SEPULVEDA, J., Dissenting. I respectfully dissent. Whether the prisoner Alfred William Roderick is suitable for parole may be a close question. This panel, if determining that question in the first instance, might well set a parole date for him. We may not agree with the Board of Prison Terms’s (Board)1 decision. We may not believe there is substantial evidence supporting unsuitability and that if we were reviewing the record under a sufficiency of the evidence standard, that the record would not support the Board’s decision. We may believe there is more evidence in the record supporting his suitability than there is supporting unsuitability. We may, in fact, believe that the evidence supporting suitability substantially outweighs that favoring unsuitability. We may even believe that the evidence supporting suitability is overwhelming. We may strongly feel that the state’s money, or our money as taxpayers, could be better spent than by continuing to house this prisoner in state prison. We may feel sorry for the prisoner. We may feel that his age calls out for his release. We may disagree with the entire statutory scheme governing the setting of parole dates for life prisoners. None of these beliefs, [279]however, matters under the very deferential standard of review that we are compelled to apply. Our role on review is extremely limited and does not permit us to be impacted by any of these factors. Nor are we permitted to manipulate the deferential standard of review in an attempt to effectuate a change in a statutory scheme that we may find distasteful.
Under the extremely deferential standard of review applicable in this case, the only issue before us is whether there is even a modicum of evidence to support the Board’s decision. Stated differently, unless the record is absolutely devoid of even the slightest evidence supporting the Board’s determination that Roderick is unsuitable for parole, we are required to affirm its decision. While the facts of this case are not as egregious as some recent cases where reviewing courts overturned either the Board’s or the Governor’s decision finding an inmate unsuitable for parole, and while it might therefore be tempting just to “go along” with the majority, I write separately because I view the majority here as symptomatic of recent decisions that appear to succumb to tihe temptation to substitute the reviewing court’s evaluation of suitability for parole for that properly vested in the Board or in the Governor. In many of these cases the appellate courts appear to determine first whether they personally believe the prisoner should have been granted parole (or, perhaps more aptly put, whether they would have found him suitable for parole had they been the decision maker), and then review the record through a lens created by their own sense of justice. By subtle manipulation of the standard of review, along with what often appears to be a hypercritical evaluation of the evidence relied upon by the Board or the Governor, these cases slowly but surely erode the highly deferential standard of review that is mandated in these cases.2 As the United States Supreme Court stated in Superintendent v. Hill (1985) 472 U.S. 445, 455 [86 L.Ed.2d 356, 105 S.Ct. 2768], while due process requires some evidentiary basis for the Board’s decision, that does not imply that the Board’s factual findings “are subject to second-guessing upon review.” Second-guessing, it appears to me, is exactly the path that the majority and several other reviewing courts have ventured down recently. Having examined the record, and applying the appropriate standard of review, I would reverse the trial court’s order granting Roderick’s petition for writ of habeas corpus.
[280] Standard of Review
The majority correctly summarizes the applicable standard of review, although it then succumbs to the temptation to ignore it and apply its own sense of justice to the case. It is therefore worthwhile to review the highly deferential standard of review we must be bound by here. The California Supreme Court has described the Board’s discretion in parole matters as “ ‘great’ ” and “ ‘almost unlimited,’ ” but it has also indicated that it is not absolute, as it is subject to a prisoner’s right to procedural due process. The Board’s decision must therefore have a factual basis, and “not be based on ‘whim, caprice, or rumor.’ [Citation.]” (In re Powell (1988) 45 Cal.3d 894, 902 [248 Cal.Rptr. 431, 755 P.2d 881].) The Board’s decision regarding suitability is subject to judicial review; however, that review is extremely limited. “[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision’s consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner’s petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law.” (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added.)
Rosenkrantz repeatedly describes the “some evidence” standard as extremely deferential, which requires only a “modicum of evidence” to support the Board’s denial of parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 679, 677, italics omitted.) Rosenkrantz indicates that the reviewing court is not permitted to review the Board’s weighing of the various circumstances indicating suitability or unsuitability for parole; the court should only determine whether the circumstances relied upon by the Board in determining unsuitability are supported by some evidence and whether the Board decided the defendant’s case on an individualized basis. (Id. at pp. 626, 677.) “As long as [the Board’s] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the [Board’s] decision.”3 (Id. at p. 677.) Further, “the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board],” and [281]“[Resolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board. [Citation.]” (Id. at pp. 677, 656.) Thus, the reviewing court must defer to the Board’s interpretation of the evidence.4 Further, as the court in Rosenkrantz explained, “It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole.” (Rosenkrantz, at p. 677; accord, In re Elkins (2006) 144 Cal.App.4th 475, 492 [50 Cal.Rptr.3d 503].)
The Rosenkrantz court elaborated upon this extremely limited review, stating, “As the United States Supreme Court explained in a related context: ‘Requiring a modicum of evidence to support a decision [to deny parole] will help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens. In a variety of contexts, the [United States Supreme] Court has recognized that a governmental decision resulting in the loss of an important liberty interest violates due process if the decision is not supported by any evidence [Citations.]’ [Citation.] ‘Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by [the Board]. [Citations.]’ ” (Rosenkrantz, supra, 29 Cal.4th at pp. 664-665, first italics added, citing Superintendent v. Hill, supra, 472 U.S. at pp. 455-456.)5
The court thus specifically recognizes that the standard of review is not to impose undue administrative burdens. The Board’s hearings must be reviewed in context: they are neither trials nor full-blown evidentiary hearings. “Although principles of due process apply, the parole authority is not required to proceed with the formality required of courts. [Citation.]” (In re Morrall (2002) 102 Cal.App.4th 280, 294 [125 Cal.Rptr.2d 391] (Morrall).) As the court explained in Rosenkrantz, “prior decisions characterize proceedings before the Board as informal, in contrast to judicial or formal administrative proceedings.” (Rosenkrantz, supra, 29 Cal.4th at p. 654; see also Pope v. [282]Superior Court (1970) 9 Cal.App.3d 636, 641 [88 Cal.Rptr. 483] [Adult Authority not limited to rules of evidence applicable in judicial proceedings; Authority not required to proceed with formality required of courts]; accord, In re Spence (1974) 36 Cal.App.3d 636, 639-640 [111 Cal.Rptr. 782].) For example, the California Supreme Court has previously held that a prisoner is not entitled to the same type of evidentiary hearing regarding parole suitability as is mandated when he is faced with revocation of his parole, and has therefore declined “to hold Morrissey[6] directly applicable” to parole suitability hearings. (In re Sturm (1974) 11 Cal.3d 258, 266 [113 Cal.Rptr. 361, 521 P.2d 97] (Sturm).) As the court explained, “[T]here are valid reasons for a distinction between revocation and release. In Morrissey the court recognized that revocation of parole involves the loss of a parolee’s conditional liberty, whereas parole release decisions concern an inmate’s mere anticipation or hope of freedom [citation]. Furthermore, a parole release proceeding is an attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts; in contrast, a revocation hearing involves a specific charge of out-of-prison misconduct which commends itself to quasi-judicial resolution. [Citations.]” (Sturm, supra, at p. 266; accord, In re Arafiles (1992) 6 Cal.App.4th 1467, 1480 [8 Cal.Rptr.2d 492].) However, the prisoner does have a right to be free from an arbitrary parole suitability decision. (Rosenkrantz, supra, 29 Cal.4th at p. 655 [“In Sturm, supra, 11 Cal.3d 258, we found in prior California decisions ‘a limited cognizance of rights of parole applicants to be free from an arbitrary parole decision, to secure information necessary to prepare for interviews with the [Board], and to something more than mere pro forma consideration.’ [Citation.]”].)
While the Board’s findings must state the circumstances it relies upon in deeming a prisoner unsuitable for parole and must be in writing, the Board need not detail facts in the record that support those circumstances. (See In re Lawrence (2007) 150 Cal.App.4th 1511, 1575-1576 [59 Cal.Rptr.3d 537] (dis. opn. of Perluss, P. J.) (Lawrence) [“Neither the due process clause nor the governing statutes obligates the Governor to provide a detailed written analysis of each parole suitability factor. [Citations.]”]; In re Elkins, supra, 144 Cal.App.4th at p. 490 [nothing in due process concepts requires Board to specify particular evidence in inmate’s file or at his interview on which it rests discretionary determination that inmate not ready for conditional release (citing, cf. Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 15 [60 L.Ed.2d 668, 99 S.Ct. 2100])].) The Board may use the language of the governing statutes and regulations in its decision. (Dang v. Ornoski (N.D.Cal., Oct. 24, 2006, No. C05-4254SI) 2006 WL 3041096 at p. [8] [for legal reasons, decision makers often use boilerplate language].) As the court recently explained in In re Fuentes (2005) 135 Cal.App.4th 152, 162 [37 [283]Cal.Rptr.3d 426] (Fuentes), “The trial court believed the Board used the statutory language in ‘an attempt to justify an arbitrary decision to deny parole,’ rather than engaging in a ‘reasoned consideration’ of the relevant factors. To the extent the court placed any weight on the Board’s use of the phrase ‘cruel manner’ rather than the word ‘egregious,’ the court erred; both have similar meanings and may be used interchangeably. Nor do we find any significance to the Board’s use of any other language contained in the regulation to describe its findings about the commitment offense.” (See also Lawrence, supra, 150 Cal.App.4th at p. 1569, fn. 6 (dis. opn. of Perluss, P. J.) [use of language “ ‘especially atrocious, heinous or callous’ ” reflects not rote hyperbole, but fact that governing regulations expressly provide crime committed in such a manner indicates unsuitability].) So long as the record contains a modicum of evidence supporting the circumstances the Board relies upon, its decision comports with due process.
In sum, “the ‘some evidence’ standard is extremely deferential and reasonably cannot be compared to the standard of review involved in undertaking an independent assessment of the merits or in considering whether substantial evidence supports the findings underlying [the Board’s] decision.” (Rosenkrantz, supra, 29 Cal.4th at p. 665.) We should not scour the entire record looking for evidence contrary to the Board’s decision, independently assess the credibility of witnesses, or reweigh the evidence; we are neither deciding the issue of suitability of parole de novo, nor are we even reviewing the Board’s decision to determine if it is supported by substantial evidence.
Regulations Governing Determination of Suitability
As indicated by the majority, the circumstances to be considered by the Board in determining whether a prisoner is suitable for parole, or if his release would pose an unreasonable risk of danger to society, are set forth in California Code of Regulations, title 15, section 2402, subdivisions (c) and (d).7 As explained in detail in Rosenkrantz, supra, 29 Cal.4th 616, “According to the applicable regulation, circumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. [Citation.] [f] The regulation further provides that circumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; [284](4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. [Citation.]” (Rosenkrantz, supra, at pp. 653-654, fn. omitted.) These regulations are set forth only as general guidelines and “ ‘the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.’ ” (Id. at p. 654.) In reviewing the Board’s decision, the court may determine only whether some evidence in the record supports the circumstances relied upon by the Board in finding unsuitability and “[i]f the decision’s consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner’s petition for writ of habeas corpus .... [Citations.]” (Id. at p. 658; see§ 2402, subds. (c), (d).)
Review of the Board’s Finding of Roderick’s Unsuitability for Parole
Although not a model of clarity, the Board’s finding of unsuitability in the present case appears to have been based on five circumstances: (1) the commitment offense; (2) the prisoner’s social history; (3) the prisoner’s past and present attitude toward the commitment offense; (4) the prisoner’s institutional behavior; and (5) the prisoner’s prior criminal history. The majority concludes that only the last of these circumstances, the prisoner’s criminal history, was supported by any evidence in the record, and that this “immutable” factor may not be a sufficient basis for denial of parole. To the contrary, the record does show some evidence supports each of the circumstances relied upon by the Board in finding that release of the prisoner would pose an unreasonable risk to public safety.
(1) Commitment Offense
If the prisoner committed the offense in a particularly atrocious, cruel, or heinous manner, that circumstance tends to establish unsuitability for parole. (§ 2402, subd. (c)(1).) As explained in Rosenkrantz, supra, 29 Cal.4th at page 653, footnote 11, “Factors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was [285]carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense. [Citation.]”
The majority disagrees with the Board’s determination that the nature of the commitment offense weighed in favor of unsuitability. It criticizes the Board for not specifically relying upon the language of section 2402, subdivision (c)(1) (that the crime was committed in an especially heinous, atrocious, or cruel manner) in its findings, and for not specifically referencing the factors set forth in section 2402, subdivision (c)(l)(A)-(E) that the Board is directed to consider in making such a determination, citing In re DeLuna (2005) 126 Cal.App.4th 585, 593-594 [24 Cal.Rptr.3d 643], It further concludes that a finding the Board did specifically make, that the prisoner had opportunities to avoid the commission of the murder but failed to do so, was neither supported by the evidence, nor properly relied upon by the Board. I disagree on all points.
The Board did indicate that it was relying on the circumstances of the commitment offense. The only circumstance listed in section 2402, subdivision (c) that relates to the commitment offense is subdivision (c)(1)— that the crime was committed in an especially heinous, atrocious, or cruel manner. We can infer, therefore, that the Board was relying upon section 2402, subdivision (c)(1) when it spoke to the circumstances of the commitment offense. While the Board is required to state in its written findings the circumstances it is relying upon to find the prisoner unsuitable for parole, under section 2402, subdivision (c), it is unclear whether the Board is additionally required to set forth in its findings the factors that the Board is directed to consider in making that determination as set forth in section 2402, subdivision (c)(l)(A)-(E).8 Assuming for the sake of argument, however, that the Board is required to further elaborate in some fashion in its decision upon the factors that it considered in determining that the crime was especially atrocious, cruel, or heinous, that requirement was adequately met here. Although the Board did not use the language of the enumerated factors specifically,9 it did indicate in its findings that it was basing its decision to deny parole in part on the nature of the commitment offense. The Board, relying upon the summary of the offense in the probation report, then explained that the offense arose out of a verbal disagreement inside a bar that Roderick escalated into a physical altercation, culminating in the death of the victim due to knife wounds inflicted by Roderick.
[286]According to the probation report’s summary of the witness accounts, the bartender told the victim and Roderick to take their fight (to this point only a verbal disagreement) outside. Roderick punched the victim in the face as they were going out the door; the victim staggered back and fell against the tables near the jukebox. The victim was dazed, stumbled around, and started to head out the door again. As the victim came out the door, Roderick punched him again. The altercation continued outside and “in a few seconds it was reported that the victim had been stabbed.” The victim died of knife wounds to the chest. Roderick fled the scene and was apprehended a short distance away. In its findings, the Board noted that according to Roderick, the verbal altercation inside the bar began when the victim confronted him because Roderick’s daughter (a security officer for Safeway) had arrested the victim’s aunt for shoplifting.
The Board then focused on the opportunities that Roderick had to defuse the developing confrontation, to not escalate it into a physical altercation, and to hence avoid murdering the victim, stating, “And there are a lot of other choices that you could have made, Mr. Roderick. You could have just left. You could have just gone home. You could have called the police. But that wasn’t the choice that you made.” Although not phrased in the exact language of section 2402, subdivision (c)(1)(E), the Board considered Roderick’s motive for committing the crime (that the offense arose from a verbal disagreement in a bar, that Roderick escalated it into a physical altercation that ultimately resulted in Roderick killing the victim by inflicting multiple knife wounds, and that he could have avoided committing the crime), and impliedly found it to be trivial.10 Thus, even if we are not able to rely upon factors the Board is directed to consider under section 2402, subdivision (c)(l)(A)-(E), which are supported by the record but were not relied upon by the Board in denying parole (In re DeLuna, supra, 126 Cal.App.4th at pp. 593-594), here it appears that the Board did in fact rely upon the prisoner’s trivial motivation for committing the crime.
The majority indicates that “[t]he motive for the killing was not inexplicable or trivial in its context” and concludes that “in this case there is no evidence to support a finding that the motive for the murder was less significant than in other second degree murder cases.” (Maj. opn., ante, at p. 266, italics added.) The majority relies on Scott I, supra, 119 Cal.App.4th at page 894 to support its position that the prisoner’s motive for committing the crime should be compared to that in other second degree murders. If this was [287]ever the correct test, it certainly can no longer be considered accurate in light of the California Supreme Court’s holding in In re Dannenberg (2005) 34 Cal.4th 1061 [23 Cal.Rptr.3d 417, 104 P.3d 783] (Dannenberg). The Scott I decision imports limitations upon the factors underlying the Board’s determination that the commitment crime was committed in an especially heinous, atrocious, or cruel manner (including the consideration of whether the motive was trivial) that the court specifically rejected in Dannenberg. The majority in Scott I, for example, found that “to demonstrate ‘an exceptionally callous disregard for human suffering’ (§ 2402, subd. (c)(1)(D)), the offense in question must have been committed in a more aggravated or violent manner than that ordinarily shown in the commission of second degree murder.” (Scott I, supra, 119 Cal.App.4th at p. 891, italics added.) This requirement of a comparative analysis with other second degree murders is carried over into its analysis of the underlying factor of whether the motive for the crime was trivial.
Justice Haerle in his dissenting opinion in Scott I best sets forth why this comparative analysis approach was, even at the time of Scott I, improper. “The majority, in frankly the least convincing part of its opinion, effectively substitutes its opinion for that of the Board, and does so by the tactic of setting up a patently false premise, to wit: ‘The reference in Board regulations to motives that are “very trivial in relationship to the offense” therefore requires comparisons; to fit the regulatory description, the motive must be materially less significant (or more “trivial”) than those which conventionally drive people to commit the offense in question . . . .’ [Citation.] This requirement of comparisons with other second degree murders is, purely and simply, an invention out of the proverbial whole cloth. Not a sentence, not a phrase, not a word in the Board’s regulations suggest that, at the parole-eligibility stage, the motives underlying Penal Code section 187 convictions are, much less should be, subject to any sort of comparison test. But such is what the majority then embarks on—complete with quotations from several abstract academic musings regarding criminal motive. It concludes that the Board erred in finding that ‘Scott’s motive for killing Bradford is less significant or important than others which account for the commission of second degree murder . . . .’ [Citation.] [f] The majority’s discursive venture into the exquisitely abstruse issue of comparative second degree murder motivations ignores the real issue. The only comparison the Board was making, or indeed was entitled to make, was that Scott’s motive for his actions was ‘trivial’ in relationship to the crime which resulted . . . .” (Scott I, supra, 119 Cal.App.4th at pp. 902-903 (dis. opn. of Haerle, J.).)11 That [288]Justice Haerle’s analysis was correct appears clear after the Supreme Court’s ruling in Dannenberg, supra, 34 Cal.4th 1061.
In Dannenberg the court was faced with the issue of whether the Board had to evaluate the prisoner’s case under standards of term uniformity before exercising its authority to deny parole on the grounds that the prisoner’s criminality presented a continuing public danger. The court determined that the Board need not do such a uniformity evaluation before determining suitability for parole. In reaching this conclusion, the court discussed its prior opinion in Rosenkrantz, supra, 29 Cal.4th 616, quoting from that opinion as follows: “we suggested that, in order to prevent the parole authority’s case-by-case suitability determinations from swallowing the rule that parole should ‘normally’ be granted, an offense must be ‘particularly egregious’ to justify the denial of parole.” (Dannenberg, supra, 34 Cal.4th at p. 1095.) The Governor in Rosenkrantz had relied upon circumstances of the prisoner’s offense that involved particularly egregious acts “ ‘beyond the minimum necessary to sustain a conviction for second degree murder,’ ” and “ ‘[accordingly, the Governor properly could consider the nature of the offense in denying parole.’ ” {Ibid.) The court noted that “Rosenkrantz did not say the parole authority must routinely subordinate suitability to uniformity ... or otherwise engage in a comparative analysis of similar offenses before deeming a particular life inmate unsuitable .... Our discussion, including our use of the phrase ‘particularly egregious,’ conveyed only that the violence or viciousness of the inmate’s crime must be more than minimally necessary to convict him of the offense for which he is confined.” {Ibid., original italics.) Further, the Dannenberg court, in evaluating whether the facts of that commitment crime were particularly egregious, found that the crime was “ ‘especially callous and cruel,’ showed ‘an exceptionally callous disregard for human suffering,’ and was disproportionate to the ‘trivial’provocation.’ ” (Ibid., italics added.) Thus the motive for committing the crime in Dannenberg was evaluated not by comparing it to the motive in other murders, but as suggested by Justice Haerle in his dissent in Scott I, by comparing it to the crime committed. Indeed, that method of comparison would appear to be the only appropriate one, given the specific language of section 2402, subdivision (c)(1)(E), which directs the Board to consider whether “[t]he motive for the crime is inexplicable or very trivial in relation to the offense” in determining whether the prisoner committed the crime in an especially heinous, atrocious, or cruel manner. (Italics added.)
The court recognized in In re Scott (2005) 133 Cal.App.4th 573, 598 [34 Cal.Rptr.3d 905] (Scott II) that Dannenberg, supra, 34 Cal.4th 1061, and Rosenkrantz, supra, 29 Cal.4th 616, require that the commitment offense be [289]compared to the minimal elements necessary for conviction, as opposed to the court engaging in a comparative analysis with other second degree murders, in determining its egregiousness. In conducting that analysis, however, the court compared the facts of Scott’s commitment offense with the facts of the commitment offenses in three other published cases. Other reviewing courts appear to have similar difficulty fully escaping from the incorrect method of comparative analysis and continue to engage in improper comparisons with other similar offenses. For example, the majority in Lawrence also compares the commitment crime to similar offenses in other published cases, stating, “Turning to [the] offense, it is hard to characterize what Lawrence did as more ‘atrocious,’ ‘heinous,’ ‘callous,’ or committed with more ‘extreme lethality’ than most of the other murders described above in which our fellow appellate courts found they failed as ‘some evidence’ supporting a Board or gubernatorial denial of parole.” (Lawrence, supra, 150 Cal.App.4th at p. 1556.)
By this approach, employing an ordinary method of legal analysis by comparing the facts of the current offense to the facts in other published opinions, a line of cases is developing wherein reviewing courts accomplish through the back door that which they are forbidden to do directly. These cases compare their commitment crime with the facts of prior published cases that found the circumstances of the commitment crime not to be sufficiently egregious, declare their commitment crime to not be as egregious as the facts in those published opinions, and thereby conclude that the facts of their commitment offense are not egregious enough to weigh in favor of unsuitability for parole. Of course, to the extent the earlier cases incorrectly conducted a comparative analysis, the subsequent reliance on that comparison becomes suspect; the entire line of case authority thus potentially becomes a house of cards. This method of comparing the current commitment crime to the facts in other cases, in this context, subtly employs the improper method of comparing the facts of the commitment offense to other similar offenses, rather than simply comparing it to the minimal elements of the offense. As Presiding Justice Perluss correctly explains in his dissent in Lawrence, “[U]tilizing a variant of the comparative analysis rejected in a related context by Dannenberg . . . the majority simply asserts it is hard to characterize Lawrence’s crime as ‘more “atrocious,” “heinous,” “callous,” or committed with more “extreme lethality” than most of the other murders described’ in other appellate decisions discussed by the majority. [Citation.] That, of course, is not the proper question for us to address in deciding whether, in the exercise of extremely deferential review, to overturn the Governor’s decision to reverse the Board’s grant of parole.” (Lawrence, supra, 150 Cal.App.4th at pp. 1568-1569, fn. omitted (dis. opn. of Perluss, P. J.).)
Another example of deviation from the correct method of comparison occurred in the recent case of In re Barker (2007) 151 Cal.App.4th 346, 373 [290][59 Cal.Rptr.3d 746] (Barker). There the court stated, “Barker’s petition appropriately concedes that [his friend’s] grandfather did suffer until he was shot, but goes on to assert that the murder was no ‘more callous, dispassionate, calculated, cruel or committed with more disregard for suffering than most such offenses.’ Without in any way minimizing the severity of Barker’s crimes, we agree with this argument. [Citation.]” (Ibid., italics added.) As authority for this position, the Barker court quotes Scott I, supra, 119 Cal.App.4th at page 891: “ ‘the offense in question must have been committed in a more aggravated or violent manner than that ordinarily shown in the commission of . . . murder.’ ” (Barker, supra, at p. 373.) As previously indicated, even Scott II recognizes that after Dannenberg, supra, 34 Cal.4th 1061, this method of comparison is no longer appropriate. (Scott II, supra, 133 Cal.App.4th at p. 598.) The court in Barker drifts back to the correct analysis, comparing the commitment crime to the minimal elements required for murder, but reaches the extraordinary conclusion that “But however horrific the murders, however horrific the outcome of Barker’s participation, again it is difficult to discern how that participation can be considered anything other than the minimum for ‘malice aforethought.’ ” (Barker, supra, at p. 373.) The Barker opinion also harkens back to Scott I’s incorrect analysis regarding the motivation for the crime, indicating that “ ‘the motive must be materially less significant (or more “trivial”) than those which conventionally drive people to commit the offense in question . . .’ ” rather than properly comparing the motive to the particular circumstances of the commitment crime. (Barker, supra, at p. 374, italics added.) Undoubtedly some future cases will compare the facts of their commitment crimes to the fairly egregious facts in Barker, declare the facts of their cases to be less egregious than the Barker facts, and conclude that their cases are therefore not sufficiently grave to weigh in favor of unsuitability. For the reasons indicated ante, these types of comparative analyses are inappropriate. Applying the correct analysis here, Roderick’s motive for committing the murder was trivial when compared to the crime committed, killing the victim by inflicting multiple knife wounds.
The majority, relying upon Barker, opines that “few—if any—motives would not be trivial relative to the kind of findings that are required to convict on first or second degree murder.” (Maj. opn., ante, at p. 266, original italics.) Indeed the language relied upon by the majority from Barker states, “ ‘Given the high value our society places upon life, there is no motive for unlawfully taking the life of another human being that could not reasonably be deemed “trivial.” ’ ” (Barker, supra, 151 Cal.App.4th at p. 374.) This analysis ignores the fact that the governing regulations specifically direct the Board to consider whether “[t]he motive for the crime is inexplicable or very trivial in relation to the offense.” (§ 2402, subd. (c)(1)(E).) If properly evaluated, the motive would be compared to the circumstances of the [291]commission of the underlying offense, and if it was trivial in comparison to the crime committed, that would support a finding that the commitment crime was egregious.
Even if the Board in the present case did not generally rely upon Roderick’s motive for committing the crime, at the very least it specifically relied upon Roderick’s missed opportunities to defuse the situation and avoid the escalation which led to the murder. The majority opines, however, that it was inappropriate for the Board to consider these missed opportunities to avoid committing the crime, as that is not a specifically enumerated factor under section 2402, subdivision (c)(l)(A)-(E). The factors listed there, however, should not be considered all inclusive and are intended as guidelines to, rather than limitations upon, the types of factors that the Board can consider in determining whether the offense was carried out in an especially heinous, atrocious, or cruel manner. As the court explained in Dang v. Ornoski, supra, 2006 WL 3041096 at p. [7], “the list of circumstances in section 2402(c) is non-exclusive, and section 2402(b) specifically allows the [Board of Prison Terms] to consider a great range of relevant and reliable information . . . .” (Accord, Paluzzi v. Kane (N.D.Cal., Oct. 23, 2006, No. C06-801SI) 2006 WL 3020919 at p. [6] [the list of circumstances in section 2402, subdivision (c) is nonexclusive]; Elkins v. Brown (N.D.Cal., Dec. 21, 2006, No. C05-1722MHP) 2006 WL 3782892 at p. [7] [same].)
Similarly, the factors enumerated in section 2402, subdivision (c)(l)(A)-(E) should not be read to limit the Board’s discretion in determining whether a crime was committed in an especially heinous, atrocious, or cruel manner. The language of the regulation itself supports this interpretation. (§ 2402, subd. (c)(1) [“The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: [1] (A) Multiple victims were attacked, injured or killed in the same or separate incidents.”]; Rosenkrantz, supra, 29 Cal.4th at p. 653, fn. 11 [“Factors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner include the following . . . .” (Italics added).].) Indeed In re Morrall reached exactly that conclusion, indicating that the factors listed in section 2402, subdivision (c)(l)(A)-(E) to be considered in determining if the crime was carried out in an especially heinous, atrocious, or cruel manner, are nonexclusive. (Morrall, supra, 102 Cal.App.4th at p. 301.)
In In re Smith (2003) 114 Cal.App.4th 343, 368 [7 Cal.Rptr.3d 655], the fact that the petitioner had an opportunity to stop the crime but continued on with it, along with several other facts about the manner in which the crime was committed, was relied upon as supporting a finding that the crime was particularly egregious. There was some evidence in the record to support the [292]Board’s similar conclusion in the present case. There is evidence that Roderick killed the victim by inflicting multiple knife wounds, with a trivial motive, and that he had opportunities to prevent the crime from occurring. Just as in Smith, this is some evidence supporting the Board’s finding that the circumstances of the commitment offense weighed against suitability for parole.
The majority relies, in part, upon Roderick’s account that it was the victim who initially pulled the knife on him, in concluding that the motive for the crime was not less significant than in other cases. (Maj. opn., ante, at p. 266.) Other than defendant’s account of the crime, which both the investigating officer12 and the district attorney indicated conflicted with both physical evidence and witness accounts, and which was apparently rejected by the jury, there was no indication that the victim initiated the physical altercation, or that he initially had the knife. (See Paluzzi v. Kane, supra, 2006 WL 3020919 at p. [6] [district attorney’s statement could not be independent basis for denying parole, but was relevant in countering petitioner’s characterization of killing].)
According to Roderick’s statement to the probation officer, and apparently his testimony at trial, the victim was armed with the knife and pulled it on Roderick. A struggle ensued, and Roderick was able to get control of the knife. Roderick claimed that he stabbed the victim with the knife in self-defense as the victim kept trying to throw Roderick down, and that was when the fatal wound was administered. Had the jurors accepted Roderick’s version of the events, they would have either acquitted him (if they believed that he was acting in self-defense) or found him guilty of manslaughter (if they believed he acted in an honest, but unreasonable need to defend or in the heat of passion). Because jurors convicted him of second degree murder, it appears they rejected his story. The majority unreasonably carves out one small part of Roderick’s account, that the victim initially had the knife, concludes that the jury believed that (but nothing else that Roderick said), and relies upon that version of the events. A more reasonable conclusion is that the jury rejected the entirety of Roderick’s version of the events, including who initially had the knife.13
In any event, the interpretation of the facts, and the weight to be given to the circumstances of the offense, are matters for the Board’s determination. As the court indicated in Rosenkrantz, supra, 29 Cal.4th at page 679, [293]“Although the [Board] is required to consider whether the prisoner committed the crime as the result of significant stress in his or her life, the importance attached to this circumstance is left to the judgment of the [Board] .... [0]ur inquiry strictly is limited to whether some evidence supports the [Board’s] assessment of the circumstances of petitioner’s crime—not whether the weight of the evidence conflicts with that assessment or demonstrates that petitioner committed the offense because of extreme stress.” (Italics added.)
The majority concludes that “[t]o state that a defendant ‘could have just left’ or ‘could have just gone home’ says nothing more than the defendant could have chosen not to pick the fight or mortally wound his victim; these facts do not describe the manner in which the murder was committed.’ ” (Maj. opn., ante, at p. 267, original italics.) That may be true, but the same could be said regarding one’s motive to commit the crime, and yet section 2402, subdivision (c)(1)(E) indicates that a trivial motive for committing the crime is a factor to consider in determining the gravity of the offense. Again, the opportunity to avoid a crime goes to the motive for committing it; even if it does not, however, the Board is not restricted from considering factors other than those specifically enumerated in determining the gravity of the commitment offense.
While I agree with the majority that the manner in which the commitment crime here was carried out was not otherwise heinous, atrocious, or cruel, there was evidence that the victim died from multiple knife wounds inflicted by Roderick, that the motive for the commitment offense was trivial in comparison to the crime committed, and that Roderick ignored opportunities to avoid committing the crime. There was, therefore, some evidence to support the Board’s reliance upon the gravity of the offense, and its implied finding that it was more egregious than required by the minimal elements of second degree murder. However, the Board did not rely on the nature of the commitment crime alone in finding Roderick unsuitable for parole, and indeed this circumstance did not appear to be the primary focus of its findings.14
(2) The Prisoner’s Social History
Again, although not articulately stated, the Board relied upon Roderick’s unstable social history.15 Section 2402, subdivision (c)(3) indicates that an [294]unstable social history (a history of unstable or tumultuous relationships with others) is a circumstance tending to show unsuitability for parole. There is some evidence in the record to support this circumstance.
The record indicates that Roderick was raised by his paternal grandmother after his parents’ divorce (when he was an infant), that he never had contact with his estranged mother until he was 16 (although she lived within 40 miles of his home), and that he never established a relationship with her. Roderick stated at the parole hearing that he also never had a relationship with his father, because he did not care for his stepmother. Roderick dropped out of high school after the 11th grade. His first marriage ended in divorce after three years. Additionally, as specifically referenced by the Board, Roderick’s extensive criminal history and abuse of alcohol are also indicative of an unstable social history. Factors such as the prisoner’s criminal history, dropping out of high school, and drug abuse have been found to support reliance upon the unstable social history circumstance in finding unsuitability. In Robles v. Solis (N.D.Cal., Oct. 12, 2006, No. C04-2529CRB) 2006 WL 2934086 (Solis), the court relied upon the petitioner’s street-gang lifestyle, resulting in multiple juvenile arrests, and the fact that petitioner was on probation at the time of the commitment offense, as showing an unstable social history. (Id. at p. [3].) In Dang v. Ornoski, supra, 2006 WL 3041096 at pp. [6]-[7], the Board properly relied upon the prisoner’s dropping out of high school, running away, and joining a gang as indicative of an unstable social history, despite his unfortunate history as a Vietnamese refugee. In Elkins v. Brown, supra, 2006 WL 3782892 at p. [7], the court similarly found that the Board properly relied upon the prisoner’s limited past criminal history and drug abuse as indicating an unstable social history. (Accord, Paluzzi v. Kane, supra, 2006 WL 3020919 at p. [6]
There are also facts in the record that could arguably indicate that Roderick has had some stable social relationships. First, he was married for 20 years, although he was divorced long before the commitment offense. He spent much of those 20 years behind bars, a fact that could be argued to either show a very stable relationship that endured despite forced separation, or which could be argued to lessen the value of this long-term marriage as indicative of stable social relationships that would prevent the prisoner from reoffending in the future. His crimes during this period were numerous and included not only several alcohol-related offenses (indicating abuse of alcohol), but also felonies and crimes of violence. Additionally, one of his arrests during this time period was for vagrancy. (Pen. Code, § 647.6.)
Roderick has an adult daughter, Angela Stapp, who has offered him a place to reside after he is paroled. Ms. Stapp was 21 years old when the probation [295]report was prepared in 1985. Again, this relationship might be seen as a stable social relationship were it not for the fact that Roderick spent many of the years that Ms. Stapp was growing up either in jail or state prison, where of course he has also spent the last 20 years. While it could be argued that her support of her father indicates a stable social relationship that has survived their years of separation, it could also be argued that Roderick’s daughter never really had the opportunity to have any relationship with her father, much less a stable one. Given Roderick’s criminality and alcoholism during the pertinent periods of time, neither his relationship with his ex-wife, nor his relationship with his daughter, is the type of stable social relationship that has predictive value, that is, neither relationship would indicate that Roderick would be able to function in society without returning to his old ways.
In any event, the fact that there was evidence that might arguably indicate that Roderick might have some “stable” social relationships does not negate the evidence that he did not have an overall stable social history. Applying the correct standard of review, while there was evidence to support a contrary conclusion, there was some evidence in the record that Roderick’s social history was not stable.16 The Board’s reliance on this factor was supported by a modicum of evidence in the record; nothing more is required. As noted previously, cases have relied upon a prisoner’s past criminal history and drug abuse alone as indicative of an unstable social history. Here, there is ample evidence of both an extensive criminal history and severe alcohol abuse. These facts, along with the other indications of a lack of stable social history, support the Board’s reliance on this circumstance. However, this circumstance also did not appear to be the primary basis of the Board’s finding of unsuitability for parole.
(3) The Prisoner’s Attitude Toward the Commitment Offense
The Board also relied upon Roderick’s attitude toward the commitment offense, pursuant to section 2402, subdivision (b), which indicates that the Board should consider the prisoner’s past and present attitude toward the commitment offense. The Board specifically indicated that the prisoner needed “to develop insight into the impact of his criminal behavior and in particular, the impact of this crime where a man lost his life.” Further, the Board found that the prisoner needed “to understand the underlying factors that led not only to this commitment offense, but also to his entire criminal history . . . .” This circumstance did appear to be one of the primary reasons the Board found Roderick unsuitable for parole.
[296]One past psychological report (2003 report of E.W. Hewchuk, Ph.D.) indicated that Roderick “talked openly about the circumstances of the instant offense, and his comments reflect a new sense of insight into his incarceration. He is fully remorseful, and aware of the effect of his actions on the victim’s family.” In 1999, M.E. Carswell, Ph.D., stated that “[t]his inmate is very remorseful for causing the victim’s family grief, and he is as sorry for taking this time away from his own family.”17 The majority relies upon these past reports in concluding that “[w]e see no evidence to support a conclusion that Roderick lacked insight into the impact of his criminal behavior or his commitment crime.” (Maj. opn., ante, at p. 270, original italics.) The majority goes on to find that “Roderick provided a less than incisive explanation for his chronic criminality, but his responses also reflected acceptance of his alcoholism, acknowledgement of responsibility for his crimes, remorse, and shame.”18 (Maj. opn., ante, at p. 272.)
The inmate’s responses to questions posed by the Board at the parole hearing, however, belie earlier indications in psychological reports of remorse and insight into his incarceration. When asked why his criminal history was so long,19 Roderick replied, “Stupid is all I can tell you.” Obviously responding negatively to the inmate’s attitude as expressed in this answer, the Board pressed him further, asking, “Does that make sense to you?” Roderick replied that it did not. The Board then inquired, “What kind of answer is that?” Roderick replied, “I don’t know.” The Board then tried to get Roderick to express some reason for his long criminal history by asking if he committed the crimes because he thought it was exciting, and expressed that “I hear all kinds of reasons for criminal behavior and you just don’t seem to know why you were doing it.” Roderick replied, “It don’t make sense, I’ll agree with you.” The Board then tried to lead the inmate into a possible explanation for his criminality, asking if he had a substance abuse problem, and Roderick admitted that he “was drinking.” When asked if he was an alcoholic, Roderick replied, “Evidently were, I was drinking too much.” The inmate expressed that he only drank when he was not working.20 The Board [297]then asked again why Roderick committed all these crimes, if it was not to support a drug or alcohol problem, and since he had a family. Roderick could never articulate any reason why he led such a long life of crime, and he was unable to draw a connection between his alcoholism (which was quite extreme, given the number of alcohol-related crimes he was arrested for over the years) and his criminal history.
As to the commitment offense, Roderick indicated that the victim produced the knife initially, Roderick gained control over the knife, and then the victim was fatally injured during a struggle over the knife. This was apparently largely the same account of the crime that Roderick has repeated over the years during prior parole hearings, and which has been reiterated in psychological reports (including the 2005 report). Roderick did originally tell the probation department, and apparently testified at trial, that he stabbed the victim during a struggle over the knife, during which the victim kept trying to throw him down, and that he was acting in self-defense. The investigating officer told probation that this account of the crime was inconsistent with the physical evidence and witness accounts. Further, Roderick’s claim of acting in self-defense was rejected by the jury. Roderick’s testimony at the 2005 parole hearing, however, did not include a specific claim that he was acting in self-defense, but did include an admission that he intentionally stabbed the victim, without any real explanation as to why he did so.21 The district attorney at the parole hearing argued that Roderick’s account was inconsistent with the victim’s injuries, the statements of the witnesses, and the verdict of the jury. As argued by the prosecutor at the parole hearing, Roderick still showed no remorse for the killing and still seemed to take the position that he had no choice but to kill the victim. (See Paluzzi v. Kane, supra, 2006 WL 3020919 at p. [6] [proper consideration of district attorney’s argument].)
Roderick’s attitude toward the current offense, both in terms of understanding why it occurred and showing remorse, as expressed at the parole hearing, was poor. The Board was present at the hearing and was able to evaluate Roderick’s credibility, sincerity, and attitude. The Board was entitled to give the prisoner’s own testimony, demeanor, and attitude more weight than it did past psychological reports.22 We are not permitted to substitute our judgment [298]on those issues for that of the Board. The fact that there is evidence in the record regarding this circumstance that would support a finding of suitability (the prior psychological reports) does not negate the evidence in this regard which supports a finding of unsuitability. “Resolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board.” (Rosenkrantz, supra, 29 Cal.4th at p. 656.) We should not engage in an “ ‘examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by [the Board]. [Citations.]’ [Citation.]” (Id. at p. 665, original italics.) In the present case, even though there may have been evidence in the record to the contrary, there was some evidence supporting the Board’s determination that Roderick’s attitude toward the commitment offense weighed in favor of unsuitability; that is all that is required.23 The fact that the majority may read Roderick’s responses differently is of no import under the deferential standard of review applicable here.
Finally, the majority recognizes that Board members, like trial judges, are in the best position to evaluate the credibility and attitude of the prisoner, and that we must defer to its judgment on those issues. The majority concludes, however, that “[i]t was only the content of Roderick’s responses [not his attitude] that did not satisfy the Panel,” citing the fact that the Board took him to task when it was upset with his attitude. (Maj. opn., ante, at p. 271, fn. 26.)24 The portion of the record that the majority cites to in support of this position does little to bolster its conclusion. The comments by the Board member cited by the majority come from the prisoner’s 1994 parole hearing, after the presiding commissioner had stated the ruling of the Board and turned to Deputy Commissioner Mar for any concluding comments. Mar remarked, “Yeah, I have one comment. Mr. Roderick, you’ve been in prison as long as I’ve worked in prisons, and what you give me in your appearance today is a very nonchalant, indifferent attitude about your whole situation, about your life history and the crime. And I’m really puzzled by the solution as to what can the State or what can you do to keep yourself out of prison, which I don’t think you really care much about in or out of prison.” (Italics added.) The fact that a Board member, at a hearing some 11 years before the hearing at issue here and with completely different Board members, specifically chose to take Roderick to task for his attitude does not indicate that Board members were not similarly impacted by Roderick’s attitude in the 2005 hearing. Indeed, Mar’s comments in 1994 would seem to pretty well [299]summarize the Board’s conclusions in 2005. A fair reading of the 2005 hearing transcript reveals that the Board was frustrated with Roderick’s attitude toward his criminal history, the commitment crime, and his “programming” in state prison.
(4) Prisoner’s Institutional Behavior
The Board also relied heavily upon Roderick’s institutional behavior in denying parole, finding: “During his incarceration, Mr. Roderick has programmed in a very limited manner. He’s failed to upgrade either vocationally or educationally and has not yet sufficiently participated in beneficial self-help. He has had only one 128(a) counseling Chrono and that was back in 1991. And has had three serious 115 disciplinarians and the last one was back in 1993 and that was for marijuana.” The majority dismisses these findings, indicating, “The Panel’s ‘finding]’ that Roderick is in need of additional ‘programming]’ as well as vocational and educational ‘upgrade[s],’ is without support in the record, and there is not a scintilla of evidence that would support the conclusion that these findings demonstrate Roderick’s release would constitute an unreasonable risk to public safety.” (Maj. opn., ante, at p. 273.) This is simply not so.
The majority focuses on evidence in the record that could support a finding of suitability for parole, such as the fact that Roderick has been discipline-free since 1993, the report of J. Steward, Ph.D. (that states that Roderick “ ‘has attended all of the self help groups available in the prison such as Anger Management and Alcoholics Anonymous’ ”), and Dr. Hewchuk’s indication that Roderick “ ‘freely admitted to a former problem with alcohol, and has dealt with this issue through membership and attendance at Alcoholics Anonymous meetings.’ ” (Maj. opn, ante, at p. 273.) However, the majority ignores the fact that Roderick’s answers to specific questions by the Board about the two significant programs he had attended, Alcoholics Anonymous (AA) and Project CHANGE (a 44-week-long program), were deficient. Roderick was unable to accurately explain the steps of AA,25 and he was similarly unable to articulate anything additional he learned in the almost year-long Project CHANGE program.26 Although he attended and “completed” these programs, the inmate apparently had absorbed little, if any, [300]useful information from either of them. As the Board pointed out, he certainly did not appear to have learned anything from the programs that would give them any confidence that he would refrain from the use of alcohol in the future, or be able to avoid committing crimes in the future. He could not extrapolate from what he allegedly had learned in the programs to an understanding of why he had committed so many crimes in the past, including the commitment offense.27 There is thus certainly some evidence in the record to support the Board’s finding that Roderick’s institutional behavior supported a denial of parole. Again, lest we turn deferential review on its head, the fact that there is evidence to the contrary in the record is of no moment. The fact that there may be alternative explanations for Roderick’s behavior in the hearing, such as his nervousness, does not negate that evidence; it was the Board’s role to judge credibility issues and to resolve such matters.
Additionally, the Board noted that Roderick never obtained his GED or participated in any vocational counseling during his 20-plus years of confinement on the current offense. While it may be argued that he is now too old for either of these failures to really matter in terms of his likelihood to reoffend if released into the community, it nevertheless remains true that he failed to “program” in these areas. Roderick was told by the Board in the past to obtain his GED, and when asked by the Board why he had not done so, his response was typical of his answers as to why he had not “programmed” more: “I don’t know either. They never called me to go to school really.” Apparently frustrated by Roderick’s responses, the Board asked, “You never really tried, did you?” Roderick’s response was, “I talked to them a couple of times at Central 13 years ago over here. And when I went over there, I never did talk to them.” Roderick’s answers would certainly support a conclusion that he never really attempted to obtain a GED, despite being told to do so by the Board on prior occasions. Roderick also never attempted to upgrade vocationally over the more than two decades that he had been in state prison, despite being told to do so by the Board on prior occasions. When asked if there was a reason for this failure, Roderick replied, “No.” When the Board noted that he had been “down” for 20 years, Roderick replied, “My age.” He claimed that “if you’re over 50 they don’t want to get you . . . into a place.” Given the other failures at effective institutional “programming” detailed above, however, I decline to enter the fray over the issue of whether, and at what point, vocational training became unavailable to Roderick due to his age. In [301]Roderick’s hearing in 2002, the Board did tell him that he would now just be taking up space in those classes that someone else could more effectively use. The fact remains, however, that Roderick never “programmed” in these areas in more than 20 years of incarceration in state prison, and that he repeatedly ignored specific directions by the Board to do so. If nothing else, these failures to follow the specific directions of the Board over the years may reasonably cause concern about his ability to follow the directives of his parole officer upon his release.
The majority concedes that “[t]he evidence does show that Roderick has a limited capacity either to understand or to explain the mechanisms that led to his criminality. But this limitation is a known quantity and has been factored into his risk assessment.” (Maj. opn., ante, at p. 271.) While it may be true that some past psychological reports seemed to conclude that Roderick’s lack of insight did not affect his risk assessment, I frankly find the conclusion perplexing. The psychological evaluations over the years are inconsistent in their approach to Roderick’s lack of insight. In earlier psychological reports (in 1989 and 1992), there was no indication that Roderick was able to articulate any such insight, and these reports reach no conclusions regarding his risk assessment. The 1994 report states, “Inmate Roderick demonstrates little self-understanding about the causative factors regarding this offense or his previous offenses. His only explanation is that he had bad judgment, but he cannot elaborate further about this explanation.” The report then indicates, “If he is paroled or released, his violence potential in the past is considered to have been average, and at present is estimated to be decreased.” The psychological evaluation for the 1999 hearing indicates that Roderick’s psychiatric evaluation “demonstrate[d] little self-understanding about the causative factors regarding [the commitment] offense or his previous offenses,” and yet jumps to the conclusion that his understanding was somehow appropriate within the “structure” of the offense.28 This same evaluation indicates that “[t]his inmate had a difficult time understanding the complexity of substance abuse. He was finally able to articulate that, for three years before this life commitment arrest, he had been drinking in such a way that was no longer social.”29 In fact, Roderick’s criminal history reflects arrests for driving under the influence and being drunk in public as early as 1967. At least in this one evaluation, however, Roderick was able to draw a connection between his alcoholism and his commission of crimes.
[302]The 2003 report indicates that Roderick “talked openly about the circumstances of the instant offense, and his comments reflect a new sense of insight into his incarceration,” without further elaboration.30 The most recent report, in 2005, does not address this issue at all.31 Roderick’s account of the commitment crime and explanation for his long criminal history has changed little over his years of incarceration. But for the one time when he drew a connection between his use of alcohol and his commission of crimes, there was no explanation as to what had changed to lead the psychological evaluators to conclude either that Roderick had gained such insight, or that it did not matter that he had failed to do so.
The majority describes the Board as becoming antagonistic toward Roderick when he was unable to adequately answer questions about the programs he had participated in. “Moreover, we can discern even on the cold record that the questioning by one Panel member, plainly irritated at Roderick’s inability to give the kind of answers he expected to hear, became quite antagonistic. He even criticized Roderick for not attending programs available in the afternoons because he was sleeping, despite the fact that Roderick’s job in the canteen required him to begin work at 2:00 a.m. It could not have been surprising that at this point Roderick’s responses were more defensive than introspective.” (Maj. opn., ante, at p. 274.) While I agree with the majority that at times it was clear that the Board members had become frustrated with petitioner, I disagree with its conclusion that it was the fault of the Board members that Roderick was unable to adequately respond to Board members’ questions. The interchange cited by the majority to support this position occurs after Roderick was unable to give any explanation for his 30-year criminal history (other than it “was stupid”), and after he was equally unable to show any insight gained from the programs he participated in that would give the Board members confidence that he would not return to drinking and committing crimes if released. At the point in the record relied upon by the majority, the Board was basically winding up the hearing and giving Board members the opportunity to ask any final questions. One member again questioned Roderick’s inability to explain why he had such a lengthy criminal history and commented about his failure to adequately program in prison so as to gain insight into this issue. Much earlier in the hearing, as well as in this concluding portion, the Board expressed its dissatisfaction with Roderick’s responses. Just as in Dannenberg, “[t]he [303]parole panel’s questions to [the prisoner] showed its reasonable skepticism” of the prisoner’s responses. (Dannenberg, supra, 34 Cal.4th at p. 1095, italics added.)
The majority finds that there is no evidence to support the Board’s determination that Roderick’s “programming” was deficient. As indicated by the majority, the record before the Board included Roderick’s various explanations for why he was unable to attend programs: because of his work schedule, because of his meal schedule, because of lockdowns, because they did not “call him” to go to school, and because no programs were available. At the hearing before the Board, Roderick was asked why he had not participated in more self-help group programs. At first he responded that “They don’t have nothing . . . .” When the Board member pointed out that Roderick had been in prison for 20 years, Roderick reiterated that the prison did not have anything, and added that they were locked up all the time. Upon continued questioning in this area, Roderick stated that for seven years he was getting up at 2:00 a.m. to work in the kitchen, and that he would return to his cell and sleep in the afternoon, rather than attend programs. The Board could reasonably have concluded that Roderick conveniently had many excuses for not “programming.”
This case involves the prosecution’s appeal from the order of the trial court granting Roderick’s writ of habeas corpus. As to this issue regarding the adequacy of Roderick’s “programming” in state prison, the trial court conducted an evidentiary hearing on Roderick’s petition for habeas corpus relief, and found that the Board’s conclusion that Roderick had not sufficiently “programmed” was not supported by the record, after listening to additional testimony from Roderick on this issue. To the extent that an evidentiary hearing is conducted in the trial court on a petition for habeas corpus relief, we are ordinarily bound by the trial court’s factual findings if they are supported by substantial evidence.32
There were several procedural anomalies regarding the habeas corpus proceeding below. First, the Attorney General was not given notice of the hearing on Roderick’s petition for writ of habeas corpus, nor did the trial court initially issue an order to show cause. Only after the Attorney General filed a motion for reconsideration did the trial court permit that office to file a return to the petition. After Roderick’s counsel was given the opportunity to file a traverse to this return, the court apparently granted the motion for reconsideration, but refused to vacate its previous order granting the petition [304]and instead conducted a hearing. That hearing was not evidentiary and was submitted on the pleadings. The trial court renewed its earlier order granting the writ. Having never received notice of that first hearing where Roderick had testified, the Attorney General was not present and could neither cross-examine Roderick nor present evidence to rebut his claims.
Beyond that, however, the trial court could not properly receive Roderick’s testimony at the hearing on the habeas corpus writ. Roderick’s testimony did not relate to matters outside the hearing before the Board, and to permit evidence to be given on the same factual issues that were before the Board totally undermines the standard of review that the trial court was required to apply in the habeas corpus proceeding. The trial court should have reviewed the Board’s decision under the same “any evidence” standard of review that we are compelled to apply. Under this standard of review, Roderick’s proffered testimony was not relevant, and was outside the scope of the habeas corpus proceeding. (See, e.g., Rosenkrantz, supra, 29 Cal.4th at pp. 675-676 [evidentiary hearing properly held to add evidence to record regarding Governor’s record in overturning Board’s decisions in other cases]; Pope v. Superior Court, supra, 9 Cal.App.3d at pp. 640-641 [court should not hold “ ‘evidentiary hearing’ ” to review on habeas corpus Adult Authority revocation of parole unless record of Adult Authority discloses a distinct reason therefore].) As in Pope, an evidentiary hearing may not be held by a court to “redetermine an issue of fact . . . which has been determined upon an adequate record by the Adult Authority.” (Id. at p. 642.)
Such evidentiary hearings further convert the normal standard of review that we would apply, whether “some evidence” supports the Board’s determination, into an inquiry of whether substantial evidence supports the trial court’s ruling to the contrary. Allowing the petitioner to augment the record by introducing evidence not before the Board, but relitigating factual issues that were before it, should therefore not be permitted. The trial court improperly expanded the permissible scope of the habeas corpus hearing, and we should not be bound to apply the substantial evidence standard of review to the trial court’s finding regarding Roderick’s full participation in available programs.
The majority describes the'Board’s conclusion that there was no indication that Roderick would behave differently if paroled as unsubstantiated speculation and criticizes the Board for using “stock phrases,” such as “the prisoner needs to participate in self-help in order to understand and cope with stress in a nondestructive manner.” (Maj. opn., ante, at p. 260.) The majority states, “This stock phrase was used to deny parole to Roderick four times. Apparently it is also used genetically across the state. [Citations.]” (Id., at 248, fn. 14.) No surprise there. Roderick and undoubtedly many, if not most, [305]prisoners who have committed violent crimes suffer from similar issues. Learning to deal with stress in a nondestructive manner would presumably be the main goal of anger management and other similar classes offered in state prison. Prisoners’ failure to obtain this kind of self-help education logically would be a frequent reason for denying parole. As previously discussed (see ante, at pp. 282-283), the repetitive use of what the majority refers to as “stock phrases,” such as the need to participate in self-help programs or the exact wording found in the governing regulations, is not “rote hyperbole” that is being improperly relied upon by the Board in finding unsuitability for parole.
The majority relies upon Roderick’s ability since 1993 to cope with the stresses of prison life in a nondestructive manner, as indicative of his ability to adequately deal with stress without resorting to violence once he is released into the community.33 While his lack of violent infractions in state prison certainly has some bearing on this issue, it cannot be determinative. Obviously Roderick does not have the same stressors that motivated him to commit crimes in the community impacting him in prison. Further, the very controlled environment of state prison gives him fewer opportunities to act out violently than he will have upon release. Finally, he does not have alcohol readily available to him there. It is this potentially lethal combination of a propensity for violence and alcoholism that is of particular concern in Roderick’s case. As the 1994 psychological evaluation stated, “In a less controlled setting, he would be less dangerous if he maintains his sobriety, but that can not be predicted or guaranteed.” The most recent psychological evaluation indicates that the one factor that may lead Roderick back to a life of crime is alcohol abuse, stating, “the only significant risk factor to violence would be inmate Roderick using alcohol or drugs . . . .” Even the majority notes that Roderick’s criminal history was “fueled by his alcohol abuse.” (Maj. opn., ante, at p. 277.)34
Thus, some evidence supports the Board’s determination that Roderick’s institutional behavior favored a finding of unsuitability for parole.
[306](5) Prior Criminal History
The majority does concede that which it cannot contest, that there was some evidence in the record to support the Board’s reliance upon Roderick’s prior criminal history as a circumstance supporting a finding of unsuitability. The majority describes Roderick’s criminal history as “ ‘an extensive criminal history starting in 1952 . . . related to traffic violations, Vehicle Code violations, pretty much continuously, almost without a break until this crime in 1980.’ ” (Maj. opn., ante, at p. 275, quoting from Board’s statements.) The majority indicates that his criminal history “over 28 years, including two prior violent crimes,” is long and recognizes that “the Panel’s finding that Roderick has an extensive criminal history is most certainly supported by the evidence.” (Maj. opn., ante, at p. 276.) The majority concludes that “[t]he question, however, is whether, on this individualized record, the criminal history constitutes some evidence to support the [Board’s] conclusion that Roderick poses an unreasonable risk of danger to the public safety.” (Maj. opn., ante, at p. 276.)
The limited summary of Roderick’s prior record by the majority does not do justice to the weight that could be attached to this circumstance. The Board in its findings refers to Roderick’s criminal history starting in 1952 and continuing “pretty much continuously, almost without a break until this crime in 1980.” During the hearing, the Board elicited admissions from Roderick that he “had a lot of contact with law enforcement before . . . this offense,” that he was “kind of a thug,” and that he was “just kind of a career criminal.”
As detailed by the Board, Roderick’s 30-plus-year criminal history consisted of a very long series of offenses, committed on a regular basis almost without any break other than periods of incarceration, and included many crimes related to substance abuse (such as driving under the influence and being drunk in public). His criminal history also included felony offenses such as burglary, forgery, grand larceny, and grand theft, and included violent crimes such as resisting arrest, two simple assaults, an assault with a deadly weapon, and armed robbery. His criminal history also reflects numerous attempts at community supervision, including grants of probation and parole, and at least one parole violation. Obviously Roderick’s criminal history provides more than just some evidence supporting this circumstance. Roderick’s prior criminal history includes substantial instances of crimes of violence, poor response to community supervision, and prior poor performance on parole, and is indicative of a long and continuous history of substance abuse.35
[307]In the Fuentes case, the court upheld the Board’s reliance upon the prisoner’s past criminal history, even though it lacked any prior violence and was “minimal.” The court noted: “It is evident that the Board’s concern was not that Fuentes’s criminal history was violent or extensive but that it showed Fuentes had been given opportunities to reform his conduct, to deal with his substance abuse, to remain in the Navy, and he had not availed himself of those opportunities but had instead engaged in further criminal conduct. The repetitive and recidivist nature of his conduct—his failure to heed wake-up calls and the opportunities he was given—was a legitimate factor for the Board to weigh in favor of a denial of parole.” (Fuentes, supra, 135 Cal.App.4th at p. 163.) Here, Roderick’s criminal history was both violent and extensive, demonstrating a “repetitive and recidivist” nature, he similarly failed to heed repeated wake-up calls, failed to avail himself of many opportunities to reform his conduct, and repeatedly reoffended despite numerous efforts at community supervision. (See also Elkins v. Brown, supra, 2006 WL 3782892 at p. [7]) [relatively short criminal history (one adult conviction and no juvenile record) was some evidence to support Board’s reliance on this circumstance to find prisoner unsuitable].)
The majority relies upon the Biggs case from the Ninth Circuit (Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 916-917 (Biggs)) for the proposition that continued reliance upon immutable factors such as the prisoner’s criminal history alone,36 when the prisoner has continued to demonstrate exemplary behavior and evidence of rehabilitation, may violate due process. First, decisions of intermediate federal appellate courts, while they may be of persuasive value, are not binding on state courts, even when they interpret federal law. (People v. Zapien (1993) 4 Cal.4th 929, 989 [17 Cal.Rptr.2d 122, 846 P.2d 704].) Further, as the court indicated in Hill v. Kane (N.D.Cal., Oct. 23, 2006 No. C06-3203SIPR) 2006 WL 3020923, the Biggs reasoning is not controlling even in federal habeas corpus review of state parole decisions, as it is not based on clearly decided Supreme Court precedent and has not been adopted by the California Supreme Court.37
[308]Additionally, as explained by Judge Breyer in Solis, supra, 2006 WL 2934086, the Ninth Circuit itself appeared to retreat from its Biggs position in Sass v. California Board of Prison Terms (9th Cir. 2006) 461 F.3d 1123 (Sass). “[T]he Ninth Circuit recently made clear that evidence of a prisoner’s ‘prior offenses and the gravity of his convicted offense []’ may ‘constitute some evidence to support the [Board of Prison Term’s] decision.’ Sass, slip op. at 10573.” (Solis, supra, 2006 WL 2934086 at p. [5].) In Solis, the continued reliance on the commitment offense and upon the prisoner’s prior criminal history (in addition to a recent disciplinary action) was held not to violate due process where the Board gave the petitioner individualized consideration and “some evidence” (id. at p. [4]) supported its decision, as it simply could not be said that, “ ‘in mating a judgment call based on evidence of pre-conviction recidivism’ ... the [Board] acted ‘arbitrarily.’ [Citation.]” (Id. at p. [5].)
Judge Patel, in Elkins v. Brown, supra, 2006 WL 3782892, discusses the impact of Sass, supra, 461 F.3d 1123 on Biggs, 334 F.3d 910, indicating that the reasoning relied upon by the majority here from the Biggs decision was dicta and that “Sass . . . determined that the parole board is not precluded from relying on unchanging factors such as the circumstances of the commitment offense or the petitioner’s pre-offense behavior in determining parole suitability.” (Elkins v. Brown, supra, at p. [3], italics added.) Judge Patel then seeks to harmonize the two Ninth Circuit opinions, finding that under Sass, the Board may look to such immutable factors, but under Biggs, the weight to be given to them may decrease over time as a predictor of future dangerousness. (Elkins, supra, 2006 WL 3782892 at pp. [3]-[4]; accord, Singler v. Schwarzenegger (N.D.Cal., Apr. 13, 2007, No. C06-373SI) 2007 WL 1031261 at p. [4].)
The Ninth Circuit, however, in the recent case of Irons v. Carey (9th Cir., July 13, 2007, No. 05-15275) 2007 WL 2027359 (Irons), arguably attempted to breathe some new life into the Biggs reasoning (Biggs, supra, 334 F.3d 910) by suggesting that an inmate’s imprisonment beyond the minimum number of years required by his sentence might be the point at which reliance upon the immutable factor of the circumstance of the commitment offense might cause due process concerns. The court in Irons, like the court in Biggs, upheld the finding of unsuitability for parole and then mused again about the potential that “at some point” and “in some cases” the indefinite retention of a prisoner, regardless of rehabilitation, might violate due process. However, this reasoning, like that in Biggs, was merely dicta. As the court stated, “We note that in all the cases in which we have held that a parole board’s decision [309]to deem a prisoner unsuitable for parole solely on the basis of his commitment offense comports with due process, the decision was made before the inmate had served the minimum number of years required by his sentence .... All we held in those cases and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole prior to the expiration of their minimum terms.” (Irons, supra, 2007 WL 2027359 at p. [6].)
In Singler v. Schwarzenegger, supra, 2007 WL 1031261, District Judge Illston examined the Ninth Circuit decisions in Biggs, supra, 334 F.3d 910, Sass, supra, 461 F.3d 1123, and Irons, supra, 2007 WL 2027359, and concluded, “Interpreting this statement from Irons to suggest that the offense can only be relied on until the minimum number of years has been reached would suffer the same problem that Sass identified in Biggs: it is not the holding of the case. The dicta in Biggs and Irons are speculative and do not determine when a denial of parole based solely upon the commitment offense or pre-offense behavior violates due process. Neither logic nor Irons compel a decision that such reliance must cease when the prisoner reaches the minimum number of years in his sentence, such as the fifteenth year of a 15-to-life sentence.” (Singler v. Schwarzenegger, supra, 2007 WL 1031261 at p. [3].) Further, as Judge Illston concludes, “Past criminal conduct is not some arbitrary factor like eye color that has nothing to do with present dangerousness. Recidivism concerns are genuine. See Ewing v. California[(2003)] 538 U.S. 11, 26 [155 L.Ed.2d 108, 123 S.Ct. 1179] (O’Connor, J.) (noting a report stating that over 60% of violent offenders were arrested again within three years of their release). California’s parole scheme does not offend due process by allowing the [Board] to predict that an inmate presents a present danger based on a murder he committed many years ago.” (Id. at p. [4].)
There is no magical point at which reliance upon immutable factors such as the commitment offense or prior record of the prisoner, even alone, necessarily becomes a due process violation. Indeed the most egregious of commitment crimes, or the most severe criminal history, may carry sufficient weight to justify retention of a life prisoner long beyond his minimum years of incarceration. If these three cases from the Ninth Circuit mean anything, it is only that the nature of the commitment crime and the prisoner’s criminal history may be relied upon by the Board in determining that he is not suitable for parole, but the weight to be attributed to such “immutable” factors may decrease over time, if they are relied upon alone to determine unsuitability, once the prisoner has served his minimum sentence. (See Singler v. Schwarzenegger, supra, 2007 WL 1031261 at p. [4].) Thus, even if we were bound by the musings of the Ninth Circuit in dicta, when determining the predictive value of such an immutable circumstance the particular facts of the circumstance and its age would logically be considered. (See, e.g., Lawrence, [310]supra, 150 Cal.App.4th at p. 1540; Elkins v. Brown, supra, 2006 WL 3782892 at p. [3].) The determination of the weight to be attached to these circumstances would always rest, of course, with the Board.
Roderick’s criminal history is long, his prior convictions frequent, sometimes serious, and often violent. His crimes reflect both an addiction to alcohol and a tendency toward violence, and he has previously failed under community supervision. This record alone would justify his retention for a substantial period of time beyond that for other prisoners convicted of similar crimes, if that were the standard. Under the facts of this case, we have not reached the point where relying upon this immutable factor alone, had the Board done so, would constitute a violation of due process (if it ever would), because it had lost all its predictive value. In the present case, however, we need not reach that issue, as the Board did not rely upon the immutable factor of the prisoner’s prior criminal history without regard to intervening factors. Most significant of those intervening factors were Roderick’s failure to successfully program in state prison and his attitude toward the crime. By his testimony at the hearing, Roderick demonstrated that he has little, if any, insight into why he committed so many crimes in the past, why he committed the commitment crime, or his alcoholism. As the Board explained, he did not evoke confidence that he would not return to a life of drinking and violence if released into the community.
The record reflects that the Board engaged in an individualized evaluation of Roderick’s suitability for parole, and the majority does not contend otherwise. The only circumstance not considered specifically by the Board, which might have tended to show suitability for parole, was the lack of any evidence that Roderick had a juvenile record. However, as the majority notes, Roderick indicated in one early psychological evaluation that he had been committed to the youth authority at the age of 14. The majority surmises that this must have been an isolated incident, as there is no record of any juvenile arrests in Roderick’s file. (Maj. opn., ante, at p. 268, fn. 21.) While it is true that the prisoner’s criminal record (as set forth in the probation report and in the reports from the California Department of Corrections) does not even reflect this lone juvenile offense that Roderick admitted to, that absence of information does not necessarily support the majority’s conclusion. Rather than speculating that it was an isolated incident, one might more reasonably surmise that either Roderick’s juvenile record was extensive, or that the underlying offense was quite serious, if it resulted in a youth authority commitment at the young age of 14.38
[311]Finally, the majority concludes that there is no evidence in the record that supports the Board’s conclusion that releasing Roderick at this time would pose an unreasonable danger to the public. The majority, relying upon In re Lee (2006) 143 Cal.App.4th 1400, 1408 [49 Cal.Rptr.3d 931] and Scott II, supra, 133 Cal.App.4th at page 595, takes the position that the proper analysis on review of the Board’s finding of unsuitability is whether any evidence supports the ultimate decision of the Board, that the prisoner’s release would unreasonably endanger public safety. As the majority states, “it is not enough that there is some evidence to support the factors cited for denial; that evidence must also rationally support the core determination required by the statute before parole can be denied, i.e., that a prisoner’s release will unreasonably endanger public safety.” (Maj. opn., ante, at p. 263.) It is not settled, however, that this is the correct analysis. There is disagreement as to whether a reviewing court should determine if some evidence supports the circumstances cited by the Board in finding the prisoner unsuitable for parole, or if the correct test is whether some evidence supports the Board’s overall determination that the prisoner is unsuitable for parole because his release unreasonably endangers public safety.
The majority in the recent Lawrence case also agrees with the court’s analysis in In re Lee, supra, 143 Cal.App.4th 1400. (Lawrence, supra, 150 Cal.App.4th 1511.) Presiding Justice Perluss, however, in his dissent in Lawrence, articulates why this “recasting of the some-evidence standard,” while it may be appealing to a reviewing court’s sense of justice in a particular case, is at odds with Rosenkrantz, supra, 29 Cal.4th 616. So long as some evidence supports the factor(s) relied upon by the Board, the only way to determine that the Board’s decision to deny parole is not supported by some evidence is for the reviewing court to decide “the probative (or predicative) value of that factor is outweighed by other indicia of suitability.” (Lawrence, supra, 150 Cal.App.4th at p. 1570 (dis. opn. of Perluss, P. J.).) Although discussed in the context of the review of the Governor’s determination to override the Board’s decision to grant parole, the same standard attaches to judicial review of the Board’s determination. Our review is limited to determining whether some evidence supports the Board’s finding that each circumstance, relied upon in finding the prisoner unsuitable for parole, exists. The regulations indicate that these circumstances do tend to show unsuitability for parole (see § 2402, subd. (c)), and the manner in which these factors are considered and balanced, and the weight to be attached to each, lies within the discretion of the Board. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) So long as the Board’s reliance upon them is supported by some evidence, so is the Board’s determination that the prisoner is unsuitable for parole. As the court summarized its decision in Rosenkrantz, “[Ujnder this [312]standard a court is authorized to review the factual basis of the [Board’s] decision only to determine whether it is supported by some evidence relevant to the factors the [Board] is required to consider . . . .” (Id. at p. 626, italics added.) The court further elaborated that “[i]f the decision’s consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis the court should grant the prisoner’s petition ...” (Id. at p. 658, italics added.) I agree with Presiding Justice Perluss that, as tempting as it may be in order to satisfy our individual sense of justice and to support our personal opinion regarding whether a particular prisoner is suitable for parole, we cannot subvert the very deferential standard of review in this manner.
Conclusion
As is evident from the areas of disagreement between the majority and dissent in the present case, the process of evaluation of the circumstances to be considered by the Board in determining whether a life prisoner is suitable for parole involves subjective judgment calls. This is to be expected, since the Board is ultimately trying to predict future dangerousness, which is by nature a subjective analysis. (See Sturm, supra, 11 Cal.3d at p. 266.) I believe we should ordinarily defer to the Board in the judgment calls it makes regarding these circumstances; after all, Board members have both training and vast experience in this field. They conduct literally thousands of parole suitability hearings each year.39 The Board therefore has the opportunity to evaluate the egregiousness of the facts of a great number of commitment offenses. It evaluates participation in, and successful completion of, programs for a great number of prisoners. Board members listen to the testimony of a multitude of inmates, and assess their attitudes toward their criminal histories, toward their commitment crimes, toward their “programming,” and toward the Board. The Board’s experience and training in evaluating these circumstances far exceed that of most, if not all, judges. So long as there is any evidence in the record to support the circumstances the Board relies upon in making its determination of unsuitability, its decision should be given the deference mandated by the decisional law of the United States Supreme Court and the California Supreme Court. (See Superintendent v. Hill, supra, 472 U.S. at pp. 455-456; Dannenberg, supra, 34 Cal.4th at pp. 1095-1096, fn. 16; Rosenkrantz, supra, 29 Cal.4th at pp. 677-679.)
[313]There is evidence in the record that supports the circumstances relied upon by the Board in finding Roderick unsuitable for parole. This is all that is required, and the Board’s determination of unsuitability should be upheld. The trial court’s order granting Roderick’s writ of habeas corpus should be reversed.40
A petition for a rehearing was denied September 12, 2007, and the opinion was modified to read as printed above.
The Board of Prison Terms was abolished in 2005 and replaced by the Board of Parole Hearings. (See Gov. Code, § 12838.4; Pen. Code, § 5075.)
Embraced by the majority here, In re Scott (2004) 119 Cal.App.4th 871 [15 Cal.Rptr.3d 32] (Scott I) concluded that the deferential standard of review set forth in In re Rosenkrantz (2002) 29 Cal.4th 616 [128 Cal.Rptr.2d 104, 59 P.3d 174] (Rosenkrantz), while it requires us to be “exceedingly deferential” to the Board’s findings, “does not convert a court reviewing the denial of parole into a potted plant.” (Scott I, supra, 119 Cal.App.4th at p. 898; see maj. opn., ante, at p. 264.) Several post-Rosenkrantz decisions seem to adopt a similar attitude toward the deferential standard of review, stretching it far beyond its required confines, as discussed post.
Rosenkrantz, supra, 29 Cal.4th 616, actually dealt with judicial review of the Governor’s decision to override the Board’s finding of suitability for parole, but the same standard of review applies to review of the Board’s finding of unsuitability for parole. (Id at pp. 660, 667.)
Where the facts presented at the hearing would support two different interpretations, the Board’s interpretation must be deferred to. As the court explained in Superintendent v. Hill, “The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the . . . board. Instead, due process in this context requires only that there be some evidence to support the findings made in the ... hearing.” (Superintendent v. Hill, supra, 472 U.S. at p. 457.) Thus only if the record is “devoid of evidence” so that the Board’s interpretation or conclusion is “without support or otherwise arbitrary,” is due process implicated. (Ibid.)
The Board must make an individualized decision as to each prisoner, and if it fails to consider circumstances which would point toward suitability for parole, due process may be violated. (See, e.g., Rosenkrantz, supra, 29 Cal.4th at p. 677.) The majority, however, does not contend that the Board here failed to consider all the evidence, including that which would have supported a finding of suitability for parole.
Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593].
All further section references are to title 15 of the California Code of Regulations, unless otherwise specified.
Penal Code section 3042, subdivision (c) requires that the Board state its findings “and supporting reasons” on the record.
See, e.g., Fuentes, supra, 135 Cal.App.4th at page 162 (failure to use exact language of factor not fatal).
The court in Fuentes similarly relied in part upon the prisoner’s opportunity to avoid the commission of the crime in determining that his motive was trivial, stating, “Fuentes easily could have avoided any confrontation by going into his friend’s house instead of continuing to walk with Luken. Fuentes’s participation was thoughtless. His motive was inexplicable or trivial.” (Fuentes, supra, 135 Cal.App.4th at p. 163.)
Justice Haerle goes on to note that there were an infinite variety of actions short of murder that Scott could have taken to “diminish, deflect, defeat or even punish the victim’s despicable conduct short of murder.” (Scott I, supra, 119 Cal.App.4th at p. 903 (dis. opn. of [288]Haerle, J.).) As in the present case, the failure of Scott to avoid the commission of the crime goes to his trivial motive for committing it.
The investigating officer’s statement in this regard was made to the probation officer and is included in the probation report.
There were inconsistencies between Roderick’s account of the commitment offense at the 2005 parole hearing and the limited information regarding witness accounts that is contained in the probation report, as well. (See p. 297, fn. 21, post.)
Although not specifically addressed in the section of the majority opinion discussing the commitment offense, the propriety of reliance upon such “immutable factors” is raised by the majority in its discussion of Roderick’s prior criminal history, and is therefore similarly addressed, post, at pp. 307-310.
The Board stated, “His unstable social history is certainly related to that criminal history but also to the abuse of alcohol.”
The majority concludes that “there is no evidence to support a finding that Roderick had difficult relationships with other prisoners and prison staff.” (Maj. opn., ante, at p. 268.) I note that the record indicates Roderick was in fact involved in a physical altercation with his roommate, and was stabbed by him, in 1989.
Psychological evaluation reports over the years have treated Roderick’s attitude toward the commitment offense differently. (See discussion, post, at pp. 301-302.)
The majority concedes that Roderick has a limited capacity to understand or explain why he committed so many crimes in the past, but opines that his limitations are “a known quantity” that has been “factored into his risk assessment.” (Maj. opn., ante, at p. 271.) The majority’s opinion in this regard is discussed post, at pp. 301-302.
The Board first inquired, “You were breaking the law in 1952, from 1952 until 1980. All through the ’50’s, all through the ’60’s, all through the ’70’s, you have criminal offenses. So, why?”
Roderick’s answers to questions regarding his alcohol problem could reasonably be interpreted to reflect both an attitude of indifference and an attempt to minimize his alcoholism. At the very least, they do not reflect a full admission by Roderick of his past and continuing addiction to alcohol and thus support the Board’s determination that he had little [297]insight into this issue, despite his past participation in programs intended to address this problem. (See discussion, post, at pp. 299-300.)
Roderick also insisted at this parole hearing that witness accounts that the stabbing occurred within seconds of his and the victim’s leaving the bar were incorrect, and he testified to details of intervening circumstances. Additionally, Roderick claimed it was the victim who initiated the physical altercation by kicking him after they left the bar. This was also contradicted by the accounts given by other witnesses, which are included in the probation report.
Indeed, some of the psychological reports contain factual inaccuracies. (See fns. 28 & 31, pp. 301, 302, post.)
This factor did appear to be one upon which the Board relied heavily in its determination that Roderick was not suitable for parole.
Of course attitude may be expressed by the content of one’s answers to questions, as well as by body language and tone of voice, etc.
When asked about the steps of AA, Roderick could not articulate what the eighth step was (make a list of all persons harmed and make amends to them), and confused the fourth step (make a searching and fearless moral inventory) with the similar tenth step (continue to take personal inventory and where wrong, promptly admit it). (See Griffin v. Coughlin (1996) 88 N.Y.2d 674 [649 N.Y.S.2d 903, 673 N.E.2d 98, 100, fn. 1] [12 steps of AA]; <http.7/www.alcoholics-anonymous.org/en_information_aa.cfm?PageID+2&SubPage=56> [as of Aug. 17, 2007].)
Apparently the Project CHANGE program was mostly conducted by Roderick himself in his cell, and presumably the “tests” he references taking for the program were self-administered there. This information, however, was supplied in Roderick’s testimony at the [300]evidentiary hearing on his habeas corpus petition in the trial court, which was improperly admitted. (See discussion, post, at pp. 303-305.)
The majority dismisses these legitimate concerns of the Board, stating, “[a]s we have already explained, Roderick’s inability to gain or articulate a better understanding of his behavior is a known factor that, according to all reports, does not negatively affect his suitability for parole.” (Maj. opn., ante, at p. 274.)
Some of the psychological evaluation reports also contain factual inaccuracies. For example, the 1999 report, in its assessment of Roderick’s dangerousness, concludes that “Due to several factors including his complete lack of violent crime and his non-existent disciplinary problems since incarceration, within a controlled prison population, this inmate poses a less than average violence potential.” (Italics added.) Roderick in fact had prior disciplinary problems in state prison and several of his prior convictions, as well as the commitment crime, were crimes of violence.
Roderick also admitted that he occasionally used marijuana.
Roderick has always seemed more than willing to tell his story about what happened the night of the commitment crime. Why his willingness to do so during this psychological evaluation showed a new insight, however, is never explained.
The 2005 report also contains a factual inaccuracy, as it appears to attribute to the probation department a comment actually made by Roderick, when it states that “[e]ven in the Probation Officer’s Report there is a comment about the unfortunate nature that the jury did not find him guilty of a lesser charge, if even any charge were appropriate due to the self defense nature of this altercation.”
The majority does not specifically rely upon this substantial evidence standard of review, but does reference the trial court’s findings after conducting the evidentiary hearing, although indicating that they are only reviewing the record before the Board. (Maj. opn., ante, at pp. 264-265.)
I note that the court in Dang v. Ornoski, supra, 2006 WL 3041096 at p. [7] found that the Board properly relied upon six rule violations (the most recent of which was 10 years prior to the hearing at issue) and minor infractions (the most recent being three years prior to the hearing) as indicating negative institutional behavior. Older transgressions are obviously relevant, and when such violations and infractions become too old to rely upon is not set in stone.
The majority relies upon Roderick’s alcoholism being in “remission,” as negating concern about his potential for returning to his habit of drinking and engaging in violent conduct. While he may be considered a recovering alcoholic, characterizing Roderick’s alcoholism as “in remission” hardly seems appropriate, especially given the lack of local bars or other establishments in state prison where alcohol would be readily available to him.
While section 2402, subdivision (c)(2) does not specifically reference consideration of a prisoner’s nonviolent criminal history, the list of circumstances in that section is nonexclusive and section 2402, subdivision (b) specifically allows the Board to consider a great range of [307]“relevant and reliable information,” such as the prisoner’s “ ‘past criminal history, including involvement in other criminal misconduct which is reliably documented.’ ” (Paluzzi v. Kane, supra, 2006 WL 3020919 at p. [6]; accord, Elkins v. Brown, supra, 2006 WL 3782892 at p. [7].)
Although not raised by the majority in its discussion of the commitment crime as a circumstance supporting a determination of unsuitability, that is another “immutable” factor discussed in Biggs, supra, 334 F.3d 910 and subsequent cases discussing the issue. The same analysis, post, would apply equally to the Board’s consideration of the commitment crime.
Federal review on habeas corpus is, of course, limited. As the court explained in Solis, “The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court’s adjudication of the claim: ‘(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was [308]based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. [Citation.]’ ” (Solis, supra, 2006 WL 2934086 at p. [1].)
Apparently Roderick was still residing in the State of Washington at the time of this youth authority commitment. Most of his juvenile history would have been from the 1940’s and it is questionable how accurately the manual portion of his rap sheet would reflect even adult nonautomated criminal history of that vintage, much less out-of-state juvenile adjudications.
See Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1240 [31 Cal.Rptr.3d 70] (several thousand parole suitability hearings were held in 2003); <http://www.cdcr.ca.gov/ReportsResearch/caseload_stats.html> (as of Aug. 17, 2007).
The particular facts of the present case, and some other recent cases stretching the deferential standard of review in the parole suitability context, may not be so egregious as to call for attention from our high court. However, the slow yet steady erosion of the deferential standard of review as demonstrated by these decisions indicates the need for intervention. This erosion includes the subtle manipulation of the elements of that standard of review, as discussed by Presiding Justice Perluss in his dissent to the Lawrence case (Lawrence, supra, 150 Cal.App.4th 1511), along with a continuation of comparative analysis with other similar crimes despite what appears to be a clear statement of the proper analysis in Rosenkrantz, supra, 29 Cal.4th 616, and Dannenberg, supra, 34 Cal.4th 1061 (comparing the commitment crime to the minimum elements required for the offense). Finally, the contortion of the deferential standard of review, both in the trial court and upon appellate review, by the mechanism of conducting an evidentiary hearing in trial court habeas corpus proceedings on the very factual issues that were heard and determined by the Board, is also troubling. Clarification of these legal issues, and a strong statement of the appropriate application of the deferential standard of review, would clarify the law in these areas, and hopefully prevent the continued erosion of that standard.