Supreme Court of California Justia
Citation 44 Cal. 4th 1181, 190 P.3d 535, 82 Cal. Rptr. 3d 169

In re Lawrence

Filed 8/21/08 (this opn. precedes companion case, S155872, also filed 8/21/08)



IN THE SUPREME COURT OF CALIFORNIA



S154018

In re SANDRA DAVIS LAWRENCE

Ct.App. 2/7 B190874

on Habeas Corpus

Los Angeles County

Super. Ct. No. A174924



In 1971, Sandra Davis Lawrence (petitioner) murdered her lover’s wife,

Rubye Williams. Petitioner fled the state, remaining a fugitive until 1982, when

she voluntarily returned to California and surrendered to the authorities. Petitioner

declined a plea offer that would have resulted in a two-year prison sentence. After

the jury returned a guilty verdict on a charge of first degree murder, the trial court

imposed a sentence of life imprisonment — the statutory penalty for murders

committed prior to November 8, 1978 — and set a minimum eligible parole date

of November 29, 1990.

In August 2005, after numerous hearings before the Board of Parole

Hearings (the Board),1 that entity for the fourth time found petitioner suitable for

parole and set a parole date. In finding petitioner suitable for parole, the Board

emphasized the presence of multiple statutory factors favoring suitability,


1

The Board of Parole Hearings replaced the Board of Prison Terms in July

2005. (Pen. Code, § 5075, subd. (a).) For ease of reference, and because both
entities have performed the same duties, we refer to both as “the Board.”

1


including petitioner’s exemplary record of rehabilitation, her acceptance of

responsibility for the crime, her realistic parole plans, and her close ties to her

family, who would offer her support in reintegrating into the community.

The Governor, however, as he had done previously, found that the gravity

of the commitment offense indicated petitioner remained unsuitable for parole,

and reversed the Board’s decision. In an original petition for writ of habeas

corpus filed in the Court of Appeal, Second Appellate District, petitioner

challenged on several grounds the Governor’s decision denying parole. Finding

the Governor lacked “some evidence” upon which to conclude, consistently with

state and federal constitutional standards, that petitioner’s release on parole would

represent an “unreasonable risk” of danger to the community, the Court of Appeal

in a split decision issued a writ vacating the Governor’s reversal and reinstating

the Board’s 2005 grant of a parole release to petitioner.

We granted review to consider the Attorney General’s contention that the

Court of Appeal improperly applied the highly deferential “some evidence”

standard of review set forth in our decision in In re Rosenkrantz (2002) 29 Cal.4th

616 (Rosenkrantz) and later applied in In re Dannenberg (2005) 34 Cal.4th 1061

(Dannenberg). The Attorney General disputes the appellate court’s view that in

order to uphold the Governor’s decision, there must be some evidence

demonstrating that petitioner remains a current threat to public safety, rather than

merely some evidence supporting the Governor’s characterization of the

commitment offense as particularly egregious. For the reasons set forth below, we

conclude that because the core statutory determination entrusted to the Board and

the Governor is whether the inmate poses a current threat to public safety, the

standard of review properly is characterized as whether “some evidence” supports

the conclusion that the inmate is unsuitable for parole because he or she currently

is dangerous. Moreover, with regard to the aggravated circumstances of a

2

commitment offense, we conclude that to the extent our decisions in Rosenkrantz

and Dannenberg have been read to imply that a particularly egregious

commitment offense always will provide the requisite modicum of evidence

supporting the Board’s or the Governor’s decision, this assumption is inconsistent

with the statutory mandate that the Board and the Governor consider all relevant

statutory factors when evaluating an inmate’s suitability for parole, and

inconsistent with the inmate’s due process liberty interest in parole that we

recognized in Rosenkrantz. (Rosenkrantz, supra, 29 Cal.4th at p. 664.) In some

cases, such as this one, in which evidence of the inmate’s rehabilitation and

suitability for parole under the governing statutes and regulations is

overwhelming, the only evidence related to unsuitability is the gravity of the

commitment offense, and that offense is both temporally remote and mitigated by

circumstances indicating the conduct is unlikely to recur, the immutable

circumstance that the commitment offense involved aggravated conduct does not

provide “some evidence” inevitably supporting the ultimate decision that the

inmate remains a threat to public safety.

Applying the “some evidence” standard to the case presently before us, we

agree with the Court of Appeal that the record fails to support the Governor’s

conclusion that petitioner remains a current danger to public safety. Accordingly,

we affirm the judgment of the Court of Appeal rendered in favor of petitioner.2


2

In the companion case of In re Shaputis (Aug. 21, 2008, S155872) ___

Cal.4th ___ [pp. 22-26] filed concurrently with this opinion, the Court of Appeal
also properly recognized that the relevant inquiry is whether some evidence
supports the Governor’s ultimate decision that the inmate poses a current risk to
public safety. As we explain in Shaputis, however, our clarification that the
“some evidence” standard of review focuses upon evidence supporting the core
statutory determination of public safety does not alter our recognition in
Rosenkrantz and Dannenberg that the decisions of both the Board and the

(Footnote continued on next page.)

3

I

The facts underlying the commitment offense and the history of petitioner’s

parole hearings are not in dispute. The following summary is taken from the

Court of Appeal’s lengthy and thorough statement of the facts.

A

Petitioner was born and raised in Birmingham, Alabama, the youngest of

12 children. Following her graduation from high school, she moved to Chicago,

where she married and had two children. After her marriage dissolved due to her

husband’s infidelity and her own immaturity, petitioner relocated to Los Angeles,

where several of her siblings resided. She took a position as a receptionist in her

brother’s dental office, where she met and began a romantic affair with Robert

Williams, a married dentist employed by her brother. Williams’s wife, the victim

Rubye Williams, was aware of the affair. She frequently confronted both

petitioner and her husband about the relationship in telephone calls and notes left

on the front door of the apartment that Dr. Williams rented for petitioner.

Dr. Williams repeatedly told petitioner he would divorce his wife and

marry her. When he failed to follow through with any of these promises, however,

petitioner terminated the relationship in late 1970, ceasing all contact with Dr.

Williams. On February 10, 1971, petitioner was celebrating her 24th birthday at a


(Footnote continued from previous page.)

Governor are entitled to deference. In Shaputis, the Court of Appeal
impermissibly substituted its own evaluation of the record for that conducted by
the Governor. Because, unlike the record before us in the present case, the record
in Shaputis contains some evidence supporting the Governor’s determination that
the inmate poses a current threat to public safety, we reverse the judgment
rendered by the Court of Appeal in his case. (In re Shaputis, ___ Cal.4th ___,
___ [p. 2].)

4

family party held at her brother’s home, when Dr. Williams unexpectedly arrived,

uninvited. He announced that he intended to leave his wife and return to

petitioner. During the next few days, petitioner and Dr. Williams planned their

romantic and professional future together, which was to include petitioner’s

obtaining certification as a dental assistant in order to assist Dr. Williams in the

new dental practice he was then in the process of opening.

On February 13, 1971, however, Williams telephoned petitioner and told

her he had changed his mind; he could not bear losing his children, and hence

would remain with his wife. During the conversation, he mentioned Mrs.

Williams would be helping him set up his new dental practice, and that she was at

that time present at the new office waiting for the delivery of some equipment.

Petitioner was enraged with Dr. Williams, but as she subsequently

recognized in therapy sessions with prison psychologists, she instead took out this

anger on Mrs. Williams, perceiving her as an obstacle to the relationship. She

drove to Dr. Williams’s new dental office. Anticipating a possible confrontation

with Mrs. Williams in light of previous highly charged encounters, she stopped at

her sister’s home to acquire a pistol and a potato peeler. When she arrived at the

office, the two women argued and physically struggled, pushed, threw punches,

and at one point wrestled on the floor. At some point, petitioner produced the

firearm. She fired wildly at Mrs. Williams, wounding her in the hand, arm, leg,

and neck, and then stabbed her repeatedly with the potato peeler. Mrs. Williams

died as a result of the gunshot wounds.

Petitioner returned to her sister’s home and replaced the pistol under the

mattress. A few weeks later, petitioner’s sister discovered the pistol had been

fired. She contacted the police and reported the handgun had been used and not

by her or anyone in her household. She also informed the police that petitioner

5

had told family members that petitioner had killed Mrs. Williams as a birthday

present to herself.

The authorities did not immediately investigate petitioner’s involvement in

Mrs. Williams’s death, and petitioner moved to Chicago, Illinois with her children.

A few weeks later, petitioner’s family telephoned to tell her that the Federal

Bureau of Investigation had informed them there existed a fugitive warrant for her

arrest, arising from the death of Mrs. Williams. Petitioner left her children with

their father in Chicago and flew back to Los Angeles, but during the flight she

decided against turning herself in. She instead fled by bus to Las Vegas, Nevada.

In the ensuing years, she resided in Puerto Rico, New York, and Pennsylvania,

and worked in various professions, including real estate, sales, and cosmetology.

In 1982, some 11 years after the murder, petitioner voluntarily returned to Los

Angeles, hired an attorney, and surrendered to the police. Thereafter, she pleaded

not guilty and suggested that Dr. Williams may have committed the crime.

As reflected in the report prepared by the probation department after her

subsequent conviction, petitioner rejected a plea offer that would have resulted in

a two-year prison sentence. The case went to trial in 1983, and the jury returned a

guilty verdict on the charge of first degree murder.

The probation department’s report noted that petitioner had no prior

criminal record as a juvenile or as an adult, but recommended the court deny

probation based upon the seriousness of the offense. The report recounted the

circumstances surrounding the murder and petitioner’s subsequent flight, but

stated: “Defendant presented herself as an intelligent, articulate, and thoughtful

woman who stands convicted of a premeditated murder which occurred 12-and-a-

half years ago. Defendant fled the jurisdiction of the court and has now

surrendered herself to the court and has been found guilty by a jury of the

crime. . . . [¶] . . . It is undoubtedly true that defendant is not now the same

6

person she was when the crime was committed and it is not expected that

defendant would be involved in another similar crime. However, given that

defendant has been convicted of first degree murder, probation does not appear to

be an appropriate recommendation.” The trial court imposed a sentence of life

imprisonment — the standard statutory penalty for such offenses committed prior

to November 8, 1978, and set a minimum parole eligibility date of November 29,

1990.3

B

During the 23 years petitioner spent in prison serving her sentence on the

present offense, she was free of serious discipline, except for two administrative

violations for being late to work assignments, and several other instances of being

counseled for administrative violations that did not result in discipline. Within a

year of her incarceration, she was placed in Miller A Honor house, housing

reserved for discipline-free inmates. She worked as a plumber for the prison and

volunteered as a tennis coach for other inmates. She was a charter member of the

Yes-I-Can tutorial program, a member of Toastmasters International and the

Friends Outside parenting program, and a physical trainer for other inmates.

Petitioner earned a bachelor’s degree in computer science from the University of

La Verne, and was described by prison staff as a “team player who interacts with

everyone in a courteous manner.”

Petitioner’s psychological reports map the path of her rehabilitation. Her

initial report, received in September 1984 shortly after her incarceration,

concluded petitioner was narcissistic, lacked emotional insight, repressed her


3

Pursuant to Penal Code section 3046, persons sentenced to life

imprisonment cannot be paroled during the first seven years of their confinement.

7

emotions, and avoided reality through excessive activity. The examining

psychologist predicted these characteristics could lead to problems with other

inmates and staff. He recommended greater altruistic involvement in activities

benefiting others. The report also characterized petitioner as “explosive” and a

“high flight risk if she loses her appeal.”

By 1989, petitioner’s psychological report provided a positive review of

petitioner’s health, intelligence, and overall psychological condition. Although

the examining psychologist found she exhibited some indicia of an “avoidant

personality disorder,” he also reported that she has “much to offer any

community.” Significantly, the examining psychologist found petitioner no longer

represented a danger to society.

The psychological assessment in August 1991 was less favorable,

recommending intensive psychotherapy based upon a finding that petitioner

exhibited features of three psychological disorders — borderline personality

disorder, antisocial disorder, and avoidant personality disorder. In an addendum

to this August report (dated October 3, 1991), the examining psychologist reported

that petitioner had appealed and had requested a followup interview. Petitioner

reportedly became angry during the interview, feeling the psychologist had been

biased in his appraisals of her psychological condition. The examining

psychologist concluded she might be “moderately psychopathic,” possessing a

narcissistic personality disorder with antisocial features. Nonetheless, he

concluded she had made significant progress through psychotherapy and

recommended she participate in once-a-week group therapy sessions.

Petitioner’s November 1992 psychological evaluation reflected

improvement. The examining psychologist reported petitioner had gained insight

into the monstrous dimension of her crime. She also now comprehended her

psychological motivation — that she killed Dr. Williams’s wife in order to

8

retaliate against him. The examining psychologist assessed petitioner’s violence

potential at the time of the crime as greater than the average person’s, but opined

that this potential had substantially decreased.

The psychological report from 1994 repeated the positive findings in the

earlier reports, and stated that petitioner “would not have surrendered [to the

authorities] back in 1982, if the earlier narcissistic, antisocial or borderline

personality disorder diagnoses had been correct.” Positive psychological reports

continued in subsequent years, although in July 1996, the psychological evaluation

reported that petitioner received her first “disciplinary CDC 115” in January 1996

for allegedly stealing excess food from the kitchen. Although this troubled the

examining psychologist, he found petitioner exhibited no indicia of any

psychological disorder. The June 1997 evaluation reported that petitioner

successfully had appealed the food-theft-related discipline from the previous year

and hence her record remained discipline-free.

Psychological reports after 1997 disqualified petitioner from receiving any

further psychotherapy, concluding she no longer tested as having any psychiatric

or psychological disorder. In total, five psychologists conducting 12 separate

evaluations since 1993 concluded that petitioner no longer represented a

significant danger to public safety.

C

In late December 1993, the Board made the first of four positive

recommendations that petitioner should be granted parole. Among its findings,

the Board concluded that petitioner committed the crime as a result of significant

stress, and had demonstrated motivation, growth, and a greater understanding of

herself and the crime she committed. It also found a reduced probability of

recidivism and that petitioner exhibited signs of remorse. The Board

9

acknowledged that the examining psychologists had concluded petitioner no

longer represented a significant danger to public safety.

Employing a matrix applicable to first degree murderers who committed

their crime prior to November 8, 1978 (Cal. Code Regs., tit. 15, § 2282, subd.

(b)),4 the Board assigned petitioner the maximum term available under that matrix,

based upon the great violence involved in the murder she committed and upon her

having evaded prosecution for more than 11 years. This yielded a term of 204

months, from which was deducted 40 months for her discipline-free 10 years at

the institution. The result of this computation was a net term of 164 months

(13 years 8 months) before she would be eligible for release. Accordingly, the

proposed release date was set almost three and a half years in the future — for late

July 1997.

In March 1994, former Governor Pete Wilson reversed the Board’s

recommendation, providing two reasons for his decision. First, he stated “public

safety” might require a lengthier incarceration. Second, he found the Board had

given inadequate consideration to the “public interest in a punishment

proportionate to the seriousness of the crime.” These findings gave primary

credence to the earlier psychological reports and tests reflecting various

psychological disorders, as opposed to the more recent reports finding no current

evidence that petitioner remained subject to those problems. The Governor’s

statement also asserted the base term should be longer.

In both 2000 and 2001, petitioner’s parole hearings resulted in split

decisions, with one commissioner voting against release. This required en banc


4

Unless otherwise indicated, all further unspecified statutory references are

to the Penal Code, and all further undesignated references to Regulations are to
title 15 of the California Code of Regulations.

10

consideration and each time, parole was denied. In November 2002, the Board

issued its second positive recommendation that petitioner be granted parole.

The reasons given at this time parallel the findings contained in the Board’s

favorable recommendation in 1993. Additionally, there was further psychiatric

evidence indicating that petitioner had taken responsibility for her crime and felt

greater remorse, and that she would not be a danger to public safety. By then, she

also had a much longer record as a model inmate. She was only a few credits

short of a master’s degree in business administration, held membership in the

plumbers union, and had made major contributions to a number of educational and

public service programs at the prison. The Board calculated the appropriate period

of incarceration as 216 months for the aggravated term and 12 more for use of a

firearm. From this, however, it deducted 64 months in postconviction credits for a

net term of 152 months (12 years 8 months, in contrast to the 13 years 8 months

calculated in 1993). By this time, however, petitioner already had been

imprisoned some 18 years — far longer than the net term of 152 months.

In April 2003, former Governor Gray Davis reversed petitioner’s second

positive parole recommendation.

In May 2004, the Board again recommended granting parole to petitioner.

This time the net term was calculated at 130 months (10 years 9 months). After

reciting essentially the same list of findings as in the previous two parole

recommendations, the Board highlighted that petitioner had no “115’s” (that is,

serious rules violations) in her nearly two decades at the prison. Although she had

received a few “128(a)’s” (administrative rules violations) for being late to work

appointments or counseling sessions, the last of those had been received a decade

earlier, in April 1993. An April 2004 psychological evaluation once again had

been favorable and reported petitioner was not a danger to public safety and

understood the seriousness of her crime and what had led to it. The Board

11

recommended as a condition of parole that petitioner be required to undergo drug

counseling and monitoring for one year.

A month later, Governor Arnold Schwarzenegger reversed this third

positive parole recommendation. He based his decision upon a finding that

petitioner’s release would pose an unreasonable risk of danger to public safety.

His decision characterized the murder as a vicious crime committed for an

“incredibly petty” reason, and found that this constituted “reason enough to pose

an unreasonable risk to public safety.”

In August 2005, the Board again recommended petitioner be paroled. The

Board’s report reflects that the panel heard testimony from petitioner, considered

her prison record, read some 24 letters from petitioner’s family and other

supporters, studied the full statement issued by the Governor in reversing the May

2004 Board recommendation that petitioner be released, and considered arguments

from a representative of the Los Angeles County District Attorney’s Office

opposing parole as well as from petitioner’s attorney. The panel commended

petitioner for her resilience after experiencing the disappointment of a

gubernatorial reversal of her third parole-release-recommendation. It then recited

a number of favorable developments subsequent to the Governor’s action,

including a laudatory note from a staff member describing petitioner as a “team

player who interacts with everyone in a courteous manner.” Another internal

evaluation reflects her continued participation in a conflict transformation

program. Other reports discuss activities that have further improved her

employability, such as her participation in Toastmasters, a Women’s First Job

Fair, and other programs, as well as religious and charitable work.

Additional developments described in the Board’s report include the

circumstance that petitioner obtained her master’s degree in business

administration in June 2005. She also updated her computer skills and received

12

above-average evaluations in her “office services” assignment. The file also

contained a letter from a lieutenant on the prison staff commending petitioner for

her work as a physical fitness trainer during the previous five years, stating she is

“a superb motivator and trainer.” This was accompanied by a letter bearing the

signatures of 78 physical fitness trainees praising petitioner for what she “has done

for us in reference to getting some self-esteem, along with some know-how, along

with mental strength and physical strength.” This letter proceeds “to commend

[petitioner] on being just one person that has to deal with hundreds of women with

different personalities and attitudes, and still continues to get up each morning and

encourage and teach us how to be just as strong. . . . I truly believe that if a person

such as [petitioner] gives so much of herself to so many people, then the least we

can do is give something back.”

The Board’s report also discussed numerous other letters written by persons

outside the institution in support of petitioner’s parole, which variously describe

petitioner as a good student and a “remarkable woman.” A letter from the

coordinator of the Partnership for Reentry Program stated that petitioner had

applied for and been accepted into the Los Angeles Archdiocese’s Partnership for

Reentry Program, a four-year program in which, upon release, a mentor and a

team meet with the participant weekly. The coordinator expressed confidence that

petitioner would succeed in the program and in reentry into society. Additional

letters from various clergy and social workers who knew petitioner stated the

writers’ belief that petitioner would be a productive member of society if released

from prison. With the sole exception of a pro forma argument from the District

Attorney, no one spoke or wrote in opposition to a grant of parole.

After reviewing the evidence that became available following the

Governor’s reversal of the 2004 Board recommendation — as well as the earlier

evidence relevant to her suitability — the panel announced its decision orally,

13

stating its reasons for concluding that petitioner was suitable for parole and would

not pose any unreasonable risk of danger to society or a threat to public safety if

released. Those reasons included the circumstances that petitioner has no juvenile

record of assaulting others, nor any adult record other than the underlying offense;

her exemplary record of participating in self-help, vocational, and educational

programs while in prison, including her recent attainment of a master’s degree in

business administration; her leadership role among other inmates; and her realistic

parole plans, which included a job offer and family support.

The Board concluded, as it had in prior recommendations, that petitioner

should be granted parole. In reaching this conclusion, the Board found that the

crime was committed as the result of stress, and that the possibility of recidivism

was low because of petitioner’s maturation, growth, greater understanding, and

advancing age, and the absence of a history of significant violent crime. The

Board also found that petitioner “understands the nature and magnitude of the

offense, and accepts responsibility for her criminal behavior and has decided to

change towards good citizenship.” The Board further cited favorably the most

recent psychological report, in which the examining psychologist explained that

petitioner had demonstrated substantial insight and understanding into her life and

the circumstances that led her to commit the crime, including her past

relationships with predatory and pathological men, and that petitioner is “now able

to look at her behavior and formulate a number of different options in order to

avoid conflict and violence in other settings and situations.” Consulting its matrix

once again, the Board set the total period of confinement at 130 months — less

than half of petitioner’s actual incarceration at that time, which was nearly 24

years.

In mid-January 2006, the Governor again reversed the Board’s decision.

His statement recounted the circumstances of the crime and petitioner’s

14

subsequent flight from the authorities. The Governor, while acknowledging that

petitioner had surrendered voluntarily, discounted this circumstance by observing

that at the time, petitioner denied any involvement in Mrs. Williams’s murder and

instead attempted to blame Dr. Williams.

The Governor observed that subsequent to her incarceration, petitioner had

been counseled eight times for misconduct, including as recently as 2005, but

acknowledged that she has not been subject to any disciplinary actions. He further

acknowledged that petitioner had made additional efforts toward rehabilitation

subsequent to the Governor’s last statement. “She has, since my last reversal of

the Board’s decision to grant [petitioner] parole in 2004, earned a Master’s degree

in Business Administration. Prior to that, she earned her Bachelor’s degree in

Human Development and an Associate of Arts degree. She received vocational

training in data processing, word processing, and plumbing and has worked within

the institutional setting as a library porter, which is her current position, and as a

plumber, fitness trainer, and food manager’s clerk. [Petitioner] has continued to

avail herself of self-help and therapy, including Conflict Transformation Skills,

Pathways to Wholeness, an array of substance-abuse programs, Stress

Management, and Anger Management. She has participated in charitable events, a

job fair, Toastmasters, Friends Outside programs, and other activities. Moreover,

she has established and maintained seemingly solid relationships with family and

others and has made realistic parole plans in Los Angeles for housing in a

residential program and employment at a local newspaper. These are all factors

supportive of [petitioner’s] parole suitability.”

Nonetheless, the Governor again relied upon the circumstances of the

offense to justify his reversal of the Board’s decision: “[T]he murder perpetrated

by [petitioner] demonstrated a shockingly vicious use of lethality and an

exceptionally callous disregard for human suffering because after she shot Mrs.

15

Williams — four times — causing her to collapse to the floor, [petitioner] stabbed

her repeatedly. And the gravity alone of this murder is a sufficient basis on which

to conclude presently that [petitioner’s] release from prison would pose an

unreasonable public-safety risk.” The Governor described petitioner’s crime as “a

cold, premeditated murder carried out in an especially cruel manner and

committed for an incredibly petty reason.”

Despite acknowledging petitioner’s recent positive mental health

evaluations, the Governor noted that early prison reports by mental health

evaluators characterized petitioner as sociopathic, unstable, and moderately

psychopathic. He also emphasized that for many years, petitioner denied killing

Mrs. Williams, although “she since has admitted that she committed this crime.

She says that she fully understands and is sorry for what she did.” The Governor

further observed that at both the 2004 and 2005 parole hearings, petitioner denied

having brought the gun to the dental office with the intent to shoot the victim.

Regarding the Board’s finding that that the “commitment of the crime was

the result of stress and life, [petitioner] was spurned by a lover in favor of his

wife,” the Governor concluded that “there is evidence in the record that any stress

under which [petitioner] was operating at the time was not of such level or

significance to mitigate her murderous conduct.” In this respect, he emphasized

that as petitioner herself admitted at the 2005 Board hearing, “she returned the gun

to her sister’s home, even put it back under the mattress, right after murdering

Mrs. Williams. . . . [J]ust after returning the gun, she proceeded to another sister’s

home and went to sleep on her couch before ultimately fleeing the state.”

Although petitioner had been incarcerated nearly 24 years at the time of the

Governor’s review and had “made creditable gains” during that time, he

concluded that “the factors weighing against [petitioner’s] parole suitability

presently outweigh the positive ones tending to support it. Accordingly, because I

16

continue to believe that her release from prison would pose an unreasonable risk

of danger to society, I REVERSE the Board’s 2005 decision to grant parole to

[petitioner].”

In an original petition for writ of habeas corpus filed in the Court of

Appeal, petitioner challenged on several grounds the latest decision of the

Governor denying parole. In a split decision, the appellate court found that the

Governor’s decision “is not supported by some evidence rationally indicating

[petitioner] presently represents an unreasonable risk to public safety if released

on parole.” The majority found that the commitment offense did not demonstrate

a more “shockingly vicious use of lethality” or a more “exceptionally callous

disregard for human suffering” than other premeditated first degree murders, or

than the murders in other appellate cases in which courts had found no evidence

supporting the Governor’s decision. The majority also concluded that even if

some evidence supported his characterization of the seriousness of the murder, the

gravity of the commitment offense did not supply some evidence “rationally

demonstrating [petitioner] represents an unreasonable danger to public safety at

the present time.”

The dissent criticized the majority for misapplying the deferential standard

of review set forth in Rosenkrantz, supra, 29 Cal.4th 616, and for relying upon

federal authority to consider the predictive value of the offense. The dissent

concluded that, because the commitment offense involved facts beyond the

minimum necessary for a conviction of first degree murder, the aggravated

circumstances of the commitment offense supplied some evidence supporting the

Governor’s decision.

Accordingly, the Court of Appeal issued a writ vacating the Governor’s

reversal of the Board’s decision, and reinstated the Board’s 2005 grant of parole to

petitioner. After we declined to issue a writ of supersedeas to stay the judgment

17

rendered by the Court of Appeal, petitioner was paroled on July 11, 2007. The

Attorney General sought review in this court, which we granted on September 19,

2007.

II

A

The applicable statutes provide that the Board is the administrative agency

within the executive branch that generally is authorized to grant parole and set

release dates. (§§ 3040, 5075 et seq.) The Board’s parole decisions are governed

by section 3041 and Title 15, section 22815 of the California Code of Regulations

(Regs., § 2230 et seq.) Pursuant to statute, the Board “shall normally set a parole

release date” one year prior to the inmate’s minimum eligible parole release date,

and shall set the date “in a manner that will provide uniform terms for offenses of

similar gravity and magnitude in respect to their threat to the public . . . .”

(§ 3041, subd. (a), italics added.) Subdivision (b) of section 3041 provides that a

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, and that a

parole date, therefore, cannot be fixed at this meeting.” (Italics added; see

Rosenkrantz, supra, 29 Cal.4th at p. 654, fn. omitted.)


5

Because petitioner’s murder was committed prior to November 8, 1978,

title 15, section 2281 governs her parole suitability. Title 15, section 2402, which
we discussed in Rosenkrantz, supra, 29 Cal.4th 616, as excerpted in substantial
part below, provides parole consideration criteria and guidelines for murders
committed on or after November 8, 1978. The two sections are identical.

18

Title 15, Section 2281 of the California Code of Regulations sets forth the

factors to be considered by the Board in carrying out the mandate of the statute.

The regulation is designed to guide the Board’s assessment of whether the inmate

poses “an unreasonable risk of danger to society if released from prison,” and thus

whether he or she is suitable for parole. (Regs., § 2281, subd. (a).)6 The

regulation also lists several circumstances relating to unsuitability for parole7

such as the heinous, atrocious, or cruel nature of the crime, or an unstable social


6

These factors include “the circumstances of the prisoner’s: social history;

past and present mental state; past criminal history, including involvement in other
criminal misconduct which is reliably documented; the base and other
commitment offenses, including behavior before, during and after the crime; past
and present attitude toward the crime; any conditions of treatment or control,
including the use of special conditions under which the prisoner may safely be
released to the community; and any other information which bears on the
prisoner’s suitability for release. Circumstances which taken alone may not firmly
establish unsuitability for parole may contribute to a pattern which results in a
finding of unsuitability.” (Regs., § 2281, subd. (b).)

7

Unsuitability factors are: (1) a commitment offense carried out in an

“especially heinous, atrocious or cruel manner”; (2) a “[p]revious [r]ecord of
[v]iolence”; (3) “a history of unstable or tumultuous relationships with others”;
(4) “[s]adistic [s]exual [o]ffenses”; (5) “a lengthy history of severe mental
problems related to the offense”; and (6) “[t]he prisoner has engaged in serious
misconduct in prison or jail.” (Regs., § 2281, subd. (c)(1)-(6).) This subdivision
further provides that “the importance attached to any circumstance or combination
of circumstances in a particular case is left to the judgment of the panel.” (Regs.,
§ 2281, subd. (c).)


Factors supporting a finding that the inmate committed the offense in an

especially heinous, atrocious, or cruel manner include the following: (A) multiple
victims were attacked, injured, or killed in the same or separate incidents; (B) the
offense was carried out in a dispassionate and calculated manner, such as an
execution-style murder; (C) the victim was abused, defiled, or mutilated during or
after the offense; (D) the offense was carried out in a manner that demonstrates an
exceptionally callous disregard for human suffering; and (E) the motive for the
crime is inexplicable or very trivial in relation to the offense. (Regs., § 2281,
subd. (c)(1).)

19

background; and suitability for parole — such as an inmate’s rehabilitative efforts,

demonstration of remorse, and the mitigating circumstances of the crime.8 (Regs.,

§ 2281, subd. (d).) Finally, the regulation explains that the foregoing

circumstances “are set forth as general guidelines; the importance attached to any

circumstance or combination of circumstances in a particular case is left to the

judgment of the panel.” (Regs., § 2281, subds. (c), (d).) The Governor’s power to

review a decision of the Board is set forth in article V, section 8, subdivision (b) of

the California Constitution.9

8

Suitability factors are: (1) the absence of a juvenile record; (2) “reasonably

stable relationships with others”; (3) signs of remorse; (4) a crime committed “as
the result of significant stress in [the prisoner’s] life”; (5) battered woman
syndrome; (6) the lack of “any significant history of violent crime”; (7) “[t]he
prisoner’s present age reduces the probability of recidivism”; (8) “[t]he prisoner
has made realistic plans for release or has developed marketable skills that can be
put to use upon release”; and (9) the inmate’s “[i]nstitutional activities indicate an
enhanced ability to function within the law upon release.” (Regs., § 2281, subd.
(d)(1)-(9).)

9

Article V, section 8, subdivision (b) of the California Constitution provides

in full: “No decision of the parole authority of this State with respect to the
granting, denial, revocation, or suspension of parole of a person sentenced to an
indeterminate term upon conviction of murder shall become effective for a period
of 30 days, during which the Governor may review the decision subject to
procedures provided by statute. The Governor may only affirm, modify, or
reverse the decision of the parole authority on the basis of the same factors which
the parole authority is required to consider. The Governor shall report to the
Legislature each parole decision affirmed, modified, or reversed, stating the
pertinent facts and reasons for the action.”


The statutory procedures governing the Governor’s review of a parole

decision pursuant to California Constitution article V, section 8, subdivision (b),
are set forth in Penal Code section 3041.2, which states: “(a) During the 30 days
following the granting, denial, revocation, or suspension by a parole authority of
the parole of a person sentenced to an indeterminate prison term based upon a
conviction of murder, the Governor, when reviewing the authority’s decision
pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall
review materials provided by the parole authority. [¶] (b) If the Governor decides

(Footnote continued on next page.)

20

In Rosenkrantz, supra, 29 Cal.4th 616, we were presented with the

threshold question of whether courts are authorized to review the merits of a

Governor’s decision affirming, reversing, or modifying a parole decision of the

Board. We held that both the Board and the Governor must consider the statutory

factors concerning parole suitability set forth by section 3041 and Board

regulations (Regs., § 2230 et seq.), and that “because due process of law requires

that a decision considering such factors be supported by some evidence in the

record, the Governor’s decision is subject to judicial review to ensure compliance

with this constitutional mandate.” (Rosenkrantz, supra, 29 Cal.4th at p. 664.)

“[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 considering the circumstances enumerated in section 2402 of the regulations,

that the prisoner is unsuitable for parole. Accordingly, parole applicants in this

state have an expectation that they will be granted parole unless the Board finds, in

the exercise of its discretion, that they are unsuitable for parole in light of the

circumstances specified by statute and by regulation.” (Rosenkrantz, supra, 29

Cal.4th at p. 654, italics added. See also In re Smith (2003) 114 Cal.App.4th 343,

366) [“parole is the rule, rather than the exception”].)


(Footnote continued from previous page.)

to reverse or modify a parole decision of a parole authority pursuant to subdivision
(b) of Section 8 of Article V of the Constitution, he or she shall send a written
statement to the inmate specifying the reasons for his or her decision.”

21

Nonetheless, we emphasized in Rosenkrantz that the Board’s “ ‘discretion

in parole matters has been described as “great” [citation] and “almost unlimited” ’

[citation].” (Rosenkrantz, supra, 29 Cal.4th at p. 655.) “Resolution of any

conflicts in the evidence and the weight to be given the evidence are within the

authority of the Board.” (Id. at p. 656.) We further concluded that the broad

discretion to be granted to the Board also exists with regard to decisions rendered

by the Governor. (Id. at p. 677.) Although “the Governor’s decision must be

based upon the same factors that restrict the Board in rendering its parole

decision” (id. at p. 660), the Governor undertakes an independent, de novo review

of the inmate’s suitability for parole. (Ibid.) Thus, the Governor has discretion to

be “more stringent or cautious” in determining whether a defendant poses an

unreasonable risk to public safety. (Id. at p. 686.) “[T]he precise manner in which

the specified factors relevant to parole suitability are considered and balanced lies

within the discretion of the Governor. . . . It is irrelevant that a court might

determine that evidence in the record tending to establish suitability for parole far

outweighs evidence demonstrating unsuitability for parole. As long as the

Governor’s decision reflects due consideration of the specified factors as applied

to the individual prisoner in accordance with applicable legal standards, the

court’s review is limited to ascertaining whether there is some evidence in the

record that supports the Governor’s decision.” (Id. at p. 677, italics added.)

Although we emphasized that a court’s review should be highly deferential,

we rejected the Governor’s contention that the judicial branch is authorized to

review parole decisions only to ensure that all procedural safeguards have been

satisfied, but not to consider the merits of a parole decision. (Rosenkrantz, supra,

29 Cal.4th at p. 657.) In doing so, we cautioned against a less stringent standard

of review that would permit the Board to render a decision without any “basis in

fact” and not supported by any evidence in the record simply because “the

22

decision, on its face, recited supposed facts corresponding to the specified factors

and appeared reasonable.” (Id. at p. 665.) Such a decision would be arbitrary and

capricious and, because it affects a protected liberty interest, would violate

established principles of due process of law. (Ibid.) Accordingly, “ ‘[r]equiring a

modicum of evidence to support a decision . . . will help to prevent arbitrary

deprivations without threatening institutional interests or imposing undue

administrative burdens.’ ” (Id. at p. 658, quoting Superintendent v. Hill (1985)
472 U.S. 445, 455 (Hill).)

We held that despite the broad authority granted to the Board and the

Governor, and the limited nature of judicial review, a petitioner is entitled to a

constitutionally adequate and meaningful review of a parole decision, because an

inmate’s due process right “cannot exist in any practical sense without a remedy

against its abrogation.” (Rosenkrantz, supra, 29 Cal.4th at p. 664.) Accordingly,

the judiciary is empowered to review a decision by the Board or the Governor to

ensure that the decision reflects “an individualized consideration of the specified

criteria” and is not “arbitrary and capricious.” (Id. at p. 677.)

Subsequently, in Dannenberg, supra, 34 Cal.4th 1061, we specifically

rejected the petitioner’s contention that the Board must schedule an indeterminate

life inmate’s release on parole, within the parameters of uniform terms for similar

offenses, unless it finds the callousness and brutality of a particular inmate’s

offense, or other indicia of his or her dangerousness, so extreme that the case falls

outside the uniform-term matrices set forth in the Board’s regulations. Instead, in

construing section 3041, we considered it “obvious” that the public-safety

provision of subdivision (b) takes precedence over the “uniform terms” principle

of subdivision (a). We recognized that the “statute expressly provides that the

fixing of a ‘uniform’ parole release date shall occur unless the Board finds the

indeterminate life inmate unsuitable on grounds of ‘public safety.’ ”

23

(Dannenberg, supra, 34 Cal.4th at p. 1082, italics omitted.) Accordingly,

emphasizing that the primary, overriding consideration for the Board is public

safety, we affirmed the “some evidence” standard of review, but our decision did

not specifically reconsider, limit, or amplify the contours of the standard of review

recognized and outlined in Rosenkrantz.

In sum, the Penal Code and corresponding regulations establish that the

fundamental consideration in parole decisions is public safety (§ 3041; Regs.,

§§ 2281, 2402), and our discussion in both Rosenkrantz and Dannenberg

emphasized this point. Moreover, it is apparent from the foregoing discussion that

the core determination of “public safety” under the statute and corresponding

regulations involves an assessment of an inmate’s current dangerousness. As

noted above, a parole release decision authorizes the Board (and the Governor) to

identify and weigh only the factors relevant to predicting “whether the inmate will

be able to live in society without committing additional antisocial acts.”

(Rosenkrantz, supra, 29 Cal.4th at p. 655.) These factors are designed to guide an

assessment of the inmate’s threat to society, if released, and hence could not

logically relate to anything but the threat currently posed by the inmate. (Regs.,

§ 2281, subds. (c) & (d); Rosenkrantz, supra, 29 Cal.4th at p. 655.)

B

In the years since our decision in Dannenberg, supra, 34 Cal.4th 1061,

courts have struggled to strike an appropriate balance between deference to the

Board and the Governor, and meaningful review of parole decisions. A growing

tension has emerged in the decisions regarding the precise contours of the “some

evidence” standard of review. This conflict is rooted in the practical reality that in

every published judicial opinion addressing the issue, the decision of the Board or

the Governor to deny or reverse a grant of parole has been founded in part or in

whole upon a finding that the inmate committed the offense in an “especially

24

heinous, atrocious or cruel manner,”10 and in the growing recognition that in some

instances, the circumstances of the underlying offense, remote in time and

attenuated by post-conviction rehabilitation, bear little relationship to the

determination we recognized in Rosenkrantz and Dannenberg as critical —

whether the inmate remains a threat to public safety. Accordingly, a conflict has

emerged concerning the extent to which a determination of current dangerousness

should guide a reviewing court’s inquiry into the Governor’s (or the Board’s)

decision and, more specifically, as to whether the aggravated circumstances of the

commitment offense, standing alone, provide some evidence that the inmate

remains a current threat to public safety.

In Rosenkrantz, supra, 29 Cal.4th 616, we held that “[t]he nature of the

prisoner’s offense, alone, can constitute a sufficient basis for denying parole.”

(Id. at p. 682.) We also observed, however, that a parole denial based upon the

circumstances of the offense might deny due process under the California

Constitution when “no circumstances of the offense reasonably could be

considered more aggravated or violent than the minimum necessary to sustain a

conviction for that offense. Denial of parole under these circumstances would be


10

(Regs., §§ 2281, subd. (c)(1), 2402, subd. (c)(1); see In re Bettencourt

(2007) 156 Cal.App.4th 780, 791 (Bettencourt); In re Roderick (2007) 154
Cal.App.4th 242, 260 (Roderick); In re Gray (2007) 151 Cal.App.4th 379, 396
(Gray); In re Tripp (2007) 150 Cal.App.4th 306, 316 (Tripp); In re Barker (2007)
151 Cal.App.4th 346, 361-362 (Barker); In re Burns (2006) 136 Cal.App.4th
1318, 1323 (Burns); In re Andrade (2006) 141 Cal.App.4th 807, 813 (Andrade);
In re Lee (2006) 143 Cal.App.4th 1400, 1405 (Lee); In re Weider (2006) 145
Cal.App.4th 570, 581 (Weider); In re Elkins (2006) 144 Cal.App.4th 475, 486
(Elkins); In re Scott (2005) 133 Cal.App.4th 573, 587-588 (Scott); In re DeLuna
(2005) 126 Cal.App.4th 585, 590 (DeLuna); In re Honesto (2005) 130
Cal.App.4th 81, 89 (Honesto); In re Fuentes (2005) 135 Cal.App.4th 152, 158
(Fuentes); In re Lowe (2005) 130 Cal.App.4th 1405, 1414-1415 (Lowe).)

25

inconsistent with the statutory requirement that a parole date normally shall be set

‘in a manner that will provide uniform terms for offenses of similar gravity and

magnitude in respect to their threat to the public. . . .’ (Pen. Code § 3041, subd.

(a).) . . . [¶] ‘Therefore, a life term offense or any other offenses underlying an

indeterminate sentence must be particularly egregious to justify the denial of a

parole date.’ ” (Id. at p. 683.)

In Dannenberg, we confirmed that “[w]hen the Board bases unsuitability

on the circumstances of the commitment offense, it must cite ‘some evidence’ of

aggravating facts beyond the minimum elements of that offense. (Rosenkrantz,

supra, 29 Cal.4th 616, 658, 683.)” (Dannenberg, supra, 34 Cal.4th at pp. 1095-

1096, fn. 16.) We also clarified that “[o]ur use of the phrase ‘particularly

egregious’ ” in Rosenkrantz did not mandate a proportionality review as a

threshold inquiry in every case, but “conveyed only that the violence or

viciousness of the inmate’s crime must be more than minimally necessary to

convict him of the offense for which he is confined.” (Dannenberg, supra, 34

Cal.4th at p. 1095, quoting Rosenkrantz, supra, 29 Cal.4th at p. 683.)

In considering whether such evidence existed in petitioner Dannenberg’s

case, we recounted that the inmate had bludgeoned his wife with a pipe wrench

and then either pushed his wife into a bathtub of water, or left her to drown in the

tub despite awareness of her injuries. In light of these circumstances, we

concluded “there clearly was ‘some evidence’ (Rosenkrantz, supra, 29 Cal.4th

616, 658) to support the Board’s determination that Dannenberg’s crime was

‘especially callous and cruel,’ showed ‘an exceptionally callous disregard for

human suffering,’ and was disproportionate to the ‘trivial’ provocation.

Accordingly, under Rosenkrantz, the Board could use the murder committed by

Dannenberg as a basis to find him unsuitable, for reasons of public safety, to

26

receive a firm parole release date.” (Dannenberg, supra, 34 Cal.4th at p. 1095, fn.

omitted, italics added.)

Although we did not explicitly consider whether the aggravated

circumstances of the commitment offense established that the inmate remained a

current threat to public safety, it is apparent that in basing our conclusion that the

inmate’s due process rights were not violated upon the existence of evidence in the

record establishing that the commitment offense was particularly egregious, we

presumed that the evidence of egregiousness supported the ultimate determination

that the inmate posed a threat to public safety, as opposed to merely providing

support for the Board’s or the Governor’s conclusion that the crime was

particularly aggravated. (Dannenberg, supra, 34 Cal.4th at p. 1095 [finding

“some evidence” supported Board’s determination that the petitioner’s crime was

particularly egregious, and concluding under Rosenkrantz that the Board could

employ the murder committed by the petitioner as a basis for finding him

unsuitable for parole “for reasons of public safety”]; Rosenkrantz, supra,

29 Cal.4th at p. 682 [“the decision of the Governor made clear that he

independently found that petitioner poses a risk of danger based upon the nature of

the offense and petitioner’s conduct before he surrendered”].)

Applying the presumption that evidence of egregiousness supports the

ultimate determination that an inmate poses a threat to public safety, some courts

have concluded that a denial-of-parole decision must be affirmed if “some

evidence” supports the Board’s or the Governor’s factual determination that the

commitment offense was particularly aggravated, or that some other factor

establishing unsuitability is present. (See Bettencourt, supra, 156 Cal.App.4th at

p. 800; Andrade, supra, 141 Cal.App.4th at p. 819; Burns, supra, 136 Cal.App.4th

at pp. 1327-1328; Fuentes, supra, 135 Cal.App.4th at pp. 162-163; Honesto,

supra, 130 Cal.App.4th at p. 96; Lowe, supra, 130 Cal.App.4th at pp. 1427-1428;

27

DeLuna, supra, 126 Cal.App.4th at p. 593.) Under this approach, if some

evidence supports a finding that the crime is especially heinous, atrocious, or

cruel, and the record establishes that the Board or the Governor gave consideration

to the factors required by law to be taken into account, the court will not weigh the

balance of relevant factors differently, and will not independently assess whether

an inmate poses an “unreasonable risk” to public safety.11 (Regs., § 2402, subd.

(a).)

Conversely, an emerging majority of courts, concluding that an inquiry

focused only upon the existence of unsuitability factors fails to provide the

meaningful review guaranteed by the due process clause, define the “some

evidence” standard by focusing upon those aspects of our earlier opinions in

which we stated that the judicial inquiry is centered upon an evaluation of the

evidence supporting the Board or the Governor’s decision,12and that decision

is whether or not an inmate continues to pose a threat to public safety.

(Rosenkrantz, supra, 29 Cal.4th at pp. 654 [“the 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”]; Dannenberg, supra, 34 Cal.4th at pp. 1083,


11

As discussed in part III, post, implicit in this approach is the assumption,

gleaned from our application of the standard in Rosenkrantz and Dannenberg, that
evidence establishing that a commitment offense was particularly egregious
inherently assesses the threat currently posed by the inmate to public safety.

12

(Rosenkrantz, supra, 29 Cal.4th at p. 658 [“the court may inquire only

whether some evidence in the record before the Board supports the decision to
deny parole, based upon factors specified by statute and regulation”(italics
added)]; Hill, supra, 472 U.S. at pp. 455-456 [“the relevant question is whether
there is any evidence in the record that could support the conclusion reached by
the decision maker.”])

28

1084, 1098 [“the suitability determination should focus upon the public safety risk

posed by ‘this individual’ ”; “the determination of suitability for parole involves a

paramount assessment of the public safety risk posed by the particular offender,

without regard to a comparative analysis of similar offenses committed by other

persons”; some evidence “indicated exceptional callousness and cruelty with

trivial provocation, and thus suggested [Dannenberg] remains a danger to public

safety” (italics added)].)13

These cases emphasize that public safety is the overarching consideration

for both the Board and the Governor, and interpret the Rosenkrantz “some

evidence” test as “meaning that suitability determinations must have some basis in

fact.” (Scott, supra, 133 Cal.App.4th at p. 590, fn. 6.) Accordingly, these

decisions conclude that the some evidence standard described in Rosenkrantz and

Dannenberg poses not simply a question of whether some evidence supports the

factors cited for denial, but instead, whether the evidence supports the core

determination required by the statute before parole can be denied — that an

inmate’s release will unreasonably endanger public safety. (Roderick, supra, 154

Cal.App.4th at p. 263; Gray, supra, 151 Cal.App.4th at p. 410; Barker, supra, 151

Cal.App.4th at p. 366; Tripp, supra, 150 Cal.App.4th at p. 313; Weider, supra,

145 Cal.App.4th at p. 589; Elkins, supra, 144 Cal.App.4th at p. 499; Lee, supra,

143 Cal.App.4th at p. 1408; Scott, supra, 133 Cal.App.4th at p. 595.) As

articulated in Lee, supra, 143 Cal.App.4th 1400, these decisions conclude that


13

(Roderick, supra, 154 Cal.App.4th at p. 263; Gray, supra, 151 Cal.App.4th

at p. 410; Barker, supra, 151 Cal.App.4th at p. 366; Tripp, supra, 150 Cal.App.4th
at p. 313; Weider, supra, 145 Cal.App.4th at p. 589; Elkins, supra, 144 Cal.App.4th
at p. 499; Lee, supra, 143 Cal.App.4th at p. 1408; Scott, supra, 133 Cal.App.4th at
p. 595.)

29

“[s]ome evidence of the existence of a particular factor does not necessarily equate

to some evidence the parolee’s release unreasonably endangers public safety.”

(Id. at p. 1409, fn. omitted.)

In most of the decisions discussed above, the courts have not explicitly

recognized a conflict between the two alternative approaches. Several dissenting

justices, however, including Justice Perluss in the present case, as well as the

majority in several cases in which we have granted review (and which we have

held pending resolution of the present case), have criticized the so-called current

dangerousness approach as incompatible with our analysis in Rosenkrantz and

Dannenberg. (E.g. Roderick, supra, 154 Cal.App.4th at pp. 311-312 (dis. opn. of

Sepulveda, J.).) These justices view a standard of review focusing upon the

ultimate statutory decision rather than the existence of an unsuitability factor as

one that transmutes the deferential standard of review set forth in Rosenkrantz into

one that impermissibly reweighs the evidence, recalibrates the relevant factors,

and permits an independent determination whether the inmate continues to pose a

risk to public safety.

We disagree with the view that a standard of review that focuses upon the

existence of “some evidence” that an inmate poses a current threat to public

safety — rather than merely some evidence of the existence of an unsuitability

factor — is incompatible with either Rosenkrantz or Dannenberg. As set forth

above, our previous cases recognize that the paramount consideration for both the

Board and the Governor under the governing statutes is whether the inmate

currently poses a threat to public safety and thus may not be released on parole.

(Dannenberg, supra, 34 Cal.4th at pp. 1070-1071, 1079-1080, 1083-1084, 1091,

1094, 1098; Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, 682-683.) We have

held that to ensure that a Board’s decision comports with due process, a court must

consider whether “some evidence in the record before the Board supports the

30

decision to deny parole, based upon the factors specified by statute and regulation.

If the decision’s consideration of the specified factors is not supported by some

evidence in the record and thus is devoid of a factual basis, the court should grant

the prisoner’s petition for writ of habeas corpus and should order the Board to

vacate its decision denying parole and thereafter to proceed in accordance with

due process of law.” (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added.)

We also have emphasized that under the some evidence standard, a

reviewing court reviews the merits of the Board’s or the Governor’s decision, and

is not bound to affirm a parole decision merely because the Board or the Governor

has adhered to all procedural safeguards. We have remarked that “[a]s long as the

Governor’s decision reflects due consideration of the specified factors as applied

to the individual prisoner in accordance with applicable legal standards, the

court’s review is limited to ascertaining whether there is some evidence in the

record that supports the Governor’s decision.” (Rosenkrantz, supra, 29 Cal.4th at

p. 677, italics added.) This standard is unquestionably deferential, but certainly is

not toothless, and “due consideration” of the specified factors requires more than

rote recitation of the relevant factors with no reasoning establishing a rational

nexus between those factors and the necessary basis for the ultimate decision —

the determination of current dangerousness. “It is well established that a policy of

rejecting parole solely upon the basis of the type of offense, without individualized

treatment and due consideration, deprives an inmate of due process of law.” (Id.

at p. 684.)

Indeed, our conclusion that current dangerousness (rather than the mere

presence of a statutory unsuitability factor) is the focus of the parole decision is

rooted in the governing statute. We have observed that “ ‘[t]he Board’s authority

to make an exception [to the requirement of setting a parole date] based on the

gravity of a life term inmate’s current or past offenses should not operate so as to

31

swallow the rule that parole is ‘normally’ to be granted. Otherwise, the Board’s

case-by-case rulings would destroy the proportionality contemplated by Penal

Code section 3041, subdivision (a), and also by the murder statutes, which provide

distinct terms of life without possibility of parole, 25 years to life, and 15 years to

life for various degrees and kinds of murder. (Pen. Code, § 190 et seq.)’ ”

(Rosenkrantz, supra, 29 Cal.4th p. 683.) Consistent with this statutory regime, the

Board’s regulations, establishing a matrix of factors for determining the suggested

base terms for life prisoners, contemplates that even those who committed

aggravated murder may be paroled after serving a sufficiently long term if the

Board determines that evidence of postconviction rehabilitation indicates they no

longer pose a threat to public safety. (See, e.g., Regs., §§ 2282(b), 2403(b))

[formulating longer suggested base terms for first degree murderers who have no

prior relationship to their victim and who inflict trauma on their victims].) Of

course, as we stated in Dannenberg, the statute does not contemplate that the goal

of uniformity will take precedence over the goal of public safety. (See

Dannenberg, supra, 34 Cal.4th at p. 1087.) But the statutory and regulatory

mandate to normally grant parole to life prisoners who have committed murder

means that, particularly after these prisoners have served their suggested base

terms, the underlying circumstances of the commitment offense alone rarely will

provide a valid basis for denying parole when there is strong evidence of

rehabilitation and no other evidence of current dangerousness.

In expressly rejecting a purely procedural standard of review in

Rosenkrantz, we recognized that in light of the constitutional liberty interest at

stake, judicial review must be sufficiently robust to reveal and remedy any evident

deprivation of constitutional rights. If simply pointing to the existence of an

unsuitability factor and then acknowledging the existence of suitability factors

were sufficient to establish that a parole decision was not arbitrary, and that it was

32

supported by “some evidence,” a reviewing court would be forced to affirm any

denial-of-parole decision linked to the mere existence of certain facts in the

record, even if those facts have no bearing on the paramount statutory inquiry.

Such a standard, because it would leave potentially arbitrary decisions of the

Board or the Governor intact, would be incompatible with our recognition that an

inmate’s right to due process “cannot exist in any practical sense without a remedy

against its abrogation.” (Rosenkrantz, supra, 29 Cal.4th. at p. 664; In re Scott

(2004) 119 Cal.App.4th 871, 898 [observing that the deferential standard of

review set forth in Rosenkrantz, although requiring courts to be “exceedingly

deferential” to the Board’s findings, “does not convert a court reviewing the denial

of parole into a potted plant”].)

Accordingly, if we are to give meaning to the statute’s directive that the

Board shall normally set a parole release date (§ 3041, subd. (a)), a reviewing

court’s inquiry must extend beyond searching the record for some evidence that

the commitment offense was particularly egregious and for a mere

acknowledgement by the Board or the Governor that evidence favoring suitability

exists. Instead, under the statute and the governing regulations, the circumstances

of the commitment offense (or any of the other factors related to unsuitability)

establish unsuitability if, and only if, those circumstances are probative to the

determination that a prisoner remains a danger to the public. It is not the existence

or nonexistence of suitability or unsuitability factors that forms the crux of the

parole decision; the significant circumstance is how those factors interrelate to

support a conclusion of current dangerousness to the public.

Accordingly, when a court reviews a decision of the Board or the

Governor, the relevant inquiry is whether some evidence supports the decision of

the Board or the Governor that the inmate constitutes a current threat to public

safety, and not merely whether some evidence confirms the existence of certain

33

factual findings. (Rosenkrantz, supra, 29 Cal.4th at p. 658; Dannenberg, supra,

34 Cal.4th at p. 1071; Lee, supra, 143 Cal.App.4th at p. 1408, fn. omitted.)

Contrary to the Attorney General’s contention, our recognition that judicial

review contemplates an evaluation of the record for some evidence supporting the

decision reached by the Board or the Governor does not impermissibly shift the

ultimate discretionary decision of parole suitability from the executive branch to

the judicial branch. In Rosenkrantz, supra, 29 Cal.4th 616, we expressly

recognized that judicial review of a Governor’s parole decision for adherence to

both statutory and constitutional mandates was both (a) contemplated by the

governing statutes and the California Constitution, and (b) integral to protecting an

inmate’s constitutional liberty interest in the setting of a parole date. (Id. at

p. 664.) Our recognition today that the focus upon current dangerousness is the

appropriate articulation of the “some evidence” standard does not alter the role

assigned either to the executive or to the judiciary, but merely articulates the

circumstance that the relevant consideration both for the executive decisionmakers

and for reviewing courts is the core statutory determination of public safety. (Id.

at p. 662.)

The Attorney General further asserts that the some evidence standard,

focused upon current dangerousness, does not lend itself to appropriate judicial

review, because a “predictive” determination regarding parole suitability is not

subject to objective proof and thus is not amenable to review under the some

evidence standard. We disagree. As explained above, as specified by statute,

current dangerousness is the fundamental and overriding question for the Board

and the Governor. In addition, and as further explained below, evidence in the

record corresponding to both suitability and unsuitability factors — including the

facts of the commitment offense, the specific efforts of the inmate toward

rehabilitation, and, importantly, the inmate’s attitude concerning his or her

34

commission of the crime, as well as the psychological assessments contained in

the record — must, by statute, be considered and relied upon by both the Board

and the Governor, whose decisions must be supported by some evidence, not

merely by a hunch or intuition. By reviewing this evidence, a court may

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. A standard of

review focusing upon the existence of some evidence supporting the determination

required by statute does nothing more than ensure that the Board and the Governor

have complied with the statutory mandate and have acted within their

constitutional authority.

III

The Attorney General contends that the aggravated circumstances of a

commitment offense inherently assess current dangerousness, and that the

existence of “some evidence” demonstrating that the offense was aggravated

beyond the minimum elements of the offense therefore is sufficient to support the

conclusion that an inmate is currently dangerous. Arguably, the manner in which

we applied the some evidence standard in Rosenkrantz and Dannenberg implicitly

endorsed the Attorney General’s position. In each case, we evaluated the

egregiousness of the commitment offense by considering whether the offense

involved some act beyond the minimum required for conviction of the offense,

and upon finding that the circumstances of the offense established egregiousness,

we affirmed the Board’s or the Governor’s decision without specifically

considering whether there existed a rational nexus between those egregious

circumstances and the ultimate conclusion that the inmate remained a threat to

public safety.

In light of the conflict among the Courts of Appeal discussed above, it is

necessary to clarify the manner in which courts must apply the some evidence

35

standard. As we explain below, an inquiry into whether the offense is more

aggravated than the minimum elements necessary to sustain a conviction was not

intended by this court to be the exclusive measure of due process, and has proved

in practice to be unworkable, leading to arbitrary results. Most importantly, the

circumstance that the offense is aggravated does not, in every case, provide

evidence that the inmate is a current threat to public safety. Indeed, it is not the

circumstance that the crime is particularly egregious that makes a prisoner

unsuitable for parole — it is the implication concerning future dangerousness that

derives from the prisoner having committed that crime. Because the parole

decision represents a prospective view — essentially a prediction concerning the

future — and reflects an uncertain conclusion, rarely (if ever) will the existence of

a single isolated fact in the record, evaluated in a vacuum, suffice to support or

refute that decision.

Accordingly, we conclude that although the Board and the Governor may

rely upon the aggravated circumstances of the commitment offense as a basis for a

decision denying parole, the aggravated nature of the crime does not in and of

itself provide some evidence of current dangerousness to the public unless the

record also establishes that something in the prisoner’s pre- or post-incarceration

history, or his or her current demeanor and mental state, indicates that the

implications regarding the prisoner’s dangerousness that derive from his or her

commission of the commitment offense remain probative to the statutory

determination of a continuing threat to public safety.

A

Although we relied upon a “minimum elements” inquiry to determine

whether the commitment offenses in Rosenkrantz and Dannenberg were

particularly egregious, by doing so we did not intend to define the exclusive

situation in which a decision relying solely upon the circumstances of the

36

commitment offense to justify a denial-of-parole decision might be found to be

arbitrary or capricious. After all, we recognized that the fundamental purpose of

judicial review is to permit courts to provide a remedy for arbitrary decisions. As

noted above, we observed that a parole denial based upon the circumstances of the

offense might, “for example,” violate due process under the California

Constitution “where no circumstances of the offense reasonably could be

considered more aggravated or violent than the minimum necessary to sustain a

conviction for that offense. . . . [¶] ‘Therefore, a life term offense or any other

offenses underlying an indeterminate sentence must be particularly egregious to

justify the denial of a parole date.’ ” (Rosenkrantz, supra, 29 Cal.4th at p. 683.)

To the extent this language has been read to suggest that reliance solely upon the

circumstances of the commitment offense would violate an inmate’s due process

rights only in those cases in which the circumstances of the crime are not

particularly egregious, we emphasize that due process cannot, and should not, be

so narrowly defined.

B

Nonetheless, reading the minimum elements language as talismanic, Court

of Appeal decisions have interpreted our cases as establishing this focus as the

sole relevant consideration in determining whether an inmate’s due process rights

were violated by the Board’s or the Governor’s reliance upon the circumstances of

the commitment offense. This preoccupation with minimum elements has created

an irrational dichotomy between those appellate decisions that are premised upon

the existence of “some evidence” of an unsuitability factor and those decisions

premised upon the existence of “some evidence” of current dangerousness.

Decisions in the first category uniformly have concluded that the circumstances of

the underlying homicide were, in fact, particularly egregious and extended beyond

the minimum elements necessary for conviction (and therefore, because the

37

statutory factor corresponding to the gravity of the offense applied, these decisions

have affirmed the denial of parole.)14 Decisions in the second category have

focused upon the existence of “some evidence” of current dangerousness, and,

with a few exceptions,15 have concluded that the underlying homicide was not

particularly egregious and did not exceed the minimum elements required for

conviction of that offense (thereby mandating reversal of the Board’s or the

Governor’s action, because the record did not contain some evidence supporting a

finding of current dangerousness).16


14

(See Bettencourt, supra, 156 Cal.App.4th at p. 807; Burns, supra, 136

Cal.App.4th at p. 1329; Andrade, supra, 141 Cal.App.4th at pp. 818-819; Fuentes,
supra
, 135 Cal.App.4th at p. 163; Honesto, supra, 130 Cal.App.4th at pp. 96-97;
Lowe, supra, 130 Cal.App.4th at p. 1429.)


The court in DeLuna, supra, 126 Cal.App.4th at page 600, found no

evidence in the record supporting the existence of any of the multiple factors cited
by the Board, except for the aggravated nature of the commitment offense. The
appellate court reversed the trial court’s decision granting petitioner’s habeas
corpus petition, but did not affirm the Board’s decision, instead ordering the trial
court to remand the matter to the Board for a new hearing. (Ibid.)

15

Two cases diverged from the pattern by applying the some-evidence-of-

current-dangerousness approach and finding both that the crime involved more
than the minimum elements, and that the circumstances of the crime continued to
be predictive of current dangerousness. In Tripp, supra, 150 Cal.App.4th at pages
314, 320, the court recognized the current dangerousness test, but concluded that
the circumstances surrounding petitioner’s commitment offense were particularly
egregious, and could constitute some evidence if the Governor duly considered all
other relevant factors. In In re Hyde (2007) 154 Cal.App.4th 1200, 1215 (Hyde),
the court analyzed the record for some evidence of current dangerousness, and
also concluded that the circumstances of petitioner’s numerous commitment
offenses were both particularly egregious and provided evidence of his continuing
threat to public safety.

16

(See Roderick, supra, 154 Cal.App.4th at p. 278; Gray, supra, 151

Cal.App.4th at p. 410; Barker, supra, 151 Cal.App.4th at pp. 377-378; Weider,
supra
, 145 Cal.App.4th at pp. 590-591; Elkins, supra, 144 Cal.App.4th at pp. 502-

(Footnote continued on next page.)

38

A review of these cases reveals that resort to a minimum elements inquiry

has proved to lead to arbitrary results. For example, in Bettencourt, supra, 156

Cal.App.4th at page 800, the court found the commitment offense particularly

aggravated where the petitioner and his friend beat and stabbed the victim with a

screwdriver and a knife, and after the murder the petitioner cleaned the victim’s

apartment and dumped the body off a cliff. (See also Burns, supra, 136

Cal.App.4th at p. 1327 [crime found particularly aggravated where the petitioner

confronted the victim, his ex-girlfriend, in a dark and isolated area and shot her in

the head with a stolen gun; the victim died several hours later; and after the

shooting, the petitioner went to his dorm room where he watched television].)17


(Footnote continued from previous page.)

503; Lee, supra, 143 Cal.App.4th at pp. 1414-1415; Scott, supra, 133 Cal.App.4th
at pp. 603-604.)

17 (See

also

Andrade, supra, 141 Cal.App.4th at p. 819 [crime found

particularly aggravated where during an altercation between the petitioner and
another man, the petitioner’s adversary cut his neck with a knife; the petitioner left
the scene, returned with a shotgun, and shot two bystanders, one of whom was
believed by the petitioner to have stabbed him; the petitioner fired three shots,
killing one victim and injuring the second]; Fuentes, supra, 135 Cal.App.4th at
pp. 162-163 [crime found particularly aggravated where the petitioner and his
acquaintance had an altercation with two men; during the altercation, either the
petitioner or his acquaintance pulled a knife and stabbed one of the men once in
the face and once in the chest; after the stabbing, the petitioner fled the scene];
Honesto, supra, 130 Cal.App.4th at p. 96 [crime found particularly aggravated
where the petitioner and two co-conspirators planned to kidnap, rob, and possibly
kill the victim, who was the head clerk at a grocery store and once had refused to
cash a check for one of the men; the men confronted the victim at his home with
firearms and forced him to drive to the store; during the drive, the petitioner shot
the victim with a shotgun, causing a collision; victim died several hours later];
Lowe, supra, 130 Cal.App.4th at pp. 1427-1428 [crime found particularly
aggravated where the petitioner and the victim had a sexual relationship; after the
relationship deteriorated, the petitioner purchased a gun and fired five shots at the
victim’s head and chest while he was asleep; after the murder, the petitioner

(Footnote continued on next page.)

39

In contrast, in Barker, supra, 151 Cal.App.4th at pages 377-378, the court

found the commitment offense was not particularly aggravated where the

petitioner and his accomplice planned to kill the accomplice’s parents for money.

After the accomplice shot the parents, the petitioner killed the accomplice’s 76-

year-old grandfather by striking him on the head with a chisel several times and

then shooting him twice in the head. Following the murders, the petitioner and his

accomplice ransacked the house to make the crime look like a burglary. (See also

Elkins, supra, 144 Cal.App.4th at p. 502 [crime found not particularly aggravated

where the petitioner, a drug dealer, owed the victim money; after drinking

alcoholic beverages and consuming cocaine, the petitioner planned to rob the

victim of money and drugs; the petitioner killed victim by repeatedly beating him

over the head with a baseball bat while he was sleeping; after the murder, the

petitioner dumped the body in a remote area, burglarized victim’s storage area and

his girlfriend’s house, and left the state].)18


(Footnote continued from previous page.)

covered the body in sheets and blankets, leaving it on the bed for two months; the
petitioner later placed the body in a coffin, which he used as a nightstand; after
learning that the police discovered the body, the petitioner fled].)

18

(See also Weider, supra, 145 Cal.App.4th at p. 587 [crime found not

particularly aggravated where after the petitioner’s wife moved in with the victim,
the petitioner confronted wife and victim in a bar with a gun, intending to kill
himself; after a struggle over the gun, the petitioner shot at the victim, killing him
and wounding two patrons]; Lee, supra, 143 Cal.App.4th at p. 1413 [crime found
not particularly aggravated where after a buyer repeatedly failed to make promised
periodic payments to the petitioner, the petitioner confronted him with a gun,
shooting at him five times until the gun jammed; the buyer, hit twice, survived the
shooting, but one of the bullets killed the buyer’s wife]; Scott, supra, 133
Cal.App.4th at p. 601 [crime found not particularly aggravated where victim was
the lover of the petitioner’s wife; the petitioner approached victim while he was
watching fireworks with the petitioner’s wife and son, shot the victim twice in the
head and thigh, and left the scene].)

40

Furthermore, as the Attorney General points out, undue focus upon

minimum elements has led many courts that also properly focus upon some

evidence of current dangerousness — including the Court of Appeal majority in

the present case — to compare the facts under review with the circumstances of

other murders in other cases as a means of considering whether the underlying

crime is particularly egregious in comparison with others, and whether the

evidence supports the conclusion that the petitioner poses a threat to public safety.

(See, e.g., Gray, supra, 151 Cal.App.4th at pp. 405-410; Weider, supra, 145

Cal.App.4th at pp. 588-589; Elkins, supra, 144 Cal.App.4th at pp. 500-502; Lee,

supra, 143 Cal.App.4th at pp. 1410-1412; Scott, supra, 133 Cal.App.4th at

p. 598.)

Focus upon whether a petitioner’s crime was “particularly egregious” in

comparison to other murders in other cases is not called for by the statutes, which

contemplate an individualized assessment of an inmate’s suitability for parole, nor

is it a proper method of assessing whether “some evidence” supports the

Governor’s conclusion that a particular inmate represents an unreasonable threat to

public safety. The circumstance that some inmates who committed murders were

or were not adjudged to be threats to public safety has a minimal bearing upon

whether any other inmate poses such a threat. Moreover, comparative analysis is

incompatible with our decision in Dannenberg. In Dannenberg, supra, 34 Cal.4th

1061, we held that nothing in section 3041 suggests that the Board’s members

must vote in favor of parole unless the inmate’s offense is substantially more

serious than most others of the same class. (34 Cal.4th at pp. 1083-1084, 1095.)

In other words, we recognized that the statute does not require the Board to

compare the inmate’s actual period of confinement with that of other individuals

serving life terms for similar crimes. (Id. at pp. 1070-1071.) Rather, the statutory

41

suitability determination is individualized, and focuses upon the public safety risk

posed by the particular offender. (Ibid.)

C

Reiterating the contention that the statutory factors inherently assess

unsuitability for parole, and thus that no additional inquiry regarding current

dangerousness is required, the Attorney General contends that if it is determined

that a crime involves an act beyond the minimum necessary for conviction of that

offense, some evidence necessarily supports the Governor’s decision, and that if

the record establishes the Governor has considered all other relevant statutory

factors, a court must affirm the Governor’s decision. To address the arbitrary

results that in practice have resulted from resort to a minimum elements inquiry,

the Attorney General suggests we disavow the trend toward comparative analysis

and instead resurrect a pure minimum-elements inquiry that determines whether a

crime is particularly egregious, by determining whether “the violence or

viciousness of the inmate’s crime [was] more than minimally necessary to convict

[defendant] of the offense for which he [or she is] confined.” (Dannenberg,

supra, 34 Cal.4th at p. 1095, italics omitted.)

A survey of the appellate court decisions reveals, however, that the

minimum elements inquiry is unworkable in practice, not merely because it has

led courts to engage in comparative analysis or to characterize clearly aggravated

conduct as not particularly egregious, but also because it has become evident that

there are few, if any, murders that could not be characterized as either particularly

aggravated, or as involving some act beyond the minimum required for conviction

of the offense. Accordingly, because it also is apparent that the gravity of the

offense is the sole or primary determinative factor in each of these cases, a strict

minimum elements inquiry would mandate upholding in every case the denial of

parole, regardless of whether other evidence in the record clearly attenuates the

42

predictive value of the offense, and without any consideration of whether the

gravity of the offense continues to provide some evidence that the inmate remains

a threat to public safety many years after commission of his or her offense.

Similarly, the unexceptional nature of the commitment offense will not inevitably

reflect a lack of current dangerousness without due consideration of the inmate’s

post-conviction actions and progress toward rehabilitation.

More importantly, the minimum elements inquiry, which assesses only the

gravity of the commitment offense, fails to provide a workable standard for

judicial review, because it is now apparent that the aggravated nature of the

commitment offense does not, in every case, provide some evidence that the

inmate remains a current threat to public safety. (Roderick, supra, 154

Cal.App.4th at p. 277 [although record indicated the petitioner had a long criminal

history, court required the Board to hold a new hearing, noting inmate’s age and

“the immutability of [his] past criminal history and its diminishing predictive

value for future conduct”]; Elkins, supra, 144 Cal.App.4th at pp. 498-499

[recognizing that the predictive value of the commitment offense may be very

questionable after a long period of time, and concluding that “[g]iven the lapse of

26 years and the exemplary rehabilitative gains made by [the petitioner] over that

time, continued reliance on these aggravating facts of the crime no longer amounts

to ‘some evidence’ supporting denial of parole”]; Lee, supra, 143 Cal.App.4th at

p. 1412 [court concluded that the petitioner’s crimes had “little, if any, predictive

value for future criminality,” because the crimes committed 20 years ago had “lost

much of their usefulness in [predicting] the likelihood of future offenses”]; Scott,

supra, 133 Cal.App.4th at p. 595 [the “predictive value of the commitment offense

may be very questionable after a long period of time”]; see also Tripp, supra, 150

Cal.App.4th at p. 319 [“[e]stablishing that the commitment offense involved some

elements more than minimally necessary to sustain a conviction is a step on the

43

path of evaluating a prisoner’s current dangerousness, but it is not the final step

under the regulations.”].)

An evaluation of the circumstances of the crime in isolation allows a fact

finder or reviewing court to determine whether a commitment offense was

particularly egregious — a designation that we have seen applied in nearly every

murder case considered by the Board or the Governor — and to conclude that the

prisoner was a danger to the public at or around the time of his or her commission

of the offense. Absent affirmative evidence of a change in the prisoner’s demeanor

and mental state, the circumstances of the commitment offense may continue to be

probative of the prisoner’s dangerousness for some time in the future. At some

point, however, when there is affirmative evidence, based upon the prisoner’s

subsequent behavior and current mental state, that the prisoner, if released, would

not currently be dangerous, his or her past offense may no longer realistically

constitute a reliable or accurate indicator of the prisoner’s current dangerousness.

As we recognized in Rosenkrantz, supra, 29 Cal.4th 616, when evaluating

whether an inmate continues to pose a threat to public safety, both the Board and

the Governor must consider all relevant statutory factors, including those that

relate to post-conviction conduct and rehabilitation. (Id., at p. 2655 [noting that

the Board “ ‘cannot, consistently with its obligation, ignore postconviction factors

unless directed to do so by the Legislature,’ ” and that “ ‘[a]lthough a prisoner is

not entitled to have his term fixed at less than maximum or to receive parole, he is

entitled to have his application for these benefits “duly considered” based upon an

individualized consideration of all relevant factors’ ”].) Indeed, in directing the

Board to consider the statutory factors relevant to suitability, many of which relate

to postconviction conduct and rehabilitation, the Legislature explicitly recognized

that the inmate’s threat to public safety could be minimized over time by changes

in attitude, acceptance of responsibility, and a commitment to living within the

44

strictures of the law. In other words, contrary to the Attorney General’s

contention that if the circumstances of the commitment offense are egregious,

those circumstances will provide some evidence of current dangerousness in

perpetuity, it is evident that the Legislature considered the passage of time — and

the attendant changes in a prisoner’s maturity, understanding, and mental state —

to be highly probative to the determination of current dangerousness.

The minimum elements test, because it functionally removes consideration

of relevant suitability factors and fails to assess current dangerousness,

substantially undermines the rehabilitative goals of the governing statutes.19


19

Although we have not previously emphasized the rehabilitative aspects of

the governing statutory requirements and the underlying legislative intent that the
Board and the Governor consider an inmate’s rehabilitation when evaluating
parole suitability, an examination of the regulatory factors favoring suitability
(quoted, ante, fn. 8) establishes that in determining whether further incarceration is
necessary to protect the public, the Board (and the Governor) must consider,
among other factors, whether the inmate exhibits signs of remorse, has made
realistic plans for release or has developed marketable skills that can be put to use
upon release, and whether the inmate’s institutional activities reflect an enhanced
ability to function within the law upon release. (Regs. § 2281, subd. (d)(3), (8) &
(9).) Moreover, the Board must consider the inmate’s past and present mental
state and past and present attitude toward his or her crime. (Regs. § 2281, subd.
(b).) These suitability factors clearly establish that the statutes contemplate the
consideration of an inmate’s rehabilitation as an integral element of a parole
suitability determination, and that a determination of the current threat posed by an
inmate necessarily involves consideration of the inmate’s postconviction conduct
and mental state as it relates to his or her current ability to function within the law
if released from prison.


Additionally, the regulatory emphasis on institutional behavior, and the

specific proviso that “serious misconduct in prison or jail” is an indicator of
unsuitability for parole (Regs., §§ 2042, subd. (c), 2281, subd. (c).), suggest that
the possibility of parole acts as an incentive — encouraging good behavior and
discouraging misconduct by confined prisoners. Failure to consider a prisoner’s
postconviction behavior when evaluating suitability for parole would undermine
the practical institutional benefits of this regulatory incentive.

45

Moreover, because the minimum elements test would mandate affirmance in every

parole-denial case in which the crime is aggravated, and we have determined that

there are few, if any, cases in which the underlying offense is not aggravated in

some way, the minimum elements inquiry has proved to be incompatible with our

earlier recognition that the “some evidence” standard of review contemplates

review of a parole decision on the merits in order to prevent arbitrary and

capricious decision-making. (Rosenkrantz, supra, 29 Cal.4th at p. 655.)20

Accordingly, as we held in Dannenberg, the determination whether an

inmate poses a current danger is not dependent upon whether his or her

commitment offense is more or less egregious than other, similar crimes.

(Dannenberg, supra, 34 Cal.4th at pp. 1083-1084, 1095.) Nor is it dependent

solely upon whether the circumstances of the offense exhibit viciousness above

the minimum elements required for conviction of that offense. Rather, 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.


20

As the United States Court of Appeals for the Ninth Circuit cogently

observed in Biggs v. Terhune: “To insure that a state-created parole scheme serves
the public interest purposes of rehabilitation and deterrence, the Parole Board must
be cognizant not only of the factors required by state statute to be considered, but
also the concepts embodied in the Constitution requiring due process of
law. [¶]. . . [¶]We must be ever cognizant that ‘[d]ue [p]rocess is not a mechanical
instrument. It is not a yardstick. It is a process. It is a delicate process of
adjustment inescapably involving the exercise of judgment by those whom the
Constitution entrusted with the unfolding of the process.’ [Citations.] A
continued reliance in the future on an unchanging factor, the circumstance of the
offense and conduct prior to imprisonment, runs contrary to the rehabilitative
goals espoused by the prison system and could result in a due process violation.”
(Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 916-917.)

46

This inquiry is, by necessity and by statutory mandate, an individualized one, and

cannot be undertaken simply by examining the circumstances of the crime in

isolation, without consideration of the passage of time or the attendant changes in

the inmate’s psychological or mental attitude. (Rosenkrantz, supra, 29 Cal.4th at

p. 682 [“although the state expects prisoners to behave well in prison, the absence

of serious misconduct in prison and participation in institutional activities that

indicate an enhanced ability to function within the law upon release are factors

that must be considered on an individual basis by the Governor in determining

parole suitability”]; see also In re Minnis (1972) 7 Cal. 3d 639, 645; Irons v.

Carey (9th Cir. 2007) 505 F.3d 846, 854 [“in some cases, indefinite detention

based solely upon an inmate’s commitment offense, regardless of the extent of his

rehabilitation, will at some point violate due process, given the liberty interest in

parole that flows from the relevant California statutes”].)

In sum, the Board or the Governor may base a denial-of-parole decision

upon the circumstances of the offense, or upon other immutable facts such as an

inmate’s criminal history, but some evidence will support such reliance only if

those facts support the ultimate conclusion that an inmate continues to pose an

unreasonable risk to public safety. (Regs., § 2281, subd. (a).) Accordingly, the

relevant inquiry for a reviewing court is not merely whether an inmate’s crime was

especially callous, or shockingly vicious or lethal, but whether the identified facts

are probative to the central issue of current dangerousness when considered in

light of the full record before the Board or the Governor.

IV

Turning now to the facts of the present case, we observe that the Governor

concluded that the murder of Rubye Williams “demonstrated a shockingly vicious

use of lethality and an exceptionally callous disregard for human suffering because

after she shot Mrs. Williams — four times — causing her to collapse to the floor,

47

[petitioner] stabbed her repeatedly. . . . She made it a point to arm herself, not

with one weapon but with two, and show up at a location where she knew she

would find her victim. . . . This was a cold, premeditated murder carried out in an

especially cruel manner and committed for an incredibly petty reason. According

to the appellate decision, [petitioner] told a relative that the killing was a ‘birthday

present’ to herself. [Petitioner’s] birthday was two days before the murder.”

Although the Governor alluded to other possible grounds for denying petitioner’s

parole, he expressly relied only upon the nature of petitioner’s commitment

offense to justify petitioner’s continued confinement, because “the gravity alone of

this murder is a sufficient basis on which to conclude presently that [petitioner’s]

release from prison would pose an unreasonable public-safety risk.”

Before evaluating the Governor’s reliance upon the gravity of the

commitment offense, we first consider his discussion of facts not related to the

circumstances of the commitment offense. Although his statement does not

directly rely upon a lack of remorse to justify denial of parole, the Governor

suggested that petitioner continued to pose a threat to public safety because she

was not remorseful and because she continued to attempt to justify the victim’s

murder. As support, the Governor pointed to quotations excerpted from the

proceedings at petitioner’s 2002 and 2005 Board hearings, such as petitioner’s

observation at the latter hearing that “ ‘I always viewed [Mrs. Williams] as the

obstacle in my fantasy romance. That she was the one that was keeping me from

having what I wanted. So in my mind, it was natural for me to confront her as

though she would disappear . . . .’ [Petitioner also] said that she saw Mrs.

Williams as her ‘problem.’ ”

We agree with the Court of Appeal majority that it is evident from the full

context of petitioner’s statements that she merely was explaining her state of mind

at the time of the homicide, not justifying it. “To the contrary, these and like

48

statements were made in the course of condemning her own behavior on that

occasion and expressing deep remorse for what she had done and why she had

done it.”21 Additionally, as the Court of Appeal recognized and as the record

amply demonstrates, petitioner consistently, repeatedly, and articulately has

expressed deep remorse for her crime as reflected in a decade’s worth of

psychological assessments and transcripts of suitability hearings that were before

the Board.22 Accordingly, the Governor’s conclusion that petitioner showed


21

Later at the hearing, in answer to the question why she took out her rage on

Mrs. Williams instead of Dr. Williams, who had chosen to remain with his wife,
petitioner explained: “Because women blame women when not getting what they
want. They don’t blame men. And a 24-year-old distraught, betrayed woman
looked for the easiest probably person to take out any frustration on. I wanted
him, so in my 24-year-old [mind], she was my problem — he wasn’t my problem.
So it’s irrational, it’s unfounded, it’s unfair, and I understand that now. She was
not the person to blame for my rage. I just took it out on her because it was — it
was just probably the easiest thing to do to confront her instead of Robert.”

22

As the Court of Appeal majority noted, at the 2005 hearing — after

discussing the commission of the crime and petitioner’s flight from prosecution
two months later — she was asked whether there was anything else she had to say
about the crime itself. Petitioner responded: “I would like to let you know, you
know, that I’m totally, totally aware of what I did. I take full responsibility for
what I did. . . . And I made that first step back into reality to come and let you
know that I do understand that I did something horrible, and I’m willing to suffer
the consequences for what I did. And I lived here for 21 ½ years suffering those
consequences, and have grown and gotten stronger behind it. So I come to you
today, apologizing as I do on a daily basis when it comes up in my mind —
apologize to [Rubye] Williams, knowing that I took her life. She was not my
victim. She was the object of my rage. She was the object of my disgust with
everything that had happened to my life, and my unfulfillment in my life up to that
point. And it was an irrational act that I committed against her, her family, and
[that] stone knife that I threw in that river that morning, how it affected so many
people. I understand that. And I have stood strong here for 21 years letting
everyone know that I was willing to make a change, and I worked every day to
make a change and to let anybody and everybody know that nothing like that
could happen in my life again, and anybody’s life that comes within my contact,

(Footnote continued on next page.)

49

insufficient remorse is not supported by any evidence; rather, it is clearly

contradicted by abundant evidence in the record. (Rosenkrantz, supra, 29 Cal.4th

at p. 681 [upholding the Governor’s decision but finding “no evidence supporting

the Governor’s additional determination that petitioner has continued . . . to avoid

responsibility for his crime by lying about pertinent events or by improperly

attempting to portray himself as a victim”].)

Although again the following circumstance is not expressly advanced as a

ground for reversing the Board’s grant of parole, there is an implication in the

Governor’s statement that petitioner has serious psychiatric problems and

therefore her release would pose an unreasonable risk of danger to the public.

Specifically, his statement recites the negative language found in several early

psychiatric evaluations. “[Petitioner] was categorized in early prison reports by

mental-health evaluators as sociopathic, unstable and moderately psychopathic.

Subsequent mental-health evaluations have been more favorable and include low

risk assessments.”

Here, too, we agree with the Court of Appeal majority that the Governor’s

conclusion is not supported by any evidence. Rather, the positive psychological

assessments of petitioner in every evaluation conducted during the last 15 years

have undermined the evidentiary value of these dated reports setting forth stale

psychological assessments. Moreover, in the negative psychological assessments


(Footnote continued from previous page.)

because my life is an open book where anybody could see how they can [be]
involved in situations that [lead] to much damage to people and society. So I just
want to apologize to [Rubye] and her children for doing that to her, as well as to
my children and my family, and to the community at large. I can’t take it back.
All I’ve done is try to work to improve myself and improve my surroundings.
And that’s all I can do today.”

50

cited by the Governor, the treating psychologists recommended petitioner should

undergo specific forms of therapy — which she did for many years, resulting in

successive positive evaluations. Indeed, several consistent psychiatric evaluations

have found petitioner no longer suffers from any psychiatric problems, and since

1997 the annual psychological evaluations have recommended that petitioner not

participate in therapy of any kind because she does not suffer from any psychiatric

condition. As we stated above, the passage of time is highly probative to the

determination before us, and reliance upon outdated psychological reports —

clearly contradicted by petitioner’s successful participation in years of intensive

therapy, a long series of reports declaring petitioner to be free of psychological

problems and no longer a threat to public safety, and petitioner’s own insight into

her participation in this crime — does not supply some evidence justifying the

Governor’s conclusion that petitioner continues to pose a threat to public safety.

The Governor also stated that “[s]ince her incarceration, while [petitioner]

has been counseled eight times for misconduct, including as recently as 2005, she

has avoided any disciplinary actions.” Again, it is unclear whether the Governor

directly relied upon this circumstance to justify his reversal of the Board’s parole

decision, but in any event the record indicates that petitioner was counseled when

she was late to a class or other appointment. Nothing in the record supports a

conclusion that petitioner poses a threat to public safety because she was

occasionally late to appointments or job assignments during her almost 24 years of

incarceration.23


23

As noted in his statement quoted above, the Governor also relied upon

petitioner’s flight from California and her fugitive status for 11 years following
the murder, as well as her denial of involvement in the crime when she finally
returned to California in 1982, as relevant to his action vacating the Board’s parole
decision. Petitioner, however, voluntarily ended her fugitive status more than 25

(Footnote continued on next page.)

51

The sole remaining ground supporting the Governor’s decision is the

gravity of petitioner’s commitment offense. Under the standard of review

recognized above, we must determine whether some evidence in the record

supports the Governor’s conclusion that petitioner poses an unreasonable public

safety risk because of the gravity of her commitment offense. The facts cited by

the Governor — the use of multiple weapons, the premeditated nature of the

offense, the cruelty attendant to the murder, as well as the petty motive attributed

to petitioner — undoubtedly supply some evidence supporting the Governor’s

conclusion that the commitment offense was carried out in an “especially heinous,

atrocious or cruel manner.” (Regs., § 2281, subd. (c)(1).) As noted above,

however, few murders do not involve attendant facts that support such a

conclusion. As further noted above, the mere existence of a regulatory factor

establishing unsuitability does not necessarily constitute “some evidence” that the

parolee’s release unreasonably endangers public safety. (Lee, supra, 143

Cal.App.4th at p. 1408.) Accordingly, even as we acknowledge that some

evidence in the record supports the Governor’s conclusion regarding the gravity of

the commitment offense, we conclude there does not exist some evidence

supporting the conclusion that petitioner continues to pose a threat to public

safety.

In the present case, the Board found, as it had after three previous parole

hearings resulting in a grant of parole, that petitioner’s record exhibited all the


(Footnote continued from previous page.)

years ago, when surrendering to the authorities in 1982. From at least 1992, she
also has taken responsibility for the murder of Mrs. Williams. Accordingly, these
circumstances, even if the Governor relied upon them, would fail to establish that
petitioner currently remains a danger to public safety.

52

factors listed in the regulations indicating suitability for release on parole, except

for the factor applicable only to battered spouses. The Board noted petitioner’s

long-standing involvement in self-help, vocational, and educational programs, her

insight into the circumstances of the offense, her acceptance of responsibility and

remorse, and her realistic parole plans, which included a job offer and family

support. Regarding the commitment offense, the Board found petitioner had

committed the murder while under the stress of an emotional love triangle. The

Board found no evidence establishing the existence of any other statutory factor

relevant to an inmate’s unsuitability for parole. Petitioner had no prior criminal

record or history of violent crimes or assaultive behavior. There also was no

evidence of sadistic sexual acts or an unstable social history. Although earlier

psychological reports were mixed or negative, petitioner’s psychological

examinations for the most recent 15 years were uniformly positive, finding her to

be psychologically sound and to pose no unusual danger to public safety should

she be released. Finally, petitioner was free of “serious misconduct” during her

more than two decades of incarceration, and exhibited exemplary efforts toward

rehabilitative programming.

The commitment offense occurred 36 years ago when petitioner, who is

now 61 years of age, was 24 and, as the Board found, under significant emotional

stress as a result of her love affair with the victim’s husband. Although the

Governor’s statement sought to diminish the emotional stress factor by suggesting

that, even if genuine, it still does not reduce petitioner’s culpability for the murder,

the existence of emotional stress as a mitigating factor favoring suitability is not

dependent upon a degree of stress that would fully negate culpability for the

murder. Indeed, if facts fully negated culpability, the inmate would not have been

convicted of murder. In the present case, there is no doubt petitioner is culpable

for the premeditated murder of Rubye Williams, despite the emotional stress she

53

was experiencing at the time. The Governor, however, was reviewing petitioner’s

twelfth parole suitability hearing and the fourth grant of parole by the Board.

Psychological evaluations of petitioner conducted during the last 15 years, as well

as the conclusion of four panels of the Board authorizing parole, have emphasized

that petitioner committed this crime while she was experiencing an unusual

amount of stress arising from circumstances not likely to recur, and that for this

reason (as well as her prior crime-free life, her age, and her record of

rehabilitation) there was a low risk she would commit another violent act if

released. The Governor’s conclusion regarding culpability does not negate this

reasonable evaluation of the evidence, nor does it provide some evidence that

petitioner remains a threat to public safety.

Moreover, other factors establishing suitability, which the Governor

considered but did not find dispositive in making his final evaluation, strongly

support our view that the Governor’s ultimate conclusion is not supported by some

evidence. Petitioner was incarcerated for nearly 24 years and during that period

had an exemplary record of conduct. She participated in many years of

rehabilitative programming specifically tailored to address the circumstances that

led to her commission of the crime, including anger management programs as well

as extensive psychological counseling, leading to substantial insight on her part

into both the behavior that led to the murder and her own responsibility for the

crime. Petitioner repeatedly expressed remorse for the crime, and had been

adjudged by numerous psychologists and by the Board as not representing any

danger to public safety if released from prison.

In light of petitioner’s extraordinary rehabilitative efforts specifically

tailored to address the circumstances that led to her criminality, her insight into her

past criminal behavior, her expressions of remorse, her realistic parole plans, the

support of her family, and numerous institutional reports justifying parole, as well

54

as the favorable discretionary decisions of the Board at successive hearings —

decisions reversed by the Governor based solely upon the immutable

circumstances of the offense — we conclude that the unchanging factor of the

gravity of petitioner’s commitment offense had no predictive value regarding her

current threat to public safety, and thus provides no support for the Governor’s

conclusion that petitioner is unsuitable for parole at the present time.

Our deferential standard of review requires us to credit the Governor’s

findings if they are supported by a modicum of evidence. (Rosenkrantz, supra, 29

Cal.4th at p. 658.) This does not mean, however, that evidence suggesting a

commitment offense was “especially heinous” or “particularly egregious” will

eternally provide adequate support for a decision that an inmate is unsuitable for

parole. As set forth above, the Legislature specifically contemplated both that the

Board “shall normally” grant a parole date, and that the passage of time and the

related changes in a prisoner’s mental attitude and demeanor are probative to the

determination of current dangerousness. When, as here, all of the information in a

postconviction record supports the determination that the inmate is rehabilitated

and no longer poses a danger to public safety, and the Governor has neither

disputed the petitioner’s rehabilitative gains nor, importantly, related the

commitment offense to current circumstances or suggested that any further

rehabilitation might change the ultimate decision that petitioner remains a danger,

mere recitation of the circumstances of the commitment offense, absent

articulation of a rational nexus between those facts and current dangerousness,

fails to provide the required “modicum of evidence” of unsuitability.

Accordingly, under the circumstances of the present case — in which the

record is replete with evidence establishing petitioner’s rehabilitation, insight,

remorse, and psychological health, and devoid of any evidence supporting a

finding that she continues to pose a threat to public safety — petitioner’s due

55

process and statutory rights were violated by the Governor’s reliance upon the

immutable and unchangeable circumstances of her commitment offense in

reversing the Board’s decision to grant parole. Contrary to the assertion of the

dissent, the Governor’s action vacating the Board’s grant of parole to petitioner

runs contrary to both his statutory and his constitutional obligations. As set forth

in detail above, both the governing statutes and constitutional due process

principles require the Governor to base his decision to set aside a grant of parole

on “some evidence” of current dangerousness. The evidence relied upon by the

Governor in this case — the egregiousness of the commitment offense — does not

provide “some evidence” that petitioner remains a current threat to public safety.

Accordingly, the Governor’s decision is not supported by “some evidence” of

current dangerousness and is properly set aside by this court.

We emphasize that our recognition that a proper review of a parole decision

must focus upon “some evidence” of current dangerousness, does not alter our

recognition in Rosenkrantz and Dannenberg that the purpose of the parole statutes

is to guarantee that the decision makers fully have addressed the public safety

implications of releasing on parole any inmate serving a maximum term of life

imprisonment. The relevant determination for the Board and the Governor is, and

always has been, an individualized assessment of the continuing danger and risk to

public safety posed by the inmate. If the Board determines, based upon an

evaluation of each of the statutory factors as required by statute, that an inmate

remains a danger, it can, and must, decline to set a parole date. The same holds

true for the Governor’s decision to set aside a decision of the Board. Notably,

despite the conclusion we reach in the present case, we reiterate our recognition in

Dannenberg that pursuant to section 3041, subdivision (b), the Board has the

express power and duty, in an individual case, to decline to fix a firm release date,

and thus to continue the inmate’s indeterminate status within his or her life

56

maximum sentence, if it finds that the circumstances of the inmate’s crime or

criminal history continue to reflect that the prisoner presents a risk to public

safety. (Dannenberg, supra, 34 Cal.4th at pp. 1083-1084, 1095.)

Our conclusion that petitioner’s conviction offense does not reliably

predict, 36 years after commission of the offense and following 24 years of

incarceration and demonstrated rehabilitation, that petitioner currently poses a

danger to society, does not alter our affirmation that certain conviction offenses

may be so “heinous, atrocious or cruel” that an inmate’s due process rights would

not be violated if he or she were to be denied parole on the basis that the gravity of

the conviction offense establishes current dangerousness. In some cases, such as

those in which the inmate has failed to make efforts toward rehabilitation, has

continued to engage in criminal conduct postincarceration, or has shown a lack of

insight or remorse, the aggravated circumstances of the commitment offense may

well continue to provide “some evidence” of current dangerousness even decades

after commission of the offense.

Indeed, as established in the companion case of In re Shaputis, supra, ___

Cal.4th___,___[pp. 22-26], filed concurrently with this opinion, the Governor

does not act arbitrarily or capriciously in reversing a grant of parole when

evidence in the record supports the conclusion that the circumstances of the crime

continue to be predictive of current dangerousness despite an inmate’s discipline-

free record during incarceration. As explained in detail in that case, where the

record also contains evidence demonstrating that the inmate lacks insight into his

or her commitment offense or previous acts of violence, even after rehabilitative

programming tailored to addressing the issues that led to commission of the

offense, the aggravated circumstances of the crime reliably may continue to

predict current dangerousness even after many years of incarceration. (See also

57

Hyde, supra, 154 Cal.App.4th at p. 1215; Tripp, supra, 150 Cal.App.4th at

pp. 314, 320.)

Finally, it should be noted that our recognition that the proper articulation

of the some evidence standard focuses upon the inmate’s current dangerousness

should not produce a wave of reversals of decisions denying parole. In the

overwhelming majority of post-Rosenkrantz/Dannenberg appellate decisions that

have applied the strict minimum elements inquiry, the affirmance of a denial-of-

parole determination was not founded solely upon the conclusion that the

circumstances of the commitment offense were more than what was minimally

required to obtain a conviction of that offense, but rather upon the presence of

other additional statutory factors establishing unsuitability. (Bettencourt, supra,

156 Cal.App.4th at p. 807 [unsuitability based upon criminal history, social

history, institutional behavior, psychological evaluations, and behavior at the

parole hearing]; Burns, supra, 136 Cal.App.4th at p. 1328 [unsuitability based

upon history of unstable or tumultuous relationships with others, and

psychological evaluations]; Fuentes, supra, 135 Cal.App.4th at p. 163

[unsuitability based upon criminal history as evidence of inmate’s repetitive and

recidivist nature]; Honesto, supra, 130 Cal.App.4th at p. 97 [unsuitability based

upon unstable social history, inadequate participation in prison programs, and

inadequate parole plans].)24


24

Although the majority of appellate opinions applying the strict minimum

elements test have affirmed the decision to deny parole, only one — Andrade,
supra
, 141 Cal.App.4th 807 — based its determination solely upon the Governor’s
findings regarding the gravity of the commitment offense. (Id. at pp. 818-819.).
That conclusion elicited a dissent by Justice Pollak, who contended that the
Board’s conclusion could not be sustained based solely upon the circumstances of
the commitment offense, because there was no evidence in the record establishing
that the petitioner would “ ‘pose an unreasonable risk of danger to society if

(Footnote continued on next page.)

58



V

For the reasons discussed above, the judgment of the Court of Appeal is

affirmed.

GEORGE, C. J.

WE CONCUR:


KENNARD, J.
WERDEGAR, J.
MORENO, J.



(Footnote continued from previous page.)

released from prison.’ ” (Andrade, supra, 141 Cal.App.4th at p. 819 (dis. opn. of
Pollak, J..)

59












CONCURRING OPINION BY MORENO, J.

I concur in the majority opinion. I write separately to explain this

concurrence in light of my dissent in In Re Dannenberg (2005) 34 Cal.4th 1061,

1100 (dis. opn. of Moreno, J.). In that case, the majority held that a denial of

parole was justified if there is some evidence that the particular circumstances of

the prisoner’s underlying offense beyond the “minimum elements” indicated

exceptional callousness and cruelty. (Id. at p. 1098.) I found the minimum

elements test to be both unworkable and not consistent with the statutory mandate

to normally grant parole to life prisoners. (Id. at pp. 1101-1104 (dis. opn. of

Moreno, J).) I would have instead required an inquiry into whether the

commitment offense was particularly egregious as measured by the Board of

Parole Hearings’ (Board) own matrices for determining the seriousness of the

commitment offense. (Id. at pp. 1106-1107; see Pen. Code, § 3041, subd. (a); Cal.

Code Regs., tit. 15, § 2403.)

After observing the courts of appeal grappling with the parole suitability

issue since Dannenberg was decided, I now agree with the majority opinion that

neither a minimum elements test nor some other sort of metric for determining the

gravity of the commitment offense is workable or called for by the statutory

scheme. As the majority rightly recognizes, the seriousness of the commitment

defense as determined by the Board’s own matrix of factors is used primarily to

calculate the prisoner’s base term and release date. (Maj. opn., ante, at p. 32; see

1



Pen. Code, § 3041, subd. (a).) In order to deny parole outright, as opposed to

merely delay the release date, the gravity of the commitment offense must be

linked to a prisoner’s current dangerousness (Pen. Code, § 3041, subd. (b)), and

the other factors that go into a determination of current dangerousness must be

taken into account. The majority opinion appropriately reconciles Penal Code

section 3041, subdivision (a) with subdivision (b) by recognizing that a parole

date shall normally be granted except when some evidence of current

dangerousness, after considering the totality of the circumstances, justifies denial

of parole. The majority opinion therefore properly balances the statutory mandate

to normally grant parole to life prisoners with the statutory mandate to protect the

public, and also properly balances the need for judicial deference in reviewing

executive decisions with the judicial obligation to ensure the executive complies

with statutory and due process mandates.

MORENO, J.

2












DISSENTING OPINION BY CHIN, J.




I dissent.

The Governor carefully considered whether petitioner, Sandra Davis

Lawrence, is suitable for parole. He issued a reasoned report that assessed

petitioner’s case individually. The report considered the relevant factors — both

those supporting parole and those weighing against parole. It recognized the

progress petitioner has made over the years that weighs in favor of parole.

Nevertheless, balancing these factors, the Governor concluded “that her release

from prison would pose an unreasonable risk of danger to society” and reversed

the finding of the Board of Parole Hearings (Board) that she was suitable for

parole.

The majority cites to no factual misstatements in this report. It agrees that

evidence supports every fact cited. It identifies nothing the Governor did that was

incorrect or contrary to his constitutional and statutory obligations. Rather, the

majority simply substitutes its own judgment in place of the Governor’s

considered judgment that petitioner is not suitable for parole.

The awesome responsibility of deciding whether to release a convicted

murderer on parole — an act that inherently runs the risk of recidivism, i.e., the

risk that the inmate will again kill an innocent person — lies with the executive

branch, not the judicial branch. We made this clear in In re Rosenkrantz (2002) 29

Cal.4th 616 (Rosenkrantz) and later in In re Dannenberg (2005) 34 Cal.4th 1061

1



(Dannenberg).1 In those cases, we held both that the executive branch may deny

parole based on the seriousness of the crime (as long as the executive branch has

considered all relevant factors, and the seriousness determination is based on an

individualized assessment of the specific case), and that the judicial branch will

overturn the executive branch’s decision only if no evidence supports it. These

holdings were consistent with, indeed compelled by, the applicable statute. (Pen.

Code, § 3041, subd. (b) (section 3041(b)).)

Today, the majority departs dramatically from these basic legal standards. I

cannot agree; accordingly, I dissent.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was convicted of first degree murder. Because the Governor’s

three-page report denying parole states the underlying facts, I attach it as an

appendix to this opinion and adopt by reference its factual recitation. (See appen.,

post.) I see no need to repeat those facts, as the report speaks for itself.2


1

I dissented in Rosenkrantz on the basis that permitting the Governor to

overturn the Board’s findings violated the constitutional proscription against ex
post facto laws. (Rosenkrantz, supra, 29 Cal.4th at pp. 690-696.) At this point, I
accept the majority’s holding as the law of California. I agreed, and still agree,
with the rest of the Rosenkrantz opinion. (See id. at p. 696, fn. 6.)
2

Cryptically, the third sentence of the majority opinion states: “Petitioner

declined a plea offer that would have resulted in a two-year prison sentence.”
(Maj. opn., ante, at p. 1; see also id. at p. 6 [reiterating the fact in reviewing the
procedural history].) Readers will naturally assume that a fact mentioned in the
opinion’s opening paragraph has some relevance to the case, and that the opinion
will again refer to it in discussing the legal standard and its application. But the
majority never mentions this fact again and never explains its relevance. In fact,
except to the extent it shows that petitioner utterly failed to accept any personal
responsibility for her actions, that petitioner turned down a plea offer is irrelevant.
The record does not reveal why the prosecutor apparently offered petitioner a
good deal. The offer might simply have reflected the difficulty of prosecuting a
12-year-old crime. (Petitioner had been a fugitive from justice for 11 years.)

(Footnote continued on next page.)

2



Petitioner is now eligible for parole, and has been for some time. Over the

years the Board, or its predecessor, the Board of Prison Terms, has found

petitioner suitable for parole several times. Three different Governors, Pete

Wilson, Gray Davis, and Arnold Schwarzenegger, have overturned these

determinations, most recently Governor Schwarzenegger in January 2006.

Petitioner filed a petition for writ of habeas corpus in the Court of Appeal asking

that court to overturn the Governor’s January 2006 determination. Over Presiding

Justice Perluss’s dissent, the majority did so and ordered petitioner’s release on

parole. We granted review.

II. DISCUSSION

The applicable law is not as complex as the majority opinion makes it

appear. We settled the legal standard in Rosenkrantz, supra, 29 Cal.4th 616, and

Dannenberg, supra, 34 Cal.4th 1061.

The Board determines whether persons sentenced to an indeterminate term,

such as convicted murderers, are suitable for parole. (Pen. Code, § 3041.) The

Board “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.” (§ 3041(b).) Under this

statute, “the Board, exercising its traditional broad discretion, may protect public

safety in each discrete case by considering the dangerous implications of a life-

maximum prisoner’s crime individually.” (Dannenberg, supra, 34 Cal.4th at p.


(Footnote continued from previous page.)

What is relevant here is that petitioner went to trial and the jury convicted her of
first degree murder.

3



1071.) In making this determination, the Board must consider various criteria

established by regulation. (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654.)

In murder cases such as this one, the Governor has the power to reverse the

Board’s decision, while considering the same criteria. (Cal. Const., art. V, § 8,

subd. (b); Pen. Code, § 3041.2; see Rosenkrantz, supra, 29 Cal.4th at pp. 625-626,

660.) The Board’s parole decision and the Governor’s decision reviewing the

Board are subject to the same standard of judicial review. (Rosenkrantz, supra, 29

Cal.4th at p. 626.) (Because the Board and the Governor must consider the same

criteria, and their actions are subject to the same standard of judicial review, I will

sometimes describe the entity that denied parole generally as the executive branch

or the parole authority rather than specifically either the Board or the Governor.)

The executive branch, not the judicial branch, makes the parole decision,

although it may not simply deny parole to all convicted murderers. (Rosenkrantz,

supra, 29 Cal.4th at pp. 655, 683-684.) Accordingly, as we explained in

Rosenkrantz, “the precise manner in which the specified factors relevant to parole

suitability are considered and balanced lies within the discretion of the Governor,

but the decision must reflect an individualized consideration of the specified

criteria and cannot be arbitrary or capricious. It is irrelevant that a court might

determine that evidence in the record tending to establish suitability for parole far

outweighs evidence demonstrating unsuitability for parole. As long as the

Governor’s decision reflects due consideration of the specified factors as applied

to the individual prisoner in accordance with applicable legal standards, the

court’s review is limited to ascertaining whether there is some evidence in the

record that supports the Governor’s decision.” (Rosenkrantz, supra, 29 Cal.4th at

p. 677, italics added.) This “some evidence” standard is “extremely deferential”

(id. at p. 665) and requires “[o]nly a modicum of evidence.” (Id. at p.677; see also

id. at p. 679.)

4



Applying this standard in this case is not difficult. Readers may review the

attached report and judge for themselves whether the Governor acted arbitrarily or

capriciously, failed to engage in an individualized assessment of petitioner’s case,

failed to consider the factors supporting as well as those weighing against parole,

failed to do anything else he should have done, or did anything he should not have

done. In fact, he did exactly what he was supposed to do. He fulfilled his

statutory and constitutional obligations precisely. His conclusion that petitioner

remains too dangerous to release into society was not arbitrary or capricious. It

was based on an individualized assessment of all the relevant factors, both those

supporting and those weighing against parole. His factual recitation was accurate

and everything he stated, including his conclusions, was supported by far more

than a modicum of evidence. As Presiding Justice Perluss stated in dissent in the

Court of Appeal, whether petitioner is suitable for parole “may be a close

question,” but whether some evidence supports the Governor’s decision is not

close.

When a person is paroled, that person is released into the general society, to

interact with many vulnerable people who may be unaware of the person’s

background. The parole decision thus involves the inherent risk of recidivism

which, in the case of a convicted murderer, means the risk that an innocent person

may die. Parole must be granted in proper cases, but the decision is an awesome

responsibility, one entrusted to the executive branch. In deciding whether to grant

or deny parole, i.e., whether to release the person into society, it is entirely

appropriate for the executive branch to examine the facts of the crime (and here,

surrounding circumstances) and, exercising its broad discretion, conclude that

those facts are so horrendous, and so frightening, that it is not yet willing to take a

chance and approve parole. The statute makes this clear. It permits the parole

authority to deny parole if “it determines that the gravity of the current convicted

5



offense or offenses . . . is such that consideration of the public safety requires a

more lengthy period of incarceration . . . .” (§ 3041(b).) In Rosenkrantz, we

interpreted this statute to mean what it says: “The nature of the prisoner’s offense,

alone, can constitute a sufficient basis for denying parole.” (Rosenkrantz, supra,

29 Cal.4th at p. 682; see also Dannenberg, supra, 34 Cal.4th at p. 1094 [reiterating

this point].)

Petitioner committed a particularly vicious and premeditated first degree

murder, shooting her lover’s wife multiple times, then repeatedly stabbing the

victim after she collapsed to the floor. She did this as a “birthday present” to

herself because she was disappointed that her lover would not leave the victim for

her. On her way to confront the victim, she stopped to arm herself with a pistol

and a potato peeler. (See appen., post.)

Moreover, other facts support the denial of parole. As Presiding Justice

Perluss explained in dissent, petitioner remained a fugitive for 11 years after the

cold-blooded killing. “During that time she lived in several different cities under

various assumed names and with related false identity papers (including, it

appears, Social Security numbers and passports).” When she surrendered, she still

denied involvement in the murder and tried to blame her former lover. “Testifying

on her own behalf at trial in August 1983, [petitioner] denied killing Mrs.

Williams, insisted she did not want to marry Dr. Williams and asserted it was

‘ “no big thing” ’ when he ended their relationship. . . . [¶] [Petitioner’s] flight

from California and her fugitive status for 11 years following the murder of Mrs.

Williams, as well as her denial of involvement in the crime when she finally

returned to California in 1982, were also identified by the Governor in explaining

his reasons for reversing the Board’s parole decision.” Presiding Justice Perluss

also explained that, “[a]lthough observing that more recent mental health

evaluations of [petitioner] were favorable and included low risk assessments, in

6



reversing the Board’s parole decision the Governor noted [petitioner] had been

identified in early evaluations as ‘sociopathic, unstable, and moderately

psychopathic.’ ”

All this provides ample evidence supporting the Governor’s denial of

parole. It is true that the facts of the crime, petitioner’s fugitive status, and the

early psychological evaluations do not change, and hence these factors do not

grow stronger over time. It is also true that the facts supporting parole may be

dynamic and may grow stronger over time. They appear to have done so here. At

some point, the parole authority might conclude that the facts supporting parole

have increased sufficiently to finally outweigh the immutable facts of the crime

and the other circumstances supporting denial of parole. When that occurs, the

parole authority may exercise its authority to grant parole notwithstanding the

horrendous facts of the crime. But this weighing process is for the executive

branch to perform, not the judicial branch. Nothing in the statute or our previous

cases permits the judiciary to engage in its own weighing process and to conclude

that the evidence supporting parole outweighs the evidence supporting denial of

parole and, on that basis, grant parole.

Certainly, as both the Governor and Presiding Justice Perluss noted, the

record contains evidence that would support a grant of parole. Obviously, the

majority would weigh the competing factors differently than the Governor and

would reach a different decision than he did. But this circumstance is “irrelevant”

and cannot negate the evidence that supports the Governor’s decision.

(Rosenkrantz, supra, 29 Cal.4th at p. 677.) “In short,” as Presiding Justice Perluss

stated in dissent, “there is no doubt that [petitioner] is a strong candidate for

release on parole or that the Board’s decision to release her was a reasonable one.

But that . . . is simply not the question we are to address.”

7



I agree with the majority that the “some evidence” test asks whether

evidence supports the conclusion that the inmate is unsuitable for parole because

he or she currently is dangerous. (Maj. opn., ante, at pp. 2-3.) But, as section

3041(b) and our cases make clear, the facts of the crime can alone justify the

conclusion that the inmate is currently dangerous. If, as here, some evidence

supports the Governor’s determination that the facts of the crime (and the other

individualized facts the Governor cited) show petitioner is dangerous, that should

end the inquiry. As Presiding Justice Perluss correctly explained, “if a factor is

properly part of the evaluation of a prisoner’s suitability for parole [such as, here,

the facts of the crime, petitioner’s lengthy fugitive status, and her early

unfavorable mental health evaluations], . . . and if the existence of that factor is

supported by some evidence, to hold the same evidence does not support the

ultimate conclusion concerning parole suitability is possible only if the court

decides the probative (or predictive) value of that factor is outweighed by other

indicia of suitability. It is precisely that determination the electorate entrusted to

the Governor’s discretion, not the courts’, when it adopted article V, section 8,

subdivision (b), of the California Constitution.”

I also agree that “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. This inquiry is, by necessity and by statutory mandate,

an individualized one, and cannot be undertaken simply by examining the

circumstances of the crime in isolation, without consideration of the passage of

time or the attendant changes in the inmate’s psychological or mental attitude.”

(Maj. opn., ante, at pp. 46-47.) This inquiry is exactly what the Governor

undertook. No one can read the Governor’s report and reasonably conclude he

simply examined the crime in isolation without considering the passage of time

8



and changes in petitioner’s psychological or mental attitude. The only thing the

Governor did wrong, according to the majority, was to assess the predictive value

of the circumstances of the crime and the post-crime factors he cited differently

than the courts would later do. But making that assessment is for the executive

branch to do, not the courts.

To try to justify its conclusion, the majority appears to create a new test for

courts to apply when reviewing the executive branch’s decision to deny parole:

“Accordingly, we conclude that although the Board and the Governor may rely

upon the aggravated circumstances of the commitment offense as a basis for a

decision denying parole, the aggravated nature of the crime does not in and of

itself provide some evidence of current dangerousness to the public unless the

record also establishes that something in the prisoner’s pre- or postincarceration

history, or his or her current demeanor and mental state, indicates that the

implications regarding the prisoner’s dangerousness that derive from his or her

commission of the commitment offense remain probative to the statutory

determination of a continuing threat to public safety.” (Maj. opn., ante, at p. 36.)

This language distorts Rosenkrantz and Dannenberg beyond recognition.

Apparently, under the new test, the courts decide whether the circumstances of the

crime (and presumably the other circumstances weighing against parole) “continue

to be predictive of current dangerousness.” (Maj. opn., ante, at p. 46.) But

nothing in Penal Code section 3041 or Rosenkrantz or Dannenberg supports such

a conclusion. Rather, it is for the parole authority, not the courts, to decide, while

exercising its “traditional broad discretion” (Dannenberg, supra, 34 Cal.4th at p.

1071), when, if ever, the commitment offense loses its predictive value on the

issue of current dangerousness. This point is particularly crucial, for permitting

the courts to decide whether the facts of the crime continue to be predictive of

current dangerousness also permits those courts to ignore the deferential “some

9



evidence” standard of review. A court merely has to decide, contrary to the

considered judgment of the parole authority, that the crime no longer has a

predictive value — as the majority has done in this case — then it can ignore the

evidence supporting the executive branch’s decision and substitute its own

judgment. The majority’s new test renders the “highly deferential” standard of

review of Rosenkrantz and Dannenberg a phantom. In effect, the standard now is

independent review.

By this convoluted method, the majority has created a new scheme in

which a court may effectively grant parole whenever it wishes, contrary to

California Constitution, article V, section 8, subdivision (b), Penal Code section

3041, Rosenkrantz, supra, 29 Cal.4th 616, and Dannenberg, supra, 34 Cal.4th

1061. I cannot agree. Some evidence, indeed, much evidence, supports the

Governor’s well-reasoned, individualized decision. The judicial branch must

defer to this executive branch decision, for that is the branch entrusted with

making parole decisions.

I would reverse the judgment of the Court of Appeal and deny the petition

for writ of habeas corpus.

CHIN, J.

WE CONCUR:

BAXTER, J.
CORRIGAN, J.


10










See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Lawrence on Habeas Corpus
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 150 Cal.App.4th 1511
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S154018
Date Filed: August 21, 2008
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Carrie L. Hempel, Michael J. Brennan and Heidi L. Rummel for Petitioner Sandra Davis Lawrence.

Munger, Tolles & Olson, Blanca F. Young and Hailyn J. Chen for Stanford Criminal Justice Center as
Amicus Curiae on behalf of Petitioner Sandra Davis Lawrence.

Sean Kennedy, Federal Defender (Central District), Daniel Broderick, Federal Defender (Eastern District)
and Monica Knox, Assistant Federal Defender, as Amici Curiae on behalf of Petitioner Sandra Davis
Lawrence.



__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, J. Conrad Schroeder, Jennifer
A. Neill, Gregory J. Marcot and Anya M. Binsacca, Deputy Attorneys General, for Respondent State of
California.

John R. Poyner, District Attorney (Colusa); Bonnie M. Dumanis, District Attorney (San Diego); Albert C.
Locher, Assistant District Attorney (Sacramento); Richard J. Sachs, Deputy District Attorney (San Diego);
and W. Scott Thorpe for California District Attorneys Association as Amicus Curiae on behalf of
Respondent State of California.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Carrie L. Hempel
USC Post Conviction Justice Project
University of Southern California
699 Exposition Boulevard
Los Angeles, CA 90089-0071
(213) 740-2586

Julie L. Garland
Assistant Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-704
(415) 703-5713




Petition for review after the Court of Appeal granted a petition for writ of habeas corpus. This case includes the following issue: In making parole suitability determinations for life prisoners, to what extent should the Board of Parole Hearings, under Penal Code section 3041, and the Governor, under Article V, section 8(b) of the California Constitution and Penal Code section 3041.2, consider the prisoner's current dangerousness, and at what point, if ever, is the gravity of the commitment offense and prior criminality insufficient to deny parole when the prisoner otherwise appears rehabilitated?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 08/21/200844 Cal. 4th 1181, 190 P.3d 535, 82 Cal. Rptr. 3d 169S154018Review - Habeas (criminal)closed; remittitur issued

LAWRENCE (SANDRA) ON H.C. (S154018)
COOPER (PETER GEORGE) ON H.C. (S155130)
DANNENBERG (JOHN E.) ON H.C. (S158880)
STABEN (LEE) ON H.C. (S159042)
MONTGOMERY (MICHAEL) ON H.C. (S159141)
ROZZO (JOSEPH) ON H.C. (S161469)
PARKER (LENNIE) ON H.C. (S162423)
AVALOS (JUSTO) ON H.C. (S162509)
SINGLER (RONALD) ON H.C. (S163264)
BURDAN (CLARENCE) ON H.C. (S163311)
VIRAY (NICOMEDES) ON H.C. (S163774)
HUYNH (NAM VAN) ON H.C. (S163819)
VASQUEZ (DAVID) ON H.C. (S163931)
ARMSTRONG (HOWARD) ON H.C. (S164269)


Parties
1Lawrence, Sandra Davis (Petitioner)
Represented by Carrie L. Hempel
University of Southern California Law School
699 Exposition Boulevard
Los Angeles, CA

2Lawrence, Sandra Davis (Petitioner)
Represented by Michael J. Brennan
Law School
University of Southern California
Los Angeles, CA

3Lawrence, Sandra Davis (Petitioner)
Represented by Heidi L Rummel
Post Conviction Justice Project
University of Southern California
Los Angeles, CA

4Department Of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Anya Marie Binsacca
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

5Department Of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Julie L. Garland
Office of the Attorney General
P.O. Box 85266
San Diego, CA

6Schwarzenegger, Arnold (Non-Title Respondent)
Represented by Anya Marie Binsacca
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

7Schwarzenegger, Arnold (Non-Title Respondent)
Represented by Julie L. Garland
Office of the Attorney General
P.O. Box 85266
San Diego, CA

8Stanford Criminial Justice Center (Amicus curiae)
Represented by Blanca Fromm Young
Munger Tolles & Olson LLP
560 Mission Street, Twenty-Seventh Floo
San Francisco, CA

9Federal Defender Eastern District Of California (Amicus curiae)
Represented by Monica Knox
Office of the Federal Public Defender
801 "I" Street, Third Floor
Sacramento, CA

10California District Attorneys Association (Amicus curiae)

Disposition
Aug 21 2008Opinion: Affirmed

Dockets
Jul 2 2007Petition for review with request for stay filed (criminal)
  Governor Schwarzenegger, Anya M. Binsacca, Supervising Deputy Attorney General
Jul 3 2007Received Court of Appeal record
 
Jul 6 2007Application for stay denied
  The Attorney General's request for a stay of the Court of Appeal's order directing the immediate release of Sandra Davis Lawrence on parole is denied. Baxter and Chin, JJ., are of the opinion the request for stay should be granted.
Jul 23 2007Answer to petition for review filed
  Petitioner Sandra Davis Lawrence Attorney Carrie Hempel
Aug 24 2007Time extended to grant or deny review
  The time for granting or denying reivew in the above-entitled matter is hereby extended to and including September 30, 2007, or the date upon which review is either granted or denied.
Sep 19 2007Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Oct 12 2007Request for extension of time filed
  Governor Arnold Schwarzenegger et al., Respondents by Anya M. Binsacca, counsel
Oct 18 2007Extension of time granted
  The application of respondents, Governor Arnold Schwarzenegger and Secretary of the Department of Corrections and Rehabilitation James Tilton for an extension of time to file respondents' opening brief on the merits is hereby granted. Respondents' opening brief on the merits must be served and filed on or before November 8, 2007, in the San Francisco Office of the Court. No further extension will be granted.
Nov 8 2007Opening brief on the merits filed
  Governor Schwarzenegger, et al., respondents by Anya M. Binsacca, supervising deputy attorney general
Nov 28 2007Request for extension of time filed
  to file answer brief/merits to 1-14-08 Petitioner Sandra Davis Lawrence Attorney Carrie Hempel
Dec 6 2007Extension of time granted
  On application of petitioner and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 14, 2007. No further extension of time will be granted.
Jan 10 2008Request for extension of time filed
  till January 28, 2008 to file petitioner - Sandra Davis Lawrence answre brief on the merits. by Carrie Hempel, counsel
Jan 11 2008Extension of time granted
  On application of petitioner and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 28, 2008.
Jan 28 2008Answer brief on the merits filed
  Petitioner Sandra Davis Lawrence Attorney Carrie Hempel
Jan 28 2008Request for judicial notice filed (granted case)
  Petitioner Sandra Davis Lawrence Attorney Carrie Hempel
Feb 19 2008Request for judicial notice filed (granted case)
  Governor Aronld Schwazenegger, respondent by Anya M. Binsacca, Supervising Deputy Attorney General
Feb 19 2008Received:
  Respondent requesting permission to file oversize reply brief on the merits. by Anya Marie Binsacca, Supervising Deputy Attorney General
Feb 20 2008Reply brief filed (case fully briefed)
  Arnold Schwarzenegger, non-title respondent by Anya M. Binsacca, Supervising Deputy Attorney General with permission
Mar 20 2008Received application to file Amicus Curiae Brief
  of Stanford Criminal Justice Center in support of petitioner - Sandra Davis Lawrence. by Blance F. Young, counsel
Mar 21 2008Received application to file Amicus Curiae Brief
  Federal Defender Eastern District of California in support of petitioner - Sandra Davis Lawrence by Monica Knox, Assistant Federal Defender
Mar 21 2008Received application to file Amicus Curiae Brief
  California District Attorneys Association in support of respondent - Governor Arnold Schwarzenegger and Secretary James E. Tilton by Richard Sachs, Deputy District Attorney
Mar 24 2008Request for judicial notice filed (granted case)
  Federal Defender Eastern District of California, amicus curiae Monica Knox, Asssitant Federal Defender
Apr 3 2008Permission to file amicus curiae brief granted
  The application of California District Attorneys Association for permission to file an amicus curiae brief in support of Governor Arnold Schwarzeneggerk, and Sceretary James E. Tilton - respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 3 2008Amicus curiae brief filed
  California District Attorneys Association . by Richard Sachs, Deputy District Attorney
Apr 3 2008Permission to file amicus curiae brief granted
  The application of Federal Defender for the Eastern District of California, for permission to file an amicus curiae breif in support of petitoner - Sandra Davis Lawrence is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 3 2008Amicus curiae brief filed
  Federal Defender for the Eastern District of California. by Monica Knox, Assistand Federal Defender
Apr 3 2008Permission to file amicus curiae brief granted
  The application of Stanford Criminal Justice Center for permission to file an amicus curiae breif in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 3 2008Amicus curiae brief filed
  Stanford Criminal Justsice Center by Blanca F. Young, counsel
Apr 23 2008Response to amicus curiae brief filed
  Respondents' response to brief of amicus curiae of Stanford Criminial Justice Center. Governor Schwarzenegger and Secretary Tilton, respondent by Anya M. Binsacca, Supervising Deputy Attorney General
Apr 23 2008Response to amicus curiae brief filed
  Respondents' response to brief of amicus curiae - Federal Defenders of the Eastern and Central District of California. Governor Schwarzenegger and Secretary Tilton, respondents by Anya M. Binsacca, Supervising Deputy Attorney General
Apr 30 2008Case ordered on calendar
  to be argued on Wednesday, June 4, 2008, at 9:00 a.m., in Los Angeles
May 12 2008Note: Mail returned (unable to forward)
  Maureen Shubow Rubin, counsel
Jun 2 2008Received:
  faxed letter Carrie Hempel, petitioner's counsel
Jun 3 2008Received:
  letter dated June 2, 2008 from petitioner counsel Carrie Hempel.
Jun 4 2008Cause argued and submitted
 
Aug 20 2008Notice of forthcoming opinion posted
 
Aug 21 2008Opinion filed: Judgment affirmed in full
  The judgment of the Court of Appeal is affirmed. Majority opinion by George,C.J. -----Joined by Kennard, Werdegar & Moreno, JJ. Concurring Opinion by Moreno, J. Dissenting Opinion by Chin, J. -----joined by Baxter, Corrigan, JJ.
Sep 22 2008Remittitur issued (criminal case)
 
Sep 30 2008Received:
  receipt for remittitur from Court of Appeal, Second Appellate District - Division Seven

Briefs
Nov 8 2007Opening brief on the merits filed
 
Jan 28 2008Answer brief on the merits filed
 
Feb 20 2008Reply brief filed (case fully briefed)
 
Apr 3 2008Amicus curiae brief filed
 
Apr 3 2008Amicus curiae brief filed
 
Apr 3 2008Amicus curiae brief filed
 
Apr 23 2008Response to amicus curiae brief filed
 
Apr 23 2008Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website