Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, and Linnea D. Piazza, Deputy Attorney General, for Appellant. Rich Pfeiffer, under appointment by the Court of Appeal, for Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed on November 25, 2019, be modified as follows:
On page 8, second paragraph, the word "not" is added before true, so the sentence reads:
The jury found Ricchio guilty of first degree murder with the personal use of a firearm and found not true the special circumstance allegation that she committed the murder while lying in wait.
The petition for rehearing is denied.
There is no change in judgment.
HUFFMAN, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. HCN1527 & CRN13312) APPEAL from an order of the Superior Court of San Diego County, Harry M. Elias, Judge. Reversed. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, and Linnea D. Piazza, Deputy Attorney General, for Appellant. Rich Pfeiffer, under appointment by the Court of Appeal, for Respondent.
In 1987, Linda Ricchio murdered her ex-boyfriend, Ronald Ruse. His death was the culmination of Ricchio's campaign of severe harassment of Ruse, his new girlfriend, and their friends and family over several months. Although Ricchio immediately admitted she shot Ruse, she testified at trial that she did so in a heat of passion provoked by Ruse attacking her and interrupting her plan to commit suicide. The jury did not believe her version of events and found Ricchio guilty of first degree murder. The trial court sentenced Ricchio to an indeterminate prison term of 27 years to life.
At Ricchio's most recent parole hearing, the Board of Parole Hearings (the Board) determined that Ricchio was suitable for parole. The Governor, however, disagreed and reversed the Board's decision. The Governor determined that Ricchio remained currently dangerous because she continues to offer inconsistent statements regarding the offense, which demonstrate she is not credible, does not fully understand the gravity of her actions, and has yet to acknowledge the true nature of her crime.
The reversal was signed by Governor Edmund G. Brown, Jr., but Governor Gavin Newsom had been sworn into office by the time of the filing of the notice of appeal by the Attorney General. For convenience, we refer to the party opposing Ricchio's parole suitability simply as "the Governor." --------
Ricchio filed a petition for writ of habeas corpus in the trial court challenging the Governor's denial of parole. Without holding an evidentiary hearing, the trial court granted relief and vacated the Governor's decision, finding it to be "based on guesses and irrational speculation."
The Governor appeals. Applying the extremely deferential standard of review applicable to the review of parole hearing decisions reaffirmed in In re Shaputis (2011) 53 Cal.4th 192 (Shaputis II), we conclude that there is "some evidence" to support the Governor's determination that Ricchio is unsuitable for parole because she is currently dangerous. (Id. at p. 219.) Accordingly, we reverse the trial court's order and remand with directions to enter a new order denying Ricchio's petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
A. Ricchio's Commitment Offense
The circumstances of Ricchio's commitment offense, as understood at the time of trial, were detailed in this court's nonpublished opinion on direct appeal, People v. Ricchio (Apr. 15, 1991, D010488):
"On December 14, 1987, Ricchio shot her former boyfriend, Ron Ruse, five times outside his Carlsbad apartment. Two of the bullets struck Ruse, who died of multiple gunshot wounds to the chest, back and abdomen.
"In early 1980, Ricchio and Ruse had met when they were working at Honda of Escondido. They started living together in September 1980. In 1983, they moved to an apartment in Vista, where they lived for the next three years. In April 1986, Ruse, without telling Ricchio, made arrangements to move out and rented an apartment on Chestnut Street in Carlsbad. Ruse told the manager of the new apartment not to divulge his whereabouts; however, on moving day Ricchio showed up and the manager unwittingly let her know which apartment Ruse had rented. A week later, when the manager apologized to Ruse for having 'blown it' for him, Ruse told her not to worry about it since Ricchio would have found him in any event.
"Despite Ruse's move, the relationship was not over. After Ruse moved out of the Vista apartment, he allowed Ricchio to use his last name in connection with the utilities because she had not established credit in her own name. He also continued to pay Ricchio's rent there. Ricchio and Ruse saw each other off and on in 1986. In June 1986, when Ruse asked Ricchio what she would like for her birthday to show his friendship for all the years they had spent together, she told him she wanted a ring. Ruse bought Ricchio a cubic zirconium ring. Ruse complained to a friend that although the gift was a gesture of friendship, Ricchio was saying they were engaged.
"Ruse made reservations for his 10-year high school reunion planned for August 8, 1987, but did not invite Ricchio. Ricchio, saying she was Mrs. Ruse, phoned the reunion committee and cancelled the reservations. On August 2, 1987, Ricchio went to Ruse's apartment and refused to leave; he let her sleep overnight on the couch. The next morning, when Ray Hieronymus, Ruse's longtime friend, called, Ricchio answered the phone. Later, Hieronymus asked Ruse what Ricchio was doing at his apartment, and Ruse replied he was trying to be friends with Ricchio but that he wanted to go on with his life and 'she won't let me go.' On August 5, 1987, while Ruse and Hieronymus were at the beach, Ricchio approached them and called Ruse a 'fucking cock sucker' twice and said she was sick of his shit.
"In mid-September 1987, Ruse met Vicki Woodruff and began dating her. Ruse told his friends and family he was in love and seemed very happy. On October 5, 1987, Ricchio telephoned Susan Fisher, Ruse's sister. Ricchio questioned Fisher about Ruse's new girlfriend. Ricchio told Fisher she was angry because Ruse had told her to stop contacting him because he wanted to get on with his life and could not do so if she continued to show up unannounced and phone[d] all the time. Ricchio told Fisher she was dating other people but loved only Ruse. Fisher told Ricchio to forget about Ruse and find someone else since the best revenge is living well. Ricchio said she knew the relationship was over. In an angry tone, Ricchio told Fisher: 'I know you're right, but I just feel like killing him.' Ricchio also contacted other relatives of Ruse, asking them to intervene and get Ruse to talk to her. She began telling Ruse's relatives and friends that she was pregnant and needed to talk to him about this. In fact, she was not pregnant.
"During the week of October 12, 1987, Ricchio scratched Woodruff's automobile, which was parked in Ruse's spot at the Chestnut Street apartment complex. On October 13, 1987, Ricchio, using the name Linda Ruse, went to the Department of Motor Vehicles [(DMV)] and asked for the name and address of the owner of Woodruff's automobile, which was registered jointly to Woodruff and her mother, Karen Hardesty. Ricchio began making a series of phone calls to Hardesty, and also continued to harass Ruse and Woodruff. On October 28, 1987, Ruse applied for a temporary restraining order; Ricchio was served on November 3, 1987. On October 29, 1987, Ricchio showed up at Ruse's place of employment for the third time in five days. She kept trying to touch him even though he told her he did not want to speak to her. He flicked a shop rag at her, hitting her in the neck and chest. Ricchio called the police and Ruse was cited for battery.
"On November 8, 1987, Ricchio phoned Hieronymus, who lived in Arkansas, and told him she was 'going to blow [Ruse's] fucking ass away.' She said she was going to kill Ruse and then herself. That same evening, Ricchio also called Fisher and told her she was 'going to do something to your brother that I'm going to regret.'
"On November 11, 1987, Ricchio showed up at Ruse's softball game and the two had a loud confrontation. The next morning at 5 o'clock, Woodruff answered the door bell at the Chestnut Street apartment and found some of Ruse's broken property. Three hours later as Woodruff and Ruse were going to work, they heard Ricchio yell, 'you bastard.' On November 12, 1987, Ricchio filed a response to Ruse's request for a restraining order. A hearing on the restraining order was held the following day and mutual restraining orders were granted.
"On November 17, 1987, Ricchio went to Duncan Gun Works in San Marcos and told the salesperson she wanted a gun she could use to stop a person. She chose a revolver and paid for it even though the transaction could not be completed because she did not have identification with her. She returned the next day and filled out the required forms. Because there is a 15-day waiting period after a gun is purchased, Ricchio did not pick up the gun until December 5, 1987. On December 8, 1987, Ricchio went to a shooting range.
"On November 19, 1987, Ricchio traveled to San Francisco to spend two weeks with her brother. On November 21, 1987, Ruse and Woodruff moved to an apartment on Jefferson Street in Carlsbad. The utilities department gave Ruse's new address to Ricchio. On December 5, 1987, Ricchio, armed with the gun, left a threatening letter addressed to Woodruff at the apartment. Ruse and Woodruff called the police, and Officer Alex Mitkevich was dispatched. Shortly thereafter, Mitkevich found Ricchio in the neighborhood in her automobile. Mitkevich told Ricchio the pitfalls of violating a court order and told her to leave Ruse alone and stay away. Also on that day, Ricchio mailed another letter to Woodruff that read in part:
'Seems you wound up in a place I warned you to back away from. There is no way in hell I was going to give you the opportunity to spend time with Ron. Hope your three months was worth this,
Bitch. No one is about to replace my seven years. Unfortunately, this was the only solution. Ron made his bed, and I had to make sure he was going to lie in it. . . . I told you I would get him in the end.'
"On December 8, 1987, Ricchio went to the apartment complex on Jefferson Street to view apartments for rent. She chose the apartment next to Ruse and signed the rental agreement two days later.
"On December 14, 1987, Ruse was supposed to see his supervisor after work about working overtime that evening. A coworker of Ruse said Ruse received a phone call between 4[:00] p.m. and 5[:00] p.m., and then cancelled their plans to watch Monday Night Football. Ruse said something had come up but did not mention who called. Ricchio testified she called Ruse at work and told him she had rented the apartment next door and needed to talk to him and he agreed. Ruse failed to see his supervisor after work and punched out of work at 5:12 p.m. Meanwhile, Ricchio had gone to her new apartment at 4:30 p.m. and waited on the landing with her gun. At 5:30 p.m., witnesses in and near the apartment complex heard two groups of no more than five shots, interspersed with a man's anguished and pleading voice both before and between the shots. After the shooting, Ricchio ran out of the complex, through the alley and jumped a fence. She drove to a phone booth at a gas station in Oceanside and dialed 911. She told the operator where she was and said she had just shot Ron Ruse. Oceanside police officers found Ricchio in the phone booth, waving at them. She came out, threw her car keys at one of the officer's feet and said she had just shot someone in Carlsbad. She told the officers the gun was in the automobile.
"Testifying in her defense, Ricchio said she only intended to kill herself and make Ruse watch. Instead, she killed Ruse either in a heat of passion or what she believed was a need for self-defense, caused by Ruse's provocation—the lengthy relationship in which Ruse treated her like a yo-yo and a lunge toward her when she raised the gun to kill herself. Ricchio also said she shot Ruse while she was having an out-of-body experience."
The jury found Ricchio guilty of first degree murder with the personal use of a firearm and found true the special circumstance allegation that she committed the murder while lying in wait. The trial court sentenced Ricchio to an indeterminate prison term of 27 years to life. On direct appeal, this court affirmed the judgment. B. Ricchio's Parole Suitability Hearings
At her prior parole suitability hearings, Ricchio offered multiple conflicting versions of the events leading to the murder. In 2004, Ricchio echoed her trial testimony by casting herself as a victim of Ruse, who she claimed was abusive and had hired a man to murder her. Ricchio told the Board she had purchased the gun to protect herself and, immediately before shooting Ruse, saw him outside her apartment with a knife in his hand. Ricchio claimed Ruse threw a bag of groceries at her when she confronted him, which caused her to react by shooting him.
At her next parole board hearing three years later, Ricchio shifted her story. Like her testimony at trial, Ricchio claimed she purchased the gun with the intent to commit suicide and had intended to shoot herself on the day of the murder, but then shot Ruse in reaction to him lunging at her or throwing a bag of groceries at her while he had a knife in his hand. She also stated she used methamphetamine before killing Ruse.
At her next hearing, Ricchio changed her testimony once again to now claim she went to Ruse's house with the intent to murder him. She reverted to her previous explanation that she purchased the gun for protection. She still claimed that Ruse lunged at her with a grocery bag in his hand before she shot him. She also now claimed that she had not used methamphetamine on the day of the shooting.
In 2016, the Board again held a hearing and found Ricchio unsuitable for parole. At that hearing, Ricchio declined to discuss the details of her offense, but admitted she decided to kill Ruse six weeks prior to his death. In its decision, the Board told Ricchio that it "had problems with your credibility, and . . . it was a combination of selective memory and just blatant inconsistencies."
At her latest hearing in October 2017, Ricchio initially repeated her claim she purchased the gun for protection after Ruse threatened to hire someone to kill her. However, minutes later she changed her explanation and admitted she purchased the gun with the intent "to murder Ron." Consistent with this new version of events, she told the Board she rented the apartment next to Ruse because she "was completely bent on killing him." She also maintained that after she shot Ruse, she bent over beside him and touched him on the thigh before she fled and called 911.
The Board questioned Ricchio regarding her statements to a psychologist in 2016 about her behaviors directed toward Ruse before the murder. Ricchio told the psychologist she was not stalking Ruse. She told the Board her statements to the psychologist were "absolutely truthful." However, she then contradicted her statement to the psychologist and suggested that although she initially didn't feel she was stalking Ruse and she "was just wanting [her] boyfriend to come home," she could now see that her "overall" behavior was stalking. Ricchio did not attempt to reconcile her two inconsistent statements and instead insisted that she realized she was tormenting Ruse "in early 2004," but simply failed to articulate that understanding clearly at previous parole hearings.
Ricchio also admitted to being manipulative at the time of the offense. But she noted that she still believes manipulation can be "positive" to "get your needs met" if it is not harmful or detrimental to other people.
The Board recognized that Ricchio had made inconsistent statements in the past but found her current testimony to be credible. The Board concluded that Ricchio had gained enough insight into the offense, found her not currently dangerous, and granted parole. C. The Governor's Reversal of the Board's Grant of Parole
In March 2018, the Governor reversed the Board's decision to grant Ricchio parole. The Governor recognized the "positive steps" taken by Ricchio but found "they are outweighed by negative factors that demonstrate she remains unsuitable for parole." The Governor based his decision on the combination of two factors: the brutality of the murder and Ricchio's continued inability to "confront the reality of her actions."
To support his finding that Ricchio did not understand the gravity of her actions, the Governor focused on Ricchio's inconsistent statements regarding (1) whether she believed she was stalking Ruse; (2) her reason for purchasing the gun in the months before the murder; and (3) her insistence that after she shot Ruse, she reached out to touch his thigh, leading her to immediately realize the gravity of her actions.
The Governor found that "none of these statements are corroborated by the evidence." He characterized Ricchio's inconsistent testimony as an attempt to "minimize the terror she inflicted on Mr. Ruse and Ms. Woodruff for the last two months of Mr. Ruse's life."
The Governor concluded by stating: "I am concerned that Ms. Ricchio still does not fully apprehend the gravity of her actions and has yet to acknowledge the true nature of her crime. She must do much more to show that she has an adequate understanding of how she came to commit such a manipulative and callous crime." Accordingly, he determined that Ricchio "currently poses an unreasonable danger to society if released from prison" and reversed the Board's decision. D. The Trial Court's Order Granting Relief
Ricchio challenged the Governor's decision in a petition for writ of habeas corpus filed in the trial court. The court issued an order to show cause and ultimately granted relief without holding an evidentiary hearing. Recognizing that the Governor was concerned with Ricchio's lack of insight, the trial court acknowledged the Governor's credibility findings but found that the Governor "fails to state how these findings, if true, constitute credible evidence that Petitioner is currently dangerous."
The trial court faulted the Governor for failing to "include a factually identifiable deficiency in perception and understanding, much less one that tends to show that Ricchio currently poses an unreasonable risk of danger." The court characterized the Governor's concerns as "completely conclusory" and found Ricchio was entitled to relief because "the Governor's decision was based on guesses and irrational speculation rather than rational inferences based on the facts presented." Accordingly, the trial court ordered the Board's decision to be reinstated and that Ricchio be released from custody.
The Governor timely appealed and, by way of a petition for writ of supersedeas, asked this court to stay Ricchio's release. We granted the petition and stayed Ricchio's release during the pendency of this appeal.
A. Standard of Review
Judicial review of parole decisions is governed by the extremely deferential " ' "some evidence" ' " standard of review. (Shaputis II, supra, 53 Cal.4th at pp. 209-210.)
"It is settled that under the 'some evidence' standard, '[o]nly a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of [the Board or] the Governor. . . . As long as the . . . decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the . . . decision.' " (Shaputis II, supra, 53 Cal.4th at p. 210.)
Our standard of review is not affected by the somewhat unique procedural posture of this case on direct appeal from a trial court order granting habeas corpus relief vacating the Governor's decision. A Governor's reversal of the Board's decision may be challenged by the inmate via a petition for writ of habeas corpus filed in the superior court in the first instance. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz); In re Roberts (2005) 36 Cal.4th 575, 593.) If the trial court grants relief, the respondent may appeal. (Pen. Code, § 1507.)
If the trial court grants relief without conducting an evidentiary hearing, the "usual deference" to a trial court's ruling is "unwarranted" because "[t]he facts being undisputed, the question presented on appeal is a question of law, and we review such questions de novo." (In re Zepeda (2006) 141 Cal.App.4th 1493, 1497; see also Rosenkrantz, supra, 29 Cal.4th at p. 677.) "A reviewing court independently reviews the record if the trial court grants relief on a petition for writ of habeas corpus challenging a denial of parole based solely upon documentary evidence." (In re Lazor (2009) 172 Cal.App.4th 1185, 1192.) "Our deference is thus to the decision of the executive branch expressed by the Board or the Governor, not to the trial court." (In re Davidson (2012) 207 Cal.App.4th 1215, 1222.) Accordingly, our review focuses on the Governor's decision, not the trial court's decision granting habeas corpus relief. If we conclude the Governor's decision is supported by some evidence, we must reverse the trial court's order as erroneous. B. The Law Governing the Governor's Authority to Consider Ricchio's Parole Suitability.
The decision whether to grant parole is an inherently subjective determination (Rosenkrantz, supra, 29 Cal.4th at p. 655), which is guided by several factors, some objective, identified in Penal Code section 3041 and the Board's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) In making the suitability determination, the Board must consider "[a]ll relevant, reliable information," such as the nature of the commitment offense including behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude towards the crime; and parole plans. (Id., § 2402, subd. (b).) Whether an inmate is suitable for parole centers on an assessment of whether the inmate is currently dangerous. (In re Lawrence (2008) 44 Cal.4th 1181, 1205-1206 (Lawrence).) 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.)
The California Constitution grants the Governor the power to review a decision of the Board concerning the parole of a person sentenced to an indeterminate term upon a conviction for murder. (Cal. Const., art. V, § 8, subd. (b).) "Although 'the Governor's decision must be based upon the same factors that restrict the Board in rendering its parole decision' [citation], the Governor undertakes an independent, de novo review of the inmate's suitability for parole. [Citation.] Accordingly, the Governor has discretion to be 'more stringent or cautious' in determining whether a defendant poses an unreasonable risk to public safety. [Citation.]" (In re Shaputis (2008) 44 Cal.4th 1241, 1258 (Shaputis I).)
On appeal, Ricchio acknowledges the Governor's authority to independently consider her suitability for parole but asserts that the Governor "lacked the ability to make a competent credibility finding of Ms. Ricchio and her suitability for parole." She asserts that even if the Governor has the authority to make credibility decisions, it was impossible for him to properly exercise that authority by "merely reading cold transcripts." Her counsel suggests that "[a] face to face examination with Ms. Ricchio was necessary to insure she was completely understood, and for her credibility to be established."
This argument ignores the established rules governing the broad authority of the Governor to review parole decisions. As the Supreme Court routinely recognizes, the California Constitution vests the Governor with authority to review the Board's parole decision and "[r]esolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor." (Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.) Rather than urging courts to reject the Governor's reading of the "cold transcripts," the Supreme Court has instructed that "the Governor's interpretation of a documentary record is entitled to deference." (Shaputis I, supra, 44 Cal.4th at p. 1258, citing Rosenkrantz, supra, 29 Cal.4th at p. 677.) "When a court reviews the record for some evidence supporting the Governor's conclusion that a petitioner currently poses an unreasonable risk to public safety, it will affirm the Governor's interpretation of the evidence so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors." (Ibid.) Thus, recognizing the authority of the Governor, we decline Ricchio's invitation to disregard the Governor's credibility determinations. C. Ricchio's Arguments on Appeal Are Premised on an Inaccurate Interpretation of the Governor's Decision
On appeal, Ricchio challenges the Governor's decision primarily by offering an interpretation of the Governor's reasoning that is at odds with the plain language of his decision. Specifically, she contends the Governor improperly relied solely on the brutal nature of her commitment offense or, alternatively, her recent acceptance of responsibility as the basis for a denial of parole. Neither of these contentions is correct or persuasive.
Ricchio concedes the brutality of her underlying offense, but asserts the Governor relied solely on this factor and ignored other evidence demonstrating Ricchio's lack of current dangerousness. She further notes that she committed murder due to her jealousy toward Ruse and his new girlfriend, which she contends "is not a new or unusual root cause to murder, and therefore in itself cannot be a reason to deny parole when the causes that led to the crime had been addressed." She compares her commitment offense to the offense underlying the parole consideration in Lawrence, which she contends similarly arose from a pique of jealousy.
As Ricchio correctly notes, the gravity of the commitment offense, standing alone, cannot justify the denial of parole. (In re Stoneroad (2013) 215 Cal.App.4th 596, 621; see also Lawrence, supra, 44 Cal.4th at p. 1212.) However, contrary to Ricchio's assertions on appeal, the Governor's decision was not based solely on the brutality of Ricchio's murder of Ruse. Rather, as plainly stated in his decision, the Governor focused on Ricchio's ongoing "attempts . . . to manipulate the facts of her crime" and her statements revealing she still fails to understand the gravity of her actions or adequately understand how she committed murder. The Governor was concerned with Ricchio's current understanding of the circumstances of her life crime—not the circumstances of the crime standing alone—when he concluded that were she paroled, Ricchio presents an unreasonable risk of danger to public safety. As we discuss in depth post, established law demonstrates that the factors relied upon by the Governor are appropriate for determining whether an inmate is currently dangerous. (See, e.g., In re Stevenson (2013) 213 Cal.App.4th 841, 869 (Stevenson) [Board's conclusion that inmate minimized and downplayed his culpability and failed to confront the true gravity of the offense properly supported denial of parole]; In re Shippman (2010) 185 Cal.App.4th 446, 459 [Board reasonably determined inmate was currently dangerous due to his inadequate understanding of the causative factors triggering the commitment of the offense].)
The Governor's focus on Ricchio's current mental state distinguishes her case from the Governor's decision in Lawrence. There, the Supreme Court noted that "[i]n light of petitioner's extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board at successive hearings—decisions reversed by the Governor based solely upon the immutable circumstances of the offense—we conclude that the unchanging factor of the gravity of petitioner's commitment offense has no predictive value regarding her current threat to public safety, and thus provides no support for the Governor's conclusion that petitioner is unsuitable for parole at the present time." (Lawrence, supra, 44 Cal.4th at p. 1226, italics added.) Here, unlike Lawrence, the Governor found the current lack of insight by Ricchio into her commitment offense and her antisocial behavior is evidence that she remains a current threat to public safety. In this regard, Lawrence is completely inapposite.
Ricchio also offers an interpretation of the Governor's decision as improperly rejecting her "late acceptance of responsibility." Ricchio compares the Governor's decision here to the decision in In re Lee (2006) 143 Cal.App.4th 1400, where the appellate court held the Governor's decision was not supported by some evidence. In Lee, the Governor concluded that although the inmate had finally accepted responsibility for his crimes, this realization was "too recent" to warrant a grant of parole. (Id. at p. 1405.) The Court of Appeal concluded that because the Governor challenged only the timing, not the genuineness, of the inmate's remorse, this was an improper basis on which to deny parole. "So long as Lee genuinely accepts responsibility, it does not matter how long-standing or recent it is." (Id. at p. 1414.)
Unlike Lee, the Governor's decision here does not turn on the late timing of Ricchio's expression of remorse or gain of insight. Contrary to Ricchio's interpretation, the Governor concluded Ricchio still lacks insight into why she murdered Ruse. As framed by the Governor, he found that Ricchio "still struggles to confront the reality of her actions" and "still does not fully apprehend the gravity of her actions and has yet to acknowledge the true nature of her crime." (Italics added.) It is this finding that she presently lacks insight that underlies the Governor's finding that she is currently dangerous. Thus, the holding of Lee does not affect our decision. D. The Governor's Decision Is Supported by Some Evidence That Ricchio Poses a Current Threat to Public Safety
In stark contrast to Ricchio's inaccurate interpretation, the Governor's decision finds Ricchio to be currently dangerous because she committed a brutal crime and continues to minimize her culpability and not comprehend the gravity of her actions despite years of programming and reflection, thereby demonstrating that she lacks insight into her current offense. In the words of the Governor, "I am concerned that Ms. Ricchio still does not fully apprehend the gravity of her actions and has yet to acknowledge the true nature of her crime."
In Shaputis I, decided at the same time as Lawrence, the Supreme Court explained that when an inmate who committed a brutal crime also lacks insight into the crime and her antisocial behavior, the inmate poses a risk to public safety and is unsuitable for parole. "By statute, it is established that the gravity of the commitment offense and petitioner's current attitude toward the crime constitute factors indicating unsuitability for parole, and because . . . these factors provide evidence of the risk currently posed by petitioner to the community, they provide 'some evidence' that petitioner constitutes a current threat to public safety." (Shaputis I, supra, 44 Cal.4th at p. 1246.)
In Shaputis II, the Court reaffirmed that an inmate's lack of insight into the commitment offense is a common and critical factor in determining whether an inmate is suitable for parole. "In Lawrence, we observed that 'changes in a prisoner's maturity, understanding, and mental state' are 'highly probative . . . of current dangerousness.' [Citation.] In Shaputis I, we held that this petitioner's failure to 'gain insight or understanding into either his violent conduct or his commission of the commitment offense' supported a denial of parole. [Citation.] Thus, we have expressly recognized that the presence or absence of insight is a significant factor in determining whether there is a 'rational nexus' between the inmate's dangerous past behavior and the threat the inmate currently poses to public safety. [Citations.]" (Shaputis II, supra, 53 Cal.4th at p. 218.)
Examination of a prisoner's insight requires a "particularly individualized consideration: 'expressions of insight and remorse will vary from prisoner to prisoner and . . . there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior.' " (Shaputis II, supra, 53 Cal.4th at p. 219, fn. 12.) "Accordingly, the inmate's insight into not just the commitment offense, but also his or her antisocial behavior, is a proper consideration." (Id. at p. 219.)
The lack of insight establishes the nexus between the commitment offense and current dangerousness because it reveals that the inmate, after decades of incarceration and rehabilitation, continues to demonstrate a failure to address the deficiencies that led the inmate to commit murder and, therefore, that the inmate is at risk of reoffending if released. (See, e.g., Lawrence, supra, 44 Cal.4th at p. 1228.) Similarly, our courts have repeatedly observed that an inmate's minimization of the gravity of the criminal misconduct that he or she carried out can be a " 'significant predictor of an inmate's future behavior should parole be granted.' " (Stevenson, supra, 213 Cal.App.4th at p. 869; accord, In re Tapia (2012) 207 Cal.App.4th 1104, 1112 (Tapia) ["An inmate's downplaying or minimizing aspects of the commitment offense reflects a denial of responsibility, and is probative of current dangerousness."].)
Here, the trial court recognized that an inmate's current lack of insight may support a finding of current dangerousness, but faulted the Governor's determination that Ricchio lacks insight, asserting it was based on "guesses and irrational speculation." Relying on In re Ryner (2011) 196 Cal.App.4th 533, 548-549 [a lack of insight is indicative of current dangerousness only if it shows a material deficiency in an inmate's understanding and acceptance of responsibility for the crime], the trial court concluded that the Governor's decision does not "include a factually identifiable deficiency in perception and understanding, much less one that tends to show that Ricchio currently poses an unreasonable risk of danger." We disagree.
The Governor's decision notes that Ms. Ricchio has made many attempts over the years to manipulate the facts of her crime to put her actions into a less-callous light. And, "[w]hile her version of the crime has come closer to the facts in the record, she still struggles to confront the reality of her actions." He identified three deficiencies in Ricchio's current understanding of the commitment offense and her antisocial behavior that mirror Ricchio's failed attempts, made decades ago at trial to downplay her culpability by asserting she had no plan to kill Ruse, but rather shot him "either in a heat of passion or what she believed was a need for self-defense, caused by Ruse's provocation." Specifically, what concerned the Governor were: Ricchio's comments and reluctance to characterize her premurder behavior toward Ruse and Woodruff as "stalking"; Ricchio's statement that she bought the murder weapon only because Ruse had threatened to kill her, and Ms. Woodruff had threatened to beat her up; and Ricchio's statement that immediately after she shot Ruse, she reached out and touched his thigh. According to the Governor, "none of these statements are corroborated by the evidence in the record." Instead, what the jury found, and what the record shows, is "[t]his brutal crime was the culmination of a calculated, all-out campaign to ruin . . . Ruse's life. After Ms. Ricchio stalked, harassed, and threatened Mr. Ruse for months, she moved into the apartment directly next to his, and shot him multiple times in the side and back as he fled for his life."
As we explain below, contrary to the trial court's view, the factually identifiable deficiencies in Ricchio's perception and understanding of Ruse's murder and her antisocial behavior which were identified by the Governor are significant within the meaning of established case authority and show Ricchio is currently dangerous and unsuitable for parole. We now turn to an examination of the materiality of the three insight deficiencies identified by the Governor.
1. Ricchio's Comments and Reluctance to Characterize Her Antisocial Behavior Toward Ruse and Woodruff as "Stalking" Demonstrate She Continues to Downplay and Minimize Aspects of the Commitment Offense
In the two months before Ruse's murder, Ricchio engaged in an all-out campaign to ruin Ruse's life, using manipulation and deceit of others to do so. This campaign ultimately led to Ruse's murder. As the Governor notes, and the record supports, Ricchio showed up uninvited to Ruse's home, his job, and sporting events, contacted his family and friends for information regarding the name of his new girlfriend and the location of their new apartment, searched DMV records for information about Ms. Woodruff and wrote to her. Yet, in the words of the Governor, Ricchio's "comments and reluctance to characterize her actions as stalking minimize the terror she inflicted on Mr. Ruse and Ms. Woodruff for the last two months of Mr. Ruse's life." And, rather than acknowledge the seriousness of her behavior, Ricchio continued to maintain that manipulation can be positive to get your needs met.
Ricchio's reluctance to admit the gravity of her antisocial behavior toward Ruse and Woodruff is evidenced by her shifting and inconsistent statements about her conduct at her most recent parole hearing. As recently as 2016, Ricchio told a psychologist that she was not stalking Ruse before murdering him. When asked at her 2017 parole hearing about her statements to the psychologist, she said her statements to the psychologist were "absolutely truthful." Ricchio then reluctantly acknowledged that her "overall" actions could be characterized as stalking, even though she initially felt she "was just wanting my boyfriend to come home."
Additionally, while Ricchio tried to clarify that manipulation is not positive if it is harmful to other people, Ricchio's statement provides ample reason for the Governor to be concerned. As discussed in the direct appeal opinion, Ricchio manipulated others to locate Ruse and to interfere in his relationship with Woodruff. While Ricchio's manipulation and use of deceit to target Ruse did not directly "harm" the people Ricchio manipulated, her actions played a direct role in the eventual murder of Ruse. Ricchio's recent statements suggest a continued willingness to use others to achieve her goal, even if it is criminal.
Established case law provides that an inmate's downplaying or minimizing aspects of the commitment offense reflects a denial of responsibility and is probative of current dangerousness. (Tapia, supra, 207 Cal.App.4th at p. 1112.) Ricchio's minimization of her stalking of Ruse and Woodruff, and her use of manipulation and deceit to do so is a material deficiency in her understanding and acceptance of responsibility for the commitment offense, tending to show she is currently dangerous. Without understanding the serious impact of her antisocial behaviors and how they led to Ruse's murder, Ricchio cannot develop "a commitment to ending a previous pattern of violent behavior." (Shaputis I, supra, 44 Cal.4th at p. 1260, fn. 18.)
2. Ricchio's Inconsistent Statements Regarding Her Reasons for Purchasing the Murder Weapon Reflect Her Failure to Acknowledge the Level of Planning Involved in the Premeditated Murder of Ruse
The Governor was also concerned with Ricchio's understanding and failure to acknowledge the level of planning involved in her murder of Ruse, suggesting a refusal or inability to fully acknowledge the gravity of her actions. An inmate's continued minimization of the commitment offense, demonstrated by statements which may be regarded as "downplaying and not fully confronting the gravity of the criminal misconduct that he [or she] intended and carried out," may support the conclusion that an inmate poses an unreasonable risk to public safety if released. (Stevenson, supra, 213 Cal.App.4th at p. 869.) Downplaying the gravity of the commitment offense by minimizing or denying the level of planning and intent involved in the murder demonstrates a lack of current insight into the circumstances of the crime. (In re Taplett (2010) 188 Cal.App.4th 440, 450 (Taplett).)
Since her trial, Ricchio has consistently struggled to admit she intended to kill Ruse rather than shooting him in the heat of passion or in self-defense. Although she now admits an intent to kill Ruse, her continued contradictory statements about why she purchased the murder weapon demonstrate a material deficiency in her understanding of her offense and suggest she still fails to acknowledge the true level of planning involved in her murder of Ruse.
At prior hearings, Ricchio claimed to have purchased the gun either to protect herself or to commit suicide in front of Ruse. At her most recent hearing, Ricchio first claimed she purchased the gun to protect herself from Ruse or someone hired by Ruse to kill her. During the same hearing, she then changed her explanation to claim she purchased the gun with the intent to murder Ruse. Minutes later, she changed her story again to revert to her claim that she "did buy the gun initially for protection" and denied she was a "calculated planner" who "sat down and planned this whole thing out."
The Governor was reasonably concerned that these inconsistent statements by Ricchio were part of an effort, in his words, to "mask her true reason for purchasing the gun," suggesting an attempt to minimize her culpability. (See, e.g., Rosenkrantz, supra, 29 Cal.4th at p. 674 [inmate's inconsistent statements attempting to mitigate culpability and evade responsibility demonstrate unsuitability for parole].) These inconsistent statements demonstrate Ricchio still lacks insight and understanding into the brutal, calculated murder of Ruse.
3. Ricchio's Reliance on an Implausible Version of Events After the Murder to Demonstrate Remorse Indicates She Continues to Try to Minimize Her Culpability
Finally, the Governor was concerned that although Ricchio admits to shooting Ruse, she continues to rely on an implausible version of events to downplay her culpability and present herself in a more favorable light. When an inmate "continues to cling to the entirely implausible theory" of the offense, the Governor may reasonably conclude the inmate "lacks insight into the crime and has not honestly addressed the underlying issues" leading to the murder. (In re Busch (2016) 246 Cal.App.4th 953, 969; see also Taplett, supra, 188 Cal.App.4th at p. 450 [Governor's finding of lack of insight supported by inmate's description of the circumstances surrounding the murder that "differ markedly from the facts" of the offense related by other witnesses].) An inmate's lack of insight may be evidenced by her description of the commitment offense premised on "rationalization . . . and detachment" from the true nature of the crime. (In re Shigemura (2012) 210 Cal.App.4th 440, 457.)
Here, the Governor relied, in part, on Ricchio's statements setting forth an implausible version of events immediately after the shooting to conclude she "does not fully apprehend the gravity of her actions and has yet to acknowledge the true nature of her crime." Ricchio claimed that immediately after she shot Ruse, she "bent over beside him and touched his thigh while he was on the sidewalk . . . before he knocked on [his neighbor's] door." Ricchio told the Board that at the moment she knelt and touched Ruse, she realized "what I did was absolutely wrong."
Ricchio's version of events, however, could not have happened. As the Governor's decision states: "[t]here is no indication that Ms. Ricchio's story about reaching out to touch Mr. Ruse has any foundation in the truth. . . . Ms. Ricchio immediately fled the scene, and Mr. Ruse was able to stagger to a neighbor's apartment before he fell to the floor and lost consciousness." The Governor's conclusion is supported by the neighbor's trial testimony. Ruse's neighbor testified that after she heard gunshots, Ruse immediately yelled for help and quickly knocked on her door. The neighbor opened the door and Ruse walked in before collapsing. The Governor reasonably concluded that Ricchio's claim she knelt beside Ruse, touching him lovingly and with immediate remorse, is not credible given that the neighbor testified that Ruse walked into her apartment immediately after being shot.
The Governor was properly concerned that Ricchio's version of events downplayed her culpability. Her statements rely on this moment to establish her deep remorse for shooting Ruse and to imply that Ruse's murder was not Ricchio's intended goal, but rather the result of a rash impulse followed by an immediate realization of her wrongdoing. The Governor reasonably concluded that this fabricated moment reflected that Ricchio continues to refuse to acknowledge the true nature of her crime, reflecting a lack of insight into the offense.
In summary, considering the totality of the evidence, we conclude the Governor's decision identifies material deficiencies in Ricchio's current insight into Ruse's murder and her antisocial behavior despite years of rehabilitative programming during her incarceration, reflecting that her character remains unchanged. (Shaputis I, supra, 44 Cal.4th at p. 1260.) Moreover, Ricchio's lack of insight establishes that "the aggravated circumstances of the commitment offense . . . continue to provide 'some evidence' of current dangerousness even decades after commission of the offense." (Lawrence, supra, 44 Cal.4th at p. 1228.)
Based our independent review of the entire record, we hold that the Governor properly made an individualized inquiry into Ricchio's suitability for parole by applying the relevant statutory factors and that some evidence supports his conclusion that Ricchio poses an unreasonable danger to society if released from prison. Accordingly, the trial court's order must be reversed.
The trial court's order granting Ricchio's petition for writ of habeas corpus is reversed. On remand, the trial court is directed to enter a new order denying the writ petition. The stay of execution of the superior court's order, previously issued by this court on January 18, 2019, is vacated upon finality of this opinion.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.