In re Avalos

Filed 2/9/09 In re Avalos CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

PETITION for a writ of habeas corpus following order of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Petition granted.

Justo Avalos, in pro. per., and Nancy L. Tetreault, under appointment by the Court of Appeal, for petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Jennifer L. Dolan, Deputy Attorneys General, for Respondent.

_______________________

As directed on October 28, 2008 by the California Supreme Court on remand to this court, we hereby vacate our decision in this matter filed on February 28, 2008. This opinion constitutes our reconsideration of the cause in light of In re Lawrence (2008) 44 Cal.4th 1181, and In re Shaputis (2008) 44 Cal.4th 1241, as further directed by the Supreme Court.

In 1984, Justo Avalos was convicted of second degree murder and sentenced to an indeterminate prison term of 15 years to life. In 2006, the Board of Parole Hearings (Board) found Avalos suitable for parole, however, Governor Arnold Schwarzenegger reversed the decision. Avalos filed a petition for a writ of habeas corpus challenging the Governors decision as not supported by some evidence. We agree and grant the petition as prayed.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

A.     Commitment Offense

At about 1:30 a.m. on May 10, 1981, Justo Avalos and Jose Cisneros walked out of the Wagon Wheel Bar where Avalos worked as the manager, arguing about a waitress Avalos had fired. Juan Manriques, who knew both men, followed them outside and told them to stop arguing. The three men returned to the bar but a few minutes later Cisneros said he was going home and left the bar. Avalos followed Cisneros. Manriques, knowing that Avalos carried a gun, also went outside and saw Avalos shoot Cisneros four

times. At the time of the shooting, the unarmed Cisneros had his hands by his sides and offered no resistance. Cisneros died from multiple gunshot wounds.^[1]

Avalos fled to Mexico (he was here illegally at the time of the murder) but was apprehended about two years later, having returned (again illegally) to the United States. He was convicted of one count of second degree murder, and (in April 1984) sentenced to state prison for a term of 15 years to life. We affirmed the judgment. (People v. Avalos (Jul. 17, 1985, B005547) [nonpub. opn.].)

B.    Social History

Avalos was born in 1936. He was raised by both parents until his mother died when he was eight. He has had no formal education and never went to school.

Avalos came with his family to the United States in 1963. He was married once in 1954 and has two children from that marriage (one of whom is deceased). He is currently separated. Avalos has two more children from another relationship. He has maintained some contact with his brothers, sister, and a niece, but has had no contact with his children while in prison.

Avalos was 45 when he committed the life offense. He has no juvenile record or prior adult criminal convictions. His longest primary employment was as a hotel cook from 1970 to 1976. He also, as noted above, managed the Wagon Wheel Bar.

Avalos is not in good health. In 1994, he was hospitalized for heart difficulties, as well as for a workplace-related shoulder injury. He was hospitalized again for heart difficulties in 2002 and had a heart attack in 2004. In addition to angina, acute myocardial infarction, and a generally bad heart, Avalos has arthritis and high blood pressure.

C.    Prison Record

Avalos was received at the Department of Corrections in 1984. His classification score (19) and Medium A custody rating are the lowest an inmate can have as a life prisoner. As for his disciplinary record in prison, Avalos has had one CDC 115 rule violation^[2]in 2003 and only one CDC 128-A^[3](in 2001). He received the 115 for participation in a work stoppage involving the entire work force at Chuckawalla State Prison, all 700 of whom were issued rule violation reports notwithstanding that they believed they would be assaulted by other prisoners if they went to work. The 128-A from 2001 was for tenting [his] bunk (pulling his blankets down around it so staff could not see what he was doing).

Avalos earned a number of laudatory chronos for his participation in Alcoholics Anonymous. He also attends ESL classes. While incarcerated, Avalos has worked as a cook and porter, and obtained vocational training in landscaping and nursery operations. At the time of his parole hearing, Avalos worked in the gymnasium as a recreation coordinator. All his reports reflect above average behavior in all the positions he has held. His instructors describe him as a role model because of his excellent attitude and behavior.

D.    Psychological Evaluation and Insight Into Offense^[4]

According to his most recent psychological evaluation, Avalos has no mental illnesses or disorders and, [w]ithin a controlled setting, it appears [his] propensity for violence is less than that of the average inmate and within . . . the community it would be much less than the average citizen based on his disciplinary record, insight gained into his prior behavior, and knowledge of alternatives to violence acquired by Mr. Avalos. He has no substance abuse history.

Reviewing the life crime with the psychologist (through a translator), Avalos described his feelings as follows: Since the beginning I have agreed that I committed the crime. After the first 15 minutes after the crime happened I regretted this action. I have never committed any other crime and in prison I have never gotten into trouble. If I ever saw the victim now, I would tell him how sorry I was and how sorry I am. I would get on my knees. I have never stopped feeling guilty for what I have done. I have regretted this ever since it happened. All I can do is apologize for this act. I regret what I have done! Regarding the crime, I was called by the waitress because the victim was disrupting the bar, the pool table, slashing it, cutting the towels in the restrooms. This happened prior to the day of the crime. He would ask the waitress for beer and then would not pay for it. I was threatened by the victim that if I did not rehire the waitress I would be killed. I was very scared! Today, I have learned how to deal with threats in other ways that are non violent. I used to have great pride. I didnt know what respect was. I have learned now to replace this and live with other people and races. I have learned to apologize. I have learned to lead a different lifestyle and how to work with people. On my own, I have learned how to read and write with the help of my cellmates. I have learned to act differently!

The psychologist listed both high and low risk factors. High risk factors included the role alcohol played in the offense, that Avalos was an active participant and had a lethal weapon. Moreover, the offense was lethal and resulted in the highly vulnerable victims death.

In contrast, the low risk factors in the psychologists assessment of Avaloss dangerousness did not dwell on the offense, but rather on whether and how Avalos had accepted responsibility and expressed remorse. Notably, Avalos did not commit the offense during the commission of another crime. The offense did not appear to be premeditated; there was an immediate threat to Avalos. He acknowledged he committed the offense and fully acknowledge[d] the wrongfulness of [his] actions. In addition: This inmate appears to take full responsibility for the offense and does not appear to rationalize or minimize his role. He appeared to fully express remorse for his actions. When asked, he shared extensive expressions of guilt to remorse. This inmate appears to feel guilty for his actions and can empathize at an emotional level with the harm done to the victim and the victims family. This inmate demonstrated a good awareness of the circumstances that resulted in his committing a serious offense. This inmate appears highly motivated to undertake constructive changes in his life. The inmate is not diagnosed in antisocial personality disorder. Criminal mindedness and criminality did not appear to be primary elements of the inmates offense. Circumstantial/situational factors appeared to play a significant role in the offense.

The psychologist posed the question: Is there a psychological understanding of this inmates involvement in the committing offense? He responded, When questioned about his crime, [Avalos] shows insight into not only causative factors for his crime, but awareness into the type of person he used to be and how today he has changed to become a better person. Mr. Avalos has learned to look at consequences of behavior before acting, and is aware of alternatives to violence. This inmate stated that if he were threatened with great bodily harm, and had access to a gun, he would rather die than use the weapon. When asked why?he stated that I am now aware of consequences of my actions, and how the use of a gun in my crime has destroyed so much.

E.     Parole Plans

Avalos is subject to an immigration hold and will be returned to Mexico upon release from prison. When released, Avalos intends to return to Jalisco, Mexico where he has two truck-driving jobs waiting for him, as well as housing, transportation, and medical care.

F.     Neutral Position on Parole

At the parole hearing, the Deputy District Attorney said he had no idea why [Avalos] did what he did or why he had the gun, and thus was at a total loss as to make any sense out of the crime. The deputy noted that he would not oppose parole if he could be certain that Avalos would return to Mexico, but ultimately he took no position as to whether parole should be granted.

G. The Boards Decision

On August 1, 2006, the Board of Parole Hearings found Avalos suitable for parole and found that he would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison, and orally explained its decision this way:

[He has] no juvenile record of assaulting others. [He has] a stable social history [and] reasonably stable relationships with others in his home country and city. While in prison[, he] has enhanced his ability to function within the law upon release in that he has participated in self-help and therapy programs. He has two vocational certificates and

positive job assignments. He does not have a significant criminal history. Because of maturation and growth and greater understanding[, he] has reduced [the] probability of recidivism. He has realistic parole plans, including a job offer and family support in his home country. [He] [h]as maintained positive institutional behavior, which indicates a significant improvement in self-control.

He shows signs of remorse, even understands the nature and magnitude of the offense and accepts responsibility for the criminal behavior. Additionally, he is of advanced age, poor medical health, he had a heart attack recently, two weeks ago, while being interviewed by his attorney. Psychiatric report . . . is favorable, in that the doctor assesses the risk of danger if released from prison as much less than that of the average citizen. . . .

The Board repeated these findings in its written report, and also noted that the murder was spontaneous in reaction to threats and conduct of the victim.

H. The Governors Reversal

On December 21, 2006, the Governor reversed the Boards decision. After describing the commitment offense and noting Avaloss illegal entry into the United States, the Governors decision continues thus:

During his incarceration for the life offense, Mr. Avalos was disciplined one time, in 2003, for participating in an organized work strike. He was also counseled one time, in 2001, for minor misconduct. [] I considered various positive factors in reviewing whether Mr. Avalos is suitable for parole at this time. In addition to maintaining an almost discipline-free conduct record, Mr. Avalos made efforts in prison

to enhance his ability to function within the law upon release. He completed several adult basic education and English-as-a-Second-Language courses. He also completed vocational training in landscape maintenance and nursery operations. He received additional training in refrigeration and air conditioning. He held institutional jobs such as cook, porter and dental technician, and he worked in the recreation department. He availed himself of some self-help and therapy, including Alcoholics Anonymous, Life Skills and Alternatives to Violence. He maintains seemingly supportive relationships with family and friends and he received some positive evaluations from mental-health and correctional professionals over the years. Subject to deportation to Mexico upon release, Mr. Avalos reportedly plans to live with family in Mexico and pursue one of several employment offers. He made alternate plans, in the event he is not deported, to live with family in Los Angeles County, his county of last residence.

Despite the positive factors I have considered, the second-degree murder for which Justo Avalos was convicted was especially grave, in part because the manner in which he killed Jose Cisneros shooting him four times while [Cisneros] was unarmed and posed no threat to him, and then fleeing demonstrated an exceptionally callous disregard for [Cisneross] suffering and life. And because [Cisneros] presented no immediate threat to [Avalos], the motive for the crime appears to be trivial in relation to

the offense. In its decision to deny parole to [Avalos], the 2001 Board said [t]he motive for this crime is, to this day, lacking in explanation. According to the Court of Appeal opinion, [Avalos] followed his unarmed victim from the bar and shot him as he stood with his arms at his side . . . . The opinion also noted that [t]he three eyewitnesses to the shooting testified that the victim was unarmed and that no weapon was found on the ground next to the body. Evaluation of [Avaloss] testimony that he either acted in self-defense, or fired one shot accidentally, was within the sole province of the trial court which was free to disbelieve [Avaloss] belated and contrived version of his reasons for shooting an unarmed man. [Avalos] had numerous opportunities to stop during this crime he could have simply allowed [Cisneros] to leave the bar, and could have stopped after each of the first three gunshots was fired yet he chose to continue. . . . The gravity of the second-degree murder committed by Justo Avalos is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk.

Although Justo Avalos says he accepts responsibility for his actions and is remorseful, he does not seem to understand why he murdered Jose Cisneros. For instance, [Avalos] told the 2006 Board that he shot [Cisneros] because I got scared, from fear, because of what he was saying. I guess I dont even know how I shot him when I say [sic] the gun there in my hand. I stuck my hand in the little bag and thats when I shot him. I dont even know why. When asked by the 2001 Board why he shot [Cisneros], [Avalos] said, I dont know. I dont know. He was my best friend. I dont know. He also said [s]omeone had called me from a restaurant for me to come outside and pick up a burrito that someone had sent for me. So when I went outside, he came out after me. And he told me that if the waitress wasnt coming back, he was going to kill me that night. But I didnt believe him. I continued to eat my burrito. Then he jumped at me and that is when I pulled out the gun, but I dont know how. I dont know why. [Avalos] later said, I think I shot him out of fear . . . . Fear of him hitting me, or I dont know. Like I said, I even asked myself, why did I shoot him? Could it be fear? I mean, what else could it be? In its decision to deny parole to [Avalos], the 2001 Board said our concern is that after all these years in prison, the inmate still cannot tell the Panel why he shot this victim. He has given numerous stories over the years, as to the circumstances and why. However, he has not been able today, to come to grips with why he shot this individual. That is an extremely important part of rehabilitation and must be accomplished before the prisoner could be released.

At age 70 now, after being incarcerated for more than 23 years, Justo Avalos made some creditable gains in prison. But given the current record before me, and after carefully considering the very same factors the Board must consider, I find that the negative factors weighing against Mr. Avalos parole suitability presently outweigh the positive ones tending to support it. Accordingly, because I believe his release would

pose an unreasonable risk of danger to society at this time, I REVERSE the Boards 2006 decision to grant parole to Mr. Avalos.

I. The Habeas Corpus Proceedings

In February 2007, Avalos filed a petition for a writ of habeas corpus in which he challenged the Governors reversal of the Boards decision. The trial court denied the petition on the ground that some evidence (Avaloss inability to explain why he killed Cisneros) supported the Governors decision.

In September 2007, Avalos filed the pro se habeas corpus petition now before us. We issued an order to show cause and appointed counsel to represent Avalos in these proceedings. Our decision granting the petition, vacating the Governors decision, reinstating the Boards decision, and ordering Avaloss immediate release was filed on February 28, 2008.

In April, the Warden petitioned the California Supreme Court for review, which was granted in June. Briefing was deferred, however, pending the disposition of a related issue in In re Lawrence, supra, 44 Cal.4th 1181, In re Shaputis, supra, 44 Cal.4th 1241, and In re Jacobson (S156416) or pending further order of the court. The Supreme Court appointed counsel to represent Avalos on the appeal.

On October 28, 2008, the Supreme Court transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of In re Lawrence, supra,44 Cal.4th 1181, and In re Shaputis, supra, 44 Cal.4th 1241. (Cal. Rules of Court, rule 8.528(d).)

DISCUSSION

Avalos contends the Governors decision is not supported by some evidence that Avalos poses a current threat to public safety. We agree.

A.     Governing Law

The purpose of parole is to help prisoners reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of their sentence. (Morrissey v. Brewer (1972) 408 U.S. 471, 477 [92 S.Ct. 2593].) Although a prisoner has no constitutional or inherent right to be conditionally released before the expiration of his sentence (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7 [99 S.Ct. 2100]), in this state, Penal Code section 3041 creates in every inmate a cognizable liberty interest in parole, and that interest is protected by the procedural safeguards of the due process clause. (In re Lawrence, supra, 44 Cal.4th at p. 1205 [petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmates due process right cannot exist in any practical sense without a remedy against its abrogation, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 664; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 914-915.)^[5] Section 3041, subdivision (b), establishes a presumption that parole will be the rule, rather than the exception, providing that the Board shall set a release date unless it determines that the gravity of the current convicted offense . . . 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. (See Board of Pardons v. Allen (1987) 482 U.S. 369, 377-378 [107 S.Ct. 2415] [unless designated findings made, parole generally presumed to be available].) [I]n light of the constitutional liberty interest at stake, judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights. (In re Lawrence, supra, 44 Cal.4th at p. 1211; Irons v. Carey (9th Cir. 2007) 479 F.3d 658, 662 [section 3041 vests California prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause].)

The Supreme Court recognized these concepts in In re Rosenkrantz, supra,29 Cal.4th at pages 625-626, explaining there that a Governors decision granting or denying parole is subject to a limited judicial review to determine only whether the decision is supported by some evidence. [A]rticle V, section 8(b) [of the California Constitution], does not grant a Governor unfettered discretion over parole matters, but rather explicitly requires his or her parole decision to be based upon the same factors that the Board is required to consider. At the time article V, section 8(b), was adopted, it was established under California law that although the Board exercises broad discretion in determining whether to rescind parole, such decisions are subject to a form of limited judicial review to ensure that they are supported by at least some evidence. [Citation.] We conclude that a Governors decisions under article V, section 8(b), are subject to this same type of limited judicial review, and that under this standard a court is authorized to review the factual basis of the Governors decision only to determine whether it is supported by some evidence relevant to the factors the Governor is required to consider under article V, section 8(b). (Emphasis added, fn. omitted.)

Accordingly, Californias courts are empowered to review the factual basis of the Governors decision reversing the Boards decision to grant parole to determine whether it is supported by some evidence of the factors specified by statute and regulation. (In re Rosenkrantz, supra, 29 Cal.4th at p. 667; In re Dannenberg (2005) 34 Cal.4th 1061.)

When assessing whether a life prisoner will pose an unreasonable risk of danger to society if released from prison, the panel considers all relevant, reliable information available on a case-by-case basis. The regulations provide a nonexclusive list of circumstances tending to show suitability or unsuitability for release. (Cal. Code Regs.,  2402, subds. (c), (d).) Factors tending to indicate suitability include (1) the absence of a juvenile record, (2) a stable social history, (3) signs of remorse, (4) the motivation for the crime was significant life stress, (5) battered woman syndrome, (6) no significant history of violent crime, (7) the inmates age, (8) realistic plans for the future, and (9) institutional behavior. (Ibid.) Circumstances tending to show unsuitability include (1) the commitment offense was committed in an especially heinous, atrocious or cruel manner,^[6](2) a previous record of violence, (3) an unstable social history, (4) sadistic sexual offenses, (5) psychological factors, and (6) serious misconduct while incarcerated. (Ibid.) In sum, the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety . . . . (In re Lawrence, supra, 44 Cal.4th at p. 1205.)

The core determination thus involves an assessment of an inmates current dangerousness. (In re Lawrence, supra, 44 Cal.4th at p. 1205.) The Board is authorized 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. (In re Lawrence, supra, 44 Cal.4th at pp. 1205-1206 [quoting In re Rosenkrantz, supra, 29 Cal.4th at p. 655].) [I]n 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 inmates threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living within the strictures of the law. (In re Lawrence, supra, 44 Cal.4th at p. 1219.) As a result, 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 re Lawrence, supra, 44 Cal.4th at p. 1211.) The Board can, of course, rely on the aggravated circumstances of the commitment offense as a reason for finding an inmate unsuitable for parole, however, 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 prisoners pre- or post-incarceration history, or his . . . current demeanor and mental state, indicates that the implications regarding the prisoners dangerousness that derive from his . . . commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety. (In re Lawrence, supra, 44 Cal.4th at p. 1214.)

In In re Lawrence, supra, 44 Cal.4th at page 1212, our Supreme Court clarified the applicable standard of review: [W]hen 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 factual findings. The standard is unquestionably deferential, and limited to ascertaining whether there is some evidence in the record that supports the [Boards] decision. (In re Lawrence, supra, 44 Cal.4th at p. 1210.) Nonetheless, the standard 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. (In re Lawrence, supra, 44 Cal.4th at p. 1210.) Our inquiry thus is not merely whether an inmates 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. (In re Lawrence, supra, 44 Cal.4th at p. 1221.) The Board must articulate a rational nexus between the facts of the commitment offense and the inmates current threat to public safety. (In re Lawrence, supra, 44 Cal.4th at p. 1227.)

In Lawrence, the petitioner murdered her lovers wife in 1971 and remained a fugitive until 1982, when she voluntarily surrendered to the police. (In re Lawrence, supra, 44 Cal.4th at pp. 1192-1193.) A jury found her guilty of first degree murder, and she was sentenced to life imprisonment with the possibility of parole. (Id. at p. 1194.) Although her early psychological evaluations diagnosed Lawrence as narcissistic and stated she displayed signs of various personality disorders, after 1993, the evaluations uniformly concluded that she no longer represented a significant danger to society. (Id. at pp. 1194-1195.) While in prison, she was occasionally late to appointments or job assignments, but was otherwise discipline-free. She participated in many volunteer and charitable programs, and earned her bachelors degree. (Ibid.)

Beginning in 1993, the Board found Lawrence suitable for parole four times, and on each occasion, the then-current Governor rejected the Boards decision. (In re Lawrence, supra, 44 Cal.4th at pp. 1195-1199.) The fourth rejection occurred in 2006, when the Governor determined that the petitioner was unsuitable for parole due to the circumstances of her crime and the early psychological evaluations. (Id. at pp. 1199-1200.) Applying the proper standard of review to the Governors decision, our Supreme Court concluded that there was no evidence to support a determination that Lawrence remained a threat to public safety in view of her 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 as the favorable discretionary decisions of the Board. (Id. at p. 1226.)^[7]

The question now before us is whether some evidence supports the Governors decision that the circumstances of Avaloss offense mean he is presently too dangerous to be suitable for parole.

B. Analysis

As in Lawrence, the unsuitability decision here was based solely on the commitment offense. The Governor stated that the gravity of Avaloss murder was sufficient for him to conclude that Avaloss release from prison would pose an unreasonable public-safety risk. Reliance on the circumstances of the commitment offense as a factor in finding an inmate unsuitable for parole is proper, but there must also be something in the prisoners pre- or post-incarceration history, or his . . . current demeanor and mental state, indicat[ing] that the implications regarding the prisoners dangerousness that derive from his . . . commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety. (In re Lawrence, supra, 44 Cal.4th at p. 1214.) That something is missing from the Governors decision. All murders are grave, and without minimizing the fact that taking any life is terrible, nothing in the Governors decision articulates the required rational nexus between Avaloss commitment offense and the Governors finding that he poses a current risk of danger to society.^[8] (In re Lawrence, supra, 44 Cal.4th at p. 1225 [even as we acknowledge that some evidence in the record supports the Governors 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].)

Indeed, the record establishes the contrary proposition, notably, that nothing in Avaloss pre- or post-incarceration history, or his current demeanor and mental state support a prediction of current dangerousness. At the time of his hearing before the Board, he had been a model prisoner for 23 years, and the prison officials as well as the Board found that he poses no risk at all to the public. He is 72 years old and sick. He wants to return to Mexico, where he has a home and work waiting for him. Because the facts of the commitment offense are immutable, reliance on that factor, without regard to subsequent considerations, runs contrary to the rehabilitative goals at the core of Californias penal system and results in a due process violation unless the circumstances of the crime reliably indicate that the offender will present an unreasonable public safety risk if released from prison. (In re Elkins (2006) 144 Cal.App.4th 475, 496.) The Governor failed to state and the record does not contain any evidence that Avalos will present an unreasonable public safety risk if released from prison. (In re Scott (2005) 133 Cal.App.4th 573, 594-596.)^[9] In a case such as this, in which the record is replete with evidence establishing petitioners rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that [he] continues to pose a threat to public safety petitioners due process and statutory rights were violated by the Governors reliance upon the immutable and unchangeable circumstances of [his] commitment offense in denying him parole. (In re Lawrence, supra, 44 Cal.4th at p. 1227.) We therefore grant Avaloss habeas corpus petition.

DISPOSITION

The petition is granted, and a writ shall issue vacating the Governors decision, reinstating the Boards decision, and ordering Avaloss immediate release.

NOT TO BE PUBLISHED

MALLANO, P. J.

I concur:

JACKSON, J.*

________________________________________________________________________

*Associate Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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^[1]At Avaloss 2006 parole hearing, his attorney described the circumstances leading up to the shooting: Avalos was working in a bar, hes trying to deposit money, he has past experience with this customer[], he has arguments, hes been threatened by him, and at some point a confrontation [occurs] as to whether the bar maid should be rehired or not after shes been stealing from the bar.

^[2]A CDC 115 documents misconduct believed to be a violation of law or is otherwise not minor in nature. (See Cal. Code Regs., tit. 15, 3312, subd. (a)(3); In re Gray (2007) 151 Cal.App.4th 379, 389.)

^[3]A CDC 128-A documents incidents of minor misconduct. (See Cal. Code Regs., tit. 15, 3312, subd. (a)(2); In re Gray, supra, 151 Cal.App.4th at p. 389.)

^[4]As the Supreme Court recently stated, Petitioners psychological reports map the path of . . . rehabilitation.  (In re Lawrence, supra, 44 Cal.4th at p. 1194.)

^[5]All references to section 3041 are to that section of the Penal Code. Section 3041, subdivision (a), provides as relevant: One year prior to the inmates minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5. . . . The release date 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, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.

^[6]The regulation specifies the factors to be considered in determining whether the offense was committed in an especially heinous, atrocious or cruel manner as: (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 which demonstrates an exceptionally callous disregard for human suffering. [] (E) The motive for the crime is inexplicable or very trivial in relation to the offense. (Cal. Code Regs., tit. 15, 2402, subd. (c)(1).)

^[7]In the companion case of In re Shaputis, supra,44 Cal.4th 1241, the Supreme Court applied the standard of review as set forth in Lawrence. There, the inmate had a history of domestic violence and was serving a sentence for shooting and killing his second wife. Shaputis had a long criminal history, although the commitment offense was his first felony conviction. He had severe substance abuse problems and little contact with his family during his incarceration. He had programmed well, though, participating in self-help programs, remaining discipline-free, and receiving generally positive psychological evaluations. The Supreme Court found the record supported the Governors determination that the crime was especially aggravated and that the aggravated nature of the offense indicated that Shaputis still posed a risk to public safety. (Id. at p. 1259.) The Supreme Court added that the record demonstrated Shaputis lacked insight into his conduct, despite years of successful programming: Evidence concerning the nature of the weapon, the location of ammunition found at the crime scene, and petitioners statement that he had a little fight with his wife support the view that he killed his wife intentionally, but as the record also demonstrates, petitioner still claims the shooting was an accident. (Id. at p. 1260.) The Governors decision reflected that he accorded petitioner individualized consideration with regard to all relevant statutory factors and his statement reflects he found the petitioner remains a current danger to the safety of the public. (Id. at p. 1261.)

^[8]The Governors reliance on the probation officers statement that Avaloss flight from the murder scene and use of a phony name cast[] further light on [Avaloss] character fails to constitute the needed connection between that 22-year-old assessment and Avaloss dangerousness today.

^[9]The Governors comments about Avaloss acceptance of responsibility for his actions are not supported by the record because it is clear that no consideration was given to Avaloss limited education and his difficulty expressing himself. The differences in his statements at prior parole board hearings do no more than highlight the problems inherent in the use of interpreters. Similarly, the Governors statement that Avalos must come to grips with why he shot the victim before [he] could be released ignores the fact that Avalos has explained that, insofar as he can remember the events of that night, he acted out of fear (and ignores the fact that the man is 72 years old and ill).