Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of San Diego County Ct. No. HC14912, Richard S. Whitney, Judge. Affirmed.
McDONALD, J.
Gloria Olson was sentenced in 1979 to concurrent 25-year-to-life sentences after a jury found her guilty of two counts of first degree murder. Olson, now 64 years old, has been imprisoned for 30 years. After several unsuccessful parole hearings, the Board of Parole Hearings (BPH) found her suitable for parole at her 2008 suitability hearing because it concluded Olson did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger (the Governor) reversed the BPH's decision, finding Olson posed an unreasonable risk of danger to society if released. Olson successfully petitioned the trial court for writ of habeas corpus. The warden of California Institute for Women (the People) appeals the trial court's grant of Olson's petition for a writ of habeas corpus, arguing the Governor's decision was supported by some evidence and therefore must upheld. We conclude, following the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), the Governor's decision was not supported by some evidence, and we therefore affirm the trial court's judgment.
FACTS
A. The Commitment Offenses
On November 2, 1977, Olson (then age 31) shot and killed Ms. Leonie Fuesler. Olson was a patron of Fuesler's wig store and had an appointment to meet Fuesler that day. Fuesler was shot once in the back of the head, and there was some evidence she had been strangled. One year later, Olson shot and killed Mr. Charles Brown. Brown was shot twice in the back of the head with the same pistol used to kill Fuesler.
The following day, a deliveryman found Fuesler's body on the floor of the wig store. Fuesler's purse, diamond rings and credit cards were missing. The Governor concluded Olson took this property, but there was no evidence the missing items were ever found in her possession or that she used the credit cards.
B. Olson's Performance in Prison
Olson remained discipline free during 30 years in prison. In addition to this unblemished discipline record, she furthered her vocational training in numerous training programs, became involved in Alcoholics Anonymous and other self-help programs, and consistently received praise from prison staff. Her most recent psychological reports have favored release and concluded her potential for violence was low.
C. Other Suitability Factors
Olson had no prior criminal record. She has developed marketable skills, and has realistic parole plans and available support on her release from family members and third parties. At the time of the murders, Olson was suffering from significant mental health and substance abuse problems. Olson's mental health issues were so severe that shortly after she was sent to prison she was transferred to the prison mental hospital because she was delusional, experiencing auditory hallucinations, and was having seizures related to an organic brain disorder. She remained there for six years on multiple medications before being reintegrated into the prison population. However, she has not required additional treatment from the prison's psychiatric unit since that time.
II
HISTORY OF PROCEEDINGS
A. The BPH Proceedings
Olson's minimum eligible parole date was in 1994. Although Olson apparently had several hearings before the BPH during the ensuing 14 years, the BPH found her unsuitable for parole at each of the prior hearings.
However, at her 2008 parole hearing, the BPH concluded Olson was suitable for parole. It considered Olson's testimony at the hearing, as well as the written reports. The BPH relied on her discipline-free prison record, the absence of any prior criminal record, her maturation and conduct during the previous 29 years, her realistic parole plans and marketable skills, her remorse and insight into her behavior, the mental health issues operative at the time of the offenses but well controlled without the use of medications during the last 22 years, and the opinions of the psychologists supportive of release to conclude she did not pose an unreasonable risk of danger to society if released on parole.
In June 2008 Governor Arnold Schwarzenegger reversed the BPH's decision because he found Olson did pose an unreasonable risk of danger to society if released. The reason given for this finding was that the crimes were especially atrocious because they involved multiple murders with trivial motives. Governor Schwarzenegger also concluded Olson had not accepted responsibility for her crimes, her version of the events had changed over time, and her more recent explanations of the circumstances of the crimes may have been an attempt to satisfy prior concerns about her motivations for the crimes rather than sincere acceptance of responsibility. Because the Governor concluded the gravity of the murders and her failure to accept full responsibility outweighed the positive factors, he concluded Olson's release would pose an unreasonable risk of danger to society at this time.
The Habeas Proceedings
Olson petitioned the San Diego County Superior Court for a writ of habeas corpus, alleging Governor Schwarzenegger's reversal of the BPH's decision violated her due process rights because the Governor's unsuitability determination was not supported by the evidence and was arbitrary and capricious. The trial court issued an order to show cause, and specifically stated the Governor's primary reliance on the atrociousness of the crime was alone insufficient to support the decision, and that the only other stated reasons (her mental health status at the time of the offenses and her attitude toward her crimes) contained no articulation of how those facts supported the conclusion that Olson continued to pose an unreasonable risk to public safety. After the People filed their return, the trial court ruled that (1) neither the Governor's original decision nor the return to the order to show cause clarified how Olson's mental disabilities at the time of the offenses supported the conclusion that she currently remained an unreasonable risk to public safety, and (2) neither the original decision nor the return to the order to show cause contained any rational articulation of why the Governor concluded (from the fact that Olson's explanation of what motivated her actions has evolved since her incarceration) Olson continued to pose an unreasonable risk to public safety. Accordingly, the court found the Governor's decision was not supported by some evidence, and therefore reversed the Governor's decision and reinstated the BPH's grant of parole. The People timely appealed the trial court's judgment.
III
LEGAL STANDARDS
A. The Parole Decision
The decision to grant parole is a subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a number of factors, some objective, identified in Penal Code section 3041 and the BPH's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) The Governor's decision to affirm, modify, or reverse the decision of the BPH rests on the same factors that guide the BPH's decision (Cal Const., art. V, § 8(b)), and is based on "materials provided by the parole authority." (§ 3041.2, subd. (a).) "Although these provisions contemplate that the Governor will undertake an independent, de novo review of the prisoner's suitability for parole, the Governor's review is limited to the same considerations that inform the Board's decision." (Rosenkrantz, at pp. 660-661.)
In making the suitability determination, the BPH and Governor must consider "[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b); hereafter, reference to § 2042 refers to the regulations), including the nature of the commitment offense; behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude toward the crime; and parole plans. (§ 2402, subd. (b).) The circumstances tending to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel manner, (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (§ 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (Id. at subd. (b).)
Factors supporting the finding that the crime was committed "in an especially heinous, atrocious or cruel manner" (§ 2402, subd. (c)(1)), include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.
Circumstances tending to show suitability for parole include that the inmate: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use on release; and (9) has engaged in institutional activities that evidence an enhanced ability to function within the law upon release. (§ 2402, subd. (d).)
These criteria are "general guidelines," illustrative rather than exclusive, and "the importance attached to [any] circumstance [or combination of circumstances in a particular case] is left to the judgment of the [BPH]." (Rosenkrantz, supra, 29 Cal.4th at p. 679; § 2402, subds. (c), (d).) Thus, the endeavor is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, at p. 655.) Because parole unsuitability factors need be found only by a preponderance of the evidence, the Governor may consider facts apart from those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.)
B. Standard for Judicial Review of Parole Decisions
In Rosenkrantz, the California Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch. The court first held that "the judicial branch is authorized to review the factual basis of a decision of the [BPH] denying parole... to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the [BPH] supports the decision to deny parole, based on the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) Rosenkrantz held the same standards of review are applicable when a court reviews a Governor's decision reversing the BPH. (Id. at pp. 658-667.)
In Lawrence, the Supreme Court noted its decisions in Rosenkrantz and In re Dannenberg (2005) 34 Cal.4th 1061, and specifically Rosenkrantz's characterization of the "some evidence" as extremely deferential and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, 29 Cal.4th at p. 667), had generated confusion and disagreement among the lower courts "regarding the precise contours of the 'some evidence' standard." (Lawrence, supra, 44 Cal.4th at p. 1206.) Lawrence explained some courts interpreted Rosenkrantz as limiting the judiciary to reviewing whether "some evidence" exists to support an unsuitability factor cited by the BPH or Governor, but other courts interpreted Rosenkrantz as requiring the judiciary to instead review whether "some evidence" exists to support "the core determination required by the statute before parole can be denied--that an inmate's release will unreasonably endanger public safety." (Lawrence, supra, 44 Cal.4th at pp. 1207-1209.)
The Lawrence court, recognizing the legislative scheme contemplates "an assessment of an inmate's current dangerousness" (Lawrence, supra, 44 Cal.4th at p. 1205), resolved the conflict among the lower courts by clarifying that the analysis required when reviewing a decision relating to a prisoner's current suitability for parole 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." (Id. at p. 1212.) Lawrence clarified that the standard for judicial review, although "unquestionably deferential, [is] certainly... 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." (Id. at p. 1210, italics added.) Indeed, it is Lawrence's numerous iterations (and variants) of the requirement of a "rational nexus" between the facts underlying the unsuitability factor and the conclusion of current dangerousness that appears to form the crux of, and provide the teeth for, the standards adopted in Lawrence to clarify and illuminate "the precise contours of the 'some evidence' standard." (Id. at p. 1206.)
The implementation of a "rational nexus" standard finds confirmation in Lawrence's numerous references to that standard or to functional equivalents of that standard. For example, in at least two other places in the opinion, Lawrence reiterated the requirement that there be a "rational nexus" between the facts relied on by the Governor and the conclusion of current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1213 [suggesting court applied inappropriate standard when it affirmed denial of parole "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"] & p. 1227 ["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"].) Additionally, other critical passages in Lawrence reinforce the requirement of some rational connection between the facts relied on and the conclusion of dangerousness. (See, e.g., p. 1211 ["If simply pointing to the existence of an unsuitability factor and then acknowledging the existence of suitability factors were sufficient to establish that a parole decision was not arbitrary, and that it was supported by 'some evidence,' a reviewing court would be forced to affirm any denial-of-parole decision linked to the mere existence of certain facts in the record, even if those facts have no bearing on the paramount statutory inquiry"], italics added.)
Indeed, Lawrence's "rational nexus" requirement is echoed by its repeated references to a slightly different variant of that concept: whether the factor relied on by the Governor is probative of current dangerousness. (See, e.g., Lawrence, supra, 44 Cal.4th at p. 1212 [factors will "establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger"], p. 1214 ["the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety"], & p. 1221 [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"].) Because evidence is "probative" only when it has "some tendency in reason to prove" the proposition for which it is offered (see, e.g., People v. Hill (1992) 3 Cal.App.4th 16, 29, disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5), the Lawrence court appears to have employed the terms "rational nexus" and "probative" interchangeably.
After clarifying the applicable standard of review, Lawrence then turned to and specifically addressed how one "unsuitability" factor--whether the prisoner's commitment offense was done in a particularly heinous, atrocious, or cruel manner--can affect the parole suitability determination, and whether the existence of some evidence supporting the Governor's finding the offense was particularly heinous, atrocious, or cruel is alone sufficient to deny parole. Lawrence concluded that when there has been a lengthy passage of time, the Governor may continue to rely on the nature of the commitment offense as a basis to deny parole only when there are other facts in the record, including the prisoner's history before and after the offense or the prisoner's current demeanor and mental state, that provide a rational nexus for concluding an offense of ancient vintage continues to be predictive of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221.)
IV
ANALYSIS
A. Analysis of Merits
The People do not dispute that the evidence on the relevant suitability factors, as well as the only evidence on most of the unsuitability factors, uniformly militated in favor of finding Olson suitable for parole. In this evidentiary context, the Governor nevertheless found Olson was unsuitable based primarily on the Governor's conclusion that the commitment crimes showed Olson remained a danger to society if released on parole. Because we are charged with the obligation to ensure the Governor's decision comports with the requirements of due process of law, and we can discharge that obligation only if we are satisfied there is some evidence in the record before the Governor providing a rational nexus between the evidence and the conclusion of current dangerousness (Lawrence, supra, 44 Cal.4th at pp. 1211-1212), we examine the articulated grounds to determine if some evidence supports the Governor's decision.
In the present case, although the Governor alluded to other possible grounds for denying Olson parole, he expressly relied principally on the nature of Olson's commitment offenses to justify his decision because the Governor ruled, in language closely paralleling his decision in Lawrence (Lawrence, supra, 44 Cal.4th at p. 1222) that "the gravity of these crimes alone would be sufficient for me to conclude presently that [Olson's release from prison] would pose an unreasonable risk to public safety." Although the Governor's finding regarding current dangerousness principally relied on the circumstances of Olson's crime, he did allude to other factors in his decision. Accordingly, and again paraphrasing Lawrence, "[b]efore evaluating the Governor's reliance upon the gravity of the commitment offense, we first consider his discussion of facts not related to the circumstances of the commitment offense" (ibid.) mentioned in the Governor's decision reversing the BPH's grant of parole to Olson.
Prior Mental Health Evaluations
The People assert the Governor properly relied on Olson's mental health evaluations conducted in 1999, 2001 and 2004 to conclude that, by 2008, Olson still posed a current danger to society notwithstanding the more current psychological examinations conducted in 2005 and 2007 that reached the opposite conclusion. We conclude Olson's prior psychological examinations do not, by themselves, provide some evidence to support the Governor's conclusion that Olson posed a current danger to society in 2008.
First, although the Governor made repeated references to the earlier evaluations, he did not conclude Olson remained dangerous as of 2008 based on an express reliance on these earlier evaluators' opinions that Olson remained a danger to society as of the dates of those evaluations. Indeed, those evaluations would not provide some evidentiary support for that conclusion, because (1) the 1999 evaluator concluded she posed a relatively low risk of violence if her needs were met, (2) that evaluator reiterated (in his 2001 evaluation) that it was doubtful she would return to her previous lifestyle of predatory behavior if released to the community, and (3) the 2004 evaluator merely concluded he was "unable to assess [Olson's] level of dangerousness" if she were paroled.
Second, even assuming the earlier reports had expressed concerns over Olson's dangerousness, the more recent 2005 and 2008 evaluations concluded that by the time of her 2008 parole hearing her release would not "unreasonably endanger public safety." (Lawrence, supra, 44 Cal.4th at pp. 1207-1209.) The 2005 evaluation concluded that as long as Olson maintained her sobriety and received social support, she would be likely to remain stable in the community. The most recent assessments, conducted in 2008, concluded that under either of two empirically-based assessment guides (the "Psychopathy Check List-Revised" and the "History-Clinical-Risk-20") her risk of recidivism was either "very low" or "low." In Lawrence, the court concluded the evidentiary value of earlier unsupportive psychological evaluations were undermined and became "stale" when more recent psychological assessments were positive. (Lawrence, at pp. 1223-1224.) In In re Aguilar (2008) 168 Cal.App.4th 1479, the court (relying on Lawrence's analysis) rejected the Governor's argument that more current positive psychological assessments could be disregarded in favor of a four-year-old negative assessment, stating that "[w]here, as here, a stale negative psychological evaluation is superseded by subsequent positive evaluations, the previous negative evaluation does not constitute evidence that the inmate poses a current danger to the public." (Id. at p. 1490.) The court in In re Gaul (2009) 170 Cal.App.4th 20, relying on Lawrence, reached a similar conclusion. (Id at pp. 38-39 [where more recent psychological assessments found low risk and were accepted as valid by the BPH, subsequent contrary finding based on earlier assessments lacks any evidentiary support].) We conclude that, even to the extent the Governor intended to rely on concerns of potential dangerousness contained in the earlier assessments, the fact the evaluators may have had reservations about Olson's stability as of 1999, 2001 or 2004 was too stale to provide evidentiary support for rejecting the more recent evaluators' conclusions (accepted as valid by the BPH) that, by 2008, her release did not pose an unreasonable risk to public safety.
Failure to Accept Responsibility
The Governor's conclusion that Olson posed an unreasonable risk to public safety if released on parole also stated it was based in part on his "question whether Ms. Olson accepts full responsibility for her actions." Although the underlying rationale for this conclusion is somewhat unclear, the Governor's finding appears to be premised on Olson's statements during the past 15 years about the circumstances of the crimes. Specifically, the Governor cited Olson's admission to the 2005 psychologist that she was unable to "really make any sense" out of the fact that, although she killed her first victim with a single shot in the back of the head, there was also some evidence the victim had been strangled. The Governor also chronicled Olson's varying attempts over the years to provide rational explanations for why she killed the first victim, and her varying attempts over the years to provide rational explanations for why she killed the second victim, to conclude she had not accepted responsibility for the crimes.
On appeal, the People assert the Governor's conclusion of dangerousness can be upheld because he found Olson "lacked insight" into the crimes. (See Shaputis, supra, 44 Cal.4th at p. 1261.) To the extent this claim merely reformulates the Governor's finding that Olson did not "accept full responsibility" for her conduct, our examination of that finding fully encompasses that factor and we need not separately address the "lack of insight" argument. However, to the extent the People argue "lack of insight" is a distinct basis for the Governor's decision, that factor was neither mentioned in the Governor's decision nor raised in the trial court below. "[I]t [is] inappropriate for courts to salvage the [decision maker's] inadequate findings by inferring factors that might have been relied upon... [and we therefore] 'confine our review to the stated factors found by the [decision maker]..., not to findings that the Attorney General... suggests the [decision maker] might have made.' [Citation.]" (In re Roderick (2007) 154 Cal.App.4th 242, 265.)
However, both the 2005 evaluator and the 2008 evaluator agreed Olson (1) was remorseful and (2) did recognize and accept both that her crimes were inexcusable and that she was solely at fault. Moreover, the evidence was clear (and indeed the Governor found) that Olson suffered from severe mental problems prior to and for many years after the murders. Although the facts relied on by the Governor (e.g., Olson's inability to provide a consistent reconstruction of the mindset operable when she was suffering severe mental problems) are supported by the record, his decision contains no explanation providing a rational nexus (see Lawrence, supra, 44 Cal.4th at p. 1210) between those facts and the conclusion that she remained a danger to society because she had not accepted responsibility for her actions.
There appears to be some tension in the statutory scheme on the proper role of an inmate's "failure to accept responsibility" in granting or denying parole because, although an inmate's "attitude toward the crime" is a proper consideration (§ 2402, subd. (b)), his or her failure to admit guilt is not alone sufficient to deny parole. (Pen. Code, § 5011, subd. (b).) However, we believe Lawrence provides the appropriate guidance for resolving this tension, because Lawrence teaches there must be a rational nexus between the facts found and the conclusion of dangerousness. The Governor's decision contains no explication of how Olson's inability to consistently articulate what motivated her actions (given that those actions occurred during a time she was concededly operating with less than normal mental acuity) renders her currently dangerous.
In this case, although Olson provided varying descriptions of her subjective responses and impulses leading to the killings, as well as to her perceptions of what conduct by the victims precipitated her irrational decisions, she has consistently acknowledged that she was responsible for violently ending the lives of two persons. The Governor's decision identifies no rational nexus between the facts found and the conclusion that she posed an unreasonable risk to public safety if released on parole.
For this reason, the People's reliance on In re Van Houten (2004) 116 Cal.App.4th 339 and In re Smith (2009) 171 Cal.App.4th 1631 is unavailing. In Van Houten, current dangerousness was based in part on some evidence the inmate continued to subjectively believe she was only a bystander without significant guilt of the murders, and the Van Houten court concluded such evidence (when coupled with her recent decision to halt participation in therapeutic groups) suggested she remained in need of additional progress. (Van Houten, at pp. 354-356.) In Smith, the inmate also insisted she was only a bystander without significant guilt and was remorseful only insofar as she did not prevent the actual perpetrator from killing the victim. (Smith, at p. 1638.) The Smith court concluded that, because there was evidence the inmate had in fact been an active and central participant in beating the victim and inflicting the fatal injuries, her absence of remorse for her conduct and her attempt to deflect all responsibility to others provided some evidence she remained a danger of reoffending. (Id. at pp. 1638-1639.) In contrast, the Governor did not question the sincerity of Olson's remorsefulness, and Olson has not claimed she was a peripheral participant with minimal responsibility for the deaths. Accordingly, neither Van Houten nor Smith support the Governor's decision here.
Circumstances of the Offense
The only remaining ground for finding Olson posed an unreasonable risk of danger to society was that the crimes were especially aggravated because they involved multiple victims and trivial motives. We acknowledge, as did Lawrence (Lawrence, supra, 44 Cal.4th at p. 1224), these facts support the Governor's finding that the commitment offenses were "atrocious," and therefore the crime arguably was more heinous, atrocious, or cruel than the minimum elements for first degree murder, but:
"As noted above,... few murders do not involve attendant facts that support such a conclusion. As further noted above, the mere existence of a regulatory factor establishing unsuitability does not necessarily constitute 'some evidence' that the parolee's release unreasonably endangers public safety. [Citation.] Accordingly, even as we acknowledge that some evidence in the record supports the Governor's conclusion regarding the gravity of the commitment offense, we conclude there does not exist some evidence supporting the conclusion that petitioner continues to pose a threat to public safety." (Lawrence, at p. 1225.)
Here, as in Lawrence, the BPH found the factors listed in the regulations supporting suitability for release on parole militated in favor of granting parole. As in Lawrence, the BPH recognized Olson's long-standing involvement in self-help, vocational, and educational programs, her insight into the circumstances of the offense and acceptance of responsibility and remorse, and her realistic parole plans. As in Lawrence, Olson had no prior criminal record of violent crimes or assaultive behavior or any juvenile record. (Lawrence, supra, 44 Cal.4th at p. 1225.) As in Lawrence, Olson's current psychological examinations had been positive for the preceding four years, and concluded she presented no unusual danger to public safety should she be released. As in Lawrence, Olson had been free of serious misconduct for nearly three decades of incarceration, and exhibited exemplary efforts toward rehabilitative programming. Finally, as in Lawrence, the BPH found no evidence establishing the existence of any other statutory factor, apart from the commitment offense, suggesting she was unsuitable for parole. (Id. at pp. 1225-1226.)
The People argue that the Governor found, contrary to the BPH's finding, Olson was unsuitable for parole because of the circumstances of the crimes. However, as Lawrence explained (Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221) and Shaputis echoed (Shaputis, supra, 44 Cal.4th at pp. 1254-1255), when there has been a lengthy passage of time, the Governor may continue to rely on the nature of the commitment offense as a basis to deny parole only when there are other facts in the record, including the prisoner's history after the offense or the prisoner's current demeanor and mental state, that provide a rational nexus for concluding an offense of ancient vintage continues to be predictive of current dangerousness. In Shaputis, the court expressly stated the commitment offense remained predictive because "the record... demonstrates... petitioner still claims the shooting was an accident." (Id. at p. 1260.) Thus, Shaputis found some evidence of current dangerousness existed when the commitment offense was considered in light of the petitioner's current attempt to deny or minimize responsibility for the crime.
Here, contrary to the suggestion in the Governor's decision that Olson has not accepted responsibility, we have concluded there is no evidence in the record supporting a conclusion Olson currently lacks remorse for or is deflecting responsibility for her crimes. To the contrary, the evidence before the BPH (which it credited) was that Olson did accept responsibility and show remorse for the crimes.
Olson expressly told the BPH that "I am so very sorry I've devastated these victims' families. I wish I could undo my actions. We all know some of the reasons that contribute[d] to my crime, for which I take full and complete responsibility...."
Here, a significant period of time (nearly 30 years) passed between the crime and the parole hearing. The evidence is also uncontroverted that Olson committed no other violent offense, either before being incarcerated or during her 30 years of incarceration. Indeed, during her incarceration, she did not commit a single infraction of prison rules that might have suggested any lingering inability to conform her behavior to the requirements of society. Instead, there is uncontroverted evidence of Olson's rehabilitative efforts while incarcerated, including a longstanding commitment to sobriety to obviate a principal causative factor in her mental instability that led to violence.
The trial court and the BPH concluded, and we agree, that given the lengthy passage of time and the gains made by Olson in prison, her pre-1980 crimes do not provide some evidence to support the conclusion she remains a danger today, the primary basis articulated in the Governor's decision for concluding Olson remains dangerous. Under these circumstances, we adhere to our Supreme Court's instruction in cases like the present one that, although:
"Our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. [Citation.] This does not mean... 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. [¶] 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." (Lawrence, supra, 44 Cal.4th at pp. 1226-1227.)
Conclusion
We conclude, under the standards adopted by Lawrence and the application of those standards to facts substantively similar to the facts in Lawrence, the Governor's decision is not supported by some evidence and therefore violated Olson's due process rights.
B. Analysis of Proper Disposition
The People assert that, even if the Governor's decision lacks evidentiary support, the appropriate remedy is not to order Olson released on parole, but instead remand to the Governor to permit him to consider other evidence that might support a finding Olson was unsuitable for parole.
However, it appears from the record that the Governor considered the entirety of the evidence before him, and fully articulated all of the reasons supporting his conclusion Olson was unsuitable for parole in compliance with Penal Code section 3041.2, subdivision (b), and we have concluded those reasons do not support the ruling. Under these circumstances, we believe the court's approach in In re Gaul, supra, 170 Cal.App.4th 20 is appropriate. The Gaul court, confronting a closely analogous question of the appropriate remedy, began by noting that in Rosenkrantz, supra, 29 Cal.4th 616, our Supreme Court stated " '[i]f 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.' [Quoting Rosenkrantz, supra, at p. 658.]" (Gaul, at p. 39.) However, Gaul then reasoned that when a reviewing court concludes no evidence supporting current dangerousness exists, "vacating the denial of parole and directing the Board to conduct a new hearing on the same record would be a meaningless exercise." (Gaul, at p. 39; accord, In re Smith (2003) 109 Cal.App.4th 489, 507 [affirming order granting petition for writ of habeas corpus and declining to remand to Governor because it "would amount to an idle act"]; In re Gray (2007) 151 Cal.App.4th 379, 411 [same].)
Gaul then sought guidance by examining the Supreme Court's disposition in Lawrence, stating:
"Indeed, after [the Court of Appeal] grant[ed] Sandra Lawrence's petition for writ of habeas corpus, [the Court of Appeal] ordered 'she be released forthwith,' notwithstanding the Attorney General's argument the matter should be returned to the Governor to permit him to determine whether some other basis existed for denying Lawrence parole. The Supreme Court affirmed 'the judgment of the Court of Appeal.' (Lawrence, supra, 44 Cal.4th at p. 1229.) Although Lawrence involved the denial of parole by the Governor,... we understand the Supreme Court's affirmance of [the] judgment to mean [that] when the reviewing court has determined there is no evidence in the record that would support the denial of parole, there is no reason to order the Board to conduct any further hearing on the matter, at least in the absence of some new evidence about the inmate's post-hearing conduct. [Citations.]" (In re Gaul, supra, 170 Cal.App.4th at p. 40.)
Thus, Gaul construed the analysis and disposition in Lawrence as permitting the dispositional order to require the BPH to immediately grant parole to the prisoner when the appellate court concludes, as have we, that the Governor's reversal of the BPH's order granting parole lacked evidentiary support. The People have cited no post-Lawrence authority undermining Gaul, and we therefore agree with Olson that the proper dispositional order, ordered by the trial court below, is to require the BPH to immediately grant parole to Olson.
DISPOSITION
The order of the trial court is affirmed.
I CONCUR: NARES, J., BENKE, J., dissenting.
I dissent.
I would reverse the trial court's decision to release Gloria Olson. Unlike my colleagues, I do not find Governor Arnold Schwarzenegger's concerns or his rationale "unclear." (Majority opn., p. 15.) The multiple, bizarre, explanations Olson has offered, one as recently as 2007, make crystal clear that she does not understand why she committed two execution-style murders a year apart. It requires no complex academic analysis to realize that without such understanding, Olson may, despite her apology and acknowledgement of culpability, remain a danger to society. I briefly summarize her explanations.
At trial, Olson denied any role in murdering either victim. Olson later said she shot Leonie Fuesler, a beauty salon operator, because "She charged me full price," and "I got angry because I had been a good customer for her for years." Olson explained she killed Charles Brown because he wanted her to be a prostitute.
In 1982 Olson told the life prisoner evaluator (evaluator) that she did not remember anything about the offense nor did she want to remember anything.
In 1988 Olson told the evaluator she murdered Brown because on the night before the murder he laughed at her when a "big black man" raped her. She admitted in 2005, however, that the story about the rape was "a lie" and she knew it was a lie.
In 1994 she again changed the story about why she killed Brown, stating he upset her because he offered another woman $100 for sex. She said she shot him after he passed out. She explained in 1994 that she killed Fuesler because the woman demanded cash for a wig and would not accept Olson's check.
In 2005 Olson told the Board of Parole Hearings (the Board) that she felt angry and rejected and shot the two victims because she "exploded."
In 2007 she explained that prior to the two murders she felt like a "bomb exploded" in her head and she felt threatened and under attack. As to Fuesler, Olson said she believed self-defense was necessary.
The Governor's decision to deny parole was based on the aforementioned inconsistent explanations. Significantly, my colleagues accept the existence of Olson's inconsistent explanations and agree the Governor's decision was based in part on those inconsistencies. They also agree that the record supports the facts relied upon by the Governor. (Majority opn., p. 16.) However, they require, and do not find, a nexus between Olson's acknowledgement of responsibility and the facts relied on by the Governor. With all due respect, as was evident in In re Shaputis (2008) 44 Cal.4th 1241, one can accept responsibility for murdering someone and still be a danger to society because they do not understand why they are motivated to murder someone.
Acceptance of the facts underlying the Governor's decision provides the evidence necessary to support his decision to deny Olson parole. The structure of our parole review process provides it is the Governor who is charged with assuring those released on parole are no longer a danger to the public. Therefore, in support of this obligation, and recognizing the role of the executive branch, courts must uphold the Governor's decision where there exists merely a modicum of supporting evidence. Maintaining the "modicum of evidence" standard creates a narrow band of cases in which reversal of the Governor will occur. Such tight control of judicial discretion assures maintenance of the intended balance of power, which is tipped decidedly in favor of the Governor's decision, and also promotes consistency in parole release policy.
At a minimum, this court should not order Olson's immediate release. Policies underlying the aforementioned balance of power and the importance of a final review of inmate conduct between the time of the last hearing and release to the public warrant remand to the Board or the Governor's office.
For these reasons, I would reverse the trial court.