In re Reyes





Filed 5/20/11 In re Reyes CA6



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT

In re EFRAIN REYES, on Habeas Corpus.

H035986 (Santa Clara County Super. Ct. No. 101413)

I. INTRODUCTION
After killing his wife, Laura Reyes, with a single gunshot to the head in 1985, petitioner Efrain Reyes was convicted of second degree murder with a gun enhancement. He is presently serving a sentence of 15 years to life.
Following a parole hearing held on July 27, 2009, the Board of Parole Hearings (the Board) found that Reyes was suitable for parole because he would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Governor Arnold Schwarzenegger disagreed and on December 23, 2009, reversed the Board’s decision to grant parole.
Reyes challenged the Governor’s decision by filing a petition for a writ of habeas corpus in the superior court. On August 24, 2010, the superior court granted the habeas corpus petition and reinstated the Board’s decision to grant parole. On appeal, the Acting Warden, Kathleen Dickinson (the Warden) contends that the superior court erred because the Governor’s decision is supported by some evidence that Reyes’s release on parole would “pose an unreasonable risk of danger to society at this time.”
We stayed the superior court’s order pending appeal. For the reasons stated below, we conclude that some evidence supports the Governor’s decision under the standard of review established by the California Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), and recently reaffirmed in In re Prather (2010) 50 Cal.4th 238 (Prather). Therefore, we will reverse the superior court’s order.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Social History
Reyes was born in Mexico in 1955. He grew up in San Jose, California with two younger brothers and a younger sister. One of his younger brothers drowned when Reyes was 17 years old. Reyes dropped out of high school, returned to graduate in 1976, and subsequently completed a vocational program in electronics. His employment history includes working as an assembler at Ford Motor Company and IBM. During the six years preceding the 1985 commitment offense, Reyes was employed at Hewlett Packard as an electronics technician.
Reyes began a relationship with the victim of his commitment offense, Laura Reyes, when they were both teenagers. Laura became pregnant when she was 17 years old. Reyes felt obligated to marry her and they subsequently had six children. During the marriage, Reyes had “a significant drug and alcohol problem.” He also physically abused Laura by beating her many times. When Laura attempted to leave the marriage on two occasions, Reyes became severely depressed.
Although Reyes’s father was abusive, Reyes has maintained contact with both of his parents. He also has contact with his six children and with his relatives in Mexico.
B. Criminal History
Reyes admits that he had two juvenile adjudications for petty theft. As an adult, he was convicted in 1975 of being under the influence of a controlled substance and possession of a hypodermic needle. He subsequently assaulted his father-in-law with a tire iron and was convicted of assault with a deadly weapon in 1977. As a result of the 1977 conviction, Reyes was committed to the California Medical Facility for a diagnostic evaluation. He was confined for 270 days and placed on four years probation. Additionally, although Reyes was arrested on suspicion of burglary in 1977, no charges were filed.
C. The Commitment Offense
Reyes murdered his wife, Laura Reyes, on May 28, 1985, when he was 29 years old. He described the circumstances of the commitment offense during the July 27, 2009 Board hearing as follows.
During the month preceding the May 28, 1985 murder, Reyes was off work because he was recovering from eye surgery. At the time, he was “using a lot of crank and a lot of marijuana” as well as using codeine and drinking. The day of the murder was Reyes’s first day back at work. He used methamphetamine at lunch time and started drinking Jack Daniels at 3:00 p.m.
On his way home from work, Reyes bought and drank beer. When he arrived home, he had something to eat and then worked in the garage on go-carts and minibikes with Laura and his oldest sons. When Laura told him that creditors had called, they started arguing. Later that evening, Reyes continued to drink while watching television. As he did so, he “remembered that the shotgun was in the back bedroom.” Reyes became afraid that Laura would get the shotgun and kill him, so he went to the bedroom and took the shotgun from the top shelf in the closet. After determining that Laura had not seen him take the shotgun, Reyes put the shotgun under the sofa and resumed watching television.
Reyes recalled the next sequence of events as follows: “I went to the bedroom and she came out of the bathroom and she threw me against the bed and she started running out towards the front room, to the front door, and I ran after her, and as she was opening the door, I slammed it shut and we started wrestling in the living room, and when she fell, her hand went towards the sofa, and at that instant my mind, it came into mind that the gun is there, and that’s when I grabbed it, and we started arguing, and I pointed the gun. I didn’t think that I was pointing it at her, and--but it’s obvious that I was, and I saw a fire come out of the gun, but it didn’t trigger in my mind that it had gone off, I just saw fire, and then a couple of seconds later I heard a muffled boom, and I looked at her, but her head was like this, so I only saw the top of her head, and her eye was closed, and I called her, and she wouldn’t move, and I called her again, and I’m thinking, oh, she’s just faking it to scare me, but I bent down, and that’s wh[en] I saw what had happened, and I raced--at that instant I heard my kids crying, and I told them to stay back, and I ran to the telephone, and I called 911.”
Reyes also stated, “I pulled the trigger. I don’t remember even pulling the trigger, but it’s obvious that I did, and I think that when I went down like that, this hand, instead of going with the gun, it stayed, and as I pulled the gun, it just pushed back the trigger.” However, Reyes maintained that he did not intend to kill Laura.
According to a 1986 summary of the San Jose Police Department report regarding the incident, the police officers who arrived on the scene after the shooting described a major head injury to Laura, with a large quantity of blood, brain matter, and tooth fragments found on the floor and walls of the living room. The officers also found the couple’s six young children in the back bedrooms of the house. Reyes told the police officers that he had been drinking and taking methamphetamine earlier in the day, that he and Laura had an argument, and as a result of the argument he pushed her down and struck her in the leg with a loose brick from the fireplace. He was fearful that Laura would leave him again and take the children, and told her, “[Y]ou’re not going to do this to me no more. They’re my kids too. If you leave, we both might as well be dead.” Reyes admitted to the police officers that he had pointed the shotgun at Laura and “shoved it towards her head.” He claimed that the gun had accidentally discharged when it hit the floor.
Reyes was subsequently convicted of second degree murder with a gun enhancement (Pen. Code, § 187) and received a sentence of 15 years to life.
D. Conduct While Incarcerated
Following his conviction, Reyes entered state prison on May 28, 1986. Due to severe depression, he was initially incarcerated at Atascadero State Hospital and then treated at the California Medical Facility. Reyes has been classified in the general prison population since 2007.
Reyes’s history of prison discipline during his 23 years of incarceration includes two CDC 115 reports of serious rule violations and six CDC 128 reports of minor administrative rule violations.[1] The serious rule violations include theft of butane lighters from the canteen in 1992 and possession of an altered radio, a circuit board and other electronic equipment in 2000. The minor rule violations include theft of yard ducats from the canteen store (1991; Reyes not found guilty, all inmates working at the store were disciplined due to the missing ducats), failure to report to clinic (1994 and 1997), refusal to work (1998), absent from job assignment (1999); and failure to report for a mandatory TABE test[2] (2006).
Reyes’s prison programming has included participation in several self-help programs, including Alcoholics Anonymous for 23 years, the Long-term Commitment group for three or four years, and the Alternatives to Violence Program, as well as completion of the Breaking Barriers and Anger Management program and the Breaking Barriers in Money Management program. Early in his incarceration, Reyes participated in a two-year substance abuse program at Atascadero State Hospital.
Educational and vocational programming has included Reyes’s completion of or participation in programs for office services, computer technology, horticulture, bookkeeping, and accounting. While in prison, Reyes has been employed as a clerk, a cook and in marketing. Most recently, he has worked as a records clerk in the Visually Impaired Program. His supervisors have all rated his job performance as above average to exceptional.
E. Psychological Evaluation
During the July 27, 2009 Board hearing, the Board considered the comprehensive risk assessment dated May 4, 2009, that was prepared by Lisa Kalich, Psy.D. Dr. Kalich assessed Reyes’s future risk of violence in the community after weighing the data she had obtained from interviewing Reyes, reviewing his records, and utilizing three assessment tools. The results of the assessment tools placed Reyes in the low range for psychopathy, the low to moderate category for violent recidivism, and the low risk category for general recidivism.
Additionally, Dr. Kalich found that Reyes had “taken considerable steps to address his severe drug and alcohol addiction. For the past 23 years, he has consistently attended NA/AA meetings and is committed to maintaining his sobriety in the community.” She also found that Reyes “has a realistic assessment of his need to refrain from all alcohol use and appeared to offer an honest portrayal of the extent of his use. Though it may be somewhat unrealistic that Mr. Reyes would not be tempted to use drugs and alcohol again, it is very encouraging that he understands the risk of vulnerability to relapse and plans to attend treatment consistently.”
Regarding insight, Dr. Kalich determined that “Mr. Reyes has good insight into the issues which led to his physical abuse of his wife and the life crime. These are discussed in more detail in the Relationship History section of this report.” In that section, Dr. Kalich quoted Reyes’s statement that “ ‘[a]busing Laura just came so naturally,’ as he had witnessed domestic violence between his parents.” Dr. Kalich also noted that Mr. Reyes described himself at the time of the life crime as “ ‘controlling,’ ‘short-tempered,’ and ‘a very dependent person.’ ” Reyes also told Dr. Kalich that “ ‘I was unhappy. I felt empty. I was blessed . . . but had a spiritual void inside of me. . . . I couldn’t live life on life’s terms.’ ”
As to Reyes’s expressions of remorse for the crime and the impact on his children, Dr. Kalich found that his “expressions of remorse, both in the current interview and in previous reports, seem genuine, particularly in light of his commitment to improve himself and to understand further the events of that day.” She noted, however, that “[i]n the past, Mr. Reyes has not always assumed responsibility for his role in the life crime. He has minimized the shooting by stating that it was an accident. Currently, after viewing the autopsy report, he has accepted that he did shoot his wife at close range. However, he continues to maintain that he has no memory of shooting his wife . . . . Clearly, Mr. Reyes has made significant progress in assuming full responsibility, however it continues to be difficult for him to accept that he may have, albeit momentarily, intended the result of his actions.”
As to Reyes’s mental health, Dr. Kalich reported that while Reyes was no longer undergoing treatment or prescribed medication for depression, he lacked “some insight into his depression. He identified as ‘emotional’ depression rather than mental, and does not appear to understand that depressive feelings often have a psychological and biological basis.” Dr. Kalich further stated, “It will be important for Mr. Reyes to have a good understanding of his depressive condition, to be able to recognize the early symptoms of depression, and to be willing to seek treatment if necessary.”
Finally, Dr. Kalich reported that Reyes’s risk for violence in the community would be likely to increase if he returned to using drugs and alcohol, became involved with an antisocial peer group, became homeless, lacked sufficient income to meet his living expenses, and/or lacked social support in the community. Conversely, his risk for violence in the community would decrease if he remained drug and alcohol free, sought substance abuse treatment in the community, developed “added insight into his depression,” continued to “utilize appropriate coping strategies,” sought out positive social relationships, and maintained a steady source of income.
Based on her consideration of “all of the data from the available records, the clinical interview, and the risk assessment data,” Dr. Kalich concluded that “it appears that Mr. Reyes presents a low risk of violence in the free community.”
F. Parole Plans
Reyes is subject to an active Immigration and Naturalization Service (INS) hold. If Reyes is deported to Mexico following his release on parole, his plans include living with a relative in his home state in Mexico and working in a retail store catering to tourists. There are AA and NA groups in the area of Mexico where he intends to live.
If Reyes is able to remain in San Jose, California, he will live in a six-month Salvation Army transitional drug and alcohol rehabilitation program. He has offers to live with his fiancée in Albuquerque, New Mexico and his eldest son in San Jose. His son will provide transportation to AA and NA meetings, job interviews, and Reyes’s place of employment. Reyes’s father has saved $3,000 to help him begin his life outside prison and his son is willing to provide Reyes with another $5,000.

G. The Board Hearing and Decision
After concluding the July 29, 2009 parole hearing, the Board announced its decision that Reyes was suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison.
In its decision, the Board stated that the commitment offense was “particularly troubling, offensive and disturbing” and there were other circumstances that tended to show that Reyes was unsuitable for parole, including his criminal history, unstable social history, heavy use of drugs, and past lack of insight. However, the Board determined that the “positive aspects” of his case “heavily outweighed” the parole unsuitability factors.
The factors that the Board found to show Reyes’s suitability for parole included significant stress in his life at the time of the commitment offense that had built up over a long period (including financial difficulties, drug use, and raising a large family), his genuine showing of remorse, his demonstration to the Board that he had a sincere understanding of the nature and magnitude of the commitment offense, and at least two prior psychological evaluations that rated him at a low risk for future violence.
The Board also considered Reyes’s participation in activities that indicated an enhanced ability to function within the law upon release, including his consistent assignments in vocational programs or work assignments, the above average or exceptional reports by his supervisors, his work ethic, his completion of two vocational programs, and his participation in a number of self-help programs. Other factors tending to show suitability for parole, according to the Board, included the psychological assessments indicating that Reyes was terminated from the Mental Health Services Delivery System in 2007 and his depression was in remission.
Additionally, the Board found that Reyes’s record of prison discipline during his 23 years of incarceration consisted of only two CDC 115 reports of serious rule violations and five CDC 128 reports of minor administrative rule violations, with the last report being a CDC 128 in 1999.
As to parole plans, the Board found that Reyes’s parole plans were realistic and included social support from his family, as well as arrangements to continue substance abuse programming. Other circumstances that weighed in Reyes’s favor were his “lack of assaultive history as a juvenile” and his age of 54.
Addressing Reyes, the Board concluded that “there are some things about you that concern us, but you have managed over the years of your incarceration to erase the negatives and turn those negatives into a positive.”
H. The Governor’s Decision
In his decision dated December 23, 2009, the Governor reversed the Board’s decision to grant Reyes release on parole. The Governor concluded that Reyes’s release from prison would “pose an unreasonable risk of danger to society at this time,” based on the (1) the circumstances of the commitment offense; (2) Reyes’s lack of insight into the circumstances surrounding the commitment offense; (3) his history of prison discipline; and (4) the current and past mental health evaluations.
The Governor found that the commitment offense was “especially atrocious” due to Reyes’s special relationship of trust and confidence with the victim, whom he “abused and defiled”; his exceptionally callous disregard for human life and suffering; and the “exceedingly trivial” motive in relationship to the magnitude of the crime.
Regarding lack of insight, the Governor determined that “although Reyes says he is remorseful for his crime and despite all of his participation in therapy and other programs in prison, he has still failed to obtain insight into the life offense or accept full responsibility for his violent behavior.” This determination was based upon the Governor’s finding that Reyes minimized his actions when he was interviewed by mental health evaluators in 1986, 1993, 1995, 2001, and 2005.
As to the 2009 comprehensive risk assignment prepared by Dr. Kalich, the Governor noted Dr. Kalich’s observation that it was difficult for Reyes to accept that he may have intended, although momentarily, the result of his actions. For his part, the Governor found Reyes’s assertions that he did not intend to shoot his wife and her death was an accident lacked credibility due to a lack of support in the record. The Governor concluded, “This evidence of his lack of insight into his murderous conduct renders his life offense still relevant to my determination that he poses a current, unreasonable risk of danger if released to the public because Reyes cannot ensure that he will not commit similar crimes in the future if he does not completely understand and accept full responsibility for the offense.”
The Governor was also concerned that the 2005, 2007 and 2009 mental health evaluations rated Reyes’s risk for future violence as low to moderate, and, in addition, the 2009 mental health evaluation stated that the “elevation in his score” was due to Reyes’s inadequate insight into his depression. Additionally, the Governor noted that the 2009 mental health evaluation (referring to Dr. Kalich’s 2009 comprehensive risk assessment) stated that Reyes did not feel that he would need mental health treatment in the community. According to the Governor, Reyes’s “consistent and recent elevated scores on these risk assessments, combined with his lack of insight into both his life offense and his depression, indicate that he continues to pose a threat to public safety.”
As to prison discipline, the Governor determined that Reyes’s history of committing a serious rule violation in 2000 after 15 years of incarceration and receiving counseling for misconduct as recently as 2006 (a recent report that the Board had overlooked, according to the Governor), showed that “Reyes is still either unwilling or unable to conform his conduct within prison rules.”
The Governor also considered several parole suitability factors, including Reyes’s efforts to enhance his ability to function upon release by receiving vocational training and availing himself of self-help and therapy programs, as well as his success in establishing and maintaining supportive family relationships despite his incarceration. While the Governor acknowledged that “Reyes has made some creditable gains in prison,” the Governor concluded that the current record showed that Reyes’s release on parole would pose an unreasonable risk of danger to society.
I. Habeas Proceedings
On February 5, 2010, Reyes challenged the Governor’s decision by filing a petition for writ of habeas corpus in the superior court. In his petition, Reyes argued that for several reasons the Governor’s determination that Reyes was currently dangerous was not supported by some evidence.
Among other things, Reyes asserted that the Governor had “ignore[d] the fact” that Dr. Kalich’s overall assessment, after considering all of the risk factors, was that his risk of violence in the free community was “low.” While Reyes acknowledged that his score on one of the assessment tools used by Dr. Kalich placed him in the low to moderate category for violent recidivism, Reyes pointed out that Dr. Kalich had considered this score in reaching her overall assessment that his risk was low.
Reyes also disagreed with the Governor’s statement that Dr. Kalich had reported that Reyes lacked insight. According to Reyes, Dr. Kalich actually reported that he lacked some insight into his depression and that she had considered his level of insight in concluding that he had a low risk of violence in the free community.
As to the Governor’s finding that Reyes’s commission of a serious rule violation in 2000 and a minor rule violation in 2006 showed he was unsuitable for parole, Reyes argued that the Governor had failed to explain how this disciplinary history related to Reyes’s potential for violence. Reyes also maintained that he had never received a report of a minor rule violation in 2006.
Further, Reyes contended that the record did not support the Governor’s suggestion that Reyes’s parole plans were lacking. Reyes also objected to the Governor’s reliance upon the circumstances of the commitment offense as a reason to find Reyes unsuitable for parole, arguing that there was no other evidence of current dangerousness and the Governor had failed to consider the mitigating factors of Reyes’s significant stress at the time of the offense and his present age.
Finally, to the extent the Governor relied upon the objections of the district attorney and the police department to Reyes’s parole, Reyes argued that those objections did not constitute some evidence in support of the Governor’s decision.
Based on these contentions, Reyes argued that the Governor’s decision to reverse the Board’s grant of parole was not supported by some evidence that Reyes is currently dangerous, and therefore the proper remedy was reinstatement of the Board’s decision to grant parole.
On April 9, 2010, the superior court issued an order to show cause that stated, “Respondent is ordered to show cause why [Reyes] is not entitled to the relief he seeks by way of his February 5, 2010 petition.”
The Warden filed a return on May 14, 2010, in which she argued that the Governor had properly reversed the Board’s decision to grant parole because some evidence supported the Governor’s finding that Reyes currently poses a risk of danger. Specifically, the Warden contended that some evidence supported the Governor’s findings regarding the gravity of the commitment offense, Reyes’s failure to accept responsibility for murdering his wife, his lack of adequate insight into the circumstances that led to the crime, his elevated risk assessments, and his inability to conform to the rules.
Reyes filed a denial to return to order to show cause on July 13, 2010, accompanied by a memorandum of points and authorities in which he disputed the Warden’s contention that the Governor’s decision was supported by some evidence.
J. The Superior Court’s Order
On August 24, 2010, the superior court issued its order granting Reyes’s petition for a writ of habeas corpus and reinstating the Board’s decision to grant parole. In so ruling, the superior court agreed with Reyes that the Governor’s decision was not supported by some evidence.
Regarding insight, the superior court found that “in the instant case, [Reyes’s] psychological report is favorable and reflects he has ‘gained significant insight into the motivations for his participation in the life crime, as well as his drug use and other problematic behavior.’ ”
As to the risk of violence, the superior court stated that the Governor’s “parsing the psychological reports, and taking isolated points out of context, is neither medically, nor logically, sound analysis and does not amount to ‘some evidence’ in support of the desired result. . . . In the psychological report it is concluded that ‘overall’ [Reyes] ‘presents a low risk for violence in the free community.’ This determination was reached after examining several assessment instruments. The Governor’s actions of selectively picking and choosing among the psychological data and isolating the static aspects from the dynamic whole is inappropriate and does not comport with the necessary due process.”
The superior court further found that the Governor had erred in relying upon Reyes’s history of prison discipline, stating that Reyes’s few disciplinary reports were “nonviolent, minor, infrequent, and relatively old. They are, simply, not presently probative.” Another error asserted by the court was the Governor’s reliance on the inconsistencies in Reyes’s “story” throughout time, explaining that under the California Supreme Court’s decision in Lawrence, supra, 44 Cal.4th 1181, it is to be expected that an inmate will improve over time.
While the superior court agreed with the Governor that Reyes’s motive for the commitment offense was “unacceptable,” the court rejected the Governor’s finding that Reyes’s trivial motive showed that he is presently unsuitable for parole. The court found that the evidence showed that Reyes’s “motive was rooted in the deterioration of his domestic relationship and the feelings of loss, betrayal, and/or diminished self worth that would accompany the failure of such a defining aspect of life. [Reyes’s] life was crumbling around him and he feared not only losing his wife but also his children. This is of course not a justification, or even mitigation, but given that ‘trivial’ is a term of art in this context, it is simply untrue to apply that label in this case. [Citations.]”
Finally, the superior court concluded that the evidence showed that Reyes had reformed and his “egregious crime stands in isolation and without a present nexus to unsuitability. . . . The Governor’s decision fails the nexus test in light of all ‘relevant reliable information.’ ”
The Warden filed a notice of appeal from the superior court’s order on September 2, 2010. On September 1, 2010, we issued a temporary stay of the superior court’s order. Thereafter, on November 10, 2010, we granted the Warden’s petition for a writ of supersedeas and ordered a stay of enforcement of the superior court’s order until final determination of this appeal.
III. DISCUSSION
Our analysis begins with an overview of the statutory and regulatory framework that governs parole suitability decisions, including the Governor’s power to review the Board’s parole decisions. We will then address the standard for judicial review that applies to the Governor’s decision to reverse a grant of parole, which was established by the California Supreme Court in Lawrence, supra, 44 Cal.4th 1181, and Shaputis, supra, 44 Cal.4th 1241, and recently restated in Prather, supra, 50 Cal.4th 238.
A. The Statutory and Regulatory Framework for Parole Suitability Decisions
The Board is the administrative agency within the executive branch that is generally authorized to grant parole and set release dates. (Pen. Code, §§ 3040, 5075 et seq.)[3] The Board’s parole decisions are governed by section 3041 and title 15, section 2204 of the California Code of Regulations.[4]
Subdivision (a) of section 3041 provides that the Board “ ‘shall normally set a parole release date’ one year prior to the inmate’s minimum eligible parole release date, and shall set the date ‘in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public . . . .’ ” (Lawrence, supra, 44 Cal.4th at p. 1202, fn. omitted; § 3041, subd. (a).) “ ‘Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ [Citation.]” (Shaputis, supra, 44 Cal.4th at p. 1258.)
“Subdivision (b) of section 3041 provides that a release date must be set ‘unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.’ [Citation.]” (Lawrence, supra, 44 Cal.4th at p. 1202, italics omitted.)
In assessing whether “the inmate poses ‘an unreasonable risk of danger to society if released from prison,’ and thus whether he or she is suitable for parole,” the Board is guided by the factors set forth in Title 15, section 2402 of the California Code of Regulations. (Prather, supra, 50 Cal.4th at p. 249.)
Section 2402 “lists several circumstances relating to unsuitability for parole (such as the heinous, atrocious, or cruel nature of the crime, or an unstable social background) and several circumstances relating to suitability for parole (such as an inmate’s rehabilitative efforts and demonstration of remorse, and the mitigating circumstances of the crime). (Regs., § 2402, subds. (c),^[[5]^] (d)^[[6]^].)” (Prather, supra, 50 Cal.4th at pp. 249-250, fns. omitted.)
“Finally, the regulation explains that the foregoing circumstances ‘are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.’ [Citation.]” (Lawrence, supra, 44 Cal.4th at p. 1203.)
B. The Governor’s Decision
The statutory and regulatory framework for parole suitability decisions “establish that the decision to grant or deny parole is committed entirely to the judgment and discretion of the Board . . . .” (Prather, supra, 50 Cal.4th at p. 251.) However, the Governor has “a constitutionally based veto power over the Board’s decision[.]” (Ibid.) “The Governor’s power to review a decision of the Board is set forth in article V, section 8, subdivision (b) of the California Constitution.”[7] (Lawrence, supra, 44 Cal.4th at p. 1203, fn. omitted.) “ ‘By adding article V, section 8(b) to the California Constitution, the voters conferred upon the Governor constitutional authority to review the Board’s decisions concerning the parole of individuals who have been convicted of murder and are serving indeterminate sentences for that offense.’ ” (Prather, supra, 50 Cal.4th at p. 250, fn. 10.) “The statutory procedures governing the Governor’s review of a parole decision are set forth in section 3041.2 . . . .”[8] (Prather, supra, 50 Cal.4th at p. 250, fn. 10.) Under this constitutional and statutory authority, the Governor’s parole decision must be based upon the same factors that govern the Board’s parole decision. (Shaputis, supra, 44 Cal.4th at p. 1258.)
However, “the Governor undertakes an independent, de novo review of the inmate’s suitability for parole. [Citation.] Thus, the Governor has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety. [Citation.] ‘[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor . . . .’ ” (Lawrence, supra, 44 Cal.4th at p. 1204.)
In summary, the Governor, like the Board, must conduct “an individualized assessment of the continuing danger and risk to public safety posed by the inmate. If the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date. The same holds true for the Governor’s decision to set aside a decision of the Board.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
C. Judicial Review
1. The Legal Standard
In Prather, the California Supreme Court reaffirmed its prior determination in Lawrence and Shaputis that “a petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate’s due process right ‘cannot exist in any practical sense without a remedy against its abrogation.’ [Citation.]” (Prather, supra, 50 Cal.4th at p. 251.)
Since “the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety, and because the inmate’s due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor. [Citation.]” (Shaputis, supra, 44 Cal.4th at p. 1254; Prather, supra, 50 Cal.4th at pp. 251-252.)
Thus, “as specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor. In addition . . . evidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record—must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition. By reviewing this evidence, a court may determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
Regarding the commitment offense, the Supreme Court further instructed that “although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
Accordingly, where “all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
However, the Supreme Court has also recognized that “certain conviction offenses may be so ‘heinous, atrocious or cruel’ that an inmate’s due process rights would not be violated if he or she were to be denied parole on the basis that the gravity of the conviction offense establishes current dangerousness. In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerousness even decades after commission of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
Therefore, “the Governor does not act arbitrarily or capriciously in reversing a grant of parole when evidence in the record supports the conclusion that the circumstances of the crime continue to be predictive of current dangerousness despite an inmate’s discipline-free record during incarceration. . . . [W]here the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. [Citations.]” (Lawrence, supra, 44 Cal.4th at p. 1228.)
As the reviewing court, we are therefore mindful that “[a]s long as the Governor’s decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the Governor’s decision.’ [Citation.]” (Shaputis, supra, 44 Cal.4th at pp. 1260-1261; see also In re Dannenberg (2009) 173 Cal.App.4th 237, 252.)
2. Lawrence and Shaputis
Applying the standard established for judicial review, the Supreme Court determined in Lawrence that there was no evidence to support the Governor’s decision that the release on parole of the petitioner, who had been convicted of first degree murder for shooting and stabbing her lover’s wife multiple times, would pose an unreasonable risk of danger to the public. (Lawrence, supra, 44 Cal.4th at p. 1223.) The court concluded that “under the circumstances of the present case—in which the record is replete with evidence establishing petitioner’s rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety—petitioner’s due process and statutory rights were violated by the Governor’s reliance upon the immutable and unchangeable circumstances of her commitment offense in reversing the Board’s decision to grant parole.” (Id. at p. 1227.)
In Shaputis, on the other hand, the Supreme Court upheld the Governor’s reversal of the Board’s decision to grant parole to the petitioner, who had been convicted of second degree murder after shooting his wife at close range. (Shaputis, supra, 44 Cal.4th at p. 1245.) The evidence showed that “the murder was the culmination of many years of [Shaputis’s] violent and brutalizing behavior toward the victim, his children, and his previous wife.” (Id. at p. 1259.) Additionally, the psychological assessment revealed that Shaputis had “failed to gain insight or understanding” regarding his violent behavior and his commission of the murder. (Id. at p. 1260.) Accordingly, the court found that “[s]ome evidence in the record supports the Governor’s decision that petitioner remains dangerous,” including the aggravated nature of the offense and the “evidence of petitioner’s history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming.’ ” (Id. at pp. 1259-1260, fn. omitted.)
Having addressed the standard for judicial review of the Governor’s decision to reverse a grant of parole, we turn to Reyes’s habeas challenge to the Governor’s decision in this case.
D. Analysis
To evaluate the merits of Reyes’s habeas corpus petition, we have carefully reviewed the record pursuant to the direction of the California Supreme Court in Lawrence, supra, 44 Cal.4th 1181; Shaputis, supra, 44 Cal.4th 1241; and Prather, supra, 50 Cal.4th 238, to determine whether some evidence supports the Governor’s conclusion that Reyes’s release from prison would “pose an unreasonable risk of danger to society at this time.” The Governor’s decision was based on (1) the circumstances of the commitment offense; and (2) Reyes’s lack of insight into the circumstances surrounding the commitment offense; (3) his history of prison discipline and (4) the current and past mental health evaluations. We will consider each factor below.
1. The Commitment Offense
The Warden contends that some evidence supports the Governor’s determination that the circumstances of the commitment offense demonstrate Reyes’s unsuitability for parole, since the offense “was especially atrocious because the victim, with whom [Reyes] shared a special relationship of trust and confidence, was abused and defiled” and its commitment showed “an exceptionally callous disregard for human life and suffering[.]” Also, the Warden argues that some evidence supports the Governor’s finding that Reyes’s motive for committing the offense was trivial in relation to the magnitude of the offense.
Under the regulatory scheme, one of the circumstances tending to show parole unsuitability is that “[t]he prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered 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.” (Regs., § 2402, subd. (c)(1).)
While Reyes disputes the Governor’s characterization of the circumstances of the commitment offense--arguing that Laura was not abused or defiled because she was killed by single gunshot to the head, the killing was not exceptionally callous, and the motive was understandable in the context of domestic relations and therefore not trivial--we do not, as the reviewing court, choose between the parties’ opposing views of the evidence.
Following the direction of the California Supreme Court, we recognize that while “the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre-or post incarceration history, or his or her demeanor or mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative of the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
We find that some evidence supports the Governor’s determination that circumstances of the commitment offense, where Reyes shot his wife in the head at close range while the couple’s six children were nearby, show the aggravated nature of the crime. In accordance with the Supreme Court’s instruction in Lawrence, supra, 44 Cal.4th at page 1214, that the aggravated circumstances of the commitment offense alone are not sufficient to show current dangerousness, we next consider whether some evidence supports the Governor’s determination that additional factors, including Reyes’s lack of insight, post-incarceration history, and mental state, establish that the circumstances of the commitment offense “remain probative of the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
2. Lack of Insight
The Governor determined that Reyes “has not developed adequate insight into the circumstances surrounding the shooting and that he could similarly rationalize future violence as being ‘unintentional.’ This evidence of his lack of insight into his murderous conduct renders his life offense still relevant to my determination that he poses a current, unreasonable risk of danger if released to the public because Reyes cannot ensure that he will not commit similar crimes in the future if he does not completely understand and accept full responsibility for the offense.”
The Warden argues that under the decision in Shaputis, supra, 44 Cal.4th at page 1246, some evidence supports the Governor’s determination that Reyes’s lack of insight with respect to the commitment offense shows that he is unsuitable for parole. According to the Warden, “Reyes’s years-long pattern of describing the murder as unintentional and accidental is similar to Shaputis’s accidental murder.” The Warden also relies on the decision in In re Taplett (2010) 188 Cal.App.4th 440 (Taplett), for the proposition that an inmate’s continued denial of any intent to kill the victim of the commitment offense shows a failure to accept responsibility for the offense, which renders the circumstances of the commitment offense predictive of the inmate’s current level of dangerousness.
The regulatory scheme provides that a circumstance tending to show suitability for parole is that the inmate has indicated that he or she “understands the nature and magnitude of the offense.” (Regs., § 2402, subd. (d)(3).) In Shaputis, the California Supreme Court determined that some evidence supported the Governor’s decision that Shaputis remained a threat to public safety “in that he has failed to take responsibility for the murder of his wife, and despite years of rehabilitative programming and participation in substance abuse programs, has failed to gain insight into his previous violent behavior, including the brutal domestic violence inflicted upon his wife and children for many years preceding the commitment offense. By statute, it is established that the gravity of the commitment offense and petitioner’s current attitude towards the crime constitute factors indicating unsuitability for parole . . . .” (Shaputis, supra, 44 Cal.4th at p. 1246.) The Supreme Court noted that the evidence pertaining to insight also included Shaputis’s “own statements at his parole hearing characterizing the commitment offense as an accident and minimizing his responsibility for the years of violence he inflicted on his family,” as well as “recent psychological evaluations noting [his] reduced ability to achieve self-awareness.” (Id. at p. 1260, fn. 18.)
In Taplett, the appellate court determined that some evidence supported the Governor’s decision that Taplett was unsuitable for parole due to her lack of insight, because she had failed to accept “the full extent of her responsibility” for the commitment offense. (Taplett, supra, 188 Cal.App.4th at p. 450.) The commitment offense was a drive-by shooting, in which Taplett drove the car in pursuit of the victim who was then shot by Taplett’s passenger. (Id. at p. 443.) The appellate court explained that, despite the intentional shooting described by other witnesses, Taplett had continued to deny that the killing was intentional. (Id. at p. 450.)
The California Supreme Court has emphasized that “[o]ur deferential standard of review requires us to credit the Governor’s findings if they are supported by a modicum of evidence.” (Lawrence, supra, 44 Cal.4th at p. 1226.) We find that a modicum of evidence supports the Governor’s findings that Reyes has continued to maintain that he did not intend to kill Laura. Dr. Kalich stated in her 2009 comprehensive risk assessment that “[i]n the past, Mr. Reyes has not always assumed responsibility for his role in the life crime. He has minimized the shooting by stating that it was an accident. Currently, after viewing the autopsy report, he has accepted that he did shoot his wife at close range. However, he continues to maintain that he has no memory of shooting his wife . . . . Clearly, Mr. Reyes has made significant progress in assuming full responsibility, however it continues to be difficult for him to accept that he may have, albeit momentarily, intended the result of his actions.”
A modicum of evidence also supports the Governor’s finding that Reyes lacks some insight into the causes of his past depression and this lack of insight is probative of his current dangerousness. This evidence is found in Dr. Kalich’s 2009 comprehensive risk assessment, in which she discussed Reyes’s mental health.
Dr. Kalich reported that Reyes contemplated committing suicide, prior to the commitment offense, on the two occasions when his wife left him. Then, “[a]fter murdering his wife in 1985, Mr. Reyes experience a ‘very intense’ depression that started lifting in 1998.” From the time of his initial incarceration until 2007, Reyes was included in the Mental Health Delivery System where he “was diagnosed with Major Depressive Disorder (with psychotic features).” Reyes made one suicide attempt in 1986 or 1987. Dr. Kalich determined that among the historical factors that contributed to Reyes’s risk of violent recidivism was his “history of early maladjustment. He has been diagnosed with Major Depressive Disorder.”
In the “current, dynamic domain of risk assessment” for violent recidivism, Dr. Kalich included Reyes’s “lack of insight into his depression, as he believes that treatment will never be necessary in the community.” Dr. Kalich determined that Reyes’s lack of insight was based upon his belief that the cause of his depression was emotional rather than mental, noting that “[he] does not appear to understand that depressive feelings often have a psychological and biological basis.”
Dr. Kalich further stated, “It will be important for Mr. Reyes to have a good understanding of his depressive condition, to be able to recognize the early symptoms of depression, and to be willing to seek treatment if necessary.” Additionally, Dr. Kalich found that Reyes would decrease his future risk of violence in the community if he developed “added insight into his depression” and continued to “utilize appropriate coping strategies[.]” However, the record indicates that if he is released, Reyes will not gain a greater understanding of his depression or be able to recognize the early symptoms and seek treatment. Reyes told Dr. Kalich that although he anticipated going “through a brief period of sadness” upon his parole release due to the absence of his wife, he “did not feel that he would need to seek treatment or psychotropic medication, because he is ‘a true Christian,’ has found ‘inner peace,’ and know[s] that ‘all this has a purpose.’ ”
Thus, we find that at least a modicum of evidence supports the Governor’s conclusion that Reyes’s lack of insight into the nature and magnitude of his commitment offense (Regs., § 2402, subd. (d)(3)). His continued failure to accept responsibility for the intentional shooting of his wife, as well as his lack of insight into his history of serious mental illness and his potential need for mental health treatment after his release, show that “Reyes cannot ensure that he will not commit similar crimes in the future if he does not completely understand and accept full responsibility for the offense.”


3. History of Prison Discipline
In his decision, the Governor stated, “I am further concerned that Reyes is still either unwilling or unable to conform his conduct within prison rules. He committed a serious rules violation in 2000, after 15 years of incarceration, and he required counseling for other misconduct as recently as 2006. The fact that Reyes still engaged in misconduct so recently, combined with his consistently elevated risk assessments, demonstrates that he is not yet ready to conform his conduct within society’s laws and to comply with the conditions of parole. This information indicates that Reyes still presents a danger to the community if released at this time.”
Section 2402, subdivision (c)(6) of the California Code of Regulations states that a circumstance showing unsuitability for parole is that “[t]he prisoner has engaged in serious misconduct in prison or jail.” In Lawrence, the California Supreme Court instructed than an inmate’s “post-incarceration history” could indicate “that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
Here, the record reflects that Reyes’s last serious rule violation occurred nearly 10 years before the July 2009 parole hearing, when he was found in possession of an altered radio, a circuit board and other electronic equipment in 2000. His last minor rule violation occurred three years before the July 2009 parole hearing, when he failed to report for educational testing. Reyes’s total history of prison discipline during 23 years of incarceration consists of two CDC 115 reports for serious rule violations and six CDC 128 reports for minor rule violations.
While we acknowledge Reyes’s argument that his history of prison discipline does not show that he currently poses an unreasonable risk of danger, we recognize, as we have stated, that “ ‘[t]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor. . . .’ ” (Lawrence, supra, 44 Cal.4th at p. 1204.) Therefore, we believe that the Governor is entitled to take Reyes’s disciplinary history into consideration in determining whether Reyes is currently dangerous.
We reiterate that the California Supreme Court has instructed that “[o]ur deferential standard of review requires us to credit the Governor’s findings if they are supported by a modicum of evidence.” (Lawrence, supra, 44 Cal.4th at p. 1226.) Here, the record provides a modicum of evidence to support the Governor’s finding that Reyes’s history of prison discipline, in combination with other factors, is probative of his current dangerousness because he committed a serious rules violation in 2000, after 15 years o