POLLAK, Acting P. J., Dissenting. I respectfully disagree with the opinions of my colleagues. The lead opinion upholds the decision of the Board of Parole Hearings (the Board) to deny petitioner Robert Shippman parole based not on the conclusion that there is some evidence to support the Board’s findings, but on findings of its own that are not reasonably drawn from the record before us. In what follows I shall first set forth more fully certain background matters that appear in the present record, minimizing the repetition of facts that are adequately described in the lead opinion, then address the reasons for which the Board’s analysis fails to withstand scrutiny, and finally address the purported evidence upon which the lead opinion relies to find “some evidence” that Shippman would pose an unreasonable risk to society if granted parole.
I.
Shippman was bom in 1938, the youngest of 11 children, and was raised in an intact family. His father was a chicken rancher who became pastor of a local church. Shippman’s early life was stable. He graduated from high school and attended one year of college.1 When he married his first wife in 1957, he dropped out of school to find work. The couple divorced in 1964, when his wife became pregnant by and ran off with Shippman’s best friend. When his wife’s paramour came to his house after he learned of the affair, Shippman beat him with a baseball bat. Shippman remarried in 1966. This marriage lasted 22 years, but ended when Shippman had an affair with Juli, whom he ultimately married.
[468]Shippman married Juli in 1991, when he was 53 and she was 26. He murdered her in April 1993. During the marriage, Juli had an affair with one man and later with a second, whom she was seeing at the time of the murder. About one month before the murder, Juli had agreed to drive with Shippman to Calistoga to discuss their relationship; over Juli’s protests, Shippman drove her all the way to Ukiah, presumably prompting Juli to obtain a restraining order against Shippman.
On the day of the murder, following a separation of several weeks, Shippman called Juli and asked her to pick up her mail. When she arrived at his house, Shippman convinced her to go for a ride with him. Shippman, who claims to have “loved Juli with every fiber of [his] heart,” wanted to persuade her to terminate the affair she was having. They drove to a remote area. After they had been speaking for 10 to 15 minutes, Juli stated that she had to call the man she was dating. Shippman retrieved his rifle from his vehicle and shot her three times, once in the back of the head. Shippman initially claimed that he had first shot himself, attempting to gain Juli’s sympathy, and then shot her as she approached him. At his parole hearing he acknowledged that he shot Juli first, then shot himself three times—twice in the chest and once in the head.
Other than the commitment offense, Shippman denies being violent towards any of his wives. He does, however, admit to a serious disagreement with his second wife, occasioned by his stepson’s involvement with drugs. The wife wanted to “give him over” to state custody and Shippman refused, believing that they would be better able to help the child. They apparently retained custody of the boy who, at the time of the parole hearing, had in Shippman’s estimation “turned out very well” and was working as a pilot.
Before his incarceration Shippman had worked as a plumber for nearly 30 years. For several years he owned his own plumbing business. He also owned a gas station for 13 years. He had no prior criminal or juvenile record.
In prison Shippman has worked as a plumber and his job performance has consistently been rated as satisfactory or above average. He has also earned vocational certificates in basic home repair, maintenance and building maintenance and safety, and carpentry. He instructs other inmates in plumbing and other trade skills.
In 2003 Shippman completed a 44-week anger management course, a 14-week awareness and empathy for survivors of crime course, and the “Impact” program. Shippman felt the anger management course was “a great course,” but his efforts to repeat the course were stymied because his housing assignment changed three times after his previous parole hearing.
[469]Since being incarcerated Shippman has been discipline free. The Board recognized this achievement: Deputy Commissioner Turner commented, “I applaud you for that; that’s difficult to do, to stay disciplinary-free in the institutional setting, so you’re doing some things right.” Shippman regularly coaches softball and teaches Bible classes,2 as well as instructs in the trades.
When paroled, Shippman intends to live with a couple from Yuba City, whom he met through his church activities some three and a half years before the parole hearing, who visit him regularly and have offered to provide him with housing. He claims to have savings, which his daughter monitors for him. Because of his age, 70 at the time of the hearing, and his steady preincarceration work history, he apparently will qualify for Social Security benefits, although he has not documented his entitlement to these benefits.3 Shippman has also received letters of support from his sister, brother and daughter.
Shippman’s most recent psychological evaluation, conducted in 2008, references his July 2004 psychological evaluation. The 2004 psychological report discusses petitioner’s commitment offense, in part, as follows: “The pressure of the realization that his young and beautiful wife was unfaithful to him, and that he was about to lose her, was more than he could handle. He began using prescribed Valium, which he had used for two weeks, as well as on the day of the commitment offense. He stated that his thinking wasn’t really clear due to the medications. He went on and explained that Juli was his ‘princess.’ He didn’t want to lose her. He knew that he was losing her. At that point, he stated that, T should have stepped back and looked at my actions. What I did was devastating to Juli’s family, and also has been devastating to my own family.’ Inmate Shippman describes his actions as ‘stupid, irrational, impulsive,[’] without any thinking of what he was doing, [¶] In summation, it does appear that this act was the result of a man whose thinking was beclouded by Valium. He was overcome with emotional anguish and the feeling of losing his wife, and who was experiencing an enormous personal attack on his self-worth. As a result, he impulsively shot his wife, and then immediately turned the murder weapon on himself, shooting himself three times, twice in the chest, and once a glancing blow in the head. It was evident that he was trying to end his life at the same time. He probably would have if it had not been for the accidental discovery of the crime immediately after it happened by someone who just happened to pass by the remote location, [¶] Inmate Shippman’s degree of remorse and sorrow is deep and [470]sincere. He fully realizes the seriousness of his actions, and the penalty that he must pay. As a result, he has no bitterness at all towards his prison incarceration and sentence. He repeated that he deserves every bit of the punishment that he is receiving and might receive in the future.”
In assessing Shippman’s potential for future dangerousness, the 2004 evaluator opined that he “poses a very low risk for any aggression or violent behavior.” The evaluator characterized him as “passive, conforming, patient [and] thoughtful.” If released, the psychologist concluded Shippman would pose an “extremely low” potential for violence. “In fact, based upon his years of incarceration, the maturity he has gained over those years, his deep sense of sorrow and remorse about the commitment offense, his ever-deepening awareness of spiritual truths, and the fact that he has learned that he must not take things into his own hands when disaster strikes, he actually poses less of a threat to society than the average citizen.” (Italics added.) The psychologist then stated: “In this case, there are no risk factors for this inmate that would cause this man to act out in a violent manner. His behavior in the commitment offense was related to his serious marital problems, deep emotional anguish, and beclouded thinking due to the Valium he was taking to help control these turbulent emotions. At this point in his life, he has matured a great deal. He has learned to handle stressful situations far differently than he dared at the time of the offense, and he has a totally different perspective towards life.” Finally, the evaluator suggested that Shippman had “a deep understanding of the principles of anger management” and concluded that he had no further need to engage in further anger management training, psychotherapy or psychological evaluation.
The psychological evaluation conducted for the 2008 hearing is equally positive. The evaluation indicates that Shippman has been “programming in an excellent fashion.” The report states that Shippman has no psychiatric diagnosis. The only current medical diagnosis that is noted is “GERD” (gastroesophageal reflux disease).4 He is assessed on a scale of global functioning (i.e., how well one adapts to life’s problems), measured from zero to 100, as 95—or functioning in the superior range. After reviewing his results on various standardized assessment guides indicating potential for future violence and recidivism—all of which indicate that his risk ranges from low to very low—the psychologist concluded that Shippman poses a “very low” overall risk for future violence. The psychologist indicated that if Shippman “act[ed] in passion or violence in the future, it would increase his [471]violence risk,” but concluded that there is “no reason to believe that he will commit this impulsive act. . . .” The report concludes, “At this time there is significant evidence that the inmate has the skills and insight necessary for decreasing his violence risk.”5
II.
Before coming to this court, Shippman filed a petition for habeas corpus in the Napa County Superior Court, which denied his petition. In holding that the Board’s decision was supported by some evidence, the superior court pointed out that the Board had cited the gravity of the commitment offense, marginal parole plans, and unstable social history, and correctly recognized that that the Board relied “most heavily” on Shippman’s “lack of insight into the causative factors of the crime.”6 In my view the record contains no [472]evidence to support any of these findings, much less that Shippman will pose an unreasonable risk to public safety if granted parole.
A parole denial by the Board must be upheld if there is “some evidence” supporting the conclusion that the petitioner’s release would pose an unreasonable risk to public safety. (In re Lawrence (2008) 44 Cal.4th 1181, 1208-1210 [82 Cal.Rptr.3d 169, 190 P.3d 535]; In re Shaputis (2008) 44 [473]Cal.4th 1241, 1254 [82 Cal.Rptr.3d 213, 190 P.3d 573].) The court’s review is “unquestionably deferential, but certainly is not toothless, and ‘due consideration’ of the specified factors [establishing parole unsuitability] requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.” (In re Lawrence, supra, at p. 1210.) With this standard in mind, there is in my opinion no evidence to support any of the factors relied on by the Board to deny parole.
Commitment Offense
The Board found that the crime was committed in a “dispassionate” and “calculated manner,” evidencing “exceptional callous disregard for human suffering.” The Board noted that the victim came to Shippman’s home to pick up mail, he convinced her to go for a ride with him, there was a gun in the vehicle, the vehicle’s passenger door handle was broken, and the victim had obtained a restraining order against him. Furthermore, in shooting his wife, Shippman fired three successive rounds at her. He then shot himself, possibly in an attempt to obfuscate what had happened. The Board termed the motive for the offense “very trivial and senseless.”
The record does not support the Board’s characterization of the crime. Rather than dispassionate, the killing appears to have been a crime of passion—moreover, passion in the haze of taking prescribed Valium. There is no dispute that Shippman was upset by his wife’s infidelity and desire to leave him. Sadly, analogous “love triangles” often lead to impulsive criminal behavior with tragic results, but consequences that are not regarded as trivially motivated. (See In re Lawrence, supra, 44 Cal.4th at pp. 1225-1226 [recognizing “significant emotional stress as a result of [petitioner’s] love affair with the victim’s husband”]; In re Burdan (2008) 169 Cal.App.4th 18, 25, 33-34 [86 Cal.Rptr.3d 549] [rejecting characterization of defendant murdering wife after he discovered she was having an affair as “ ‘dispassionate and calculated’ ”]; In re Singler (2008) 169 Cal.App.4th 1227, 1235-1236 [87 Cal.Rptr.3d 319] [wife’s admission that she was having an affair and was divorcing husband, leads to shooting her in a fit of rage]; In re Weider (2006) 145 Cal.App.4th 570, 576 [52 Cal.Rptr.3d 147] [petitioner focused on victim who was committing adultery with petitioner’s wife]; In re Scott (2004) 119 Cal.App.4th 871, 882 [15 Cal.Rptr.3d 32] [where defendant murdered a drug dealer who was having an affair with defendant’s wife, characterizing the motive as “trivial” ignores human nature and experience].)
The fact that Shippman shot his wife three times does not demonstrate callous disregard for human suffering. When asked why it was necessary to shoot her “again,” Shippman testified, “I didn’t shoot her again. I pulled the [474]trigger three times—boom, boom—and that was it.” There is no evidence to the contrary. No evidence has been cited suggesting that there was any interruption in the firing of the fatal shots, nor is there any indication that Shippman intended to torture Juli, relished her suffering, or attempted to injure multiple victims or did anything that makes this murder particularly egregious. As many courts have observed, all second degree murders involve some level of callousness and indifference to the suffering of others. (E.g., In re Lawrence, supra, 44 Cal.4th at pp. 1218, 1225; In re Burdan, supra, 169 Cal.App.4th at p. 36.) There is nothing in this record to suggest that this second degree murder was so callous as to indicate that Shippman is likely to commit another such offense if granted parole.7
Even if Shippman’s crime could properly be characterized as especially callous or egregious, which it cannot, that fact alone would not supply the necessary nexus to the conclusion that Shippman is likely to commit another such offense in the future. (In re Lawrence, supra, 44 Cal.4th at pp. 1225-1226.) Neither the details of the crime nor any other evidence suggests that Shippman’s crime reflects a psychopathy or other propensity making future acts of violence likely. As indicated above, the expert opinion is unanimously to the contrary. The facts of the crime clearly provide no evidence that he would pose an unreasonable risk to the public if released. (See In re Singler, supra, 169 Cal.App.4th at p. 1244.)8
Marginal Parole Plans
Shippman’s primary parole plan is to live with a couple whom as of the time of the parole hearing he had known for approximately three and one-half [475]years through his church activities. He has acknowledged job skills, family support, some savings and undoubtedly is entitled to Social Security retirement benefits.9 While it may be true, as the Board stated, that the couple may be unwilling to provide Shippman with room and board “forever,” there is no evidence to suggest that his plans are so “marginal” as to indicate that he will pose an unreasonable risk to society if released. The applicable regulation concerning parole plans states that the Board should consider whether “[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.” (Cal. Code Regs., tit. 15, § 2402, subd. (d)(8).) To be “realistic,” parole plans need not be ironclad (In re Andrade (2006) 141 Cal.App.4th 807, 817 [46 Cal.Rptr.3d 317]) and they need not extend into the unforeseeable future. Indeed, the regulation simply requires “realistic plans for release” or “marketable skills” and there is no doubt that Shippman’s plumbing skills are marketable. According to Shippman’s 2004 psychological evaluation, his “prognosis for successful parole adjustment... is excellent. This inmate has outstanding vocational skills. He would have absolutely no difficulty finding, maintaining, and succeeding in employment in the community that will allow him to support himself. He has vocational skills in plumbing, household electricity, and carpentry skills. In addition, he has strong family support in the community. Research shows that strong family support in the community is a good indicator of successful adjustment.”10
Thus, Shippman’s parole plans meet the test enunciated in the Board’s regulations. His intention to live with a couple who, knowing his situation, have invited him to live with them may not be an “ironclad” plan, but the Board has identified nothing about such a living arrangement that is objectionable and there is nothing in the record to show that the plan is unrealistic, especially since Shippman is expected to have an independent income stream.
Furthermore, the Board has the power to set reasonable parole conditions. (Pen. Code, §§ 3052-3053; Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 874 [76 Cal.Rptr.2d 841].) Were the Board to consider it necessary, it [476]might condition Shippman’s parole on his providing evidence that he has applied for his Social Security benefits, or upon his maintaining his residence with the couple who have offered to assist him or mating other suitable living arrangements. Moreover, after a life-term prisoner is given a parole date, a parole agent investigates the individual’s plans to confirm, among other things, the inmate’s proposed residence. (Cal. Dept, of Corrections & Rehabilitation, Dept. Operations Manual, Adult Parole Operations, § 81010.5.1, pp. 668-669.) The agent determines whether a proposed program is suitable and, if the plan is not suitable, the parole agent must try to develop “an appropriate alternate program.” (Id., § 81010.5, p. 668.) Thus, although there is nothing in Shippman’s parole plans that indicate he is likely to commit future offenses or would create an unreasonable risk to the public if released, if the Board deems it advisable it may prescribe reasonable conditions to maximize the likelihood of his achieving a successful parole.
Unstable Social History
Shippman’s social history is mostly stable. He was raised in an intact family and had no history of criminal conduct prior to the committing offense. The only element of instability is with respect to his multiple marriages and the infidelities associated with them. However, there is no indication that Shippman engaged in domestic violence with his former wives. His second marriage lasted for 22 years. The only disagreement that arose during this marriage described in the record concerned the proper handling of Shippman’s stepson’s drug problem and gave rise to no violence. Shippman did react with violence against his former friend with whom his first wife became pregnant, but this incident occurred in 1964 and there is no indication of similar outbursts until his crime in 1993, initiated by a somewhat similar provocation. His history may manifest a chronic problem with close emotional relationships with women, and a tendency to react with violence under sufficient provocation, but this history is among the immutable facts that are beyond Shippman’s ability to change. The relevant and important question is whether this history is a valid predictor of Shippman’s future behavior, and the Board has cited no reason to believe that it is.11 To the [477]contrary, all of the evidence tends to confirm Shippman’s internalization of the anger management training he has received while in prison. That is the view of the psychologists who have examined him and subjected him to numerous empirically based assessment tests. He professes to be a “born-again” Christian and to have gained the understanding of, and to have overcome, his previous need to control the preferences of others. His conduct over some 15 years has been consistent with his professed change of beliefs. He not only has become a teacher of Bible studies (as well as of plumbing and other trades) but has remained entirely discipline free over the entire period of his incarceration. Particularly in view of his relatively advanced age, the Board provides no reason to believe that any instability in Shippman’s social history is any longer a valid predictor of his future behavior or supports the decision to deny him parole.
Inadequate Insight
During the course of his most recent parole hearing, Shippman told the Board, “I’m a complete different person than I was. I don’t try to control situations now. Jealousy is a form of control, and that was a control that I tried to put over Juli. . . . I’ve learned how wrong that is. You can’t control another person’s love, and it’s wrong.” Later, when asked what made him feel that he could not accept rejection, Shippman responded, “I believe when I realized the use of Juli and that I could no more have her love, I didn’t know how to take that. And when jealousy comes in—and jealousy is a form of wanting control—and when I could not control that situation, it got the best of me and I lost it.” To a psychological evaluator Shippman described his actions in committing his offense as “stupid, irrational, impulsive, without any thinking of what he was doing.” At the conclusion of the parole hearing, Shippman added, “I am very very sorry, and I wish there was some way to the Mathis family that I could say I’m sorry for this heinous crime and they would believe me, because believe me, I am.”
The psychologists who evaluated Shippman in 2004 and in 2008 were convinced that he had gained the insight necessary to avoid repetition of his offense. According to the 2004 evaluation, “Inmate Shippman’s degree of remorse and sorrow is deep and sincere. He fully realizes the seriousness of his actions, and the penalty he must pay. As a result, he has no bitterness at all towards his prison incarceration and sentence. He repeated that he [478]deserves every bit of the punishment that he is receiving and might receive in the future.” The report continues, “Inmate Shippman has completed several self-help programs. He also has participated and completed Anger Management courses. It is obvious to this evaluator that he has a deep understanding of the principles of anger management, and why uncontrolled emotional reactions are totally unacceptable. There is no indication that this inmate needs further Anger Management training than he already has acquired. He does not need to participate in psychotherapy or engage in further evaluation.” According to the psychologist who performed Shippman’s evaluation in 2008, “At this time there is significant evidence that the inmate has the skills and insight necessary for decreasing his violence risk.”
Nonetheless, the Board was concerned that Shippman was “not able to tell us why [he] felt the need to be controlling.” Although never asked this specific question, Shippman did state that he felt his prior urge for control over others was traceable to his observation of the control his father had exercised during his childhood.12 The Board considered this explanation inadequate and expressed concern that at the age of 70 Shippman would “go out there and become controlling again by not knowing the triggers” of this problematic behavior. The Board made no attempt to delve further into Shippman’s understanding of the source of his control issue or to ask him what he considered to be the “triggers” of his impulsive behavior. The Board made no attempt to draw him out on these topics, or to ask any followup questions. Its response to Shippman’s answer quoted in the footnote was simply “all right.” The assistant district attorney who originally requested that the Board explore this issue went on to inquire into an entirely distinct subject.
An inmate’s failure to appreciate the unacceptability of his or her criminal conduct, or to develop an understanding of what caused and how to avoid [479]such conduct in the future—i.e., lack of “insight”—may provide a basis for finding an inmate unsuitable for parole. (In re Shaputis, supra, 44 Cal.4th at pp. 1260-1261.) However, like other factors that may tend to show an inmate’s unsuitability, there must be. some evidence in the record to establish the lack of insight. (Id. at p. 1260, fn. 18.) Authorities ranging from Socrates to Sigmund Freud have recognized the importance of acquiring personal insight.13 Yet, as the Supreme Court has also recognized, “expressions of insight and remorse will vary from prisoner to prisoner and . . . there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior.” (Ibid)
The cases in which lack of insight has been held to support the denial of parole indicate the nature of the evidence that may establish such an unsuitability factor. Shaputis itself provides a clear illustration. Shaputis, like Shippman, murdered Ms wife. Shaputis, however, had a long history of domestic abuse—including inducing a miscarriage in Ms first wife when he jumped on her abdomen, holding a kmfe to Ms daughters’ tMoats, tMeatening and repeatedly beating his second wife (the ultimate murder victim) severely enough to crack ribs and require plastic surgery, and firing a weapon at her. (In re Shaputis, supra, 44 Cal.4th at pp. 1246-1247.) He had a Mstory of acting violently when drunk and, on the night of the murder, had an elevated blood-alcohol level. (Id. at p. 1247.) Nonetheless, Shaputis considered himself a “ ‘mellow . . . outgoing’ drinker” and persisted in Ms belief that the murder of his wife was an accident. (Id. at pp. 1248-1249.) The Supreme Court concluded that “some evidence in the record supports the Governor’s conclusion that [Shaputis] remains a tMeat to public safety in that he has failed to take responsibility for the murder of his wife, and despite years of rehabilitative programming and participation in substance abuse programs, has failed to gain insight into Ms previous violent behavior, including the brutal domestic violence inflicted upon his wife and children for many years preceding the commitment offense.” (Id. at p. 1246.) The court pointed out that “the Governor’s reliance on [Shaputis’s] lack of insight is amply supported by the record—both in [Shaputis’s] own statements at his parole hearing characterizing the commitment offense as an accident and minimizing Ms responsibility for the years of violence he inflicted on Ms family, and in recent psychological evaluations noting [Shaputis’s] reduced ability to [480]achieve self-awareness.” (Id. at p. 1260, fn. 18.) Although noting that Shaputis “has stated that his conduct was ‘wrong,’ and he feels some remorse for the crime, he has failed to gain insight or understanding into either his violent conduct or his commission of the commitment offense. Evidence concerning the nature of the weapon, the location of ammunition found at the crime scene, and [Shaputis’s] statement that he had a ‘little fight’ with his wife support the view that he killed his wife intentionally, but as the record also demonstrates, petitioner still claims the shooting was an accident. This claim, considered with evidence of [Shaputis’s] history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and that he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming,’ all provide some evidence in support of the Governor’s conclusion that [Shaputis] remains dangerous and is unsuitable for parole.” (Id. at p. 1260, fn. omitted.)
In re Rozzo (2009) 172 Cal.App.4th 40 [91 Cal.Rptr.3d 85] is another useful example in which the record provided meaningful objective evidence to support the inmate’s lack of insight as a factor establishing his continuing dangerousness and unsuitability for parole. In that case there was evidence, including Rozzo’s use of racial epithets and his stated goal of “ ‘nigger hunting’ ” (id. at p. 58), that his brutal, torturous, and prolonged murder of a Black victim was racially motivated (id. at pp. 44-45). Nonetheless, Rozzo denied that racial animus motivated the crime (id. at p. 47) and refused to acknowledge his direct participation in the killing (as opposed to the beating) (id. at p. 61). The court pointed out that “despite strong evidence that Rozzo’s motivation for the murder was racial hatred, Rozzo has denied such a motivation,” citing Rozzo’s statements to evaluators and his refusal at the parole hearing to answer whether his crime had been racially motivated. (Id. at pp. 61-62.) “Further,” the court pointed out, “there is no evidence that Rozzo has ever acknowledged that the murder was racially motivated or acknowledged that he ever harbored racial animus, in general. Nor is there any evidence that Rozzo has engaged in effective therapy or rehabilitative programming that might have eliminated such animus.” (Id. at p. 62.) The court found in these facts “evidence that [Rozzo] lacks insight into the reasons why he participated in the murder [and that] [t]he circumstances of Rozzo’s commitment offense thus continue to have probative value in predicting his current level of dangerousness.” (Id. at p. 63; see also, e.g., In re Smith (2009) 171 Cal.App.4th 1631, 1638 [90 Cal.Rptr.3d 400]; In re McClendon (2003) 113 Cal.App.4th 315, 322 [6 Cal.Rptr.3d 278]; cf. In re Criscione, supra, 180 Cal.App.4th at pp. 1459-1460.)
The evidence of the inmate’s lack of insight into the basis for his antisocial behavior in those cases stands in marked contrast to the record in the present case. Here, there is no evidence approaching the factors that reflected a significant lack of insight in those cases. The Board seems to have faulted [481]Shippman for giving what its members considered to be an inadequate psychological explanation of the roots of his controlling personality, and his failure to state what in the future might trigger an urge for violence, although he was never asked this question. There is no suggestion that Shippman did not fully appreciate the wrongfulness of his prior conduct and accept responsibility for his misdeed. Although the Board indicated that Shippman needs to participate in more anger management programs (which despite his efforts he had been unable to do because of housing transfers), the Board cited no evidence to support his need for such additional programming. The opinion of the psychologists who tested and evaluated Shippman is not necessarily determinative, but the Board provided no rationale for disregarding their unanimous view that he has successfully completed anger management training and needs no further such programming.
Numerous cases have rejected reliance by the Board or the Governor on an inmate’s asserted lack of insight as a justification for denying parole where the record was equally devoid of evidence to support such a finding. (E.g., In re Dannenberg (2009) 173 Cal.App.4th 237, 255 [92 Cal.Rptr.3d 647]; In re Palermo (2009) 171 Cal.App.4th 1096, 1110-1112 [90 Cal.Rptr.3d 101]; In re Rico (2009) 171 Cal.App.4th 659, 678-679 [89 Cal.Rptr.3d 866]; In re Singler, supra, 169 Cal.App.4th at p. 1241; In re Roderick (2007) 154 Cal.App.4th 242, 271-272 [65 Cal.Rptr.3d 16].) “In the aftermath of Lawrence and Shaputis, the denial of parole now seems usually based, at least in part, upon the inmate’s asserted ‘lack of insight’ in some respect, which has become the new talisman.” (In re Calderon (2010) 184 Cal.App.4th 670, 689 [109 Cal.Rptr.3d 229].)
The case that may be most closely analogous to the present situation is Singler. Singler shot and killed his wife after a period of marital difficulty, including an affair by his wife, when Singler learned of her intent to leave him. (In re Singler, supra, 169 Cal.App.4th at p. 1232.) Although the Board acknowledged many favorable suitability factors in support of parole, it found Singler unsuitable due to a lack of insight. (Id. at p. 1241.) “[T]he Board argues the denial of parole is supported by evidence of Singler’s lack of ‘insight’ into what triggered the murder of his wife—specifically ‘why he “snapped” and decided to kill [her] rather than simply scare her.’ According to the Board, Singler’s inability to explain this supports its finding that he posed a risk of reacting in a similar way if confronted on parole with an ‘ “acute loss of significant relationships or feelings of sudden betrayal in [a] relationship in which he is emotionally invested.” ’ ” (Ibid.) The court’s review of the record, however, found that Singler adequately explained the reasons for his crime: “According to him, after months of marital difficulty due to [his wife’s] compulsive spending, he learned from [her] that she was having an affair with another person, that she wanted to divorce him and take their children, that she had emptied their bank account, and that she threatened to leave him destitute. All of this, he said, caused him to be [482]overcome by rage. He ‘just completely blew it’ because of the heartbreak and loss of his dreams for the future.” (Ibid.) He articulated that what he had done was unacceptable and that through therapy, self-help programs, and religious conviction, he had learned how to control his anger. His behavior in prison supported his claim that he had learned how to control his anger “even though life in prison had presented a myriad of opportunities to ‘snap’ from stress.” (Ibid.) Like Shippman, he had positive psychological evaluations indicating that he had embraced his self-help courses and achieved emotional stability. (Id. at p. 1242.) The court concluded, “In sum, there is no evidence that Singler lacks insight into why he killed his wife. To the contrary, the evidence disclosed that for many years, Singler has understood the reasons why he killed his wife, has recognized that he significantly overreacted to his angry impulses in doing so, and has learned to harness in socially acceptable ways the anger arising from life’s inevitable frustrations.” (Id. at p. 1243.)
Another instructive case is In re Dannenberg, supra, 173 Cal.App.4th at page 255, in which the court explicitly rejected an attempt to rely on Shaputis under circumstances very similar to those that are present here. Dannenberg had killed his wife after having “experienced severe domestic difficulties for a number of years.” (Id. at p. 242.) In support of his decision to deny parole, the opinion recites, “The Governor relies on Shaputis and argues that there is some evidence in the record that Dannenberg is unsuitable for parole due to his ‘lack of insight’ into the commitment offense. He cites to no evidence whatsoever in the record to support this contention. [Fn. omitted.] Indeed, all of the psychological reports reflect that Dannenberg has gained a great deal of insight into his offense over the years, and has acquired skills to enable him to avoid violence in the future. All of these reports have found that he has no need for further therapy. The Governor’s reliance on Shaputis is inapt. In Shaputis, the Governor’s finding that Shaputis lacked insight into his offense was supported by psychological reports and other evidence that Shaputis, an alcoholic with ‘schizoid’ tendencies, continued to deny responsibility for committing the offense. There was also a great deal of evidence that Shaputis had a long history of violence, which he also denied. Here, the Governor’s unsupported belief that all of the psychological reports are wrong does not constitute ‘some evidence’ that Dannenberg currently poses an unreasonable risk of danger to society.” (173 Cal.App.4th at pp. 255-256.) The court’s footnote 5 adds, “The Governor purports to find support for his conclusion in ‘the District Attorney’s opinion’ that Dannenberg lacks sufficient insight into his crime. The district attorney’s ‘opinion,’ like the Governor’s belief, is not evidence, and therefore does not constitute ‘some evidence’ supporting the Governor’s decision.” (Id. at p. 255, fn. 5.)
The court in Rico gave equally short shrift to the claim that because Rico “ ‘did not discuss the crime or his insight and remorse,’ ” it could be assumed that he lacked insight, rendering the commitment offense probative of current [483]dangerousness. (In re Rico, supra, 171 Cal.App.4th at p. 678.) The court noted that notwithstanding his attorney’s statement that Rico would not discuss the crime, Rico did so—accepting both a prior statement of facts and his responsibility for his actions. He had also discussed the crime with his psychological evaluator, who found his feelings of remorse to be “ ‘sincere and genuine.’ ” (Id. at p. 679.) In that discussion, he renounced his previous belief in gang values and described his prison term as “ ‘a very good thing for him’ ” in that it interrupted his pattern of peer dependence that had contributed to his prior gang activity. (Ibid.) Based on this record, the court concluded that the Board could not properly find a lack of insight supporting the conclusion that Rico was currently dangerous. (Ibid.)
Similarly, in Roderick the Board was dissatisfied with Roderick’s answers to questions asking “why he had led a life of crime.” In rejecting this asserted lack of insight as a factor supporting the denial of parole, the court stated, “Certainly, Roderick’s responses were unsophisticated and lacked analytical depth. But is his inability to articulate a more insightful explanation as to why he committed multiple crimes some evidence that Roderick poses a danger to public safety? The record does not support that conclusion. The 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. . . . [f] 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. Ignoring the unanimous clinical evidence to the contrary presented by trained experts— since 1999 all psychological reports conclude he would pose no more danger to society than the average citizen—the Panel’s arbitrary pronouncement that Roderick’s limited insight poses an unreasonable risk to public safety cannot be considered some evidence to support a denial of parole.” (In re Roderick, supra, 154 Cal.App.4th at pp. 271-272, fn. omitted; see also, e.g., In re Calderon, supra, 184 Cal.App.4th at pp. 688-693; In re Lawrence, supra, 44 Cal.4th at pp. 1222-1223; In re Palermo, supra, 171 Cal.App.4th at p. 1112.)
Here, as in these latter cases, the Board pointed to nothing that contradicts the psychologists’ conclusion that while in prison Shippman has developed a radically different and positive perspective on life, that he is genuinely remorseful for the crime he committed and for which he accepts responsibility, that he has acquired an understanding of anger management principles, and that he has no further need for additional anger management programming. The Board’s apparent view that Shippman’s understanding of the [484]psychological mechanisms that triggered his need for control over his wives is superficial neither finds support in the record nor tends to show that he is likely to reoffend. Shippman’s educational level is below that of a high school sophomore. It is unrealistic to expect him to articulate a psychological analysis in a highly sophisticated manner. His responses to the questions addressed to him by the Board reflect an understanding of the circumstances that prompted his crime; the Board can hardly fault him for failing to identify a specific trigger that might stimulate a violent reaction when it did not ask him to do so. Even if he did not respond to the Board’s satisfaction, vagueness alone does not constitute evidence that Shippman’s level of insight is such that he would be a danger to the public if released on parole. (In re Roderick, supra, 154 Cal.App.4th at p. 265.)
When the Board conducts a parole hearing, it has the advantage of personally observing the inmate. From the individual’s demeanor or manner of answering questions, the Board may develop a concern as to whether the inmate is being forthright or providing rote responses that mask attitudes that reasonably can be anticipated to lead to violence upon release from prison. However, the Board also has the ability to ask further questions and to probe the basis for whatever misgivings it may have. When an inmate comes before it with psychological evaluations indicating that he or she has developed personal insight and presents a low risk of reoffending, the Board’s speculative hunch does not provide some evidence to the contrary. Further questioning may develop some evidence to support a finding that the inmate has not internalized the means of avoiding future violence and remains a risk of reoffending, as illustrated by the records in Shaputis and Rozzo, discussed above. But when, as here, the Board does not pursue the inquiry and elicits no answers that reasonably support such a finding, pure speculation that the inmate does not appreciate the “triggers” of violent behavior does not provide the necessary evidence to justify the denial of parole.
A review of the entire record provides no evidence that Shippman would pose an unreasonable risk of danger to society if paroled. All of the applicable suitability factors specified in the Board’s regulations militate in favor of suitability. (Cal. Code Regs., tit. 15, § 2402, subd. (d)(l)-(9).)14 With the exception of his unstable relationships with his former wives, a historical [485]fact beyond his power to change, none of the unsuitability factors apply. (Id., § 2402, subd. (c).)15 In short, the record contains no evidence supporting the Board’s finding that he is unsuitable for parole.
III.
The lead opinion does not defend the Board’s decision on the basis on which the Board relied. Rather, based upon its own review of the record, the lead opinion finds that Shippman has dissembled various facts, tending in the lead opinion’s view to support a finding that Shippman lacks the insight into his behavior necessary to eliminate the risk of future dangerousness. I respectfully submit that there are at least two fundamental problems with the lead opinion’s approach. First, this court’s reliance on findings and credibility determinations that the Board did not make exceeds the appropriate scope of review. We are to determine whether there is evidence to support the Board’s findings, not make our own. “Given the extraordinarily deferential standard of review we already apply to the Board’s decisions, it would be inappropriate for courts to salvage the Board’s inadequate findings by inferring factors that might have been relied upon. At minimum, the Board is responsible for articulating the grounds for its findings and for citing to evidence supporting those grounds.” (In re Roderick, supra, 154 Cal.App.4th at p. 265; see also, e.g., In re Lewis (2009) 172 Cal.App.4th 13, 29 [91 Cal.Rptr.3d 72] [“in reviewing the Board’s decision that an inmate is not suitable for parole, the question is whether or not the Board’s conclusion that a particular inmate poses a current danger to society is supported by the Board’s analysis of the various unsuitability and suitability factors . . .”]; In re Moses (2010) 182 Cal.App.4th 1279, 1310-1311, fn. 13 [106 Cal.Rptr.3d 608]; In re DeLuna (2005) 126 Cal.App.4th 585, 593-594 [24 Cal.Rptr.3d 643].)
Second, and most importantly, the record does not support the adverse implications concerning Shippman’s credibility that the lead opinion draws from the record. The lead opinion in part misreads the record and in part relies on speculation concerning facts not contained in the record and concerning what Shippman’s answers to questions not asked of him might have been.
To be specific, in asserting that the record provides support for the Board’s “concemQ that, without a deeper understanding of what triggers his extreme and sometimes violent controlling behavior, petitioner would return to it upon his release, particularly if he became romantically involved with other [486]women” (lead opn., ante, at p. 458), the lead opinion first “acknowledge[s] much of his testimony appears quite reflective and forthcoming with respect to these problems” (id. at p. 459). But the lead opinion then finds contrary evidence in a supposed contradiction between Shippman’s testimony that he thought control had not been an issue with his prior wives and a subsequent answer that control was a factor in his prior relationships. (Ibid.) The lead opinion also implies that Shippman acknowledged abusing his second wife. The record contains no such contradiction and no such acknowledgement. Early in the parole hearing, Shippman was asked, “Do you feel that controlling [his two prior wives] was also a factor in your prior relationships?,” to which he answered, “No, sir.” Much later in the hearing, the following exchange occurred:
“Deputy District Attorney Goold: There are indications, at least in the police reports, about prior reports of physical abuse or emotional abuse with his previous wives, and doesn’t he think that is something that’s continued throughout his social history?
“Inmate Shippman: No, sir. There was one with my [second] wife . . . who I was married to for 22 years. One incident where that happened is right.
“Presiding Commissioner Biggers: But I did ask you about that earlier and you told me that that was not an issue.
“Inmate Shippman: With what, control?
“Presiding Commissioner Biggers: Control.
“Inmate Shippman: Well, control wasn’t an issue, I don’t—
“Presiding Commissioner Biggers: What happened with this incident that the District Attorney’s talking about?
“Inmate Shippman: Our son had gotten in trouble with drugs, and so my wife and I talked about it and she said, ‘Well, we’re going to have to give him over and put him to the state,’ and I said, ‘No, we’re not. We’re not going to do that, because if we give him over to the state then they’re not going to help him like he can help here [sic].’ And my son turned out very well, he’s a pilot now.
“Presiding Commissioner Biggers: Was there any physical altercations?
“Inmate Shippman: No, I had no physical violence.
[487]“Presiding Commissioner Biggers: Towards any of your wives?
“Inmate Shippman: Towards any of my wives, until I did this with Juli.”
Thus, contrary to the implications of the lead opinion, Shippman was consistent in his testimony that there had been no violence or control issues with his prior wives, and the record contains no evidence to the contrary. There is absolutely no basis to imply that his disagreement with his second wife concerning the appropriate response to her son’s drug problems involved any violence or inappropriate behavior on Shippman’s part. Moreover, the incident in which Shippman attacked with a baseball bat the man with whom his first wife was having an affair, to which the lead opinion also refers as another “incident[] of abuse” (lead opn., ante, at p. 459), was forthrightly acknowledged by Shippman and, as he testified, involved no violence against his wife.
The lead opinion also asserts that Shippman’s testimony concerning his relationship with Juli “casts further doubt on his denial of having emotionally or physically abused his former wives” (lead opn., ante, at p. 460), but the record provides no support for such a sweeping statement. The probation report to which the lead opinion refers does state that “[t]here were a number of police reports at the [police] department relating to the events surrounding their separation and of the problems they were having,” but neither the report nor any other evidence specifies what those problems were nor indicates that Shippman had been violent towards Juli. Whatever one may speculate, Shippman was not asked about those problems and there is no evidence disputing his testimony concerning the absence of violence from their prior relationship. When asked why it was necessary for Juli to obtain a restraining order against him, Shippman understandably responded that he did not know how to answer that question but went on: “I’d never been violent towards Juli, but I guess she was either afraid to come to the house—although she had come to the house quite often to get mail, and there’s other times when I had just given her mail at the front door.” The presiding commissioner then asked, “But you had never been violent with her in the past” to which Shippman answered, “No, I had not.”
The lead opinion opinion indicates that Shippman first denied but then acknowledged “forcibly taking Juli to Ukiah” in the weeks before the murder. (Lead opn., ante, at p. 460.) The testimony, however, reveals that Shippman always acknowledged that while Juli had agreed to drive with him to Calistoga, over her protest he drove much further, to Ukiah. The record reflects neither a contradiction in Shippman’s testimony nor the use of [488]violence in his prior relationship with Juli; at most it reflects some confusion over the multiple senses in which the word “force” may be used.16
In short, the record contains absolutely no evidence to support what the lead opinion finds to be “the behavior apparent in [Shippman’s] unstable relationships with his former wives” on which it justifies “inferences” that “(1) petitioner has a serious problem with wanting to maintain control over the women in his life; (2) this problem has repeatedly manifested itself in the form of emotional or physical abuse directed toward these women; (3) petitioner is not yet willing to take full responsibility for this pattern of abusive conduct; and (4) petitioner’s failure to take full responsibility for his abusive conduct indicates a lack of insight into the root causes of his crime.” (Lead opn., ante, at p. 460.) Shippman admittedly was twice divorced before marrying Juli, and in that sense had unstable relationships (although one of the prior marriages lasted 22 years), but there is absolutely no evidence in the record that he ever engaged in violence towards any of his former wives or that he engaged in violence against Juli prior to the commission of his life offense.
In defending the Board’s rejection of the unanimous view of the evaluating psychologists that Shippman has acquired “a deep understanding of the principles of anger management” and “the skills and insight necessary for decreasing his violence risk,” the lead opinion speculates that Shippman failed to discuss with the psychologists his prior marriages and the incident in which he previously drove Juli beyond Calistoga to Ukiah. The psychologists’ reports do disclose some discussion with Shippman concerning his prior [489]marriages and Shippman testified that he did discuss “control issues” with at least one of the psychologists. The reports do not purport to relate everything that was said during the course of the evaluation interviews, and there is no basis for speculating that Shippman failed to mention a particular fact simply because it is not recited in the report, much less for assuming that a particular question was even asked of him. The lead opinion criticizes the psychologists for their asserted “failure to analyze the one aspect of petitioner’s personality that is suspected to have contributed to his failed relationships and his commission of murder.” (Lead opn., ante, at p. 462.) The reports themselves would seem to refute this criticism, but in all events any shortcoming in the work of the psychologists, who were retained by the Board to evaluate Shippman, hardly provides affirmative evidence that Shippman lacks the insight necessary to avoid further violent antisocial conduct.
Finally, the concurring opinion of Justice Siggins attempts to justify the Board’s denial of parole based on “unexplained circumstances of his commitment offense” (conc. opn., ante, at p. 467) “not mentioned or relied upon during petitioner’s hearing” (id. at p. 465). As previously noted, this approach is in itself improper. (In re Roderick, supra, 154 Cal.App.4th at p. 265; In re Moses, supra, 182 Cal.App.4th at p. 1310, fn. 13; In re Lewis, supra, 172 Cal.App.4th at p. 29; In re DeLuna, supra, 126 Cal.App.4th at pp. 593-594.) The concurrence assumes that Shippman “is not being candid about, and has not reconciled himself with, the events leading up to his wife’s murder” based upon the apparent fact that his wife’s car was discovered in front of his house with her purse inside and the engine running. (Conc. opn., ante, at p. 465.) The due process concern in relying on matters about which Shippman was never asked or given an opportunity to explain is obvious.17 There are many possible explanations for the condition in which Juli left her car on the day of the murder. However likely or unlikely the concurrence’s explanation may be, it is entirely speculative. It provides no competent basis for rejecting Shippman’s acceptance of responsibility for his misdeed and concluding that he would pose an unreasonable risk to society if granted parole.
The situation in this respect is much like that presented in In re Moses, supra, 182 Cal.App.4th 1279, in which the Governor’s denial of parole was [490]overturned where the Governor had relied on discrepancies in the inmate’s version of his second degree murder to conclude that he did not in fact accept responsibility for his actions and continued to pose an unreasonable risk of danger to society. The court held that “[t]he Governor cannot simply ignore the undisputed evidence of Moses’s taking of responsibility and repeated expressing of remorse” (id. at p. 1308)—which were much like those of Shippman here. With respect to the discrepancies in Moses’s version of the killing, the court observed: “Moses’s recollection of events, to the extent it differed from other evidence, is insignificant in light of his acknowledgment that he murdered Rhodes and repeated expressions of remorse, his extensive drinking on the day in question, which could have affected his perceptions, his denunciation of drinking and guns, his long-standing participation in prison in self-help programs such as [Alcoholics Anonymous] and [Victim Offender Reconciliation Group], his exemplary disciplinary and work record in prison, and the multiple positive psychological evaluations .... Therefore, we conclude these discrepancies are not some evidence of present dangerousness.” (Id. at p. 1310.)
Thus, upon careful review, the additional matters plumbed from the record by the lead opinion provide no basis for rescuing the deficient analysis of the Board. I would grant the petition for a writ of habeas corpus and direct the Board to vacate its 2008 order deeming Shippman unsuitable for parole and to fix a date for his parole in accordance with all other provisions of law.
Petitioner’s petition for review by the Supreme Court was denied September 22, 2010, SI84079.
Despite having graduated from high school and taken college classes, Shippman reads at the 10th grade level. On a standardized test, the Test of Adult Basic Education, he scores at the 8.7 grade level.
Although Shippman was already a practicing Seventh-day Adventist before his crime, he now describes himself as “bom again,” signifying a deeper religious commitment, allowing him, he claims, to be less controlling.
Shippman also has a backup possibility of working for his friend and former attorney as a plumber, but he does not intend to do so.
The 2004 psychological evaluation notes that at age 28 Shippman suffered from testicular cancer, resulting in the removal of one testicle. The return to the present petition was filed by the acting warden of the California Medical Facility, where Shippman has been housed since August 2007. The record does not indicate the reason for which he is being housed in the medical facility.
The report indicates that the most reliable and valid method for assessing risk of future violence is an empirically based approach. Shippman’s risk of future violence was assessed on three different empirical scales. On one, he was placed in the first percentile, which “does not meet the cutoff score indicative of psychopathy.” On a second scale which measures the risk of general recidivism, Shippman’s score indicates that he “is in the ‘very low’ category, having scored lower than 99% of North American sample of incarcerated male offenders.” (Original boldface.) On the third scale, based on 20 risk factors, he scored in the low range for risk of future violence. “Taken together,” the psychologist concluded, “the weight of the evidence indicates that the inmate poses a ‘very low risk’ of violence in the community.” (Original boldface.)
The explanation for the Board’s decision provided by the presiding commissioner is rambling and repetitive. I quote it at length, although far from in full, as follows: “Now the commitment offense itself, this offense was definitely carried out in a dispassionate and, we believe, in a calculated manner in that the victim came over to your place to get her mail, and for some reason you were able to convince her to go in your vehicle with you so you-all could talk. And one of the questions I asked earlier was why couldn’t you have talked there? The fact that there was a gun in the vehicle at the time—and again, I’m not litigating the crime, but the fact that also there was a broken door in there (indiscernible) before, there was a restraining order [that] shows that you just wanted to get her there for the sole purpose of talking, and then maybe it got out of hand or whatever, but it was definitely done in a dispassionate and somewhat calculated manner. It clearly was done in a manner which demonstrated exceptional callous disregard for human suffering. You shot the victim three times. Unless you were using an automatic rifle that would fire three successive rounds, you had the opportunity to cease at any time, but yet you pulled the trigger three times just to kill the victim. And then, on top of that you turned and you shot yourself in a manner which—and I don’t know exactly where you were shot or the basis of that, but the bottom line is she is now deceased and you’re still with us. . . . We feel the motive for the crime was very trivial and senseless, because it appeared you were just jealous of the fact that your wife, who was substantially younger than you were, had found someone else. . . . You’re 70 years old at this point but you still appear to have the physique of someone that’s not a 70-year-old man. That’s also a concern, the fact that you could go back out there and do the same thing, without knowing the reasons as to why you committed this crime. That’s something that didn’t come across with us today. The facts of the crime are as follows: . . . We note for the record that you had no prior criminality. You did have somewhat of an unstable social history primarily because there were problematic relationships with your romantic relationships. For some reason you were having difficulties [472]with people that you had been romantically involved with, with your first two wives and then your third wife, Juli. You indicated you were controlling on the first two and you also wanted to control Juli. And the fact of the matter is that today you were not able to tell us why you felt the need to be controlling, and the only thing you could tell us today was that you’ve taken an anger management course that was 40 weeks long or something, where you have identified that there is no need for you to be controlling. And I thought that the District Attorney in questioning you made a very valid point about the fact as to why you would need to be controlling, and you really didn’t have an answer for that, just that, ‘Well, it could have been that my father was controlling, although we came from a very strong household.’ That should be something that ... the panel would need to feel comfortable in that you know why you would even allow yourself to get into this type of mode that you were in to be able to, even at 70 years old, to go out there and become controlling again by not knowing the triggers that will allow you to go ahead and do that. Now, in any class that you take it basically tells you, gives you some tools to use, but we’re not sure that you have the tools because of the one course that you took in anger management if it had gone on for a long period of time. That was in 2003. Now, if you had been continuously involved in those types of programs, we understand that you would (indiscernible), but that first course is just a building block (indiscernible), and you really need to stay involved with different programs so that you can see and develop those coping skills so that if you are finding yourself in that situation again. And who’s to say that you won’t find someone else that you will not revert back to the controlling features that you had at that time that contributed to the two failed—actually, three failed relationships? Because at the time Juli was also going to leave you as well, to the point that she had a restraining order. So it’s very important that you get a hold on why it’s necessary for you to have those controlling—the need to be controlling. And secondly, even though you have had one course in anger management, do you really know and understand and be able to identify those triggers that will put you back in that same type of environment again? And although you do take responsibility for your actions, this panel feels that you still lack the insight into the causative factors that contributed to you committing this offense. . . . On your parole plans, I think they’re marginal. We feel they’re marginal. You’re going to live with the Morris family and you’ve known them for 3-1/2 years, yet you’ve been down . . . about 15 years, and yet you’re going to go with a family—a Christian family, I might add—that is willing to give you a place. According to this letter, you met with them several times, and yet, you know, they’re going to open their home to you, but you don’t really have any support to—they’ll give you room and board, but there are other things that we feel that you’ll need, such as how do you get around? You want to go and do all the other stuff that you had; who’s going to take care of your personal needs? You say you have money; your daughter should tell you about how much money you have. You also should go through Social Security to find out how much you would be receiving. I’m sure it’s pretty substantial just going back looking when you were making 18, 19 bucks an hour at that time, which was pretty good money ... so you probably will get a substantial amount of money from that along with what you already have, but you’ve got to come in here and show us—a panel—that one, you’re going to be able to support yourself, because it’s a lot more expensive to be living out there, and even though somebody’s going to give you room and board, I’m sure they’re not going to do it forever, and even though they’re a Christian family.”
The Board suggests that there may have been some level of premeditation in planning the crime. However, there is no basis in the record to infer that the crime was calculated. There is no evidence suggesting that Shippman convinced his wife to go for a drive as part of a plan to kill her, rather than to persuade her to stay in the marriage. There is no evidence to dispute Shippman’s claim that the rifle was in his vehicle as it always was for the purpose of hunting. Contrary to the Board’s implication, the fact that the vehicle had a broken door handle does not suggest that the crime was “somewhat calculated.” Shippman denies that he deliberately broke the handle and there is no contrary evidence. Indeed, the record is not clear when the handle was broken and when it was repaired; it is not clear that it was still broken on the day of the murder. In any case, Juli was not in the vehicle when Shippman murdered her. Shippman certainly did not execute a plan to trap Juli in the truck in order to kill her.
The Attorney General also argues that because Shippman’s 2008 parole denial occurred after he had served only 13 years of his sentence—less than his base term—the commitment offense is predictive of his risk if paroled. This argument is illogical and disregards the scheme articulated by the Supreme Court in In re Dannenberg (2005) 34 Cal.4th 1061 [23 Cal.Rptr.3d 417, 104 P.3d 783]. Suitability for parole and the appropriate base term for the offense are distinct issues, with the former to be determined prior to and independent of the latter. Were it otherwise, it would be necessary to determine the base term before determining suitability, which is the approach rejected in Dannenberg.
Shippman also indicated that he has the opportunity to work for his former attorney. The Board disapproved any such idea because of Shippman’s statement that the former attorney previously had urged him to testify falsely. We need not consider whether this fact, if true, would render a parole plan to work for the attorney unacceptable because Shippman indicated that he prefers to live with the couple, draw Social Security, and volunteer as an instructor in local jails.
Indeed, the report goes on to state, “Inmate Shippman is currently engaged in training inmates on a voluntary basis in basic plumbing and electricity. He has developed lesson plans, technical drawings, and procedures to teach inmates basic skills that they can use when released. He is actively involved in a program he has developed, in which he teaches these skills to several dozen inmates. He spoke with enthusiasm about his plans when he is released to come to prisons on a voluntary basis to provide the same instruction to inmates in order to help them survive successfully in the community. His commitment to this helpful intervention appears to be very sincere and deeply held.”
In re Criscione (2009) 180 Cal.App.4th 1446 [103 Cal.Rptr.3d 549], decided and brought to our attention shortly before oral argument, is distinguishable on this basis. Criscione had a “significant history of volatile relationship instability with women” having previously attempted to poison the girlfriend that he later killed in a brutal manner, having “once tied her up and cut off her hair, then, several days later, beat her up,” and having engaged in “much violence in the marriage” with a former wife. (Id. at pp. 1452, 1454-1455.) He denied much of this violence and refused to discuss the commitment offense either with the psychologists who evaluated him or with the Board. Criscione “had a history of mental problems, having been treated with electroshock therapy on several occasions.” (Id. at p. 1451.) His most recent evaluator, although pointing out that “[r]isk assessment estimates suggest that the inmate poses a low likelihood to become involved in a violent offense if released to the free community” [477]diagnosed Criscione “as suffering from ‘Personality Disorder, NOS with passive-aggressive personality traits’ ” and expressed “ ‘concern . . . that these passive-aggressive personality traits may become more prominent when interacting with females in the community.’ ” (Id. at pp. 1452-1453.) His most recent psychological report “did not contain a conclusive assessment of Criscione’s potential for dangerousness because Criscione had not been ‘forthcoming’ during that examination.” (Id. at p. 1455.)
Because of the Board’s expressed concern, I quote the relevant exchange in full:
“Deputy District Attorney Goold: Yes. I believe you asked this, Commissioner, at one point, but I don’t believe he gave much of an answer as far as where he thinks these issues of control come from in his history, in his personality history, either his upbringing or where, what insight he has into those, because it’s certainly not indicated in the psych report or anything that I’ve read.
“Presiding Commissioner Biggers: And I think you’re right, I think he did mention the fact that he has control over it. When did you first realize you had controlling issues? I think would be the best way to ask that.
“Deputy District Attorney Goold: Okay.
“Inmate Shippman: Well, I believe many years ago—my dad was a very, very controlling], and he asked the question about where did these issues come from, I believe, and I believe that is where, what I saw in growing up, although it was a loving family, although my dad was really a control person, and that is probably—that’s no excuse, but in taking these courses—as I’ve said, and I will say it to the end—you can get over those by realizing that that is wrong, control issues over anybody. You can’t control another person’s love or affection.
“Presiding Commissioner Biggers: All right.”
In addition to Socrates’s famous admonition, “Know thyself,” and Freud’s development of psychoanalysis, designed to make one aware of unconscious motivation, the literature is replete with exhortations to develop insight and laments about the attendant difficulties of doing so: “The life which is unexamined is not worth living.” (Plato); “Know then thyself, presume not God to scan; the proper study of mankind is man.” (Alexander Pope); “It is as hard to see oneself as to look backwards without turning around.” (Henry Thoreau); “There ain’t no way to find out why a snorer can’t hear himself snore.” (Mark Twain); “Know thyself? If I knew myself I’d run away.” (Johann Wolfgang von Goethe).
The Board is to consider all available relevant and reliable information in determining parole suitability. (Cal. Code Regs., tit. 15, § 2402, subd. (b).) Factors which tend to show suitability are: (1) the lack of a juvenile record, (2) a stable social history, (3) showing signs of remorse, (4) motivation for significant stress being a motivation for the crime, (5) suffering from battered woman syndrome when the crime was committed, (6) the lack of a significant history of violent crime, (7) being a relatively advanced age, (8) having made realistic plans for release or developed marketable skills, and (9) having engaged in institutional activities indicating an enhanced ability to function within the law upon release. (Id., § 2402, subd. (d).) All but the fifth of these factors apply to Shippman.
Factors which tend to show unsuitability are (1) an especially heinous, atrocious or cruel commitment offense, (2) a history of having inflicted or attempted to inflict serious injury on a victim, (3) a history of unstable relationships, (4) a history of being sexually sadistic, (5) a lengthy history of severe mental problems, and (6) a history of engaging in serious misconduct while in custody. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
The relevant testimony reads as follows:
“Presiding Commissioner Biggers: Did you take her forcibly someplace before to talk (indiscernible)?
“Inmate Shippman: I did not take her forcibly. I know the incident you’re talking about, when we went and we were going to go out for breakfast, and we were going to go to Calistoga. But you’re right, instead of me stopping in Calistoga, I kept going.
“Presiding Commissioner Biggers: Why’d you do that?
“Inmate Shippman: Because I wanted to talk to her. We had talked—I have to say, back then I thought I could take control of the situation, which I found out I couldn’t, and so I thought by talking and talking to her that I could perhaps talk her out of that, but I realized that I could not.
“Presiding Commissioner Biggers: But she didn’t want to go with you to there, did she?
“Inmate Shippman: Yes, she did. She wanted to go. We were just going to go to Calistoga and have breakfast, and that’s what I told her.
“Presiding Commissioner Biggers: But you went past Calistoga.
“Inmate Shippman: Yes, I did.
“Presiding Commissioner Biggers: But did she want to go past Calistoga with you?
“Inmate Shippman: Probably not.
“Presiding Commissioner Biggers: Okay. Well, then, that means you forcibly took her, because she didn’t want to go that far with you.
“Inmate Shipman: Yes, sir.”
The concurrence does not simply refer to what it considers additional evidence in the record to support a finding made by the Board, but develops a new theory on which the Board made no finding and placed no reliance. As shown by the extensive remarks of the presiding commissioner quoted in footnote 6 above and in footnote 1 of the concurrence, the Board did not find or intimate that Shippman had been less than candid in his description of the circumstances leading to the killing, or mention any perceived discrepancies in his description of the crime in explaining why it felt Shippman lacked insight or remained a potential risk to public safety if released on parole. The same is true with respect to the additional matters referred to in the lead opinion (discussed above) to justify the Board’s ultimate decision to deny parole.