Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. 62198
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Petitioner Jose Cobos was a member of the Nuestra Familia prison gang. On January 3, 1976, Cobos shot and killed another gang member on orders from gang leadership. After a jury trial, Cobos was convicted in 1976 of first degree murder, conspiracy, and possession of heroin. He is presently serving an indeterminate life sentence.
Cobos’s 13th parole hearing was held on June 22, 2005. The Board of Prison Terms (now the Board of Parole Hearings; hereafter Board) found that Cobos was suitable for parole because he would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Governor reversed the Board’s decision to grant parole on November 11, 2005, after determining that Cobos’s release would pose an unreasonable risk of danger to society.
Effective July 1, 2005, the Board of Parole Hearings replaced the Board of Prison Terms. (Pen. Code, §§ 5075, 5075.1; Gov.Code, § 12838.4.)
Cobos challenged the Governor’s decision to deny parole by filing a petition for a writ of habeas corpus in the superior court. On December 17, 2007, the superior court granted the habeas corpus petition and ordered Cobos to be released on parole. On appeal, the Attorney General contends that the superior court erred because the Governor’s decision is supported by some evidence.
We stayed the superior court’s order pending appeal. For the reasons stated below, we conclude that the Governor should conduct a new review of the Board’s parole decision. We will therefore remand the matter to the superior court with directions to modify its order granting Cobos’s habeas corpus petition. The order shall be modified to direct the Governor to vacate his November 11, 2005 parole decision and to conduct a new review of the Board’s decision in light of the recent California Supreme Court decisions in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), including consideration of all relevant statutory factors as required by California Code of Regulations, title 15, section 2281, subdivision (b). We will affirm the order as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Social History
Cobos was born in 1944 and was over 60 years old at the time of the June 22, 2005 Board hearing. He was raised by his grandmother until the age of 10 and thereafter by his mother and stepfather. He left home at the age of 17 and married for the first time at the age of 18. That marriage lasted five years. Cobos married again at the age of 32. After 11 years, Cobos’s second marriage ended. Cobos married for the third time at the age of 48 and is presently separated from his third wife. He has several children and grandchildren, but has not had any contact with two of his children since 1979. Cobos’s family also includes four biological siblings and four stepsiblings. He is close to all but two of them.
Cobos’s educational background includes attending school through the ninth grade. His employment history prior to incarceration consisted of sporadic employment in factories and as a laborer until he became involved in drug sales. Cobos was addicted to heroin from the age of 15 or 16 until he went to prison at the age of 25 in 1970.
B. Criminal History
During Cobos’s parole hearing, the presiding commissioner noted that his “records were in a disarray,” advised him that the Board wanted to “go through your record one last time,” and asked him to “please indicate to me what if anything you’ve been convicted of.”
The Board established during the June 22, 2005 parole hearing that Cobos does not have a juvenile criminal record and his adult criminal record began in 1963, with a drunk driving conviction. Cobos also agreed with the portions of the record indicating that he was subsequently convicted of burglary in 1965; being under the influence of a narcotic in 1968; heroin possession in 1969; possession of heroin for sale in 1970; and possession of a dangerous weapon in a correctional facility in 1973.
The Board’s record also, according to the presiding commissioner, showed “an April 12, [19]69, arrest. This again is in Madera. The charges are as follows: Grand theft auto, possession of illegal drugs, under the influence of narcotics, possession of injection paraphernalia. It reflects a Court conviction for the grand theft auto, likewise, convictions for possession of illegal drugs, under the influence of narcotics possession of injection of paraphernalia, and it’s a little unclear as to how that was adjudicated.” Cobos stated that he had no recollection of these offenses and did not know where Madera was. The presiding commissioner responded, “I’ll make a note that you deny and have no recollection . . . .”
C. The Commitment Offense
The probation report’s description of the circumstances of the January 3, 1976 commitment offense, which Cobos acknowledged to be “basically correct,” was read into the record at the June 22, 2005 Board hearing, as follows.
“ ‘On January 3rd, 1976, at approximately 3:00 p.m., the officers of the Santa Clara Sheriff’s Department responded to an address in North Jackson in San Jose having received a report of a shooting from that location. The investigating officers found the victim, [George] Tenario. . . 29 years of age, lying on his back in the courtyard area of the complex. Tenario had sustained a gunshot wound behind the right ear, two in the posterior chest area, and one at the right wrist. The wounds had been caused by a .38 caliber handgun. Tenario was transported to [a hospital] where he expired while undergoing surgery.’ ”
“ ‘Mrs. Hernandez informed the officers someone had knocked on the door and identified themselves as Danny. Mr. Hernandez [sic] opened the door observing two men who asked for Tenario who appeared not to recognize the men, shook hands with one of them, and left the apartment. Hernandez heard what sounded like firecrackers being discharged, ran out and downstairs where she observed the victim lying in the courtyard. [W]itnesses [sic] informed investigating officers that while she was in her residence she heard shots and looked out the window observing Tenario laying in the courtyard. The witness ran down to Tenario and stated . . . that Crow . . . had shot him. Later, according to an informant, [Cobos] had a gun and he and [Daniel] Ramos left heading towards the apartment complex at North Jackson. A few minutes later, the informant heard shots and saw running out of the apartment complex [Cobos] who ran into his car. The informant followed [them] to [the] creek area of Williams Street Park where it was suspected that they were getting rid of the murder weapon.’ ”
“ ‘Cobos was arrested at his residence on January the 6th, 1976, with a brown paper bag containing eight balloons of heroin. . . . [T]he Judge at the sentencing [hearing] on January the 4th, 1977, after his conviction, indicated Mr. Cobos does not care one whit . . . about the laws of the society he lives in. He has shown this by his cold-blooded assassination of the victim in this case. Mr. Cobos earned the maximum term of punishment.’ ”
During the June 22, 2005 Board hearing, Cobos expressed his remorse for taking the life of George Tenario. He also explained that the Nuestra Familia leadership ordered him to kill Tenario because Tenario was suspected of using heroin and stealing from the gang.
Following a jury trial, Cobos was convicted on October 19, 1976, of first degree murder (Pen. Code, § 187), conspiracy (Pen. Code, § 182), and possession of heroin (Health & Saf. Code, § 11350).
We granted the Attorney General’s motion to augment the record with a copy of the abstract of judgment and the information pertaining to the commitment offense.
D. Conduct While Incarcerated
Cobos obtained his GED while incarcerated in the state prison system. In 1980, he was placed in the federal prison system under a federal witness protection program, where he remains. His prison disciplinary history includes four misconduct citations, including assaulting an inmate in 1979, disobeying an order in 1984, possession of unauthorized clothing in 1988, and refusing work in 1988. His record reflects that he has not been involved in any incidents of institutional wrongdoing or misbehavior since December 1988.
During his incarceration, Cobos has participated in Alcoholics Anonymous and completed many programs included a drug education program, Cage Your Rage, Real Estate Fundamentals, Family Financial Management, meat cutting, 80 hours of optical vocational training, computer applications and word processing, and Quality of Life. He has also assisted in translating for Spanish-speaking inmates. Since 2004, Cobos has been assigned to work in the Federal Prison Industries at Unicor, where he has received outstanding work evaluations.
“Federal Prison Industries (‘FPI,’ also known by its trade name ‘UNICOR’) is a government-owned corporation that was created in 1934 to provide work simulation programs and training opportunities for inmates of federal correctional facilities.” (Core Concepts of Florida, Inc. v. U.S (Fed. Cir. 2003) 327 F.3d 1331, 1333.)
Cobos also withdrew from the Nuestra Familia gang while he was in prison. He decided to withdraw nearly 20 years ago after his youngest son was “baptized” into the gang at the age of 18 months, meaning that another gang member drew the Nuestra Familia emblem of “NF” with a pen on his son’s forearm. Nuestra Familia had also started a trust fund to put Cobos’s son though college with the intention that he would become a gang lawyer or businessman. At that time, Cobos realized that he did not want his family to be involved in the gang. He also realized that he could no longer agree with killing people for violating Nuestra Familia rules.
Cobos agreed to cooperate with the authorities although he knew that testifying against the Nuestra Familia gang would endanger him and his family. He wanted to make amends because he felt that he was indirectly responsible for “every act that the Nuestra Familia had committed.” A letter from an assistant U.S. Attorney, which was read into the record of the June 22, 2005 Board hearing, indicated that Cobos had cooperated in at least four criminal cases against Nuestra Familia members that resulted in numerous convictions, and that all information provided by Cobos has been proven to be accurate.
E. Psychological Evaluation
During the June 22, 2005 Board hearing, a 2005 psychological evaluation of Cobos was reviewed. The evaluation was based upon examinations in April 2005 and May 2005 and included a diagnosis of “Antisocial Personality Features with Prior Behaviors and Attitudes Reflecting Anti-personality Disorder.” However, the “clinician” who prepared the evaluation also noted that “[a]t this time, there are no overt behaviors that would suggest a personality disorder or major mood or though[t] disorder.”
The record on appeal lacks a copy of the 2005 psychological evaluation and does not specify the professional qualifications of the “the clinician” who prepared the evaluation.
Regarding Cobos’s present dangerousness, the “clinician” stated that his “volatile behaviors and substance abuse were nearly three decades ago and were significantly intertwined in the gang mentality and lifestyle. [Cobos] has since removed himself from the group, has expressed recognition of the egocentric destructive nature of his previous thinking and has expressed a change in belief systems. He has not demonstrated any violence or overt hostility towards individuals while in the Bureau of Prisons. . . . [T]he risk for dangerousness is estimated to be low.”
F. Parole Plans
If he is released on parole, Cobos intends to continue in the federal witness protection program. He advised the Board that his parole plans could be verified confidentially.
G. The Board Hearing and Decision
The Board issued its parole decision after the June 22, 2005 hearing, finding that Cobos was suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison.
The Board’s decision was based upon several parole suitability factors, including (1) the lack of a juvenile record of assaulting others; (2) a stable social history and close family ties; (3) an enhanced ability to function within the law while in prison; (4) the last act of violence was in 1979; (5) the last prison disciplinary report was in 1988; (6) positive institutional behavior, including earning a GED, participating in self help, therapy and vocational programs, and outstanding comments from prison staff regarding his work; (7) no significant criminal history of violent crime; (8) advanced age, which reduced the probability of recidivism; (9) realistic parole plans under the auspices of the federal government; (10) signs of remorse for the commitment offense; (11) a favorable psychological evaluation in 2005; and (12) courage in testifying against the highest ranking members of Nuestra Familia, despite the risk to himself and his family.
The Board acknowledged the district attorney’s concern, as stated during the June 22, 2005 hearing, that Cobos was at risk for substance abuse if he were to be released from prison and therefore he should participate in further substance abuse programming. However, the Board noted that Cobos’s drug addiction had nothing to do with the commitment offense.
H. The Governor’s Decision
In his decision dated November 11, 2005, the Governor reversed the Board’s decision to grant Cobos release on parole. The Governor concluded that Cobos’s release from prison would “pose an unreasonable risk of danger to society at this time,” based on the circumstances of the commitment offense, his criminal record, and the district attorney’s opposition.
Regarding the commitment offense, the Governor stated that “the first degree murder of which [Cobos] was committed was especially grave because it was committed to further the activities of his gang, the Nuestra Familia, and it resulted in his additional felony conviction for conspiracy. Mr. Cobos himself admits that he tracked down Mr. Tenario and shot him a total of four times, in the head, back and wrist, because a fellow Nuestra Familia gang member, who was higher ranking than he, told him to kill Mr. Tenario because he was engaging in activities that were not sanctioned by the gang. The nature and circumstances of this murder alone are a sufficient basis on which to conclude presently that Mr. Cobos’s release from prison would pose an unreasonable public-safety risk.”
As to Cobos’s criminal history, the Governor stated, “When he murdered Mr. Tenario, Mr. Cobos was 31 years old and was no stranger to the criminal-justice system. Although no documented trouble as a juvenile, between the ages of 19 and 25, Mr. Cobos was convicted nine times for offenses related to drunk driving, being under the influence of drugs, possession of narcotics, burglary, and grand-theft auto. In 1970, at age 26, his conduct deteriorated further and he was convicted of selling heroin and sentenced to 10 years to life in prison . . . . While serving that sentence, Mr. Cobos was prosecuted and convicted for possessing a knife in prison, resulting in an additional, concurrent prison sentence. He also joined the Nuestra Familia gang during his imprisonment. He [was] paroled in 1975--just nine weeks before he murdered Mr. Tenario.” The Governor accordingly determined that Cobos’s criminal record demonstrated his “inability or willingness to act within the parameters of the law, despite being given numerous opportunities via probation and parole to do so, is a negative factor weighing against his release at this time.”
The Governor also noted that the district attorney objected to Cobos’s release on parole, stating that the district attorney had cited “the nature of this crime when registering its opposition to Mr. Cobos’s parole to the 2005 Board.”
While the Governor recognized that Cobos’s current age of 60 and his “creditable institutional gains likely reduce his probability for recidivism,” the Governor determined that “after carefully considering the very same factors as the Board is required to consider . . . the factors weighing against his parole suitability presently outweigh those tending to support it.”
I. Habeas Proceedings
On July 9, 2007, Cobos filed a petition for a writ of habeas corpus in propria persona in which he challenged the Governor’s decision and sought his release on parole. The petition was originally filed in Sacramento County Superior Court on May 15, 2007, and transferred to Santa Clara County Superior Court on July 2, 2007. Cobos filed an amended habeas corpus petition on September 27, 2007. The Attorney General filed a return on September 17, 2007 and Cobos (now represented by counsel) filed a traverse on November 27, 2007.
The superior court granted the habeas corpus petition in its order of December 17, 2007, and ordered that Cobos be released “per the terms of the Board’s parole grant.” The court found that the Governor’s decision that Cobos’s release on parole would pose an unreasonable risk of danger to society was not supported by the evidence, explaining that “the Governor’s decision reversing the findings of the Board is devoid of any demonstrable nexus between the immutable factors of petitioner’s commitment offense and prior [criminal] record and the determination of present unsuitability. Petitioner is a reformed man and if anybody can earn parole, Petitioner has certainly done so.”
The superior court also determined that the petition was timely filed, contrary to the Attorney General’s contention, because, as Cobos argued in the points and authorities accompanying his traverse, he was a federal prison inmate who had “very limited facilities, opportunity and allocated time to work on his petition;” no statutory time limit applied; and the delay caused no prejudice to the Attorney General.
III. DISCUSSION
At our request, the parties submitted supplemental briefing discussing the recent decisions in Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241, which issued after the briefing in this appeal was completed.
In his supplemental letter brief, Cobos argues that the decisions in Lawrence and Shaputis compel reversal of the Governor’s denial-of-parole decision and his release on parole because the 30-year-old commitment offense and his prior criminal record do not indicate present dangerousness in light of the overwhelming evidence of his rehabilitation. Cobos also asserts that the Governor “failed to articulate a nexus between his pre-conviction record and his present dangerousness.”
The Attorney General argues to the contrary that the decisions in Lawrence and Shaputis support the Governor’s decision to deny parole, because there is some evidence, consisting of the circumstances of the commitment offense, Cobos’s criminal history, and his institutional behavior, to show that Cobos’s release from prison would pose an unreasonable risk of danger to society.
We will begin our analysis of the parties’ contentions with an overview of the statutory criteria for parole suitability decisions, as set forth in the California Supreme Court’s decisions in Lawrence, supra, 44 Cal.4th 1181, Shaputis, supra, 44 Cal.4th 1241 and In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz).)
A. The Statutory Criteria for Parole Suitability Decisions
“The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. ([Pen. Code,] §§ 3040, 5075 et seq.) The Board’s parole decisions are governed by section 3041 and [t]itle 15, section 2281 of the California Code of Regulations (Regs., § 2230 et seq.). Pursuant to statute, the Board ‘shall normally set a parole release date’ one year prior to the inmate’s minimum eligible parole release date, and shall set the date ‘in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public . . . .’ (§ 3041, subd. (a), italics added.)” (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, fns. omitted.) “ ‘Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ [Citation.]” (Shaputis, supra, 44 Cal.4th at p. 1258.)
Where, as here, the commitment offense of murder took place prior to November 8, 1978, title 15, section 2281 governs parole suitability, while title 15, section 2402 “provides parole consideration criteria and guidelines for murders committed on or after November 8, 1978. The two sections are identical.” (Lawrence, supra, 44 Cal.4th at p. 1201, fn.5.)
All further undesignated references to Regulations are to title 15 of the California Code of Regulations.
“Subdivision (b) of section 3041 provides that a release date must be set ‘unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.’ [Citation.]” (Lawrence, supra, 44 Cal.4th at p. 1202, italics omitted.) “Title 15, Section 2281 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statute. The regulation is designed to guide the Board’s assessment of whether the inmate poses ‘an unreasonable risk of danger to society if released from prison,’ and thus whether he or she is suitable forparole. (Regs., § 2281, subd. (a).)” (Ibid., fn. omitted.)
The regulation specifies that the “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; (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.” (Rosenkrantz, supra, 29 Cal.4th at p. 654; Regs., § 2281, subd. (d).)
The regulation also specifies that the “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.]” (Rosenkrantz , supra, 29 Cal.4th at pp. 653-654, fn. omitted; Regs., § 2281, subd. (c).)
Regarding the commitment offense, the regulation further provides that the “[f]actors 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 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.]” (Rosenkrantz, supra, 29 Cal.4th at p. 653, fn.11; Regs., § 2281, subd. (c)(1).)
“Finally, the regulation explains that the foregoing circumstances ‘are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.’ (Regs., § 2281, subds. (c), (d).)” (Lawrence, supra, 44 Cal.4th at p. 1203.)
B. The Governor’s Decision
The California Supreme Court considered the Governor’s power to review the Board’s parole decisions in Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241.
“The Governor’s power to review a decision of the Board is set forth in article V, section 8, subdivision (b) of the California Constitution.” (Lawrence, supra, 44 Cal.4th at p. 1203.) “The statutory procedures governing the Governor’s review of a parole decision pursuant to California Constitution article V, section 8, subdivision (b), are set forth in [section] 3041.2. . . .” (Ibid.) Under this constitutional and statutory authority, the Governor’s parole decision must be based upon the same factors that govern the Board’s parole decision. (Shaputis, supra, 44 Cal.4th at p. 1258.)
The California Constitution, article V, section 8, subdivision (b) provides, “No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.”
Section 3041.2 provides, “(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority’s decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority. [¶] (b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision.”
“Although ‘the Governor’s decision must be based upon the same factors that restrict the Board in rendering its parole decision’ [citation], the Governor undertakes an independent, de novo review of the inmate’s suitability for parole. [Citation.] Thus, the Governor has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety. [Citation.] ‘[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor. . . .’ ” (Lawrence, supra, 44 Cal.4th at p. 1204.)
However, the Governor’s decision to deny parole due to the aggravated circumstances of the commitment offense must satisfy due process considerations. (Lawrence, supra, 44 Cal.4th at pp. 1204-1205.) Our high court accordingly instructed in Lawrence that “the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. [Citation.]” (Id. at p. 1221; Shaputis, supra, 44 Cal.4th at pp. 1254-1255.) Thus, “the aggravated circumstances of the commitment offense are relevant only insofar as they continue to demonstrate that an inmate currently is dangerous.” (Shaputis, supra, 44 Cal.4th at p. 1255.)
In short, the Governor, like the Board, must conduct “an individualized assessment of the continuing danger and risk to public safety posed by the inmate. If the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date. The same holds true for the Governor’s decision to set aside a decision of the Board.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
C. The Standard of Review
In Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241, the California Supreme Court also set forth the standard of review that applies to a decision by the Board or Governor to deny parole.
“[B]ecause the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety, and because the inmate’s due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor. [Citation.]” (Shaputis, supra, 44 Cal.4th at p. 1254.)
Thus, “as specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor. In addition . . . evidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record—must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition. By reviewing this evidence, a court may determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
Regarding the commitment offense, the Supreme Court further instructed that “although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
Accordingly, where “all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
On the other hand, “[i]f the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date. The same holds true of the Governor’s decision to set aside a decision of the Board. . . . [T]he Board has the express power and duty, in an individual case, to decline to fix a firm release date, and thus to continue the inmate's indeterminate status within his or her life maximum sentence, if it finds that the circumstances of the inmate’s crime or criminal history continue to reflect that the prisoner presents a risk to public safety. [Citation.]” (Lawrence, supra, 44 Cal.4th at pp. 1227-1228 .)
The Supreme Court also recognized that “certain conviction offenses may be so ‘heinous, atrocious or cruel’ that an inmate’s due process rights would not be violated if he or she were to be denied parole on the basis that the gravity of the conviction offense establishes current dangerousness. In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerousness even decades after commission of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
Therefore, “the Governor does not act arbitrarily or capriciously in reversing a grant of parole when evidence in the record supports the conclusion that the circumstances of the crime continue to be predictive of current dangerousness despite an inmate’s discipline-free record during incarceration. . . . [W]here the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. [Citations.]” (Lawrence, supra, 44 Cal.4th at p. 1228.)
Applying this standard of review, the Supreme Court determined in Lawrence that there was no evidence to support the Governor’s decision that the release on parole of the petitioner, who had been convicted of first degree murder for shooting and stabbing her lover’s wife multiple times, would pose an unreasonable risk of danger to the public. (Lawrence, supra, 44 Cal.4th at p. 1223.) The court concluded that “under the circumstances of the present case—in which the record is replete with evidence establishing petitioner’s rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety—petitioner’s due process and statutory rights were violated by the Governor’s reliance upon the immutable and unchangeable circumstances of her commitment offense in reversing the Board’s decision to grant parole.” (Id. at p. 1227.)
In Shaputis, on the other hand, the Supreme Court upheld the Governor’s reversal of the Board’s decision to grant parole to the petitioner, who had been convicted of second degree murder after shooting his wife at close range. (Shaputis, supra, 44 Cal.4th at p. 1245.) The court found that “[s]ome evidence in the record supports the Governor’s decision that petitioner remains dangerous,” including the aggravated nature of the offense and the “evidence of petitioner’s history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming.’ ” (Id. at pp. 1259-1260, fn. omitted.)
D. Analysis
1. Timeliness of the Habeas Corpus Petition
As a threshold matter, we first address the Attorney General’s contention that the habeas corpus petition was untimely filed on July 9, 2007, over one and one-half years after the Governor’s November 11, 2005 parole decision. The decisions of the California Supreme Court “have consistently required that a petitioner explain and justify any substantial delay in presenting a claim. [Citation.] ‘It is also the rule that “a convicted defendant must fully disclose his reasons for delaying in the presentation of” the facts upon which he would have a final judgment overturned. [Citations.]’ ” (In re Clark (1993) 5 Cal.4th 750, 783.) We agree with the superior court that Cobos satisfactorily explained and justified the reasons for the delay in filing his habeas corpus petition, including his status as an unrepresented inmate of a federal prison who had limited opportunity to prepare his petition.
2. Merits of the Habeas Corpus Petition
To evaluate the merits of Cobos’s habeas corpus petition, we have carefully reviewed the record pursuant to the direction of the California Supreme Court in Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241: “[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (Lawrence, supra, 44 Cal.4th at p. 1212, Shaputis, supra, 44 Cal.4th at p. 1254.) We conclude that remand is appropriate to enable the Governor to conduct a new review of the Board’s parole suitability decision.
The California Supreme Court issued the decisions in Lawrence, supra, 44 Cal.4th 1811 and Shaputis, supra, 44 Cal.4th 1241 after the Governor’s decision in this case. As we have discussed, the Lawrence and Shaputis decisions considered the Governor’s review of the Board’s parole decisions and articulated the rule that “as specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor. In addition . . . evidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record—must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
We recognize that the Governor, in reviewing the Board’s decision to grant parole to Cobos, considered several parole unsuitability factors, including the commitment offense of first degree murder, which the Governor described as “especially grave because it was committed to further the activities of his gang, the Nuestra Familia . . . .” The Governor also considered Cobos’s criminal history of multiple convictions between the ages of 19 and 25 and his commission of the commitment offense just nine weeks after being paroled. The Governor stated, “Mr. Cobos’s previous record and inability or unwillingness to act within the parameters of the law, despite being given numerous opportunities via probation and parole to do so, is a negative factor weighing against his release at this time.” Additionally, the Governor noted Cobos’s conduct while incarcerated, which included being disciplined four times for rules violations, as well as the district attorney’s opposition to Cobos’s release.
We also recognize that the Governor considered several parole suitability factors, including Cobos’s disassociation from Nuestra Familia; his efforts to enhance his ability to function within the law upon release by availing himself of educational, vocational and drug abuse programs; his participation in extracurricular activities including foreign language translation for other inmates; his favorable reports from prison staff; and his “seemingly viable plan on parole.” The Governor further acknowledged that Cobos was 60 years old and had been imprisoned for nearly 30 years, and “his current age and creditable institutional gains likely reduce his probability for recidivism . . . .” The Governor nevertheless concluded that these parole suitability factors were outweighed by the parole unsuitability factors, and for that reason reversed the Board’s decision to grant parole.
Our review of the record indicates, however, that the Governor did not consider all relevant statutory factors as required under the new Lawrence standard in his determination that Cobos currently poses a threat to public safety and parole should therefore be denied. We emphasize that the Supreme Court instructed in Lawrence that “when evaluating whether an inmate continues to pose a threat to public safety, both the Board and the Governor must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation. [Citation.]” (Lawrence, supra, 44 Cal.4th at p. 1219.)
Additionally, the Supreme Court instructed that where “all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
We observe that the Governor’s decision in the present case does not mention the 2005 psychological evaluation that, according to the record of the Board hearing, estimated Cobos’s “risk for dangerousness” as “low.” Under Lawrence, a psychological evaluation must be considered in determining parole suitability: “[E]vidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record—must, by statute, be considered and relied upon by both the Board and the Governor . . . .” (Lawrence, supra, 44 Cal.4th at p. 1213, italics added.)
In a supplemental briefing letter dated October 3, 2008, the Attorney General stated that a copy of the 2005 psychological evaluation was provided to the Governor, because “the Governor has a copy of the prisoner’s central file where a copy of the evaluation is maintained.” The Attorney General also stated that “it does not appear that a copy of any psychological evaluation was ever presented to the superior court.”
The Governor’s decision also does not comply with the new Lawrence standard for other reasons. While the Governor acknowledged Cobos’s “creditable institutional gains,” including his record of being “discipline-free since 1988” and his participation in educational, vocational and drug abuse programs, the Governor did not consider, as Lawrence requires, whether “any further rehabilitation might change the ultimate decision that petitioner remains a danger.” (Lawrence, supra, 44 Cal.4th at p. 1227.) The Governor also did not articulate “a rational nexus” between the facts of the commitment offense and current dangerousness, as required by Lawrence where the Governor relies upon the commitment offense as a reason to deny parole. (Lawrence, supra, 44 Cal.4th at p. 1227.) We further observe that the Governor did not address Cobos’s attitude concerning his commission of the commitment offense (id. at p. 1213), although the Board found that Cobos had shown signs of remorse.
Also, we note an apparent discrepancy regarding the district attorney’s opposition, on which the Governor partially relied in deciding to deny parole. The Governor stated in his decision that “[t]he nature and circumstances of this murder alone are a sufficient basis on which to conclude presently that Mr. Cobos’s release from prison would pose an unreasonable public-safety risk. The District Attorney’s Office that prosecuted this murder concurs, citing the nature of this crime when registering its opposition to Mr. Cobos’s parole to the 2005 Board.”
Our review of the record indicates, however, that the district attorney’s opposition was largely based on substance abuse, since the district attorney stated, “I think Mr. Cobos has come an awful long way, but I think in the area of substance abuse at least, there needs to be further assurances given before he is released back into society, even into a witness protection program because there is that potential for the continued risk to society on that basis . . . .” We further observe that the institutional record shows that Cobos had completed a drug education program and had never been disciplined for substance abuse while incarcerated.
Thus, we are not convinced, based on our careful review of the record on appeal, that the Governor’s decision complies with the new standard for evaluating parole suitability articulated in Lawrence and Shaputis, which specifies that “current dangerousness is the fundamental and overriding question,” to be answered after consideration of “all relevant statutory factors.” (Lawrence, supra, 44 Cal.4th at pp. 1213, 1219.) It is also unclear whether the Governor would have reached the same conclusion regarding Cobos’s parole suitability under the Lawrence and Shaputis standard, in light of the factors weighing for and against his parole suitability. Accordingly, we believe that the appropriate remedy is to direct the Governor to reconsider his decision to reverse the Board’s grant of parole. (See, e.g., In re DeLuna (2005) 126 Cal.App.4th 585, 598.)
At oral argument, the Attorney General asserted that Lawrence supports the Governor’s decision to deny parole based on Cobos’s criminal history as well as the circumstances of the commitment offense, and therefore the Governor’s denial-of-parole decision should be upheld. The Attorney General relied on the decision in In re Fuentes (2005) 135 Cal.App.4th 152 (Fuentes), which the Supreme Court cited in Lawrence with approval as being among several decisions where “the affirmance of a denial-of-parole determination was not founded solely upon the conclusion that the circumstances of the commitment offense were more than what was minimally required to obtain a conviction of that offense, but rather upon the presence of other additional statutory factors establishing unsuitability.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
In Fuentes, the appellate court found that some evidence supported the Board’s decision to deny parole, based on the factors of the commitment offense of first degree felony murder and Fuentes’s criminal history, which included two court-martials and a bad conduct discharge from the Navy following several arrests for receiving stolen property and possession of a controlled substance. (Fuentes, supra, 135 Cal.App.4th at p. 156.) In upholding the Board’s decision, the appellate courtacknowledged a psychological evaluation that assessed Fuentes’ level of dangerousness as “low.” (Id. at p. 157.) However, the appellate court found 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, and to remain in the Navy, and he had not availed himself of these opportunities but had instead engaged in further criminal conduct.” (Id. at p. 163.) Thus, as the Supreme Court noted in Lawrence, the Board’s denial-of-parole determination in Fuentes was appropriately based “upon criminal history as evidence of [the] inmate’s repetitive and recidivist nature” as well as the commitment offense. (Lawrence, supra, 44 Cal.4th at p. 1229.)
Although the court in Lawrence approved the denial-of-parole determination by the Board in Fuentes, supra, 135 Cal.App.4th 152, based upon the commitment offense and a criminal history that indicated recidivism, the Supreme Court also instructed in Lawrence that the Governor must conduct “an individualized assessment of the continuing danger and risk to public safety posed by the inmate.” (Lawrence, supra, 44 Cal.4th at p. 1227, italics added.) Therefore, while the Governor may properly consider Cobos’s commitment offense and his criminal history in determining parole suitability, the Governor must also consider, in evaluating Cobos’s current dangerousness, all “evidence in the record corresponding to both suitability and unsuitability factors . . . .” (Lawrence, supra, 44 Cal.4th at pp. 1213.)
For these reasons, we conclude that remand is appropriate to provide the Governor with the opportunity to conduct a new review of the Board’s parole suitability decision in light of the California Supreme Court’s direction in Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241 that the Governor must conduct “an individualized assessment of the continuing danger and risk to public safety posed by the inmate” that includes consideration of “all relevant statutory factors . . . .” (Lawrence, supra, 44 Cal.4th at pp. 1219, 1227; Regs., § 2281, subd. (b).)
IV. DISPOSITION
The matter is remanded to the superior court with directions to modify its order granting Jose Cobos’s petition for writ of habeas corpus. The order shall be modified to direct the Governor to vacate his November 11, 2005 parole decision and to conduct a new review of the Board’s decision in light of the decisions in In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241, including consideration of all relevant statutory factors as required by California Code of Regulations, title 15, section 2281, subdivision (b). As modified, the order is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.