Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ROBERT N. BLOCK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Stephen G. Larson, District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
PROCEEDINGS
On June 11, 2008, petitioner (through counsel) filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Pet.") herein, along with several exhibits (hereinafter "Pet., Exh. -"). The Petition was directed to the California Board of Prison Terms denial of parole at petitioner's twentieth parole consideration hearing held on June 29, 2006.
The Board of Prison Terms now is part of the California Board of Parole Hearings (hereinafter the "Board").
On June 30, 2008, respondent filed a "Request for Stay Pending Issuance of the Mandate in Hayward [v. Marshall , 512 F.3d 536 (9th Cir. 2008), reh'g en banc granted, 527 F.3d 797 (2008)], " or if the Court denied a stay, a request for an extension of time to respond to the Petition. Petitioner filed opposition to the stay request on July 1, 2008, to which respondent filed a reply on July 11, 2008. On July 14, 2008, petitioner filed a response to the reply. In a Minute Order issued on July 16, 2008, the Court advised the parties of its inclination in light of Yong v. I.N.S. , 208 F.3d 1116 (9th Cir. 2000) (holding that court may not, in the interest of judicial economy, stay habeas petition over petitioner's objection) to deny respondent's stay request; however, based on its views (as of that time) as to the current state of the law regarding a California prisoner's federal due process rights relating to parole, the Court gave petitioner the opportunity to reconsider his opposition to the stay request. On July 22, 2008, petitioner filed a document captioned "Petitioner's Response to Court's Order of July 16, 2008" wherein he reaffirmed his opposition to a stay. The Court then denied respondent's stay request on July 23, 2008, but granted respondent's request for an extension of time to file a response to the Petition.
On September 23, 2008, respondent filed an Answer to Petition ("Ans.") and concurrently lodged various documents (hereinafter referred to as "Lodgment No. ___ "). On October 6, 2008, petitioner filed a Traverse ("Trav.") and a supporting Memorandum of Points and Authorities ("Trav. Mem.").
Thus, this matter now is ready for decision. For the reasons discussed hereafter, the Court recommends that habeas relief be granted.
BACKGROUND
In 1976, by way of a guilty plea, petitioner was convicted of first degree murder with a gun use enhancement and three robberies. The trial court sentenced petitioner to state prison for an indeterminate term of 6 months-to-life on the murder charge plus determinate terms for the robberies to run concurrently with the life term. (See Pet., Exhs. A, B). Petitioner's "minimum eligible parole date" was set at July 22, 1983. (See Pet., Exh. C and Attachment to Lodgment 2 (hereinafter "Transcript") at 1).
Petitioner was sentenced pursuant to Cal. Penal Code § 1202b (repealed 1977), which gave discretion to the sentencing court to impose a minimum prison term of six months for certain felonies committed by a person under 23 years of age. See People v. B. , 24 Cal.3d 212, 216-17, 155 Cal.Rptr. 189, 594 P.2d 14 (1979).
See, e.g., In re Rosenkrantz , 80 Cal.App.4th 409, 414 n.1, 95 Cal.Rptr.2d 279 (2000) (explaining that the BPT's regulations for setting parole dates are found in title 15 of the Cal. Code of Regs., which defines "minimum eligible parole date" for life prisoners as the earliest date on which a prisoner legally may be released on parole), overruled in part by In re Rosenkrantz , 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002), cert. denied, 538 U.S. 980 (2003).
Petitioner appeared before the Board for an initial parole consideration hearing and eighteen subsequent parole consideration hearings beginning in 1978 and was found to be unsuitable for parole at each of them. (See Pet. at 6, Exh. D). On June 29, 2006, petitioner appeared before a Board panel for his twentieth (overall) parole consideration hearing. The panel read into the record the following factual account of petitioner's crime, taken from the June 2006 Board summary of the crime:
"[O]n January 11, 1976, at the age of 18[, ] Milot, in the company of his crime partner, Robert Giminez... age 24, committed the robbery of the El Dotanjo [ph] Bar in East Los Angeles. The crime resulted in the shooting death of the victim, Portanato [ph] Rodriguez.... During the robbery, Inmate Milot brandished a.22 caliber rifle, which he pointed at the victim and witnesses, in order to gain their compliance, while his crime partner removed money from the register. Inmate Milot fired a shot from the rifle into the ceiling and then fired a shot at Laredo... Medina Sot [sic], in order to get his compliance. Inmate Milot stated that he was not intending on shooting Soto [ph] but fired at his feet in order to get his attention. The victim, Rodriguez, then attempted to flee out of the back door of the El Dotanjo Bar. He was shot and killed by Inmate Milot with the.22 caliber rifle. Three shots were fired during the commission of the robbery. Count five of the commitment offense also involves the robbery of the victim, Marina del Rosario [ph] Enzunaza... who was serving as a barmaid at the robbery, by - who was serving as a barmaid and was robbed by Inmate Milot and his crime partner. Mr. [sic] Enzunaza... stated that Inmate Milot held everyone at bay with a.22 caliber rifle while his crime partner removed the money from the register. Count Eight relates to the robbery of the Starlight Bar on January 11, 1976 in East Los Angeles. Inmate Milot held - or again held a.22 caliber rifle while his partner removed money from the patrons at the bar. During the robbery, the victim McAcaosta... was robbed while seated at the bar and a victim named Arthur Duminguez... had his wallet removed." (Transcript at 9-11).
The panel also considered petitioner's version of the events from previous hearings:
"Milot pleaded guilty in court to Murder in the First Degree with the use of a firearm and three counts of Robbery, First, with the use of a firearm. He has since acknowledged culpability of his crime and expresses remorseful feelings when questioned about his case. He relates that his attitude at the time of the offense was one of disregard for the feelings of others and that he - and that his - and that his was a [sic] motive to obtain recognition for his immediate peer group or from his immediate peer group. [...] The reality of the crime he committed did not actually hit him until court pleadings or proceedings, when he viewed the victim's wife, who was emotionally distraught. [...] The victims were not the only people traumatized that evening but also the other patrons of the El Dotanjo and Starlight Bars." (Transcript at 11-12).
Petitioner indicated that he wanted to tell the panel more about himself. He stated:
"Well, I'd like to tell you a little bit about myself at the time when all this happened. At the time, you know, I had a really low self-esteem and I had a pretty normal upbringing and childhood until the age of about 16, 17, when my parents started working. Both of them started working and they left the house. I was the only child. I had to come back to the house, I'd be alone and there was nobody there. And I started seeking out the attention of this negative group, negative peer group, if you want to call it that, and you know, I started hanging out with these guys. And as I said earlier, at the time I had a real low self-esteem and I was doing whatever I could to get their attention and fall into favor with them and I was acting out and doing some really insane stuff back then." (Transcript at 12-13).
In response to the panel's inquiry, petitioner stated that he was not a member of any gang and that his 1974 juvenile record for robbery was "strong-arm" robbery without a weapon. Petitioner's juvenile record also reflected arrests for malicious mischief and grand theft auto. Petitioner's adult record also reflected an arrest for grand theft, related to the commitment offense. (See Transcript at 13-14). Petitioner's family re-located to Los Angeles from Montreal when he was two and his parents were self-employed in the photography business. His neighborhood was surrounded by gangs but he was not involved. Petitioner began drinking and acting out around age 16. Petitioner admitted he had an alcohol problem as a teenager. (See Transcript at 16).
The panel heard evidence of petitioner's prison disciplinary record, including several disciplinary reports (115s) for narcotics paraphernalia, alcohol, and marijuana. Petitioner had sustained 20 115s until 1989, when he "starting growing up." Petitioner stated he started getting "away from all the crap, " "made a decision to turn [his] life around, " and got married to a nurse he met through his parents. (See Transcript at 17-18, 35). Petitioner also had sustained 26 negative chronos (128s), the last of which was in May of 1998 for "refusing to lock up." (See Transcript at 35). In response to the panel's inquiry regarding whether petitioner wanted the panel to understand any other prior history, petitioner again spoke of the commitment offense. He stated, in part:
"When misconduct is believed to be a violation of law or is not minor in nature, it shall be reported on a CDC Form 115 (Rev. 7/88), Rules Violation Report." See Cal. Code Regs. tit. 15, § 3312(a)(3).
"When... minor misconduct recurs after verbal counseling or if documentation of minor misconduct is needed, a description of the misconduct and counseling provided shall be documented on a CDC Form 128-A, Custodial Counseling Chrono." See Cal. Code Regs. tit. 15, § 3312(a)(2).
"I guess I wasn't getting the acceptance at home that a normal 16, 17 year-old kid would get. I had just turned 18 when this happened and I walked into the bar at that time and I had total disregard for other people's feelings. I only cared about myself. I was really screwed up at the time." (Transcript at 19). Petitioner acknowledged that Mr. Soto "to this day" probably remembers being traumatized by what happened that day. Petitioner stated that he was not trying to minimize what happened, but he fired one shot at Mr. Rodriguez and it hit him, but petitioner did not know it. He stated he was trying to gain Rodriguez's compliance; he was not trying to hurt him and did not continue to fire shots at him. (See Transcript at 19-21).
The panel heard evidence that petitioner had plans to reside in a substance abuse program house for six months upon release, then reside with his wife in San Diego. Petitioner had saved $6, 300 towards his financial support. Petitioner had employment offers with the transitional housing group and at a body shop in San Diego. (See Transcript at 23-28).
The panel also heard evidence that in prison, since petitioner's previous hearing, he had been involved in Convicts Reaching Out to People, for which he had earned a laudatory chrono from the associate warden, and also had been involved in NA and AA, for which he had earned multiple positive chronos. Petitioner also had worked as a counselor's clerk at the reception yard; had participated in CROP, talking to troubled kids; and had participated in the California Reads Program (literacy tutoring) and as an intern with SAP, mentoring inmates in the drug treatment program. (See Transcript at 29-32, 45).
Petitioner also had earned his GED while in prison and had attended some college level courses. (See Transcript at 36). Petitioner's most recent psychological evaluation was undertaken in July of 2004. The panel read into the record a portion of the evaluation:
"During the evaluation, the inmate exhibited considerable insight and maturity. In the past, he also displayed some signs of psychopathy, which have been reduced significantly for the past two decades. Such historic signs include - included shallow affect, callousness, a parasitic lifestyle, impulsivity and irresponsibility. At this time, his affect appeared to be fuller. He seemed to have developed a capacity for empathy. He has learned to control his impulses and he has gained in self-awareness and practical competencies. He has also exhibited considerable evidence of self-help orientation, including obtaining his GED and various vocational certificates, receiving satisfactory and better work ratings of the past decade. Participating in a variety of self-help therapeutic groups and developing the ability to reach out to others in more altruistic ways... (such as his pro social environment in SAP and CROP at this time)... The above information suggested that Mr. Milot presented as a low risk for violence. [¶] In this inmate's case, as he seemed well aware, the primary destabilizer would [] likely be substance abuse relapse. However, he seems to be focusing on this area intensely at this time and he appears to be using his newly gained information and skills in a positive way. He maintains personal support in the community and he indicated that his community relationships have assumed greater importance for him, as he has matured. His parole plans are detailed, feasible and appropriate. His functioning in the prison for the past decade appeared to confirm his ability to comply with remediation efforts and he has made a considerable effort to address prior BPT recommendations. Given these factors, the probability of parole success seems good. Based on the above data, it appeared that Mr. Milot was at a low risk for future violence. [¶] Overall, risk assessment measures suggested that the inmate poses a low likelihood of becoming involved in a violent offense if released into the free community." (See Transcript at 36-39).
Petitioner discussed in greater detail his involvement in AA and NA. He acknowledged having a disease and stated that "you think that you got it licked and you come back and it bites you in the butt and it's something that I'm conscious of every day." He also stated that he removed himself from situations in prison where people were involved in or referenced drugs. He also stated that he had tried to make amends per "step eight" of the AA program, writing a letter for Mrs. Rodriguez, which he sent to the District Attorney's Office, and sending 20 percent of his paycheck to the Victims Fund. (See Transcript at 40-42).
In response to the Deputy District Attorney's questioning, petitioner admitted that a week after committing these robberies and murder, he committed another robbery with the same co-defendant. (See Transcript at 43). The Deputy District Attorney opposed parole on the basis of the commitment offense, petitioner's participation in the other robberies, and petitioner's prison disciplinary record. (See Transcript at 46-48). Petitioner's attorney gave an argument in closing supporting petitioner's release on parole (see Transcript at 48-55), as did petitioner, who expressed his remorse and committed himself to changing. Petitioner acknowledged that he was a "knucklehead" in prison "for a long time" but "started digging [him]self out of the hole" and today is a "completely changed person." Petitioner described his "real" job in prison as a welder working 40 hours a week, his donations to the Victims' Fund, his work with kids in the CROP Program, and his eight years of recovery from substance abuse. He explained that he understood the risk of relapse and would see them coming from a mile away. Petitioner stated he felt like he was "ready to go home." (See Transcript at 56-59).
The Board panel concluded that petitioner was not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The panel cited the following circumstances in support of its decision: (1) the circumstances of the commitment offense, including (a) there were multiple victims, one of whom was killed; (b) the offense was carried out in an especially dispassionate manner; and (c) the motive for the crime was inexplicable in relation to the offense; (2) the murder did not prevent petitioner from committing other crimes, including two armed robberies; (3) petitioner's prior criminal conduct included violence and he failed to profit from previous attempts to correct his criminality - i.e., juvenile probation; and (4) petitioner had sustained 26 128 counseling chronos and 21 serious 115 disciplinary reports in prison. The panel found that the psychological report was supportive of release and that petitioner had appropriate parole plans. The panel also noted that the District Attorney opposed petitioner's parole. (See Transcript at 60-62). The panel indicated that it was moved by petitioner and his counsel's eloquent plea for release, but it noted that in petitioner's own words he had been a "knucklehead" in custody, earning 115s until 1989 and 128s until 1998. The panel commended petitioner for his significant change and indicated it hoped these gains would become long term in nature. The panel commended petitioner for his participation in AA and NA and other self-help programs, and recommended that he remain disciplinary free and continue to participate in self-help. (See Transcript at 62-63).
Petitioner challenged the Board's denial of parole by way of a petition for writ of habeas corpus filed in the Los Angeles County Superior Court, which was denied on August 22, 2007. The Superior Court rejected the Board's finding that the motive for the crime was inexplicable, but found that the unsuitability finding was supported by some evidence given petitioner's institutional behavior and prior criminal record, his attack of multiple victims, and the finding that the crime was carried out in a dispassionate and calculated manner. (See Lodgment No. 1; Pet., Exh. E). Petitioner next filed a habeas petition in the California Court of Appeal on September 20, 2007, which was denied on January 24, 2008 after respondent filed an informal response, to which petitioner replied. (See Lodgment Nos. 3, 4, 5; Pet., Exh. F). The California Supreme Court summarily denied petitioner's ensuing Petition for Review without comment or citation of authority on March 26, 2008. (See Lodgment No. 6; Pet., Exh. G).
The Court has referred to the website of the California Appellate Courts for information relating to the denial of the habeas petition since neither party lodged the California Court of Appeal's denial order.
The filing of the instant Petition followed.
PETITIONER'S CLAIMS HEREIN
1. Denial of parole violated due process because the grounds recited by the
panel and the findings in support were arbitrary, unsupported by any evidence, and/or inherent in all first degree murders. (See Pet. Mem. at 10-14; Trav. at 7-11).
2. The decision violated due process because the panel articulated no nexus between the immutable facts it recited and petitioner's current risk to public safety, the state's sole parole determinant. (See Pet. Mem. at 14-17; Trav. at 7-11).
3. Interminable denial of petitioner's parole based on outdated immutable facts violates due process by amending his prison term to life without any possibility of parole. (See Pet. Mem. at 17-21; Trav. at 11-12).
STANDARD OF REVIEW
The standard of review applicable to petitioner's claims herein is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings."
Under the AEDPA, the "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams v. Taylor , 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Carey v. Musladin , 549 U.S. 70, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006); Smith v. Patrick , 508 F.3d 1256, 1260 (9th Cir. 2007).
Although a particular state court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. See Williams , 529 U.S. at 391, 413. A state court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. See Early v. Packer , 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); Williams , 529 U.S. at 405-06. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is "unconstrained by § 2254(d)(1)." Williams , 529 U.S. at 406. However, the state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early , 537 U.S. at 8.
State court decisions that are not "contrary to" Supreme Court law may only be set aside on federal habeas review "if they are not merely erroneous, but an unreasonable application' of clearly established federal law, or are based on an unreasonable determination of the facts.'" Early , 537 U.S. at 11 (citing 28 U.S.C. § 2254(d) and adding emphasis). A state court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams , 529 U.S. at 406-10, 413 (e.g., the rejected decision may state Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti , 537 U.S. 19, 24-27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such an "unreasonable application, " a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Visciotti , 537 U.S. at 24-27; Williams , 529 U.S. at 413. An "unreasonable application" is different from an erroneous or incorrect one. See Williams , 529 U.S. at 409-10; see also Visciotti , 537 U.S. at 25; Bell v. Cone , 535 U.S. 685, 699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).
DISCUSSION
A. The Current State of the Law
This Court views the current state of the law regarding a California prisoner's federal due process rights relating to parole as follows:
(a) As a matter of clearly established Supreme Court law, California's parole scheme gives rise to a cognizable liberty interest in release on parole that is protected by the Due Process Clause. See Irons v. Carey , 505 F.3d. 846, 850 (9th Cir. 2007) (as amended), denial of rehearing en banc at 506 F.3d 846 (9th Cir. 2007); Sass v. Cal. Bd. of Prison Terms , 461 F.3d 1123, 1128 (9th Cir. 2006); McQuillion v. Duncan , 306 F.3d 895, 901-02 (9th Cir. 2002); see also Caswell v. Calderon , 363 F.3d 832, 838 (9th Cir. 2004); Biggs v. Terhune , 334 F.3d 910, 914 (9th Cir. 2003).
Although the Ninth Circuit has by now repeatedly held that there is a "clearly established" liberty interest in parole release, respondent would have this Court disregard these Ninth Circuit holdings. (See Ans. at 3). This Court is bound by its Circuit's precedent in the absence of an intervening contrary Supreme Court decision, and respondent has pointed to no such decision.
(b) In the context of parole-related decisions, "the full panoply of rights due a defendant in [a criminal prosecution] is not constitutionally mandated." Jancsek v. Oregon Board of Parole , 833 F.2d 1389, 1390 (9th Cir. 1987); see also Pedro v. Oregon Parole Board , 825 F.2d 1396, 1399 (9th Cir. 1987), cert. denied, 484 U.S. 1017 (1988). A prisoner is entitled to notice of the hearing, an opportunity to be heard, and if parole is denied, a statement of the reasons for the denial. See Greenholtz v. Nebraska Penal Inmates , 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Jancsek , 833 F.2d at 1390 (citing Greenholtz , 442 U.S. at 16 and Pedro , 825 F.2d at 1399).
Petitioner does not allege in any of his claims herein that he was denied the procedural protections guaranteed by the Due Process Clause.
(c) As a matter of clearly established Supreme Court law, the Board's or Governor's decision to deny parole must be supported by "some evidence" with some indicia of reliability and cannot otherwise be arbitrary. See Irons , 505 F.3d at 851; Sass , 461 F.3d at 1129 (quoting Superintendent v. Hill , 472 U.S. 445, 457 (1985)); Jancsek , 833 F.2d at 1390 (adopting the Hill standard); see also Biggs , 334 F.3d at 915; McQuillion , 306 F.3d at 904.
The Court discusses the "some evidence" standard in greater detail in the next section.
Again, although the Ninth Circuit has by now repeatedly held that the "some evidence" standard is clearly established for AEDPA purposes, respondent would have this Court disregard these Ninth Circuit holdings on the basis that no Supreme Court authority requires application of the some evidence standard to a parole decision (See Ans. at 4, 7). Again, since respondent is unable to point to any contrary intervening Supreme Court decision, this Court is bound by the Ninth Circuit authority.
(d) In denying parole, the Board or Governor may rely solely on unchanging factors such as the circumstances or gravity of the commitment offense, and the prisoner's conduct prior to imprisonment. See Irons , 505 F.3d at 851-53; Sass , 461 F.3d at 1129; Biggs , 334 F.3d at 916; Jancsek , 833 F.2d at 1390-91. The Ninth Circuit has observed that reliance on such unchanging factors to deny parole might eventually constitute a violation of due process. See Biggs , 334 F.3d at 916-17; see also Irons , 505 F.3d at 853; Sass , 461 F.3d at 1129. However, that observation by the Ninth Circuit in Biggs constituted merely dicta. See Kunkler v. Muntz , 226 F. Appx. 669, at *2 (9th Cir. 2007) (referring to the Ninth Circuit's comments in Biggs about the continued reliance on the gravity of the commitment offense as dictum) (now citable for its persuasive value pursuant to Ninth Circuit Rule 36-3).
(e) By way of contrast to the Ninth Circuit's explicit holding that the "some evidence" standard is clearly established under Supreme Court law for AEDPA purposes, the Ninth Circuit has never held that, as a matter of clearly established Supreme Court law, due process is violated by the Board's or the Governor's continued reliance on the unchanging circumstances of the commitment offense to deny parole. See Medway v. Schwarzenegger , 257 F. Appx. 44, at *2 (9th Cir. 2007) ("there is no clearly established Federal law... that limits the number of times a parole board or the governor may deny parole based on the brutality of the commitment offense") (now citable for its persuasive value pursuant to Ninth Circuit Rule 36-3); Culverson v. Davison , 237 F. Appx. 174, at *3 (9th Cir. 2007) (same) (now citable for its persuasive value pursuant to Ninth Circuit Rule 36-3).
B. The "some evidence" standard after In re Lawrence
Under Irons, the Court's analysis of whether the Board's or the Governor's unsuitability determination is supported by some evidence is framed by the "statutes and regulations governing parole suitability" determinations in California. See Irons , 505 F.3d at 851. First, the Court must determine the findings "necessary to deem a prisoner unsuitable for parole." Then, the Court must review the record to determine whether the state court's decision holding that these findings were supported by "some evidence" constituted an unreasonable application of the "some evidence" standard. See id. at 851. However, "[t]o determine whether the some evidence standard is met does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence.'" See Sass , 461 F.3d at 1128.
California law mandates that a parole release date be set unless the panel determines that "the gravity of the current or convicted offense or offenses, or the timing and gravity of the current or past convicted offense or offenses, is such that consideration of public safety requires a more lengthy period of incarceration...." See Cal. Penal Code § 3041(b). The Board panel is charged with determining "whether the life prisoner is suitable for release on parole, " and whether "the prisoner will pose an unreasonable risk of danger to society if released from prison." See Cal. Code Regs. tit. 15, § 2402(a). In determining suitability for parole, the panel is directed to consider "all relevant, reliable information, " and is guided by circumstances tending to show suitability and unsuitability for parole. See id. at § 2402(b)-(d). In In re Lawrence , 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008), the California Supreme Court recently provided the following clarification:
"All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release...." Cal. Code Regs. tit. 15, § 2402(b).
"A parole release decision authorizes the Board (and the Governor) to identify and weigh only the factors relevant to predicting whether the inmate will be able to live in society without committing additional antisocial acts.' These factors are designed to guide an assessment of the inmate's threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate." (internal citations omitted). [...]
"Under the statute and governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." Id. at 1205-06, 1212.
Accordingly, the California Supreme Court held in Lawrence, "because the core statutory determination entrusted to the Board and the Governor is whether the inmate poses a current threat to public safety, the standard of review properly is characterized as whether some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." Id. at 1191; see also In re Shaputis , 44 Cal.4th 1241, 1254, 82 Cal.Rptr.3d 213, 190 P.3d 573 (companion case to Lawrence). With respect to the Board's or Governor's reliance solely on the commitment offense to deny parole, the California Supreme Court also held in Lawrence:
"[T]he 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." Lawrence , 44 Cal.4th at 1214.
Thus, the California Supreme Court has expressly rejected the notion that the mere existence of one or more unsuitability factors described in the State's regulations is itself necessarily sufficient to support the ultimate conclusion that the inmate currently poses an unreasonable risk of danger if released, which is the "focus" of and only relevant determination underpinning the parole decision. See Lawrence , 44 Cal.4th at 1210. As a matter of California law, the individualized consideration of the specified factors that is due an inmate "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." See id.
This Court is bound by the California Supreme Court's construction of its own laws. See McGuire, 502 U.S. at 67-68; see also Bradshaw v. Richey , 546 U.S. 74, 76, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005). Moreover, as noted above, the Irons decision itself explicitly instructs that the California statutes and regulations frame the application of the some evidence standard. Given the Irons instruction and the California Supreme Court's recent clarification that the mere existence of any one of the factors identified in the State's regulations does not necessarily support the conclusion that an inmate poses a current risk of dangerousness if released, this Court joins those other California District Courts that have found that, in order for the some evidence standard to be satisfied, the factors identified by the BPT or Governor in denying parole must themselves support the ultimate conclusion that the inmate's release currently poses an unreasonable risk of danger to the public. See, e.g., Adams v. Schwartz, 2008 WL 4224561, at *12-*13 (E.D. Cal. Sept. 12, 2008) (granting habeas relief, citing In re Lawrence and describing some evidence standard as requiring that "an inmate poses a current threat to public safety, rather than some evidence of the existence of a statutory unsuitability factor"), Report and Recommendation adopted at 2008 WL 4601088 (Oct. 14, 2008); Tash v. Curry, 2008 WL 3984597, at *4, *10-*12 (N.D. Cal. Aug. 27, 2008) (granting habeas relief, citing Irons's direction to look to California law and analogizing case to In re Lawrence); see also Ortega v. Dexter, 2008 WL 5263833, at *6 (C.D. Cal. Dec. 16, 2008) (denying habeas relief, but citing In re Lawrence and describing some evidence standard as "not whether the evidence supported any particular factor regarding parole suitability, but rather whether some evidence' indicates the prisoner's release unreasonably would endanger public safety").
Although application of the some evidence standard in this manner is precisely how the Ninth Circuit framed the standard in the now uncitable Hayward decision, this Court does not rely on Hayward in concluding that some evidence must support the decision of the Board or Governor and not simply the enumerated factors. Rather, the Court relies on the Irons court's instruction to frame application of the some evidence standard by reference to the State's statutes and regulations coupled with the California Supreme Court's recent clarification of the proper construction of those statutes and regulations.
C. Analysis
1. Petitioner's prior criminal record
The Superior Court implicitly found that petitioner's prior criminal record, relied upon by the Board panel in support of its unsuitability determination, was supported by some evidence. (See Pet., Exh. E at 3). As reflected above, the panel found that there was "criminal conduct and violence" in petitioner's past, that the murder did not prevent him from committing two additional armed robberies, and that he failed to profit from society's previous attempts to correct his criminalities, specifically juvenile probation. (See Transcript at 61). Petitioner's prior criminal record, however, was barely existent, and contrary to the panel's finding, did not involve violence. Petitioner had been arrested and released as a juvenile for malicious mischief and grand theft auto, but he had only one juvenile conviction for a robbery not involving the use of a weapon. Petitioner's only adult convictions resulted in his current incarceration. The panel did not explain how this minimal prior criminal record or petitioner's failure to profit from juvenile probation to which he was sentenced as a 16-year-old, was probative of petitioner's risk of danger nearly 30 years later. Likewise, the panel did not explain how the fact that petitioner was not dissuaded by the murder from committing additional armed robberies was probative of petitioner's current dangerousness. Petitioner repeatedly has stated that he was unaware that he even had hit Mr. Rodriguez when he fired the rifle. More importantly, the fact that petitioner committed two additional armed robberies as an 18-year-old cannot be said to be probative of his current dangerousness 30 years later, given the uncontroverted evidence of petitioner's rehabilitation in prison, described in detail below.
Under Ylst v. Nunnemaker , 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), it may be presumed that the California Supreme Court, by its silent denial of petitioner's habeas petition raising the same claim, did not intend to change the Superior Court's reasoned decision rejecting it.
2. Petitioner's prison disciplinary record
The Superior Court found that notwithstanding petitioner's "solid record of good institutional behavior" since 1989, some evidence supported the Board panel's finding that petitioner's disciplinary record affected his risk of future criminality. (See Pet., Exh. E at 2). In relying on petitioner's prison disciplinary record in denying parole, the panel acknowledged that petitioner had not sustained a serious violation in almost two decades and that his last minor incident was nearly a decade prior, but then expressed its "hope" that the gains would become "long-term in nature." (See Transcript at 62).
Petitioner's early prison disciplinary record reflects his drug addiction and lack of regard for the institutional rules; however, it reflects almost no violence. Specifically, only one 115 disciplinary report involved the use of violence, while one other involved the attempted use of force. The remainder of the 115 disciplinary reports reflect violations that were non-violent in nature, such as being out of bounds, refusing to leave the yard by participating in a sit-down demonstration, retaining a kitchen spoon, and falsifying meal tickets. Several others involved the possession of drugs or drug paraphernalia. (See Pet., Exh. D at 6). The Board panel failed to articulate any nexus between petitioner's almost entirely non-violent prison disciplinary record - which has been clear of serious violations for nearly 20 years and non-serious incidents for nearly 10 years - and his present risk of danger to the public if released.
It appears that the Superior Court attempted to supply this missing nexus in its decision:
That petitioner's prison disciplinary record does not support a finding of current dangerousness is borne out by petitioner's psychological evaluations. Specifically, with respect to the disciplinary violations, petitioner's most recent evaluating psychologist described those violations as "devious, somewhat psychopathic plans to avoid adhering to institutional rules and regulations - but nonviolent as well." She opined that the fact that his most recent (115) violation was in 1989 suggested he had "developed self-control over the years of his incarceration, " and found that, "at the present time, he clearly presents as a negligible risk for violence in prison." (See id.). She further noted that, while petitioner had engaged in anti-social activities for at least a dozen years after he was received into the prison, "these are [] historical issues; at the present time, he seems to have turned his life around. Given his ability to exhibit prosocial attitudes and behaviors for over a decade, it must be assumed that the positive changes have become part of his basic personality structure." (See Pet., Exh. D at 20).
More generally, with respect to petitioner's rehabilitation in prison, while petitioner's psychological evaluations initially were unfavorable of release, they became favorable over time as petitioner exhibited positive institutional behavior and gains. In a 1976 reception evaluation, the doctor opined that petitioner retained a "high propensity towards aggressive and assaultive behavior." (See Pet., Exh. D at 9). In a 1978 evaluation, petitioner was considered to pose an "average" potential for violence if released. (See Pet., Exh. D at 10). In his 1982 evaluation, the doctor opined that petitioner exhibited a certain amount of immaturity, suggestibility, and egocentricity but that he also demonstrated strong feelings of guilt and was "quite aware of his previous delinquent, selfish, self-serving, and spoiled brat' tendencies." The doctor found that petitioner's MMPI profile was "prognostically hopeful" as his profile was not common among the great majority of sociopathic, antisocial prison inmates. (See Pet., Exh. D at 9). Petitioner's violence potential was still considered "average" in his 1984 and 1987 evaluations. (See Pet., Exh. D at 11-12). In 1991, the evaluating doctor opined that petitioner had "matured while in prison" and that his potential for violence was below average for the inmate population. The same doctor found petitioner's violence potential "well" below average in 1992, and observed in 1994 that petitioner's impulse control was "excellent" as evidenced by his lack of serious disciplinaries in five years. (See Pet., Exh. D at 12). As of 1995, the evaluating doctor opined that petitioner was "psychologically rehabilitated" and "prepared to return to the community." (See Pet., Exh. D at 13). Another doctor prepared a report in 1996 in conjunction with petitioner's "Category X" programming, observing therein:
The Court notes that only the most recent evaluations are probative of petitioner's current danger. See In re Aguilar , 168 Cal.App.4th 1479, 1490, 86 Cal.Rptr. 498 (2008) ("Where, 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.") (citing Lawrence , 44 Cal.4th at 1223-24).
"Seventeen prior BPT evaluations were present in [petitioner's] Central File. Generally, they suggested gradually increasing maturity and self control and gradually decreasing evidence of characterological flaws over the years of his incarceration. In addition, any potential for violence has reportedly diminished to negligible over the years." (See Pet., Exh. D at 10).
In a separate 1996 evaluation, a different doctor opined that petitioner's psychological/psychiatric condition was so stable that future mental health evaluations would likely be irrelevant in predicting future violence potential. (See Pet., Exh. D at 13). The evaluations did continue, however. In 1999, the evaluating doctor opined that petitioner's violence potential, considered to be average in the past, had greatly decreased and that it appeared that petitioner had the "internal resources and maturity necessary as well as the motivation to make something of his life" such that the doctor could foresee "no significant risk factors or precursors to violence." (See Pet., Exh. D at 13). In a 2003 evaluation, the doctor opined that petitioner's current risk of dangerousness was low. (See Pet., Exh. D at 14). As noted, the 2004 evaluation also was favorable of release. The doctor opined therein that petitioner "presented at low risk for violence." (See Pet., Exh. D at 15).
On this record, the Court is compelled to find that petitioner's prison disciplinary record does not provide some evidence of petitioner's current dangerousness.
3. The circumstances relating to the commitment offense
With respect to circumstances relating to the commitment offense, the Court concurs with the Superior Court that the Board panel's finding that the motive for the crime was inexplicable is contradicted by the record since petitioner explained that his motive was to impress his friends. The Court also concurs with the Superior Court that there is some evidence in the record to support the panel's finding that there were multiple victims since petitioner did fire his gun at more than one bar patron, though only one was struck. That the evidence supports the finding that the crime was carried out in a dispassionate manner, however, is less clear. Petitioner fired his rifle at Rodriguez as he attempted to flee out the back door. According to petitioner, however, he intended only to gain Rodriguez's compliance by firing at him, did not intend to hit him, fired only once, and did not know that he had hit him. In any event, even assuming this finding is supported by some evidence, the fact remains that the Board panel failed to articulate any nexus between the findings that there were multiple victims and that the crime was carried out in a dispassionate manner, and petitioner's current dangerousness. In the face of overwhelming evidence of petitioner's rehabilitation in prison and suitability for parole, exhibited by his lack of serious disciplinary violations in nearly 20 years and his lack of minor incidents in nearly 10 years, his participation in AA/NA and other self-help groups, his educational advancement, his volunteer work and prison employment, his approved parole plans, and his positive psychological evaluations, the Court finds that the circumstances of the commitment offense do not constitute "some evidence" bearing "indicia of reliability" to support an unsuitability finding. See Tash v. Curry, 2008 WL 3984597, at *12 (finding Governor's parole reversal based on circumstances of commitment offense unsupported by some evidence and arbitrary in light of "the extensive evidence of Petitioner's in-prison rehabilitation and exemplary behavior" after 22 years of incarceration on a 17-year-to-life sentence); see also Adams v. Schwartz, 2008 WL 4224561, at *11 (finding that "petitioner's age, health, religious beliefs, stable family history and present relationships, lack of prison disciplinaries since 1997, commitment to sobriety, and psychologists' reports demonstrate he no longer poses an unreasonable risk to public safety" and that parole rescission based on circumstances of commitment offense and criminal record was not supported by some evidence where petitioner had served 14 years past minimum eligible parole date).
As for the Superior Court's finding that petitioner's motive for the crime was trivial (see Pet., Exh. E at 2), the Court cannot rely on a finding that the Board panel did not make, as the authorities cited in footnote 14 make clear.
4. Conclusion
Because there was no reliable evidence before the Board panel supporting its conclusion that petitioner's release posed an unreasonable risk to public safety, the Court finds and concludes (a) that the Board's decision resulted in an arbitrary deprivation of petitioner's liberty interest in parole and violated due process, and (b) that the State courts' determination to the contrary was based on an unreasonable determination of the facts in light of the evidence presented and involved an unreasonable application of the "some evidence" standard.
Citing Biggs, petitioner also claims that the continued denial of parole based on outdated immutable facts violates due process by amending his prison term to life without any possibility of parole. (See Pet. Mem. at 17-21; Trav. at 11-12). The Court is not recommending that relief be granted on the basis of a claim raised under Biggs. As noted above, the Court construes the language in Biggs cautioning against continued reliance on immutable factors as constituting merely dicta, as opposed to clearly established Supreme Court law. See Kunkler v. Muntz , 226 F. Appx. 669, at *2.
RECOMMENDATION
IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered granting a writ of habeas corpus as follows: The Board shall find petitioner suitable for parole at a hearing to be held within 30 days of the finality of this decision, unless new evidence of his conduct in prison or change in mental status subsequent to the June 29, 2006 parole consideration hearing is introduced that is sufficient to support a finding that petitioner currently poses an unreasonable risk of danger to society if released on parole; and in the absence of any such new evidence showing petitioner's unsuitability for parole, the Board shall calculate a prison term and release date for petitioner in accordance with California law. Further, if the release date already has lapsed, respondent shall, within 10 days of the Board's hearing, either release petitioner forthwith if his release date lapsed more than three years earlier, or release petitioner on parole for that period of his three year parole term that remains if the release date lapsed less than three years earlier.
"[W]hile a solid record of good institutional behavior may render past misbehavior irrelevant to suitability after a certain period of time, the court finds that there is some evidence that this period of time has not yet lapsed because the majority of petitioner's violations involve alcohol and drugs, a factor affecting petitioner's future risk of criminality." (See Pet., Exh. E at 2).
The Court notes, however, that the Board panel did not reason that petitioner posed a current risk of danger due to his drug-use related disciplinary violations and that, under California law, "it is inappropriate for courts to salvage the Board's inadequate findings by inferring factors that might have been relied upon. At minimum, the Board is responsible for articulating the grounds for its findings and for citing to evidence supporting those grounds." In re Roderick , 154 Cal.App.4th 242, 265, 65 Cal.Rptr.3d 16 (2007); see also In re Burdan , 169 Cal.App.4th 18, 28, 86 Cal.Rptr.3d 549 (2008) (post-Lawrence decision quoting Roderick , 154 Cal.App.4th at 265 and In re DeLuna , 126 Cal.App.4th 585, 593 (2005)); (Italics in original); In re DeLuna , 126 Cal.App.4th 585, 593, 24 Cal.Rptr.3d 643 (2005) ("We must confine our review to the stated factors found by the Board, and all the evidence presented at the parole hearing which is relevant to those findings, not to findings that... the Board might have made.").