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,12 — and 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, 08/21/2008 | 44 Cal. 4th 1181, 190 P.3d 535, 82 Cal. Rptr. 3d 169 | S154018 | Review - Habeas (criminal) | closed; remittitur issued | LAWRENCE (SANDRA) ON H.C. (S154018) |
Parties
| 1 | Lawrence, Sandra Davis (Petitioner) Represented by Carrie L. Hempel University of Southern California Law School 699 Exposition Boulevard Los Angeles, CA |
| 2 | Lawrence, Sandra Davis (Petitioner) Represented by Michael J. Brennan Law School University of Southern California Los Angeles, CA |
| 3 | Lawrence, Sandra Davis (Petitioner) Represented by Heidi L Rummel Post Conviction Justice Project University of Southern California Los Angeles, CA |
| 4 | Department 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 |
| 5 | Department Of Corrections & Rehabilitation (Non-Title Respondent) Represented by Julie L. Garland Office of the Attorney General P.O. Box 85266 San Diego, CA |
| 6 | Schwarzenegger, Arnold (Non-Title Respondent) Represented by Anya Marie Binsacca Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 7 | Schwarzenegger, Arnold (Non-Title Respondent) Represented by Julie L. Garland Office of the Attorney General P.O. Box 85266 San Diego, CA |
| 8 | Stanford Criminial Justice Center (Amicus curiae) Represented by Blanca Fromm Young Munger Tolles & Olson LLP 560 Mission Street, Twenty-Seventh Floo San Francisco, CA |
| 9 | Federal Defender Eastern District Of California (Amicus curiae) Represented by Monica Knox Office of the Federal Public Defender 801 "I" Street, Third Floor Sacramento, CA |
| 10 | California District Attorneys Association (Amicus curiae) |
| Disposition | |
| Aug 21 2008 | Opinion: Affirmed |
| Dockets | |
| Jul 2 2007 | Petition for review with request for stay filed (criminal) Governor Schwarzenegger, Anya M. Binsacca, Supervising Deputy Attorney General |
| Jul 3 2007 | Received Court of Appeal record |
| Jul 6 2007 | Application 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 2007 | Answer to petition for review filed Petitioner Sandra Davis Lawrence Attorney Carrie Hempel |
| Aug 24 2007 | Time 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 2007 | Petition for review granted (criminal case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Oct 12 2007 | Request for extension of time filed Governor Arnold Schwarzenegger et al., Respondents by Anya M. Binsacca, counsel |
| Oct 18 2007 | Extension 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 2007 | Opening brief on the merits filed Governor Schwarzenegger, et al., respondents by Anya M. Binsacca, supervising deputy attorney general |
| Nov 28 2007 | Request for extension of time filed to file answer brief/merits to 1-14-08 Petitioner Sandra Davis Lawrence Attorney Carrie Hempel |
| Dec 6 2007 | Extension 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 2008 | Request 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 2008 | Extension 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 2008 | Answer brief on the merits filed Petitioner Sandra Davis Lawrence Attorney Carrie Hempel |
| Jan 28 2008 | Request for judicial notice filed (granted case) Petitioner Sandra Davis Lawrence Attorney Carrie Hempel |
| Feb 19 2008 | Request for judicial notice filed (granted case) Governor Aronld Schwazenegger, respondent by Anya M. Binsacca, Supervising Deputy Attorney General |
| Feb 19 2008 | Received: Respondent requesting permission to file oversize reply brief on the merits. by Anya Marie Binsacca, Supervising Deputy Attorney General |
| Feb 20 2008 | Reply brief filed (case fully briefed) Arnold Schwarzenegger, non-title respondent by Anya M. Binsacca, Supervising Deputy Attorney General with permission |
| Mar 20 2008 | Received 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 2008 | Received 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 2008 | Received 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 2008 | Request for judicial notice filed (granted case) Federal Defender Eastern District of California, amicus curiae Monica Knox, Asssitant Federal Defender |
| Apr 3 2008 | Permission 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 2008 | Amicus curiae brief filed California District Attorneys Association . by Richard Sachs, Deputy District Attorney |
| Apr 3 2008 | Permission 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 2008 | Amicus curiae brief filed Federal Defender for the Eastern District of California. by Monica Knox, Assistand Federal Defender |
| Apr 3 2008 | Permission 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 2008 | Amicus curiae brief filed Stanford Criminal Justsice Center by Blanca F. Young, counsel |
| Apr 23 2008 | Response 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 2008 | Response 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 2008 | Case ordered on calendar to be argued on Wednesday, June 4, 2008, at 9:00 a.m., in Los Angeles |
| May 12 2008 | Note: Mail returned (unable to forward) Maureen Shubow Rubin, counsel |
| Jun 2 2008 | Received: faxed letter Carrie Hempel, petitioner's counsel |
| Jun 3 2008 | Received: letter dated June 2, 2008 from petitioner counsel Carrie Hempel. |
| Jun 4 2008 | Cause argued and submitted |
| Aug 20 2008 | Notice of forthcoming opinion posted |
| Aug 21 2008 | Opinion 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 2008 | Remittitur issued (criminal case) |
| Sep 30 2008 | Received: receipt for remittitur from Court of Appeal, Second Appellate District - Division Seven |
| Briefs | |
| Nov 8 2007 | Opening brief on the merits filed |
| Jan 28 2008 | Answer brief on the merits filed |
| Feb 20 2008 | Reply brief filed (case fully briefed) |
| Apr 3 2008 | Amicus curiae brief filed |
| Apr 3 2008 | Amicus curiae brief filed |
| Apr 3 2008 | Amicus curiae brief filed |
| Apr 23 2008 | Response to amicus curiae brief filed |
| Apr 23 2008 | Response to amicus curiae brief filed |
