In re Fowler























Filed 6/18/13 In re Fowler CA3









NOT TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Yolo)

----






>

In re CHRIS FOWLER on Habeas Corpus.

C070959 (Super. Ct. No. 7841)

Does
insight into one’s past actions require a complete understanding of those
actions, or is remorse and regret over the results of those actions
enough? In this case we consider just
such a conundrum. In November 1983
22-year-old defendant Chris Fowler beat 22-month-old Aaron Miller to
death. Defendant was convicted of murder
in the second degree and sentenced to 15 years to life with a minimum eligible
parole date of December 23, 1993. On November
8, 2010, the Board of Parole Hearings (Board) found defendant
suitable for parole. However, the
Governor reversed the Board’s decision, concluding that if released, defendant
would pose an unreasonable risk to public safety. Defendant filed a petition for href="http://www.fearnotlaw.com/">writ of habeas corpus in the trial court,
which the court denied.

Subsequently,
defendant filed a petition for writ of habeas corpus in this court and we
issued an order to show cause. Defendant
contends there is no evidence supporting the Governor’s stated reasons for
reversing the grant of parole. Cognizant
of the rule that the Governor’s decision need only be supported by a “modicum”
of evidence, we nonetheless conclude the Governor’s decision is not supported
by evidence that defendant will pose an unreasonable risk of danger to society
if released from prison.

FACTUAL AND PROCEDURAL BACKGROUND

The Crime

Defendant and Tina Miller lived
together with Miller’s two children:
22-month-old Aaron and three-year-old Christy. On October
30, 1983, following an evening of trick-or-treating, Miller and
defendant had an argument and stayed up all night drinking and smoking
marijuana.

The next
morning, defendant visited friends and smoked more marijuana. Miller, who had to go to work, left the
children in the care of her cousin. When
Miller left she noted Aaron had a black eye she thought he had received while
playing outside, and an injury to his upper head caused by an accident with a
car door the previous evening.

In the
afternoon defendant returned home and found Miller’s cousin caring for the
children. The two men smoked more
marijuana. Miller’s cousin left, and
defendant put the children to bed for a nap and took a nap himself.

Christy
woke defendant up about 45 minutes later.
Defendant, angry at being awakened, heard Aaron crying and went to his
room. Aaron sat on his bed crying, and
defendant began to yell at him.
Defendant knocked Aaron off the bed with an open hand. Aaron fell to the floor.

Defendant
picked up Aaron and shook him, telling him to be quiet. Aaron continued to cry and defendant
continued to shake him, dropping him on the floor twice. Aaron suddenly became quiet. Defendant later told a detective that “ ‘he
did not want to take care of the child in the first place and wanted to “just
sleep,” he was “so sleepy.” He said he
could not believe he had struck the child.’ ”
Defendant also told the detective he dropped the baby by accident.

Defendant
carried Aaron to the bathroom and placed him in the bathtub. Defendant felt out of control and was afraid
of what he might do. He changed Aaron’s
diaper and took him into the living room.
Defendant noticed Aaron’s skin had turned blue.

Defendant
attempted mouth-to-mouth resuscitation.
He called Miller and told her about Aaron, suggesting the boy might be
having an asthmatic seizure. Against
defendant’s wishes, Miller contacted her mother, a nurse who lived nearby.

Miller’s
mother arrived and found an hysterical Christy and defendant attempting mouth-to-mouth
resuscitation on Aaron. Miller’s mother
took over and began cardiopulmonary resuscitation (CPR). Defendant and Miller’s mother argued about
taking Aaron to the hospital; defendant did not want Miller’s mother to
accompany them. Ultimately, both took
Aaron; defendant drove while Miller’s mother administered CPR.

Because of
the severity of his injuries,
Aaron was transferred to the UC Davis Medical Center. Aaron arrived comatose and was pronounced
neurologically dead two days later. The
cause of death was “ ‘craniocerebral trauma.’ ”

Prior to
his death, the medical center notified the Yolo County Sheriff’s Office about
Aaron’s condition and the doctors’ suspicion that it was the result of child
abuse. Doctors noted Aaron was in
critical condition, having suffered recent trauma to the head and injuries to
his chest and eye, and not expected to live.
The injuries appeared to be recent.

Police
arrested defendant on November 2, 1983.href="#_ftn1" name="_ftnref1" title="">[1] Defendant entered a plea of guilty to href="http://www.fearnotlaw.com/">second degree murder and was subsequently
convicted. He was sentenced to
15 years to life in prison.

Prison Experience

Discipline

During his incarceration,
defendant received three CDCR form 115 disciplinary memos in 1986. He was found guilty of rules violations
involving work performance during work assignment, fraudulent use of the
telephone, and fighting with an inmate.href="#_ftn2" name="_ftnref2" title="">[2] The first two infractions were termed
“administrative,” and the fight incident was over property stolen from
defendant.

Personal
Life

In 1985
defendant married a woman with whom he had been friends since he was
15 years old. They had a daughter
in 1989.

Work
Experience

Defendant
has worked throughout his incarceration.
He worked in the laundry and as a custody clerk, clothing room clerk,
dental lab technician, hobby shop clerk, lead clerk, program administrator’s
clerk, supply clerk, attendance clerk, medical clerk, and in other clerical
positions at the prison.

Education

While
incarcerated, defendant completed numerous educational
programs. He completed an associate
of science degree in psychology in 2010 and received a certificate of
completion in vocational radiology. He
is state certified in landscape maintenance and vector control from the href="http://www.sandiegohealthdirectory.com/">Department of Pesticide
Regulation.href="#_ftn3" name="_ftnref3"
title="">[3] In addition, defendant has numerous small
business certificates from Golden Hill Adult School, including the air
conditioning and refrigeration program and an HIV peer education program.

Self-Help
Programs

In
addition, defendant completed a plethora of self-help programs. Defendant participated in the VOEG
(victim/offender education group) program and the Arts in Corrections music
program, and completed the Katargeo self-help program. He also completed the 12-step Love Lifted Me
recovery program, attended alternatives to violence courses, and participated
in parenting programs. Defendant
completed Breaking Barriers and Pro-Literacy tutor training. He participated in Project Pride, Celebrate
Recovery, the Life Transitions workshop, and the Beyond Anger program, and has
been continuously involved in Alcoholics Anonymous and Narcotics Anonymous
since 1994.

Defendant
participated in numerous other self-help programs from 1984 to the
present. Defendant stated: “I have attended every anger management,
conflict resolution, alternative to violence or parenting class ever offered at
any prison I have been housed in.”

Psychological
Programs and Evaluations

As for participation in
psychological programs, defendant completed the “Category ‘X’
program.” In 1987 and 1990 Category X
reports diagnosed defendant with “Amphetamine and Cannabis Abuse, in
institutional remission.” The 1990
report added a diagnosis of “Impulse Control Disorder.”

A 1994
Category X evaluation report diagnosed defendant with “Intermittent Explosive
Disorder,” “Polysubstance Abuse (Methamphetamine, Alcohol and Canabis [>sic] Abuse, in institutional remission,”
and “Personality Disorder NOS” and recommended he continue in substance abuse
groups, self-esteem groups, groups for men who have murdered children, and any
individual therapy to help him break through his denial and address his crime.

In 1997 a
psychological evaluation prepared for the Board of Prison Terms noted that a
previous report found defendant had “ ‘matured significantly over the past ten
years and that he posed [sic] no
significant mental disorder which would preclude his being released to the
community.’ ”

The
psychologist found defendant courteous and cooperative, and noted: “ ‘In discussing the offense, he
responded intellectually by enumerating the various antecedents which
contributed to the offense which included an array of psychological
mechanisms. He explained that he had a
big argument with the victim’s mother the day before and that his job had been
terminated . . . . He stated that he had
spent the previous evening snorting methamphetamine and was awake all night
until the next day. When it was
suggested to him that his offense was the result of his own selfish desire to
be unencumbered and his feelings of anger at being awakened to attend to the
two-year-old victim, he became quite emotional while tearfully admitting to
these feelings. He went on to express
his guilt and remorse and noted that he thinks about the crime on a daily
basis.’ ”

A 2004 href="http://www.sandiegohealthdirectory.com/">psychological assessment
noted that since the Category X report defendant had participated in anger
management groups, individual therapy, and group therapy. In 1997 and 1998 defendant sought help in
dealing with his troubled feelings. The
report found defendant had learned to utilize treatment and, unlike his
behavior prior to the murder, did not hesitate to ask for help when needed.

The
psychologist who performed the 2004 assessment concluded: “In my opinion, Mr. Fowler’s level of risk of
re-offense is very low. . . . Mr. Fowler
has matured considerably since the time of the crime, he has engaged in ongoing
introspective processes with measurable changes in the troubling personality
features that contributed to the offense. . . .
He is genuinely remorseful for the offense and he is committed to
substance abuse/dependency recovery.”

In 2007 a
psychological evaluation noted defendant acknowledged his crime and accepted
full responsibility for his actions.
Defendant stated “he [did] not have a total understanding of why he committed
what he characterize[d] as a horrible crime.”
Defendant knew his use of drugs, his lack of understanding of his own
emotions, and his inability to express himself well contributed to the crime. The evaluation found defendant posed a low
likelihood of recidivism.

Following
several decisions denying defendant parole, the Board in 2009 again denied
parole. The Board noted a great deal of
concern about defendant’s insight into the crime. The Board noted defendant did not have “a
reasonable answer or any answer as to why you did this . . . and did not get
the sense that you’ve done the kind of insightful deep work that it takes. It has nothing to do with tears, not having
tears or having tears. It has to do with
the depth of your comments. And we felt
that a number of your comments were very superficial.”

In a 2010
comprehensive risk assessment, the psychologist, Dr. Michael Venard, noted
prior concerns about defendant’s inability to recognize his emotions and manage
his anger. However, Dr. Venard’s
interview with defendant revealed what appeared to be a genuine sense of
remorse. Defendant expressed sadness and
shame for his actions, articulating an awareness of why Aaron’s family would
harbor anger and resentment. According
to Dr. Venard, “His expressions of remorse went beyond the cost to himself or
simply toward the victim, suggesting he does appreciate the magnitude of his
actions and the impact of the life crime on others who continue to live with
the ramifications of that incident. His
account of the life crime suggests he has moved beyond blaming or avoidance and
has come to terms with his own role in the death of the victim.”

Defendant
also provided an explanation of the motivation for the murder but stated he was
not trying to excuse his actions. Venard
notes: “He cited previously noted
emotional repression and irritability, coupled with sleep loss and an
inability/ unwillingness to recognize the extent of his past anger problems. .
. . He described feeling a mixture of
guilt, anger and sadness when he went to sleep prior to the life crime, saying
he had felt ‘trapped’ by his life circumstances. Mr. Fowler said these feelings all merged
into the rage he exhibited toward the victim when he could not stop the child
from crying.”

Board’s Grant of Parole

In November 2010 the Board held
another parole hearing. The Board asked
defendant how he currently felt about Aaron’s death. Defendant answered: “I feel terrible, Sir.” When asked why he murdered Aaron, defendant
responded: “I had . . . a problem with
chronic inattentiveness to my own emotions.
I wasn’t in touch with them.
There were many, many factors in play that day, and all of them were my
responsibility. They were my fault.”

Defendant
took full responsibility for his actions and stated he had been under the
influence of marijuana. He stated he had
also used methamphetamine the night before the murder. The day of the murder he was sleep deprived and
frustrated. He described the person he
was in 1983 as “a mess . . . an overwhelmed, immature person,” unable to take
responsibility for his actions.
Defendant’s substance abuse problems led him to make bad decisions. In 1983 he was “living the selfish life of an
addict.” Defendant stated he had no
desire to return to the kind of person he was in 1983 or to relieve his
feelings by turning to drugs.

The Board
reviewed the type of community work defendant would like to do if he were
released from prison, as well as the education and self-help programs he had
completed while incarcerated. In
addition, the Board noted several letters of support for defendant’s parole,
and his family’s willingness to support him and house him should he be
released.

The Board
concluded defendant was suitable for parole and would not pose an unreasonable
risk of danger to society if released from prison. In granting parole, the Board considered the
fact that defendant’s crime was particularly disturbing, troubling, and
offensive. However, the Board also noted
defendant’s lack of a prior criminal history.

The Board
went into detail on the issue of defendant’s remorse for the murder of Aaron,
stating it believed “you indicate you show a true understanding of the nature
and magnitude of the commitment offense with respect to remorse, and that’s
based on the psychological report. . . .
You show that you have insight into the causative factors of your
conduct.”

In support,
the Board referred to the psychological report by Dr. Venard, which stated
defendant had “learned to use more positive self-talk, a cognitive treatment
technique, meditation, and peer support to help validate or challenge his
feelings when he’s under stress. And
then he cited remorse over the life crime as the single most painful emotion he
addressed. He says he has struggled to
learn to live with this emotion without becoming overwhelmed by negative
emotions that could undermine his ability to remain focused on positive
objectives. And as he discussed these
aspects of his life, Mr. Fowler expressed an adequate degree of awareness
regarding his past inability to recognize emotions, and an inability and
unwillingness to manage the anger that was easily triggered because of his
already poor self-image.” The Board also
cited Dr. Venard’s summary of prior psychological evaluations as supportive
of a finding that defendant appreciates the magnitude of his actions, has moved
beyond blaming or avoidance, and has come to terms with his role in Aaron’s
death.

The Board
noted defendant had previously been denied parole based on a lack of insight. The Board concluded: “That has been sufficiently addressed here
with this hearing here today.”

The Governor’s Decision

In April
2011 the Governor reversed the Board’s grant of parole. The Governor acknowledged defendant’s efforts
to improve himself while incarcerated, as well as his volunteer
activities. However, the Governor found
these positive aspects of defendant’s incarceration outweighed by negative
factors demonstrating defendant’s unsuitability for parole.

The
Governor described the murder of Aaron as appalling and senseless, noting that
the baby was the most vulnerable and helpless of victims. According to the Governor, defendant attacked
Aaron for “inexplicable reasons.”

The
Governor concluded: “When I look at this
killing, I find that Mr. Fowler has offered no credible explanation. He says that he was experiencing stress and
anger in his relationship with Aaron’s mother, and difficulty in sleeping. So what.
Any parent or person who cares for a baby encounters sleep difficulties
as a matter of course. And
relationship-related stress and anger do not explain and certainly do not
justify Mr. Fowler’s violation and killing of this defenseless child. The utter inhumanity of Mr. Fowler’s
crime coupled with his inability or unwillingness to understand, own, or
achieve some credible level of insight tells me that there is substantial risk
of danger to the public were he to be released from prison.” Accordingly, the Governor found defendant
currently poses a danger to society if released from prison.

Petition for Writ of Habeas Corpus

Defendant
filed a petition for a writ of habeas
corpus in the trial court. The trial
court denied the petition, stating: “The
conclusions articulated by the Governor are sufficiently supported by some
evidence that the petitioner continues represents [sic] an unreasonable threat to public safety.” Subsequently, defendant filed a petition for
a writ of habeas corpus in this court.
We issued an alternative writ.

DISCUSSION

I.

It is
within the power of the Legislature to mandate that persons who commit heinous
crimes serve the remainder of their lives in confinement, without possibility
of parole, and the Legislature has so provided with respect to certain categories
of murder in the first degree. (Pen.
Code, § 190.2.) As to other deadly offenses, including second
degree murder, the Legislature has recognized the possibility of redemption and
the ability of even a murderer to reintegrate into society as a constructive
citizen. Though a defendant may be
sentenced to life imprisonment, the Penal Code regulations promulgated
thereunder do not presuppose that such a sentence will be carried through to
completion. To the contrary, one year
before the prisoner’s minimum eligible parole date, a Board panel that meets
with the inmate “shall normally set a parole release date,” and shall do so “in
a manner that will provide uniform terms for offenses of similar gravity and
magnitude with respect to their threat to the public.” (Pen. Code, § 3041,
subd. (a).) A parole release date
shall be set unless the Board determines 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.” (Pen. Code, § 3041, subd. (b).)

Few crimes
are more horrendous than the death of an infant at the hands of an irate adult
venting anger provoked by childish
behavior. No victims are more
innocent, no death so consequential as the murder of a young child. The Legislature could mandate that murder
under such circumstances should be punished by life without the possibility of
parole. It has not. Penal Code section 3041 and the regulations
promulgated thereunder make the circumstances of the offense pertinent only
insofar as they inform regarding the inmate’s threat to public safety. Revulsion at a defendant’s actions, standing
alone, does not provide a basis for the Board, the Governor, or the courts to
deny parole to an otherwise eligible inmate.

Under Board
regulations the panel must determine whether the inmate is suitable for parole
regardless of the length of time served.
A life prisoner will be denied parole if the panel determines the inmate
will pose an unreasonable risk of danger to society if released from state
prison. (Cal. Code Regs., tit. 15, §
2402, subd. (a).) A parole date set
under the regulations “shall be set in a manner that provides uniform terms for
offenses of similar gravity and magnitude with respect to the threat to the
public.” (Id. at § 2401.)

The Board
considers six factors tending to show an unsuitability for parole: (1) commission of the offense in an
especially heinous, atrocious, or cruel manner; (2) a previous history of
violence; (3) an unstable social history; (4) prior sadistic sexual offenses;
(5) a lengthy history of mental problems; and (6) serious misconduct in prison
or jail. (Cal. Code Regs., tit. 15, §
2402, subd. (c).)

Alternatively,
the Board considers nine factors evincing a suitability for parole: (1) the absence of a juvenile record; (2) a
history of reasonably stable social relationships; (3) tangible signs of
remorse; (4) the commission of the crime resulted from significant stress,
especially if the stress built over a long period of time; (5) battered woman
syndrome; (6) lack of a history of violent crime; (7) increased age, which
reduces the possibility of recidivism; (8) marketable skills or a reasonable
plan for the future; and (9) responsible institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd.
(d).)

The Board
exercises its discretion in determining the importance of these factors. (Cal. Code Regs., tit. 15, § 2402, subds.
(c), (d).) In reviewing the Board’s
parole decision, the court considers only whether some evidence in the record
supports the decision based on the factors specified in the statute.

The Board’s
parole decision is subject to review by the Governor. “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.” (Cal.
Const., art. V, § 8, subd. (b); see Pen. Code, § 3041.2.) The Governor must give individual
consideration to the prospective parolee and consider all relevant statutory
factors related to the inmate’s postconviction behavior and
rehabilitation. (In re Lawrence (2008) 44 Cal.4th 1181, 1219 (Lawrence).)

Our review
of the Governor’s decision is conducted under the highly deferential “some
evidence” standard. We uphold the
Governor’s decision unless it is arbitrary or procedurally flawed. We review the entire record to determine
whether a modicum of evidence supports the decision. We do not ask whether the defendant is
currently dangerous; that question is reserved for the executive branch. Instead, we consider whether there is a
rational nexus between the evidence and the Governor’s ultimate determination
of current dangerousness. We do not
reweigh the evidence. (>In re Shaputis (2011) 53 Cal.4th 192,
221 (Shaputis II).)

We review
the Governor’s decision to ensure that it satisfies two due process
imperatives. First, we determine whether
the Governor’s decision reflects due consideration of all statutory factors,
and secondly, if it does, whether the analysis is supported by a modicum of
evidence in the record, not mere guesswork, that is rationally indicative of
current dangerousness. (>In re Young (2012) 204 Cal.App.4th 288, 304.)

II.

In
reversing the Board’s grant of parole to defendant, the Governor focused on two
factors: “The utter inhumanity of Mr.
Fowler’s crime coupled with his inability or unwillingness to understand, own,
or achieve some credible level of insight.” These two factors, the Governor concluded,
rendered defendant’s release a substantial risk to public safety.

III.

The
Governor described the murder of Aaron as appalling and senseless. The Governor noted defendant berated the
child, hitting Aaron so hard he fell to the floor and went limp. Even after seeing he had injured Aaron,
defendant kept attacking the baby, picking him up and throwing him to the floor
again, causing Aaron to hit his head.
Defendant’s brutality caused Aaron to go into a seizure. The Governor concludes that defendant “chose
to unleash his rage on the most vulnerable and helpless of victims. Baby Aaron could not run from the
attack. Nor could he defend himself in
any way. And Mr. Fowler attacked baby
Aaron for inexplicable reasons.”

One of the
factors suggesting unsuitability for parole is that the murder was committed
“in an especially heinous, atrocious or cruel manner.” (Cal. Code Regs., tit. 15, § 2402, subd.
(c)(1).) The elements to be considered
in assessing the gravity of the commitment offense 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 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.” (Ibid.)

We cannot
take exception with the Governor’s observation about the “utter inhumanity” of
defendant’s criminal act. Humanity is
necessarily lacking in all murders that, by definition, involve callousness,
some lack of emotion or sympathy, emotional insensitivity, and indifference to
the feelings and suffering of others. (>In re Lee (2006) 143 Cal.App.4th
1400, 1410.) The murder of a child is
especially depraved.

Even
attributing heinousness to the crime, this event alone as a static, historic
fact is not a basis for parole denial unless there is an evidence-based
rational nexus between the offense and present behavior. Something about the crime must interrelate
with other dynamic factors to make it relevant to defendant’s current
dangerousness. (Coronel, supra, 210
Cal.App.4th at pp. 1243-1244.)

Here, the
Governor’s invocation of the horrific manner of Aaron’s death hinges on the
“inexplicable reasons” for defendant’s attack on the baby and defendant’s lack
of a “credible explanation.” These
observations implicate the Governor’s second basis for the denial of
parole: lack of insight into the
murder. We examine this factor in some
detail.

IV.

The Supreme
Court has expressly recognized that the presence or absence of insight is a
significant factor in determining whether there is a “rational nexus” between
the inmate’s dangerous past behavior and the threat the inmate currently poses
to public safety. However, the court also
noted, lack of insight, like any other parole unsuitability factor, supports a
denial of parole only if it is rationally indicative of the inmate’s current
dangerousness. (Shaputis II, supra, 53 Cal.4th at pp. 218-219.)

Although a
defendant’s insufficient understanding of the causes of his crime is a factor
that may show him unsuitable for parole, it is not enough to establish that his
insight is deficient in some specific way.
(In re Morganti (2012) 204
Cal.App.4th 904, 923 (Morganti).) “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 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.’
[Citation.]” (>Lawrence, supra, 44 Cal.4th at
p. 1211.) Not only must there be
some evidence to support the Governor’s factual findings, there must be some
connection between those findings and the conclusion that the defendant is
currently dangerous. (>Morganti, supra, 204 Cal.App.4th at p. 923.)

The
Governor found defendant lacked insight because he “offered no credible
explanation” as to why he reacted so brutally against defenseless Aaron. According to the Governor, “Other than the
fact that Fowler was tired and stressed from relationship problems, and that he
had been awake all night because he used methamphetamines the day before,
Fowler has not articulated how he could lose control and act on his rage toward
baby Aaron in the manner that he did.”

The
Governor cites defendant’s statement at the November 2010 hearing that he had a
“ ‘problem with chronic inattentiveness’ ” and that “ ‘[t]here were many, many
factors in play that day, and all of them were my responsibility.’ ” The Governor faults defendant for failing to
identify these factors. Defendant also
stated he should be released from jail because he “truly addressed the issues
that brought [him] here.” The Governor
again faults defendant for failing to identify those issues, other than to
“regurgitate the usual excuse that he was addicted, insecure, and felt
inadequate.” The Governor also
criticizes defendant’s “general” response when asked for specific examples of
how he had impacted Aaron’s family.
Defendant responded, “there isn’t any part of the life of Aaron’s family
that has not been impacted by the crime that I committed.” Finally, when asked where the anger that
caused him to beat Aaron to death had come from, defendant responded, “[t]he
anger came from the frustration of the many factors that were in play during
that particular time.” The Governor
takes issue with defendant’s failure to identify those factors.

After
reviewing the entire record we find no evidence, not in the psychological
evaluations nor in defendant’s statements to the Board nor in defendant’s
conduct in prison, indicating that defendant lacks insight into his actions the
night of the murder. Nothing in the
record indicates defendant fails to appreciate his own responsibility for
Aaron’s death.

To the
contrary, in the 2010 psychological evaluation, Dr. Venard concluded
defendant’s insight into his past emotional instability “is appropriately
developed and has been incorporated into his daily behavioral/social
choices.” Further, defendant’s account
of the murder “suggests he has moved beyond blaming or avoidance and has come
to terms with his own role in the death of the victim.” Dr. Venard concluded defendant presented
a relatively low risk for violence.

In 2007 a
psychologist found defendant demonstrated adequate insight and posed a low
likelihood of reoffending if released.
The psychological assessment in 2004 found defendant’s risk factors had
been significantly reduced. Defendant
had matured considerably and had engaged in “ongoing introspective processes
with measurable changes in the troubling personality features that contributed
to the offense.” The psychologist
observed, “He is genuinely remorseful for the offense” and determined
defendant’s risk of reoffense was very low.

During his
parole hearing, defendant took full responsibility for his actions the night of
the murder and expressed remorse over Aaron’s death. After stating many factors had been in play
the day of the murder, defendant pointed to his use of marijuana and
methamphetamine. Defendant also
described himself as sleep deprived and frustrated the day of the murder. At the time of the murder, defendant
characterized himself as an overwhelmed, immature person, unable to take
responsibility for his actions.

Given the
record before us, it appears the Governor’s concern is not the absence of
defendant’s insight, but the sufficiency of his understanding of his actions in
killing Aaron. The Governor states he
“was concerned with Fowler’s present mindset regarding his criminal
actions. While he professed to accept
responsibility, Fowler’s justification for the murder fails to show an adequate
level of insight or understanding.”

However, as
other courts have noted, it is questionable whether anyone can ever fully
comprehend the myriad circumstances, feelings, and forces that motivate
conduct, let alone misconduct. (>In re Ryner (2011) 196 Cal.App.4th 533,
548 (Ryner).) As the court in Morganti explained, “we question whether anyone can ever adequately
articulate the complexity and consequences of past misconduct and atone for it
to the satisfaction of everyone.” (>Morganti, supra, 204 Cal.App.4th at p. 925.)
Expressions of insight and remorse vary from defendant to defendant, and
there is no special formula for a defendant to articulate in order to establish
that he has gained insight into his crime.
(In re Shaputis (2008) 44
Cal.4th 1241, 1260, fn. 18; Shaputis II,
supra, 53 Cal.4th at p. 219,
fn. 12.)

Regardless of the sufficiency of
defendant’s insight and understanding, the question is whether defendant
constitutes a current threat to public safety.
There must be a connection between any lack of insight on defendant’s
part and the Governor’s conclusion that he is currently dangerous. (Morganti,
supra, 204 Cal.App.4th at p. 923; >Lawrence, supra, 44 Cal.4th at p. 1212; Coronel,
supra, 210 Cal.App.4th at p. 1248.)

Our review
of the record reveals no evidence connecting any arguable lack of insight to
the conclusion that defendant would present a risk to public safety if released
on parole. Defendant’s positive behavior
in prison, his lengthy participation in seemingly every available rehabilitative
program and volunteer program while incarcerated, and his statements to
psychologists and the Board do not establish any likelihood defendant would
pose a risk to public safety if released on parole. In addition, none of the psychologists who
evaluated defendant believed he posed such a risk.

We are
mindful that the “some evidence” standard is extremely deferential, that we
must examine the record in the light most favorable to the Governor’s
determination, and that only a modicum of evidence is necessary to support the
determination. (Lawrence, supra, 44
Cal.4th at p. 1213.) However, a
determination that a defendant is currently dangerous because he lacks insight
cannot be predicated on a hunch or intuition.
(Id. at p. 1213.)

Where, as
here, a review of the record reveals that a defendant has acknowledged the
material aspects of his or her conduct and crime, shown an understanding of its
causes, and demonstrated remorse, the Governor’s “mere refusal to accept such
evidence is not itself a rational or sufficient basis upon which to conclude
that the inmate lacks insight, let alone that he or she remains currently
dangerous.” (Ryner, supra,
196 Cal.App.4th at p. 549.)

When the
basis for the Governor’s determination lacks any evidentiary support and
conflicts with the evidence in the entire record, it is arbitrary and
capricious. It is not rational. Here, the record supports the Board’s finding
that there is no evidence defendant lacks insight and understanding of his
murder of Aaron which renders him a danger to public safety if released. The record does not establish a link between
any alleged lack of insight and the conclusion that defendant is currently
dangerous. (In re Pugh (2012) 205 Cal.App.4th 260, 275 (Pugh).)

V.

As we noted
in Pugh, supra, 205 Cal.App.4th 260, “[s]everal Courts of Appeal, including
this court [citation], have concluded that the proper remedy when vacating the
governor’s parole decision is to reinstate the Board’s grant of parole and
require the inmate to be paroled in accordance with the reinstated Board
decision. [Citations.] We agree with the reasoning of these cases,
and we adhere to their approach.” (>Id. at p. 276.) Accordingly, as in Pugh, we conclude the proper remedy in this case is to reinstate
the Board’s 2010 decision and require defendant be granted parole on terms and
conditions consistent with the Board’s 2010 decision.

DISPOSITION

The
Governor’s decision reversing the Board’s November 8, 2010, decision granting
defendant parole is vacated and the Board’s parole release order is reinstated.





RAYE , P. J.





We concur:





NICHOLSON , J.





BUTZ ,
J.