NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H8664B)
Petitioner Corey Glassman seeks habeas corpus relief from the decision of the Governor overturning for the second time the determination of the Board of Parole Hearings (the Board) that he is suitable for parole. Glassman's crime, committed as a juvenile more than 30 years ago, was—as all parties recognize—truly horrific. Nonetheless, the Governor's decision that Glassman currently presents an unreasonable risk of danger to society is not supported by "some evidence," so that we must set it aside and reinstate the Board's decision finding Glassman suitable for parole.
STATEMENT OF FACTS
On February 18, 1986 Glassman, who was then 16 years old, murdered and robbed Junko Owaki, a foreign exchange student. He was convicted of first degree murder with use of a deadly weapon and sentenced to 26 years to life in prison.
He was also convicted of robbery and an associated firearms enhancement for which a nine-year sentence was imposed and stayed.
In 2014, the Board found Glassman suitable for parole but the Governor reversed that decision. One year later, on October 27, 2015, the Board again found that Glassman "does not pose an unreasonable risk of danger to society or a threat to public safety and is therefore eligible for parole." Governor Brown again reversed the Board, concluding that Glassman "currently poses an unreasonable danger to society if released from prison."
The Board's decision which the Governor has overturned acknowledges, as all agree, that Glassman's life crime was "atrocious," "cruel," and "horrific." The victim suffered a "horrific death," having been mutilated and abused. Nonetheless, the Board also weighed Glassman's "lengthy period of positive rehabilitation," his diminished capacity as a juvenile, his vulnerability, and his exposure to deviant peers and an abusive, predatory park ranger. The Board was convinced that he has matured and been rehabilitated. The Board believed Glassman has "reflected on his life crime, . . . demonstrated remorse, and accept[ed] full responsibility for his actions." The Board acknowledged that the Governor reversed its 2014 decision finding Glassman suitable for parole, but found that Glassman had addressed the issues raised by the Governor at that time, having subsequently engaged in extensive substance abuse-related activities. The Board described Glassman's substance abuse efforts as "extensive." It considered his parole plans—going to a transitional home—to be "realistic." Finally, the Board noted two comprehensive risk assessments, which determined that Glassman presented "a statistically low risk to reoffend in the free community."
In his decision reversing the Board, the Governor summarized the commitment offense as follows: "Junko Owaki was an 18-year-old foreign exchange student from Japan. On February 18, 1986, Corey Glassman and Gina Florio were drunk and leaving a friend's house and saw Ms. Owaki. Ms. Owaki mentioned to Mr. Glassman that she had just received $2,200 from her father to pay for car repairs. Mr. Glassman told Ms. Florio about the money, and Ms. Florio said she wanted to steal the money, but said that they would have to kill Ms. Owaki to avoid getting caught. Mr. Glassman agreed. Ms. Florio and Mr. Glassman lured Ms. Owaki through a field and tunnel until they reached a drainage ditch. During the walk, Ms. Florio handed her knife to Mr. Glassman. Once at the drainage ditch, Ms. Florio and Mr. Glassman grabbed Ms. Owaki and slammed her head against a wall several times. Ms. Owaki said, "I know what you want. Just take the money" and promised not to report them to the police. Mr. Glassman said, "No, we can't take that chance." Mr. Glassman tried to kill Ms. Owaki by slitting her throat and strangling her. Mr. Glassman repeatedly stabbed Ms. Owaki in the head, back and hands. He eventually discarded the knife on the ground, and Ms. Florio picked it up, jammed it into Ms. Owaki's throat, and twisted it around. Mr. Glassman then stuck his fingers inside Ms. Owaki's throat and ripped her flesh apart. Ms. Owaki was stabbed 99 times, including 40 times in the throat, and with such force that the blade penetrated her brain and broke two bones in her spine. Mr. Glassman and Ms. Florio pushed Ms. Owaki's body into the drainage water, took her purse, and fled."
Although not specifically noted in its statement of decision, the Board was also aware that Glassman's most recent discipline was in 1996 and that he had engaged in extensive vocational and self-help programming.
The Governor's decision recited that Glassman committed the murder when he was 16 years old and that he has been incarcerated for nearly 30 years. The Governor acknowledged Glassman's reports of having experienced a "tumultuous childhood, including the unexpected death of his father, sexual abuse at the hands of a mentor, and losing a close relationship with his stepfather." He also noted Glassman's alcohol and drug use, starting at 11 or 12 years of age. He recognized that Glassman has been free of serious misconduct since 1996 and participated in various self-help programs, including Alcoholics Anonymous and Codependence Awareness and Substance Abuse. He credited Glassman for his "increased maturity and rehabilitation" and "gave great weight [in his consideration] to all the factors relevant to the diminished culpability of juveniles." Nonetheless, he reversed the Board's decision based on two factors: the utterly reprehensible nature of the crime and Glassman's failure to offer an "adequate explanation for how he came to commit this heinous crime." Elaborating on this second factor, the Governor wrote: "[Glassman] told the Board at his 2015 hearing that greed, entitlement, selfishness, and his desire to buy drugs motivated him to rob M. Owaki. He explained that when Ms. Florio suggested killing her, Mr. Glassman agreed because he felt trapped and did not want to lose Ms. Florio's friendship. He said that after enduring losses during his childhood, he craved a place in a group and felt it was important to feel connected and not alone. These explanations and Mr. Glassman's age at the time may shed some light on why he would rob Ms. Owaki, but they do not sufficiently explain why he was so willing to kill her in such a violent manner. Mr. Glassman reported that even after Ms. Owaki offered to give them the money and promised not to tell the authorities about the robbery, he 'just told her matter-of-factly that we can't take that chance.' Ms. Owaki gave him a way out, and instead of taking it, he coldly and savagely attacked her. Mr. Glassman must do more to account for the extreme nature of his attack on Ms. Owaki. Until he does so, I cannot be assured that he will refrain from violence in the face of future challenges."
Glassman filed a petition for a writ of habeas corpus in the superior court, which was denied. After reviewing his petition and informal briefing in this court, we issued an order to show cause. A formal return and traverse having now been filed and oral argument heard, we conclude that Glassman is entitled to relief.
The statutory and regulatory framework governing the right to parole has been restated in numerous decisions and need not be repeated at length here. An inmate is suitable for parole unless posing "an unreasonable risk of danger to society if released from prison." (Cal. Code Regs., tit. 15, § 2281.) The regulations list six factors tending to show an inmate is unsuitable for release and nine factors that tend to show suitability for parole. (Cal. Code Regs., tit. 15, § 2402.)
Our review is pursuant to the "some evidence standard." (In re Shaputis (2011) 53 Cal.4th 192, 199 (Shaputis II).) We do not reweigh evidence. "Only when the evidence reflecting the inmate's present risk to public safety leads to but one conclusion may a court overturn a contrary decision by the Board or the Governor. In that circumstance the denial of parole is arbitrary and capricious, and amounts to a denial of due process." (Id. at p. 211.)
The Governor based his decision on two factors: "the horrific nature of the crime" and his perception that Glassman had not adequately accounted for "the extreme nature of his attack on Ms. Owaki" in order to be assured that he "will refrain from violence in the face of future challenges." We agree with the Governor's characterization of the crime as "senseless and shocking," "vicious," and "utterly reprehensible." The decision to parole an inmate, however, turns primarily on an assessment of his current dangerousness. (In re Lawrence (2008) 44 Cal.4th 1181, 1205-1206.) The aggravated circumstances of a commitment offense constitute evidence of current dangerousness only when "the record also establishes that something in the prisoner's pre- or post-incarceration history, or his 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 of the statutory determination of a continuing threat to public safety." (Id. at p. 1214.) The nature of the crime committed some 31 years ago is relevant to his current dangerousness only if there is evidence that it is a valid predictor of the risk he currently would present were he released. (See e.g., In re Stoneroad (2013) 215 Cal.App.4th 596, 621; In re Burdan (2008) 169 Cal.App.4th 18, 36 ["[W]here the circumstances of the commitment offense are used to justify the denial of parole, 'the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense.' "], citing In re Shaputis (2008) 44 Cal.4th 1241,1254-1255 (Shaputis I).)
Although the Governor does not use the term "insight," his concern is that Glassman lacks sufficient insight to provide assurance that he will not engage in further violent acts if released. Insight is not specifically listed as one of the relevant factors in the regulations, but "insight is well within the scope of the parole regulations" and is a commonly used factor in making parole decisions. (Shaputis II, supra, 53 Cal.4th at pp. 217-218.)
The Shaputis II court explained that although there is a subjective aspect to insight, the court's role is an objective one—insuring that the Governor's public safety analysis is based on a modicum of evidence, "not mere guesswork." (Shaputis II, supra, 53 Cal.4th at p. 219.) Shaputis I provides a useful paradigm to follow, illustrating how to objectively review evidence of a subjective phenomenon such as insight. Shaputis murdered his wife. (Shaputis I, supra, 44 Cal.4th at pp. 1246-1247.) Despite his admission that he had been wrong in doing so and his expressions of remorse, there was objective evidence of his lack of insight. Shaputis insisted that the shooting was accidental, but the characteristics of the murder weapon were such that it could not have been fired accidentally (id. at p. 1248), and he minimized his responsibility for his lengthy history of domestic violence (id. at p. 1260).
In this case, there is considerable evidence that Glassman has gained insight into his crime. In testimony before the Board, in his psychological assessments, and in introspective writings, Glassman explained his feelings of loss and insecurity when his father died. When his mother remarried he felt rejected by his stepfather, and he formed a relationship with a park ranger who introduced him to drugs and alcohol and repeatedly molested him—ultimately leading to further feelings of rejection, abandonment, shame, and guilt. Ultimately, this insecurity led him to look to others for his sense of value and self-esteem—especially to Florio, who was charismatic, and whom he wanted to please. In conceiving the plan to steal Junko's money and to murder her, his desire to get high, greed and selfishness initially motivated him. Furthermore, his judgment was impaired by alcohol and marijuana. He elaborated, "I had practice disconnecting from my feelings after the molestation, and through drugs and alcohol. I was not feeling very much [of anything] on the day of the crime." In addition, Glassman wrote extensively introspectively considering why he had been willing to commit "this callous crime." He also reflected on how Owaki would describe what had happened, and wrote letters of apology to the victim and her family.
For example, after elaborating on several instances in his life in which he had experienced rejection and a feeling of shame and abandonment, Glassman wrote that seeking Florio's approval, he agreed to the robbery and murder. He wrote: "I feared that saying 'no' to [Florio] would cause her to like me less, because I did not support her. And all of my other friends would follow suit, because we all looked to her for guidance. I would then be alone again, and I desperately did not want to feel alone ever again. So I said yes, and I closed myself off to what I was about to do, and I focused on my relationship with [Florio] and holding onto the acceptance of my friends. At that moment, I lost my humanity and I chose to murder Junko Owaki."
Glassman imagined Owaki's brutal experience: "I fought desperately against them both. I was not strong enough and I began to hurt so much from the wounds I was receiving. . . . Was it simply to torture me? I felt terrified of what was happening and completely helpless to stop it. I continued to fight as well as I could but in the end they murdered me and left me in that drainage ditch alone and in a country I had come to love, yet somewhere that was far away from my own country, and my family, whom I loved. They didn't call an ambulance, or the police. I had been murdered by two people I believed I could trust, but instead had betrayed me. I missed my mother and my father and I wished now that they told me I couldn't experience America, that I had to stay home. I feel I disappointed my family. I miss them and I hope they forgive me."
Dr. Hoyt, the psychologist who evaluated Glassman in 2014, wrote: "Mr. Glassman appears to have gained appropriate insight into himself and into his actions at the time of the commitment offense." Elaborating further, he wrote: "In this evaluator's opinion, Mr. Glassman understands and appreciates factors leading to the commitment offense including his substance abuse, his characterological problems, the depth of the anger and disappointment he was feeling about his father dying and how he repeatedly made failed attempts at replacing his father. He discussed the anger he felt when molested by the park ranger, as well as the disappointment he felt after the park ranger no longer wished to spend time with him; his mother being frequently away at work; him having to stay with babysitters; and his feeling rejected by his stepfather. He discussed his insight into his use of intoxicating substances and how he inappropriately turned to friends for approval who were abusing alcohol/drugs and involved in criminal activities. He reportedly looked to these individuals as role models, especially Gina, who was purportedly the leader of his group of friends, who was also his crime partner in the commitment offense. He presented as having insight into the depth of his substance abuse problems. He is currently a member of AA/NA, is a mentor of SAP [substance abuse program], and understands the necessity of continuing to participate in substance abuse recovery treatment on parole." Dr. Hoyt opined that Glassman presents a low risk of future violence.
In his 2015 subsequent risk assessment Dr. Brynjulfsen agreed that Glassman's overall risk of future violence was low. Regarding insight, he wrote: "On the whole, it is this writer's opinion that Mr. Glassman currently evidenced discernible elements of insight into his life offense. He accepted culpability and generally did not appear to trivialize, minimize his responsibility, or externalize blame. He was able to list and discuss many plausible external and internal contributing factors. He was aware of some ways other people were likely impacted by his crime. He did not question the degree to which his life sentence was fair to him."
Finally, the Board found that although Glassman initially was immature and failed to appreciate the risk and consequences of his actions, he had matured and been rehabilitated. He demonstrated remorse and full acceptance of responsibility for what he had done. He had positively addressed and corrected the issues raised by the Governor when overturning the Board's prior finding of suitability, participating in extensive substance abuse-related activities.
The Governor is not bound by Glassman's statements, the psychologists' opinions, or the Board's decision. (In re Lawrence, supra, 44 Cal.4th at p. 1204 ["the Governor undertakes an independent, de novo review," which may adopt a more stringent or cautious standard].) Nonetheless, his decision must be based on "some evidence" in the record. (Ibid.; see also In re Denham (2012) 211 Cal.App.4th 702, 716 [the parole authority's refusal to accept evidence demonstrating understanding and remorse is insufficient to conclude that the inmate lacks insight or that he remains a danger].) Moreover, as this court has previously stated, evidence of lack of insight must show a material deficiency in an inmate's understanding and acceptance of responsibility for the crime. (In re Hunter (2012) 205 Cal.App.4th 1529, 1542.) There must be a connection between an alleged lack of insight and the assessment that the inmate is dangerous. (In re Morganti (2012) 204 Cal.App.4th 904, 925.)
Here, the Governor failed to point to any evidence that Glassman lacks insight. The Governor's opinion identifies no evidence analogous to the evidence in Shaputis I demonstrating a lack of insight. His decision merely states that Glassman "must do more" to account for the extreme nature of his crime. But the courts have recognized that it is nearly impossible to "fully comprehend the myriad circumstances, feelings, and current and historical forces that motivate conduct, let alone past misconduct." (In re Ryner (2011) 196 Cal.App.4th 533, 548.) Articulating "the complexity and consequences of past misconduct and aton[ing] for it to the satisfaction of everyone" may also be impossible. (Ibid.) Here the heinous crime was committed by a juvenile; it may be impossible to understand the offense rationally because it was conceived of, agreed to, and executed by an immature mind. (See Pen. Code, § 4801, subd. (c); see also Miller v. Alabama (2012) 567 U.S. 460 [discussing evidence of juvenile's diminished responsibility and superior potential for reform, as compared with adults].) Glassman's explanations may never provide a satisfying understanding of the psychological factors that prompted him to commit the crime, but that is not the test. Because the Governor points to no evidence supporting a finding that Glassman lacks insight, much less to evidence connecting any lack of insight to a heightened assessment of dangerousness, there is no basis to find him unsuitable for parole.
The one fact the Governor discusses is that Owaki offered to give Glassman and Florio her money and not tell the authorities about the robbery. Rather than accepting the "way out" she offered, Glassman "coldly and savagely attacked her." While this fact makes the crime all the more heinous, it is not evidence of Glassman's current lack of insight. --------
The Attorney General primarily relies on In re LeBlanc (2014) 226 Cal.App.4th 452 to support the Governor's decision. In LeBlanc, Division One of this court upheld the Governor's decision reversing a grant of parole because the petitioner did not provide an adequate explanation of his crime. (Id. at p. 457.) LeBlanc regularly abused his partner, Williams, and murdered her older child. (Id. at p. 453.) Apparently LeBlanc understood the psychological dynamics resulting in his terrorizing Williams, but he offered no explanation for murdering her two-year-old son. (Id. at p. 457.) He viewed the child's murder as "an extension of the domestic violence he directed against Williams," rather than a distinct, murderous rage towards the child, exacerbated by alcohol. (Id. at pp. 457-458.) Furthermore, discrepancies between what he told the psychologist and the Board evidenced his failure to have internalized the limited insight he professed. (Id. at p. 458, fn. 2.) Finally, the psychologist who prepared LeBlanc's risk assessment noted that LeBlanc " 'continue[d] to struggle with managing his anger in a constructive manner.' " (Id. at p. 458.) Thus, rather than support the Governor's decision, the contrast between the evidence presented in LeBlanc and the absence of such evidence here underscores the reason for which the finding of Glassman's unsuitability cannot be sustained.
For the reasons explained above, the Governor's decision denying parole is reversed; the Board's decision that Glassman is suitable for parole is hereby reinstated.
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________