Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. CR54908.
HUFFMAN, Acting P. J.
Petition for writ of habeas corpus following Governor's reversal of a grant of parole. Petition denied.
Petitioner Andrew Duran was sentenced in 1982 to 15 years to life after pleading guilty to one count of second degree murder. Duran has remained in prison for the past 26 years. Duran first became eligible for parole many years ago, but the Board of Prison Terms (BPT) did not find him suitable for parole until his 2006 suitability hearing, at which the BPT concluded Duran was suitable for parole because he did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger reversed the BPT's decision, finding Duran posed an unreasonable risk of danger to society if released. Duran filed a petition for writ of habeas corpus in the trial court that was denied. Duran now petitions this court for a writ of habeas corpus, raising numerous challenges to Governor Schwarzenegger's decision. We find there is some evidence in this record to support the assessment of risk should Duran be paroled.
I FACTS
A. The Commitment Offense
In 1981 Duran was a member of the Spring Valley Locos gang. On February 27, 1981, Duran and several other fellow gang members, including Messrs. Rodriguez and Garcia, were seeking revenge against a rival gang (the Shelltown gang) for the killing of a "homeboy" several months earlier. The group placed a semiautomatic rifle in the trunk of a car and went to a house party populated by Shelltown members. On arriving at the party, Duran walked to the house, entered the garage, and began fighting with Shelltown members, who jumped him and broke a bottle over his head. Duran broke free and yelled insults as he walked away. Several Shelltown members began pursuing Duran toward his car, and Rodriguez grabbed the rifle from the trunk, gave it to Duran, and told him to "spray" them. Duran opened fire on the group, killing 17-year-old Juan Alvarez. Several shots hit the garage door, and one went through the window of the house. When questioned by police two weeks later, Duran claimed he acted in self-defense when he shot at the Shelltown members, but neither members of Duran's group nor their car was shot. Duran was later charged with the murder of Alvarez.
Duran was viewed as a "hardcore" member of the gang, and was on probation at the time of the murders. His prior criminal record involved a juvenile court true finding on an allegation that he threw an object at a vehicle and a second juvenile court true finding on an allegation that he possessed alcohol as a minor.
On April 4, 1981, three Shelltown members encountered Duran and Garcia at a taco shop and attacked and stabbed Duran in retaliation for Alvarez's death. After the Shelltown members left, Duran and Garcia deemed the wound superficial and decided not to go to the hospital. Instead, they met with Rodriguez and other Spring Valley Locos members to discuss getting even with Shelltown. Duran stated he wanted to "get them." The group borrowed the car owned by Garcia's girlfriend (because their own cars were too well known), drove to a house to pick up the semiautomatic rifle, and went to a park in a residential area where they knew the Shelltown gang was having a party.
After parking, Rodriguez took the rifle from the trunk and sat in the front passenger seat. Garcia was driving and Duran was in the back seat with two others. The group circled the party several times before they noticed two males leaving. Rodriguez said "they're coming out . . . . This time we'll get them." As they passed the two males, Duran yelled, "You stabbed me . . . Valley Locos" and Rodriguez opened fire on the two men, firing roughly 12 shots. Eighteen-year-old Eliodoro Rodriguez-Pineda was struck several times and died of the wounds. Duran later told police the victim had nothing to do with the earlier stabbing attack. Duran was also charged with murder in connection with Rodriguez-Pineda's death.
Duran was 16 years old in 1981 at the time of the murders. However, he was found unfit for treatment as a juvenile and was prosecuted as an adult on two counts of murder. He pleaded guilty to one count of second degree murder in connection with the death of Rodriguez-Pineda in exchange for a dismissal of the charges arising out of Alvarez's death. Duran was sentenced to 15 years to life.
B. Duran's Performance in Prison
Duran's early years in prison were marked by disciplinary problems. Between 1982 and 1986 he received 12 "115's," the most serious of which involved a 1985 attack on a fellow inmate: Duran choked the victim while another inmate stabbed the victim. However, he has remained free of serious disciplinary issues since 1986, and has a good record since 1993.
A CDC Form 115 documents misconduct believed to be a violation of law that is not minor in nature. A CDC Form 128 documents incidents of minor misconduct. (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2), (3); In re Gray (2007) 151 Cal.App.4th 379, 389.)
Duran's conduct in prison from 1986 to the present has been commendable. In addition to his good discipline record, he disassociated himself from gang involvement, furthered his vocational training through numerous programs, became involved in the Alcoholics Anonymous program and has ascended to its chairmanship, and consistently received laudatory reviews from prison staff.
II HISTORY OF PROCEEDINGS
A. The Prior BPT Proceedings
Duran's minimum eligible parole date was in 1990. Although Duran had numerous hearings before the BPT over the next 15 years, the BPT found him unsuitable for parole at each of the prior hearings.
However, at his 2006 parole hearing, the BPT concluded Duran was suitable for parole. The Life Prisoner Evaluation Report (LPER), prepared in 2004 by a prison counselor for consideration by the BPT, stated Duran's crimes appeared to be connected to alcohol use and involvement with gangs. The evaluator concluded that if Duran stayed free of those influences, "his risk to the community is considered lower than average for men of his age. His long history of involvement in AA, current chairmanship of AA, and dislike of gang activity bode well for his eventual success. Although previous [LPER's] presented concerns about his unpredictability, the last three psychological reports have been favorable, and this writer concurs." A second counselor, in a 2006 addendum to the 2004 evaluation, agreed that Duran's prior substance abuse and gang activity presented risk factors. However, the evaluator (echoing the 2004 evaluator's comments) observed that "you could divide his life in two, from prior to 1986 and after 1986," and that Duran's early disciplinary problems in prison involved a continuation of his substance abuse and gang involvement but that "post 1986 it appears that [Duran] learn[ed] from his previous mistakes. Not only is he doing the right thing, but he genuinely appears to appreciate why he should do the right thing . . . . [¶] . . . [Duran] appears to show insight and remorse into the nature of his behavior which is also demonstrated by his ability to turn around and be [discipline] free since 1986. [Duran] has matured a great deal since he was a youth and appears to recognize the futility and negativity of his prior behavior." The evaluator concluded that it was "likely [Duran] will retain the gains made during incarceration if released to the community."
The evaluator noted Duran showed an ongoing commitment to sobriety through his long involvement with the AA program. The evaluator also noted Duran's involvement with gangs changed after the 1985 stabbing incident, in which Duran partook, because Duran "stated he was so upset by this incident that he disassociated himself from the gang and vowed he 'would never allow another group to dictate to him what he will do.' Reports indicate he did indeed begin to turn himself around at this point as he has not had any violent episodes since his last 115."
The BPT considered Duran's testimony at the hearing, as well as the written reports, and concluded Duran was suitable for parole. The BPT relied on his parole plans and marketable skills, his demonstrated commitment to sobriety and to avoiding gang involvement, his remorse and insight into his behavior as a juvenile, and his maturation and conduct over the previous 20 years to find he did not pose an unreasonable risk of danger to society if released on parole.
In December 2006 Governor Schwarzenegger reversed the BPT's decision because he found Duran did pose an unreasonable risk of danger to society if released. The principal reasons given for this finding were (1) the crime was especially aggravated because it involved some premeditation, had a trivial motive, placed bystanders at risk, and followed shortly after another killing by Duran, and (2) Duran's disciplinary record in prison demonstrated an inability or unwillingness to conform his behavior to the rules of society. Governor Schwarzenegger found the "negative factors weighing against [Duran's parole] presently outweigh the positive ones [and] I believe [Duran's] release would pose an unreasonable risk of danger to society at this time."
The Governor stated in part:
"Despite the positive factors I considered, the second-degree murder for which Mr. Duran was convicted was especially grave considering the trivial gang-related nature of this drive-by shooting. Additionally, there is evidence that the murder involved some level of premeditation. According to the probation report, Mr. Duran 'wanted to get even' for a prior gang attack. He enlisted the help of other gang members, and decided to drive a car that would not be immediately recognized. As they were driving to the park where the Shelltown gang was partying, they stopped at a house and Mr. Duran and another gang member retrieved the same gun Mr. Duran used to shoot Mr. Alvarez approximately one month earlier. Mr. Duran told the probation officer that they also got steak knives and planned 'to stab a couple of the "Shelltown" boys.' Even though Mr. Duran suggested that they 'sneak up and stab a couple of people,' they instead used the gun to shoot Mr. Rodriguez-Pineda as he left the party. Just before the shooting, Mr. Duran yelled, 'Valley Locos.'
"Furthermore, Mr. Duran's actions put other people at risk of death or serious injury. According to the probation officer, the shooting 'took place in a residential neighborhood' and Mr. Duran 'jeopardized the welfare of other innocent people who lived in the neighborhood of the shooting.' The gravity of the second-degree murder committed by Mr. Duran is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk. The fact that Mr. Duran killed another man approximately one month earlier in a separate gang-related shooting makes his actions even more atrocious.
"Mr. Duran's prison misconduct is equally unacceptable. During his incarceration for the life offense he was disciplined 12 times for rules violations involving destruction of state property, manufacturing and possessing alcohol, refusing to perform duties, evading count, and failing to attend school. Significantly, three of his rules violations involved incidents of violent or aggressive behavior towards others. Indeed, Mr. Duran was disciplined for assaulting prison staff, stabbing an inmate and fighting an inmate. Regarding the stabbing incident, Mr. Duran, according to the Rules Violation Report, attempted to choke an inmate with a towel while a partner stabbed the inmate several times. In addition to these serious rules violations, he was also counseled 10 times for minor misconduct, most recently in 1993. Mr. Duran has also indicated that he was involved in gang activity in prison but, as he told his 2004 mental-health evaluator, he 'disassociated himself from the gang' after he participated in a stabbing on another inmate. Mr. Duran's institutional history demonstrates an inability or unwillingness to conform his behavior to the rules of society, and this weighs against his parole suitability at this time.
"At age 42 now, after being incarcerated for more than 25 years, Mr. Duran made some creditable gains in prison, including accepting responsibility for his actions and expressing remorse. But given the current record before me, and after carefully considering the very same factors the Board must consider, I find that the negative factors weighing against Mr. Duran's parole suitability presently outweigh the positive ones. Accordingly, because I believe his release would pose an unreasonable risk of danger to society at this time, I REVERSE the Board's 2006 decision to grant parole to Mr. Duran."
The Habeas Proceedings
Duran petitioned the San Diego County Superior Court for a writ of habeas corpus alleging Governor Schwarzenegger's reversal of the BPT's decision violated his due process and equal protection rights because the Governor's unsuitability determination was not supported by the evidence, was arbitrary and capricious, and was incorrectly based solely on the offense and his early institutional behavior. The trial court denied the writ, concluding the Governor's decision was supported by some evidence. Duran has petitioned this court for a writ of habeas corpus, asserting the Governor's decision violated due process and ex post facto protections, as well as violated the terms of his plea agreement, and we issued an order to show cause. We conclude the Governor's decision to deny parole is supported by some evidence demonstrating that Duran posed an unreasonable danger if released at this time.
We grant Duran's request to take judicial notice that, during the pendency of Duran's effort to obtain appellate relief, the BPT held a new parole suitability hearing in mid-2007 and again found Duran suitable for parole. However, the BPT's 2007 decision does not moot the current writ proceedings because the Governor, in a 2007 decision substantively indistinguishable from his 2006 decision, again reversed the BPT's decision granting parole to Duran.
III LEGAL STANDARDS
A. The Parole Decision
The decision whether to grant parole is an inherently subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a number of factors, some objective, identified in Penal Code section 3041 and the BPT's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) The Governor's decision to affirm, modify, or reverse the decision of the BPT rests on the same factors that guide the BPT's decision (Cal Const., art. V, § 8(b)), and is based on "materials provided by the parole authority." (Pen. Code, § 3041.2, subd. (a).) "Although these provisions contemplate that the Governor will undertake an independent, de novo review of the prisoner's suitability for parole, the Governor's review is limited to the same considerations that inform the Board's decision." (Rosenkrantz, supra, at pp. 660-661.)
In making the suitability determination, the BPT and Governor must consider "[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b); hereafter, § 2402), such as the nature of the commitment offense including behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude towards the crime; and parole plans. (§ 2402, subd. (b).) The circumstances that tend to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (§ 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (§ 2402, subd. (b).)
Factors that support the finding the crime was committed "in an especially heinous, atrocious or cruel manner" (§ 2402, subd. (c)(1)), include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.
Circumstances tending to show suitability for parole include that the inmate: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (§ 2402, subd. (d).)
These criteria are "general guidelines," illustrative rather than exclusive, and "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [BPT]." (Rosenkrantz, supra, 29 Cal.4th at p. 654; § 2402, subds. (c), (d).) Thus, the endeavor is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, supra, at p. 655.) Because parole unsuitability factors need only be found by a preponderance of the evidence, the Governor is free to consider facts apart from those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.)
B. Standard for Judicial Review of Parole Decisions
In Rosenkrantz, the California Supreme Court addressed the standard the court must apply when reviewing parole decisions by the executive branch. The court first held that "the judicial branch is authorized to review the factual basis of a decision of the [BPT] denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the [BPT] supports the decision to deny parole, based upon the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) Rosenkrantz further held that "courts properly can review a Governor's decisions whether to affirm, modify, or reverse parole decisions by the [BPT] to determine whether they comply with due process of law, and that such review properly can include a determination of whether the factual basis of such a decision is supported by some evidence in the record that was before the [BPT]." (Id. at p. 667.)
The "some evidence" standard is "extremely deferential" and requires "[o]nly a modicum of evidence." (Rosenkrantz, supra, 29 Cal.4th at pp. 665, 677.) A court may not vacate an administrative decision that is subject to the "some evidence" review simply because it disagrees with the assessment of the Governor. (Id. at p. 679.) The decision must be "devoid of a factual basis" to be overturned. (Id. at p. 658.) Because judicial review of a parole denial is to ensure that a decision is not arbitrary and capricious, thereby depriving the prisoner of due process of law, "the court may inquire only whether some evidence in the record before the [BPT] supports the decision to deny parole, based upon the factors specified by statute and regulation." (Id. at p. 658.)
The discretion over parole suitability determinations, while broad, is not absolute. (In re Scott (2004) 119 Cal.App.4th 871, 884.) Rosenkrantz explained "that the judicial branch is authorized to review the factual basis of a decision of the [BPT] denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the [BPT] supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the [BPT] to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) Thus, the "extremely deferential" standard, while vesting in the Governor the power to resolve evidentiary conflicts and assign the weight to be given to the evidence (id. at p. 679), is not the equivalent of judicial abdication, because the court must be satisfied the evidence substantiates the ultimate conclusion that the prisoner's release currently poses an unreasonable risk of danger to the public. (In re Lee (2006) 143 Cal.App.4th 1400, 1408.)
In his original petition Duran contended the Governor's reversal of his parole violated the terms of his plea agreement by considering a murder for which the charges were dismissed. Duran has offered no evidence that his plea agreement included any representations about his eligibility for parole or provided any restrictions on the materials that could be considered by the Governor or parole authorities. Accordingly, Duran has failed to make a prima facie showing of entitlement to relief on this ground. (People v. Duvall (1995) 9 Cal.4th 464, 474; In re DeLuna (2005) 126 Cal.App.4th 585, 599.)
IV EVALUATION
A. The Commitment Offense
The Governor's decision was based on two different, but related factors. First that the offense committed was especially grave. Duran, at the time of his offense, was a hard core gang member. He and his cohorts were actively involved in two drive-by shootings that killed two rival gang members. As is often the case, the motivation for the gang violence was trivial, but the killings were premeditated. The crimes were committed with
a semiautomatic rifle by firing into a group of people in a residential neighborhood. The manner of the commission of the offense posed a grave risk of harm to others. As a perpetrator Duran was more than indifferent to the risk of harm to others, he was anxious to cause as much injury to his gang rivals as possible.
Second, once Duran was in prison he continued his antisocial behavior accumulating 12 serious disciplinary events by 1986. In 1985 he was disciplined for choking another inmate while an accomplice stabbed him. In addition to the serious disciplinary violations Duran accumulated 12 minor violations, the latest of which was 1993.
As we have noted, the Governor weighed the circumstances of the offense, Duran's early performance in prison and his vastly improved behavior in the later years of his confinement. The Governor concluded that the weight of the factors before him indicated Duran posed an unreasonable risk of danger to the public if paroled at this time. The question before us is not whether Duran has been proved to in fact pose a current risk or whether we agree with either the assessment of the parole board or the assessment of the Governor. Rather the sole question before us is whether there is some evidence to support the Governor's finding that Duran's parole would create an unreasonable risk to the public. On this record, our answer to the question is yes.
We recognize there has been disagreement among the courts of appeal as to the weight to be given to the circumstances of the commitment offense as opposed to a lengthy period of exemplary behavior once in prison. (See e.g., In re Bettencourt (2007) 156 Cal.App.4th 780, 799-802; In re Hyde (2007) 154 Cal.App.4th 1200, 1216-1217; but c.f., In re Scott (2005) 133 Cal.App.4th 573, 594-595, In re Elkins (2006) 144 Cal.App.4th 475, 488-502.)
As we have explained, the Governor has not merely relied on the fact of a conviction of second degree murder to reverse the parole board's decision. There is certainly some evidence in this record of Duran's participation in two separate murders, mindless gang violence, and an extraordinary risk to innocent bystanders in a residential area. From those facts, the Governor could conclude the offense was aggravated well beyond that inherent in the crime of second degree murder. The Governor could also place greater weight on the significant violent antisocial behavior in Duran's early years in prison than that placed by the parole board. Duran's early violent behavior in prison and his lesser discipline that followed amounts to some evidence that notwithstanding his good behavior since 1993 the combination of the offense and subsequent in prison conduct by Duran supports the Governor's conclusion that parole of Duran would pose an unreasonable risk to the public.
The role of the courts in reviewing the decisions of the executive branch in parole decisions has been significantly circumscribed by the California Supreme Court in Rosenkrantz, supra, 29 Cal.4th 616. We are mindful that a majority of a panel of this court has recently taken the view that "the appropriate inquiry is not whether there is some evidence to support the individual's suitability or unsuitability factors, but whether there is some evidence supporting the ultimate decision that the prisoner will pose an unreasonable risk to society if released from prison." (In re Viray (2008) 161 Cal.App.4th 1405 [75 Cal.Rptr.3d 190, 199].) In the Viray opinion, the concurring justice (Haller, J.) disagreed with the test espoused by the majority. The concurring opinion states: "Until the Supreme Court holds otherwise, I will adhere to the directives and definitions set forth in Rosenkrantz and Dannenberg." (In re Viray, supra, 75 Cal.Rptr.3d at p. 200.)
We agree with the view expressed in the concurring opinion in In re Viray, supra, 161 Cal.App.4th 1405, and believe that it is for the Supreme Court to direct the judicial branch to undertake greater scrutiny of executive branch decisions than that which has been set out in Rosenkrantz, supra, 29 Cal.4th 616. We must add, however, that even if we agreed with the standard declared by the Viray majority, we would still uphold the Governor's decision in this case. Absent judicial reweighing of the evidence, which we should not do, it is clear to us that the combination of the egregious nature of the offense and the subsequent prison conduct constitutes some evidence to support a finding that release of Duran at this time would pose a current danger to the public.
DISPOSITION
The petition for writ of habeas corpus is denied.
I CONCUR: HALLER, J.
McDONALD, J., dissenting.
I would grant the relief sought by Duran in his petition for a writ of habeas corpus. A prisoner's right to due process is violated when the Governor attaches significance to evidence that forewarns no danger to the public or relies on an unsupported conclusion. (See, e.g., In re DeLuna (2005) 126 Cal.App.4th 585, 597 [Board of Prison Terms concluded, contrary to psychological evaluations, that inmate needed therapy, and faulted inmate facing deportation for failing to learn English]; In re Scott (2005) 133 Cal.App.4th 573, 597-603) [Governor misconstrued inmate's history of violent crime and nature of the commitment offense]; In re Lee (2006) 143 Cal.App.4th 1400, 1411-1414 [Governor overstated seriousness of commitment offense and improperly faulted inmate for late acceptance of responsibility].)
I The Commitment Offense
The Governor's decision to veto the decision of the Board of Parole Hearings (BPH), appears based principally on his conclusion that Duran remained an unreasonable risk of danger to the public because his offense was "especially grave" as a result of premeditation, the trivial motive for the killing, and the risk posed to innocent bystanders from the drive-by shooting.
The courts have concluded the facts of the offense may not alone support a finding of unsuitability unless there is conduct above the minimum necessary to commit the offense. In re Rosenkrantz (2002) 29 Cal.4th 616, explaining why the nature of the offense must "involve particularly egregious acts beyond the minimum necessary to sustain a conviction for second degree murder," stated that, "In some circumstances, a denial of parole based upon the nature of the offense alone might rise to the level of a due process violation--for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .' [Citation.] 'The [BPH's] authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate's current or past offenses should not operate so as to swallow the rule that parole is 'normally' to be granted. . . . [¶] Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.' [Quoting In re Ramirez (2001) 94 Cal.App.4th 549, 570.]" (Rosenkrantz, supra, 29 Cal.4th at p. 683.) The Governor may not rely on the bare conviction for second degree murder to deny parole absent some evidence Duran engaged in conduct, apart from and beyond the minimum necessary to convict him of second degree murder (In re Dannenberg (2005) 34 Cal.4th 1061, 1098), that made the commitment offense especially aggravated for a second degree murder.
There is some evidence that Duran's offense was a more aggravated offense than the minimum conduct required for second degree murder. However, the Governor's conclusion that the offense involved conduct beyond the minimum required for conviction for second degree murder was unaccompanied by any articulation of why Duran's conduct 26 years earlier convinced the Governor that Duran would present a risk to public safety today. As the court explained in In re Lee, supra, 143 Cal.App.4th at pages 1408 to 1409:
"The Attorney General argues that so long as 'some evidence,' which may be as little as a 'modicum,' supports the Governor, we must affirm. [Citations.] We conclude, however, that the . . . test is not whether some evidence supports the reasons the Governor cites for denying parole, but whether some evidence indicates a parolee's release unreasonably endangers public safety. [§ 2402, subd. (a) [parole denied if prisoner 'will pose an unreasonable risk of danger to society if released from prison']; see, e.g., In re Scott[, supra,] 133 Cal.App.4th 573, 595 ['The commitment offense can negate suitability [for parole] only if circumstances of the crime . . . rationally indicate that the offender will present an unreasonable public safety risk if released from prison'];. . . .) Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee's release unreasonably endangers public safety. [¶] We must therefore view the Governor's two reasons within the context of the other factors he must consider to see if some evidence shows Lee continues to pose an unreasonable risk to public safety. [Citation.] [Fn. omitted.]"
Other courts have agreed the appropriate inquiry focuses not on whether a reason given by the Governor finds evidentiary support, but instead on whether the evidence supports the conclusion of current dangerousness. (See In re Tripp (2007) 150 Cal.App.4th 306, 313 [" 'Only a modicum of evidence is required.' . . . On the other hand, the evidence must substantiate the ultimate conclusion that the prisoner's release currently poses an unreasonable risk of danger to the public. [Citations.] It violates a prisoner's right to due process when the Board or Governor attaches significance to evidence that forewarns no danger to the public or relies on an unsupported conclusion"]; In re Barker (2007) 151 Cal.App.4th 346, 366 [same]; In re Viray (2008) 161 Cal.App.4th 1405 [75 Cal.Rptr.3d 190, 196] ["the appropriate inquiry is not whether there is some evidence to support the individual suitability or unsuitability factors, but whether there is some evidence supporting the ultimate decision that the prisoner will pose an unreasonable risk of danger to society if released from prison."].)
The ultimate conclusion--that Duran would pose an unreasonable current risk of danger to the community if released--is not supportable solely by Duran's conduct in connection with an offense committed over a quarter of a century earlier. Duran, who rode in the back seat and was not the actual shooter, did not commit the offense for which he was convicted in a particularly atrocious or cruel manner that might suggest an indelible psychopathy or criminal disposition that remains unabated after 26 years of incarceration. Furthermore, there is no evidence Duran's participation in the crime was attributable to environmental factors that remain operative in his life. Instead, the circumstances of the offense (together with exemplary behavior exhibited by Duran for the last 20 years) suggest that Duran's intoxication, coupled with his gang affiliation and relative immaturity, were the critical causes of his violent behavior, and the only evidence before the Governor was that Duran had successfully controlled his alcoholism, abandoned his gang affiliations, and matured into a responsible adult.
The Governor also cited Duran's prison record as a second reason for his decision. However, because (for the reasons discussed below) the second reason is irreconcilable with the evidence, that reason cannot support the conclusion of current dangerousness reached by the Governor.
The lower courts have disagreed on whether the circumstances of the offense, at least when unaccompanied by more recent manifestations of antisocial behaviors or tendencies, can become so attenuated by the lengthy passage of time to extinguish its evidentiary value on predicting current dangerousness. Some lower courts have suggested that decades of uninterrupted exemplary behavior will not diminish the parole authority's ability to rely solely on ancient history to conclude the rehabilitative efforts of the penal system have (despite all outward appearances) fallen short. (See, e.g., In re Bettencourt (2007) 156 Cal.App.4th 780, 799-802 and In re Hyde (2007) 154 Cal.App.4th 1200, 1216-1217.) We note that these courts, although upholding reliance on the circumstances of an ancient offense as evidence of current dangerousness, did so in the context of additional and more current conduct suggesting the prisoner's violent tendencies (which led to his ancient commitment offense) remained potentially operative in his life. For example, in Bettencourt, the prisoner had only been "discipline free" for four years prior to the parole hearing, and the psychological reports (which stated the prisoner could have difficulty avoiding " 'angry/violent outbursts' ") were confirmed when the prisoner had to be removed from the parole hearing because of two such outbursts. (Bettencourt, supra, 156 Cal.App.4th at pp. 805-806.) In Hyde, the court rejected the argument the commitment offenses were too remote. However, the Hyde court also noted that even if it agreed the multiple offenses committed 33 years earlier were stale, the prisoner's first 18 years in prison had been marked by 14 serious disciplinary write-ups, including a 1990 conviction for possessing a prison-manufactured dagger, and that this offense "undermines any claim of remoteness" as to consideration of his commitment offenses, noting the "logical conclusion . . . is that Hyde was contemplating committing an assault . . . that easily could have been lethal." (Hyde, supra, 154 Cal.App.4th at pp. 1205, 1216-1217.) Thus, the Hyde court upheld consideration of the prisoner's remote violent conduct as a predictor of current dangerousness in part based on more recent manifestations of the prisoner's potential for violent conduct.
However, other courts have reached the opposite conclusion. (See, e.g., In re Scott, supra, 133 Cal.App.4th at pp. 594-595; In re Elkins (2006) 144 Cal.App.4th 475, 488-502; In re Barker, supra, 151 Cal.App.4th at p. 372; accord, Rosenkrantz v. Marshall (C.D. Cal. 2006) 444 F.Supp.2d 1063, 1084-1085; Hayward v. Marshall (9th Cir. 2008) 512 F.3d 536, 545-547.) The latter view was expressed by the Elkins court when it explained that "[t]he commitment offense . . . is an unsuitability factor that is immutable and whose predictive value 'may be very questionable after a long period of time [citation].' [Quoting Scott, at pp. 594-595.] We have also noted, as has our Supreme Court, strong legal and scientific support that 'predictions of future dangerousness are exceedingly unreliable,' even where the passage of time is not a factor and the assessment is made by an expert. [Quoting Scott, at p. 595, fn. 9.] Reliance on an immutable factor, without regard to or consideration of subsequent circumstances, may be unfair, run contrary to the rehabilitative goals espoused by the prison system, and result in a due process violation. [Citation.]" (Elkins, at pp. 498-499.) Elkins acknowledged there is a legitimate role for the commitment offense, explaining (quoting with approval Irons v. Warden of California State Prison-Solano (E.D. Cal. 2005) 358 F.Supp2d 936, 947, fn. 2) that " '[t]o a point, it is true,' . . . 'the circumstances of the crime and motivation for it may indicate a petitioner's instability, cruelty, impulsiveness, violent tendencies and the like. However, after fifteen or so years in the caldron of prison life, not exactly an ideal therapeutic environment to say the least, and after repeated demonstrations that despite the recognized hardships of prison, this petitioner does not possess those attributes, the predictive ability of the circumstances of the crime is near zero.' " (Elkins, at p. 502.)
Under the Scott/Elkins line of cases, after 20 years of uninterrupted progress marked by largely discipline-free behavior, the circumstances of Duran's commitment offense cannot--without more--provide the modicum of evidence of current dangerousness necessary to affirm the Governor's determination. The offense here was committed while Duran was 16 years old. The Barker court explained that the youthful age of the prisoner at the time of the offense further diminishes its predictive value as the offense recedes into the past, stating:
"In [Elkins], we agreed with the observations of the federal district court in [Rosenkrantz v. Marshall, supra, 444 F.Supp.2d 1063] that ' "the general unreliability of predicting violence is exacerbated in [a] case by . . . petitioner's young age at the time of the offense [and] the passage [in that case] of nearly twenty years since that offense was committed . . . ." ' [Quoting Elkins, at p. 500.] There, granting the petition for habeas corpus, the district court talked of Rosenkrantz's age, one month past 18. [Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at 1085.] This fact, the district court noted, 'further diminished' the 'reliability of the facts of [Rosenkrantz's] crime as a predictor for his dangerousness.' (Ibid.) Stating that '[w]hile [Rosenkrantz] was not legally a minor, he was very close to being one,' the district court confirmed the recognition by the United States Supreme Court that the 'evidentiary/predictive value of the conduct of such a young person is diminished.' (Ibid.) Then, after making the statement quoted by us in Elkins, the district court went on to quote various observations of the Supreme Court about young criminals: [']Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. [Citation.] The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, "[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside." [Johnson v. Texas (1993) 509 U.S. 350, 368[;] [¶] see also Thompson v. Oklahoma (1988) 487 U.S. 815, 835 (Stevens, J.) (plurality opinion) ["[L]ess culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. . . . Inexperience, less intelligence and less education make [a] teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is [much] more apt to be motivated by mere emotion or peer pressure than [is] an adult."]' (Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at p. 1085, fn. omitted.) These observations are a fortiori applicable to the 16-year-old Barker who committed the crimes here." (In re Barker, supra, 151 Cal.App.4th at pp. 376-377.)
It is not the mere passage of time that deprives Duran's commitment offense of any evidentiary value for predicting the risk he may pose to society. Instead, it is Duran's young age at the time of the offense and the passage of over a quarter of century since that offense was committed, coupled with the quantity and quality of Duran's consistent record of conduct for the last 20 years, which make the crimes the historical relics of a youthful offender and eliminate any modicum of predictive value that his commitment offense once had. Duran's commitment offense provides no evidence he poses an unreasonable risk to public safety even under the deferential "some evidence" standard.
II Duran's Disciplinary Record
The only other ground cited by the Governor for deciding Duran's current dangerousness was his disciplinary record in prison. In his first four years of incarceration, Duran received several "CDC 115's," the most severe of which involved a 1985 assault on a fellow inmate. However, in the 20 years preceding his parole hearing, Duran had only a few minor disciplinary issues, the last of which was 13 years before his parole hearing.
Duran had six "128's" between 1987 and 1993.
The Governor concluded that Duran's prison record had "demonstrate[d] an inability or unwillingness to conform his behavior to the rules of society." Although serious misconduct while incarcerated is a proper consideration in assessing current dangerousness (see Cal. Code Regs., tit. 15, § 2402, subd. (c)(6)), Duran's behavior in prison over the last two decades (seven years with no serious infractions followed by a subsequent 13 year period of impeccable behavior) demonstrates Duran is able to conform his behavior to the rules of society, and also demonstrates a 20-year willingness to conform his behavior to the rules of society. The Governor's conclusion that Duran's conduct "demonstrate[d] an inability or unwillingness," in addition to being contrary to the conclusion reached by the BPH, is irreconcilable with the evidence. There is not even a modicum of evidence to support the Governor's alternative or additional basis for concluding Duran was unsuitable for parole because currently a threat to security if released on parole.
III Conclusion
Duran was an accomplice to a crime that resulted in the senseless death of another human being, and his crime can be neither excused nor minimized. However, unless the prisoner is sentenced to life without the possibility of parole, "[o]ur laws . . . provide for mechanisms by which even murderers, in limited circumstances, are entitled to be paroled, [and the] judiciary has an obligation to execute those laws." (In re Lee, supra, 143 Cal.App.4th at p. 1414.) This court, while aware it must be exceedingly deferential to the Governor's conclusions, concomitantly should not equate such deference with judicial abdication of that obligation. (In re Scott (2004) 119 Cal.App.4th 871, 898 [deference under the some evidence standard "does not convert a court reviewing the denial of parole into a potted plant."].)
Here, the BPH has twice found Duran suitable for parole, and the Governor has twice reversed that determination, relying exclusively on events of ancient vintage. Considering Duran's lengthy history of exemplary behavior and the presence of every other indicia of suitability, his antisocial conduct during his youth several decades ago demonstrate his offenses are historical relics lacking any modicum of predictive value on his current dangerousness, and therefore the Governor's reversal of the BPH's order is without evidentiary support.
I would vacate the Governor's decision reversing the 2006 BPH decision finding Duran suitable for parole and setting a parole date. As in In re Smith (2003) 109 Cal.App.4th 489, 507 and In re Elkins, supra, 144 Cal.App.4th at page 503, the BPH should be ordered to release Duran forthwith pursuant to the conditions set forth in the July 2006 decision by the BPH.