In re Samble

Filed 2/21/06 In re Samble CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In 1980, respondent Stephen Samble (Samble) shot and killed Richard Caccamo. He pleaded guilty to first-degree murder. As a result, Samble was sentenced to an indeterminate term of 25 years to life. His minimum eligible parole date was February 14, 1995, over 10 years ago.

On March 18, 2003, Samble went before the Board of Prison Terms (the Board) for his fourth parole suitability hearing. After the hearing, the Board denied Samble parole.

Thereafter, Samble filed a petition for a writ of habeas corpus in the Santa Clara County Superior Court, challenging the Board's decision. The superior court granted the petition.

On January 12, 2005, A. P. Kane, Warden, Correctional Training Facility Soledad (appellant) filed a notice of appeal. Subsequently, appellant filed a petition for writ of supersedeas requesting that this court stay the superior court's order pending the appeal. On February 22, 2005, we granted the petition pending the outcome of the appeal.

On appeal, appellant frames the issues as follows: "1. Did the superior court abuse its discretion by re-weighing the evidence in the record and substituting its judgment for that of the Board? [¶] 2. Did the superior court err in finding that the Board's decision was not supported by some evidence in the record? [¶] 3. Did the superior court err in limiting the Board's discretion on remand?"

For the following reasons, we agree with the trial court that the Board's decision cannot stand and that Samble is entitled to writ relief. We disagree, however, with the superior court's directive that the commitment offense may not be used as grounds for denying parole. Accordingly, we remand to the trial court with directions.

Samble's Social and Criminal History

Samble was born on September 13, 1952. He never married, but he has two adult daughters. Both of them are in their thirties. Sample graduated from high school in San Mateo County and then took some classes at De Anza College. He worked in "all sorts of jobs," including truck driver and gas station mechanic. He was a ceramic tile setter for six years and a maintenance supervisor for seven years.

Apart from a brother "chopping trees down in a game reserve," an act that led to criminal charges that were later dismissed, no one in his family had a criminal record.

Samble's juvenile record consists of two misdemeanor convictions and a felony conviction for possession of drugs, for which he received probation. In addition, Samble was arrested for shoplifting.

Samble experimented with a wide range of illegal substances. During the first six years of his life term, he continued to use drugs. However, he claimed to have stopped on his birthday in 1986, but did not start attending Alcoholics Anonymous (AA) until 1993, when a Board Deputy Commissioner suggested that he attend this program. Samble stopped going to AA in 2000, and has not tried to get back into the program.

Samble's 1989 psychological evaluation listed a diagnosis of polysubstance dependence in institutional remission and a diagnosis of adult anti-social behavior. Samble's 2000 psychological evaluation diagnosed him with cocaine dependence in remission and adult anti-social behavior, improved. In 2002, Samble was diagnosed with cocaine dependence in sustained full remission in a controlled environment. Samble's psychological evaluators have recognized that continued sobriety and abstinence from addictive drugs would be a critical factor in ensuring Samble's successful reintegration into society if paroled.

The Commitment Offense[1]

In 1980, Samble incurred a drug related debt of several hundred dollars. Sometime before April 1, 1980, Richard Caccamo came to Samble's apartment and demanded the $650 that Samble owed to him.[2] Caccamo threatened to put Samble in the hospital if he did not pay his debt. In order to satisfy Samble's debt, Samble arranged a meeting for Caccamo to sell 20 pounds of marijuana to a third person. They were all supposed to meet at a parking lot at 7:30 p.m. on April 1. The purchaser never arrived.

Samble and Caccamo ended up traveling in Caccamo's truck through a wooded mountainous area outside of town. Three or four days earlier, Samble had borrowed a double action .357 Magnum from a friend. He had the gun with him in the truck. When Caccamo and Samble were in a secluded portion of the mountain road, Samble shot Caccamo fatally in the face. Then, he shot the lock off Caccamo's toolbox, and took the 20 pounds of marijuana. The truck, with Caccamo's body, was discovered the next day.[3]

Sixteen days later Samble was arrested in his hotel room. He was found in possession of a quantity of marijuana seeds and a piece of paper listing names and dollar amounts. A large plastic bag of marijuana and a package of sandwich bags were found in his car.

According to Samble, he pled guilty to first-degree murder to avoid the death penalty. He claims, however, that the gun went off accidentally when Caccamo pulled his jacket sleeve. The first two times Samble appeared before the Board, he claimed that he planned to rob Caccamo so that he could sell Caccamo's marijuana and repay the debt, but he did not plan to kill Caccamo.

The Parole Hearing

As noted, on March 18, 2003, Samble appeared before the Board of Prison Terms seeking a parole date. The Board conducted a hearing and reviewed Samble's inmate central file. Specifically, the Board reviewed a 1980 report from the Santa Clara County Probation Department, transcripts of previous Board hearings, a 2000 psychological report and a 2003 Life Prisoner Evaluation Report (LPER). The Board heard Samble's testimony and a statement from a deputy at the Santa Clara County District Attorney's Office.

At the end of the hearing, the Board concluded, "the prisoner is not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." In so concluding, the Board relied on the following factors. "The offense was carried [out] in an especially violent and coldhearted manner. The offense was carried out in a dispassionate manner. The offense was carried out in a manner that demonstrates an exceptionally callous disregard for a human being - - human suffering. The motive for the crime was inexplicable or very trivial in relationship to the offense that was committed." The Board noted that the basis for this conclusion was "drawn from the Statement of Facts wherein officers discovered the victim's body, Mr. Caccamo . . . in a mountainous area. The circumstances surrounding the crime is [sic] that the prisoner went there with the victim. And while he was there, the prisoner shot him and then drove his truck over an (indiscernible). Basically he took some marijuana and the[n] left the victim there." The Board went on to note that Samble "didn't have much of a prior criminal history." Further, there was "no indication that [Samble] has an unstable social history."

After taking a short recess, the Board resumed and noted that Samble had "programmed in prison." Furthermore, the Board observed that a psychiatric report by Dr. Joe Reed dated 5/4/2000 showed that Samble was "making progress. His level of dangerousness in the community is reduced. And his level of dangerousness in the institution shows that it's being reduced." The Board noted that Samble had some parole plans, but that his employment plans "certainly need to be (indiscernible) up. He does have a marketable skill that could be put to use upon his release." The Board found that Samble needed to "continue to involve himself in positive kinds of programs such as self-help and those kinds of programs." The Board concluded, "[u]ntil enough progress is made and the Board feels that he's able to cope with stressful situations in a non-destructive manner and is no longer unpredictable or a threat to others, we are going to have to deny his parole."[4]

The Habeas Proceeding

On January 21, 2004, Samble filed a petition for writ of habeas corpus in Santa Clara County Superior Court. On April 21, 2004, the trial court issued an order to show cause. Thereafter, on January 4, 2005, the trial court granted Samble's petition finding that there was "no articulable evidence to support the Board's conclusion that [Samble] still poses an unreasonable risk if paroled." The superior court remanded the matter to the " . . . Board with directions to reconvene and reconsider the evidence previously presented in accordance with due process . . . ." Further, the court precluded the Board "from relying on any of the purported reasons it previously articulated." Moreover, the court directed that the "commitment offense may not be used as grounds for denying parole."

Discussion

"The petitioner in a habeas corpus proceeding bears the ultimate burden of proving the factual allegations that serve as the basis for his or her request for habeas relief. [Citation.] Once the issues of fact have been joined by the respondent's filing of the return to the petition and the petitioner's filing of the traverse, the court may deny relief if it concludes that the petitioner has not alleged facts sufficient to warrant relief. [Citation.] If relief depends upon the resolution of disputed issues of fact, the court may order an evidentiary hearing and make findings of fact with regard to such issues. [Citation.] The various exhibits that may accompany the petition, return and traverse do not constitute evidence, but rather supplement the allegations to the extent they are incorporated by reference. [Citation.] At the evidentiary hearing, such exhibits are subject to admission into evidence in accordance with generally applicable rules of evidence. [Citation.]" (In re Rosenkrantz (2002) 29 Cal.4th 616, 675, (Rosenkrantz).)

In Rosenkrantz, supra, 29 Cal.4th 616, our Supreme Court addressed the judicial review standard that applies to parole decisions by the Board. Our Supreme Court held that "the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based on the factors specified by statute and regulation. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. [Citations.]" (Id. at p. 658, italics added.)

With respect to the "some evidence" standard, the court explained, "Only a modicum of evidence is required." (Rosenkrantz, supra, 29 Cal.4th at p. 677.) Furthermore, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Board, but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. (Ibid.)

It appears that the superior court's findings were based solely on documentary evidence. Accordingly, we independently review the record to determine if there is some evidence to support the Board's findings. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)

"One of the Board's functions is to set parole dates for prisoners serving indeterminate sentences. (Pen. Code, §§ 3040; 3041, subd. (a); 3000, subd. (b)(4) & (7).) Penal Code section 3041, subdivision (b) requires the Board to 'set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.' This statute creates a conditional liberty interest for a prospective parolee. (Cf. Rosenkrantz, supra, 29 Cal.4th at p. 661; McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895, 901-902.) The Board has broad discretion, sometimes called ' " 'great' " ' and ' " 'almost unlimited,' " ' to identify and weigh the factors relevant to predicting 'by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.' (Rosenkrantz, supra, 29 Cal.4th at p. 655.) However, 'the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board.' (Ibid.) A prisoner is entitled to 'an individualized consideration of all relevant factors.' (Ibid.)" (In re DeLuna (2005) 126 Cal.App.4th 585, 591.)

California Code of Regulations, title 15, section 2402, subdivision (b) sets forth the manner in which suitability determinations are to be made. Section 2402, subdivision (a)[5] states that "[r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison."

Section 2402, subdivision (b) provides that "[a]ll relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability."

Section 2402, subdivision (c) identifies six nonexclusive circumstances tending to show unsuitability, the relative importance of which "is left to the judgment of the panel." The specified circumstances are "(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner." Relevant here, "[t]he factors to be considered include: . . . [¶] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. . . . [¶] (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. [¶] (2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age. [¶] (3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others. [¶] (4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. [¶] (5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense. [¶] (6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail."

Section 2402, subdivision (d), identifies nine circumstances tending to show suitability for release. The Board's determination that Samble would pose a threat to public safety if released from prison, and was therefore unsuitable, rested on one of the six "circumstances tending to indicate unsuitability"--his commitment offense.

As noted, the Board's finding that Samble was unsuitable for release was premised on the Board concluding that Samble carried out the offense in "an especially violent and coldhearted manner." The Board noted that the offense was "carried out in a dispassionate manner" and "in a manner that demonstrates an exceptionally callous disregard for . . . human suffering." Further, the "motive for the crime was inexplicable or very trivial in relationship to the offense that was committed."

"Every person who unlawfully kills a human being . . . with malice aforethought . . . is guilty of the crime of murder in violation of Penal Code § 187." (CALJIC No. 8.10) " 'Malice' may be either express or implied. [¶] Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: . . . [¶] The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (CALJIC No. 8.11) "All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree." (CALJIC No. 8.20)

Thus, first-degree murder requires express or implied malice. That is, the perpetrator must kill with the specific intent to do so, or he or she must cause another's death by intentionally performing an act, knowing that it is dangerous to life and with a conscious disregard for life. For this reason, it can be said that all first-degree murders by definition involve some callousness. That is, all first-degree murders involve lack of emotion or sympathy, emotional insensitivity, and indifference to the feelings and suffering of others. (Cf. In re Smith (2003) 114 Cal.App.4th 343, 366.)

There is no evidence that this murder was carried out in an especially violent and coldhearted manner. According to the probation report, Samble lured the victim to a mountainous area and when he arrived, shot him in the face. There is no evidence that the victim's death was prolonged or that he suffered in any way. As in our earlier opinion in In re Smith, supra, 114 Cal.App.4th 343, there is no evidence Samble "tormented, terrorized, or injured [Caccamo] before deciding to shoot [him], or that he gratuitously increased or unnecessarily prolonged [his] pain and suffering." (Id. at p. 367.) To paraphrase In re Smith, was this crime violent and coldhearted? Yes. However, are the facts of the crime some evidence that Samble acted in an especially heinous, atrocious or cruel manner? No.

We find the Board's recitation of the facts of this case as leading to the conclusion that the crime was "carried out in a dispassionate manner" and "in a manner that demonstrates an exceptionally callous disregard for . . . human suffering" to be specious. In order to support a finding that Samble's offense was committed in an especially heinous, atrocious or cruel manner there must be some evidence that the "violence or viciousness of the inmate's crime" is greater than that which is "minimally necessary to convict [Samble] of the offense for which he is confined." (§ 2402, subd. (c)(1); In re Dannenberg (2005) 34 Cal.4th 1061, 1095.)

With respect to how the crime was carried out, after reviewing the evidence set forth in the Board's decision, we conclude Samble's commitment offense does not rise above this level.

It is worth reiterating that an unsuitability determination must be predicated on "some evidence that the particular circumstances of [Samble's] crime--circumstances beyond the minimum elements of his conviction--indicated exceptional callousness and cruelty with trivial provocation, and thus suggested he remains a danger to public safety." (In re Dannenberg, supra, 34 Cal.4th at p. 1098.) For example, premeditation was considered in Rosenkrantz. There although the prisoner had been convicted only of second degree murder, the evidence showed " 'a full week of careful preparation, rehearsal and execution,' " and that the prisoner, who "fired 10 shots at close range from an assault weapon and fired at least three or four shots into the victim's head as he lay on the pavement," carried out the crime with "planning, sophistication or professionalism." (Rosenkrantz, supra, 29 Cal.4th at p. 678.) Similarly, the evidence of premeditation relied on in In re Lowe (2005) 130 Cal.App.4th 1405, which also involved a second degree murder conviction, showed that the prisoner purchased the gun shortly before the murder, entered his victim's bedroom in the middle of the night while he was asleep, unsuspecting, and in a special relationship of confidence and trust with his killer, "shot him five times in the head and chest, execution style." (Id. at p. 1414.) As this court stated, this evidence showed the murder "was a cold-blooded execution" and that the prisoner's "egregious acts [were] far more aggravated than the minimum necessary to sustain a second degree murder conviction." (Id. at p. 1415.) In In re DeLuna, supra, 126 Cal.App.4th 585, the petitioner, convicted of second degree murder, had a physical confrontation with the victim in a bar, left the bar, retrieved a rifle, shot the victim in the mouth and, as the victim bled and walked around the parking lot, followed him and continued firing until he died. This court determined that "[t]he initial wounding and deliberate stalking of a defenseless victim can reasonably be characterized as especially cruel and callous." (Id. at p. 593.)

The circumstances of Samble's offense shown by the record, which bear no resemblance to the circumstances of the homicides in Rosenkrantz, Lowe, and DeLuna, cannot reasonably be considered more aggravated or violent than the minimum necessary to sustain a conviction for first-degree murder.[6]

The final factor the Board used to conclude that the commitment offense was committed in an especially heinous, atrocious or cruel manner is that his "motive for the crime is inexplicable or very trivial in relationship to the offense." (§ 2402, subd. (c)(1)(E).) The Board did not indicate whether it found the motive inexplicable or very trivial in relationship to the offense.

"The epistemological and ethical problems involved in the ascertainment and evaluation of motive are among the reasons the law has sought to avoid the subject. As one authority has stated, '[h]ardly any part of penal law is more definitely settled than that motive is irrelevant.' (Hall, General Principles of Criminal Law (2d ed.1960) at p. 88; see also Husak, Motive and Criminal Liability (1989) vol. 8, No. 1, Crim. Justice Ethics 3.) An 'inexplicable' motive, as we understand it, is one that is unexplained or unintelligible, as where the commitment offense does not appear to be related to the conduct of the victim and has no other discernible purpose. A person whose motive for a criminal act cannot be explained or is unintelligible is therefore unusually unpredictable and dangerous." (In re Scott (2004) 119 Cal.App.4th 871, 892-893.)

While Samble maintains that he did not intend to kill Caccamo, he did admit that he intended to take the marijuana to repay his debt. Accordingly, Samble's motive for the murder does not fit the definition of "inexplicable."

As to whether the motive was trivial in relationship to the offense, we agree with the Division Two of the First District Court of Appeal that "[t]he offense committed by most prisoners serving life terms is, of course, murder. Given the high value our society places upon life, there is no motive for unlawfully taking the life of another human being that could not reasonably be deemed 'trivial.' The Legislature has foreclosed that approach, however, by declaring that murderers with life sentences must 'normally' be given release dates when they approach their minimum eligible parole dates. (Pen. Code, § 3041, subd, (a).) The governing statute also states that the Board shall set a release date 'unless it determines that the gravity

of current convicted offense or offenses, or the timing and gravity of the 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).) This language means a 'more lengthy period of incarceration' is called for where the gravity of the offense or offenses of the prisoner in question is more indicative of a danger to the public if the prisoner is released than would ordinarily be the case. The reference in Board regulations to motives that are 'very trivial in relationship to the offense' therefore requires comparisons; to fit the regulatory description, the motive must be materially less significant (or more 'trivial') than those which conventionally drive people to commit the offense in question, and therefore more indicative of a risk of danger to society if the prisoner is released than is ordinarily presented." (In re Scott, supra, 119 Cal.App.4th at p. 893.)

We cannot say that Samble's motive in wanting to take Caccamo's marijuana in order to repay a debt was very trivial in relation to the crime. Many murders are committed in the course of robberies. If we were to permit Samble's motive to be used to deny him release we would allow almost any motive to be used to deny a prisoner release, making a mockery of the legislative declaration that life prisoners are "normally" entitled to receive a release date shortly before they first become eligible for parole. (Pen. Code, § 3041, subd. (a).) Samble's motive for killing Caccamo is no less significant or important than others that account for the commission of first degree murder in the course of a robbery.

For the foregoing reasons, the evidence does not amount to even a modicum of evidence to support the Board's findings.

Appellant asserts that the Board also relied on Samble's criminal history in finding him unsuitable for parole. It is true that the Board shall consider a prisoner's past criminal history. (§ 2402, subd. (b).) Here, however, contrary to appellant's assertion, the Board found that Samble "didn't have much of a prior criminal history."

The Board expressed some concern about Samble's parole plans. However, the Board concluded that he did "have a marketable skill that could be put to use upon his release." Finally, the Board found that Samble needed "to continue to involve himself in positive kinds of programs such as self-help and those kinds of programs." The Board went on to say that "[u]ntil enough progress is made and the Board feels that he's able to cope with stressful situations in a non-destructive manner and is no longer unpredictable or a threat to others, we are going to have to deny his parole."

We find no evidence in the record to support the Board's conclusion that Samble was not able to cope with stressful situations such that he was still a threat to others. Indeed, Dr. Reed's 2000 psychological evaluation of Samble concluded that he "does not have a mental health disorder which would necessitate treatment either during his incarceration period or following upon parole." Dr. Reed observed that Samble "seems to have matured greatly during his incarceration with CDC, and his completion of numerous self-help groups appears to have greatly increased his insight and control over his behavior as related to the instant crime." Dr. Reed concluded, "[i]f released to the community, his violence potential is considered to be no more than the average citizen in the community."

Appellant argues that there is some evidence Samble suffered from a drug problem that has not been adequately addressed. Appellant points to Samble's prior convictions for drug possession, his previous psychological diagnosis for drug dependence and the Board's purported concerns that the problems had not been adequately addressed in prison.

While there is some evidence that Samble used drugs before his incarceration and for a short time when he was first incarcerated, there is no evidence that he is presently using drugs. In fact, Samble's 2000 psychological evaluation states that his cocaine dependence is in "sustained full remission in a controlled environment." A prisoner's prior use of drugs is not an appropriate consideration in determining parole suitability. (See In re Smith (2003) 109 Cal.App.4th 489, 505.) Furthermore, Samble articulated an understanding of how drugs contributed to his criminal behavior. Although Samble's 2000 psychological evaluation suggests that Samble participate in AA or NA during his incarceration and as a contingency of parole, the report concluded that, if released to the community, Samble's violence potential was "no more than the average citizen in the community." Moreover, while Samble's 2003 LPER recommended participation in AA/NA self-help and therapy "as available," the report concluded that Samble would pose only "a moderate degree of risk to the public if paroled at this time," not an "unreasonable risk of danger to society if released from prison." (§ 2402, subd. (a).) "Finally, the record provides no reasonable grounds to reject or even challenge, the findings and conclusions of the psychologist and counselor concerning [Samble's] dangerousness." (In re Smith, supra, 114 Cal.App.4th at p. 369.)

Appellant argues that Samble's inadequate parole plans support the Board's unsuitability finding. The Board observed that Samble had some parole plans, but that his employment plans "certainly need to be (indiscernible) up."[7] We do not perceive any connection between his need to "firm up" his parole plans and the Board's conclusion that "the prisoner is not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." Here, the Board used a factor that should be used to find suitability for parole and turned it around to find that Samble was unsuitable. Section 2402, subdivision (d) sets forth the "Circumstances Tending to Show Suitability." Relevant here, number (8) states "Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release." (Italics added.) Since the Board concluded that Samble "does have a marketable skill that could be put to good use upon his release," the use of this factor to deny parole leaves us to conclude that the Board was acting in an arbitrary and capricious manner. This is a circumstance that the Board should have considered showing suitability for release. (Rosenkrantz, supra, 29 Cal.4th at p. 655, [" 'Although a prisoner is not entitled to have his term fixed at less than maximum or to receive parole, he is entitled to have his application for these benefits "duly considered" ' based upon an individualized consideration of all relevant factors.")

Finally, appellant argues that the District Attorney's opposition to Samble's parole provides some reliable evidence supporting the Board's decision. In denying parole, the Board simply stated that the District Attorney "did not give [Samble] a vote of confidence for release at this time." We note that appellant is correct that the Board is required to consider comments by the district attorney or his representative. (Pen. Code, § 3046.) We find nowhere in the statutes or regulations where it states that parole should be granted or denied based on the position of the District Attorney's office. The decision to grant parole rests on the guidelines listed in section 2400 et seq and Penal Code section 3041. (Rosenkrantz, supra, 29 Cal.4th at p. 658 [there must be "some evidence in the record before the Board [that] supports the decision to deny parole, based upon the factors specified by statute and regulation" (italics added)].)

Our review of the Board's stated reasons for denying Samble a parole release date reveals that all of the factors cited by the Board lack evidentiary support.

"In reviewing a decision denying parole, we first determine whether some evidence supports each of the factors stated by the Board to justify the denial of parole. [Citations.] If one or more of the factors lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result 'satisfies the requirements of due process of law' because the factors for which there is some evidence 'constitute a sufficient basis supporting the . . . discretionary decision to deny parole.' [Citation.] We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion. [Citations.]" (In re DeLuna, supra, 126 Cal.App.4th at p. 598.)

Where, as here, we have concluded that the Board's findings lack evidentiary support, "the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)

Accordingly, to the extent the trial court's order here remanded this case "to the Parole Board with directions to reconvene and reconsider the evidence previously presented in accordance with due process," we conclude that the order was appropriate.

Though it was appropriate for the trial court to remand the case to the Board, the court went further and "precluded" the Board "from relying on any of the purported reasons it previously articulated. This includes, but is not limited to, a directive that the commitment offense may not be used as grounds for denying parole." "In attempting to thus curtail the Board's exercise of discretion, the trial court has exceeded its authority. Section 2402, subdivision (b) provides in part: 'All relevant, reliable information available to the panel shall be considered in determining suitability for parole.' Rosenkrantz observed, 'the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious.' [Citation.] The Board should proceed in this manner. If there is evidentiary support for a finding currently lacking it, the Board may make that finding again." (In re DeLuna, supra, 126 Cal.App.4th at p. 599.)

Disposition

The case is remanded to the trial court to modify its order granting Samble's petition for habeas corpus and remanding the matter to the Board to reconsider its decision and to conduct a new hearing to reconsider Samble's suitability for parole, using, without restriction, the factors deemed appropriate by the relevant statutes and regulations and in accordance with the requirements of due process. As so modified, the order is affirmed.

_____________________________

ELIA, Acting P. J.

WE CONCUR:

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MIHARA, J.

_____________________________

McADAMS, J.

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[1] Since Samble pleaded guilty, the facts are taken from the original probation report in this case.

[2] According to the probation officer's report in Samble's case, the amount owed was $650. However, at Samble's 1997 parole board hearing, he recalled that the amount was $200.

[3] The probation report states that Samble "lured" Caccamo to a mountainous area on Kittridge Road near Saratoga. Furthermore, the report notes that after the killing Samble "pushed the vehicle off the road and down the side of the hill." Samble has consistently denied that was what happened.

[4] The Board went on to commend Samble on his progress and noted that they had received letters of support from his family showing that he has support in the community.

[5] Unless noted, all undesignated Regulation and section references are to Title 15 of the California Code of Regulations.

[6] Appellant contends, "Samble obtained a handgun from a friend, and set up an elaborate ruse. Samble led Caccamo to believe a third party was going to buy a sizeable amount of marijuana. When the third party failed to appear at the evening rendezvous, Samble induced Caccamo to travel to an isolated wooded area. Samble then shot his friend and went to great lengths to obtain Caccamo's marijuana after he lost the key to the lock box. All these factors indicate the offense was carried out in a dispassionate and calculated manner." These factors show no more than the premeditation and deliberation required for first-degree murder.

[7] We assume that the Board meant that Samble's parole plans needed to be more detailed or more definite, that is, in the vernacular-"firmed-up."