Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING: Petition for Writ of Habeas Corpus. Super. Ct. No. 20930
Donald H. Specter, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill and Andrew R. Woodrow, Deputy Attorneys General, for Respondent.
OPINION
Levy, J.
INTRODUCTION
Petitioner Noah Ignacio filed a petition for writ of habeas corpus in this court challenging the sufficiency of the evidence supporting the Governor’s decision in 2007 reversing the determination by the Board of Parole Hearings (Board) that he was suitable for parole. We issued an order to show cause. After review of the record and applicable law, we conclude that the matter must be remanded to the Governor for reconsideration of petitioner’s parole suitability in accordance with the standard explained and clarified in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis).
FACTS
On November 15, 1980, petitioner, who was then 29 years old, was drinking in a bar in Visalia. He got into an altercation with Gordon Keith Martin. Petitioner went home, armed himself with a sawed-off shotgun, returned to the bar and shot Martin twice, killing him. Petitioner fled to Texas and worked under an assumed name. Petitioner was apprehended when he returned to California 14 months later.
In 1982, petitioner pled guilty to one count of second degree murder and admitted an enhancement allegation that he used a deadly weapon in the commission of this offense. (Pen. Code, §§ 187, 12022, subd. (b).) He was sentenced to 15 years to life plus one year. Petitioner’s prior criminal history includes several alcohol and firearm related offenses. He was on probation for drunk driving when he murdered Martin.
Petitioner has been disciplined two times for fraudulently stealing state funds and for possessing a whistle. He has been counseled three times for minor misconduct. He has remained free of discipline since 1990.
Petitioner obtained a Bachelor of Arts degree in sociology and became a certified radiological technologist.
He has participated in Alcoholics Anonymous (AA) and other self-help and therapy programs for many years.
He married in 1982, but the relationship failed.
A parole hearing was conducted on May 24, 2007. Petitioner said he had been on a drinking binge when he murdered Martin. At that time, he had an infatuation with firearms and bar fights were just a part of life for him. He does not remember shooting Martin but acknowledges that he did so. Petitioner expressed remorse.
If paroled, petitioner plans to attend a residential treatment program in Fresno County for three months and then reside with his mother. He intends to find work as a radiological technician.
The Board found petitioner suitable for parole. On October 7, 2007, the Governor reversed the Board’s decision. The Governor acknowledged that Petitioner has “made creditable gains in prison.” However, “the gravity of the murder committed by [petitioner], his prior criminal record, and concerns about his parole plans, presently outweigh the positive factors.”
The Board has found petitioner suitable for parole six times. On each occasion, the Governor has either modified or reversed the Board’s decision.
DISCUSSION
I. Statutory and regulatory framework governing parole decisions.
Under the current sentencing law, offenders convicted of non capital murder are subject to indeterminate sentences. They may serve up to life imprisonment, but become eligible for parole after serving minimum terms of confinement. (In re Dannenberg (2005) 34 Cal.4th 1061, 1078 (Dannenberg).) In the case of an inmate sentenced to life in prison, a panel of commissioners of the Board meets with the inmate and sets a parole release date one year prior to an inmate’s minimum eligible parole release date unless it determines that public safety requires a lengthier period of incarceration. (Pen. Code, §3041, subds. (a) & (b).) “Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).)
Unless otherwise specified all statutory references are to the Penal Code.
In determining suitability for parole, the Board must consider factors specified by regulation. (Cal. Code Regs., tit. 15, § 2402.) Parole considerations applicable to life prisoners convicted of murder are contained in California Code of Regulations, title 15, section 2400 et seq.
Factors tending to establish unsuitability for parole include that the inmate: (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) has a previous record of violence; (3) has an unstable social history; (4) 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 or jail. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)-(6).)
Factors tending to show suitability for parole include that the inmate: (1) does not have a juvenile record of assaulting others or committing crimes with the potential of personal harm to victims; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress built up over a long period; (5) committed the crime 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 suggesting an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d)(1)-(9).)
These factors are only general guidelines and the Board must consider all reliable, relevant information available to it when determining parole suitability. (Cal. Code Regs., tit. 15, § 2402, subd. (b).) The paramount consideration for both the Board and the Governor when determining parole suitability is public safety. This requires an assessment of the inmate’s current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1205; Shaputis, supra, 44 Cal.4th at p. 1254.)
The Governor has authority pursuant to subdivision (b) of section 8 of article V of the California Constitution to affirm, modify or reverse the Board’s parole decision. (In re Rosenkrantz (2002) 29 Cal.4th 616, 660 (Rosenkrantz).) The statutory procedure guiding the Governor’s review of a parole decision of an inmate sentenced to an indeterminate term based upon a murder conviction is contained in section 3041.2. The Governor has authority to reverse a decision of the Board to grant parole. He has substantial discretion to weigh the relevant factors involving an inmate’s history and rehabilitation in deciding whether the prisoner is suitable for parole. “[T]he Governor undertakes an independent, de novo review of the inmate’s suitability for parole” (Shaputis, supra, 44 Cal.4th at p. 1258) based on the record that was before the Board. The Governor may be more stringent or cautious in determining whether an inmate poses an unreasonable risk to public safety. (Ibid.) The Governor’s and the Board’s parole decisions are based on the same factors and same evidentiary record. (Rosenkrantz, supra, 29 Cal.4th at p. 661.)
Appellate courts review the decision of the Board and the Governor to ensure that they are consistent with the applicable legal standards and to assess whether they are supported by some evidence in the record. (Rosenkrantz, supra, 29 Cal.4th at pp. 658-661.) The standard of judicial review is the same whether we are reviewing the Governor’s or the Board’s decision. (Shaputis, supra, 44 Cal.4th at p. 1258.) We examine the record to assess whether it contains some evidence supporting the Board’s or the Governor’s conclusion that a petitioner currently poses an unreasonable risk to public safety. We will affirm the Board’s or “the Governor’s interpretation of the evidence so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors.” (Ibid.) “It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.” (Lawrence, supra, 44 Cal.4th at p. 1212.) Therefore, “when 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. [Citations.]” (Ibid.)
II. The Governor’s decision was methodologically flawed.
A. In 2007, there was a split in appellate decisions.
When the Governor reversed the Board’s decision in this matter, the issue of whether the aggravated circumstances of the commitment offense alone can justify the denial of parole was unsettled. Appellate courts were split on this issue. Some cases presumed that the egregiousness of the commitment offense could support the ultimate determination that the inmate posed a threat to public safety. Inherent in this approach was the assumption that evidence establishing that a commitment offense was particularly egregious inherently assesses the threat currently posed by the inmate to public safety. Conversely, other cases concluded that the applicable inquiry is whether the inmate continues to be currently dangerous and not merely whether the record contains evidence of unsuitability such as the egregiousness of the commitment offense. (Lawrence, supra, 44 Cal.4th at pp. 1206-1210.) Thus, a conflict emerged “as to whether the aggravated circumstances of the commitment offense, standing alone, provide some evidence that the inmate remains a current threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1206.) The appellate court opinions centered upon the precise contours of the some evidence standard of review and the extent to which a determination of current dangerousness should guide a court’s review of the Board’s or the Governor’s decision. Yet, as a result of this conflict, the Board and the Governor were left with contradictory guidance on the methodology they were to apply in fulfilling their statutory and regulatory mandates.
B. Lawrence/Shaputis resolved this conflict.
In 2008, our Supreme Court resolved this conflict as part of its decisions in Lawrence and Shaputis. In relevant part, the high court explained, “In Dannenberg, we confirmed that ‘[w]hen the Board bases unsuitability on the circumstances of the commitment offense, it must cite “some evidence” of aggravating facts beyond the minimum elements of that offense. [Citation.]’ [Citation.]” (Lawrence, supra, 44 Cal.4th at p. 1207.) In attempting to apply Dannenberg, the split in the appellate courts described above occurred. Lawrence concluded that the minimum elements inquiry has resulted in arbitrary results and is unworkable in practice, partly because few murders could not be characterized as particularly aggravated or as involving some act beyond the minimum required for conviction of the offense. (Lawrence, supra, 44 Cal.4th at p. 1218.) Also, the minimum elements inquiry substantially undermines the rehabilitative goals of the governing statutes by functionally removing consideration of relevant suitability factors and failing to assess current dangerousness. (Id. at p. 1220.)
Review was granted in Lawrence and Shaputis “to resolve a conflict among the Courts of Appeal regarding the proper scope of the deferential ‘some evidence’ standard of review set forth in [Rosenkrantz], and thereafter applied in [Dannenberg].” (Shaputis, supra, 44 Cal.4th at p. 1254.)
Lawrence explained that “the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes” or “dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense.” (Lawrence, supra, 44 Cal.4th at p. 1221.) The applicable “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.” (Ibid.) The Board or the Governor may deny parole based upon the circumstances of the offense or other immutable facts such as an inmate’s criminal history “only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.]” (Ibid.) Current dangerousness, rather than the mere presence of statutory unsuitability factors, is the focus of the parole decision. (Id. at p. 1210.)
The predictive value of the commitment offense to the assessment of current dangerousness generally decreases over time. Lawrence cautioned “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.” (Lawrence, supra, 44 Cal.4th at p. 1228.) However, in many cases evidence suggesting that the murder was heinous or egregious will not eternally support decision that the inmate is unsuitable for parole. (Id. at p. 1226.)
“When, as here, all of the information in a post conviction 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.” (Id. at pp. 1226-1227.)
Shaputis reiterated this principle. It explained that the determination whether an inmate poses a current danger is not dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction. (Shaputis, supra, 44 Cal.4th at p. 1254.)
“Rather, 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 by 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.]’ [Citation.]” (Id. at pp. 1254-1255.)
Recently, In re Criscione (2009) 173 Cal.App.4th 60 (Criscione) explained, “As Lawrence clarified, however, due consideration ‘requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision -- the determination of current dangerousness.’ [Citation.]” (Id. at pp. 74-75.)
C. We cannot presume that the Governor applied the proper legal standard and it is apparent that it used a flawed methodology when assessing petitioner’s parole suitability.
The record in this case demonstrates that the Governor utilized a flawed methodology when assessing petitioner’s suitability for parole. He relied heavily on factual circumstances of the commitment offense and petitioner’s criminal history. There is no indication in the Governor’s written decision that he considered whether there was a rational nexus between these immutable factors and petitioner’s current dangerousness. The Governor did not assess whether those immutable factors continue to have predictive value in light of petitioner’s institutional behavior, age, and other factors. The Governor did not articulate any rational nexus between these immutable factors and petitioner’s current dangerousness.
The inmate’s commitment offense has been characterized by the courts as an “immutable factor” because, along with the prisoner’s previous criminal history and record of violence, it is a circumstance that the inmate cannot change. (In re Scott (2005) 133 Cal.App.4th 573, 594-595.)
In re Katrina C. (1988) 201 Cal.App.3d540 (Katrina C.) is instructive. “Katrina C. involved a dispositional order transferring custody from one parent to the other, which order issued shortly after the effective date of revision to [Welfare and Institutions Code] section 361 making clear that the higher standard of proof applied.” (In re Misako R. (1991) 2 Cal.App.4th 538, 548.) The appellate court concluded that it could apply the ordinary presumption that the trial court had applied the correct legal standard because the record was silent and “[c]onfusion in this area was engendered by an apparent blurring in case law, including one case decided by this court [citation], between the jurisdictional finding and the dispositional order in dependency cases. [Citation.]” (Katrina C., supra, 201 Cal.App.3dat p. 548.) It remanded the matter to the juvenile court for express articulation of the standard of proof it had applied. If the juvenile court had not applied the clear and convincing standard of proof, it was directed to conduct another dispositional hearing. (Id. at p. 550.)
The situation before us is analogous to Katrina C. in several respects. Just as in Katrina C., the applicable law was blurred in a key respect when the Governor made his parole decision. The law has now been clarified and explicit direction has been provided concerning the methodology the Governor is to employ when assessing a petitioner’s suitability for parole. Further, it is apparent that in this case the Governor did not anticipate the result in Lawrence and Shaputis and consider whether the immutable circumstances of petitioner’s commitment offense and his prior criminal history continue to have predictive value. Rather, the Governor simply focused on the presence of suitability and unsuitability factors without considering whether there was a nexus between those factors and petitioner’s current dangerousness. The Governor applied a flawed methodology in its decision-making process by failing to consider whether there was a rational nexus between the immutable factors and petitioner’s current dangerousness. Therefore, since the proper methodology to be used when determining parole suitability was unsettled in 2007 and the record does not affirmatively demonstrate that the Governor applied the correct standard, we conclude that it is not appropriate to apply the ordinary presumption that the Governor was aware of and utilized the correct legal standard when assessing petitioner’s suitability for parole. Furthermore, we cannot presume that the Governor would have reached the same conclusion about petitioner’s parole suitability had it done so. (Katrina C., supra, 201 Cal.App.3dat p. 548.)
Recently, Criscione, supra, 173 Cal.App.4th 60 reached the same conclusion. The appellate court determined that it could not presume that the Board applied the proper evidentiary standard because the parole decision at issue was made prior to issuance of Lawrence “and the Board’s decision does not clearly indicate that it considered the nexus between the facts upon which it relied and its conclusion that Criscione would present and unreasonable risk to public safety if released.” (Id. at p. 77.) It reasoned:
[¶] “Where the standard of proof has been long settled, and absent a statement to the contrary, we ordinarily presume on appeal that a trial court applied the appropriate evidentiary standard. [Citation.] We would apply a similar presumption to decisions of the Board but the law pertaining to the parole decision has not been long settled. Until Lawrence, some reviewing courts assumed that a parole denial based simply upon evidence that the commitment offense was particularly heinous, atrocious, or cruel [citation] comported with due process, so long as the Board indicated it considered the other regulatory factors. [Citation.] As Lawrence clarified, however, due consideration ‘requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision -- the determination of current dangerousness.’ [Citation.] In the present case, although the Board recited its conclusion that Criscione would pose an unreasonable risk of danger to society or a threat to public safety if released from prison, the Board did not articulate any nexus between the factors upon which it relied and its ultimate conclusion.” (Criscione, supra, 173 Cal.App.4th at pp. 74-75.)
Further:
[¶] “… the Board did not have benefit of Lawrence and Shaputis and the Board’s decision does not clearly indicate that it considered the nexus between the facts upon which it relied and its conclusion that Criscione would present an unreasonable risk to public safety if released. In these circumstances, we cannot presume that the Board applied the evidentiary standard as clarified by Lawrence or that it would have reached the same conclusion had it done so. Accordingly, remand is warranted.” (Criscione, supra, 173 Cal.App.4th at p. 77.)
D. The proper remedy is remand to the Governor to allow him to apply the standard explained and clarified in Lawrence and Shaputis.
In determining the appropriate remedy, we are principally guided by In re Ramirez (2001) 94 Cal.App.4th 549. “In Ramirez, the appellate court concluded the Board of Prison Terms had erred by failing to consider the proportionality of an inmate’s sentence in relation to the determinate term prescribed for his crimes, or the gravity of his offenses as compared with other similar offenses. [Citation.]” (In re Rico (2009) 171 Cal.App.4th 659, 687, fn. omitted (Rico).) Ramirez also concluded that the trial court erred by making its own evaluation of the evidence before the Board and by ordering the Board to set a parole date. Ramirez explained, “In deference to the Board’s broad discretion over parole suitability decisions, courts should refrain from reweighing the evidence, and should be reluctant to direct a particular result. [Citation.] The Board must be given every opportunity to lawfully exercise its discretion over Ramirez’s parole application.” (Ramirez, supra, 94 Cal.App.4th at p. 572.) Therefore, it reversed the trial court’s order and directed the Board to conduct another parole suitability hearing conforming to specific legal guidelines. (Ibid.) Although the proportionality aspects of the Ramirez decision were later disapproved by Dannenberg, supra, 34 Cal.4th at pages 1070-1071, the remedy was not. Ramirez’s conclusion that the Board must be given every opportunity to lawfully exercise its discretion over the parole decision is persuasive and the remedy it crafted is applicable where, as in this case, the decision was based upon a flawed methodology. (See, e.g., Rico, supra, 171 Cal.App.4th at p. 688.)
When, as here, the Governor made the parole suitability decision prior to issuance of Lawrence and relied in substantial part on immutable factors, we believe that the appropriate remedy is to remand for reconsideration so that the Governor can exercise its discretion in this matter after assessing the petitioner’s parole suitability using the proper methodology and correct standard as explained and clarified in Lawrence and Shaputis.
Criscione, supra, 173 Cal.App.4th 60 agrees with this reasoning and result. In relevant part, Criscione concluded, “Since Lawrence was not decided until after the proceedings from which this appeal is taken, and since our independent review of the record suggests that the Board did not adhere to the evidentiary standard Lawrence described, we shall remand the matter to the Board for rehearing in light of this clarifying law.” (Id. at p. 65.) Some other published decisions also have concluded that remand for reconsideration in light of Lawrence and Shaputis is the appropriate remedy for various errors. (See In re Ross (2009) 170 Cal.App.4th 1490, petn. for review pending, petn. filed May 5, 2009, time for grant or denial of review extended to June 18, 2009 [record contained some evidence of dangerousness but remand for reconsideration was necessary because the Governor’s decision did not expressly articulate a nexus between commitment offense and current dangerousness]; In re Lazor (2009) 172 Cal.App.4th 1185 [Board’s decision failed to identify some evidence of current dangerousness; proper remedy is to remand for reconsideration].)
E. The separation of powers doctrine precludes us from assessing whether the Governor’s decision is supported by some evidence.
The parties argue against remand for a new parole suitability hearing to assess petitioner’s current dangerousness under the standard explained and clarified in Lawrence and Shaputis. They urge us to review the Governor’s decision for the existence or nonexistence of some evidence and then grant direct relief as appropriate, relying on some recent appellate court decisions that have followed this course. (See, e.g., In re Aguilar (2008) 168 Cal.App.4th 1479; In re Burdan (2008) 169 Cal.App.4th 18; In re Vasquez (2009) 170 Cal.App.4th 370; Rico, supra, 171 Cal.App.4th 659.)
We are not convinced that this is the prudent course. If were we to assess the Governor’s decision for the existence of some evidence under the standard clarified in Lawrence and then fashion relief based on our conclusion, we would effectively be precluding the Governor from making the initial determination of petitioner’s current dangerousness using the correct methodology and proper legal standard. This runs a serious risk of violating the separation of powers doctrine.
In re Lugo (2008) 164 Cal.App.4th 1522 (Lugo), explains the separation of powers doctrine, as follows:
[¶] “The separation of powers principle is embodied in the California Constitution, which provides as follows in article III, section 3: ‘The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.’ ‘“The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch. [Citations.]” [Citation.]’ [Citation.] Although the doctrine is not intended to prohibit one branch from taking action that might affect those of another branch, the doctrine is violated when the actions of one branch ‘defeat or materially impair the inherent functions of another branch. [Citation.]’ [Citation.] Intrusions by the judiciary into the executive branch’s realm of parole matters may violate the separation of powers. [Citation.]” (Id. at p. 1538.)
The judicial branch has a limited and carefully circumscribed duty to review parole decisions. “The Board’s discretion in parole-related matters has been described as ‘great’ and ‘almost unlimited.’ [Citation.] Nevertheless, the requirement of procedural due process places some limitations upon the broad discretionary powers of the Board. [Citation.]” (Lugo, supra, 164 Cal.App.4th at p. 1537; Rosenkrantz, supra, 29 Cal.4th at p. 667.) Whether reviewing a decision by the Board or reviewing the Governor’s exercise of his power under article V, section 8, subdivision (b) of the California Constitution, the applicability of the highly-deferential some evidence standard of review is rooted in principles of separation of powers. (Rosenkrantz, supra, 29 Cal.4th at pp. 652-667.) “The executive branch has ‘inherent and primary authority’ over parole matters. [Citation.] Within that branch, the Board is an ‘executive parole agency’ that is an ‘arm of the Department of Corrections.’ [Citations.]” (In re Roberts (2005) 36 Cal.4th 575, 588, fn. omitted.) “By its nature, the determination whether a prisoner should be released on parole is generally regarded as an executive branch decision. [Citations.] The decision, and the discretion implicit in it, are expressly committed to the executive branch. [Citations.] It is not a judicial decision. [Citations.]” (In re Morrall (2002) 102 Cal.App.4th 280, 287.)
We must be vigilant to ensure that our judicial review of a parole decision is carefully exercised so that it does not violate the separation of powers by intruding upon the executive branch’s broad discretion in parole-related matters. (See, e.g., Lugo, supra, 164 Cal.App.4th 1522 [order requiring Board to state a significant change in circumstances justifying decision to deny parole for more than one year following a prior one-year parole denial violated separation of powers doctrine]; Hornung v. Superior Court (2000) 81 Cal.App.4th 1095, 1099 [court order allowing inmate to question commissions about their parole-related decision process violated separation of powers]; In re Masoner (2009) 172 Cal.App.4th 1098 [trial court’s order directing inmate’s release violated separation of powers because Board must be given opportunity to determine if new evidence of his conduct or change in his mental state support a determination that he is currently dangerous].)
We believe that the separation of powers doctrine requires the Governor to first assess the evidence in this case and determine if petitioner is currently dangerous under the standard explained and clarified in Lawrence and Shaputis. Once this initial determination of current dangerousness has been made by the Governor, then it is proper for this court to review the factual basis of his decision under the deferential some evidence standard. (Rosenkrantz, supra, 29 Cal.4th at p. 658.) To determine at this point whether petitioner is currently dangerous under the standard explained and clarified in Lawrence and Shaputis would essentially place this court in the position of acting as the initial fact-finder, thereby usurping the proper role of the Governor. It would effectively preclude the executive branch’s exercise of discretion in this matter. To protect the separation of powers, we believe that the executive branch should be the first to decide the ultimate question of whether petitioner is currently dangerous under the standard clarified in Lawrence, not the courts.
DISPOSITION
The petition for writ of habeas corpus is granted. The Governor’s decision reversing the Board’s finding that petitioner is suitable for parole is vacated. The Board’s decision is reinstated as of the date this opinion is final. The Governor, in his discretion, may thereafter exercise his constitutional and statutory authority to reconsider petitioner’s parole suitability in accordance with the standards explained and clarified in Lawrence and Shaputis.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.