Here we reaffirm the deferential character of the "some evidence" standard for reviewing parole suitability determinations. Whether
This is our second grant of review to consider whether a majority of Division One of the Fourth District Court of Appeal properly applied the "some evidence" standard to a decision denying parole for petitioner Richard Shaputis. Previously, we decided the majority had correctly asked whether the evidence supported a finding that petitioner posed a current threat to public safety, but improperly substituted its own conclusion for that of the Governor. (In re Shaputis (2008) 44 Cal.4th 1241, 1255 [82 Cal.Rptr.3d 213, 190 P.3d 573] (Shaputis I).) We held that some evidence supported the Governor's decision that paroling petitioner would pose an unreasonable risk of danger to society due to (1) the gravity of the offense, which was a culmination of years of domestic abuse inflicted by petitioner on his wife and family, and (2) petitioner's lack of insight and failure to accept responsibility for his actions. (Id. at pp. 1258-1261.)
Petitioner was convicted of a second degree murder committed in 1987, and was sentenced to a term of 15 years to life in prison with a two-year enhancement for firearm use. His minimum eligible parole date was in 1998. The Board found him unsuitable for parole at hearings held in 1997, 2002, and 2004. After the third denial, petitioner sought a writ of habeas corpus, which was denied by the trial court. Petitioner took his application to the Fourth District Court of Appeal, which granted him relief in a split decision. The Board was ordered to vacate its denial of parole, conduct a new hearing, and refrain from relying on the same findings it made in 2004 unless there was new or different evidence.
Constrained by these directions from the court, the Board found petitioner suitable for parole at a hearing in March 2006, though the presiding commissioner stated that she continued to believe he was unsuitable for the reasons stated in the Board's 2004 decision. In August 2006, Governor Arnold Schwarzenegger reversed the Board's decision. Petitioner again sought a writ of habeas corpus from the trial court, lost, proceeded to the Court of Appeal, and succeeded in persuading a majority of that court to grant him relief.
We granted review, and considered the matter in conjunction with Lawrence, supra, 44 Cal.4th 1181. In Lawrence, we held that the "some evidence" standard of review applicable to parole suitability determinations applies not simply to the factors relied on for denial, but to the ultimate decision on whether the inmate's release will unreasonably endanger public safety. (Id. at p. 1209; see also id. at p. 1235 (dis. opn. of Chin, J.) [agreeing with the majority on this point].) In Shaputis I, we decided that even though the Court of Appeal majority had properly framed its inquiry, it had failed to defer to the Governor's determination that petitioner remained dangerous, which was supported by some evidence. (Shaputis I, supra, 44 Cal.4th at p. 1255.) Accordingly, we reversed the Court of Appeal's judgment. (Id. at pp. 1259-1261.)
Petitioner appeared for another parole hearing in 2009. The Board denied parole, basing its decision on the circumstances of the offense as well as petitioner's failure to gain insight into his behavior and take responsibility for
Petitioner was 50 years old when he murdered his wife.
The cause of death was a single gunshot wound to the neck, inflicted at close range. It was likely that petitioner was sitting and Erma was in the process of standing up or bending forward when he shot her. She had probably died within a second or two. Her body lay face up and was cold to the touch. Blood had partially dried on her face, neck, and head. Postmortem lividity, caused by pooling of the blood, had developed on the lower parts of her right leg and arm.
The murder weapon could not be fired unless the hammer was manually cocked before the trigger was pulled. A "transfer bar" prevented accidental discharge by making the gun impossible to fire unless the trigger was pulled and held back.
Information about petitioner's long history of domestic violence was developed in the probation report and the CDCR reports prepared in connection with the parole hearings. Petitioner's first wife had divorced him after suffering severe physical abuse. On one occasion, he jumped on her stomach when she was pregnant, causing her to miscarry. Petitioner also abused his four daughters, sometimes holding a knife to their throats when he thought they had misbehaved. He singled out one daughter in particular, because she was the weakest emotionally. His daughter Annette said petitioner was a different person behind closed doors than he was when others were present.
One daughter remained in petitioner's custody following the divorce, and lived in his home until 1978. Petitioner and Erma were married in 1964. His daughter saw petitioner beat Erma on several occasions, and noticed large bruises on her body. Around 1972, he beat Erma so badly that she needed plastic surgery. In 1978 his daughter, then 16, accused petitioner of raping her twice when he was intoxicated. He was charged with rape by threat and with incest, but pleaded no contest to reduced misdemeanor charges. Between 1981 and 1986, a friend noticed bruises on Erma every four to six months. Erma told her that petitioner flew into rages and beat her. Around 1985, Erma complained that he had cracked her ribs. About 18 months before the murder, petitioner shot at Erma.
Petitioner's criminal record before the murder encompassed more than the conviction arising from the molestation of his daughter. He was arrested in 1966 for check fraud, although this charge was later dismissed. In 1975, he was convicted of failing to pay child support. In 1978, he was arrested for pandering, convicted of an unspecified offense, and sentenced to 30 days of work furlough. In 1979, he failed to register as a sex offender as required by his molestation conviction. He was arrested at least once for driving while intoxicated.
Petitioner has made various statements about Erma's murder during his years in custody. At his parole hearing in 1997, he claimed he had shot Erma
When interviewed by a psychologist in 2004, petitioner explained that he and his wife were both drunk, and she was upset about a purchase of "some carnival glass" that evidently was broken during shipment. After the subject of the prowler came up, "she gave me the gun and it was loaded, but I didn't know that. I pulled out the gun. This part nobody wants to believe. I pointed the gun and pulled the trigger just when she bent over and it went into her neck and killed her. I didn't want to kill her. It was an accident." Asked whether there was an argument, petitioner replied: "No, we talked about the carnival glass. I don't remember the whole thing. I do remember shooting my wife, then called 911. The worst thing about the crime was drinking. I shouldn't have had a firearm. The argument was stupid. It was the most stupid thing I've ever done in my life. I still miss her. We were good friends and loved each other."
In 2009, petitioner's privately retained psychologist described his recitation of the offense as "essentially consistent" with the versions she saw in prior reports. She wrote that petitioner "has long since achieved compelling insights into the causes that resulted in his need to remain in an unhappy long term marriage and the reasons for his inability to leave the marriage. `I know why I could not leave the marriage and the alcoholism exacerbated my fears. I was scared of being alone and felt I had no other choice but to continue on with Erma. I take responsibility for her being shot. I was drunk and had no sense of what happened when the gun was dropped in my lap. I am not that person and haven't been for many years.'"
Regarding the molestation of his daughter, in 2001 petitioner admitted he had touched her inappropriately but denied that intercourse occurred. In 2005, however, he denied the allegation entirely, claiming he had wandered into his daughter's room by mistake. A 2006 psychological report observed that
The 2004 psychological evaluation stated that the "atypical, detached, almost schizoid quality to some of petitioner's earlier relationships" was suggestive of early trauma that petitioner chose not to discuss. The report further noted that petitioner had a "reduced" ability to achieve self-awareness and develop relationships with others. Petitioner's mother had deserted the family when he was nine, and he was left to care for his six younger siblings during his father's extended absences from the home. The probation report and a 1997 CDCR report stated that petitioner's father had physically abused him. He denied this in 2004, but the 2009 report prepared by his psychologist related petitioner's description of his father as physically abusive.
At his 2006 parole hearing, it emerged that petitioner had no contact with his siblings, daughters, or first wife. In 2005 he had married a second cousin, who was herself a recovering alcoholic. The psychologist who prepared an evaluation in 2005 confirmed the earlier finding that there was a "schizoid quality" to petitioner's "interpersonal relationships," and noted that he seemed to have "limited . . . insight" into his antisocial behavior and the association between his alcohol abuse and his history of domestic violence. The report stated that "there appears to be little potential benefit at this point in his development to attempt to modify this [character-based] structure." The psychologist was concerned about petitioner's plan to reside with his new wife, given his history of domestic violence, but nevertheless concluded that the risk he would resume this pattern was probably low if he abstained from alcohol. The report recommended random alcohol testing, a mandatory relapse prevention program, and a community-based domestic violence program as conditions of parole.
Indeed, all the CDCR psychological reports, from 1997 until 2009, found that petitioner would probably pose a low risk of threat to the public if released on parole, so long as he refrained from using alcohol. His behavior in prison has been uniformly exemplary. He has completed numerous rehabilitation programs. He has repeatedly been commended by prison staff for
At the latest hearing in August 2009, petitioner was 72 years old. It was noted that he had a comfortable private income from a union pension, Social Security, and some savings. He planned to live with his wife in a retirement community. Petitioner suffers from high blood pressure and has had three heart attacks, the most recent in 2003. He was recovering from shoulder surgery at the time of the hearing.
As noted, petitioner had declined to be interviewed by the psychologist appointed by CDCR to evaluate him in advance of the hearing, Dr. Nameeta Sahni.
Petitioner's retained psychologist, Dr. Barbara Stark, reviewed petitioner's file, interviewed him for five and a half hours, and gave him a number of psychological tests. All the results were in the normal or average range. Dr. Stark believed the emotional and physical abuse petitioner suffered as a child had deprived him of a chance to develop "critical coping abilities," but that in the last several years he had undergone significant and positive behavioral, emotional, and cognitive changes. Dr. Stark's report noted that
After asserting that petitioner's account of the murder had been consistent over the years, Dr. Stark stated: "It is clear from reviewing the legal documentation that there are inconsistencies in the judicial proceedings and he has continued to accept responsibility for the offense. This has been misinterpreted as a lack of insight and remorse when he stated his version of the index offense as it occurred." She also reported that petitioner said he "has been quoted many times incorrectly when the relationship with his wife was discussed. It is clear that there were inconsistencies in the investigation regarding the logistics regarding the firing of the gun during the index offense."
The report discussed petitioner's insight at length, opining that his behavior had been caused by unmet emotional needs and his dependence on alcohol. "He gives these as no excuses and those behaviors no longer exist in his present day life. He related his past behavior was a need to make himself feel good and he behaved in a self-centered manner to obtain those feelings that resulted in a tragedy that took his wife's life. He spoke about his early need to be accepted and ended up in a death of his wife." Dr. Stark attributed the following statements to petitioner: "In the past I never knew what they meant by insight and no one asked about my feelings as a child how they made me fearful and dependent and not ever wanting to be poor." "I can see how my never having been connected to others severely impaired my judgment. I never even thought at the time of the consequences of my drinking and my wife's drinking and our continuous arguments. I really had no understanding, as unbelievable as that may seem. Since that time I've done a lot of intensive groups regarding how my low self esteem, horrible substance abuse caused my detachment. I'm astonished at the time of the offense at my lack of any thoughts that this situation was out of hand." Asked specifically about the crime, petitioner said: "I am aware of what I did every day. There were so many warning signs I chose to ignore. It was stupid and at the time I had no sense my actions in my home environment would lead to my wife's death." Dr. Stark concluded that petitioner posed a low risk of recidivism, and should be released on parole.
In the written declaration petitioner prepared with counsel, he explained that he had not previously addressed the matter of "insight" because he
"4. Because of a fading memory, probably due to my age and illnesses, I do not have a vivid recollection of all of my previous conduct, but I do remember that I abused my wife and at least one of my daughters. I also recall my drinking habits and severe addiction to alcohol.
"5. I do recognize the destructive effects of my drinking and how it terribly impaired my judgment. Over time and with treatment I have come to know that I would not have committed such horrific acts but for alcohol, but I blame myself and low morality, not alcohol, for my crime and former misconduct. Most alcoholics, those with decent character and morality, do not commit such acts.
"6. In my treatment and soul searching over the years I have addressed and dealt with this issue of morality, and with the requirement of lifelong sobriety. On the former subject, I was self-centered and did not respect the needs of my wife and children. Although that was compounded and exacerbated by drinking, the basic flaw was in my own character.
"7. Although I have come to understand these issues, when I look back at the way I answered questions asked by the Board and the Board's psychologists, I focused almost entirely on my present and future sobriety, and failed to adequately explain how deeply regretful I feel about my past. . . . I am making this written statement because it is now more difficult, due to my memory and illnesses, to immediately understand and reply spontaneously to questions, particularly about my past. My shame about my horrible conduct and how it impacted the victims has also played a role.
"8. I want the Board, and everyone, to know that I will [sic] and can never again engage in such terrible conduct. How repulsive it is to me now serves as a powerful deterrent. I have learned to recognize and deal with stress in a socially acceptable manner (in this very stressful environment) and am committed to sobriety for life. . . . Because I am not mentally the same person as before, I think entirely differently, respond to stress differently, and have no use for alcohol, and because I will always feel deep sorrow for my victims and know that I am completely responsible for the offense and my previous conduct, I could never again engage in such behavior."
The Board's decision to deny parole was based on the commitment offense, the long history of domestic abuse that led up to it, and defendant's failure to accept responsibility or gain insight into the reasons for the abuse and the murder. The Board recounted the history of petitioner's domestic
The Board further pointed out that petitioner had never provided a coherent explanation of how Erma came to be shot, maintaining his claim that the killing was accidental in the face of strong evidence to the contrary. It discredited his explanation that he had misunderstood what was meant by "insight," noting that this is a commonly understood term. The Board referred to a statement in petitioner's 2004 psychological evaluation, to the effect that he had yet to accept responsibility for the murder and relied on denial and rationalization to handle stress, defenses that were firmly entrenched and unlikely to change.
The trial court denied petitioner's habeas corpus petition, observing that he had hampered his cause by refusing to speak to the Board, although he was not required to do so. The court found the record "replete with . . . reasons" for denying parole, based on the evidence before the Board. The Court of Appeal majority, on the other hand, concluded there was "no evidence to support a finding that [petitioner] would currently pose an unreasonable risk of danger to society were he released on parole." The majority accepted petitioner's written statement and Dr. Stark's psychological evaluation as the only current evidence of petitioner's dangerousness, and faulted the Board for its reliance on outdated information. The dissenting opinion commented that the majority simply disagreed with the weight the Board had given to the evidence before it, whereas the deferential standard of review in parole cases requires the court to credit the Board's findings when they are supported by a modicum of evidence.
This case turns on the application of the "some evidence" standard of review.
The majority below lost sight of these cardinal considerations. It reasoned that the only evidence of petitioner's risk to public safety pertained to his dangerousness in the past, including the evidence we found sufficient to support the denial of parole in Shaputis I, supra, 44 Cal.4th at pages 1259-1260. It declared that this evidence had "evaporated considering the only current evidence as to his insight into and remorse for his conduct." The majority noted that in Lawrence, supra, 44 Cal.4th at pages 1223-1224, In re Gaul (2009) 170 Cal.App.4th 20, 38-39 [87 Cal.Rptr.3d 736] (Gaul), and In re Aguilar (2008) 168 Cal.App.4th 1479, 1490 [86 Cal.Rptr.3d 498] (Aguilar),
With regard to Dr. Stark's report, the Court of Appeal majority accepted her conclusion that petitioner had no "history of `unstable tumultuous relationships,'" because "the sum of his relationships" was "the relationship with his wife and misconduct with his daughter while under the influence of alcohol."
There is nothing inconsistent in the record on that point. The evidence at petitioner's trial established that the revolver had safety features preventing
The "some evidence" standard requires only a modicum of support for the Board's rejection of Dr. Stark's conclusions. This record amply provides such support. In addition to the points noted above, we observe that on the question of petitioner's understanding of the crime, Dr. Stark concluded: "He has developed over the years a consistent reality based view of his extremely destructive choices due to unmet needs and being substance dependent. . . . He related his past behavior was a need to make himself feel good and he behaved in a self-centered manner to obtain those feelings that resulted in a tragedy that took his wife's life. He spoke about his early need to be accepted and ended up in a death of his wife." It would be an understatement to say that Dr. Stark's report leaves an analytical gap between petitioner's self-centered behavior and early emotional needs, on the one hand, and his shooting of Erma at close range, on the other.
The majority below also found that the written statement petitioner submitted to the Board provided "affirmative evidence that he had grown to understand how his underlying character flaws, exacerbated by his alcohol abuse, had produced his criminal conduct." This generous reading of the statement would have satisfied the "some evidence" standard if the Board had found petitioner suitable for parole. It fails to comport with the standard of review, however, given the Board's finding of unsuitability.
In his written statement, petitioner did not discuss the murder at all. Indeed, nowhere in the record is there a coherent account by petitioner of the shooting and how or why it happened. Nowhere is his claim of accident reconciled with the evidence found at the scene. Nowhere does he plausibly explain why he waited at least an hour after the shooting before calling for help.
Although, as we made clear in Lawrence, the ultimate conclusion on parole suitability is subject to judicial review, that review is limited, and narrower in scope than appellate review of a lower court's judgment. The "some evidence" standard is intended to guard against arbitrary parole decisions, without encroaching on the broad authority granted to the Board and the Governor. (Lawrence, supra, 44 Cal.4th at pp. 1204-1205, 1212; Rosenkrantz, supra, 29 Cal.4th at pp. 664-665.) When, as in this case, the parole authority declines to give credence to certain evidence, a reviewing court may not interfere unless that determination lacks any rational basis and is merely arbitrary.
Petitioner contends the Board's denial of parole based on his lack of insight deprived him of due process because (1) even if he had denied guilt altogether, he could not be found unsuitable for parole on that basis; (2) "an aging inmate's honest but deteriorating recollection of past events is at best immutable," and therefore "parole would be interminably denied on that basis, converting a sentence for second degree murder to life without the
Penal Code section 5011, subdivision (b) states: "The Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed." Petitioner does not deny his guilt, so this provision has no application here. It may be that when a denial of guilt is the only evidence of an inmate's lack of insight, and the denial is plausible, parole may not be denied on that basis. (See In re Jackson (2011) 193 Cal.App.4th 1376, 1389-1391 [123 Cal.Rptr.3d 486], discussing cases.) That question is not before us. We note, however, that an implausible denial of guilt may support a finding of current dangerousness, without in any sense requiring the inmate to admit guilt as a condition of parole. In such a case it is not the failure to admit guilt that reflects a lack of insight, but the fact that the denial is factually unsupported or otherwise lacking in credibility.
Here, petitioner's lack of insight was established by a variety of factors: the 2004 and 2005 psychological reports discussed in Shaputis I, supra, 44 Cal.4th at pages 1250-1252; his own statements about the shooting, which failed to account for the facts at the scene or to provide any rational explanation of the killing; his inability to acknowledge or explain his daughter's charge that he had raped her; and his demonstrated failure to come to terms with his long history of domestic violence in any but the most general terms.
Petitioner's contention that his inability to recall the circumstances of the crime is an immutable factor, and that he would be required to engage in fabrication to show insight, finds no support in the record. He did not claim in his written statement that he could not remember the crime. He merely said, "I do not have a vivid recollection of all of my previous conduct." His retained psychologist did not detect any deficit in his memory. To the contrary, Dr. Stark reported that when she interviewed petitioner "[h]is thinking was rational, logical and coherent. . . . He presented as average to above average in functioning. . . . His memory was intact. Both remote and recent memories were intact. . . . There were no signs of a thought disorder. His judgment and insight appeared to be within normal limits. In general his presentation was sincere and straightforward." (Italics added.) Thus, it does not appear that petitioner's memory presented any obstacle to his ability to demonstrate that he had gained insight into his criminal behavior.
We note as well that, as in Shaputis I, the Board's decision was not based solely on petitioner's lack of insight, but also on the nature of the murder and petitioner's long history of domestic violence. (Shaputis I, supra, 44 Cal.4th at
The majority below also reasoned that "lack of insight" is not among the factors in the regulations governing unsuitability for parole, that it is a more subjective consideration than the regulatory factors, and that "a statement that an inmate `lacks insight' appears to be stating a conclusion drawn from other evidence rather than being evidence itself." These observations are off the mark. Consideration of an inmate's degree of insight is well within the scope of the parole regulations. The regulations do not use the term "insight," but they direct the Board to consider the inmate's "past and present attitude toward the crime" (Regs., § 2402, subd. (b)) and "the presence of remorse," expressly including indications that the inmate "understands the nature and magnitude of the offense" (Regs., § 2402, subd. (d)(3)). These factors fit comfortably within the descriptive category of "insight."
The majority below correctly observed that lack of insight, like any other parole unsuitability factor, supports a denial of parole only if it is rationally indicative of the inmate's current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1210.) However, it is noteworthy that lack of insight pertains to the inmate's current state of mind, unlike the circumstances of the commitment offense, the factor primarily at issue in Lawrence. (See Lawrence, at p. 1191.) Thus, insight bears more immediately on the ultimate question of the present risk to public safety posed by the inmate's release. Moreover, insight, unlike the circumstances of the offense, may change over time. (See Lawrence, at pp. 1218-1220.) Therefore, the most recent evidence of the inmate's degree
Petitioner, in his brief before this court, goes a good deal further than the majority opinion below, and contends that lack of insight plays no proper role in determining suitability for parole. Citing a number of reports in psychological, psychiatric, and criminological journals, he claims that experts disagree on the meaning of a subject's insight, that judgments of insight reached without "empirically validated measures" have no value in predicting recidivism, and that "major studies" have found no relationship between insight into past behavior and future violence. Thus, petitioner asserts that lack of insight can never be deemed "some evidence" that an inmate poses an unreasonable risk to public safety. These arguments fail.
These considerations aside, it is difficult to imagine that the Board and the Governor should be required to ignore the inmate's understanding of the crime and the reasons it occurred, or the inmate's insight into other aspects of his or her personal history relating to future criminality. Rational people, in considering the likely behavior of others, or their own future choices, naturally consider past similar circumstances and the reasons for actions taken in those circumstances. Petitioner's argument that the inmate's insight should play no role in parole suitability determinations flies in the face of reason.
We are well aware that the Court of Appeal below was not alone in its confusion about the proper scope of review. Uncertainty is reflected in numerous Court of Appeal decisions reviewing parole suitability determinations. Accordingly, we briefly summarize the relevant considerations:
1. The essential question in deciding whether to grant parole is whether the inmate currently poses a threat to public safety.
3. The inmate has a right to decline to participate in psychological evaluation and in the hearing itself. That decision may not be held against the inmate. Equally, however, it may not limit the Board or the Governor in their evaluation of all the evidence.
4. Judicial review is conducted under the highly deferential "some evidence" standard. The executive decision of the Board or the Governor is upheld unless it is arbitrary or procedurally flawed. The court reviews the entire record to determine whether a modicum of evidence supports the parole suitability decision.
5. The reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence.
We reverse the judgment of the Court of Appeal.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., and Chin, J., concurred.
I concur in the majority opinion, with the exception of footnote 11 on pages 214-215. Because the issue addressed there is not before the court, and the majority's comments are unnecessary to the resolution of the case, I would await a future case specifically posing that issue.
I dissented in In re Lawrence (2008) 44 Cal.4th 1181 [82 Cal.Rptr.3d 169, 190 P.3d 535] (Lawrence). I believed then, and still believe, the majority opinion in that case was ill considered. Lawrence is largely responsible for the confusion in the Courts of Appeal that today's opinion seeks to ameliorate. However, my view in Lawrence did not prevail, and I now accept the majority view. For this reason, I concur entirely in this case.
As today's opinion explains, the Court of Appeal was incorrect to conclude that earlier evidence of lack of insight had "evaporated"
The court's opinion today goes beyond this holding in an effort to clarify the "some evidence" standard of review and to provide guidance regarding lack of insight as a suitability factor. The court's commentary on both issues prompts me to offer some additional remarks.
In light of the Court of Appeal's overreaching in this case, today's decision correctly emphasizes that judicial review of Board decisions is deferential: "While the evidence supporting a parole unsuitability finding must be probative of the inmate's current dangerousness, it is not for the reviewing court to decide which evidence in the record is convincing." (Maj. opn., ante, at p. 211, italics omitted, citing In re Lawrence (2008) 44 Cal.4th 1181, 1204, 1212 [82 Cal.Rptr.3d 169, 190 P.3d 535] (Lawrence).) As we observed in Lawrence, "`[r]esolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board.'" (Lawrence, supra, 44 Cal.4th at p. 1204, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 656 [128 Cal.Rptr.2d 104, 59 P.3d 174] (Rosenkrantz).) More broadly, we have explained that judicial review of parole decisions under the "some evidence" standard must be highly deferential so that it does not "impermissibly shift the ultimate discretionary decision of parole suitability from the executive branch to the judicial branch." (44 Cal.4th at p. 1212.)
The emphasis on judicial deference is part of the court's effort to summarize the principles governing judicial review of parole decisions. (Maj. opn., ante, at pp. 220-221.) Because today's opinion focuses on the obligations of reviewing courts, I think it useful and complementary to summarize a few principles governing the Board's obligations as well.
As we have repeatedly said, the parole statute and regulations put the onus on the Board to justify denial of parole: "`[T]he governing statute provides that the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. (Pen. Code, § 3041, subd. (b).) And as set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after
In light of this basic statutory obligation to grant parole unless public safety is at risk, we have held that the Board, as a matter of due process, has a duty to provide "a definitive written statement of its reasons for denying parole." (In re Sturm (1974) 11 Cal.3d 258, 272 [113 Cal.Rptr. 361, 521 P.2d 97] (Sturm).) The requirement of a definitive written statement of reasons serves two functions. First, it serves to "adequately inform the inmate" of the reasons for the denial (ibid.) so that the inmate is given a fair opportunity to make the life changes necessary to be considered suitable for parole in the future. Second, the requirement fulfills the "mandate that a basis for administrative action must be set forth with sufficient clarity as to be understandable" so as "to afford an adequate basis for judicial review." (Ibid.) Although the Board is not required to "comprehensively marshal the evidentiary support for its reasons" (maj. opn., ante, at p. 214, fn. 11), it is required to point to evidence in the record that supports its reasoning. Otherwise, the statement of reasons would be conclusory and would fail to concretely inform the prisoner and the reviewing court of the Board's decisionmaking process.
The Board's obligation to provide a definitive written statement of reasons for denying parole shapes the nature of judicial review. As we said in Lawrence, the task of reviewing courts is to "determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety" (Lawrence, supra, 44 Cal.4th at p. 1213) and specifically to determine whether the Board's or the Governor's decision includes "reasoning establishing a rational nexus" between identified unsuitability factors and current dangerousness (id. at p. 1210). In other words, the focus of judicial review is on the rationality of the Board's or the Governor's decision—not only the ultimate conclusion of current dangerousness but also the evidence and reasoning on which the Board or Governor actually relied to reach that conclusion.
Today's opinion says that "[t]he court reviews the entire record to determine whether a modicum of evidence supports the parole suitability decision" (maj. opn., ante, at p. 221) and that "[o]nly when the evidence reflecting the inmate's present risk to public safety leads to but one conclusion [(i.e., nondangerousness)] may a court overturn a contrary decision by the Board or
First, judicial review would not serve to enforce the Board's obligation to provide "a definitive written statement of its reasons for denying parole." (Sturm, supra, 11 Cal.3d at p. 272.) Second, judicial review would run the risk of "impermissibly shift[ing] the ultimate discretionary decision of parole suitability from the executive branch to the judicial branch." (Lawrence, supra, 44 Cal.4th at p. 1212.) Third, judicial review would not serve to "ensure that the Board and the Governor have complied with the statutory mandate and have acted within their constitutional authority." (Id. at p. 1213.) For how can a court determine whether a parole "decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards ..." (Rosenkrantz, supra, 29 Cal.4th at p. 677) unless judicial review focuses on the Board's or the Governor's actual decisionmaking?
Given these concerns, it is no surprise that our consistent practice has been to examine the evidence and reasoning on which the Board or the Governor actually relied. (See, e.g., Lawrence, supra, 44 Cal.4th at pp. 1221-1227; In re Shaputis (2008) 44 Cal.4th 1241, 1258-1260 [82 Cal.Rptr.3d 213, 190 P.3d 573] (Shaputis I); In re Dannenberg (2005) 34 Cal.4th 1061, 1095 [23 Cal.Rptr.3d 417, 104 P.3d 783]; Rosenkrantz, supra, 29 Cal.4th at pp. 678-683.) In undertaking that inquiry, we have been mindful of the deference owed to the Board's and the Governor's authorities. And, as explained in part II. below, we have considered the entire record for the purpose of determining whether the evidence on which the Board or the Governor relied rationally supports a finding of current dangerousness in the context of all other evidence that the Board or the Governor is obligated to consider. But reviewing courts have not upheld the parole authority's decision based on evidence substantially different from that on which the authority actually relied.
While the court is correct that "some evidence" review is more deferential than the substantial evidence standard used to review criminal jury verdicts (maj. opn., ante, at p. 214), it is also a more focused form of judicial review. Unlike the Board, a jury is not required to give "a definitive written statement of its reasons" (Sturm, supra, 11 Cal.3d at p. 272) for a verdict, and the
Further, although appellate review of trial court decisions for sufficiency of the evidence "extends to the entire record, and is not limited to facts mentioned in [the] statement of decision" (maj. opn., ante, at p. 214, fn. 11), that is because what matters to an appellate court is the lower court's judgment, i.e., whether its ultimate determination regarding guilt or liability was correct. Judicial review in the parole context examines the rationality of the parole authority's decision, an inquiry that properly focuses on the authority's reasoning, including the evidence cited by the authority in support of its reasoning.
As mentioned above, an important dimension of the rationality required of parole decisions is that the Board or the Governor must offer "reasoning establishing a rational nexus" between identified unsuitability factors and current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1210.) We applied that requirement in Lawrence to hold that the Governor may rely on the circumstances of the commitment offense to establish parole unsuitability "if, and only if, those circumstances are probative of the determination that a prisoner remains a danger to the public." (Id. at p. 1212.) We explained that according talismanic significance to the circumstances of the commitment offense or any other unsuitability factor would be "inconsistent with the statutory mandate that the Board and the Governor consider all relevant statutory factors when evaluating an inmate's suitability for parole." (Id. at pp. 1191, 1212 ["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."].) In Lawrence, we invalidated the Governor's decision to deny parole because his reliance on the circumstances of the commitment offense to establish unsuitability lacked any "articulation of a rational nexus between those facts and current dangerousness" in light of the inmate's rehabilitative gains. (Id. at p. 1227.)
First, as the court acknowledges, older evidence of lack of insight may be eclipsed by more recent evidence: "Usually the record that develops over successive parole hearings has components of the same kind: CDCR reports, psychological evaluations, and the inmate's statements at the hearings. In such cases, the Board or the Governor may not arbitrarily dismiss more recent evidence in favor of older records when assessing the inmate's current dangerousness." (Maj. opn., ante, at p. 211.) In Lawrence, for example, we rejected the Governor's suggestion that the petitioner continued to pose a danger due to serious psychiatric problems, concluding that the Governor's position was based on earlier, superseded psychological evaluations. (Lawrence, supra, 44 Cal.4th at pp. 1223-1224.) Courts may properly intervene when the Board or the Governor rely on outdated evidence of lack of insight in denying parole. (See In re Gomez (2010) 190 Cal.App.4th 1291, 1308-1309 [118 Cal.Rptr.3d 900]; In re Twinn (2010) 190 Cal.App.4th 447, 468-469 [118 Cal.Rptr.3d 399].)
Second, even recent evidence of lack of insight does not necessarily mean there is some evidence the inmate is currently dangerous. This is most obviously the case when an inmate, due to advanced age and infirmity, is no longer capable of being dangerous, no matter how little insight he has into previous criminal behavior. But even in cases not involving incapacity, our Courts of Appeal have recognized that lack of insight is not invariably linked to current dangerousness.
The term "lack of insight" in the parole context appears to refer broadly to inmates with one of two types of deficiencies: (1) to inmates who deny committing the crime for which they were convicted or deny the official version of the crime and (2) to inmates who admit their crime but are regarded as having an insufficient understanding of the causes of their criminal conduct.
In the first category, some courts have reversed parole denials that were based solely on the inmate's denial of culpability for the offense. In In re Palermo (2009) 171 Cal.App.4th 1096 [90 Cal.Rptr.3d 101], for example, the
In other cases, courts have reversed parole denials that were based on an inmate's insufficient understanding of the causes of his or her criminal conduct. In In re Roderick (2007) 154 Cal.App.4th 242 [65 Cal.Rptr.3d 16] (Roderick), for example, the inmate was convicted of second degree murder and had an extensive criminal history, partly related to his alcoholism. (Id. at pp. 248-251.) His record of rehabilitation was impressive, and a long string of psychological reports concluded that he posed no more danger to the public than the average person. (Id. at p. 271.) Yet the reports also found that he lacked any in-depth understanding of the causes of his criminal activity other than recognizing its connection to alcoholism and describing such activity as "stupid." (Ibid.) While acknowledging that the inmate's responses "were unsophisticated and lacked analytical depth," the court posed the question whether "his inability to articulate a more insightful explanation as to why he committed multiple crimes [is] some evidence that Roderick poses a danger to public safety?" (Ibid.) The court concluded it was not: "Roderick provided a less than incisive explanation for his chronic criminality, but his responses also reflected acceptance of his alcoholism, acknowledgement of responsibility for his crimes, remorse, and shame. Ignoring the unanimous clinical evidence to the contrary presented by trained experts—since 1999 all psychological reports conclude he would pose no more danger to society than the average citizen—the Panel's arbitrary pronouncement that Roderick's limited insight poses an unreasonable risk to public safety cannot be considered some evidence to support a denial of parole." (Id. at p. 272; see also In re
Of course, common sense suggests that lack of insight into past criminal behavior may be probative of current dangerousness, and the court properly rejects petitioner's argument, ostensibly based on social science research, that no such link exists. Although the social science literature does not identify lack of insight per se as one of the predictors of criminal recidivism, the term "lack of insight" as used by the Board and the Governor may encompass a number of attitudes or behaviors associated with criminal recidivism. For example, lack of remorse or failure to accept responsibility for past criminal activity may be indicative of an antisocial, psychopathic personality that is correlated with greater recidivism. (See Andrews & Bonta, The Psychology of Criminal Conduct (2d ed. 1998) 301-306.) At the same time, however, the social science literature does not support a generalization that an inmate's lack of insight into the causes of past criminal activity or failure to admit the official version of the commitment offense is itself a reliable predictor of future dangerousness. (See id. at pp. 211-248.) The significance of lack of insight to current dangerousness must be assessed and articulated by the Board or the Governor case by case.
When the Board undertakes this assessment, its conclusion that a life prisoner is currently dangerous and therefore should be denied parole "must be supported by some evidence, not merely by a hunch or intuition." (Lawrence, supra, 44 Cal.4th at p. 1213, original italics.) In cases where psychological evaluations consistently indicate that an inmate poses a low risk of danger to society, a contrary conclusion must be based on more than a hunch or mere belief that he should gain more insight into his past behavior. The Board must point to evidence from which it is reasonable to infer that the inmate's lack of insight reveals a danger undetected or underestimated in the psychological reports. (See Roderick, supra, 154 Cal.App.4th at pp. 271-272; cf. Lawrence, supra, 44 Cal.4th at pp. 1226-1227 [invalidating parole denial because Governor failed to articulate how circumstances of the commitment offense remained probative of current dangerousness given overwhelming evidence of the inmate's rehabilitation].)
Moreover, the Board may not deny parole simply because the prisoner refuses to admit to the official version of the commitment offense. Such an automatic denial would squarely violate Penal Code section 5011, subdivision (b). An inmate's refusal to admit his or her crime can support parole denial "if, and only if, those circumstances are probative of the determination that a prisoner remains a danger to the public" (Lawrence, supra, 44 Cal.4th at
Both this case and Shaputis I demonstrate how the Board may satisfy the "rational nexus" requirement. In Shaputis I, the most current psychological report prepared in 2005 concluded that petitioner posed a low risk of future violent behavior if he maintained sobriety. (Shaputis I, supra, 44 Cal.4th at p. 1251.) But other parts of the report called that conclusion into question: "Dr. Silverstein was concerned that petitioner planned to reside with his new wife (with whom he had not previously resided) and observed that his violence tended to be `confined to his family systems and [it is] difficult to assess how well extinguished his pattern of domestic violence is[,] given that he has been confined for more than 18 years." (Id. at p. 1252.) As we further observed: "During the proceedings, the Board referred to Dr. Silverstein's report, noting the report's observation that petitioner found `inexplicable' his daughters' prior allegations of molestation and domestic violence, that he had a flat affect when discussing these allegations, and that this circumstance could be a sign of the schizoid tendencies noted in some previous evaluations. The Board expressed concerns regarding petitioner's lack of insight into his history of domestic violence and his alcoholism, and voiced the attendant concern that he would present an unreasonable risk of danger to the public and to his new wife." (Ibid.) In other words, the Board and subsequently the Governor went behind the report's conclusion that petitioner presented a low risk of violence and found in the body of the report indications that this conclusion understated the risk of violence he posed if released. We held this conclusion reasonable in light of petitioner's historic pattern of domestic violence that had culminated in his wife's murder. (Id. at p. 1260.) This holding came nowhere close to generalizing that some evidence of lack of insight is necessarily some evidence of current dangerousness, and our limited holding in the present case likewise offers no support for such a sweeping conclusion.
Ultimately, lack of insight may be indicative of current dangerousness in many cases, and today's decision may be correct that "insight bears more immediately on the ultimate question of the present risk to public safety posed by the inmate's release" than the circumstances of the commitment offense. (Maj. opn., ante, at p. 219.) But there is good reason to require the Board to articulate a rational nexus between insight and dangerousness in each case, taking into account all other evidence of suitability or unsuitability. As one Court of Appeal put it, "one always remains vulnerable to a charge that he or she lacks sufficient insight into some aspect of past misconduct even after meaningful self-reflection and expressions of remorse." (Ryner, supra, 196 Cal.App.4th at p. 548.) It is difficult enough for ordinary
Dr. Sahni, who met with petitioner in April 2009, noted that she had reviewed an evaluation by Dr. Hitchcock, which she parenthetically described as "a refusal, dated less than a year ago, on 6/23/08 [sic]." Dr. Sahni reported that petitioner was initially confused as to whether she was his retained psychologist. Ultimately, he was unwilling to participate in an interview without consulting his attorney. Dr. Sahni told petitioner that if he declined the interview her report would be based on his records, and that another interview would not be scheduled for him. Petitioner "stated that he understood and wished the undersigned evaluator a nice day."
It is of course a matter of routine to review the evidence referenced in the parole authority's decision. Because the "some evidence" standard is easily satisfied, that is usually sufficient for the reviewing court's purpose. But we have never limited the scope of review to the evidence specified by the parole authority. Indeed, this court has relied on evidence omitted from the decision below to conclude that findings were not supported by "some evidence." (See Lawrence, supra, 44 Cal.4th at pp. 1222-1226; Rosenkrantz, supra, 29 Cal.4th at pp. 680-681.) It would be a perversion of the deferential "some evidence" standard if a reviewing court were permitted go beyond the evidence mentioned by the parole authority to conclude that a finding lacks evidentiary support, but forbidden from doing so to confirm that a finding is supported by the record.
