Opinion
NOT TO BE PUBLISHED.
Original Proceedings; petition for writ of habeas corpus, No. PA002269, David S. Wesley, Judge.
Sean K. Kennedy, Federal Public Defender, John Littrell, and Neha A. Metha, Deputy Public Defenders, for Petitioner
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill, Supervising Deputy Attorney General, and Charles Chung, Deputy Attorney General, for Respondent.
PERLUSS, P. J.
In January 2009 this court granted Paul E. Gaul’s petition for writ of habeas corpus and directed the Board of Parole Hearings (Board) to find Gaul suitable for parole “unless, within 30 days of the finality of this decision, the Board holds a hearing and determines that new evidence of Gaul’s conduct in prison subsequent to his 2007 parole hearing supports a determination he currently poses an unreasonable risk of danger to society if released on parole.” (In re Gaul (2009) 170 Cal.App.4th 20, 40 (Gaul I).) In March 2009, following a further parole consideration hearing, the Board found Gaul suitable for parole. However, on July 21, 2009 Governor Arnold Schwarzenegger reversed the Board’s decision, in part because of statements in the Board’s suitability decision suggesting to the Governor that Gaul lacked insight into the circumstances of the commitment offense and had unresolved anger management problems, evidence that, together with the gravity of the crime, indicated that “Gaul still poses a risk of recidivism and violence and that his release from prison at this time would pose an unreasonable risk to public safety.”
On September 11, 2009 Gaul filed a new petition for writ of habeas corpus in this court, challenging the Governor’s reversal decision on the grounds it violated Gaul’s federal and state constitutional right to due process because it was not supported by “some evidence” that he is a present danger to society and, in contravention of this court’s order in Gaul I, supra, 170 Cal.App.4th at page 41, considered statements that had been made and matters that had occurred prior to 2007. Utilizing the standard articulated by the Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), as applied in Gaul I, we agree the Governor’s reversal decision is not supported by any evidence that Gaul currently poses an unreasonable risk of danger to society if released from prison. Accordingly, we grant the petition for writ of habeas corpus, vacate the Governor’s decision and reinstate the Board’s parole release order.
FACTUAL AND PROCEDURAL BACKGROUND
1. This Court’s Decision in Gaul I
This court’s decision in Gaul I, supra, 170 Cal.App.4th 20, included a detailed discussion of the circumstances of Gaul’s conviction for second degree murder in 1991, based on his plea of guilty, for the 1989 murder of James Bernstein; his cooperation in the prosecution of Mary Ellen Samuels, who had initiated the plot to kill Bernstein and offered Gaul $5,000 to carry out the crime; and his sentence to a state prison term of 15 years to life with a recommendation he be released on parole at the earliest possible time. (Id. at pp. 25-26.) We also described Gaul’s multiple parole suitability hearings: Parole was denied in 1998 and again in 2001. In September 2005 Gaul was found suitable for parole, but that decision was reversed by the Governor. Gaul was again found suitable for parole in October 2006; that suitability decision was again reversed by the Governor. (Id. at pp. 26-29.) In November 2007, notwithstanding its two prior grants of parole and additional information that only confirmed Gaul’s exemplary behavior in prison, the Board denied parole. As we explained, “[W]ithout any attempt to reconcile its new decision with its prior findings that Gaul was suitable for parole, the Board found Gaul would pose a danger to society if released based on the nature of the commitment offense, Gaul’s unstable social history and his need for additional therapy.” (Id. at p. 30.)
Gaul filed a petition for writ of habeas corpus contesting the Board’s November 2007 parole denial directly in this court, where an earlier petition, filed August 1, 2007, challenging the Governor’s second reversal decision was pending following our issuance of an order to show cause. After reviewing the statutory criteria governing determinations of parole suitability and the regulations implementing those criteria, as well as the Supreme Court’s decisions in In re Rosenkrantz (2002) 29 Cal.4th 616, Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241 (see Gaul I, supra, 170 Cal.App.4th at pp. 31-36), we held the record before the Board at the November 8, 2007 parole suitability hearing was devoid of any evidence to support the conclusion Gaul’s release would constitute a current threat to public safety. (Gaul I, at p. 36.)
After we had issued the order to show case, we stayed proceedings pending the Supreme Court’s decision in Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241. Thereafter, in light of our decision, to grant Gaul’s 2008 petition for writ of habeas corpus, we discharged the order to show cause and dismissed that 2007 petition as moot. (See Gaul I, supra, 170 Cal.App.4th at p. 29, fn. 2.)
We expressly did not disagree with the Board’s assessment of the aggravated circumstances of the commitment offense. (Gaul I, supra, 170 Cal.App.4th at p. 37.) However, as explained in Lawrence, supra, 44 Cal.4th at page 1214, which we are, of course, obligated to follow, “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 postincarceration 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.” Thus, in evaluating Gaul’s entitlement to habeas relief, we necessarily turned to Gaul’s mental state and his preincarceration social history—the other factors identified by the Board in declining to find him suitable for parole.
With respect to any issues of Gaul’s remorse for his crime or insight into his responsibility for the death of another human being, we emphasized the Board, in concluding Gaul was suitable for parole in September 2005 and again in October 2006, had found he had “fulfilled the terms of his plea and cooperation agreement and, as a result, the district attorney and the trial judge recommend parole for Gaul at the earliest possible time.... There was no opposition from the district attorney to Gaul’s release in 2007. In addition, the Board had in the past accepted as sincere Gaul’s demonstration of remorse and observed, ‘You’ve indicated that you understand the nature and magnitude of the offense and accept responsibility for the criminal behavior in the murder of Mr. Bernstein. And we feel you have a desire to change towards good citizenship.’ None of the new material presented to the Board at the November 2007 hearing suggested any change in Gaul’s perception or understanding of the commitment offense or the sincerity of his expressions of responsibility and remorse.” (Gaul I, supra, 170 Cal.App.4th at p. 36.)
The Board’s concern that Gaul needed additional therapy to understand and cope with stress, we noted, was based on a 1997 psychological evaluation. (Gaul I, supra, 170 Cal.App.4th at p. 38.) The two more recent evaluations, from 2001 and 2005, both strongly supported release and had been central to the Board’s earlier determinations that he was in fact suitable for parole. “Even the 1997 report found Gaul’s ‘behavior has been exemplary’ and ‘his violence potential is... within the average to below average’ range and observed he ‘appear[ed] to be benefitting from [his] programming.’ Nonetheless, in 1997 Dr. Musacco recommended that Gaul continue to participate in therapy to develop empathy and insight.” (Ibid.) And, we concluded, the record demonstrated Gaul had done exactly that for more than 10 years. In fact, the 2005 report, which we quoted at some length, stated unequivocally, “‘There is no room for improvement in his programming, and no unmet goals to accomplish during his incarceration.’” (Ibid.)
As to Gaul’s purportedly unstable social history, we noted, “Gaul’s criminal record prior to the murder of Bernstein was not extensive. He had had one minor juvenile matter (lighting firecrackers) for which he received counseling and adult convictions for driving with a suspended license, driving under the influence of alcohol with an injury and possession of a dangerous weapon.” (Gaul I, supra, 170 Cal.App.4th at p. 36.) Although the record showed Gaul had moved frequently during a seven month period in 1989 prior to the murder of Bernstein and was in arrears in child support, there was no evidence Gaul “has a history of unstable or tumultuous relationships with others,” which we explained was the definition of “unstable social history” in the regulations governing the Board’s suitability determination. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(3); see Gaul I, at p. 37; see also In re Burns (2006) 136 Cal.App.4th 1318, 1328 [unsuitability based upon history of unstable or tumultuous relationships with others and psychological evaluations].) Nor was there, in our view, any conceivable, rational relationship between the long-ago events described by the Board and an assessment of Gaul’s current dangerousness, particularly in light of his productive and discipline-free years of stability while in prison. (See Lawrence, supra, 44 Cal.4th at pp. 1205-1206 [“a parole release decision authorizes the Board (and the Governor) to identify and weigh only the factors relevant to predicting ‘whether the inmate will be able to live in society without committing additional antisocial acts’”]; Gaul I, at pp. 37-38.)
The dangerous weapon conviction was based on Gaul’s possession of a hollow aluminum barbell sleeve; he was placed on unsupervised probation for one year.
As the Board commented at all of his suitability hearings, Gaul had maintained essentially a discipline-free record while in custody, having been counseled only once in 1995 for minor misconduct. While in prison Gaul obtained his GED and took college-level correspondence courses through the University of Ohio. He also engaged in extensive vocational training, had an outstanding work history with exemplary recommendations from his supervisors and participated in an array of self-help and therapy, including Alcoholics and Narcotics Anonymous. (Gaul I, supra, 170 Cal.App.4th at pp. 36-37.) We also explained Gaul had a strong support network with family and friends and, “as described by correctional counselors and found by the Board, realistic plans for his life after release, including housing and employment.” (Gaul I, at p. 37.)
In sum, notwithstanding the nature of the commitment offense itself, we held no evidence in the full record before the Board supported its determination Gaul currently (that is, as of November 2007) posed an unreasonable risk of danger to society if released on parole. (Gaul I, supra, 170 Cal.App.4th at p. 39.) Because no such evidence existed, we concluded vacating the denial of parole and directing the Board to conduct a new hearing on the same record would be a meaningless exercise—“particularly in this case in which the Board had previously twice determined Gaul’s release would not pose an unreasonable risk of danger to society and the only new evidence presented at the November 2007 parole hearing supported his suitability for release on parole.” (Id. at pp. 39-40.) However, because we acknowledged the theoretical possibility that developments since the November 2007 parole hearing might suggest Gaul was no longer suitable for parole, rather than simply order him released forthwith, we directed the Board “to find Gaul suitable for parole unless, within 30 days of the finality of this decision, the Board holds a hearing and determines that new evidence of Gaul’s conduct in prison subsequent to his 2007 parole hearing supports a determination he currently poses an unreasonable risk of a danger to society if released on parole.” (Id. at p. 40; accord, In re Masoner (2009) 172 Cal.App.4th 1098, 1110 [Board properly directed to find inmate suitable for parole “unless new information discovered subsequent to his 2007 parole hearing supports a determination that he poses an unreasonable risk of danger if released on parole” (fn. omitted)].)
The Attorney General, on behalf of respondent James D. Hartley, Warden, Avenal State Prison, did not seek Supreme Court review of our decision in Gaul I, supra, 170 Cal.App.4th 20, granting Gaul’s petition for writ of habeas corpus. However, on July 29, 2009, several months after our decision became final, the Supreme Court granted review in In re Prather, S172903, which presents the question, when a court determines the Board has abused its discretion in denying parole to an inmate, may it order the Board to find the inmate suitable for parole unless new and different evidence of the inmate’s conduct in prison subsequent to the parole hearing at issue supports a determination the inmate currently poses an unreasonable risk of danger to society if released on parole. (See also In re Molina, review granted July 29, 2009, S173260 [presenting question, when court determines Board abused its discretion in denying parole to an inmate, may court order Board to release inmate on parole or must it allow Board to redetermine inmate’s parole suitability and afford the Governor the opportunity to exercise his or her independent constitutional right to review parole decisions].)
2. The Board’s March 2009 Parole Consideration Hearing
During the January 9, 2009 oral argument in Gaul I the court was advised a further parole suitability hearing was scheduled for Gaul for the following week. On January 12, 2009 we stayed that hearing pursuant to Code of Civil Procedure section 923. The following day, January 13, 2009, this court granted Gaul’s petition for writ of habeas corpus, as discussed in the preceding section.
On March 3, 2009 the Board conducted a further hearing and found Gaul suitable for parole, concluding he would not pose an unreasonable risk of danger or a threat to public safety if released from prison. In reaching its decision the Board “focused” on the period subsequent to the November 2007 parole consideration hearing, as directed by our opinion. Specifically, the Board noted, based on its review of post-November 2007 information, there were no negative references to his behavior or performance and no comments or issues “that give rise to this Panel deciding in opposition of your parole that was granted on two separate occasions.” The Board also explained that, when it had denied parole in November 2007 following its two prior decisions finding Gaul suitable for parole, it had indicated Gaul should continue to participate in self-help programming, which he had done; he should continue to maintain a discipline-free record, which he had also done; and that a new psychological evaluation should be prepared, which was “a favorable decision... that in no way, as far as this Panel can conclude, stands in the way of a grant of parole. So your grant of parole is being upheld here today....”
The March 3, 2009 Board hearing was conducted by a two-commissioner panel. With respect to the scope of the hearing, Presiding Commissioner Prizmich explained, “What we’re ultimately going to decide here today is your behavior, your performance... since the November 2007 hearing. So that’s what we’re going to focus on. But to get there we’re going to be conducting essentially a full hearing, so we’re going to be covering a lot more ground, but our decision is going to be based upon that time frame.”
Notwithstanding these favorable comments, however, Presiding Commissioner Prizmich observed, “[I]f we were conducting a full hearing on our own today, you may not have gotten a parole date. I’ve done a number of what are commonly called rescission hearings, and in those rescission hearings I often find or encounter inmates, as we found you today, that are upset, nervous, which is understandable, but to some degree angry over a parole date being removed. And we sensed that in you today. And while it may be understandable, I just wanted to make note of that. That causes some challenge for a Panel to wade through. Even in your closing statement it was more about your disillusion with the system.” A few minutes later, Commissioner Prizmich returned to this point and explained, “A situation where an individual receives a date and gets a date reversed is not that uncommon, and there’s a number of different Governors who do that.... Now, that is tough on a guy. You need to understand that. What we look at and what we are concerned with is the demonstration of graciousness after a grant is denied, and I got to tell you that it was rewarding for us to see that you didn’t take that many steps back. You were certainly angry today, you were upset, you were frustrated and all of those other things, which we are used to dealing with. But in terms of your performance here in the institution, you did a fine job. You didn’t seem to miss a beat. That was noteworthy for this Panel and I do want to give you credit for that.”
Commissioner Prizmich also identified some concern about Gaul’s level of insight into his commitment offense “because you didn’t speak about the crime, which is your right.” He also noted, “We had some concerns about some of the factors surrounding the crime itself.... [H]ad we conducted the hearing today and been able to explore that fully, we may not have those reservations.” Finally, Commissioner Prizmich explained there were issues with regard to Gaul’s parole plans, “but that’s not something negative that I can point to here today.” On this last point Deputy Commissioner Weaver added, “[Y]our parole plans are not as solidified as we would like for a finding of suitability in a full hearing as to the location,” noting that, while Gaul indicated he would be living with his wife in Bakersfield if permitted to do so, his offers of employment were in Los Angeles County near his sister’s home in Reseda: “[W]e like to see the family support and the employment opportunity coincide so that it ensures or better ensures a positive prognosis for your parole success.”
3. The Governor’s July 2009 Reversal Decision
On July 21, 2009 Governor Schwarzenegger reversed the Board’s decision to grant parole—the third time he had reversed a suitability finding. After noting various positive factors that would support granting parole, the Governor stated, “the second-degree murder for which Gaul was convicted was especially heinous because it involved some level of premeditation.” The Governor also expressed his concern that Gaul “has still not accepted full responsibility for the murder because he has continuously minimized his actions in the offense and blamed others for his involvement.” In addition, the Governor quoted the Board’s statement of concern about Gaul’s level of insight based on his decision not to speak about the commitment offense at the March 3, 2009 hearing and commented, “I share the Board’s recent concern that he still lacks full insight into the circumstances of the crime. Without an adequate understanding of the life offense, I believe that Gaul is at risk of reoffending if released at this time.” The Governor also noted, although Gaul has a number of job offers, none is in Kern County, where he would be paroled.
In the four-page statement of reasons for his decision to reverse the Board’s grant of parole, the Governor also quoted Gaul’s statements to the Board that apparently prompted Commissioner Prizmich’s comments about Gaul’s anger: “I’m ready to go home. I’ve worked hard for it. I’ve earned it. Two independent Panels have stated as such.” The Governor, after reciting a portion of Commissioner Prizmich’s reaction to Gaul’s expression of frustration and anger, observed, “Despite Gaul’s belief that he is suitable for parole, I am troubled that he was ‘upset’ and expressed anger during his 2009 hearing. The fact that Gaul displayed such negative behaviors, in a controlled setting, indicates that he may have unresolved anger management problems. Until Gaul addresses his anger management problems, I believe he continues to pose a risk of danger to society.”
Concluding his statement of reasons, the Governor wrote, “The gravity of the crime supports my decision, but I am particularly concerned that Gaul still minimizes his prior conduct by not accepting full responsibility for his offense, that he does not yet have full insight into his criminal behavior and that he has unresolved anger management problems. This evidence indicates to me that Gaul still poses a risk of recidivism and violence and that his release from prison at this time would pose an unreasonable risk to public safety. The Los Angeles Police Department agrees, registering its opposition to Gaul’s parole.”
DISCUSSION
1. Gaul’s Petition for Writ of Habeas Corpus Is Properly Before This Court
Rule 8.385(c)(2) of the California Rules of Court (rule 8.385(c)(2)) provides, “A Court of Appeal must deny without prejudice a petition for writ of habeas corpus that challenges the denial of parole or the petitioner’s suitability for parole if the issue was not first adjudicated by the trial court that rendered the underlying judgment.” Citing this rule, the Attorney General argues Gaul’s petition should be dismissed without prejudice because Gaul’s claim the Governor’s 2009 parole reversal decision violates his due process rights was not first heard by the superior court. Although we agree, absent unusual circumstances, a challenge to the denial of parole suitability should initially be determined by the trial court that rendered the underlying judgment of conviction, this is one of those exceptional cases in which a petition for writ of habeas corpus is properly before this court in the first instance.
Article VI, section 10 of the California Constitution vests this court with original jurisdiction in habeas corpus proceedings. To the extent rule 8.385(c)(2) purports to limit that constitutional grant of authority on an absolute basis, it is invalid. (See People v. Hall (1994) 8 Cal.4th 950, 960 [Judicial Council may not adopt rules inconsistent with governing statutes]; Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011 [“the Judicial Council’s interpretation of a statute, as reflected in the Rules of Court, is not binding on the courts, and we will invalidate a rule if it is contrary to statute”].) However, the Advisory Committee Comment to rule 8.385(c)(2) explains it is based on In re Roberts (2005) 36 Cal.4th 575, 593, in which the Supreme Court, in the exercise of its inherent authority to establish rules of judicial procedure, directed that, “among the three levels of state courts, a habeas corpus petition challenging a decision of the parole board should be filed in the superior court, which should entertain in the first instance the petition.” (Italics added.) “Should,” of course, is not “must.” (See, e.g., Kucera v. Lizza (1997) 59 Cal.App.4th 1141, 1152 [“[t]he words ‘may’ and ‘should’ are ordinarily permissive”]; Boam v. Trident Financial Corp. (1992) 6 Cal.App.4th 738, 745 [“‘should’ used in the present or future tense, while not synonymous with and more forceful than ‘may,’ can convey only a moral obligation or strong recommendation”]; cf. Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1192.)
In Gaul I, supra, 170 Cal.App.4th 20, this court thoroughly reviewed the record developed during multiple parole suitability hearings and then granted Gaul’s petition for writ of habeas corpus with specific directions regarding the further Board hearing held in March 2009. Because the Governor may reverse the Board’s decision only on the basis of factors properly considered by the Board itself (Cal. Const., art. V, § 8, subd. (b); In re Rosenkrantz, supra, 29 Cal.4th at pp. 625-626), Gaul’s challenge to the Governor’s 2009 parole reversal decision necessarily requires a determination whether the Governor’s decision is consistent with this court’s decision in Gaul I, supra, 170 Cal.App.4th 20. Accordingly, notwithstanding the direction in In re Roberts, supra, 36 Cal.4th at page 593, it was proper for Gaul to file his current petition for habeas relief directly in this court and an appropriate exercise of our constitutional jurisdiction to decide that petition on the merits.
2. The Governor Did Not Improperly Consider the Nature of the Commitment Offense or Gaul’s Earlier Statements Regarding His Responsibility for the Crime in Determining Whether Gaul Remains a Continuing Threat to Public Safety
In Gaul I we effectively decided as a matter of law, utilizing the deferential “some evidence” standard of In re Rosenkrantz, supra, 29 Cal.4th 616, Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241, that the full record before the Board in November 2007, notwithstanding the nature of the commitment offense, did not support its determination Gaul currently posed an unreasonable risk of danger to society if released on parole. (Gaul I, supra, 170 Cal.App.4th at p. 39.) As a result, we ordered the Board to find Gaul suitable for parole unless evidence of conduct subsequent to Gaul’s 2007 hearing was identified that would support a decision he was unsuitable for parole. (Id. at p. 41.) Our decision in Gaul I, however, was not intended to suggest that any such new evidence had to be considered in isolation or that it was impermissible for the Board—or the Governor in reviewing the Board’s decision—to weigh that new information with all other relevant data to determine Gaul’s suitability for parole.
Although we specified “new evidence of Gaul’s conduct in prison” in our directions to the Board in Gaul I, it would have been preferable to refer more generally to “new evidence of his conduct or a change in his mental state subsequent to his 2007 parole hearing,” as did our colleagues in Division Three of this court in In re Masoner, supra, 172 Cal.App.4th at page 1110 in reversing a trial court’s order for the immediate release of an inmate and remanding the matter with directions to issue a writ of habeas corpus requiring the Board to conduct a new parole suitability hearing and to find the inmate suitable for parole unless new evidence supported a determination he currently posed an unreasonable risk of danger to society if released on parole. However, the Board appears to have understood our use of the word “conduct” in a broad sense to include a possible change in Gaul’s mental condition. As discussed, in conducting the further hearing in March 2009 the Board considered a new psychological evaluation of Gaul, submitted in October 2008, which was, in the words of Commissioner Prizmich, “a favorable decision... that in no way, as far as this Panel can conclude, stands in the way of a grant of parole.”
Stated somewhat differently, if all post-November 2007 information concerning Gaul supported his immediate release on parole, pursuant to Gaul I he was entitled to be found suitable for parole. That is, in fact, how the Board conducted the March 2009 hearing and why it concluded Gaul was suitable for parole: There were no new (post-November 2007) negative comments or issues presented that would support a denial of parole. But if new unfavorable or negative information was presented to the Board, which either alone or in combination with pre-November 2007 factors, including the aggravated nature of the commitment offense, supported a finding he posed an unreasonable risk of danger to society if released, neither the Board nor the Governor was obligated by our decision in Gaul I to find Gaul suitable for parole or to refrain from evaluating all the information to reach an informed decision. As repeatedly recognized by the Supreme Court and the Courts of Appeal, as long as some evidence supports the decision, the balancing of the various factors “relevant to predicting ‘whether an inmate will be able to live in society without committing additional antisocial acts’” (Lawrence, supra, 44 Cal.4th at pp. 1205-1206) is a function of the executive branch, not the judiciary. Thus, we reject Gaul’s argument that the Governor improperly considered the nature of the commitment offense or Gaul’s pre-2007 statements regarding his responsibility for the crime, together with new, post-November 2007 material, in reversing the Board’s decision.
3. The Governor’s Decision To Reverse the Board’s Decision Finding Gaul Suitable for Parole Is Not Supported by Any Evidence Gaul Continues To Pose a Threat to Public Safety
In his statement of reasons for reversing the Board’s decision finding Gaul suitable for parole, the Governor observes, “[t]he gravity of the crime supports my decision....” However, the circumstances of the commitment offense alone, absent a rational nexus before those facts and current dangerousness, cannot support a finding of unsuitability. As clarified by the Supreme Court in Lawrence, supra, 44 Cal.4th at page 1214, “[T]he aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public....”
Recognizing under the post-Lawrence standard that reversal of the Board’s parole decision requires identification of additional factors supporting the finding Gaul would pose an unreasonable risk of danger to society if released, the Governor cites Gaul’s current lack of insight regarding the enormity of his crime, his minimization of his own responsibility for its commission and an unresolved anger management problem, as evidenced by his expression of anger at the March 2009 hearing. There is no question, when considered together with the aggravated nature of the commitment offense, the additional factors identified by the Governor could constitute some evidence Gaul remains a threat to public safety if released on parole. (See Shaputis, supra, 44 Cal.4th at pp. 1258-1260 [aggravated circumstances of the commitment offense and Shaputis’s lack of insight into the murder and the abuse of his wife constituted some evidence Shaputis remained dangerous].) The issue before us is whether there is, in fact, any evidence in the record Gaul lacks such insight, has failed to fully accept responsibility for his murder of James Bernstein or has an anger management problem. (See id. at p. 1258 [court “will affirm the Governor’s interpretation of the evidence so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors”].)
Although neither cited by the Governor as a basis for his decision to reverse the Board nor advanced by the Attorney General as a ground for affirming the Governor’s findings, in his statement of reasons the Governor also noted, as had Commissioner Weaver, that Gaul does not have a current job offer in Kern County, where he would live upon being paroled. As is evident from the March 2009 Board hearing, Gaul believed he would be paroled to Los Angeles—his county of last residence—where he has a job offer and where he can live in an employer-provided apartment or with his sister. Asked by the Board why he would not live in Bakersfield with his wife, Gaul replied he would like to do so; and the Board agreed he should be paroled to Kern County. Although he does not yet have a firm job offer in Bakersfield, Gaul has ample marketable skills (see Gaul I, supra, 170 Cal.App.4th at pp. 36-36 [while in prison Gaul obtained his GED, took college-level correspondence courses and engaged in “extensive vocational training”]) and the financial and emotional support of his wife. We certainly agree with the Governor that a stable and legitimate means to support himself is essential to Gaul’s success on parole. However, we also agree with the Board that nothing about Gaul’s current parole plans constitutes evidence his release would pose an unreasonable risk of danger to society.
a. Minimization of responsibility
In its October 2006 decision finding Gaul suitable for parole, the Board specifically addressed the concern expressed in an earlier Governor’s reversal that Gaul failed to demonstrate adequate remorse—a concern that had its genesis in a then-outdated 1997 psychological evaluation. Rejecting the Governor’s conclusion, the Board found, “‘[Gaul] does show signs of remorse. He indicated that he understands the nature and magnitude of the offense and accepts responsibility for the criminal behavior....’” (Gaul I, supra, 170 Cal.App.4th at p. 28.) The Board’s finding Gaul recognized his individual culpability for the murder of Bernstein and demonstrated remorse for his conduct was based in substantial part on his 2001 mental health evaluation, in which it was reported that Gaul had accepted responsibility for his actions, had achieved insight and demonstrated empathy toward his victim (id. at p. 38), and his 2005 mental health evaluation, in which Dr. Corinne Schroeder explained, “‘Mr. Gaul was especially candid in his description of his crime. He explained how he came to commit the crime, not in an attempt to excuse what he did, but to clarify the convoluted sequence of events and relationships between the parties involved.’” (Ibid.)
Nonetheless, in his July 2009 statement of reasons for reversing the Board’s decision to grant parole, the Governor asserts, as he had in each of his prior reversals of the Board’s suitability findings, “Gaul has still not accepted full responsibility for the murder.... [H]e has continuously minimized his actions in the offense and blamed others for his involvement.” As current support for this conclusion, the Governor cites several statements by Gaul from his 2008 mental health evaluation in which Gaul explains he debated for several months before the murder whether he would kill the victim and also said he did not plan to kill Bernstein on the night of the offense. But those statements were made in response to the psychologist’s questions about Gaul’s state of mind before and during the offense, not his present acceptance of responsibility or feelings of remorse for the crime. As to that later point, the psychologist observed that Gaul “has had plenty of time to explore and come to terms with the factors involved in his life of crime. When asked to explain his offense, he is careful not to sound like he is ‘making excuses.’”
The Attorney General has argued the Governor reasonably determined Gaul’s statement during the 2008 mental health evaluation that he did not plan on killing Bernstein was inconsistent with the facts of the murder and indicated Gaul continued to minimize his responsibility for committing a contract murder. However, the forensic psychologist conducting the evaluation reported he had read Gaul a summary of the crime, including Gaul’s agreement with Samuels to kill Bernstein for $5,000, and Gaul confirmed “the summary of the crime was accurate.”
The responses quoted in the Governor’s statement of reasons, whether considered alone or together with the other factors identified by the Governor, do not in any way suggest Gaul currently minimizes his role in, or responsibility for, Bernstein’s murder. Nor is there anything else in the record that contradicts or undermines the previous findings by the Board that Gaul now fully recognizes his culpability for the crime and feels appropriate remorse for his participation in the murder of another human being. (See Gaul I, supra, 170 Cal.App.4th at p. 38.)
b. Current lack of insight
The Governor also based his reversal on Gaul’s lack of insight into the circumstances of the commitment offense, supporting this conclusion by noting the Board’s statement of concern about Gaul’s level of insight. But the Board did not find, as the Governor paraphrases it, that Gaul “still lacks full insight into the circumstances of the crime.” What Commissioner Prizmich actually said was that the current Board members had some concerns on that point, as well as some concerns about certain of the factors surrounding the crime itself. Those questions, the commissioner noted, might have been answered if a full parole suitability had been conducted, rather than a more limited hearing that complied with this court’s January 2009 order, and if Gaul had discussed, yet again, his crime. However, because Gaul exercised his right—upon the advice of his counsel, as reflected in the transcript of the hearing—not to do discuss the commitment offense, those unspecified concerns remained unresolved.
The fact this hearing panel could not independently assess Gaul’s level of insight, however, does not mean the requisite insight is lacking, as the Governor concluded. To the contrary, the only new information on the issue of insight before the Board in 2009 is contained in Gaul’s 2008 mental health evaluation, which found, as discussed in the preceding section, that Gaul has “come to terms with the factors involved in his life crime.” That information reinforces our holding in Gaul I, supra, 170 Cal.App.4th at page 39, that there is no evidentiary support for a conclusion Gaul needs even more therapy to develop greater insight into his role in the murder of Bernstein or the circumstances of the crime or that his therapeutic gains need to be maintained for additional time before he can be safely released on parole.
c. Anger management
Apart from his short closing statement, which does not fill one full page of the hearing transcript, Gaul spoke little at the March 2009 Board hearing. His other comments consisted primarily of one or two sentence answers to questions from Commissioners Prizmich or Weaver. Reading the hearing transcript itself—which, of course, is all that either the Governor or this court can do—it is impossible to determine Gaul’s emotional state: We have no idea whether he was angry or calm, frustrated or resigned. But Commissioner Prizmich, who was there and saw, as well as heard, Gaul, did observe that Gaul was angry: “I often find or encounter inmates, as we found with you today, that are upset, nervous, which is understandable, but to some degree angry over a parole date being removed. And we sensed that in you today. And while it may be understandable, I just wanted to make note of that.”
Concentrating on Commissioner Prizmich’s observation about Gaul’s demeanor, the Governor’s statement of reasons for reversing the Board’s grant of parole explains the Governor was troubled that Gaul had expressed anger during the hearing: “The fact that Gaul displayed such negative behaviors, in a controlled setting, indicates that he may have unresolved anger management problems.” Two paragraphs later, in summarizing the bases for his reversal decision, the Governor is more emphatic, stating he is particularly concerned that Gaul “has unresolved anger management problems.”
The Governor’s finding that Gaul has an unresolved anger management problem is not supported by any evidence. However misguided it may have been to allow his anger and frustration to be detected at the hearing, nothing in the record suggests Gaul was disrespectful, let alone disruptive in any way during the proceedings. Indeed, Commissioner Prizmich commented it was understandable that Gaul would seem upset, nervous and to some degree angry at the renewed parole suitability hearing. More importantly, the commissioner commended Gaul for the fact that, whatever anger or frustration he may have felt at the repeated reversals by the Governor of Board decisions to release him on parole, he never allowed those feelings to interfere with his actual behavior in prison—that is, he effectively managed his anger: “[I]n terms of your performance here in the institution, you did a fine job. You didn’t seem to miss a beat. That was noteworthy for this Panel and I do want to give you credit for that.” Gaul’s exemplary prison behavior is firmly established by the record before the Board. Moreover, as unequivocally stated in an earlier psychological evaluation, “There is no room for improvement in his programming, and no unmet goals to accomplish during his incarceration.” (Gaul I, supra, 170 Cal.App.4th at p. 38.)
The record establishes that Gaul has completed anger management courses while in prison and serves as a leader mentoring other inmates with anger management issues.
We recognize “[o]ur deferential standard of review requires us to credit the Governor’s findings if they are supported by a modicum of evidence.” (Lawrence, supra, 44 Cal.4th at p. 1226.) However, in the circumstances of this case—where, notwithstanding the nature of the commitment offense, no evidence in the record as of November 2007 supported a determination Gaul then posed an unreasonable risk of danger to society if released on parole (Gaul, supra, 170 Cal.App.4th at p. 39)—the concerns identified by the Governor do not provide “some evidence” Gaul remains a current threat to public safety.
4. Gaul Is Entitled to an Order Reinstating the Board’s Decision To Release Him
The Attorney General argues, should we conclude the deferential some-evidence standard has not been satisfied and a due process violation found, the proper remedy is to remand to the Governor for reconsideration rather than ordering Gaul’s release in accordance with the Board’s March 2009 decision. In support of this argument, the Attorney General stresses the power to grant and revoke parole is vested exclusively in the executive branch. (Cal. Const., art. V, § 8, subd. (b); In re Rosenkrantz, supra, 29 Cal.4th at p. 659.)
As discussed, however, the Governor’s constitutional authority is limited to a review of the evidence presented to the Board. Our review of that record reveals the absence of evidence to support the Governor’s decision and “further consideration by the Governor will not change this fact.” (In re Vasquez (2009) 170 Cal.App.4th 370, 386.) Accordingly, remand of this case to the Governor would serve no useful purpose. The proper remedy is to vacate the Governor’s decision and to reinstate the Board’s. (See Lawrence, supra, 44 Cal.4th at pp. 1201, 1229 [affirming Court of Appeal decision to vacate Governor’s denial of parole and reinstate the Board’s grant]; In re Masoner (2009) 179 Cal.App.4th 1531 [superior court acted well within its authority in declining to remand the matter to the Governor after vacating the Governor’s reversal of the Board’s decision to grant parole]; In re Dannenberg (2009) 173 Cal.App.4th 237, 256-257 [“there is not some evidence to support the Governor’s decision to reject the Board’s grant of parole, and the appropriate remedy is to vacate the Governor’s decision and reinstate the Board’s decision”]; In re Vasquez, at p. 387 [vacating Governor’s decision and reinstating Board’s]; see generally In re Henderson, Nov. 19, 2009, S177100 [transferring matter to Second Appellate District, Division Three, “with instructions to vacate its opinion and reconsider its disposition in light of In re Vasquez (2009) 170 Cal.App.4th 370 and In re Dannenberg (2009) 173 Cal.App.4th 237”].)
DISPOSITION
The petition for writ of habeas corpus is granted. The Governor’s decision to reverse the Board’s order granting parole to Gaul is vacated, and the Board’s parole release order is reinstated. In the interests of justice and to prevent frustration of the relief granted, this decision shall be final as to this court seven calendar days after it is filed. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: WOODS, J., JACKSON, J.