Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 149778
Mihara, J.
Petitioner Jose Oliveira has been incarcerated since 1991 for the second degree murder of a rival gang member. In 2009, the Board of Parole Hearings (the Board) concluded he was suitable for parole and set a parole date. The Governor reversed the Board’s decision. Oliveira sought a writ of habeas corpus in the superior court, alleging that the Governor’s decision was not supported by some evidence of current dangerousness. The court agreed and issued an order directing Oliveira’s release “in accordance with the parole date that the Board calculated.”
The Warden challenges the superior court’s order. We conclude that the Governor’s decision was not supported by some evidence. Accordingly, we affirm the superior court’s order.
I. Background
The facts are taken from this court’s 1994 decision affirming defendant’s conviction (the appellate decision), which the Board incorporated into the record at Oliveira’s 2009 parole hearing, and from the 1992 probation report, which was read into the record of that hearing.
On July 24, 1991, Oliveira drove six of his friends to a Gilroy nightclub. Outside, they saw five young men they perceived to be members of a rival gang from Las Lomas. Oliveira initiated a verbal confrontation that one of the Las Lomas individuals tried to defuse. In response and with friends standing close by his side, Oliveira “pulled out a gun ‘from the back part of his waist, ’ pulled back the gun’s slide, and pointed the gun [at] the Las Lomas group.” “At that point, ... the ‘whole attitude’ of [Oliveira’s] group ‘changed’ [and] several began throwing beer cans toward the Las Lomas group, acting... ‘ready to fight.’ ” Someone fired a single shot as the Las Lomas individuals “dove” into their car, and the bullet struck one of them in the back of the neck. Antonio Olvera fell to the ground unconscious, and Oliveira’s group fled. Olvera died a few hours later.
Shortly after midnight, Oliveira and his group were stopped as he was driving through Hollister, and the car was searched. Police found the murder weapon “under the front passenger’s bucket seat [and] four rounds of ammunition in a.45 caliber magazine on the front passenger’s floorboard....” Oliveira told police that he had been a “Northside” gang member for two and a half years and that he believed Olvera was a member of the “Las Lomas Gang.”
B. Oliveira’s Prior History
When Oliveira was 10, injury forced his father to stop working, and the family moved. Oliveira’s two older brothers, neither of whom was ever involved in a gang, went to work to support the family. Oliveira’s friends changed, and he “followed the crowd, ” dropping out of school in the 10th grade and joining a gang at 17. He “did drugs once in a while” and drank alcohol “occasionally” at parties as “a fitting in type of mechanism.” He later told the Board that he had not been raised that way.
Oliveira has no juvenile record. As an adult, he was arrested for a variety of gang-related weapons offenses in the two and a half years preceding the murder.
Although the Board found no evidence that he had a juvenile record, Oliveira told them he had been arrested at 17 for loitering, “but they just took us to the jail and then let us go.” The Governor’s decision stated that “[h]e has no juvenile criminal record.”
In April 1989, he was convicted of misdemeanor exhibiting a deadly weapon (a gun) and battery and placed on probation. In May 1989, he was charged with carrying a concealed weapon in a vehicle, carrying a loaded weapon in a public place, and fighting in public; the charges were dismissed pursuant to Penal Code section 1385. In April 1990, he was charged with fighting in public (Pen. Code, § 415.1); the disposition is unknown. In May 1991, he was convicted of being an accessory to attempted murder (Pen. Code, § 32). He was out on bail pending sentencing for that offense when Olvera was killed.
Oliveira’s family visits him in prison. His father died in 2008.
C. Oliveira’s Post-Incarceration Record
In 1991, a jury convicted Oliveira of second degree murder (Pen. Code, § 187), and allegations that he personally used a firearm, personally discharged it at an occupied motor vehicle, and committed the crime for the benefit of a criminal street gang were also found true (Pen. Code, §§ 12022.5, subds. (a) & (b)(1), 186.22, subd. (b)). He was sentenced to 15 years to life with a consecutive five-year term on the firearm enhancements.
Oliveira’s conduct in prison has been exemplary. He has never been disciplined and has received only three counseling chronos, the most recent in 2000 for having “various items of material” (apparently, a wet washcloth) “hanging around his bed area.”
“In prison argot, ‘counseling chronos’ document ‘minor misconduct, ’ not discipline.... [Citation.]” (In re Smith (2003) 109 Cal.App.4th 489, 505.) A CDC 115 rules violation report documents serious misconduct that is believed to be a violation of law or that is otherwise not minor in nature, while a CDC 128-A custodial counseling chrono documents minor misconduct. (In re Gray (2007) 151 Cal.App.4th 379, 389; Cal. Code Regs., tit. 15, § 3312, subd. (a)(2)-(a)(3) (Regs.).) Subsequent references to “Regs.” will be to this title.
Oliveira was counseled in 1993 for possessing shower shoes with “14” written on them and in 1996 for reporting late to class.
Oliveira obtained his GED and a high school diploma in prison. He acquired vocational certification in small engine repair. Numerous laudatory chronos in his file praised his work ethic, his ability to get along with staff and other inmates, his “honest and respectful manner, ” and his “positive attitude.” More than one of his supervisors described him as “a model inmate” and “a role model for other inmates.” One supervisor characterized him as “one of those rare inmate[]s that ha[ve] what it takes to be a responsible and productive member of society.” Another spoke of his “passion to work with troubled youth, ” concluding that “Oliveira has what it takes to be a respected citizen and deserves the opportunity to give back to society by doing service within his community.”
Oliveira has completely disassociated himself from the gang lifestyle. In 1994, he was stabbed in the throat for refusing to comply with prison gang directives. Active for more than a decade in Criminals and Gang Members Anonymous (CGA), a 12-step program, he has sponsored others in the group, served as a co-facilitator and as group secretary, participated in outreach projects, training videos, and documentaries, and spoken in public forums about gang activity. He also served as a tour leader in the Troubled Kids Deterrent Program.
Oliveira married during his incarceration, but he is now divorced. He has no children.
D. Psychological Assessments
1. May 1997 Assessment
The “first report” to the Board noted that Oliveira “presented himself in a candid straight-forward and likeable manner, showing a resilient personality. Currently he shows good judgment and insight.” At that time, Oliveira was “making a good attempt at self-rehabilitation, ” “studying inspirational literature, ” and “actively participating in education” and “self-help programs.” Test results showed “difficulty with self-control” and tendencies “to act before he thinks” and to blame others, but the psychologist assessed these traits as “minimal” and said they “appear[ed] to be improving with age....”
The report noted Oliveira’s “growing weariness” with the difficulty gang involvement was causing him and stated that although he “adamantly” denied he was the trigger person responsible for the murder, he admitted “his culpability, his poor judgment, and his guilt in driving the vehicle [and] in choosing friends who were so violent and irresponsible....” Oliveira felt “an appropriate amount of remorse and regret for the consequences of his behavior.” “He present[ed] in a believable manner” and “appear[ed] sincere in his commitment to halt all gang affiliations.” The report concluded that Oliveira should be “commended for his positive programming and attitude towards his incarceration.”
2. April 2008 Assessment
The “Initial Psychological Evaluation” found “no indications of any intra- or interpersonal problems other than situational (e.g., his incarceration).” Oliveira had “no indications of any type of mental illness, either historically or currently.” He had “never had a substance abuse problem.” He had “taken full advantage of nearly all programs offered..., and even gone beyond that in seeking out additional programs as a protective measure.” He demonstrated “understanding and insight regarding both his incarceration and the larger issues of life.” He had “a strong network of support within the prison” and “apparently outside, as well.” He was engaged to a woman in Oregon.
The report described Oliveira’s criminal involvement as “secondary to gang involvement.” That behavior, “though very serious, was over a brief adolescent period and contrasts to his current life functioning.” Although Oliveira continued to “adamantly” deny that he was the trigger person, he admitted his culpability, his poor judgment, and his guilt as a participant. He told the psychologist, “I was there. A person died. Nothing will ever bring him back and nothing will make that right. I cannot take it back. I can only live my life in a way that gives back, maybe changes things so that this doesn’t happen to someone else.”
The report concluded that it was “obvious from a review of his records that this inmate has met all expectations and shown a particularly positive attitude toward the correctional/legal system, treatment, and other people. His insight into gang factors is deep and personal, and he has taken an opportunity to use his experiences for the benefit of others through his extensive and long term participation in the CGA programs. In recalling his gang issues, the inmate stated, ‘Gangs... made me feel like I was somebody.... I looked for ways out, but I could not see my way out until I got to prison and decided to change. I had to drop out. I had to face the issue of protective custody and retaliation.... I joined CGA in 1998 and now I am a sponsor and co-facilitator. I also help with forums and 12-step workshops.’ The inmate has a plaque in his cell which reads, ‘It is easy to stand together; it takes courage to stand alone.’ He seems to have integrated this sentiment into his life.”
Oliveira was assigned a Global Assessment of Functioning (GAF) score of 95 for displaying “superior functioning in a wide range of activities.” The report identified only two “detracting GAF factors”-stress related to his father’s recent death and his status as an inmate.” His propensity and risk for violence were low, as was his risk of general recidivism.
E. April 2009 Parole Hearing
Oliveira had been given a one-year denial at his initial parole hearing in April 2008. He was 39 years old at his first subsequent hearing in April 2009. He told the Board he realized he was there because of the “far-reaching damage I am responsible for causing, and for that I am deeply sorry. I have been true to my word when I told the judge who sentenced me that I would do everything possible to turn my life in a positive direction.... Because of all I have learned over these 18 years I am able to express my... [heartfelt] empathy and deepest remorse for the pain I have caused everyone involved in this tragedy. I continue to accept full responsibility for my actions.... With God’s continuing help I wish to express... my sincere desire to help those who are now struggling with the same problems I experienced in my former life, and do whatever it takes to help change lives before they create more victims.... In doing so my life will serve as an example that something positive can come even from the dark experience of serving years in prison.”
Oliveira expressed his belief that had he not been involved that night, the victim might still be alive today. As was his right, he declined to discuss the commitment offense except to deny that he was the shooter. (Pen. Code, § 5011, subd. (b).) While noting that that created something of a “burden” for the panel to grasp his “insight and level of responsibility, ” the Board found Oliveira suitable for parole.
The Board cited numerous favorable factors: (1) his juvenile history was “not extensive” or violent; (2) his social history was stable, with his “close-knit” family providing “a good foundation;” (3) he had “maintained a positive institutional viewpoint and attitude” throughout his incarceration; (4) he had remained discipline-free and had been counseled only three times; (5) he “stood up to the Norteños” when they “put a hit on [him], ” and he refused to get involved in gang activity in prison; (6) his level of insight was “adequate and appropriate;” (7) he had demonstrated remorse; (8) he had “increased and enhanced” his ability to perform in the free society by “upgrading” educationally and vocationally and “extensively” working on self-help; (9) his file contained 10 laudatory chronos; (10) the crime was not committed as a result of any significant stress in his life; and (11) his parole plans were “realistic.”
The Board set Oliveira’s base life term at 240 months and added a 12-month enhancement for “weapons violations, ” for a total term of 252 months (21 years). As special terms of parole, the Board ordered that he abstain from alcoholic beverages and submit to narcotics testing.
II. The Governor’s Decision
The Governor reversed the Board’s decision, citing three reasons. First, the crime was “especially heinous”-the shooting in a public parking lot demonstrated no regard for the safety of others, the motive was “exceedingly trivial, ” and the victim did not die immediately. The Governor was also “concerned that Oliveira has not yet gained sufficient insight into or accepted full responsibility for the murder because he continues to deny that he was [the] shooter in the life offense.” Lastly, the Governor was “troubled that Oliveria required counseling for misconduct in 2001.” The Governor concluded that “[t]his evidence indicates that Oliveira still poses a risk of recidivism and violence and that his release from prison at this time would create an unreasonable risk to public safety.”
Although the Governor’s decision stated that the misconduct occurred in 2001, the relevant CDC Form 128-A is dated October 31, 2000.
III. Superior Court Proceedings
Oliveira filed a verified petition for a writ of habeas corpus in the superior court, asserting that the Governor’s decision was not supported by “some evidence that petitioner remains currently dangerous.” The court issued an order to show cause.
In June 2010, the court granted Oliveira’s petition, concluding that “the evidence relied on by the Governor does not support his conclusion that Petitioner is presently dangerous.” “It is clear, ” the court noted after summarizing the relevant case law, “that parole cannot be conditioned on an admission of guilt.” Citing In re Palermo (2009) 171 Cal.App.4th 1096, 1112 (Palermo), disapproved on other grounds in In re Prather (2010) 50 Cal.4th 238, 252-256 (Prather), the court explained that “it was not impossible that [Oliveira] was not the shooter.... There was no forensic evidence definitively showing [that he] was the shooter. Rather, [he] was convicted based on the testimony of two men in the rival gang who were inebriated.” “Furthermore, as in Palermo, [Oliveira] took full responsibility for being a gang member, for participating in the exchange that occurred that evening, and being present when the victim was shot.... [He] also expressed remorse for what occurred.... Under these circumstances, there was no evidence that [Oliveira] lacked insight into the shooting.”
Nor, the court reasoned, was there any evidence “to show [Oliveira] is unable to conform or function within the law.” Referring to his 2000 counseling chrono, the court ruled that “[t]his most minor of offenses can hardly support the conclusion that [he] has an inability to conform. Not only was it minor, but it occurred over nine years ago. Since then, [Oliveira] has not committed any misconduct.” Moreover, he had no “115” citations “for all 18 years of his incarceration.” “In sum, ... the Court can only conclude that in light of the many factors established by the Board’s decision showing petitioner’s suitability for parole and the lack of any evidence to support the Governor’s conclusion, that the present petition should be granted.”
The court further determined that since “nothing in the record suggests that [Oliveira] is unsuitable for parole, the Governor’s reconsideration would be futile.” The court reinstated the Board’s decision and ordered Oliveira released “in accordance with the parole date that the Board calculated.”
The Warden timely filed a notice of appeal and petitioned for a writ of supersedeas. This court issued a writ of supersedeas and stayed enforcement of the superior court’s order until final determination of this appeal.
IV. Discussion
A. Standard of Review
“[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but... in conducting such a review, the court may inquire only whether some evidence in the record before the Board 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 Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz).)
A similar standard of review applies to a decision by the Governor that reverses a Board decision finding a prisoner suitable for parole. (Rosenkrantz, supra, 29 Cal.4th at p. 667.) “[A] parole decision by the Governor... [must] be based upon the same factors the Board is required to consider. Due process of law requires that this decision be supported by some evidence in the record. Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor. As with the discretion exercised by the Board in making its decision, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor, but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the Governor’s decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the Governor’s decision.” (Rosenkrantz, at pp. 676-677, italics added.)
B. Parole Suitability and Unsuitability Criteria
The general standard for a parole unsuitability decision is that “a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board or the Governor] the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Regs., § 2402, subd. (a).)
“[C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)” (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, fn. omitted.) An offense is considered “especially heinous, atrocious, or cruel” if it “was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering” or “[t]he motive for the crime is inexplicable or very trivial in relation to the offense.” (Regs., § 2402, subd. (c)(1).)
“Factors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.” (Rosenkrantz, supra, 29 Cal.4th at p. 653, fn. 11.)
“[C]ircumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)” (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
C. Lawrence
Sandra Lawrence killed her lover’s wife because her lover had decided not to leave his wife and children to be with Lawrence. Lawrence shot her lover’s wife multiple times with a firearm and repeatedly stabbed her. After the crime, Lawrence fled. She surrendered to the police 11 years later and was convicted of first degree murder. (In re Lawrence (2008) 44 Cal.4th 1181, 1192-1193 (Lawrence).) During 23 years of imprisonment, Lawrence had a few administrative violations, but she was free of serious discipline. (Lawrence, at p. 1194.) Her psychological reports early on were troubling, but these reports improved over the years to the point that she was found to have no psychiatric or psychological disorder. (Lawrence, at pp. 1194-1195.) After about a decade in prison, a psychological report found that she no longer posed a significant danger to public safety. Numerous psychological reports over the next decade made the same finding. (Lawrence, at p. 1195.) During that same decade, the Board three times found Lawrence suitable for parole, but in each instance the Governor reversed. (Lawrence, at pp. 1195-1197.) In 2005, the Board granted parole for the fourth time, and the Governor reversed again. His reason for reversing the Board’s 2005 parole grant was that the commitment offense had been “ ‘carried out in an especially cruel manner and committed for an incredibly petty reason.’ ” (Lawrence, at p. 1200.)
Lawrence filed a habeas corpus petition in the Court of Appeal challenging the Governor’s reversal of the Board’s 2005 grant of parole, and the Court of Appeal held that the Governor’s decision was not supported by some evidence that she “ ‘presently represents an unreasonable risk to public safety if released on parole.’ ” (Lawrence, supra, 44 Cal.4th at p. 1201.) The Court of Appeal vacated the Governor’s reversal and reinstated the Board’s grant of parole. (Lawrence, at p. 1201.) The California Supreme Court granted review and affirmed the Court of Appeal’s decision. (Lawrence, at pp. 1201, 1229.)
The California Supreme Court’s opinion in Lawrence explicitly recognized that “the core determination of ‘public safety’ under the statute and corresponding regulations involves an assessment of an inmate’s current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1205.) Given this understanding, the court reconsidered its previous holding in In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg I). “[W]e presumed [in Dannenberg I] that the evidence of egregiousness supported the ultimate determination that the inmate posed a threat to public safety, as opposed to merely providing support for the Board’s or the Governor’s conclusion that the crime was particularly aggravated.” (Lawrence, at pp. 1207-1208.) The court concluded that this presumption was invalid, though the Rosenkrantz standard of review remained valid. “This [Rosenkrantz] standard [of review] is unquestionably deferential, but certainly is not toothless, and ‘due consideration’ of the specified factors 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.” (Lawrence, at p. 1210.)
“[T]he statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1211, italics added.) The court acknowledged that it had not applied this standard in Rosenkrantz or Dannenberg I because “we affirmed the Board’s or the Governor’s decision without specifically considering whether there existed a rational nexus between those egregious circumstances and the ultimate conclusion that the inmate remained a threat to public safety.” (Lawrence, at p. 1213, italics added.)
“[A]n inquiry into whether the offense is more aggravated than the minimum elements necessary to sustain a conviction was not intended by this court to be the exclusive measure of due process, and has proved in practice to be unworkable, leading to arbitrary results. Most importantly, the circumstance that the offense is aggravated does not, in every case, provide evidence that the inmate is a current threat to public safety. Indeed, it is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole-it is the implication concerning future dangerousness that derives from the prisoner having committed that crime. Because the parole decision represents a prospective view-essentially a prediction concerning the future-and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision.” (Lawrence, supra, 44 Cal.4th at pp. 1213-1214.)
“Accordingly, we conclude that although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or 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.” (Lawrence, supra, 44 Cal.4th at p. 1214.) “Absent affirmative evidence of a change in the prisoner’s demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner’s dangerousness for some time in the future. At some point, however, when there is affirmative evidence, based upon the prisoner’s subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner’s current dangerousness.” (Lawrence, at p. 1219.)
“[T]he 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.” (Lawrence, supra, 44 Cal.4th at p. 1221.) “In sum, the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. (Regs., § 2281, subd. (a).) Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.” (Lawrence, at p. 1221.)
The California Supreme Court proceeded to apply this standard of review to the Governor’s decision to deny Lawrence parole. “In light of petitioner’s extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board at successive hearings-decisions reversed by the Governor based solely upon the immutable circumstances of the offense-we conclude that the unchanging factor of the gravity of petitioner’s commitment offense had no predictive value regarding her current threat to public safety, and thus provides no support for the Governor’s conclusion that petitioner is unsuitable for parole at the present time.” (Lawrence, supra, 44 Cal.4th at p. 226.)
“Our deferential standard of review requires us to credit the Governor’s findings if they are supported by a modicum of evidence. (Rosenkrantz, supra, 29 Cal.4th at p. 658.) This does not mean, however, that evidence suggesting a commitment offense was ‘especially heinous’ or ‘particularly egregious’ will eternally provide adequate support for a decision that an inmate is unsuitable for parole. As set forth above, the Legislature specifically contemplated both that the Board ‘shall normally’ grant a parole date, and that the passage of time and the related changes in a prisoner’s mental attitude and demeanor are probative to the determination of current dangerousness. When, as here, all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Lawrence, supra, 44 Cal.4th at pp. 1226-1227.)
“Accordingly, under the circumstances of the present case-in which the record is replete with evidence establishing petitioner’s rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety-petitioner’s due process and statutory rights were violated by the Governor’s reliance upon the immutable and unchangeable circumstances of her commitment offense in reversing the Board’s decision to grant parole.... Accordingly, the Governor’s decision is not supported by ‘some evidence’ of current dangerousness and is properly set aside by this court.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
The court noted the limited nature of its holding. “In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerousness even decades after commission of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
D. Shaputis
The California Supreme Court’s decision in In re Shaputis (2008) 44 Cal.4th 1241, 1247-1248 (Shaputis) provided a counterpoint to Lawrence and explained how the egregious nature of the commitment offense could combine with other evidence to demonstrate the prisoner’s current dangerousness despite the passage of a long period of time, thereby supporting a decision to deny parole.
Shaputis murdered his second wife by firing a single shot from a handgun into her neck at close range. (Shaputis, supra, 44 Cal.4th at pp. 1247-1248.) Shaputis claimed that the shooting was an accident, which the evidence overwhelmingly refuted. (Shaputis, at p. 1249.) He had a long history of domestic violence, including violence against his first wife and daughters, and many years of violent abuse of, and threats toward, his second wife prior to her death. (Shaputis, at pp. 1246-1247.) His prior criminal conduct included a sexual assault on his daughter. Shaputis also had a history of alcohol abuse and was intoxicated on the night of the murder. Although he acknowledged being an alcoholic, “he considers himself to be a ‘mellow... outgoing’ drinker.” (Shaputis, at p. 1248.) Shaputis remained discipline free throughout his incarceration, but psychological reports indicated that there was a “ ‘schizoid quality to his interpersonal relationships.’ ” (Shaputis, at pp. 1249-1250, 1251.)
The Board denied parole in 2004 based on the egregiousness of the offense and his history of unstable relationships. (Shaputis, supra, 44 Cal.4th at pp. 1250-1251.) Shaputis petitioned for a writ of habeas corpus, and the Court of Appeal ordered a new hearing at which the Board could base a denial of parole only on new or different evidence. The Board then reluctantly granted parole. The Governor reversed. The basis for the Governor’s reversal was his finding that Shaputis remained a danger to society due to the aggravated nature of the crime, which included premeditation, and his lack of insight into both the murder and the years of domestic violence that preceded the murder. (Shaputis, at pp. 1251-1253, 1255.) The Court of Appeal granted Shaputis’s writ petition, and the California Supreme Court granted review. (Shaputis, at pp. 1253-1254.)
On review, the California Supreme Court reiterated the Rosenkrantz standard of review that it had applied in Lawrence. “When a court reviews the record for some evidence supporting the Governor’s conclusion that a petitioner currently poses an unreasonable risk to public safety, it 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.” (Shaputis, supra, 44 Cal.4th at p. 1258.) The court distinguished Lawrence. “This is not a case, like Lawrence, supra, 44 Cal.4th 1181, 1225, in which the commitment offense was an isolated incident, committed while petitioner was subject to emotional stress that was unusual or unlikely to recur. [Citation.] Instead, the murder was the culmination of many years of petitioner’s violent and brutalizing behavior toward the victim, his children, and his previous wife. [¶] The record establishes, moreover, that although petitioner has stated that his conduct was ‘wrong, ’ and feels some remorse for the crime, he has failed to gain insight or understanding into either his violent conduct or his commission of the commitment offense. Evidence concerning the nature of the weapon, the location of ammunition found at the crime scene, and petitioner’s statement that he had a ‘little fight’ with his wife support the view that he killed his wife intentionally, but as the record also demonstrates, petitioner still claims the shooting was an accident. This claim, considered with evidence of petitioner’s history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and that he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming’, all provide some evidence in support of the Governor’s conclusion that petitioner remains dangerous and is unsuitable for parole.” (Shaputis, at pp. 1259-1260, fn. omitted.)
E. The Case Before Us
The Governor’s decision here was based in large part on his conclusion that the commitment offense was “especially heinous.” But the aggravated nature of the crime cannot in and of itself support a denial of parole. (Lawrence, supra, 44 Cal.4th at p. 1214.) “[T]he relevant inquiry... is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.” (Lawrence, at p. 1221.) There must be a “rational nexus” between the evidence relied on and the inmate’s current dangerousness. (Lawrence, at p. 1210.) The rational nexus here, in the Governor’s view, was supplied by Oliveira’s lack of sufficient insight into the circumstances of, and failure to fully accept responsibility for, the crime (evidenced by his continued insistence that he was not the shooter) and by his unwillingness or inability to conform his conduct within the rules (evidenced by the counseling chrono he received in 2000). The Warden contends that these facts constituted “some evidence” that Oliveira continues to represent an unreasonable risk to public safety. We disagree.
1. Alleged Lack of Insight
The fact that a prisoner has not gained sufficient insight into the circumstances of the crime can be a proper basis for denying parole (Shaputis, supra, at pp. 1259-1260), but only if it is supported by some evidence on which the Governor is legally entitled to rely. (In reMcDonald (2010) 189 Cal.App.4th 1008, 1023 (McDonald) [“[t]hat evidence is lacking..., as the Governor cannot rely on the fact that the inmate insists on his innocence”].) Here, the only evidence the Governor cited was “[t]he fact that Oliveira still denies that he committed the shooting.” That cannot justify a conclusion that Oliveira lacks insight. (Ibid.; Palermo, supra, 171 Cal.App.4th at p. 1112; Pen. Code, § 5011, subd. (b).)
The Warden argues that by its plain language, Penal Code section 5011 “only applies when the Board sets a parole release date, not when the Board or Governor considers whether an inmate is suitable for parole.” He cites no authority for this proposition, and we find it unpersuasive.
The defendant in Palermo was convicted of second degree murder for shooting his girlfriend as she sat on the toilet in his apartment. (Palermo, supra, 171 Cal.App.4th at p. 1103.) According to his version of events, they were planning to go target shooting that day. Believing he had removed the bullets from his revolver, he “foolishly began to play ‘cowboy’ and dry fired the weapon twice” in the hall as he walked toward the open bathroom door, took aim, and fired the fatal shot. (Palermo, at pp. 1100-1101.) The defendant claimed the killing was the unintentional result of his foolish conduct. The People presented a different scenario, describing tension between the two after the victim moved out and offering expert testimony that it was highly unlikely, though not impossible, that a bullet would have remained in the gun if, as defendant claimed, he had properly unloaded it. (Palermo, at p. 1100.)
Palermo was sentenced to 15 years to life. (Palermo, supra, 171 Cal.App.4th at p. 1100.) Almost 20 years later, the Board found him unsuitable for parole, citing the nature of the commitment offense, his disciplinary history, and his lack of insight into his behavior. (Palermo, at p. 1101.) After unsuccessfully challenging that decision in the superior court, Palermo petitioned for habeas corpus relief in the Court of Appeal. The court granted the petition, holding that the Board abused its discretion in denying him a parole release date. (Palermo, supra, 171 Cal.App.4th at p. 1105.)
It was “readily apparent, ” the court noted, that the nature of the killing was the Board’s primary reason for denying parole. (Palermo, supra, 171 Cal.App.4th at p. 1109.) There was no rational nexus, however, between the nature of the crime and Palermo’s current dangerousness. His disciplinary history did not supply that nexus because he had been counseled only three times for minor misconduct during his entire incarceration. (Palermo, at p. 1110.)
Palermo’s continued insistence that the killing was unintentional, which the Board characterized as a lack of insight, was the only other evidence the Board cited. But that could not supply the necessary link because parole cannot be conditioned on an admission of guilt. (Palermo, supra, 171 Cal.App.4th at p. 1110; Pen. Code, § 5011, subd. (b).) The court noted that Palermo expressed remorse for taking the victim’s life, accepted full responsibility for the killing, and acknowledged that he deserved to be incarcerated for the crime.
The court distinguished the facts of the case before it from those in Shaputis and In re McClendon (2003) 113 Cal.App.4th 315 (McClendon), where similar claims were contradicted by “undisputed” and “overwhelming” evidence: “Here, in contrast..., [the] defendant’s version of the shooting was not physically impossible and did not strain credulity such that his denial of an intentional killing was delusional, dishonest, or irrational.” (Palermo, supra, 171 Cal.App.4th at pp. 1111-1112.) “Under these circumstances, ” the court concluded, Palermo’s “continuing insistence that the killing was the unintentional result of his foolish conduct (a claim which is not necessarily inconsistent with the evidence) does not support the Board’s finding that he remains a danger to public safety. [Citation.]” (Ibid.)
We find the Palermo court’s reasoning persuasive. Here as in Palermo, it is not “physically impossible” that Oliveira was not the shooter, nor does his claim “strain credulity.” (Palermo, supra, 171 Cal.App.4th at p. 1112.) Our review of the appellate decision confirms that Oliveira’s contention is “not necessarily inconsistent with the evidence.” (Palermo, at p. 1112.) The Governor relied on a sentence in the 1992 probation report that “[r]eportedly, everyone present saw that Oliveira had the gun, ” but the appellate decision’s detailed statement of facts does not support that broad statement. There was conflicting evidence at trial. Two of the 15 individuals who were directly involved that night claimed to have seen Oliveira fire the gun, ” but there was also “[e]vidence... that [both] had been drinking and that they looked ‘buzzed.’ ” Manuel Sanchez, one of the young men from Las Lomas, “testified... that he saw Oliveira reenter the Cabriolet and back it up a couple of feet before he heard the shot fired.” There was testimony from Francisco Martinez that “Oliveira had been running back toward the car when the shot went off, and Francisco never saw Oliveira with a gun.” There was testimony that codefendant Ancira, whom eyewitnesses placed next to Oliveira during the confrontation and under whose seat the gun was later found, had been heard to say during the drive to Hollister that “Stranger never misses” and “[W]hoever it falls on, be a man and take the rap.”
The Warden does not attempt to distinguish Palermo but claims instead that “the Palermo court misapplied the some-evidence test.” We disagree.
Testimony that may not have been before the jury but that was part of the record before the Board and the Governor also supported Oliveira’s refusal to admit that he was the shooter. As Oliveira’s counsel explained to the Board, Manuel Sanchez also “clearly testified on cross examination at the preliminary examination that... Oliveira was driving the car away when the shooting took place.” Additionally, a police report statement from Julian Loera, “taken before Mr. Sanchez testified, ” was “totally consistent... with the fact that [Oliveira] was not the shooter.” “Now the jury didn’t hear that because one of them took the Fifth Amendment against self-incrimination.”
Counsel explained that this and other evidence, including a “declaration of Mr. Gonzales” was before the Board because the trial court had, at defendant’s request, made it “part of the record that will go to the Department of Corrections.” Counsel told the Board that Gonzales corroborated Manuel Sanchez’s statement that Oliveira was driving the car when the shot was fired. Counsel also clarified that the statement to that effect (i.e., that Oliveira was not the shooter) in the 2008 psychological assessment came from “the sentencing transcript on page 6 and 7.” None of the referenced material is included in the record on appeal.
The fact that Oliveira’s claim is not necessarily inconsistent with the evidence distinguishes this case from the cases on which the Warden relies. This is not a case like Shaputis, where the prisoner’s claim that the murder of his wife was unintentional was flatly contradicted by evidence that the gun could not have been fired accidentally because it would not discharge unless the hammer was pulled back. (Shaputis, supra, 44 Cal.4th at p. 1248.)
Nor is this a case like In re Rozzo (2009) 172 Cal.App.4th 40 (Rozzo). Rozzo was convicted of second degree murder for the brutal torture killing of a black man. He acknowledged kidnapping and beating the victim, but denied participating in the killing despite “ample evidence” to the contrary in the record. (Rozzo, at p. 61.) He denied that the killing was racially motivated, and also denied that he harbored any racial animus, despite compelling evidence to the contrary, including his own admission, during a forensic psychological examination in 2005, “that he remembered saying, ‘[l]et me at that nigger, ’ while beating the victim.” (Id. at p. 63.) There was, moreover, “no evidence” that Rozzo had “engaged in effective therapy or rehabilitative programming that might have eliminated [his racial] animus, ” and the most recent evaluation did not even discuss his current attitudes toward race. (Rozzo, at pp. 62-63.) Considered in conjunction with the horrific nature of the crime, these circumstances constituted some evidence that Rozzo lacked insight into his criminal conduct and the racial hatred that motivated it and therefore remained currently dangerous. (Rozzo, at p. 63.)
Finally, this is not a case like In re Shippman (2010) 185 Cal.App.4th 446 (Shippman). Shippman pleaded guilty to the murder of his third wife in 1993 and was sentenced to 15 years to life. The Board found him unsuitable for parole in 2008, citing, among other reasons, his “apparent ignorance of the factors that ‘trigger’ his irrational need to control others, the behavior that led him to commit murder.” (Shippman, at p. 454.) Shippman had a “long history of unstable and abusive relationships with women, not just his commitment offense.” (Id. at 462.) Yet he denied that control was a factor in those relationships and denied incidents of abuse in his other marriages, although the evidence was to the contrary, as he ultimately had to admit. While he had completed an anger management course and a victim empathy program in prison, “the evidence [did] not reflect that [he] ha[d] fully committed himself to intensive rehabilitative efforts....” (Shippman, at p. 463.) His parole plans, moreover, were “ ‘marginal.’ ” (Id. at p. 464.) These circumstances constituted some evidence that Shippman lacked insight, remained currently dangerous, and was therefore unsuitable for parole.
Here, by contrast, there was no evidence that Oliveira lacked insight into the circumstances of the crime. Indeed, the record reflects that he was beginning to recognize, even before the life crime occurred, that his gang involvement was “ ‘ruining his life.’ ” In 1991, he told his probation officer that he “no longer want[ed] to be involved in ‘gang banging’ and realize[d] that it [wa]s up to him to change.”
The 1992 probation report references a letter Oliveira wrote before sentencing, which “lament[ed]... the choice he made to involve himself in a youth gang....” The 1997 psychological assessment described his “growing weariness” with the difficulty his gang involvement was causing him. He told the psychologist he had made a commitment, when police pulled him over as he drove away from the crime scene, to change his life. The psychologist concluded that he “appear[ed] sincere in his commitment to halt all gang affiliations.”
Oliveira’s subsequent actions confirmed his commitment to change. He became “an open gang drop out after his incarceration” and has been “strongly active” in CGA “for more than a decade.” The record reflects, as the Board noted, that his life “has indeed changed enormously.” Considered in the context of the entire record, Oliveira’s insistence that he was not the shooter is not some evidence that he remains a danger to society.
2. Alleged Inability to Conform Conduct to Society’s Rules
Citing Oliveira’s 2000 counseling chrono, the Governor stated that “[t]he fact that [he] so recently engaged in misconduct demonstrates that he is still experiencing difficulty in conforming his conduct to the rules of society.” We cannot agree.
“[S]erious misconduct while in prison” is a circumstance tending to show unsuitability for parole. (Regs., § 2402, subd. (c)(6).) Minor misconduct, such as the conduct the Governor relied on here, although not an enumerated unsuitability factor, may also be considered in determining suitability for parole. (In re Reed (2009) 171 Cal.App.4th 1071, 1084 (Reed).) In Reed, the court rejected a challenge to the Board’s denial of parole based on the prisoner’s recent receipt of a counseling chrono. It did so, however, on very different facts than are presented here. During Reed’s 20 years of incarceration, he had been disciplined 11 times for serious misconduct and counseled 19 times for minor misconduct. (Reed, at p. 1079.) At his 2005 parole hearing, the Board cautioned him “in the most direct terms” that he had to “ ‘remain disciplinary free, not even a 128.’ ” (Id. at p. 1084.) Shortly thereafter, Reed received another counseling chrono, and the Board relied on that instance of minor misconduct to deny parole at his 2006 parole hearing. (Id. at p. 1085.)
Denying Reed’s petition for a writ of habeas corpus, the Court of Appeal reasoned that his “inability to follow an express direction to comply with the rules of the institution” provided “some current evidence” that, when released, Reed would be unable to follow society’s laws. (Reed, supra, 171 Cal.App.4th at p. 1085.) “First, the misconduct violated a specific directive from the Board, given only two months before. Second, it occurred close in time to the Board’s decision in 2006 to deny parole; that is, the incident was not stale. Finally, it was not an isolated incident; instead, it was part of an extensive history of institutional misconduct, including 11 CDC 115’s and 19 CDC 128-A’s. In evaluating the significance of the April 2005 CDC 128-A as an indicator of his ability, post[-]release, to obey the criminal law and the conditions of his parole, the Board appropriately considered this history of misbehavior.” (Reed, at p. 1085.)
Here, unlike in Reed, there was no violation of a specific Board directive to avoid even a counseling chrono. Also unlike in Reed, the misconduct here was not recent, having occurred nine years before Oliveira’s parole consideration hearing. The misconduct here was, moreover, a relatively isolated incident. Incarcerated almost as long as Reed was, Oliveira has never been disciplined for serious misconduct, and he has received only three counseling chronos, all for minor and entirely non-violent conduct. The Warden’s reliance on Reed is misplaced. That case does not support the Governor’s assertion that Oliveira’s 2000 misconduct was “recent” or his claim that Oliveira “is still experiencing difficulty in conforming his conduct to the rules of society.” (Italics added.)
Lawrence rather than Reed is on point here. In Lawrence, the Governor’s reversal of the Board’s grant of parole noted that “ ‘since her incarceration, while petitioner has been counseled eight times for misconduct, including as recently as 2005 [the same year the Board granted her parole], she has avoided any disciplinary actions.’ ” (Lawrence, supra, 44 Cal.4th at p. 1224.) It was unclear, the court said, whether the Governor had relied on her minor misconduct to justify his reversal of the Board’s decision, “but in any event, the record indicates that petitioner was counseled when she was late to a class or other appointment. Nothing in the record supports a conclusion that petitioner poses a threat to public safety because she was occasionally late to appointments or job assignments during her almost 24 years of incarceration.” (Lawrence, at p. 1224.)
The same can be said here. We find nothing in the record to support a conclusion that Oliveira poses a current threat to public safety because he hung something to dry on his bunk in 2000. The misconduct he was counseled for in 2000 is not some evidence that he poses a current danger to society.
3. No Basis for Remand to the Governor
Since the Governor’s reversal of the Board’s parole grant is not supported by some evidence, it cannot be upheld. The Warden contends that we should afford the Governor another opportunity to evaluate Oliveira’s suitability for parole. We disagree.
The Warden cites no new evidence or any other basis for upholding the Governor’s reversal of the Board’s decision. We have previously rejected the contention that a remand to the Governor is appropriate under such circumstances, explaining that since we had reviewed the materials the Board had before it and found no evidence to support a decision other than the one the Board reached, a remand to the Governor would amount to an idle act. (In re Dannenberg (2009) 173 Cal.App.4th 237, 256-257 (Dannenberg II).) Other California Courts of Appeal have reached the same conclusion. (See, e.g., In re Vasquez (2009) 170 Cal.App.4th 370, 386 [“Our review indicates that the record does not contain some evidence to support the Governor’s decision and further consideration by the Governor will not change that fact”]; In re Aguilar (2008) 168 Cal.App.4th 1479, 1491.) The proper remedy in such cases “is to vacate the Governor’s decision and to reinstate that of the Board.” (In re Burdan (2008) 169 Cal.App.4th 18, 39, citing Lawrence, supra, 44 Cal.4th at pp. 1190, 1229.)
The Warden urges us to reconsider our decision in Dannenberg II in light of the California Supreme Court’s decision in In re Prather (2010) 50 Cal.4th 238 (Prather), which he contends supports his argument that the superior court’s order violated the separation-of-powers doctrine. The Warden’s reliance on Prather is misplaced. In that case, thecourt addressed what action a reviewing court that has granted a prisoner’s habeas corpus petition can direct the Board to take. (Prather, at p. 243.) The court concluded that “it is improper for a reviewing court to direct the Board to reach a particular result or to consider only a limited category of evidence in making a suitability determination.” (Prather, at p. 253, italics added.) “A reviewing court may not-consistent with the principles embodied in the separation-of-powers doctrine-impair the exercise of [the Board’s] discretion by placing improper limits upon the Board’s review of a prisoner’s record.” (Prather, at pp. 256-257.)
Here, unlike in Prather, we do not direct the Board to do anything. Instead, “we reinstate an earlier executive branch decision-made by the Board-overturning only the ‘veto’ of that decision by the Governor. [Citation.] The power of the executive branch is, in this instance, not infringed, but respected.” (McDonald, supra, 189 Cal.App.4th at p. 1024; accord, In re Gomez (2010) 190 Cal.App.4th 1291, 1310-1311.)
The Warden argues that “assuming some evidence does not support the Governor’s decision, Oliveira is only entitled to a procedural correction, not the substantive right to release.” All but one of the cases the Warden relies on addressed errors in proceedings before the Board. Those cases have no application here.
In In re Ross (2009) 170 Cal.App.4th 1490 (Ross), a prisoner challenged the Governor’s decision to reverse the Board’s grant of parole, but that case does not advance the Warden’s position. In Ross, the superior court denied the prisoner’s habeas corpus petition, finding some evidence in the record to support the Governor’s decision. The prisoner then sought a writ of habeas corpus in the Court of Appeal and, while that petition was pending, the California Supreme Court decided Lawrence and Shaputis. Applying the standard newly-articulated in Lawrence, the Court of Appeal agreed with the trial court that the Governor’s decision to reverse the Board’s grant of parole was supported by some evidence in the record. (Ross, at p. 1510.) The appellate court concluded, however, that the Governor’s “written decision [was] flawed because it [did] not contain an explicit ‘articulation of a rational nexus between th[e] facts and current dangerousness.’ ” (Ross, at p. 1513, quoting Lawrence, supra, 44 Cal.4th at p. 1227.) “We cannot fault the Governor for not being more specific, ” the court explained, “[b]ecause Lawrence requires more of an explanation than did... the controlling law when the Governor made the parole decision in this case.” (Ross, at p. 1498.) The court concluded that the appropriate disposition was a remand to the Governor “for further proceedings consistent with the standards articulated in Lawrence....” (Ross, at pp. 1498, 1515.) Here, by contrast, we are presented with an entirely different situation. The standard articulated in Lawrence is no longer new, and unlike in Ross, there is no evidenceto support the Governor’s decision. Here, a remand to the Governor would amount to an idle act. (Dannenberg II, supra, 173 Cal.App.4th at pp. 256-257.)
V. Disposition
The superior court’s order is affirmed.
WE CONCUR: Elia, Acting P. J., Grover, J.
Judge of the Superior Court of Monterey County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.