affect his suitability we must consider the circum- parole. Additionally, stances under which Roderick was It was clear responding. quite Moreover, can nervous. we discern even on the cold record the question- member, ing one Panel irritated at Roderick’s plainly inability give hear, kind of answers he expected became He even quite antagonistic. criticized Roderick for not attending available in afternoons programs because he was the fact that Roderick’s in the sleeping, despite canteen job him to work at a.m. required begin 2:00 It could have been surprising at this were more defensive point responses than introspective.28 record,
On this the Panel’s conclusion that “there’s no indication that would if differently behave of his paroled” [Roderick] view “lack program unsubstantiated And the participation” speculation. Panel’s recital of the stock that Roderick still needs more phrase order to learn self-help how “to understand and with stress in a non-destructive manner” is cope Since at utterly specious. least 1993 Roderick has with the many coped stresses of life in a prison nondestructive manner. No evidence supports Panel’s unadorned that if released to live with opinion Roderick family, will become unable (See with stress in a nondestructive cope manner. Irons (E.D.Cal. 2005) v. Warden State Prison-Solano of California (Irons I) that inmate F.Supp.2d lay needs more opinion [Board’s to “understand and therapy stress in a non-destructive manner” was cope without medical or evidentiary other to be support, “appears simply [a often in order add factor repeated another to the non-suitability reason] conclusion”].)29
b. Roderick’s Failure to Vocationally and Upgrade Educationally denying Panel also found that had parole, Roderick “failed either while upgrade vocationally While this educationally” prison. third) (plus The same two Panel members presided parole over Roderick’s 2006 hearing. years two 74-year-old despite That Panel denied then to the exemplary prison continued behavior. II). Carey (Irons Irons I was reversed in Irons v. (9th 2007) Cir. 479 F.3d 663-665 Circuit, however, expressly agreed Ninth with the district court’s that the Board’s (Ibid.; therapy by any determination that Irons needed more see unsupported evidence. also, ante, 260-261, pp. fn. *30 on which bears information would be “other a matter firifling general as (b), in section subdivision release” under for suitability prisoner’s to his case, parole is not relevant training simply additional Roderick’s to receive Social his eligibility age, Roderick’s advanced Given suitability. and work live his household daughter’s his to in Security plans payments, or son-in-law, that further vocational indicating there is no evidence with his Indeed, for him more suitable parole. would make training educational no skills was his vocational in 2002 that upgrading Panel itself concluded him denying parole, decision In its November 2002 a concern. longer that hadn’t you “I’m a little disappointed of the Panel stated: commissioner terms, age but to the or your prior you’re in this term vocation completed use that on the outside need to really to going where you’re probably now really that would be for taking up somebody would just space probably that voca- Roderick in 2002 told Having need to learn a vocational skill.” attain it would at his unnecessary age parole, tional training on his withhold based for the Panel now to irrational arbitrary in vocational training. failure to further engage case, or education would not have improved additional any training that release. Roderick stated Roderick’s chances for economic success a contract logger. his son-in-law who is employed work with planned incarceration, his before industry Because Roderick worked in the logging not have further would vocational or educational any training prison DeLuna, the court him for this type employment. Paraphrasing prepared . . and between . [training] “we do not connection perceive any [Panel’s] risk danger an unreasonable conclusion that would pose ‘[Roderick] Nothing if released from safety prison.’ or threat to society public himself or criminality ability support record indicates that [Roderick’s] (DeLuna, . his vocational . . skills.” affected limitation of by any 597.)30 p. History 5. Roderick’s Past Criminal in other involvement including criminal history,
A “past prisoner’s determining is relevant in which is documented” reliably criminal misconduct Also, (b).) (§ “[previous or subd. her suitability parole. show unsuitability is tending a circumstance [violence” [r]ecord the Panel found (§ (c)(2).) In denying parole, subd. parole. . . . related in 1952 history starting he “has an extensive criminal violations, almost violations, continuously, much Code pretty Vehicle traffic a break until crime 1980.” without obtained a GED while incarcerated. point that Roderick also never The dissent makes the concern, age given 300.) opn., post,
(Dis. We the relevance of question ante, (See, & fn. and his TABE score 12.9.
The record does reflect Roderick’s criminal long over 28 history Thus, years, including two violent prior crimes. the Panel’s finding Roderick has an extensive criminal history most certainly supported by however, whether, record, evidence. The question, on this individualized the criminal constitutes some evidence to history the Panel’s conclu sion that Roderick an unreasonable risk of to the poses danger public safety. “If one more of the factors lacks upon by evidentiary *31 [relied board] the next are support, whether the Board would questions have denied parole based the factors and whether this the supported result ‘satisfies requirements of due of process law’ because the factors for which is there some evidence ‘constitute a sufficient . basis the . . supporting discretionary ” (DeLuna, 598, decision to deny 126 parole.’ supra, at p. Cal.App.4th Rosenkrantz, 677.) Cal.4th quoting supra, 29 at “We will p. denial uphold of when it that the parole Board would have reached the appears same conclusion based on the factors and those supported factors individually (DeLuna, collectively justify conclusion.” supra, 126 at hand, 598.) “On the other p. the ‘decision cannot stand’ when on findings important factors lack and evidentiary it is not clear that the Board would have reached the same conclusion based on the factors.” supported (Ibid.)
The relevant then is whether the question Panel would have denied based on parole his criminal only past history. In our Rosenkrantz “ court high stated that to Board’s make an authority exception ‘[t]he [to of requirement setting based on the of life parole term gravity date] . . . inmate’s offenses not past should so as to swallow the rule operate Otherwise, to “normally” be parole granted. Board’s case-by-case would rulings destroy proportionality contemplated by Penal Code section 3041, (a), statutes, and subdivision also the murder which distinct provide life, terms of life without of to and 15 to possibility years years life parole, ’’ for various and degrees (Rosenkrantz, kinds murder. supra, 29 [Citation.]’ Cal.4th at board’s p. sole reliance on parole supportable “[T]he and gravity of offense conduct to prior to denial of imprisonment justify can be as parole initially justified set forth fulfilling requirements by state time, however, law. Over should continue to demonstrate [the inmate] rehabilitation, behavior and evidence exemplary him a date denying parole because of the simply nature offense and conduct prior [the commitment] [|]... would raise serious interest in A questions involving liberty parole. factor, continued reliance the future on . . . unchanging conduct prior runs imprisonment, the rehabilitative contrary goals espoused by prison in due system could result violation.” at process (Biggs, 334 F.3d 916-917.) pp. (9th 2006) dissent construes Sass v. Bd. Prison Terms Cir. California F.3d having 1123 as announced in abrogated Biggs, citing principle C04-2529CRB) U.S.Dist.
Robles v. Solis
No.
(N.D.Cal., Oct.
post,
not
308.)31
We do
(Dis.
opn.,
Lexis
In this case has a criminal Roderick long However, incarcerated, Roderick has exhibited abuse. since he has been behavior, (none violations since with few serious disciplinary exemplary least AA since at 1993), meetings and excellent work He has attended reports. that Roderick’s alcohol- and all of the evidence in the record indicates is, remain, with has maintained close ties in remission. Roderick ism will disorders, and has no mental or his has family, diagnosed personality than six history. for his criminal For more shame and remorse expressed denial, been as recent Roderick has assessed his most years prior parole citizen, average to the than the danger particularly no more posing public of Roderick’s criminal immutability past his advanced given age. Against conduct, these factors its value for future history diminishing predictive II, (Scott 594—595 pp. be considered. Cal.App.4th must circumstance regard factor to subsequent on an immutable without [reliance Therefore, the Panel violation].) it is not all evident be a due may process on this factor. solely unsuitable for based parole would have found Roderick published in the Federal Court that have not been “Opinions of the United States District although author persuasive, precedential, Supplement properly are cited this court 552, 559, (2004) Cal.Rptr.3d ity.” (Schlessinger America fn. v. Holland [16 5].)
6. Conclusion five (b)
Of the section subdivision factors relied upon Panel denying one—Roderick’s criminal his parole, only past some tory—constitutes evidence to conclude that Roderick would an pose unreasonable risk of if danger released. As of Roderick had served 20 sentence, years the last 12 of 16-year-to-life years those perfect sheet, record. Roderick does have but disciplinary lengthy subsequent rap circumstances have shown that “a Roderick has become indisputably compe tent and who has done well responsible person while incarcerated.” quite And, learned, inmate “[g]iven everything Roderick has the fact age and that he has down’ experienced ‘slowing during year, the last due to aging, he would make an excellent candidate for The Board therefore parole.” must consider whether immutable factor of his criminal past history, light decision, the record as a whole and this is a sufficient basis which to conclude that Roderick would risk pose unreasonable to the danger if he were released. public
III. DISPOSITION The order is affirmed. The Board is ordered to vacate the denial and to conduct a new for Roderick consistent with parole suitability hearing hearing shall held no later than November 2007. opinion.
Ruvolo, J.,P. concurred. SEPULVEDA, J., Dissenting. dissent. respectfully Whether the prisoner I Alfred William Roderick is suitable for a close This parole may question. instance, if that in the first well set a panel, determining question might date for him. We with the of parole may agree Board Prison Terms’s (Board)1 decision. We not believe there is evidence may substantial support and that we ing unsuitability if were the record under a reviewing sufficiency standard, of the evidence the record would not the Board’s support decision. We is may believe there more evidence in the record supporting fact, than there is We suitability believe that supporting unsuitability. may, the evidence supporting suitability substantially outweighs favoring We even believe that unsuitability. may suitability the evidence supporting We overwhelming. may money, money feel that state’s or our strongly could be better than to taxpayers, by house this spent continuing prisoner state We feel for the We feel may sorry may age that his prison. prisoner. calls out for his release. We with the entire scheme may disagree statutory beliefs, dates for life governing setting None of these parole prisoners. by The Board Prison Terms was abolished in 2005 and the Board of Parole replaced 12838.4; Code, (See Code, Hearings. Gov. § Pen. § review that we are
however, deferential standard very matters under and does not limited extremely on review is to Our role compelled apply. are we permitted of these factors. Nor by any us to be permit impacted to effectuate in an of review attempt the deferential standard manipulate that we find distasteful. may scheme change statutory case, in this standard of review applicable Under the deferential extremely of evidence even modicum us is whether there is issue before only is abso- unless the record differently, decision. Stated the Board’s Board’s determi- of even the lutely slightest supporting devoid its to affirm for we are parole, required that Roderick unsuitable nation recent are not as as some egregious the facts of this case decision. While the Governor’s the Board’s or courts overturned either reviewing cases where it might and while therefore unsuitable for parole, decision inmate I because I write separately with the just “go majority, be tempting along” recent decisions appear here as majority symptomatic view evaluation court’s reviewing tihe to substitute the succumb to temptation the Governor. in the Board or in for that vested suitability properly parole to determine first whether courts appear of these cases many appellate (or, have been granted parole should believe they personally found him suitable whether would have they more aptly put, perhaps the record maker), through decision and then review had been the they of the own sense of subtle justice. By manipulation a lens created their review, to be a hypercritical with what often along appears standard Governor, or the these relied the Board evaluation of the evidence that is review but erode the deferential standard of slowly surely highly cases States Court stated Supreme mandated in these cases.2 As the United 105 S.Ct. (1985) L.Ed.2d v. Hill U.S. Superintendent [86 Board’s 2768], basis for the evidentiary while due some requires process decision, “are findings subject that does not that the Board’s factual imply me, is exactly Second-guessing, appears review.” second-guessing upon have ventured reviewing and several other courts that the path majority record, examined the appropriate and applying down recently. Having *34 review, granting reverse the trial court’s order of I would standard writ of habeas corpus. for petition 2 here, (2004) Cal.Rptr.3d In re Scott Cal.App.4th 32] 119 871 by [15 majority Embraced (2002) in In re I) (Scott Rosenkrantz review set forth the deferential standard of concluded that 104, to (Rosenkrantz), requires us be while it Cal.Rptr.2d P.3d Cal.4th 616 59 [128 174]
29 reviewing a findings, not convert court to the “does “exceedingly deferential” Board’s (Scott 898; I, maj. opn., supra, p. at see parole plant.” a potted denial of into ante, a attitude toward 264.) adopt to similar post-Rosenkrantz decisions seem p. at Several post. confines, review, as beyond required discussed stretching it far its deferential standard Standard Review review,
The summarizes majority correctly standard of applicable it then although succumbs to the to it and its own temptation ignore apply sense of justice the case. It is therefore worthwhile to review the highly deferential standard of we review must bound The by here. California Court has described the Supreme “ Board’s discretion in matters as parole ” “ ” unlimited,’ ‘almost ‘great’ but has also indicated it is not absolute, as it is subject right due prisoner’s procedural process. basis, Board’s decision must therefore have factual and “not be on based (In re ‘whim, Powell or rumor.’ caprice, (1988) Cal.3d [Citation.]” 881].) 755 P.2d Board’s Cal.Rptr. decision suitability [248 regarding review; however, is subject judicial that review is extremely limited. branch is judicial authorized review the factual basis of decision “[T]he of the Board in order to denying parole ensure that the decision comports law, with the of due but that requirements such a process conducting review, some evidence in the the court whether may inquire only record before the Board the decision to supports deny based the factors parole, upon statute and If the specified by regulation. decision’s consideration some evidence in the record factors is not specified and thus is supported basis, devoid the court should grant prisoner’s petition factual writ of habeas and should order the corpus Board to vacate its decision parole thereafter to in accordance denying proceed with due process (Rosenkrantz, supra, added.) law.” Cal.4th italics Rosenkrantz describes the “some repeatedly evidence” standard as ex- deferential, which tremely only a “modicum of evidence” to requires (Rosenkrantz, 679, 677, Board’s denial of 29 Cal.4th at parole. pp. omitted.) Rosenkrantz italics indicates that the court is reviewing permit- ted to review Board’s of the various circumstances weighing indicating suitability the court unsuitability should determine whether parole; only the circumstances relied by the Board in determining unsuitability are some and whether the Board decided the supported defendant’s (Id. 677.) case on an individualized basis. “As pp. long [the decision reflects due consideration of the factors as specified applied Board’s] standards, to the individual accordance with legal applicable the court’s review is limited to ascertaining whether there is some evidence (Id. Further, in the record that decision.”3 supports [Board’s] “the manner in which the factors relevant precise specified suitabil- [Board],” are considered and balanced lies ity within discretion of 3 Rosenkrantz, *35 supra, actually judicial 29 Cal.4th dealt with of review the Governor’s decision to override the Board’s finding suitability of parole, for but the same standard of 660, 667.) (Id applies finding unsuitability review to review of the parole. pp. Board’s for at
281 the to be given and the weight in the evidence conflicts any “[Resolution (Id. at pp. the of the Board. authority are within [Citation.]” evidence of the Thus, interpretation defer to the Board’s 656.) court must reviewing “It irrelevant Further, is in explained, as the court Rosenkrantz evidence.4 tending record to establish in the determine that evidence might a court for unsuitability demonstrating evidence outweighs for far suitability parole re Elkins 677; accord, (2006) (Rosenkrantz, Cal.App.4th at p. parole.” 503].) Cal.Rptr.3d 492 [50 review, limited extremely elaborated The court Rosenkrantz in a related context: “As the United States Court Supreme explained stating, will deny decision parole] of evidence support modicum ‘Requiring [to inter institutional threatening without help prevent arbitrary deprivations contexts, variety In a administrative burdens. ests or undue imposing that a decision governmental Court has recognized States Supreme] [United if due process interest violates liberty in the loss of an resulting important ‘Ascertain by any evidence decision is not supported [Citations.]’ [Citation.] examination of the does not this standard is satisfied ing require whether witnesses, record, or credibility entire assessment of independent Instead, there is relevant whether question of the evidence. weighing the conclusion reached any [the evidence in the record that could support ” 664-665, at first (Rosenkrantz, supra, 29 Cal.4th pp. Board]. [Citations.]’ Hill, added, 455-456.)5 v. citing Superintendent supra, 472 U.S. pp. italics not to standard review is court thus that the recognizes The specifically be re The Board’s must hearings undue administrative burdens. impose hearings. full-blown evidentiary in context: are neither trials nor they viewed is not authority required of due “Although principles process apply, (In re Morrall of courts. with the formality required proceed [Citation.]” (Morrall).) As the (2002) 102 Cal.Rptr.2d [125 391] Rosenkrantz, decisions characterize “prior proceedings court explained informal, administrative or formal judicial the Board as contrast before v. 654; also Pope (Rosenkrantz, supra, Cal.4th see p. proceedings.” hearing interpretations, presented support would two different Where the facts Hill, Superintendent v. explained must be deferred to. As court interpretation Board’s any logically conclusion precludes require “The Federal Constitution does not Instead, only that requires this context process . . board. due but the one reached . Hill, hearing.” (Superintendent v. findings in the ... some evidence to made support there be 457.) so that the Board’s only if the record is “devoid of evidence” 472 U.S. at Thus arbitrary,” process due interpretation is “without or otherwise conclusion (Ibid.) implicated. if fails to prisoner, to each Board make an individualized decision as must may be suitability parole, process due point consider circumstances which would toward Rosenkrantz, however, majority, does not supra, 29 Cal.4th at (See, e.g., violated. evidence, including that which would all the that the Board here failed consider contend suitability parole. supported have *36 282 636, (1970) Court
Superior 9 641 Cal.App.3d Cal.Rptr. [88 483] [Adult not limited to rules of evidence Authority applicable judicial proceedings; accord, Authority required courts]; of proceed formality required 636, (1974) In re 782].) 36 Spence 639-640 For Cal.App.3d Cal.Rptr. [111 the California example, Court has held that a Supreme previously prisoner not entitled of same type evidentiary hearing regarding suitabil parole ity as is mandated when he is faced of with revocation has parole, therefore declined “to hold Morrissey[6] directly suit applicable” parole (In (1974) 258, 361, re ability Sturm Cal.3d hearings. 11 266 Cal.Rptr. [113 (Sturm).) 521 P.2d As the court are valid reasons for a explained, 97] “[T]here distinction between revocation and In Morrissey release. the court recognized revocation involves the loss of a parole liberty, conditional parolee’s whereas release decisions concern parole an inmate’s mere anticipation Furthermore, of freedom hope release parole proceeding [citation].
attempt whether the predict subjective analysis inmate will be able to acts; contrast, live in without committing additional antisocial society revocation hearing charge involves specific misconduct out-of-prison which commends itself to (Sturm, resolution. quasi-judicial [Citations.]” 266; accord, (1992) 1467, supra, In re p. 6 1480 Cal.App.4th [8 Arafiles However, 492].) Cal.Rptr.2d does have a to be free from an right (Rosenkrantz, decision. arbitrary parole Cal.4th at suitability supra, 29 655 Sturm, 258, 11 Cal.3d we found in ‘a supra, [“In California decisions prior cognizance limited to be free from an rights parole applicants arbitrary decision, to secure information interviews parole necessary prepare [Board], with the and to more mere something than forma consideration.’ pro [Citation.]”].)
While the Board’s must state the it findings circumstances relies upon unsuitable for deeming prisoner and must be in the Board parole writing, need not detail (See facts the record that those In re circumstances. 1511, (2007) Lawrence 150 1575-1576 Cal.App.4th Cal.Rptr.3d [59 537] Perluss, (dis. J.) (Lawrence) P. opn. due clause nor process [“Neither statutes governing obligates the Governor to a detailed written provide Elkins, [Citations.]”]; of each re analysis suitability factor.
144
490
in due
Cal.App.4th
Board
[nothing
process concepts requires
evidence in inmate’s file or at
on
specify particular
his interview
which
rests
determination
discretionary
that inmate not
for conditional
ready
release
(citing,
(1979)
cf.
v. Nebraska
Inmates
442
Penal
U.S.
15
Greenholtz
[60
L.Ed.2d
2100])].)
S.Ct.
The Board
use the
may
language
statutes and
in its decision.
v. Ornoski
governing
regulations
(Dang
(N.D.Cal.,
24, 2006,
C05-4254SI)
Oct.
No.
Review the Board’s Finding Roderick’s Unsuitability Parole of a not model of
Although clarity, the Board’s in the finding unsuitability case to have present (1) been based on five appears circumstances: offense; (2) commitment (3) social prisoner’s history; prisoner’s past offense; and attitude (4) toward the commitment present prisoner’s behavior; institutional (5) the prisoner’s criminal prior history. circumstances, concludes that majority only the last of these the prisoner’s record, criminal history, by any evidence in the and that this supported “immutable” factor not be a may sufficient basis for denial of To the parole. some contrary, the record does show each the circum- supports stances relied the Board in that release upon by finding would prisoner an unreasonable risk to pose public safety.
(1) Commitment Offense cruel, atrocious, If the prisoner committed offense in or particularly manner, heinous that circumstance tends to establish unsuitability parole. Rosenkrantz, 2402, (§ (c)(1).) subd. supra, As Cal.4th at explained page 11, footnote finding “Factors that the committed heinous, atrocious, the offense in an or cruel manner include the especially attacked, (A) following: victims were or killed in the multiple injured, same incidents; (B) the offense separate was carried out in dispassionate manner, murder; calculated (C) such as an execution-style victim abused, defiled, offense; (D) or mutilated or after the the offense was during disregard an callous demonstrates exceptionally out in a manner that
carried or very the crime (E) inexplicable the motive for suffering; for human to the offense. trivial relation [Citation.]” the nature determination that with the Board’s
The majority disagrees It criticizes unsuitability. in favor of weighed offense the commitment section language relying upon Board for not specifically heinous, committed in (c)(1) (that especially the crime was subdivision atrocious, referencing manner) specifically and for not findings, or cruel its that the Board (c)(l)(A)-(E) section subdivision the factors set forth in In re DeLuna determination, citing such making to consider in is directed 643], It further 593-594 (2005) Cal.Rptr.3d [24 make, had that the prisoner did specifically concludes that a the Board so, was but failed to do of the murder to avoid the commission opportunities evidence, I Board. nor relied properly neither supported *39 all on disagree points. of the on the circumstances that it was relying
The Board did indicate 2402, in section circumstance listed only commitment offense. (c)(1)— is to the offense subdivision (c) subdivision that relates commitment atrocious, heinous, or cruel in an that the crime was committed especially 2402, therefore, infer, section that the Board was relying upon manner. We can the circumstances of the commitment (c)(1) it spoke subdivision when the findings the to state in its written offense. While Board required unsuitable for parole, it is to find the relying circumstances upon unclear whether the Board (c), subdivision it is under section the Board is in its the factors that findings to set forth additionally required as set forth in section making that determination directed to consider however, argument, for the sake of (c)(l)(A)-(E).8 Assuming subdivision fashion in its decision upon to further elaborate in some the Board is required that the crime determining especially it the factors that considered heinous, cruel, met here. atrocious, was adequately requirement factors the enumerated not use the language the Board did Although it its decision basing its that was it did indicate in findings specifically,9 Board, offense. The of the commitment on the nature deny parole part then the offense in probation report, relying summary bar that inside a out of a verbal disagreement that the arose offense explained altercation, death of in the culminating Roderick escalated into a physical wounds inflicted Roderick. victim due knife findings “and its (c) the Board state requires that subdivision Penal Code section on the record. supporting reasons” Fuentes, (failure language of use exact See, page e.g., fatal). factor not accounts, According to the of the probation summary witness report’s told the (to bartender victim and Roderick take their a fight point only verbal disagreement) outside. Roderick victim the face as punched they door; were out going victim back and staggered fell the tables against dazed, around, near the The victim was jukebox. stumbled and started to head door, out the door As the victim came again. out the him punched The altercation continued again. outside and “in a few seconds it was that the victim had been reported stabbed.” The victim died of wounds knife to the chest. Roderick fled the scene and was a short distance apprehended Roderick, In its the Board noted that away. findings, the verbal according altercation inside the bar when the victim began confronted him because (a officer daughter had arrested the victim’s security Safeway) aunt for shoplifting.
The Board then focused on the that Roderick had to defuse opportunities confrontation, altercation, to not escalate it into developing physical victim, to hence avoid murdering “And there are lot of other stating, made, choices that you could have Mr. Roderick. You just could have left. You could have just gone home. You could have called the But that police. wasn’t the choice that made.” you in the exact Although phrased language of section (c)(1)(E), subdivision the Board considered Roderick’s motive (that the crime committing offense arose from a verbal bar, disagreement in that Roderick escalated into altercation physical that ultimately resulted in Roderick killing victim by inflicting multiple *40 wounds, knife crime), that he could have avoided committing Thus, found it to be impliedly trivial.10 even if we are to rely not able upon 2402, factors the Board is directed to consider under section subdivi- (c)(l)(A)-(E), sion which are record but were not relied supported (In DeLuna, by the Board in re upon denying supra, 126 at Cal.App.4th 593-594), here it pp. that the Board did in fact rely appears upon trivial prisoner’s motivation for the crime. committing The indicates that motive for the majority killing was not inexpli- “[t]he cable or trivial in its context” and “in concludes that this there no case support motive for the murder was less ante, than in other significant second murder cases.” at degree (Maj. opn., I, p. added.) italics relies on Scott majority supra, 119 Cal.App.4th 894 to its that the page motive position prisoner’s committing crime should be to that in other second murders. If this was compared degree The court in Fuentes similarly part prisoner’s opportunity relied in upon to avoid trivial, determining of in stating, easily commission the crime that his motive was “Fuentes any by going could have continuing avoided confrontation into his friend’s house instead of thoughtless. participation inexplicable walk with Luken. Fuentes’s His motive was supra, (Fuentes, Cal.App.4th trivial.” in light accurate test, can be considered longer no certainly
ever the correct re Dannenberg (2005) 34 in holding Court’s Supreme of California I The Scott (Dannenberg). 104 P.3d 783] Cal.4th Cal.Rptr.3d [23 the Board’s determi underlying the factors decision limitations imports heinous, in an especially crime was committed nation that the commitment atrocious, of whether the motive the consideration or cruel manner (including in Dannenberg. majority trivial) in rejected that the court specifically callous I, ‘an exceptionally Scott found that “to demonstrate example, the offense (§ (c)(1)(D)), subd. suffering’ for human disregard manner or violent been committed in more aggravated must have question I, (Scott murder.” degree in the commission second ordinarily shown than added.) of a This requirement italics into its murders is carried over with other second degree comparative analysis the crime was the motive for of the factor of whether analysis underlying trivial. I in Scott best sets forth why
Justice Haerle in his dissenting opinion I, Scott was, at the time analysis improper. even comparative approach effectively of its convincing the least frankly part opinion, “The majority, Board, and does so the tactic its for that opinion substitutes regula to wit: ‘The reference Board false premise, setting up patently therefore offense” relationship tions to motives that are trivial “very must be to fit the motive description, requires comparisons; regulatory “trivial”) conventionally those which (or more than materially significant less . This . . .’ the offense in question drive commit [Citation.] people is, murders degree purely with other second requirement comparisons sentence, not a whole cloth. Not an invention out of the proverbial simply, that, at the regulations suggest parole- not a word in the Board’s phrase, 187 convictions Penal Code section the motives eligibility stage, underlying are, be, test. But such any much less should sort subject comparison from several embarks quotations what the then majority on—complete *41 that the motive. It concludes criminal musings regarding abstract academic Bradford is less killing in that motive for Board erred ‘Scott’s for the commission than others which account or significant important venture The discursive majority’s . . .’ degree second murder . [Citation.] [f] murder degree issue of second comparative into the abstruse exquisitely the Board was only the real issue. The ignores comparison motivations make, for his that Scott’s motive or indeed entitled to was was making, I, (Scott . . the which resulted . .” was in crime actions ‘trivial’ relationship Haerle, J.).)11 That (dis. supra, opn. 119 902-903 pp. Cal.App.4th 11 variety of actions short there were an infinite goes on to note Justice Haerle “diminish, deflect, punish the defeat or even victim’s have taken to murder that Scott could I, (dis. (Scott supra, opn. of Cal.App.4th 119 903 despicable of murder.” conduct short Justice Haerle’s analysis was correct clear after the appears Court’s Supreme in 34 Cal.4th ruling Dannenberg, supra, 1061. Dannenberg
In the court was faced with the issue of whether the Board had to evaluate the case under standards of prisoner’s term before uniformity its exercising deny on the that the authority parole grounds prisoner’s The criminality presented continuing public court determined that danger. the Board need not do such a evaluation before uniformity determining conclusion, suitability for In parole. reaching court discussed its prior Rosenkrantz, in supra, 29 Cal.4th opinion from that quoting as opinion that, follows: “we in suggested order prevent parole authority’s case-by-case determinations suitability from the rule that swallowing parole should an be ‘normally’ offense must granted, egregious’ to ‘particularly denial of (Dannenberg, supra, justify parole.” Cal.4th at Governor in had relied circumstances of the Rosenkrantz prisoner’s “ offense that involved acts particularly egregious ‘beyond minimum ” “ murder,’ necessary to sustain a conviction for degree second ‘[ac the Governor cordingly, could consider the nature of the offense in properly ” {Ibid.) denying parole.’ court noted that did not say “Rosenkrantz must authority subordinate routinely suitability ... uniformity in otherwise engage of similar offenses before deem comparative analysis discussion, ing life inmate unsuitable .... particular Our our use including of the phrase ‘particularly egregious,’ conveyed only that violence or viciousness the inmate’s crime must be more than minimally necessary convict him of the offense {Ibid., italics.) for which he is confined.” original Further, court, the Dannenberg whether of that evaluating facts commitment crime were found crime particularly egregious, “ cruel,’ callous and showed ‘an ‘especially disregard callous exceptionally ” for human suffering,’ and to the disproportionate ‘trivial’provocation.’ (Ibid., added.) Thus Dannenberg italics the motive for the crime in committing murders, was evaluated not by it the motive in other but comparing I, in his dissent in Scott Haerle suggested Justice to the comparing Indeed, crime committed. that method of would to be the comparison appear one, only appropriate given language section subdivi specific (c)(1)(E), sion which directs the Board to consider whether motive for “[t]he the crime is inexplicable or in relation to the trivial very offense” whether determining committed crime especially heinous, atrocious, (Italics added.) or cruel manner. re Scott (2005)
The court recognized [34 (Scott II) Dannenberg, Cal.4th Cal.Rptr.3d 905] *42 Rosenkrantz, 29 Cal.4th supra, that the commitment offense be require Haerle, case, J.).) present As in the the failure of avoid of the crime Scott to the commission goes committing to his trivial motive for it. conviction, to as opposed to elements necessary the minimal
compared degree a with other second in comparative analysis the court engaging how- murders, conducting analysis, its egregiousness. in determining ever, offense with the facts of commitment the court Scott’s compared cases. Other three other published of the commitment offenses in facts from the difficulty fully have similar escaping courts to reviewing appear in and continue analysis engage improper incorrect method comparative in majority offenses. For example, with other similar comparisons crime to similar offenses in other the commitment Lawrence also compares offense, cases, it is hard to characterize stating, “Turning published [the] ‘callous,’ ‘atrocious,’ ‘heinous,’ or committed did as more what Lawrence above most of the other murders described more ‘extreme than lethality’ with failed as evidence’ they in which our fellow courts found ‘some appellate (Lawrence, supra, a denial of gubernatorial Board or parole.” supporting Cal.App.4th method of
By legal analysis by this employing ordinary approach, current to the facts in other published the facts offense comparing a line of cases is wherein courts reviewing accomplish opinions, developing are do directly. the back door that which forbidden to These through they cases cases their commitment crime with the facts compare prior published circumstances that found the of the commitment crime not to be sufficiently be as as the facts declare their commitment crime to not egregious, egregious those that the facts of their thereby conclude published opinions, commitment are not in favor of unsuitabil- egregious enough weigh offense course, the extent cases conducted incorrectly Of the earlier ity parole. reliance on that becomes comparative analysis, comparison subsequent line of case thus becomes house of authority entire suspect; potentially crime to the facts cards. This method of current commitment comparing cases, context, method of in other subtly improper employs offenses, to other similar the facts of the commitment offense comparing it to of the offense. As rather than the minimal elements simply comparing Lawrence, in his dissent in Presiding correctly Justice Perluss explains context variant of the in related “[U]tilizing analysis rejected comparative . . it is hard characterize . asserts by Dannenberg majority simply “atrocious,” “heinous,” “callous,” crime ‘more or committed Lawrence’s of the other murders described’ in more “extreme than most lethality” That, of majority. decisions discussed other appellate [Citation.] course, whether, in the deciding is not the for us address proper question review, to decision deferential overturn Governor’s exercise extremely (Lawrence, grant Cal.App.4th to reverse the Board’s parole.” Perluss, 1568-1569, J.).) (dis. P. fn. omitted opn. pp. the correct method of
Another of deviation from comparison example (2007) of In re Barker occurred the recent case *43 stated, (Barker). Cal.Rptr.3d There the court “Barker’s [59 petition 746] concedes that did appropriately grandfather suffer until he was [his friend’s] shot, callous, but on to that goes assert the murder was no ‘more dispassion ate, calculated, cruel or committed with more for than disregard suffering most such Without the any way minimizing of Barker’s severity offenses.’ crimes, agree argument. (Ibid., we with this added.) italics As [Citation.]” I, for this the Barker court authority position, Scott quotes supra, “ at ‘the Cal.App.4th 891: offense in must have been commit page question ted in a more or violent aggravated manner than that the ordinarily shown in ” . (Barker, commission of . . 373.) murder.’ at As supra, p. previously indicated, even Scott II after recognizes Dannenberg, supra, 34 Cal.4th II, (Scott this method of nois comparison longer supra, 133 appropriate. 598.) at The court in Barker to drifts back the correct Cal.App.4th p. analysis, the commitment crime to the for comparing minimal elements required murder, but reaches the extraordinary conclusion that “But however horrific murders, the however horrific the outcome of Barker’s participation, again difficult discern how that can be participation considered other anything ” the than minimum for ‘malice (Barker, 373.) at aforethought.’ supra, p. Barker also back I’s harkens to Scott incorrect the opinion analysis regarding “ crime, for the motivation ‘the indicating motive must be less materially (or “trivial”) more than those significant which drive conventionally people ” commit the . . .’ question rather than the properly comparing offense the (Barker, motive to circumstances the commitment crime. particular added.) supra, Undoubtedly italics some future cases will p. compare Barker, facts their commitment crimes to the fairly egregious facts in facts, declare the facts their cases be less than Barker egregious conclude that their cases are therefore not sufficiently in favor grave weigh ante, For the unsuitability. reasons indicated these types comparative here, analyses are Applying analysis correct inappropriate.
motive for the murder was trivial when to the crime committing compared committed, killing victim knife wounds. inflicting multiple Barker,
The majority, relying that “few—if upon opines any—motives would not be trivial relative to the are kind findings required ante, convict on first or second murder.” degree (Maj. opn., original states, italics.) Indeed the relied from language upon by majority Barker “ life, ‘Given the value our there no motive high society places taking being life of another human that could not unlawfully reasonably ”’ (Barker, be deemed “trivial.” This analysis fact that ignores governing direct regulations specifically Board to consider whether motive or very crime is inexplicable “[t]he (§ (c)(1)(E).) trivial in relation to offense.” subd. If properly evaluated, the motive would be the circumstances of the compared
291 offense, to it trivial in comparison the if was underlying commission of committed, the crime a that commitment finding the crime that would support was egregious. generally rely did not upon if the Board in the case present
Even
crime,
it
at the
least
committing
very
Roderick’s motive for
the
specifically
the
and avoid
to defuse
situation
relied
Roderick’s missed opportunities
upon
however,
that
to murder. The majority opines,
the escalation which led
the
these missed opportunities
for the Board to consider
was inappropriate
crime,
enumerated factor
as that is not a
committing
specifically
avoid
the
there,
2402,
The factors listed
(c)(l)(A)-(E).
under
subdivision
section
however,
guide
all inclusive and are intended as
should not be considered
to,
can
than
of factors that
Board
lines
rather
limitations upon,
types
out in an
in
whether the offense was carried
determining
especially
consider
heinous, atrocious,
Dang
v.
or cruel manner. As the court explained
Ornoski,
*7,
WL
“the list of circumstances
supra, 2006
3041096
p.
non-exclusive,
2402(b)
allows the
2402(c)
specifically
section
is
and section
consider a
of relevant and reliable
great range
of Prison
Terms]
[Board
2006,
23,
(Accord,
(N.D.Cal.,
. .”
v. Kane
Oct.
information . .
Paluzzi
f
C06-801SI)
WL
*6
list o circumstances
No.
3020919
p.
[the
2402,
nonexclusive];
(N.D.Cal.,
is
Elkins v. Brown
(c)
section
subdivision
21, 2006,
[same].)
C05-1722MHP)
*7
Dec.
No.
fact that petitioner it, the crime about the manner in which with several other facts along committed, that the crime was finding relied supporting evidence in the record There was some egregious. particularly Board’s similar conclusion in case. There evidence that present wounds, Roderick killed victim by inflicting knife multiple with trivial motive, and that he had opportunities prevent crime from occurring. Smith, Just as in some the Board’s that the supporting circumstances the commitment offense weighed against suitability parole. *45 relies,
The in Roderick’s account it majority part, that was the victim upon him, who the knife initially on in that the pulled concluding motive the ante, crime was not less in than other cases. significant (Maj. at opn., p. crime, Other than of defendant’s account the which both the investigating officer12 and the district indicated attorney conflicted with both physical accounts, evidence and witness and which was rejected by the apparently no altercation, there was indication that the jury, victim initiated the physical Kane, or (See had the initially knife. v. 2006 WL supra, Paluzzi at *6 attorney’s statement could not p. be basis independent [district was denying but relevant in parole, countering characteriza- petitioner’s tion of killing].) officer, to Roderick’s statement to the
According probation apparently trial, his the victim was armed with the testimony knife and it on pulled ensued, Roderick. A struggle and Roderick able to control of the get knife. Roderick claimed that he stabbed the victim the in knife self- down, as the victim to defense Roderick kept trying throw and that was when the fatal wound was administered. Had jurors the Roderick’s version accepted events, of the (if would have either they him believed that he acquitted they self-defense) acting (if or found of him guilty manslaughter they honest, believed he in an acted but unreasonable need to or the heat defend murder, of Because convicted of second passion). jurors degree him rejected his The out appears they story. unreasonably carves one majority account, knife, small of Roderick’s that the part initially victim had the the (but concludes that believed that said), else that jury nothing and relies that version of the events. A more reasonable conclusion is events, that the the jury rejected of Roderick’s version of the entirety the including who had knife.13 initially event, facts, the any the and the interpretation given be weight offense, circumstances are matters for the Board’s determination. Rosenkrantz,
As the court indicated 29 Cal.4th at page regard investigating probation officer’s statement officer was made probation report. is included in the 13There were inconsistencies between Roderick’s account commitment offense hearing and the regarding limited information witness accounts that is contained in (See post.) the probation report, as well. fn. committed the prisoner consider whether “Although required [Board] life, or her the importance stress in his crime as the result significant of the .... is left the judgment to this circumstance [Board] [0]ur attached some evidence supports [Board’s] limited to whether strictly inquiry crime—not whether of the circumstances of petitioner’s assessment or demonstrates with that assessment the evidence weight conflicts stress.” (Italics added.) committed the because extreme petitioner offense have just state that a defendant ‘could concludes that majority “[t]o than the defendant gone nothing or home’ more just says left’ ‘could have victim; these mortally chosen not to wound fight could have pick ” the manner in which the murder was committed.’ do facts not describe ante, true, italics.) but the same That (Maj. original may opn., crime, section yet could be said one’s motive commit regarding *46 the that a motive for (c)(1)(E) committing subdivision indicates trivial is a factor of the offense. Again, consider in the determining gravity crime it; the even if to avoid crime motive for goes committing the opportunity not, however, factors considering does the Board not restricted from is in the of the determining gravity other than those enumerated specifically commitment offense. the the in which the commitment
While I with manner agree majority atrocious, cruel, heinous, out was otherwise crime here was carried not inflicted there evidence that the victim died from knife wounds multiple was Roderick, trivial the for the commitment offense was motive by committed, to the crime and that Roderick ignored opportunities comparison was, therefore, some evidence to to avoid the crime. There committing offense, its reliance and implied Board’s support upon gravity minimal elements of by that it more than finding egregious required However, on the nature of the murder. the Board did not degree rely second and alone in Roderick unsuitable for parole, commitment crime focus of its indeed this did not to be primary circumstance appear findings.14
(2) History Prisoner’s Social stated, Board Roderick’s upon not relied Again, although articulately an (c)(3) indicates that unstable social Section subdivision history.15 14 opinion discussing the specifically majority of the Although not addressed the section offense, raised “immutable factors” is propriety upon of reliance such commitment similarly history, criminal and therefore majority prior in its discussion of Roderick’s addressed, post, pp. at 307-310. history stated, certainly history is related that criminal “His unstable social The Board also the abuse of alcohol.” but (a unstable social of unstable history history or tumultuous with relationships others) circumstance show tending There is unsuitability parole. some evidence in the record to this circumstance.
The record indicates that Roderick was raised paternal grandmother (when infant), after his divorce he was an that he parents’ never had contact with his estranged mother until he was 16 she (although lived within 40 miles home), of his and that he never established a her. Roderick relationship stated that he also had parole hearing never with his relationship father, because he did care for his out of stepmother. dropped after high school the 11th His grade. marriage first ended divorce after Board, three years. Additionally, as referenced specifically by the extensive criminal history abuse of alcohol are an also indicative of social unstable such history. Factors as the criminal prisoner’s history, school, out of abuse have dropping high drug been found to support reliance the unstable social upon history circumstance in finding unsuitability. 12, 2006, In v. (N.D.Cal., Robles Solis Oct. C04-2529CRB) No. WL (Solis), the court relied upon lifestyle, petitioner’s street-gang arrests, resulting juvenile and the fact that on multiple petitioner offense, at the time of the probation commitment showing unstable (Id. Ornoski, social *3.) In v. history. Dang WL supra, 2006 *6-*7, the Board relied pp. out properly high prisoner’s dropping school, running as indicative away, joining gang of an unstable social history, his unfortunate as a despite history refugee. Vietnamese v. Elkins *47 Brown, *7, 2006 WL supra, 3782892 at the court found the similarly that Board relied properly upon limited criminal and prisoner’s past history Kane, as drug (Accord, abuse social indicating history. unstable v. Paluzzi 2006 WL 3020919 at *6 [prisoner’s abuse past drug past poor healed) family (although now some evidence relationships provide supporting unstable social history].)
There are also facts that record could indicate that arguably Roderick First, has had some stable social he was married for 20 relationships. years, he was although divorced before the long commitment offense. He spent bars, much of those 20 behind years fact that could be to either argued show a very stable that endured despite forced relationship separation, which could be argued lessen value of this long-term marriage of indicative stable social that would from relationships prevent in the future. His crimes this reoffending during were numerous period included not several alcohol-related only (indicating offenses abuse of alco- hol), but also felonies and crimes of of violence. one his arrests Additionally, Code, time (Pen. 647.6.) this was for during period vagrancy. § has an Angela Roderick adult who has him a daughter, offered Stapp, place to reside after is Ms. was 21 old paroled. Stapp years when probation be seen as might relationship in 1985. this Again, was prepared
report of many not for the fact that spent social were it stable relationship where either in or state prison, Ms. was growing up jail years Stapp be that her While it could years. argued has also last 20 of course he spent has survived indicates a stable social relationship of her father support that Roderick’s argued daughter also be their could years separation, father, her with any relationship had to have never really opportunity during and alcoholism criminality less a one. Given Roderick’s much stable ex-wife, time, his nor his neither relationship the pertinent periods that has stable social relationship with his is daughter, type relationship is, value, indicate that Roderick neither would relationship predictive to his old returning ways. be to function in without society would able event, indicate might arguably the fact that there was evidence that any not negate “stable” does might relationships that Roderick have some social history. Applying that he did not have an overall stable social the evidence review, a contrary there was evidence to the correct standard of while support conclusion, the record that Roderick’s social there was some evidence in on this factor was history supported stable.16 Board’s reliance record; As noted nothing required. a modicum of evidence in the more criminal history drug cases have relied prisoner’s past previously, upon Here, of an unstable there history. ample abuse alone as indicative social both an extensive criminal and severe alcohol abuse. history facts, history, These with the other indications of lack stable social along However, this circum- the Board’s reliance on circumstance. did not basis of the Board’s finding stance also appear primary unsuitability parole.
(3) The Prisoner’s Attitude Toward the Commitment Offense commitment also Roderick’s attitude toward the Board relied offense, (b), which indicates that section subdivision pursuant *48 and attitude toward present Board should consider the prisoner’s past indicated that commitment offense. The Board specifically his criminal and in into the of behavior develop insight impact needed “to Further, man his life.” of this crime where a lost the impact particular, factors underlying needed “to understand Board found that the prisoner offense, but to entire criminal also his that led not this commitment only of the reasons . This did one history appear primary . . .” circumstance unsuitable for the Board found Roderick parole. had support no a that Roderick majority The concludes that “there is evidence ante, 268.) prison (Maj. opn., p. at I note relationships prisoners other and staff.” difficult with altercation with his physical in fact involved a that the record indicates Roderick was him,
roommate, and was stabbed in 1989. (2003 Hewchuk, Ph.D.) One past psychological of E.W. report report that indicated Roderick “talked about the circumstances of instant openly offense, and his comments reflect a new into sense his incarcera- insight remorseful, tion. He is and fully aware of the effect his actions on the Carswell, Ph.D., victim’s M.E. stated that family.” inmate is “[t]his remorseful for the victim’s very causing family grief, and he is as for sorry this time his taking away from own The family.”17 majority relies these that see past reports no concluding conclusion “[w]e that Roderick lacked impact into the his criminal insight behavior or his ante, commitment crime.” at italics.) (Maj. opn., original The p. majority on to find that goes “Roderick than less incisive provided explanation his chronic his criminality, but also reflected responses acceptance alcoholism, crimes, remorse, acknowledgement for his responsibility ante, 272.) shame.”18 (Maj. opn.,
The inmate’s the Board at the responses questions posed by however, belie hearing, earlier indications in of remorse psychological reports and insight into his incarceration. why When asked his criminal history long,19 so Roderick I is all can tell replied, you.” Obviously “Stupid answer, to the inmate’s attitude as responding negatively expressed further, Board pressed him “Does make asking, sense to Roderick you?” that it did then not. The Board kind replied “What of answer is inquired, that?” Roderick don’t “I know.” The Board then tried to replied, Roderick get some reason for his express long history criminal if he by asking committed the crimes because he thought was exciting, expressed “I all hear kinds reasons criminal just behavior don’t seem to you sense, why know were it.” you doing Roderick “It don’t make I’ll replied, The agree you.” Board then tried to lead the inmate into possible for his if he explanation criminality, asking had substance abuse problem, and Roderick he admitted that “was When asked he if was an drinking.” alcoholic, were, “Evidently I was too much.” The replied, drinking inmate that he drank when he was not The expressed only Board working.20 17Psychological reports years evaluation over the have treated Roderick’s attitude toward discussion, (See post, differently. 301-302.) pp. commitment offense majority capacity explain The concedes that Roderick has a why limited to understand or many past, opines committed so crimes but that his “a limitations are known ante, quantity” into (Maj. has been “factored his risk assessment.” opn., post, majority’s opinion regard in this at pp. discussed 301-302. breaking Board inquired, first “You were the law in from 1952 until 1980. All ’50’s, ’60’s, ’70’s, So, through through through you all all have criminal offenses. why?” *49 20 regarding reasonably Roderick’s to questions problem answers his alcohol could interpreted to reflect both attitude and attempt of indifference an to minimize his least, very they past alcoholism. At the do not reflect a full admission Roderick his and continuing support addiction alcohol and thus the Board’s determination that he had little
297 crimes, was if it committed all these why then asked Roderick again a Roderick could family. and since he had or alcohol drug problem, crime, was life of and he long he led such a why never articulate reason any (which alcoholism was quite between his unable draw connection extreme, was for over crimes he arrested the number alcohol-related given history. the and his criminal years) offense, the indicated that victim produced
As to the commitment Roderick knife, the and then the victim Roderick control over gained the knife initially, the This apparently knife. was fatally during struggle was over injured has the the of the crime that Roderick over same account largely repeated and has been reiterated psycho- which years during parole hearings, prior the the did tell originally 2005 reports (including report). logical trial, at that he stabbed the testified apparently probation department, knife, the victim over the which victim struggle during kept trying during down, he investigating him and that was in self-defense. The acting throw with the officer told that this account the crime was inconsistent probation Further, acting claim of evidence and witness accounts. Roderick’s physical Roderick’s at the 2005 jury. testimony self-defense was rejected by however, that acting did not include a claim he was parole hearing, specific self-defense, but did an admission that he stabbed intentionally include victim, did why real as to he so.21 district any explanation without at account was inconsistent hearing Roderick’s attorney parole argued witnesses, with the victim’s the statements of the verdict injuries, Roderick still hearing, As at jury. argued by prosecutor parole no and still seemed to take the showed remorse for the killing position Kane, (See WL no but to the victim. v. had choice kill Paluzzi attorney’s argument].) *6 consideration of district [proper offense, both in terms of understand- Roderick’s attitude toward the current remorse, hearing, expressed occurred and ing why showing parole Board at the and was able evaluate hearing was poor. present entitled to give and attitude. The Board was credibility, sincerity, demeanor, did attitude more than it testimony, weight own prisoner’s our judgment We are not to substitute past psychological permitted reports.22 issue, past programs to address this insight despite participation into this intended discussion, 299-300.) post, (See problem. pp. stabbing hearing accounts that Roderick also insisted at witness incorrect, leaving the and he testified his and the victim’s bar were occurred within seconds of the victim who intervening Additionally, Roderick claimed it was details circumstances. This also by kicking they after left bar. physical initiated the altercation him witnesses, in the given by probation which are included contradicted the accounts other report. Indeed, (See fns. & factual inaccuracies. reports of the contain psychological some post.) pp. *50 298
on those for that of the Board. fact issues The that there is evidence the record this circumstance that regarding would of support finding suitability (the does not the evidence in prior psychological reports) negate regard which of of “Resolution conflicts the supports unsuitability. any evidence and the be given the are within the weight authority (Rosenkrantz, the Board.” We 29 Cal.4th should not engage “ record, in an ‘examination of the entire assessment the independent witnesses, Instead, or of the credibility weighing evidence. the relevant is whether there is evidence in the question any record that could the support (Id. conclusion reached by at p. [the Board]. [Citations.]’ [Citation.]” italics.) case, In the there original even have been present though may evidence in the record the there was contrary, some evidence supporting the Board’s determination Roderick’s attitude toward the commitment offense favor that is all that is weighed unsuitability; required.23 fact that read the Roderick’s of no majority may responses differently under the import deferential standard of review here. applicable members, Finally, recognizes that Board like trial are majority judges, in the best evaluate and attitude of the position credibility prisoner, concludes, that we defer to must its on those issues. The judgment majority however, that only content his responses “[i]t [not Panel,” did not satisfy citing the fact that the Board took attitude] ante, him to task when was with his attitude. (Maj. opn., upset 26.)24 fn. of the record portion that the cites to in of this majority little does its conclusion. The position bolster comments the Board by member by cited come from the majority prisoner’s parole hearing, after the commissioner had of the ruling stated Board presiding turned Mar Deputy any concluding Commissioner comments. Mar “Yeah, remarked, Roderick, I have one comment. Mr. you’ve been in prison as long as I’ve worked in and what me in you give your prisons, appearance nonchalant, situation, today very your attitude about whole indifferent your about I’m history and crime. And the solution really puzzled life as to what can State or what can do to out of you yourself prison, keep which I (Italics don’t think care much about in out of you really prison.” member, added.) The fact that a Board at a some 11 years before hearing members, here and hearing issue different Board completely specifi- chose to take Roderick to task does cally attitude not indicate that Board were members not Roderick’s attitude similarly impacted Indeed, Mar’s comments in 1994 would seem to well hearing. pretty did appear heavily This factor to be one which the Board relied in its determination parole. Roderick was suitable for may expressed by questions, Of course attitude of one’s answers to as well content voice, by body language and tone etc. *51 the 2005 reading 2005. A fair of the Board’s conclusions in
summarize the was with Roderick’s reveals that Board frustrated hearing transcript crime, commitment and his history, “pro- attitude his criminal the toward state in gramming” prison.
(4) Prisoner’s Institutional Behavior in institutional behavior The also relied Roderick’s heavily Board incarceration, has pro- Mr. Roderick “During his denying finding: parole, vocationally manner. He’s failed either in a limited grammed very upgrade self- and in beneficial sufficiently has educationally yet participated and back in 128(a) He had Chrono that was only counseling has one help. 115 and the last one was back And has had three serious disciplinarians 1991. findings, and that was for dismisses these marijuana.” majority 1993 need “The is in of additional indicating, ‘finding]’ Panel’s Roderick is with- as well as vocational and educational ‘programming]’ ‘upgrade[s],’ record, there would out in the is not scintilla of evidence that support these release the conclusion that demonstrate Roderick’s findings support ante, (Maj. would constitute unreasonable risk to safety.” opn., public 273.) This is not so. simply evidence in the record that could focuses on majority has such the fact Roderick been suitability parole, discipline- Steward, (that of J. states Roderick free since Ph.D. report “ ‘has attended all of the self available in the such as help prison groups ”), and and Alcoholics Dr. Hewchuk’s Anger Management Anonymous’ “ alcohol, indication that Roderick admitted to former ‘freely problem and has dealt with this and attendance at Alcoholics through membership issue ” ante, However, Anonymous meetings.’ majority (Maj. opn, fact that the Board ignores specific Roderick’s answers questions attended, Anonymous about two he had Alcoholics significant programs (a were deficient. (AA) 44-week-long CHANGE Project program), AA,25 unable and he was Roderick was to accurately steps explain additional he learned in the almost similarly unable articulate anything “com- he attended and CHANGE year-long Project program.26 Although little, if any, inmate had absorbed these programs, apparently pleted” AA, eighth step When could not articulate what steps asked about them), (make fourth amends to and confused the persons a list of all harmed and make (continue (make inventory) step searching moral with the similar tenth step and fearless Coughlin it). (See inventory wrong, v. personal promptly take and where admit Griffin 98, 100, AA]; (1996) steps fn. [12 N.Y.S.2d 673 N.E.2d [649 1] N.Y.2d [as <http.7/www.alcoholics-anonymous.org/en_information_aa.cfm?PageID+2&SubPage=56> 17, 2007].) Aug. mostly Roderick himself in Project program was conducted Apparently the CHANGE cell, were self- taking program he the “tests” references presumably information, however, testimony at the supplied administered there. This out, useful from them. information either of As the Board pointed certainly did not have learned from the that would appear anything programs give them confidence that he any would refrain from use of alcohol in the future, or be able to avoid in the committing crimes future. He could not from what he had extrapolate learned to an allegedly programs he had committed understanding why many so crimes the past, some evidence in the commitment There including offense.27 is thus certainly *52 record to the Board’s that Roderick’s institutional behav- ior a denial of lest we turn supported parole. Again, deferential review on its head, the there fact that is evidence to the in the record is contrary of no The that moment. fact there be alternative may for Roderick’s explanations nervousness, behavior in the such as his hearing, negate does not that evidence; it was Board’s role to to judge credibility issues and resolve such matters. the Board that never
Additionally, noted Roderick obtained his GED or any in vocational his participated counseling confine- during 20-plus years ment on the current offense. While be that he is too old for may argued now either of these failures to in his to matter terms of likelihood reoffend if really released into the it nevertheless remains true that he failed community, to in these areas. was told the Board Roderick in the to obtain “program” by past GED, so, his and when asked Board he had done his by why response he why his answers as to had not “I don’t typical “programmed” more: know They either. never called me to to school go really.” Apparently asked, tried, frustrated Roderick’s Board “You never by responses, really was, did Roderick’s “I talked them you?” to a times at response couple there, ago Central 13 over here. And I went over I did talk years when never them.” to Roderick’s answers would conclusion that he certainly support GED, never to obtain told to do so really attempted being by despite Board on also occasions. Roderick never to vocation- prior attempted upgrade ally over the more than two decades that he had been in state prison, despite on if being told to do so the Board occasions. When asked there was prior failure, a reason for this Roderick “No.” When the Board noted that replied, he had He been “down” Roderick claimed years, “My age.” replied, “if want . . . over 50 don’t to into a Given you’re they get you place.” above, other at failures effective institutional detailed “programming” however, whether, fray I decline enter the over the issue of and at what his training age. vocational became unavailable to due to point, court, evidentiary petition hearing corpus improperly on his habeas in the trial which was discussion, post, (See 303-305.) pp. admitted. Board, majority legitimate stating, The dismisses these concerns we have “[a]s already gain understanding explained, inability or articulate a better of his that, according negatively factor does not reports, behavior is a known to all affect his ante, 274.) suitability (Maj. parole.” opn., be would now just did tell him that he the Board Roderick’s hearing use. effectively else could more classes that someone in those taking space up however, areas remains, in these Roderick never “programmed” The fact and that repeatedly than 20 of incarceration state years prison, more else, these nothing Board do so. If directions ignored specific may the Board over years to follow the directions of failures specific his follow the cause his directives concern about reasonably ability release. officer his that Roderick has does show concedes majority “[t]he that led or to mechanisms limited either understand explain capacity factored and has been his But this limitation is known criminality. quantity ante, true While it may into risk (Maj. his assessment.” opn., lack to conclude that Roderick’s that some seemed psychological past reports assessment, did I find conclusion frankly not affect risk insight evaluations over the are inconsistent years perplexing. psychological *53 their to In earlier insight. reports Roderick’s lack of psychological approach able to (in 1992), and there no indication that Roderick was was no and these reach conclusions any insight, regarding articulate such reports states, “Inmate his risk assessment. The 1994 Roderick demonstrates report little this or about the causative factors offense self-understanding regarding his His is that he had bad but judgment, offenses. previous only explanation indicates, he cannot further this The then elaborate about explanation.” report released, to “If he in the is considered his violence paroled potential past The have and at to be decreased.” been estimated average, present that evaluation for the indicates Roderick’s hearing psychological self-understanding little about evaluation psychiatric “demonstrate[d] or his of- previous causative factors offense regarding commitment] [the fenses,” understanding and to the conclusion that his was somehow yet jumps same evaluation the “structure” of the offense.28 This within appropriate difficult understanding indicates that inmate had a time complexity “[t]his that, for years of substance He was able to articulate three finally abuse. arrest, way life he in such a drinking before this commitment had been fact, arrests criminal reflects history was no social.”29 Roderick’s longer At early under drunk in as 1967. being public the influence driving evaluation, however, was able to draw connection least in this one Roderick crimes. between his alcoholism his commission of For reports factual inaccuracies. psychological of the evaluation also contain Some dangerousness, that “Due example, its concludes report, the 1999 assessment Roderick’s disciplinary complete crime and his non-existent his lack violent including to several factors incarceration, problems inmate a less since population, poses a controlled this prison within added.) (Italics prior disciplinary had average potential.” than violence Roderick fact crime, convictions, as the commitment problems prison prior in state and several of his well as were of violence. crimes occasionally marijuana. also that he used Roderick admitted The 2003 indicates that Roderick “talked about the circum- report openly offense, stances of the instant comments reflect a new of insight sense incarceration,” into his further The without elaboration.30 most recent report, does not address issue at this all.31 Roderick’s of the account commitment crime and for his criminal has explanation long history changed little over his of incarceration. But one he years for the time when drew a crimes, connection between his use of alcohol and his commission of there was no as to had to what lead the explanation changed psychological evaluators to conclude either Roderick had such or that it gained insight, did not he matter that had failed to do so. describes the Board as majority becoming antagonistic toward
when he unable answer about the adequately questions programs “Moreover, had in. we can discern even on the cold record that participated member, one Panel questioning irritated Roderick’s plainly inability hear, give the kind answers he became expected antagonistic. quite He even criticized Roderick for not in the programs available attending afternoons because he fact sleeping, Roderick’s despite in the job canteen him to begin work at 2:00 a.m. It could not have required been that at this were defensive surprising point more responses ante, than While I with the introspective.” (Maj. opn., agree that at times it was clear that the majority Board members had become frustrated with I with its conclusion that it fault of petitioner, disagree was the the Board members that Roderick was unable Board adequately respond members’ cited questions. interchange majority *54 Roderick was position occurs unable to for his give any explanation after 30-year (other criminal than it and history “was he was equally stupid”), after unable to any show from the he in that insight gained programs participated would the Board members confidence he return give that would not to if drinking crimes released. At the in the relied committing point record the the Board was the upon by majority, winding hearing basically up Board members the giving to ask final One opportunity any questions. member Roderick’s such again he had questioned inability explain why lengthy criminal and commented about his failure to history adequately so as to issue. program gain insight into this Much earlier the prison as well as in the hearing, concluding this Board its portion, expressed dissatisfaction as in responses. Dannenberg, Just “[t]he always willing story happened Roderick seemed more than about the has tell his what night of the Why willingness during commitment crime. his to do so psychological however, insight, evaluation a new explained. showed is never 31 The report inaccuracy, appears also contains a factual as it to the attribute Roderick, probation actually made department by comment when it states that in the “[e]ven Report jury Probation Officer’s there is a comment about the nature that the did not unfortunate guilty charge, any charge find him lesser self appropriate of a if even were due to the defense nature of this altercation.” reasonable skepticism” showed its panel’s questions prisoner] [the 1095, italics (Dannenberg, 34 Cal.4th at
of the prisoner’s responses. added.) no the Board’s finds that there majority by was deficient. As indicated that
determination Roderick’s “programming” Roderick’s various expla- before the Board included record majority, his work for he unable to attend because nations why programs: schedule, lockdowns, schedule, because they meal because of because school, no were available. him” to and because programs did not “call go Board, was asked he had not why before the At hearing he At first that in more self-help group programs. responded participated . . . When the Board member out nothing don’t have .” “They pointed that the been in Roderick reiterated years, prison Roderick had prison all the time. Upon did not have and added that were locked anything, they up area, he years in this Roderick stated that seven continued questioning kitchen, would return a.m. to work getting 2:00 up afternoon, The Board to his cell and in the rather than attend programs. sleep had many concluded that Roderick reasonably conveniently could have excuses for not “programming.” from order the trial court
This case involves the prosecution’s appeal this issue regarding writ of habeas As to granting Roderick’s corpus. the trial court con- prison, of Roderick’s in state adequacy “programming” relief, ducted an on Roderick’s for habeas evidentiary hearing petition corpus sufficiently Roderick had not and found that Board’s conclusion that record, after to additional listening was not supported by “programmed” an evidentiary Roderick on this issue. To extent testimony from relief, is conducted in the trial court on a for habeas hearing petition corpus are trial factual if they we are bound court’s ordinarily findings substantial evidence.32 supported the habeas regarding corpus
There were several procedural anomalies First, notice of the given below. General was not Attorney proceeding *55 writ nor did the trial on Roderick’s of habeas hearing corpus, petition Attorney after the General Only court issue an order to show cause. initially a did the court that office to file filed a motion for reconsideration trial permit to to After Roderick’s counsel was given opportunity return the petition. return, the motion for the court granted file traverse to this apparently reconsideration, the petition to its order granting but refused vacate previous review, rely upon substantial evidence standard majority specifically The does not hearing, although conducting evidentiary findings after but does reference the trial court’s ante, opn., at reviewing (Maj. the Board. indicating they only are record before 264-265.) pp. instead conducted That was not hearing. hearing and was evidentiary submitted on the The trial court renewed pleadings. its earlier order granting the writ. never received notice of Having hearing that first where Roderick testified, had was Attorney General not and could neither cross- present examine Roderick nor present evidence to rebut his claims. that, however,
Beyond trial court could not receive Roderick’s properly at the hearing on the writ. testimony habeas Roderick’s did corpus testimony Board, not relate matters outside the hearing before the and to permit evidence to be given on same factual issues that before Board were undermines the standard totally of review that trial court was required in the habeas apply corpus The trial court should have proceeding. reviewed the Board’s decision under the same “any evidence” standard of review that review, we are compelled to Under this standard of apply. Roderick’s relevant, proffered testimony was and was outside the of the habeas scope Rosenkrantz, (See, corpus e.g., at proceeding. supra, 29 Cal.4th 675-676 pp. held to add evidence record [evidentiary hearing properly regarding Governor’s record in cases]; Board’s decisions in overturning Pope other v. Court, Superior at 640-641 should not hold Cal.App.3d pp. [court “ ” to on ‘evidentiary review habeas hearing’ corpus Adult revoca Authority tion of unless record of Authority Adult distinct reason discloses therefore].) As in an held Pope, evidentiary may not be a court to hearing “redetermine an of fact . issue . . which has been determined an record Adult (Id. 642.) adequate Authority.” Such further convert evidentiary hearings the normal standard of review that we would whether evidence” apply, “some the Board’s determi- supports nation, into of whether substantial evidence the trial inquiry supports ruling court’s to the contrary. Allowing augment the record petitioner Board, by introducing evidence not before the but factual issues relitigating it, that were before should The therefore not be trial court permitted. improperly expanded permissible of the habeas scope corpus hearing, we should not be bound to the substantial evidence standard of review apply to the trial court’s full available regarding participation programs. describes the'Board’s majority conclusion there no indication
that Roderick would behave if differently unsubstantiated paroled specula tion and criticizes using the Board for “stock as “the such phrases,” needs to participate order understand and with stress in self-help cope ante, states, nondestructive manner.” (Maj. opn., majority “This stock used to Roderick four phrase deny parole times. Appar also ently (Id., used across the state. genetically [Citations.]” *56 most, fn. 14.) No if many, there. Roderick not surprise undoubtedly crimes suffer from similar issues. who have committed violent prisoners be manner would to deal stress in nondestructive presumably with Learning in state and other similar classes offered the main goal anger management logically education obtain this kind of self-help Prisoners’ failure to prison. (see As discussed reason for denying parole. previously would be frequent ante, refers to as 282-283), use of what the majority the repetitive pp. or the need in self-help programs such as the phrases,” participate “stock is “rote found in the not wording governing regulations, hyperbole” exact unsuitability in for finding relied the Board being is improperly upon parole. since ability cope
The relies Roderick’s majority upon manner, as his ability in a indicative of stresses of life nondestructive prison is to violence once he resorting deal with stress without adequately in his of violent infractions state released into While lack community.33 issue, it be on this cannot determinative. certainly bearing has some prison that motivated him to Roderick does not have the same stressors Obviously Further, the very commit crimes in the him community prison. impacting to act of state him fewer gives opportunities controlled environment prison alcohol he will have release. he does not have Finally, out than violently upon him of a It lethal combination available to there. readily potentially concern in alcoholism that is for violence and particular propensity stated, “In a less case. evaluation Roderick’s As 1994 psychological he sobriety, be if maintains his setting, dangerous controlled he would less recent guaranteed.” but can not be most psychological predicted to life factor that lead Roderick back evaluation indicates the one may abuse, crime risk factor to violence stating, only significant is alcohol “the . . the majority would be inmate Roderick alcohol or . .” Even using drugs abuse.” criminal was “fueled his alcohol history notes that Roderick’s ante, 277.)34 (Maj. opn.,
Thus, determination that Roderick’s the Board’s some supports unsuitability parole. institutional favored a behavior Ornoski, found that the Dang WL 3041096 *7 33I note that the v. court years prior to (the of which was 10 six violations most recent properly upon Board relied rule issue) (the being years prior three to the most recent hearing at and minor infractions obviously transgressions are hearing) indicating negative institutional behavior. Older as relevant, rely upon too set become old and when such violations infractions stone. “remission,” being negating concern majority relies Roderick’s alcoholism drinking engaging in violent conduct. his returning habit potential about alcoholic, characterizing alcoholism as recovering may While considered bars or other given the lack of local hardly especially appropriate, “in remission” seems readily to him. would be available in state where alcohol prison establishments *57 (5) Prior History Criminal contest,
The does majority concede that which it cannot that there was some in the evidence record to the Board’s support reliance Roderick’s as a criminal circumstance prior history finding supporting unsuitability. “ The describes Roderick’s criminal ‘an crimi- majority history extensive violations, nal in . . history starting . related traffic Vehicle Code violations, much almost until pretty continuously, without break this crime ” ante, (Maj. statements.) 1980.’ at from opn., Board’s p. quoting indicates that criminal “over 28 majority history including two years, crimes,” violent and “the prior Panel’s long recognizes Roderick history has extensive criminal is most by certainly supported ante, evidence.” (Maj. 276.) opn., concludes that majority “[t]he however, whether, record, on question, this individualized the criminal history constitutes some evidence to conclusion that [Board’s] an unreasonable risk of to the poses danger public safety.” (Maj. ante, opn.,
The limited of Roderick’s summary record does not prior majority do that could justice be attached this circumstance. The weight Board in its refers to findings Roderick’s criminal and history starting much continuing continuously, almost without a break until this crime “pretty During hearing, 1980.” Board elicited admissions from Roderick offense,” lot that he “had a of contact with law . . enforcement before . that he was “kind of a and that he was kind of thug,” “just a career criminal.” Board,
As detailed Roderick’s criminal con- 30-plus-year history offenses, of a very sisted series of committed on a long basis almost regular incarceration, without break other than any and included periods many (such crimes related substance abuse as driving under the influence and drunk in being His criminal also included offenses public). history felony theft, such as and and violent burglary, forgery, grand grand included larceny, arrest, assaults, crimes such as two resisting an assault with a simple and deadly armed His criminal numer- weapon, robbery. history also reflects ous attempts community grants supervision, including probation and at least one parole, Obviously violation. Roderick’s criminal just some more than history provides this circumstance. supporting criminal includes substantial instances crimes of prior history violence, poor response community supervision, perfor- prior poor mance on and is indicative of and continuous parole, long history substance abuse.35 (c)(2) specifically While section subdivision does not reference consideration of a
prisoner’s history, nonviolent criminal the list of circumstances that section is nonexclusive (b) great range specifically section subdivision allows Board to consider a *58 the reliance case, the Board’s upon the court upheld the Fuentes
In and violence criminal it lacked any prior even history, though prisoner’s past the Board’s concern was is evident that noted: “It was “minimal.” court that it showed or but was violent extensive history not that Fuentes’s criminal conduct, to deal with to reform his had been given opportunities Fuentes of abuse, not availed himself the and had Navy, to remain in substance conduct. The in further criminal engaged but had instead those opportunities failure to heed wake-up nature of his conduct—his and recidivist repetitive factor for the legitimate and the he was given—was calls opportunities (Fuentes, 135 supra, to a denial of weigh parole.” Board favor of Here, both violent criminal was history at p. nature, extensive, he similarly and recidivist” demonstrating “repetitive calls, to avail himself of many failed wake-up failed heed repeated conduct, numer reoffended despite reform his repeatedly opportunities Brown, (See supra, Elkins 2006 at also v. community supervision. ous efforts conviction *7) history (one short criminal adult [relatively WL p. 3782892 reliance on record) and no was some evidence Board’s juvenile support unsuitable].) to find this circumstance prisoner the v. (Biggs relies the case from Ninth Circuit Biggs The majority upon 910, for the (9th 2003) (Biggs)) proposition Terhune Cir. 334 F.3d 916-917 crimi factors as the prisoner’s that continued reliance immutable such upon alone,36 exem continued to demonstrate nal when the has history First, rehabilitation, violate due process. behavior and evidence of plary may courts, be of may of intermediate federal while they decisions appellate courts, value, when they interpret are not on state even binding persuasive (1993) Cal.Rptr.2d federal v. 4 Cal.4th Zapien law. 989 (People [17 Further, Oct. 704].) (N.D.Cal., Hill Kane P.2d as the court indicated in v. 846 is not C06-3203SIPR) reasoning 2006 WL Biggs 2006 No. decisions, as federal review of state parole even in habeas controlling corpus been and has not Court precedent is not based on decided clearly Supreme the California Court.37 by adopted Supreme “ information,” including history, prisoner’s ‘past criminal and reliable such as “relevant ” Kane, (Paluzzi reliably v. misconduct which is documented.’
involvement
in other criminal
Brown,
accord,
*7.)
*6;
supra,
p.
supra,
Elkins v.
WL 3782892
2006
Judge
in Elkins v.
the
2006 WL
discusses
supra,
Sass,
of
impact
supra,
July
05-15275)
(Irons),
No.
Roderick’s criminal history is his convictions some- long, frequent, prior serious, times and often violent. His crimes reflect both an addiction to violence, alcohol toward and he tendency has failed under previously community This record alone would supervision. retention justify substantial of time that for other convicted period beyond of similar prisoners crimes, case, if that were the standard. Under the facts of we have not alone, reached the where point this immutable factor had the relying upon so, Board done would (if would), constitute violation due process it ever case, however, because it had all lost its value. In the predictive we present issue, need not reach the Board did not the immutable factor rely upon of the without criminal regard intervening factors. prisoner’s prior history Most significant of those factors intervening were Roderick’s failure to successfully program state and his attitude toward the crime. prison By his little, testimony at the if hearing, demonstrated he has any, into insight why committed so crimes in the many past, he committed why crime, the commitment or his alcoholism. As Board he did explained, evoke confidence that he would not return to life and violence drinking if released into community.
The record reflects that the Board in an engaged individualized evaluation of Roderick’s and the suitability does not contend parole, majority Board, otherwise. The only circumstance not considered *61 by the specifically which have tended to might show was the lack of suitability any parole, However, notes, evidence that Roderick had a the juvenile record. as majority Roderick indicated in one evaluation that he early psychological had been committed to the at youth the of 14. The that authority age majority surmises incident, this must have been an isolated as there is no record of any juvenile ante, in 21.) arrests Roderick’s file. (Maj. at fn. While it is true opn., p. that the (as criminal record set forth in prisoner’s the probation report the Corrections) from the California of reports does not even Department to, reflect this lone offense that Roderick admitted juvenile that absence of information does not necessarily the conclusion. Rather majority’s support incident, than it that was isolated one more speculating might reasonably extensive, surmise that either Roderick’s record or the juvenile that serious, offense underlying if it resulted in quite youth authority at commitment the of 14.38 young age 38 Apparently residing Washington youth of was still in the State time of this authority juvenile history commitment. Most of his been would have from 1940’s and is questionable accurately portion how rap the manual sheet would reflect even adult history vintage, adjudications.
nonautomated criminal that juvenile much less out-of-state
311 that is in the record that there no evidence concludes Finally, majority Roderick at this time would that releasing Board’s conclusion supports re relying upon The majority, danger public. an unreasonable pose II, and Scott 1408 Lee Cal.Rptr.3d 143 (2006) Cal.App.4th 931] [49 the proper takes the position at page supra, 133 Cal.App.4th any is whether unsuitability of the Board’s on review analysis Board, prisoner’s decision evidence the ultimate supports states, “it As the safety. majority endanger unreasonably public release would cited the factors is some evidence support is not that there enough the core determination denial; rationally must also that evidence denied, i.e., can be prisoner’s the statute before parole required by ante, (Maj. endanger safety.” opn., public release will unreasonably however, is settled, There analysis. is the correct that this 263.) It is not if some court should determine to whether a reviewing as disagreement the Board in finding cited by evidence the circumstances supports if test is whether some the correct parole, unsuitable for prisoner unsuitable for that the is overall determination Board’s supports safety. release unreasonably endangers public because his the court’s Lawrence case also with agrees the recent majority Lee, (Lawrence, supra, In re 1400. supra, Cal.App.4th analysis however, Perluss, in his dissent Justice Presiding Cal.App.4th standard,” Lawrence, of the some-evidence “recasting articulates why sense of in a justice court’s reviewing while it may appealing Rosenkrantz, case, long Cal.4th 616. So supra, at odds particular Board, way the only factor(s) relied some evidence supports is not Board’s decision to deny parole supported to determine that the (or “the court to decide reviewing probative some evidence is for the suitability.” other indicia outweighed by value of that factor predicative) Perluss, J.).) P. (dis. (Lawrence, opn. determina the review of the Governor’s discussed in the context of Although the same standard grant Board’s decision to parole, tion to override the Our review is determination. review of the Board’s attaches to judicial the Board’s finding whether some evidence determining supports limited to *62 for circumstance, unsuitable in the prisoner relied upon that each circumstances do tend to that these The indicate regulations exists. parole, and the manner in which (c)), (see subd. for unsuitability parole § show balanced, be attached and weight considered and these factors are (Rosenkrantz, at supra, 29 Cal.4th each, discretion of the Board. lies within the some by them is 677.) supported the Board’s reliance So as long p. is unsuitable evidence, prisoner the Board’s determination so is Rosenkrantz, “[Ujnder summarized in its decision As the court parole. standard a court is authorized review the factual basis [Board’s] only decision to determine whether it is by some evidence relevant supported (Id. to the is to consider . . . .” required italics p. [Board] factors added.) The court further elaborated that decision’s consideration “[i]f is not specified by some evidence in the and supported record thus factors devoid a factual basis court should grant prisoner’s ...” petition (Id. added.) that, italics I agree Presiding Justice Perluss as as it may be order to our tempting satisfy individual sense of and justice our support personal whether opinion regarding particular prisoner suitable for cannot we subvert the parole, deferential standard of review very in this manner.
Conclusion
As is evident from the areas of disagreement between the and majority case, dissent in the of evaluation of the present process circumstances to be considered the Board in determining whether life is suitable involves subjective calls. This is to judgment since the expected, Board is ultimately future trying predict which is nature dangerousness, Sturm, (See subjective analysis. supra, Cal.3d I we believe should ordinarily defer to the Board in the calls it judgment makes regarding circumstances; all, these after Board members both and vast training have experience this field. conduct They thousands literally parole suitability each hearings Board therefore has the year.39 to evaluate the opportunity egregiousness of facts of great number commitment offenses. It in, of, evaluates and participation successful for a completion great programs number of Board prisoners. members listen to the of a multitude of testimony inmates, histories, their assess attitudes toward their criminal toward their crimes, commitment toward their toward Board. “programming,” Board’s experience these circumstances far exceed training evaluating most, all, that of if not So there is judges. long any evidence in the record the circumstances the Board relies its determina upon making tion of its unsuitability, decision should be the deference given mandated by the decisional law of the United States Court and the California Supreme Hill, (See 455-456; Court. v. Supreme Superintendent U.S. at supra, pp. 1095-1096, 16; Rosenkrantz, Dannenberg, 34 Cal.4th at fn. supra, pp. 677-679.) 29 Cal.4th at pp. Superior See Board v. (2005) Prison Terms Court 1240 [31 *63 (several 2003); Cal.Rptr.3d parole hearings thousand suitability were held in 70]
<http://www.cdcr.ca.gov/ReportsResearch/caseload_stats.html> (as Aug. 2007). relied upon the circumstances record that supports evidence in the
There is is all that This unsuitable for parole. Board in by be upheld. should unsuitability Board’s determination and the required, be should writ habeas corpus granting court’s order The trial reversed.40 12, 2007, opinion and the denied rehearing September
A
for a
petition
as
above.
modified to read
printed
case,
stretching the
recent cases
other
particular
present
of the
and some
facts
context,
may
egregious
suitability
so
in the
deferential standard
review
However,
steady
of the deferential
high
yet
erosion
court.
the slow
call for attention from our
This
the need for intervention.
by these decisions indicates
of review as demonstrated
standard
review, as
standard of
manipulation of
elements of that
the subtle
erosion includes
(Lawrence, supra, 150
case
Presiding
to the Lawrence
Justice Perluss in
dissent
discussed
analysis
similar crimes
comparative
with other
1511), along
a continuation of
Rosenkrantz, supra, 29
analysis
proper
of the
despite
appears to be
clear statement
what
crime to the
(comparing the commitment
Dannenberg, supra,