In re Cooper

Filed 12/3/08 In re Cooper CA1/2

Opinion following remand

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

On February 16, 2006, the Board of Prison Terms (Board) found Peter George Cooper suitable for release on parole. Cooper had entered prison on July 16, 1987; he was serving an indeterminate prison term of 16 years to life for his conviction of second degree murder with use of a deadly weapon (Pen. Code, 187, 12022, subdivision (b)). Governor Arnold Schwarzenegger reversed the Boards grant of parole, finding that the commitment offense was particularly heinous, leading him to conclude that Coopers present release posed an unreasonable public safety risk.

Cooper filed a petition for writ of habeas corpus in this court, requesting that we reinstate the Boards grant of parole. In our published opinion filed July 27, 2007, we concluded that some evidence did not support the Governors decision to reverse the Boards grant of parole. (See, e.g., In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz).) Additionally, we noted that the Attorney General conceded that it could not specify what documents were actually reviewed by the Governor. This admission raised serious due process questions. However, since we had the entire record that was before the Board and our review of the record indicated that there was no evidence to support a decision other than the one reached by the Board, we concluded that a remand to the Governor in this case would be pointless. We therefore granted Coopers petition for habeas corpus relief and reinstated the Boards grant of parole.

A petition for review was filed in the Supreme Court, which the court granted on October 24, 2007. The Supreme Court subsequently transferred the matter back to us with directions to vacate our decision and to reconsider the cause in light of In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis). We hereby vacate our prior opinion and review this case in the context of Lawrence and Shaputis. We again conclude that some evidence did not support the Governors decision to reverse the Boards grant of parole. Accordingly, we grant Coopers petition for habeas corpus relief and reinstate the Boards grant of parole.

BACKGROUND

Commitment Offense

After graduating from a university with a four-year degree in 1978, Cooper worked in computer applications and systems programming. From 1985 until his arrest in November 1986, Cooper was self-employed as an independent consultant.

In 1981, Cooper developed a drinking problem, which worsened over the next couple of years. During the summer of 1984, he attended Alcoholics Anonymous (AA) meetings and entered a 30-day residential program at a San Francisco hospital.

Cooper again began drinking and, in February 1985, he was convicted of drunk driving for driving with blood alcohol of 0.26 percent. Cooper was placed on three years probation. He completed the First Offender Program and paid his fine.

In June 1986, Cooper married Joan Harwitt (Joan). About one month later, on July 20, Cooper suffered a seizure at his home. This seizure was caused by his attempt to detoxify without any medical supervision after a period of especially heavy drinking. Cooper was admonished that another seizure could be fatal.

Cooper quit drinking and, after six days as an inpatient, entered the hospitals outpatient rehabilitation program. The four-day-a-week program included counseling, stress management sessions, and family sessions, which included Joan. Cooper also attended AA meetings.

On November 16, 1986, Cooper and Joan were in the kitchen of their home; Joan asked him to hug her. He stroked her back; she responded by asking him if he wanted to go upstairs to bed. He tensely responded, No, absolutely not. Cooper noticed Joans eyes tear and he left the kitchen and went upstairs to his office. He returned to the kitchen about 15 or 20 minutes later and stated that he would work on some shelves for the garage. Both Joan and Cooper went to the garage. He propped open the door between the garage and den with a 48-ounce sledgehammer, which he had removed from a closet.

After some discussion, Cooper and Joan returned inside the house and Cooper picked up the sledgehammer. Joan came up behind him and the two embraced. As they hugged, Joan became aroused and began fondling him. He asked her to stop, which angered her. She pushed away and yelled at him that he did not want her. She asked him if he would ever be a man to her again. Joan blamed Coopers alcoholism treatment on his sexual problems and began to berate him and complain about his lack of sexual intimacy. She asked him if he needed a bottle to want to fuck her. She yelled at him that he was not a man and that he was nothing but a rubber dick queer. Joan continued: Youve known all along you were a queer, your mother told you, you were a queer . . . . Youre nothing but a limp dick, your mother told you, you are a queer and I should tell your mother she was right. Joans yelling went on for about 10 minutes. Cooper had his back to the garage door and Joan paced up and down in front of him.

Cooper became angry when Joan called him a queer, but he asserted that Joans threat to tell his mother was catastrophic. He became enraged and fearful that she might tell his mother. He began to scream back and told her that he was not going to take it anymore. Joan proceeded to tell him: Why dont you just go out and get a queer little boy just like you. Why dont you go out and get a queer little boy and suck it off?

As Joan paced towards the den, Cooper rushed behind her carrying the sledgehammer and, with a swinging downward blow to the back of her head and neck, knocked her down with the sledgehammer. While Joan remained on the ground, Cooper went up to her and struck her neck with the sledgehammer five or six times.

Cooper dropped the sledgehammer and ran upstairs. After he regained his composure, he returned downstairs. He examined Joan and concluded she was dead.

An autopsy established that Joan died of spinal shock from blunt trauma injuries to the back of the neck. She also had a bruise in the pubic region consistent with being kicked or hit there. She also had bruises to her head and chin. She lived for up to 20 or 30 minutes after suffering the injuries and might have survived with immediate medical attention.

Cooper placed Joans body, purse, and eyeglasses into the trunk of her car and drove to the airport. He left the car in the airport parking garage after wiping his fingerprints off the steering wheel. He took a cab to a hospital and then took another cab home from the hospital.

Once Cooper returned home, he cleaned the bloodstain off the den carpet. Later he removed the portion of the carpet that had the bloodstain and replaced it. He covered the replaced carpet with a sofa.

The following evening, on November 17, 1986, Cooper reported to the police that Joan had not returned from a shopping trip. Cooper told friends and Joans family essentially the same story. After a number of interviews with the police over the course of a few days, Cooper confessed to the killing on November 21.

The Trials, Convictions, and Appeals

A jury convicted Cooper of second degree murder, and he appealed from the judgment. In a nonpublished decision we vacated the judgment because the trial judge had prejudicially responded to jury questions about manslaughter and murder without the presence of either partys counsel.

A second jury trial resulted in a verdict of guilt for second degree murder ( 187) of Coopers wife. The jury also found true allegations of deadly weapon use (a sledgehammer) and great bodily injury ( 12022, subd. (b), 1203.75, subd. (a)(1)). The trial court sentenced defendant to 15 years to life plus a one-year enhancement for use of a deadly weapon. Cooper appealed and we affirmed in a nonpublished decision.

In-Prison Behavior

During the entire time he has been incarcerated, Cooper has not received any violation reports, either serious or administrative. He has attended AA meetings and a number of other self-help groups, such as stress management, anger management, and breaking barriers. Cooper has the lowest custody classification permitted for prisoners with a life term.

The Governor summarized Coopers behavior while incarcerated as follows: Cooper has made efforts to enhance his ability to function within the law upon release. He has upgraded vocationally, gaining and sharpening marketable skills, in particular in the fields of Radiological Technologist, X-Ray Technician, Nursery Operator, Landscaping and Horticulture, Silk Screen, and Grading/Marketing Training. He has held skilled jobs within the institutional setting and has participated in Hospice Volunteer Training, Blind Project, and the Pastoral Care Services Program, among others, receiving positive reports from institutional staff. He has availed himself of an array of self-help and therapy, including Understanding and Handling Addiction, AngerCreating New Choices, Breaking Barriers, CriminonThe Way to Happiness, Friend Outside, Creative Conflict Resolution/Anger Management Workshop, IMPACT Workshop, Alcoholics Anonymous, Narcotics Anonymous, V.O.L.T., Victim/Offender Reconciliation Group, The Complete Idiots Guide to Managing Stress, Mens Violence Prevention Seminar, Impact of Victims of Crime, Stress Management, Conflict Resolution, Parenting Skills, Values Clarification Workshops. Likewise, he has received favorable evaluations from various correctional and mental-health professionals and has made realistic, confirmed parole plans that include housing options, substance-abuse-prevention support, and a lined-up job interview. . . .

Board Hearing in 2006

On February 16, 2006, Cooper represented himself at his hearing before Presiding Commissioner Tracey St. Julien and Deputy Commissioner Bruce Mitchell. The Board considered Coopers score of 80 on the Global Assessment and Functioning Scale. The scores on this scale range from 1 to 100; a score in the 80 or 90 range indicates that the person is functioning quite well with the general population and the person gets along with others. The psychological report considered by the Board described Coopers current mental status and treatment needs as follows: Currently, the Inmate does not have any severe mental pathology. His mental status is within normal limits, and theres no psychosis. With respect to Coopers appreciation of the crime he committed, the report also stated that Cooper has a high degree of insight and very well developed sense of empathy towards the victim, as well as an appropriate remorse for what has happened.

The only letter in opposition to Coopers parole was a form letter from an acting police chief of the City of San Mateo. The district attorney, trial judge, and victims family provided no letters in opposition.

Cooper prepared a Lifer Memorandum Packet (Lifer Memo) that addressed his crime, his remorse, other aspects of Coopers institutional behavior, and Coopers parole plans. With regard to his parole plans, Cooper presented letters from his family and friends indicating he had an extensive support network. His plan was to work part-time initially as an X-ray technician and then to take his state certification tests in computer tomography and magnetic resonance imaging. Cooper stated that he planned to obtain a masters of science in medical physics and then work in radiology and oncology as a medical physicist.

At the beginning of the hearing, Cooper mentioned an issue of concern that had been raised at the conclusion of his prior parole hearing in 2004. Cooper stated a commissioner at his 2004 hearing found that Cooper likes to be in control of a situation. Cooper believed this conclusion was based on an earlier statement by the district attorney that had been discussed at his 2002 parole hearing and on Coopers body language at the 2004 parole hearing.^[1] Cooper expressed concern that he did not know how to respond to the commissioners comment about his body language. Deputy Commissioner Mitchell responded that the current Board members were not at the prior hearings and, although they would consider the earlier comments, they were specifically concerned with Coopers responses to questions at the current hearing. When Cooper was asked how he thought his demeanor was perceived at the prior hearing, he said: Well, I think thatsI think thats part of my point. ImI perceive my demeanordemeanor to be like. Gee, I wish this was over because I really need to get these handcuffs off, okay? And I think I said something to my attorney as I left, you know, thatit wasntwasnt caught onon tape, but I wasI was pretty exhausted and in pain by the time thethe hearing was over.

The Boards Findings and Grant of Parole

Following the questioning of Cooper and the consideration of his testimony and the documents presented at the hearing, the two-person Board panel granted Cooper parole. The Board noted that it had seriously considered the brutal murder of Joan and the facts that Cooper did not seek medical aid for Joan after hitting her and that he placed her body in her cars trunk and left the car at the airport parking lot. The panel noted, however, that through Coopers years of incarceration [he had] rehabilitated himself and that he would no longer be a risk or a danger to public safety. The presiding commissioner stated that she would encourage and recommend that any review of this grant of parole make sure that the prisoners [Lifer Memo] that he had prepared is included in those materials.

The Board found that Cooper had rehabilitated himself, would no longer be a risk or a danger to public safety, had no juvenile record, and had a stable social history. It also concluded that he lacked a significant criminal history of a violent nature, or of any other criminal nature, and because of maturation, growth, greater understanding and advanced age, he ha[d] a reduced probability of recidivism[,] had realistic parole plans[,] and had marketable skills[.] It also found that he had shown signs of remorse, understood the nature and magnitude of the offense, and accepted responsibility for it.

The Board used its regulatory matrix for setting the base term and concluded that Coopers crime was aggravated because of the opportunity to stop the crime and seek help for the victim, as well as the special relationship of confidence and trust with the victim. The Board determined a base term of 240 months and subtracted 72 months for post-conviction credits. The Board set his minimum eligible parole date of July 24, 2001.

Governors Review and Reversal

On July 5, 2006, the Governor by letter provided notice that he was reversing the Boards decision. The Governor summarized Coopers crime and noted his record of remaining discipline-free while incarcerated and his efforts to improve his skills and take self-help classes. The Governor provided the following explanation for his reversal: But despite any factors tending to support Mr. Coopers parole suitability at this time, the second degree murder he perpetrated was especially heinous due to the brutality with which it was carried out and his efforts afterwards to conceal what he had done. Mr. Cooper beat his wife in the head multiple times with a sledgehammer, including, according to the Court of Appeal opinion, after she had fallen down. Following that, by his own admission at his 2006 parole hearing, he left her, alive and wounded, and went upstairs. When he returned and discovered Mrs. Cooper was dead, he tried to cover up what he had done by transporting and then dumping her body. According to Mr. Coopers statements per the police report, he also cleaned the crime scene upon returning home. Mr. Cooper later reported his wife missing and concocted a story to police. While Mr. Cooper eventually admitted to police that he killed his wife, he went to great lengths initially to conceal it. The nature and circumstances of the second degree murder committed by Mr. Cooper are alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk.

The 2004 Board, when finding Mr. Cooper unsuitable for parole, concluded that he still is a man who wants to be in total charge, and when he is not it is very uncomfortable with him. That same Board also concluded that Mr. Cooper lacked insight into his crime. At his 2006 parole hearing, Mr. Cooper told the Board that he accepts responsibility and is remorseful for his wifes murder. The 2006 Board stated that Mr. Cooper indicated that he understands the nature and magnitude of his crime and accepts responsibility for his actions.

The Governor concluded that, given the current record before him, and after carefully considering the very same factors the Board must consider, he found the gravity of the murder committed by Mr. Cooper presently outweighs any positive factors tending to support his parole suitability. He therefore found that Coopers release would pose an unreasonable risk of danger to society at this time and reversed the Boards 2006 decision to grant parole to Cooper.

Habeas Corpus Proceedings and Petition for Review

Cooper filed a petition for habeas corpus in the superior court, challenging the Governors reversal of the Boards grant of parole. Without issuing an order to show cause or conducting any hearing, the superior court summarily denied the petition. On January 17, 2007, Cooper filed his habeas corpus petition in propria persona in this court, again challenging the Governors decision.

We issued an order to show cause and appointed counsel for Cooper. Pursuant to our order to show cause, the Attorney General filed a return on April 18, 2007. The Attorney General attached five exhibits to the return, including the transcript of the entire Board hearing on February 16, 2006.

Counsel for Cooper moved to require the Attorney General to lodge with this court and serve on Cooper the entire administrative record that was actually reviewed by the Governor. We granted the motion and the Attorney General lodged what it represented to this court was the entire administrative record that was actually before the Governor. The record lodged with this court contained numerous documents such as, Coopers work time cards, trust account transactions, and prison schedules. This record, however, did not include the first 116 pages of the transcript of the 2006 Board hearing, which was the entire evidentiary portion of the hearing. It also did not include the Lifer Memo.

Cooper filed his traverse. He maintained that the Governors decision violated his due process rights because the record before the Governor was insufficient. Cooper also argued that an independent basis for reversing the Governors decision was that some evidence did not support the reversal of the Boards decision to grant parole.

We issued an order to have the Attorney General file a reply brief to respond to Coopers due process argument and to the assertion that the record before the Governor was incomplete. The Attorney General filed a response asserting that it could not ascertain the exact record before the Governor.

In our published opinion, we concluded that some evidence did not support the Governors decision to reverse the Boards grant of parole; we thus grant Coopers petition for habeas corpus relief and reinstated the Boards grant of parole. The Attorney General petitioned the Supreme Court for review, which the court granted. Subsequently, the Supreme Court transferred this case to us with direction to vacate our prior decision and to reconsider the cause in light of Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241.

DISCUSSION

I. The Statutory Framework and Judicial Review

When considering parole for an indeterminate life inmate, the Board first determines suitability for parole. If it finds the inmate suitable, the Board establishes a parole release date. [Citations.] Conversely, if the Board concludes that public safety requires a lengthier period of incarceration, parole will be denied. (In re Burns (2006) 136 Cal.App.4th 1318, 1325.) Penal Code section 3041, subdivision (a) reads: One year prior to the inmates minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in [Penal Code] Section 3041.5. . . . The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The Board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.

Subdivision (b) of Penal Code section 3041 provides in pertinent part, that [t]he panel or the board sitting en banc, shall 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 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.

The Boards parole decision is guided by regulations, which direct the Board to consider the following information: All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoners 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 prisoners 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. (Cal. Code Regs., tit. 15, 2402, subd. (b).)^[2]

The regulations further direct the Board to consider six nonexclusive circumstances tending to show unsuitability ( 2402, subd. (c)) and nine tending to show suitability ( 2402, subd. (d)). (See also In re Scott (2004) 119 Cal.App.4th 871, 888, 897 (Scott I).) Circumstances tending to show unsuitability include that the inmate: (1) . . . committed the offense in an especially heinous, atrocious or cruel manner. ( 2402, subd. (c)(1).) In deciding whether the crime was particularly heinous, atrocious, or cruel the Board is to consider the following factors: (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. (Id., subd. (c)(1)(A)-(E).)

Other circumstances tending to indicate unsuitability for parole are that the inmate possesses a previous record of violence, has an unstable social history, has previously sexually assaulted another individual in a sadistic manner, has a lengthy history of severe mental problems related to the offense, and has engaged in serious misconduct while in prison. ( 2402, subd. (c)(2)-(6).)

Circumstances tending to show suitability for parole are that the inmate has no juvenile record, a stable social history, has shown signs of remorse, committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time ( 2402, subd. (d)(4)), committed the offense as a result of battered woman syndrome, lacks any significant history of violent crime, is of an age that reduces the probability of recidivism, has made realistic plans for release, and has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Id., subd. (d).)

The specified unsuitability and suitability factors are general guidelines only. ( 2402, subds. (c), (d).) The Board is expected to consider [a]ll relevant, reliable information available . . . . Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability. (Id., subd. (b).) Regardless 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. (Id., subd. (a).)

In Rosenkrantz, 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 upon the factors specified by the statute and regulation. If the decisions 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 prisoners 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, italics added; see also Scott I, supra, 119 Cal.App.4th 871; In re Scott (2005) 133 Cal.App.4th 573 (Scott II).)

By some evidence, courts have explained that [o]nly a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board]. . . . [T]he 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. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Boards] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the courts review is limited to ascertaining whether there is some evidence in the record that supports the [Boards] decision. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)

A Governors review of a Board suitability decision is constitutionally authorized but subject to procedures provided by statute (Cal. Const., art. V., 8, subd. (b)). The Governor may review, and then affirm, modify or reverse the decision, on the basis of the same factors which the parole authority is required to consider and must issue a written statement of his or her reasons (ibid.; Pen. Code, 3041.2, subd. (b)).

Court review of a Governors decision ensures, among other due process rights, that the decision be supported by some evidence, the same standard for reviewing Board decisions. [T]he voters in adopting the constitutional provision placed substantive limitations upon the Governors exercise of that judgment and discretion. The provision mandates that the Governor consider only the same factors that may be considered by the Board. Having chosen to review a parole decision, the Governor lacks discretion to disregard this requirement, which distinguishes the Governors parole review authority from his authority to grant pardons and commutations. Because this requirement gives rise to a liberty interest protected by due process of law, and because due process of law requires that a decision considering such factors be supported by some evidence in the record, the Governors decision is subject to judicial review to ensure compliance with this constitutional mandate. (Rosenkrantz, supra, 29 Cal.4th at pp. 663-664.) (In re Elkins (2006) 144 Cal.App.4th 475, 488-489 (Elkins).)

While the Governor must consider the same circumstances as the Board, the Governor may weigh them differently and draw contrary conclusions. (Rosenkrantz, supra, 29 Cal.4th at pp. 669-670; Elkins, supra, 144 Cal.App.4th at p. 489.)

In denying relief in the present case, the court below did not conduct an evidentiary hearing. This is therefore an original proceeding in which we independently review the record. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) However, resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor. (Ibid.)

II. Reviewing the Governors Decision for Some Evidence

In the present case, the Governor concluded Cooper was unsuitable for parole based on the commitment offense. None of the other factors set forth in section 2402, subdivision (c) was mentioned by the Governor and a review of the record establishes that, other than the commitment offense, none of the unsuitability factors applies to Coopers case. Under section 2402, subdivision (b), the Board and Governor are also to consider the inmates past and present attitude toward the crime when considering suitability for parole. The Attorney General contends that some evidence in the record supported the Governors finding that Cooper lacked insight based on the evidence that Cooper lacked control and needed to be in charge.

In our prior opinion, we concluded that, when reviewing the Governors decision, [t]he test is not whether some evidence supports the reasons . . . for denying parole, but whether some evidence indicates a parolees release unreasonably endangers public safety. (In re Lee (2006) 143 Cal.App.4th 1400, 1408.) The Attorney General argued that we should discount the test set forth in Lee as well as in other cases (e.g., In re Weider (2006) 145 Cal.App.4th 570), including our own decisions (e.g., Elkins, supra, 144 Cal.App.4th 475), and apply the test of whether some evidence supports the Governors reasons or findings.

Our Supreme Court now has confirmed that the test we used in our prior opinion was the proper test. The Supreme Court in Lawrence, supra, 44 Cal.4th 1181 explained that the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety, which involves an assessment of an inmates current dangerousness. (Lawrence, supra, at p. 1205.) When applying this test to the record before it in Lawrence, the Supreme Court determined that the Governors reliance on the commitment offense in determining that the petitioner wasunsuitable for parole was not supported by some evidence as the record did not contain any evidence that the petitioner was currently dangerous. (Id. at pp. 1190-1191.) In contrast, when applying this same test to the record in Shaputis, supra, 44 Cal.4th 1241, the Supreme Court concluded that some evidence did support the Governors finding that the petitioner was unsuitable for parole. In Shaputis, the commitment offense indicated that the petitioner still posed a danger to society because the murder was not an isolated act of violence, but the culmination of a pattern of violence, and the petitioner still did not accept responsibility for the murder. (Id. at pp. 1259-1260.)

Thus, under the holdings of both Lawrence and Shaputis,we consider whether some evidence in the record supports a finding that Coopers release unreasonably endangers the public safety based on his lack of insight or his commitment offense.

A. Lack of Insight

In his decision to reverse the Board, the Governor mentioned a statement by the commissioner at Coopers prior parole hearing in 2004 that Cooper was unsuitable for parole partially because he was a person who wants to be in total charge, and when he is not it is very uncomfortable with him. The Governor also pointed out that the commissioners at the 2004 parole board hearing concluded that Cooper lacked insight into his crime. Although the Governors reversal of the Boards decision did not seem to rely on the factors of a lack of insight and control, the Attorney General contends some evidence in the record supports a lack of insight or control and therefore we must sustain the Governors reversal.

The Attorney General acknowledges that the 2006 Board found Cooper did understand the nature and magnitude of his crime but points out the Governor is not bound by this conclusion (see Rosenkrantz, supra, 29 Cal.4th at p. 679). We agree the Governor does not have to come to the same conclusions as the Board, but the Governors decision must be supported by some evidence presented at the 2006 parole hearing. The Governor cited to no evidence before the 2006 Board that questions the Boards finding that Cooper had insight into the nature and magnitude of the crime. Indeed, the most current psychological evaluation of Cooper concluded that he had a high degree of insight and very well developed sense of empathy towards the victim, as well as an appropriate remorse for what has happened. Additionally, Coopers Lifer Memo addressed his remorse. The Board found, based on the entire record before it, that Cooper shows signs of remorse and understands the nature and magnitude of the offense and accepts responsibility for [it]. Nothing in the record before the 2006 Board contradicts this finding.

With regard to Coopers need to be in control, Cooper explained at the 2006 parole hearing that he had been uncomfortable at the prior hearing because he was in handcuffs. Deputy Commissioner Mitchell commented that the current Board was not present at the prior 2004 hearing and, although this Board would consider these earlier comments, the current Board would be specifically looking at how Cooper responded to questions at the 2006 hearing. Commissioner Mitchell and Presiding Commissioner St. Julien found nothing at the present hearing to indicate Cooper had to be in control. As noted above, the Governor merely mentioned comments from the 2004 hearing but pointed to no evidence presented at the 2006 hearing that indicated Cooper lacked insight or control.

The Governors review of the Boards decision is limited to a consideration of the record before the hearing panel. (In re Arafiles (1992) 6 Cal.App.4th 1467, 1477; see also Rosenkrantz, supra, 29 Cal.4th at pp. 660-661 [Governors de novo review of the inmates suitability for parole is limited to the same considerations that inform the Boards decision].) Evidence not before the Board cannot be relied upon by the Governor.^[3] (In re Smith (2003) 109 Cal.App.4th 489, 505 (Smith I); see also In re Gray (2007) 151 Cal.App.4th 379.)

The record before the Board, which is identical to the record the Governor is to review, contained no evidence to support a finding that Cooper lacked insight into the commitment offense or lacked control. Accordingly, we conclude no evidence in the record supported the Governors reversal based on lack of insight or control.

B. The Gravity of the Commitment Offense

As already noted, there are six factors that indicate unsuitability, and the only remaining factor that could be applied in the present case was the factor relied upon by the Governor, which is that the murder was committed in an especially heinous, atrocious, or cruel manner. To support a finding that the offense was committed in an especially heinous, atrocious or cruel manner there must be some evidence that the violence and viciousness of the inmates crime is greater than that which is minimally necessary to convict [the defendant] of the offense for which he is confined. ( 2402, subd. (c)(1); In re Dannenberg (2005) 34 Cal.4th 1061, 1095.) [P]arole is the rule, rather than the exception, and a conviction for second degree murder does not automatically render one unsuitable. (In re Smith (2003) 114 Cal.App.4th 343, 366 (Smith II).)

The court in In re Dannenberg clarified that, in finding an inmate unsuitable for parole, the Board may rely solely upon the circumstances of the crime. (In re Dannenberg, supra, 34 Cal.4th at p. 1095.) The court recognized, however, that reliance upon the circumstances of the prisoners offense alone might contravene the inmates constitutionally protected expectation of parole. The court explained: [S]uch a violation could occur, for example[,] where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. [Citation.] . . . [I]n order to prevent the parole authoritys case-by-case suitability determinations from swallowing the rule that parole should normally be granted, an offense must be particularly egregious to justify the denial of parole. (Id. at pp. 1094-1095.)

Similarly, we stressed in In re Scott II, supra, 133 Cal.App.4th 573, the problems with relying exclusively on the commitment offense. (Id. at pp. 594-595.) Reliance on such an immutable factor without regard to or consideration of subsequent circumstances may be unfair [citation] and runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation. [Citation.] The commitment offense can negate suitability only if circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison. Yet, the predictive value of the commitment offense may be very questionable after a long period of time. (Scott II, supra, 133 Cal.App.4th at p. 595.)

In Lawrence, supra, 44 Cal.4th 1181, our Supreme Court pointed out that after prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness. (Id. at p. 1211, italics added.) The circumstances of the commitment offense are only relevant to the extent they relate to whether a prisoner remains a danger to the public. (Id. at p. 1212.) The court emphasized that it is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for paroleit is the implication concerning future dangerousness that derives from the prisoner having committed that crime. (Id. at pp. 1212-1213.) The court concluded: [A]lthough 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 prisoners pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoners 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. (Id. at p. 1214.)

The commitment offense in the present case is second degree murder. Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elementsi.e., willfulness, premeditation, and deliberationthat would support a conviction of first degree murder. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102, italics omitted.) Malice itself involves an element of viciousnessan extreme indifference to the value of human life. (People v. Summers (1983) 147 Cal.App.3d 180, 184.) As has been previously noted, [A]ll second degree murders by definition involve some callousnessi.e., lack of emotion or sympathy, emotional insensitivity, indifference to the feelings and suffering of others. (Scott I, supra, 119 Cal.App.4th at p. 891; see also In re Weider, supra, 145 Cal.App.4th at p. 587.) Thus, the inquiry is whether among murders the one committed by [Cooper] was particularly heinous, atrocious or cruel. (In re Lee, supra, 143 Cal.App.4th at p. 1409.)

Here, the Governor explained that he believed the second degree murder committed by Cooper was especially heinous due to the brutality with which it was carried out and his efforts afterwards to conceal what he had done. Mr. Cooper beat his wife in the head multiple times with a sledgehammer, including, . . . after she had fallen down. Following that, by his own admission at his 2006 parole hearing, he left her, alive and wounded, and went upstairs. When he returned and discovered Mrs. Cooper was dead, he tried to cover up what he had done by transporting and then dumping her body. According to Mr. Coopers statements per the police report, he also cleaned the crime scene upon returning home. Mr. Cooper later reported his wife missing and concocted a story to police. While Mr. Cooper eventually admitted to police that he killed his wife, he went to great lengths initially to conceal it. The nature and circumstances of the second degree murder committed by Mr. Cooper are alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk.

In deciding whether the crime was particularly heinous, atrocious, or cruel the Governor is to consider the following factors: (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. ( 2402, subd. (c)(1)(A)-(E).)

In the present case, the Governor appears to be relying on the factor that the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering. None of the other foregoing factors applies to this case.

The Attorney General contends that Coopers offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering partially because of the brutality involved in Coopers hitting his wife with a sledgehammer and his failure to stop after inflicting the first blow to her. The Attorney General stresses that Cooper admitted to continuing to hit his wife even though she shut up after the first blow. Further, he left her alive when the forensic evidence established that immediate medical help might have saved her.

We have previously held that the Governor cannot rely on the fact that the killing could have been avoided to show the killing was especially brutal. (Elkins, supra, 144 Cal.App.4th at p. 497; In re Barker (2007) 151 Cal.App.4th 346, 375.) If Cooper had stopped after the first blow, no murder would have occurred. Similarly, if immediate medical attention had saved his wife, Cooper would not have been convicted of second degree murder. Thus, the fact that he did not stop, but carried out the crime, cannot be a factor that shows this killing was particularly brutal [b]ecause it violates due process to deny parole where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. (Elkins, supra, at p. 497.)

The Attorney General asserts that the brutality in the present case is similar to that in In re Dannenberg, supra, 34 Cal.4th 1061. However, the focus is to be on the facts of Coopers crime; these facts are not to be compared to other murders in other cases (Lawrence, supra, 44 Cal.4th at p. 1217). Another factor demonstrating the cruelty and callousness, according to the Attorney General, was Coopers attempts to conceal or cover up the crime. This latter factor, however, is not related to the murder itself, and theattempt to cover up a crime is common to almost all crimes. Unless the person is caught at the scene, it is rare for murderers to reject taking any steps to avoid prosecution. In the present case, Cooper did initially attempt to conceal the murder, but he did ultimately confess to the crime. Coopers initial attempts to avoid prosecution considered with his confession days later do not make his crime particularly heinous and do not make him more likely to reoffend.
We agree that Coopers crime was callous when he beat his wife with a sledgehammer. However, the facts of this case were no more callous than most such

offenses and not beyond the minimum for malice aforethought. (See, e.g., Smith II, supra, 114 Cal.App.4th at p. 367.) Further, as the Supreme Court reiterated in Lawrence, supra, 44 Cal.4th at page 1221, the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes.

The Attorney General in its supplemental brief argues that the commitment offense continues to be probative of Coopers current dangerousness. To support this assertion, the Attorney General points to the 2004 Boards finding that Cooper was still a man who wanted to be in charge and that he lacked insight into his crime. As we have already discussed, these were findings of an earlier Board and not part of the record before the current board. The 2006 Board found Cooper did understand the nature and magnitude of his crime. The most current psychological evaluation of Cooper concluded that he had a high degree of insight and very well developed sense of empathy towards the victim, as well as an appropriate remorse for what has happened. The more current psychological evaluations undermined the evidentiary value of any older or stale reports. (See Lawrence, supra, 44 Cal.4th at pp. 1223-1224.) Additionally, Coopers Lifer Memo addressed his remorse. The 2006 Board found, based on the entire record before it, that Cooper shows signs of remorse and understands the nature and magnitude of the offense and accepts responsibility for [it]. Nothing in the record before the 2006 Board contradicts this finding. (Ibid.)

Thus, the Governors reliance on a prior Boards findings rather than evidence before that Board or the current psychological evaluations of Cooper does not provide some evidence that Cooper poses a current risk to the public. The Attorney General has pointed to no facts in the record before the 2006 Board indicating that the commitment offense shows that Cooper poses a current public safety risk. This is not a situation as in Shaputis where Cooper has failed to take responsibility for the murder; nor is this a situation like Shaputis where Cooper exhibited a pattern of abuse or violence prior to the killing of his wife. (See Shaputis, supra, 44 Cal.4th 1241 [lack of insight into previous violent behavior and failure to take responsibility for crime constituted factors indicating that the petitioner currently posed a risk to the community].)

Further, under Board regulations, the prisoners motivation for the offense tends to show suitability when it was the result of significant stress in his life, especially if the stress has built over a long period of time ( 2402, subd. (d)(4)). In this particular case, Cooper had suffered an alcoholic seizure in July 1986 and was told that another seizure could be fatal. He was attending AA meetings and participating in counseling when the crime occurred on November 16, 1986. His marital relationship was also creating stress partly as a result of his inability to perform sexually. Cooper told the probation officer in 1987 that [i]n the very time period when Joan wanted me and pressured me the most, I had two jobs, a full-time commitment to a recovery program and very little sex drive. The probation officers report prepared in June 1987 stated that Coopers crime was committed because of an unusual circumstance which is unlikely to recur.

The Governors decision fails to mention or consider the significant stress in Coopers life. The Governor was obligated to consider the significant stress Cooper was experiencing at and prior to the time he committed his offense. (See, e.g., Rosenkrantz, supra, 29 Cal.4th at p. 679; Scott I, supra, 119 Cal.App.4th at p. 899; Scott II, supra, 133 Cal.App.4th at p. 596.) The Governors failure to consider whether Cooper committed his offense as the result of significant stress in his life is arbitrary and capricious in the sense that he failed to apply the controlling legal principles to the facts before him.(Scott II, supra, at p. 596.) The present case resembles the situation in Lawrence, supra, 44 Cal.4th 1181, in that Coopers commitment offense was an isolated incident, committed while Cooper was subject to emotional stress that was unusual or unlikely to recur.^[4]

Other circumstances establishing Coopers suitability for parole are that he has no juvenile record, has shown signs of remorse, lacks any significant history of violent crime, is over the age of 50 and thus of an age that reduces the probability of recidivism, has made realistic plans for release, and has engaged in institutional activities that indicate an enhanced ability to function within the law upon his release. ( 2402, subd. (d).) Indeed, Cooper has received no violation reports either serious or administrative while incarcerated and has availed himself of the opportunity to garner marketable skills.

On this record, we need not send the case back for the Governors reconsideration to take into account the stress in Coopers life, because of the absence of some evidence in the record establishing that the gravity of Coopers offense shows him unsuitable for release. In its supplemental brief, the Attorney General contends that the power to grant and revoke parole is vested exclusively in the executive branch, not the courts, and therefore we should remand the case back to the Board. Further, the Attorney General maintains that the courts determination that release is the proper remedy violates the Supreme Courts directive in Lawrence, supra, 44 Cal.4th at page 1204, not to reweigh the evidence. We, however, are not reweighing the evidence. Rather, we conclude that the record does not contain some evidence to support the Governors decision. Indeed, in Lawrence, the Supreme Court concluded that no evidence in the record supported the Governors decision and affirmed the judgment of the Court of Appeal. The Court of Appeal had not remanded the matter but had vacated theGovernors decision and reinstated the Boards order. (Lawrence, supra, 44 Cal.4th atp. 1229.)

We conclude that given the remoteness of the commitment offense, the lack of any previous record of violence, Coopers institutional behavior and accomplishments while incarcerated, his parole plans, his psychological evaluations, and the absence of any evidence that he is a current danger to society if released, there is no factual support whatsoever in the record before the Governor to reverse the Boards grant of parole to Cooper. Since the record before the Board in 2006 provides no evidence to support a decision other than the one reached by the Board and the Governor cannot augment the record before the Board, a remand to the Governor in this case would, as the Smith I court observed, amount to an idle act. (Smith I, supra, 109 Cal.App.4th at p. 507.)

Considering that the Governors decision reversing the Boards grant of a parole release date to Cooper was not made in accordance with applicable legal principles and not supported by some evidence, that reversal cannot stand, and Cooper is therefore entitled to the release date ordered by the Board.

III. The Record Before the Governor and Coopers Due Process Rights

Cooper argues that the Governors decision violated his due process rights because the record provided to the Governor was incomplete, inadequate, and misleading. He maintains that this deficient record, which did not contain critical documents such as his Lifer Memo and the evidentiary portion of his 2006 hearing, denied him his right to a meaningful hearing.

Penal Code section 3041.2 states that, when reviewing the decision of the parole authority, the Governor shall review materials provided by the parole authority. After examining the interpretation of review by courts in other jurisdictions, a California appellate court concluded, review indicates simplya re-examination of proceedings already had without the taking of any new evidence[,] and [t]he Governors review must satisfy minimum due process requirements. (In re Arafiles, supra, 6 Cal.App.4th at p. 1477.) The court in In re Arafiles concluded that the review authorized by Article V, section 8, subdivision (b) of the California Constitution and section 3041.2 of the Penal Code is confined to a reexamination and consideration of the administrative record before the [Board]. (Arafiles, at p. 1478.)

The Governors review must be of the same record that was before the Board. Although the Attorney General cannot verify exactly what documents were reviewed by the Governor, it appears that the entire record was not provided to the Governor.

The problems with the record presented to the Governor came to light after we granted Coopers motion, which the Attorney General opposed, to compel production of the entire administrative record before the Governor. On May 9, 2007, the Attorney General in its letter to this court stated that it had attached the entire administrative record used by the Governor to reverse petitioners parole grant . . . .

Coopers argument in his traverse asserted a due process violation claim because the record lodged by the Attorney General was missing critical documents. Cooper pointed out that much of the voluminous material in the record would have been useless to the Governor and would have required a significant amount of time to review. This voluminous record did not contain, among other documents, the evidentiary portion of the transcript of the 2006 Board hearing and the Lifer Memo. The Board had expressly recommended that the Lifer Memo be considered in any review of its decision.