In re Blair

Filed 5/23/08 In re Blair CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Petition for writ of habeas corpus, Larrie R. Brainard, Judge. Relief denied.

John Blair was convicted of second degree murder, and was sentenced to 17 years to life in 1983. Twenty-three years later, the Board of Parole Hearings (Board) found Blair suitable for release on parole. Governor Arnold Schwarzenegger reversed this decision, finding Blair's release would pose an unreasonable risk of danger to society. Blair petitions for a writ of habeas corpus challenging the Governor's reversal. Applying the review standards set forth in In re Dannenberg (2005) 34 Cal.4th 1061 and In re Rosenkrantz (2002) 29 Cal.4th 616, we conclude there was some evidence supporting the Governor's decision. We therefore deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

The Crime^[1]

In June 1982, Blair met the victim, Cheri Peterson, in Arizona. Blair was 26 years old and Peterson was 32 years old. After spending several weeks together, Blair agreed to drive Peterson to her home in Jacumba, California. Peterson told Blair she would retrieve her belongings and then return to Arizona with him.

Shortly after they arrived at Peterson's home on July 15 at about 1:15 a.m., Peterson told Blair she had lied to get a ride back to California, and she had no intention of returning to Arizona with him. Both Peterson and Blair had been at a bar drinking all day and night and were highly intoxicated. Peterson discussed the situation with her roommate, Katherine Ross, while Blair waited outside.

While waiting, Blair became angry that Peterson would not be returning with him and had lied to him. Peterson then came outside to talk with Blair, and the two argued for about 15 minutes. When they went back into the house, Blair began hitting and pushing Peterson. Peterson's roommate (Ross) attempted to intervene, but Blair struck her as well. Peterson told Blair she was afraid of him, and he pushed her to the floor. Blair then left the house, yelling " 'I'll show you what scared is,' " and the two women locked the front door.

Blair went to his car and retrieved a 12-gauge shotgun from his trunk.^[2] He then returned to the house and demanded to be let inside. Ross, who feared Blair would hurt her, opened the door, but told Blair to leave the weapon outside the door. Blair ignored this request and came into the house appearing very angry. With a shotgun in his hand, Blair again confronted Peterson and told her to come with him to Arizona. Peterson refused. Blair then hit Peterson, knocking her down onto the couch. Blair then shot Peterson once in the upper chest area from approximately one to two feet away. Blair immediately left the house and ran to a nearby residence where people he knew were living.

Peterson pleaded with Ross to help her, stating " 'Help me Katy, help me.' " Ross called paramedics, but Peterson died on the way to the hospital.

In November 1982, Blair was convicted of second degree murder with use of a firearm. The court sentenced Blair to 15 years to life for the murder conviction, plus an additional two-year term for the firearm enhancement. After the conviction, Blair told a probation officer that the killing was "an accident," stating that he and Peterson were under the influence of alcohol and arguing heatedly over whether she would return to Arizona with him or remain in Jacumba with her roommate. Blair said he retrieved his gun from his car to frighten Peterson into remaining with him and he thought in his drunken state that he was threatening her with an unloaded firearm. According to the probation officer, Blair seems "quite certain that [Peterson] had loaded" the gun without his knowledge.

In June 1992, Blair first became eligible for parole. Thereafter, the Board denied parole seven times. In September 2006, the Board held an eighth parole hearing. After considering all of the evidence, the Board found Blair was suitable for parole. We summarize the evidence presented at the hearing, the Board's reasoning for its decision, and the Governor's reasons for reversing the Board's decision.

Evidence Presented at 2006 Parole Hearing

Blair's Testimony

In his testimony, Blair said he was accepting full responsibility for the crime. Blair described the facts of the crime as summarized above, and said that he retrieved the gun from the car "to scare [Peterson] into coming back to . . . Arizona with me. I've been abandoned most of my life." Blair did not specifically remember pulling the trigger, but recalled arguing with Peterson and waiving the gun around. When asked whether the gun was loaded when it was in his trunk or whether he loaded it when he went outside, Blair responded: "I honestly don't remember. I don't believe I loaded it. All we hadthe only shells we had was birdshot because we had been out bird hunting that weekend. It may have been loaded but . . . I don't think I'd have brought it to the bar loaded." Blair also admitted that he had physically abused Peterson in the days or weeks before the crime.

Blair said that he was not intending to offer an excuse for the crime, but said that "I'm an alcoholic in a bad way . . . [and] have a really bad history of violence when I drink." Blair also said that before he met Peterson, he and his wife divorced, and he started drinking heavily, and then he lost his job "and everything I had."

When asked to give a statement regarding his suitability for parole, Blair discussed at length his remorse and his understanding that his problems primarily stem from his being an alcoholic. Regarding his alcohol problem, he stated: "Everybody's concern and rightfully so, is on my alcohol problem. I've had a problem all my life. I'm an alcoholic. And I'll guarantee you on anything you want, I'll never drink again. It's not because I'll be on parole. If I'm off parole, I won't drink again. Taking [Cheri's] life, I never knew I was capable of something like that. It scared the living hell out of me. That's not a man. That's an animal . . . . I've worked hard to be the person I am [today]. . . ."

Blair's Criminal History

Blair's criminal record before the murder conviction consisted of: (1) a resisting arrest and disorderly conduct conviction in Wisconsin; and (2) an assault/disorderly conduct arrest in Michigan. The latter incident occurred when Blair stabbed a man after he got into a fight at a bar. Blair was about 20 years old at the time.

Blair's Prison Disciplinary Record

During his 23 years in prison, Blair had six serious rule violations, referred to as "115" incidents. Five of these incidents occurred during Blair's first four years of prison. These incidents involved fighting, possession of inmate manufactured weapons, and engaging in a verbal confrontation with a supervisor. The last of these violations occurred in December 1986.

The final 115 violation was a September 1994 disciplinary action for marijuana possession after a single positive drug test. At the 2006 parole hearing, Blair denied ever having used marijuana. He claimed the marijuana charge was fabricated because Blair would not identify the individuals who were smuggling contraband at a prison printing factory. Blair acknowledged that he should have disclosed the identity of the individuals, but stated that prison culture at that time made it difficult for him to do so. The disciplinary action was not placed in Blair's file until two years after the positive test, at which point Blair was told it was too late to challenge it. The Board noted this irregularity in disciplinary procedures. Blair never again tested positive for drug use.

In addition to Blair's 115 disciplinary record, Blair had five minor disciplinary incidents. The last minor incident was in 2000 when he was helping an older inmate up the steps and was a few minutes late for lock up. He received counseling for the incident.

Work History in Prison

Blair's prison work history was exemplary. His jobs have included work in the printing plant and the furniture factory. Blair has developed journeyman level skills in mill and cabinetry work, and currently works six days a week as an assistant lead person in the prison's furniture factory. At the parole hearing, Blair discussed at length his interest in this cabinetry work and photography. Two correctional officers and a supervisor submitted "laudatory" evaluations, stating that Blair's work was outstanding and that he had good leadership and excellent work skills. An evaluation by Correctional Officer Robinson, dated August 4, 2006, states, " 'Very few current inmates have impressed me as much as Inmate Blair has over the past years. I am convinced that Inmate Blair would be a productive citizen once released.' "

Mental Health Professional Evaluations^[3]

In May 1995, a mental health professional wrote: "Mr. Blair represents an individual who has made substantial progress . . . and his potential violence is well below average if he was released to the community." Blair's recent mental health evaluations are consistent with this conclusion, and reflect that he has no mental or personality disorders, and that Blair's risk of recidivism upon parole is low to moderate assuming continued sobriety. The evaluation also stated that Blair's self-help efforts in prison " 'have resulted in much increased insight' " and " 'true remorse.' "

Alcohol Abuse

Blair repeatedly stated at the hearing that he understood his prior problems occurred while he was under the influence of alcohol. Blair said he had been clean and sober for 21 years since September 13, 1985, and that he has never used illegal drugs. He actively participates in weekly AA meetings, and intends to stay in AA if released. He has found an AA sponsor to guide him when he is released. He also participates in many other self-help programs, including programs aimed at veterans' issues, anger management and relapse prevention. His most recent mental health evaluation concluded that Blair's alcoholism is in "long-term historical remission."

Parole Plans

Upon parole, Blair has been accepted into a two-year residential drug and alcohol treatment program for veterans. The program addresses relapse prevention, living skills, anger management, and stress management. The program has an AA group. The program also provides job training and placement. If this program is unavailable, Blair has been accepted into another similar program. The parole department has established controls that can ensure Blair would be monitored on a weekly basis for five to seven years to ensure he does not begin drinking again.

The Board's Decision

After considering all available information, the Board found Blair did not pose a threat to public safety and therefore was suitable for parole.

In reaching this conclusion, the Board recognized there were circumstances in aggravation pertaining to the murder, including that: "The victim was particularly vulnerable [because she was] under the influence of alcohol. [T]he prisoner had a clear opportunity to cease but instead, continued. The prisoner had a special relationship of confidence and trust with the victim. The manner in which the crime was committed created a potential for serious injury to persons other than the victim of the crime." The Board additionally noted that the district attorney opposed the parole.

But the Board found these factors outweighed by the evidence showing Blair had been rehabilitated and would not pose a danger to public safety. The Board based this conclusion on Blair's consistently positive prison behavior after an initial adjustment period, active participation in rehabilitation programs, the lack of any recent disciplinary actions, his marketable job skills, and his solid parole plans. The Board further found that Blair committed his crime during a period of great stress and lacked a significant violent criminal history, and that the likelihood of Blair's recidivism was reduced by his "maturation, growth, greater understanding[,] and advanced age." The Board also stated that Blair's "passion" and "insight" about his work reflects his interest and motivation in succeeding in other parts of his life.

The Board further emphasized its factual conclusion that Blair was remorseful and took full responsibility for his crime. In this regard, one Board Commissioner stated: "Remorse is hard to put your finger on and we have the advantage of having this inmate talking and sitting face to face with us today. And it's important to do that, we feel, and we feel that is the most telling way of assessing the inmate's actual remorse. And it's not always just tears or words. What's important [is] the entire affect of the prisoner . . . . [Blair has] shown appropriate remorse. It's clear that he understands the nature and magnitude of this offense and accepts responsibility for his criminal behavior, . . . and he certainly has inspired a change toward good citizenship."

Governor's Ruling Reversing Board Decision

In January 2007, Governor Schwarzenegger reversed the Board's decision because he found Blair's "release would pose an unreasonable risk of danger to society at this time." In a three-page report explaining this conclusion, the Governor first detailed the facts of the crime. He then discussed the various positive factors supporting Blair's release, which included his vocational training and work history, his honorable discharge from the Marine Corps, his extensive participation in numerous self-help and therapy groups, the favorable evaluations from correctional and mental health professionals over the years, and Blair's plans to live at a residential treatment facility upon release.

But the Governor found these factors were outweighed by four negative factors: (1) the facts of the crime were "especially heinous" and "demonstrated an exceptionally callous disregard for Ms. Peterson's suffering and life"; (2) Blair had a record of violent conduct before committing the murder, including an arrest for assaulting a man during a fight and a conviction for resisting a police officer; (3) Blair's previous misconduct in prison "suggests an inability or unwillingness to conform his conduct to the rules . . . "; and (4) Blair had not accepted full responsibility for the crime, as reflected by the fact that his version of the facts pertaining to the loading of the murder weapon has "changed over time."

The Governor particularly emphasized the disturbing nature of the crime, stating that "[t]he gravity of the second-degree murder committed by Mr. Blair is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk." The Governor also noted that the Board did not explain its finding that Blair committed the crime " 'as a result of significant stress in his life,' " and that, in any event, this "factor alone presently does not sufficiently mitigate the nature and circumstances of the murder he committed."

The Governor concluded: "At age 50 now, after being incarcerated for more than 24 years, Mr. Blair 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. Blair's parole suitability presently outweigh the positive ones. Accordingly, because I believe his release would pose an unreasonable risk of danger to society at this time, I [reverse] the Board's 2006 decision . . . ."

The Superior Court Habeas Proceedings

Blair petitioned the superior court for a writ of habeas corpus, alleging the Governor's reversal of the Board's decision violated his due process and equal protection rights. The trial court denied the writ, concluding the Governor considered the appropriate factors and "there is more than some evidence that his decision was proper." But the court noted the case presented a "close call" because "there is no question [the Governor's] main focus was on a factor that can never change: the underlying offense." The court further stated "[i]t would appear that this particular Petitioner should receive serious consideration for a parole release date as granted by the [Board]. However, the current state of the law does not provide for this Court to order the Governor to reconsider because the 'suitable' factors may outweigh the 'unsuitable' factors, or that the Governor may have given a factor a different weight than given by the [Board]." (Emphasis omitted.)

DISCUSSION

I. General Principles

The decision whether to grant parole is an inherently subjective determination that must be guided by the factors identified in Penal Code section 3041 and the applicable regulations (Cal. Code Regs., tit. 15,  2281, 2401, 2402).^[4] (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654.) The overriding statutory concern is whether release of the individual would be consistent with public safety and would not pose a danger to the public. (Dannenberg, supra, 34 Cal.4th at p. 1084.)

In making the suitability determination, the Board must consider "[a]ll relevant, reliable information." ( 2402, subd. (b).) The circumstances that tend to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly "heinous, atrocious or cruel manner"; (2) has a previous record of violence, particularly at a young age; (3) has an unstable social history; (4) has committed sadistic sexual offenses; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. ( 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. ( 2402, subd. (b).)

Circumstances tending to show suitability for parole include that the inmate: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of

recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. ( 2402, subd. (d).)

These criteria are "general guidelines," illustrative rather than exclusive, and "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board]," and then to the judgment of the Governor. ( 2402, subds. (c), (d); Rosenkrantz, supra, 29 Cal.4th at p. 679.) Thus, the endeavor is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, supra, at p. 655.) Because parole unsuitability factors need only be found by a preponderance of the evidence, the Board and Governor are free to consider facts apart from those found by a jury or judge beyond a reasonable doubt. (Id. at pp. 678-679.)

II. Standard for Judicial Review of Governor's Parole Decisions

By initiative, the voters gave the Governor the constitutional authority to review the Board's parole decisions over individuals convicted of murder and serving indeterminate sentences. (Rosenkrantz, supra, 29 Cal.4th at pp. 658-659.) In exercising this authority, the Governor must be guided by the same statutory and regulatory factors that govern the Board's decision, and must base the decision on "materials provided by the parole authority." (Pen. Code,  3041.2, subd. (a); see Rosenkrantz, supra, at pp. 660-661.) The Governor has the authority to independently review the Board's decision, and may reweigh the evidence and resolve any conflicts in the evidence. (Rosenkrantz, supra, at p. 660.) "[T]he precise manner in which the specified factors . . . 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." (Id. at p. 677.)

The Governor's authority over parole suitability determinations is subject to judicial review to ensure the decision comported with due process principles. (Rosenkrantz, supra, 29 Cal.4th at pp. 660-667.) But the judicial review is "extremely deferential." (Id. at p. 665.) When a prisoner challenges the Governor's decision, a court evaluates only whether the "the factual basis of such a decision is supported by some evidence in the record that was before the Board." (Id. at p. 667, italics added.) This "some evidence" standard requires "[o]nly a modicum of evidence" and is more deferential than the traditional substantial evidence test. (Id. at pp. 665, 677.) To be overturned, the Governor's decision must be "devoid of a factual basis."(Id. at p. 658.)

III. Analysis

The Governor's decision in this case was based on four separate factors: the nature of the crime, Blair's previous criminal history, Blair's misconduct in prison, and Blair's prior refusal to accept full responsibility for the crime. Each of these factors is identified in the governing regulations as a relevant consideration to the parole decision. ( 2402, subds. (c), (d).) On our review of the record, there was "some evidence" supporting that each of these factors existed in this case. Accordingly, under Rosenkrantz, we must affirm the Governor's decision. We detail our reasoning below.

A. The Nature of the Commitment Offense

Under the applicable regulations, one factor supporting a finding that the prisoner is unsuitable for parole is that the inmate "committed the offense in an especially heinous, atrocious or cruel manner." ( 2402, subd. (c)(1).) The California Supreme Court has held that this element " 'alone' " may be sufficient to support the Governor's decision. (Dannenberg, supra, 34 Cal.4th at p. 1094; Rosenkrantz, supra, 29 Cal.4th at p. 682.) In deciding whether to grant parole, the Board and the Governor " 'may weigh heavily the degree of violence used and the amount of viciousness shown by the defendant.' " (Dannenberg, supra, 34 Cal.4th at p. 1094.)

Additionally, where the Governor is relying on the nature of the offense alone, there must be a showing that the offense was "particularly egregious," i.e., "more aggravated or violent than the minimum necessary to sustain a conviction for that offense." (Rosenkrantz, supra, 29 Cal.4th at p. 683.) Without this showing, "[d]enial of parole . . . would be 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).) 'The 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 swallow the rule that parole is "normally" to be granted.' " (Ibid.)

The circumstances of the current crime satisfied this criteria. First, the facts were more than minimally necessary to sustain a second degree murder conviction because the facts show premeditation. The record reflects that Blair and Peterson had a 15-minute heated argument. Blair then reentered Peterson's house, visibly angry and striking and pushing Peterson and her roommate. Peterson said she was scared of him. Blair then yelled, " 'I'll show you what scared is' " and retrieved his shotgun from the trunk of his car. After Peterson declined one last time to leave with him, Blair pointed the shotgun at her and shot her point blank in the chest. The entire incident lasted approximately 45 minutes, during which Blair had multiple opportunities to cool down from the argument and leave the house. Instead he chose to get his gun, threaten Peterson one last time, and shoot her if she would not comply with his wishes. These actions support a finding of premeditation, and thus were more than the minimum necessary to sustain the second degree murder conviction.

Moreover, the evidence supports the Governor's conclusion that the crime was "especially heinous" and reflected an "exceptionally callous disregard for Ms. Peterson's suffering and life." The regulations set forth specific factors to guide the determination whether an offense was committed in an "especially heinous, atrocious or cruel manner." ( 2042, subd. (c)(1).) Those factors include: "(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." (Ibid.)

Several of these factors exist in this case. First, the offense was carried out in a deliberate and calculated manner. After Peterson refused to go with Blair, Blair shot her with a shotgun from approximately one foot away and then left her to die and beg for help from her roommate. Additionally, Blair physically abused Peterson during the 45-minute episode, and admitted to similar physical abuse in the days prior to the murder. Further, the motive for the crime was trivial. Blair's sole reason for committing this offense was that Peterson (a woman he had known for two to three weeks) decided not to return with him to Arizona.

After reciting these facts, the Governor said the "especially heinous" nature of the crime and Blair's "exceptionally callous disregard for Ms. Peterson's suffering and life" led him to conclude that Blair's release from prison would pose an unreasonable public safety risk. "Some evidence" in the record supports this conclusion.

B. Prior Criminal History and Previous Record of Violence

Another relevant factor in considering a life prisoner's suitability for parole is the timing and gravity of the inmate's criminal history and previous record of violence. ( 2402, subds. (b), (c)(2).)

The Governor found that Blair's "adult criminal record includes convictions for disorderly conduct and fighting, and resisting a peace officer." The Governor stated that one of these violent incidents included an arrest in about 1976 for assault after Blair stabbed a man during a bar fight. The Governor also noted Blair's testimony that " 'I'm an alcoholic in a bad way. I have a really bad history of violence when I drink.' " In addition, the Governor found it relevant that Blair had physically abused Peterson in the days before the murder. These findings were fully supported by the evidence in the record. Thus, Blair's criminal history and previous record of violence provide some evidence for the Governor's decision.

C. Blair's Prison Disciplinary Record

The parole authority must also consider an inmate's "[i]nstitutional [b]ehavior," including "serious misconduct in prison." ( 2402, subd. (c)(6).)

The Governor found that Blair had been "disciplined six times for rules violations, including being involved in a physical altercation and stabbing, and possessing contraband." Specifically, the Governor found that Blair "was disciplined for possessing and being under the influence of marijuana, disobeying orders, fighting with another inmate, and possessing dangerous property." The Governor was particularly concerned with the marijuana offense that occurred in 1994 because Blair told the Board that he had never used drugs and that he last drank alcohol in 1985. The Governor also found that Blair had been "counseled four times for minor misconduct, most recently in 2000." All of these findings are supported by some evidence in the record.

Based on this evidence, the Governor concluded that Blair's "institutional misconduct, which includes incidents of violent and aggressive behavior towards others, suggests an inability or unwillingness to conform his conduct to the rules and this weighs against his parole suitability at this time." The Board reached a contrary conclusion, finding that Blair's misconduct during his first few years of prison (1983-1986) did not show he would be a danger if released in 2006. However, the Governor was entitled to reject this finding, and reach a different factual conclusion. The Governor's findings are supported by some evidence in the record and his weighing of the evidence cannot be questioned under the some-evidence standard. Thus, Blair's prison disciplinary record provides some evidence for the Governor's decision.

D. Blair's Attitude Toward His Crime

The parole authority is required to consider an inmate's "past and present attitude toward the crime," including "[s]igns of [r]emorse." ( 2402, subds. (b), (d)(3).) Specifically, the Board and Governor should evaluate whether: "The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense." ( 2402, subd. (d)(3).)

The Governor found this factor weighed against Blair's release. The Governor was particularly concerned that Blair had only recently accepted responsibility for the crime. The Governor stated that "[t]he record suggests [Blair] is making progress in some respects, having recently conceded that he may have shot Ms. Peterson intentionally. But his version of events surrounding the life offense has changed over time . . . . Mr. Blair told the probation officer that he thought the gun was empty when he pulled the trigger, and that his intention was only to frighten Ms. Peterson with the gun. Mr. Blair repeated his claim to his 1991 Life Prisoner evaluator. He told the evaluator that he pointed the gun at Ms. Peterson and pulled the trigger, believing the gun was empty. He now admits, as he told the 2006 Board, that his memory of the crime is uncertain, and he said he may have loaded the gun prior to shooting Ms. Peterson, but does not remember. He also now claims he does not remember pulling the trigger. He told his 2004 mental-health evaluator he was 'waving the gun around and it went off,' and he told the 2005 Board, 'to this day I don't know if I did it on purpose or what happened.' "

Based on the above facts, the Governor found that Blair "may be minimizing his responsibility for the crime" and therefore was not fully rehabilitated. The Board reached the opposite conclusion, stating that it believed Blair was remorseful and accepted full responsibility for the crime. However, the Governor had the authority to review the record independently and could reasonably reach a contrary factual conclusion. The fact that Blair has offered several different accounts about the gun, and only recently admitted that he "may" have loaded the gun, provides "some evidence" in support of the Governor's conclusion that Blair has not fully accepted responsibility for his conduct. The Governor's interpretation of the evidence is not subject to second guessing on review.

E. Entire Record Supports Governor's Decision

In this case, the Governor expressly considered numerous factors supporting the suitability of parole, including the lack of any recent violence or rule violations, Blair's strong work history, Blair's active involvement in rehabilitative prison programs, the strength of Blair's future plans, and Blair's recent statements indicating remorse and recent acceptance of responsibility for the crime. However, the Governor found these factors were outweighed by the "exceptionally callous" nature of the crime, Blair's prior propensity to senseless violence, his early record of misconduct when in prison, and his changing descriptions of the crime that reflect an unwillingness to accept full responsibility for the crime.

The combination of these factors reasonably supports the Governor's conclusion that parole of Blair would pose an unreasonable risk to the public. The Governor could conclude the offense was aggravated well beyond that inherent in the crime of second degree murder. The Governor could also place greater weight on the several instances of serious misconduct in Blair's early years in prison than that placed by the Board. This is particularly true of the marijuana use violation, which casts doubt on Blair's claims that he has not used alcohol since 1985 and has never used illegal drugs. The evidence revealed that Blair has engaged in senseless violence when he drinks alcohol. Although Blair claimed that the positive drug test was fabricated by corrections officers, the Governor was entitled to decide that this claim was not credible. The combination of the egregious nature of the offense, prior violence, subsequent prison conduct, and lack of full acceptance of responsibility for the crime constitutes "some evidence" to support the Governor's subjective decision that release of Blair at this time would pose a current danger to the public.

In this regard, Blair's reliance on In re Gray (2007) 151 Cal.App.4th 379 is misplaced.^[5] In Gray, unlike here, the "Governor relied solely upon the commitment offense to find [the prisoner] unsuitable for parole." (Id. at p. 402.) Moreover, the Gray court essentially disagreed with the Governor's factual conclusions that the crime was " 'especially heinous' " because "it was carried out 'in a cold and calculated manner,' " and that it was premeditated. (Id. at p. 405.) In doing so, the reviewing court appears to have engaged in reweighing of the evidence, which is contrary to the standards established by the California Supreme Court. (Id. at pp. 405-410.) A court may not vacate a parole decision simply because it disagrees with the Governor's assessment. (Rosenkrantz, supra, 29 Cal.4th at p. 679.) "[T]he 'some-evidence' standard is 'extremely deferential' " and is not the same as conducting an "independent assessment of the merits." (Id. at p. 665.) The Governor's authority to evaluate and consider the circumstances independently is the very foundation of the some-evidence standard of review.

Moreover, in Gray, the court rejected the rule that a parole denial can be properly based on the circumstances that the factual basis of the crime was more egregious than necessary for a second degree murder conviction. As stated in the concurring opinion in In re Viray (2008) 161 Cal.App.4th 1405, 1420 (Viray), the rejection of this rule conflicts with current Supreme Court authority. Under Rosenkrantz, "the Governor can deny parole relying solely on the circumstances of the crime so long as there is 'some evidence'

supporting the finding of egregiousness." (Viray, supra, 161 Cal.App.4th at p. 1420 (conc. opn. of Haller, J.)^[6]

We also reject Blair's argument that the Governor's use of the commitment offense alone constituted a due process violation. First, as we have discussed, the Governor did not rely only on the commitment offense to deny parole. He cited several other relevant and appropriate factors to support his conclusion. Moreover, there is some evidence that Blair committed the murder with premeditation and thus in a manner more egregious than that necessary to be convicted of second degree murder. Under such circumstances, there is no due process violation. (See Rosenkrantz, supra, 29 Cal.4th at p. 683.)

Finally, we reject Blair's argument that the Governor should not be entitled to review credibility determinations made by the Board. Blair argues that we should adopt a rule that "the Governor has no authority to review and reverse the credibility findings of witnesses at [parole] hearings he did not attend . . . ." This proposed rule is inconsistent with the review standard set forth by the California Supreme Court. As our high court has made clear, "[r]esolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor." (Rosenkrantz, supra, 29 Cal.4th at p. 677.) Thus, "[a]lthough the Governor simply review[s] the documents before the Board, he [is] free to make his own credibility determinations. If he [chooses] to disbelieve [the prisoner], we [are] bound by that determination." (In re Tripp (2007) 150 Cal.App.4th 306, 318.) As an intermediate appellate court, we are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In reaching our determinations in this habeas proceeding, we recognize there is disagreement among the Courts of Appeal as to the weight to be given to the circumstances of the commitment offense as opposed to a lengthy period of exemplary behavior once in prison. (See In re Singler, supra, 161 Cal.App.4th 281, 299-300; In re Lee, supra, 143 Cal.App.4th at pp. 1408-1409; In re Bettencourt (2007) 156 Cal.App.4th 780, 799-802; In re Hyde (2007) 154 Cal.App.4th 1200, 1216-1217; In re Scott (2005) 133 Cal.App.4th 573, 594-595; In re Elkins (2006) 144 Cal.App.4th 475, 488-502.)

We further recognize the issue is now pending before the California Supreme Court. (See In re Lawrence (2007) 150 Cal.App.4th 1511, review granted Sept. 19, 2007, S154018; In re Shaputis, review granted Oct. 24, 2007, S155872; In re Cooper (2007) 153 Cal.App.4th 1043, review granted Oct. 24, 2007, S155130; In re Jacobson (2007) 154 Cal.App.4th 849, review granted Dec. 12, 2007, S156416; In re Dannenberg, supra, 156 Cal.App.4th 1387; In re Montgomery, supra, 156 Cal.App.4th 930.) However, until the California Supreme Court provides further direction, we shall follow the directives of its existing decisions. (Dannenberg, supra, 34 Cal.4th 1061; Rosenkrantz, supra, 29 Cal.4th 616.)

DISPOSITION

The petition for writ of habeas corpus denied.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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^[1] This factual summary is derived from the probation report and Blair's testimony at the 2006 Board hearing.

^[2] Blair said that the shotgun was in his trunk because he had offered the gun to a bar owner in Arizona as collateral for a loan to fund the California trip. The owner loaned Blair the money without requiring collateral, and Blair then left the gun in the trunk.

^[3] The mental health evaluation reports were not part of the record designated by the parties in this writ proceeding. We base our summary on the statements made by counsel and the commissioners at the parole hearing.

^[4] All further undesignated section references are to the California Code of Regulations.

^[5] Blair also relies on In re Montgomery (2007) 156 Cal.App.4th 930, review granted February 20, 2008, S159141, and In re Dannenberg (2007) 156 Cal.App.4th 1387, review granted February 13, 2008, S158880. However, after Blair filed his petition, the California Supreme Court granted review in these cases. These cases are therefore no longer citable, and we therefore we do not discuss them.

^[6] We recognize that the Viray majority disagreed with this standard, and that other courts have applied a broader review. (Viray, supra, 161 Cal.App.4th at pp. 1414-1415; see In re Singler (2008) 161 Cal.App.4th 281, 299-301; In re Lee (2006) 143 Cal.App.4th 1400, 1408-1409.) However, this panel agrees with the view expressed in the concurring opinion in Viray, and believes it is for the Supreme Court to direct the judicial branch to undertake greater scrutiny of executive branch decisions if the court believes that to be the correct standard.