EPSTEIN, P. J.
The People appeal from an order of the superior court granting the petition for a writ of habeas corpus of petitioner Michael R. Mirabal, a state prisoner, and vacating Governor Arnold Schwarzenegger's reversal of the Board of Parole Hearings' ("Board") 2008 decision granting petitioner parole. (Pen.Code, § 1507.) Appellant contends that the superior court erred in vacating the Governor's decision to reverse the Board's determination that petitioner is suitable for parole because there is "some evidence" to support the Governor's conclusion that petitioner currently is dangerous. (In re Lawrence (2008) 44 Cal.4th 1181, 1191.) We find that some evidence supports the Governor's decision that petitioner is unsuitable for parole and therefore reverse.
Petitioner pled guilty to second degree murder in 1981 after he and two acquaintances, Armando Parra and David Baldazo, beat, drugged, and suffocated James Sommars. According to the probation report generated at the time of the plea, in August 1979, when petitioner was 23 years old, he was introduced to the victim at a bar by Parra and Baldazo. The three of them left the bar with the victim and went to the victim's apartment, where petitioner performed a sex act on the victim.
Petitioner and the other two perpetrators then forced the victim to swallow some pills to make him sleepy, beat him, tied him up with a telephone cord, and placed a pillow over his head so that he could not breathe. After the victim died, they wrapped his body in a sheet, took his television set, stereo, and other possessions, and left his body in his apartment. Petitioner was arrested in Montana in October 1979.
After his first trial resulted in a mistrial, petitioner pled guilty and was sentenced to 15 years to life. The probation officer reported that petitioner denied involvement in the murder and the theft of the victim's property. Petitioner told the probation officer that he pled guilty because he was "`cornered'" by false statements made by Baldazo and witnesses. Petitioner's minimum eligible parole date was August 18, 1990.
Over the years, petitioner has supplied contradicting versions of the offense. When petitioner pled guilty in 1981, he denied involvement in the murder and claimed that he pled guilty only because he was "`cornered.'" A 1992 evaluation reported that petitioner "readily admits he ultimately killed the victim but his reasoning is nonsensical." Petitioner explained that he killed the victim "`because the other guy couldn't do it'" and so the victim could not identify him. The next evaluation was in 2000. At that time, petitioner denied going to the victim's apartment with any intent to commit robbery or murder. Petitioner reported that "the co-defendants tackled the victim and that he joined in the attack, binding and subsequent robbery of the victim. He denies, however, taking part in the torture of the victim. He denies smothering the victim, but does take responsibility for strangling him." In a 2003 evaluation, petitioner stated that "he discovered that his 2 companions had tied the victim up," and that he then put a pillow over the victim's head and suffocated him. Finally, in 2008, petitioner reported that he and the other two perpetrators "`went to the front room to rob him. We pinned him down and tied him up. . . . My nephew wanted to kill him because he saw who he was. I wanted to release him. I told my nephew that I didn't want to do it.'"
Dr. Robert E. Record conducted a psychological evaluation in preparation for petitioner's parole hearing. The report indicated that a diagnosis of antisocial personality disorder was appropriate for petitioner, but that his behavior and conduct had improved during his incarceration, and that "his conduct over the last 20 years has been contradictory to this personality disorder and his behavior would suggest that he is in remission." Petitioner's rating for psychopathy was very low, and his score for risk factors for future violence was low, placing him in the low risk range for future violence. Dr. Record further noted that petitioner was taking numerous steps to decrease his risk of substance abuse, concluding that there "does not appear to be anything else that [petitioner] can do in regards to alcohol and drugs that he could not do outside of the prison setting." The evaluation concluded that petitioner posed a low risk of violence in the community, stating that there was "significant evidence that [he] has developed the skills and insight necessary for decreasing his violence risk."
The October 2008 parole hearing was petitioner's tenth hearing. The Board granted parole in 2005, but the Governor reversed the grant. Petitioner received a one-year denial on March 28, 2007, with the recommendations that he "[c]ontinue self-help, stay disciplinary free, earn positive chronos," and exhibit "more about a rehab plan on the outside and about accepting responsibility."
Petitioner's criminal history consisted of one juvenile adjudication for possession of marijuana. He had no other adult convictions.
Petitioner married in 1980, and he and his wife were still married at the time of the October 2008 hearing. Petitioner's wife wrote a letter of support stating that, if paroled, petitioner would live with her at her house in Menlo Park, California. She also indicated that she would help him obtain landscaping work through her work as a real estate broker and managing their rental property.
Petitioner had received a total of five administrative citations (115s), with the last one in 1985 for possession of marijuana.
Petitioner earned his GED in 1986 and had taken some college courses. He was certified in landscaping and drafting and was studying for his contractor's exam. Petitioner also received a certificate for ministry and was in an advanced Bible study program.
Petitioner began Katargeo, a drug rehabilitation program, in 1994 or 1995 and received numerous positive chronos from the Victim Offender Education Group, Alcoholics Anonymous, and Katargeo.
The Board summarized the findings of petitioner's March 2008 psychological evaluation. The Board noted that petitioner's "conduct over the last 20 years has been contradictory to the Antisocial Personality Disorder diagnosis" and commended him on his 29-year marriage to his wife. The Board further stated that there was "significant evidence that the inmate has developed the skills and insight necessary for decreasing his violence risk."
The only letter of opposition to petitioner's parole was from the Los Angeles Police Department, which opposed parole because the "crime was carried out in a manner which exhibits a callous disregard for the life or suffering of another."
The District Attorney asked what petitioner's "relapse prevention plan is in regards to substance abuse." Petitioner provided a lengthy list of references and types of relapse prevention and stated that his wife was available 24 hours a day to offer transportation and would drive him to Alcoholics Anonymous meetings every night.
The District Attorney also asked petitioner to explain what he had learned from the Victim Offender Program. Petitioner explained at length how circumstances in his life, such as abuse he suffered and his substance abuse, contributed to his commission of the crime, as well as how his crime had affected the victim and the community.
The District Attorney asked petitioner to explain a discrepancy between his statement to the probation officer in 1981 that, prior to the offense, he had engaged in sex acts with men for money, and a statement in a 2007 report that he denied ever doing so. Petitioner responded that his 2007 statement was true and that, at the time of the offense, he was merely "agreeing with the crime and [his] crime partners at the time."
Petitioner responded to questioning by his attorney, explaining that he did have contact with the victim of a homosexual nature, but that he had not previously done so for payment, and that he frequented the gay bar because it was next to the store where he worked. Petitioner also stated that his molestation as a child was a contributing factor to his offense and that the Katargeo group had helped him deal with that issue. Petitioner explained the educational, vocational, and spiritual gains he had made in prison and expressed that he felt horrible about the crime.
The Board concluded that petitioner was suitable for parole and would not pose an unreasonable risk of danger to society or threat to public safety if released. The Board acknowledged that petitioner's crime was "particularly troubling, offensive and disturbing," indicating an exceptionally callous disregard for human suffering. Nonetheless, the Board concluded that petitioner was suitable for parole, based on a careful consideration of petitioner's "positive adjustment" and other circumstances.
The Board cited the following factors as indicating suitability for parole: petitioner's minor juvenile record, lack of an adult criminal record, stable social history, and lack of a disciplinary record in prison, with his last 115 occurring in 1985 for possession of marijuana. The Board expressed some concern about the inconsistency between petitioner's 1981 statement to the probation officer and the 2007 report regarding homosexual conduct prior to the offense, but it concluded that this was not sufficient to find him unsuitable for parole because his statements throughout the course of his parole hearings had been consistent. Thus, even considering the seriousness of the offense and the inconsistency in petitioner's statements regarding his "homosexual conduct," the Board concluded that "the positive aspects of [petitioner's] case heavily outweigh the other considerations."
Additional considerations the Board found to indicate petitioner's suitability for parole included his numerous educational, vocational, and self-help accomplishments, institutional jobs, and participation in Alcoholics Anonymous. The Board also noted that petitioner's remorse was genuine and that it could see that petitioner was ashamed of his actions, remarking that petitioner's shame would keep him "on the straight and narrow." The Board described petitioner's parole plans as "one of the strongest parole plans we've seen," citing in particular his wife's support. Finally, the Board stated that petitioner's age, 53 years, reduced his risk of recidivism.
In March 2009, the Governor reversed the Board's 2008 decision to grant petitioner parole on the basis that petitioner continues to pose an unreasonable risk of danger to society. The Governor acknowledged petitioner's efforts to "enhance his ability to function within the law upon release," citing his education, vocational training, participation in institutional jobs and self-help groups, and solid relationships in prison. Nonetheless, the Governor pointed out that the murder was especially atrocious and that petitioner had changed his story over the years, indicating a lack of insight into the circumstances of the crime and his responsibility for the offense.
The Governor cited October 2003 and July 2004 mental health evaluations that pointed to petitioner's lack of insight into the offense and contradicted a finding of no risk factors in an August 2004 evaluation by a privately-retained evaluator. The Governor further pointed to November 2005 and 2008 evaluations that identified risk factors such as petitioner's "`antisocial personality traits and disorder.'" The Governor concluded that "[t]he gravity of the crime, considered with [petitioner's] changing stories and his lack of understanding regarding his role in the murder and the circumstances that led to the murder, all indicate to me that there is a risk that he could commit another violent crime if released."
In May 2009, petitioner filed a petition for writ of habeas corpus in the superior court. The court issued an order to show cause, ordering the Warden to show cause why the petition should not be granted. After the Warden filed a return to the order to show cause and petitioner filed a traverse to the return, the court issued an order granting petitioner's habeas petition. The court found that the record did not contain some evidence to support the Governor's finding that petitioner presented an unreasonable risk of danger to society and was not suitable for release on parole.
The court noted that the Governor's reversal was based on "petitioner's commitment offense, the fact that the Petitioner has changed his version of certain facts relating to the offense, which indicates a lack of insight, and some concerns about the Petitioner's personality which were expressed in prior psychological reports." The court found that, although petitioner's offense may have been particularly heinous, that factor alone did not indicate a current risk of violence based on petitioner's "nearly 28 years of violence-free rehabilitation."
The superior court stated that the Governor's finding of a lack of insight was contradicted by petitioner's most recent psychological report in 2008, which "was fully supportive of his suitability for parole, and does not provide any evidence to support the Governor's finding regarding his lack of insight." As to the personality disorders cited by the Governor, the court noted that "the most recent evaluation provided a comprehensive review of past evaluations and concluded that the Petitioner is currently a low risk of future violence." The court further noted that petitioner's "rating on the psychopathy checklist was in the `very low' range and his rating on historical factors was in the `low' range. [Citation.] The 2008 report also quoted language from the 2007 report, which noted that the Petitioner had `great growth and positive change and well-developed relapse plans.'" The court therefore granted petitioner's habeas petition, ordered the Governor's decision vacated, reinstated the Board's 2008 decision, and ordered petitioner released.
Appellant filed a timely notice of appeal. This court granted appellant's petition for a writ of supersedeas and ordered a stay of the superior court's order pending the appeal.
Appellant contends some evidence supports the Governor's decision that petitioner presented a current risk of danger and was unsuitable for parole. Where the superior court grants relief on a petition for habeas corpus without an evidentiary hearing, "the question presented on appeal is a question of law, which the appellate court reviews de novo. [Citation.]" (In re Lazor (2009) 172 Cal.App.4th 1185, 1192.) The standard of review "is whether there exists `some evidence' that an inmate poses a current threat to public safety . . . ." (In re Shaputis (2008) 44 Cal.4th 1241, 1254.) "Our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. [Citation.]" (In re Lawrence, supra, 44 Cal.4th at p. 1226.)
Penal Code section 3041, subdivision (b) provides in pertinent part: "The panel or the Board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." This subdivision requires that a parole release date "`must be set "unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual . . . ."'" (In re Shaputis, supra, 44 Cal.4th at p. 1256.)
"Under applicable regulations, `a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.' (Cal. Code Regs., tit. 15, § 2402, subd. (a).) The regulations list various factors tending to show unsuitability for release on parole and other factors tending to show suitability. [Citation.]" (In re Taplett (2010) 188 Cal.App.4th 440, 445-446.) Factors indicating unsuitability include "the heinous, atrocious, or cruel nature of the crime, or an unstable social background," and factors indicating suitability include "an inmate's rehabilitative efforts" and "demonstration of remorse." (In re Shaputis, supra, 44 Cal.4th at pp. 1256-1257.) "`[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor. . . .' [Citation.]" (Id. at p. 1260.)
"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.] 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. [Citation.]" (In re Shaputis, supra, 44 Cal.4th at p. 1258.)
Here, the Governor's decision reflects due consideration of the relevant factors. The Governor considered petitioner's suitability factors, such as his educational gains, institutional jobs, self-help participation, positive chronos, solid relationships, and plans to live and work with his wife. (See Cal. Code Regs., tit. 15, § 2402, subd. (d) [setting forth circumstances tending to show suitability for release on parole].) The Governor went on to consider relevant unsuitability factors, such as the atrocious nature of the crime and the diagnosis of antisocial personality traits and disorder in petitioner's 2005 and 2008 psychological evaluations. (See id. subd. (c) [setting forth circumstances tending to show unsuitability for release on parole].)
There is no question that the offense was especially heinous. In addition to the nature of the offense, the Governor also relied on petitioner's lack of insight into the circumstances of the offense, citing numerous statements in evaluations over the years. The statements cited by the Governor indicate that petitioner has changed his story numerous times, including recently. For example, the Governor cited statements in a 1992 evaluation that petitioner killed the victim because the other perpetrator could not do it and so the victim could not identify him. In a 2000 evaluation, petitioner denied going to the victim's apartment with the intent to commit robbery or murder, and he stated that his crime partners initiated the attack, and he joined afterward by tying up the victim. In 2003, petitioner stated that he found the victim tied up. The 2003 evaluation found that petitioner "`presents information in contradiction to previous reports'" and had limited insight and remorse regarding the crime. In 2008, petitioner stated that it was one of his crime partners who wanted to kill the victim and that he did not want to, contradictory to his 1992 statement that he killed the victim because his crime partner could not do it.
The Governor also relied on the 2008 report's diagnoses of antisocial personality disorder and polysubstance dependence. Petitioner "has been consistently diagnosed with antisocial personality traits and disorders."
"Our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. [Citation.]" (Lawrence, supra, 44 Cal.4th at p. 1226.) Some evidence supports the Governor's conclusion that the gravity of the crime, considered with petitioner's conflicting stories, lack of insight, and psychological evaluations, indicate that petitioner currently poses a danger to society.
The superior court's order granting petitioner's petition for writ of habeas corpus is reversed.
WILLHITE, J.
SUZUKAWA, J.