In re Ozerson

Filed 7/13/09 In re Ozerson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

ORIGINAL PROCEEDING; petition for a writ of habeas corpus, Steven R. Van Sicklen, Judge. Affirmed.

James W. Whitehouse for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman and Lora Fox Martin, Deputy Attorneys General, for Respondent.

_______________

In 1987, Elizabeth Ozerson was sentenced to a term of 15 years to life for second degree murder, plus a 2-year enhancement for personal use of a handgun. In April 2007, the Board of Parole Hearings (Board) found Ozerson unsuitable for parole.^[1] Ozerson has filed a petition for writ of habeas corpus contending that she has been denied due process because no evidence supports the Boards conclusion that she would currently pose an unreasonable risk of danger to public safety if released on parole. We disagree and deny the petition.

BACKGROUND

A. Commitment Offense

The facts are drawn from the transcript of the parole hearing, during which the presiding commissioner read into the record the Court of Appeal opinion affirming the trial court judgment. (People v. Ozerson (Oct. 3, 1988, B028634) [nonpub. opn.].)

Ozerson married her husband Ray in 1975. The first part of their marriage was spent in Germany, where Ray was stationed in the armed forces. The couple came to California prior to 1979 and resided in Encino.

In May 1979, Ray accidentally sustained a gunshot wound to the head while cleaning his Smith & Wesson revolver. Ray had no memory of the incident due to the nature of the injury. Ozerson has said she was in the shower when it happened. She said Ray had been drinking and had insisted she give him his weapon cleaning kit.

Ozerson attempted to care for Ray, who made substantial progress in his recovery and was able to walk with a cane. He had been a futures trade investor at the time of his accident, then changed professions, becoming a computer programmer, analyst and consultant. There was testimony that he had a very positive outlook on life.

In the summer of 1981, Ozerson was working for an insurance company when she met an older man, Bert Kreisberg, in the office building. The two began an affair.^[2]

In 1983, the Ozersons bought a home in Tarzana. One witness described their neighborhood as a good, quiet neighborhood. Ozerson continued living with Ray, but spent most of her free time with Kreisberg. It appears that Ray did not know about the affair for a long time, despite Ozersons frequent absences from home and her claims that she was working overtime.^[3] Ozerson and Kreisberg traveled to Europe together several times, and she introduced him to her relatives in Scotland. The two socialized as a couple with other couples, even accompanying one couple to Las Vegas for that pairs wedding in 1985.

Kreisberg was a social visitor at the Ozersons home. For a while, Ray and Kreisberg ran an insurance business together. During that time, the Ozersons obtained a number of insurance policies from Jefferson National Life Insurance Company. The amount of coverage on Rays life was $240,000; Ozersons life was insured for a substantial amount as well.^[4]

Ozerson was upset that Kresiberg continued to see other women, but she resisted his pleas that she leave Ray for him. Ozerson was conflicted and insisted that although she loved Kreisberg, she also loved Ray and did not want to walk out on a disabled man.

In December 1986, Ozerson told Kreisberg she was ready to leave Ray. Kreisberg bought two tickets to Switzerland for the 17th of December. Ozerson assured Kreisberg that she would move out of the Tarzana residence by then. At first, she said she would move out on the 8th, but made an excuse, putting off the move until the 9th, and then until December 10th.

On December 10, 1986, the Ozersons were at home early in the morning. A number of the neighbors testified at trial that they saw Ozerson walking her dog after 7:30 a.m., later than her usual 7:00 a.m. walk. No one heard any gunshots.

As she returned home at about 7:45 a.m., Ozerson greeted Daniel Hale, her neighbor Ann Ostranders son-in-law, who was dropping off his infant son with Ostrander on his way to work. Moments later, Ozerson came running out of her backyard and said there was a man in her house and that Ray was inside. She was holding the dog leash and had the dog with her. Hale said the dog appeared calm.

Hale brought Ozerson into the Ostrander home to call the police. Ms. Ostrander dialed 911 and summoned the police. Ozerson said, I wonder what happened with Ray? She also said, My God, his car is out there, referring to Rays car, which Ms. Ostrander could not see. Ozerson continued to express concern about her husband and wanted to go back into the house, but was persuaded to wait for the police.

Hale went outside and looked around, but did not see or hear anyone departing from the Ozersons residence. He looked in the Ozersons backyard and could see that a sliding door in back was open about 12 inches. He ascertained that the gate on the far side of the house appeared to be locked and that Rays car was parked on that side of the driveway.

Los Angeles Police Officers Webb and Panek responded to the 911 call at 7:54 a.m. Officer Webb entered through the back sliding door of the Ozerson residence and observed a man lying on the floor in a pool of blood. He radioed for emergency medical care. Los Angeles paramedic Gocke arrived at 8:05 a.m. and examined the body. He noted no vital signs. Gocke observed a ring on the decedents finger.

Ozerson had described the man she had seen in the house as Hispanic, about 5 feet 9 inches tall, medium build, wearing a dark cap and dark clothing. Officer Webb, accompanied by Officers Johnson, Panek, and Kolb, searched the home thoroughly for the suspect, but found no one. Webb looked for evidence of escape. The grass in the yard was wet, but there were no footprints or impressions to indicate that someone had departed through the yard. Police Officer Maureen Conway, now at the scene, informed Ozerson at the Ostrander home that her husband was in the house, dead. Ozerson was hysterical. Officer Conway asked Ozerson if she would go to the station to assist in the investigation. Ozerson seemed anxious to cooperate and agreed to go to the station accompanied by Ms. Ostranders daughter, Susan Barton.

Conway, Ozerson, and Barton arrived at the West Valley Police Station. Detective Hart took Ozerson and Barton into an interview room. A police officer conducted a gun residue test on Ozerson, which came back negative. A pair of brown gloves belonging to her also tested negative for gunshot residue.

Ozerson was interviewed during the morning of December 10, then at length by Detective Dolley in the afternoon. Dolley advised her of her rights, which she waived. At various times, detectives told Ozerson untrue things to test her reaction. At one point, she was told she had tested positive for gunshot residue (she had not). She quickly explained that she had shot the family gun in the air in the backyard the night before the killing, on December 9th.

Detectives Dolley and Hart went out to the Ozersons house to investigate. There was no sign of forced entry into the residence. Rays body was in the family room area of the house. His cane was lying parallel to his body. In addition to his ring, Ray was wearing a watch on his left wrist and had $66 in his right pocket. There were no signs of a struggle. The detectives found a briefcase on the floor with a zippered clutch bag beneath it. Various items were positioned on the floor around the briefcase in a circle, seemingly staged. The only place in the house where there appeared to have been any activity was in the office. Desk drawers and a filing cabinet drawer were open, and papers were strewn about the floor. Detective Dolley testified that in his experience, burglars usually go directly to residential bedrooms to check drawers for womens jewelry and mens wallets. There was no sign of such activity in the Ozerson house. Ozersons jewelry was undisturbed. No effort had been made to take stereos or televisions, and the detectives noted there was no exit plan. Experienced burglars typically open a door or two for an escape route in case they need to leave in a hurry. The detectives also observed that Ray had been shot multiple times. A fleeing burglar, in their experience, would not engage in such overkill. The detectives noted Rays car in the driveway, another anomaly, because most burglars avoid residences that appear to be occupied or at least they test the doorbell first.

The detectives searched for Rays gun, but did not find it in the bedroom nightstand. They did find a pink towel with what appeared to be a gun imprint on it. Gunshot residue was found on the towel, but not, as noted, on Ozerson, her clothing, or her brown gloves. Gunshot residue was later found on each glove of a pair of gray gloves belonging to Ozerson, which Ms. Ostrander found in her home at different times after the crime. One glove was found near her living room couch, and shortly before Christmas, Ms. Ostrander found the other one under her dining room table and chairs. Ms. Ostrander recalled seeing Ozerson wearing them on the morning of the 10th.

As for the gun, the Ozerson home and neighborhood were searched extensively on December 10th and 12th, but it was not found. Firearms examiner Luczy had recovered several bullets from the wall and floor of the room where Rays body was found. The bullets were .357 magnum bullets and had been shot from a .38 caliber revolver. There was evidence that Rays gun was a .38 caliber revolver. Luczy and others went back to the Ozersons previous residence, where Rays gun-cleaning accident had occurred in 1979, and extracted a .38 caliber bullet from the ceiling. Officers also checked a gun belonging to Burt Kreisberg, but determined the bullets that killed Ray were not fired by his weapon.

Forensic pathologist Schnittker performed the autopsy and testified the cause of death was multiple gunshot wounds, four to the back, head, and chest. Death occurred between 7:00 and 8:00 a.m. on December 10th. Prosecutors advanced a theory that Ray had been shot twice in the back and then at closer range.

Ozerson denied guilt. A jury convicted her of second degree murder, and she was sentenced as noted.

At the parole hearing, Ozerson confirmed that an account she had given some years before remained accurate. She had stated that her husband was killed by an intruder. On the day of the offense, she had taken her dog for a walk and upon return between 7:30 and 8:00 a.m., entered her home through the back sliding door. She knew her husband was home because it was a weekday, and the car was still in the driveway. She saw a man standing in her den, looking toward the dining area. He appeared to be a Spanish or Filipino and wore dark clothing. He did not see her.

Ozerson immediately went to her neighbors house and called the police. The police arrived and told her they found her husband dead in the den where she had seen the intruder standing.

Ozerson ultimately admitted that for the last five years, off and on, she had been having an affair with another man. She had lied to her lover about leaving her husband, first saying she would leave Ray on December 8th, then on the 9th, and finally agreeing to leave him on the 10th, the day Ray was killed. Ozersons lover had badgered her, telling her that she was going to Switzerland with him. He purchased the tickets, then later told her he had returned the tickets. He bought the tickets again without her knowledge.

Ozerson stated she initially lied to the police, telling them that Kreisberg was a family friend and that she had not fired the gun the night before the killing. She stated that in the summer of 1986, Ray told her that he wanted to kill himself. He had expressed suicidal feelings before, and talked about suicide the night before he was killed. He told Ozerson she would be there when it happened. Ozerson took the gun with the intention of throwing it in the garbage. Instead, she went to the grassy area in her backyard. The dog jumped into her arms, and she accidentally fired the gun into the air. The gun was a .38 caliber Smith & Wesson. After firing the gun, she walked into the house and placed it on a towel in the room. Her husband yelled, the gun is dirty, so she picked up her gloves, which were lying on a table in the den, and wiped the gun clean with them. She then placed the gun back in the towel. She said the gun was never found.

B. Social History

Ozerson was born on September 19, 1953 and raised in Scotland. Her father died in 1999; her mother still lives there. She has an older brother who also lives in Scotland.

Ozerson attended school in Scotland, graduating high school and completing one year of college.^[5] She met Ray in Boston and married him in 1975 in Great Britain, after which they moved to Germany, where Ray was stationed in the armed forces. Ozerson worked as a secretary for the United States Army in Nuremberg, Germany for three years. She also was enrolled in a masters degree program for two and a half additional years.

Upon arriving in the United States, Ozerson worked for an insurance company, selling policies.^[6]

Ozerson has no juvenile criminal record. As an adult, she had one prior arrest for petty theft (she stole a carton of cigarettes). She was fined $80. She has no history of illegal use of drugs or abuse of alcohol.

C. Prison Record

Ozersons classification score^[7]is the mandatory minimum, 19. She received no CDC 115s^[8]and only one CDC 128-A.^[9] The CDC 128-Areceived ten years before the hearingwas for contraband food.

Ozerson participated in numerous self-help courses and therapy programs. She received a chrono^[10]from Correctional Officer Little John, certificates of appreciation from Title and Change, Alanon, the Prison Pups Program, and for completing HIV and AIDS training. She also participated in the Life Long-Term organization, Children at Risk Walkathon, and Toastmasters. Ozerson was involved in a 12-week psychotherapy group and was a tutor secretary for a program called Yes, I Can. She received a certificate from the Mexican American Resource Association (MARA) and participated in Victims Impact seminars, the Parenting program, Creative Conflict Resolution, Building Adequate Concepts with Life Plan for Recovery, Pathway to Wholeness, and Roots of Bitterness. She was a GED tutor and was involved in the Drug Awareness and Constant Relapse Prevention Program, Convicts Who are Women Versus Abuse seminars, Breaking Barriers, Narcotics Anonymous (NA), and Alcoholics Anonymous (AA). Ozerson also participated in Prison Fellowship Ministries, the Interfaith Chapel In-House Ministry, the Mentoring Outreach Program, drug awareness counseling (DAC), Anger Management, No More Colors, Introduction to Conflict and Information Skills, Canine Support Teams, and Time for Change Foundation.^[11]

She also took courses in the School of Ministry, Biblical Studies and earned an Associate of Arts degree. Her keyboarding certificate shows she types 97 words per minute. She is certified in Advanced Office Services, Sight Safety, and Introduction to Windows using Microsoft Windows 2000, Advanced Services, as well.

Ozerson was employed at the prison as a clerk and received exceptional grades from her supervisors.

D. Psychological Evaluations^[12]and Insight into Offense

There are no psychological evaluations in the record. The Deputy Commissioner read into the record an addendum by the author of her 2005 psychological report, Dr. Smith, as follows:

[O]n June 29, 2005, I received an inquiry from Inmate Ozerson concerning a[] comment of [sic] a report that I issued on June 10, 2005. Inmate Ozerson was concerned about my opening statements in section C under the review of life [crime] which reads, Inmate Ozerson does not express remorse in the sense that she does not admit to responsibility of [sic] her husbands death or regret direct action that [led] to his murder. Inmate Ozerson was concerned that the statement could be misunderstood and asked for clarification.

Acceptance of responsibility for the crime or remorse for the crime are often viewed as important indic[a]tors of suitability for parole. This is the reason that a section of the review of life crime outline which prescribes [the] way Board reports are to be written. Explicitly, as for comments concerning the existence of remorse, remorse is a deep, torturing sense of guilt held over a wrong that has been done, self-reproach. Remorse is sometimes used to communicate a lack of compassion in casual conversation, but [its] meaning in the context of the Board report is whether or not the individual being described has developed a lingering sense of responsibility and guilt that are appropriate in our safeguards against the return of the kind of thinking and decision making that [led] to the crime in the first place.

Inmate Ozerson, as I explained, does not admit to the murder of her husband. She does not admit to involvement [in] any conspiracy or taking any direct course of action that foreseeable[y led] to his murder. She does express a credible sense of regret and loss over his death. Saying that she has no remorse is not meant to infer that she is pitiless or callous in relation to the murder of her husband. Asymmetrically, a person cannot be remorseful over something they conten[d] they did not do. In discussing my comments with Inmate Ozerson on June 29, 2005, she remarked that she has had a suspicion over the years, that is without any evidence or proof, that her extramarital affair may have played some role in motivating the individual who actually murdered her husband. She does not know this for certain. It may be that the extramarital affair is unrelated in any way to her husbands death, and yet the two circumstances are associated in her mind. Inmate Ozerson does feel remorseful about having participated in the extramarital affair which was occurring prior to the murder of her husband.

My opinion concerning the psychological factors that bear on this womans suitability for parole [are] as described on pages four through six on my report. As I have stated previously, the li[k]elihood of this woman becoming dangerous to the community should she obtain a release from custody would be considered low to very low.

The Deputy Commissioner indicated that Dr. Smiths diagnostic impressions per the DSM-IV criteria were Axes I and II: no diagnosis; Axis III: migraine headaches and psoriasis; and Axis IV: stressors of incarceration. Ozersons GAF score was 85 (on a 100-point scale).

The Deputy Commissioner continued reviewing and reciting portions of the psychological report:

Relevance of mental condition to life crime, criminal behavior at the time the murder was committed. Inmate Ozerson was not suffering from any mental illness or drug related disorder according to the history she provides. Inmate (inaudible) and remorse. Inmate, well, I think thats been covered too, in the addendum. Cognitive factors, it is not possible to address positive factors as Inmate Ozerson contends she did not commit the crime. Assessment of dangerousness within a controlled setting, history reflected in the central file covering Ozersons incarceration at [California Institution for Women] since 1987 indicates that she generally conducts herself in a compliant, safe and non-violent manner within this controlling setting. There is no documentation whatever of interpersonal conflict, altercations o[r] other indications of violent and intimidating behavior. And it gives a risk assessment (inaudible), his summary reads as follow[s:] After interview[ing] Inmate Ozerson and having reviewed a central file and unit health record, it is concluded this inmate is mentally stable. There is no history of recent dangerousness, disciplinary violations or documented problems with peers or staff relations. There is no immediate threat of dangerousness should Inmate Ozerson be released to the community. This woman has a favorable risk profile for release to the community. That is, dangerousness is not reasonabl[y] foreseeable should she be released from custody. Historical (inaudible) of violent risk suggest this womans risk of becoming dangerous in a community after released from custody would be considered low to very low. I am fully supportive of a release in accordance with the psychological and risk assessment. And finally, Inmate Ozerson has matured beyond the age of the highest violen[ce] risk and her accomplishment in custody has been (inaudible).

The Presiding Commissioner (PC) asked Ozerson more questions about her opinion that her affair may have had something to do with her husbands death, as follows:

[PC]: [W]hat caused that revelation?

[Ozerson]: What caused that was the fact that Mr. Kreisberg would visit me here in the prison when I first came here. And he told me an entirely different story or he answered my questions entirely differently than he answered them on the stand[]. And I questioned him and he still answered melied to me and what he said on the stand. Because when I got my transcripts, I diligently looked through every page and everything I asked him at the time, he took a different story and he lied to me.

[PC]: With regard to what?

[Ozerson]: Just everything he said. Many things he said. One, for instance, was when he would take a trip, the first thing I did when I got to a phone booth was I called my husband. I brought home gifts for my husband, for friends and just little things that added up to horrendous lunacies that I was doing. I wasnt telling the truth and he told me a completely different story. All the time it was a different story.

[PC]: What specific things lead you to believe that he might be responsible for your husbands death?

[Ozerson]: Well, through the years when my husband said he wanted to commit suicide, he said he didnt care what happened to him, let him kill himself. And I discussed this with him from July until he was dead just about. He didnt want to hear it. Basically, he didnt care. So

[PC]: That was something that existed before, correct? When you told him about that before, he indicated that he didnt care what happened to your husband?

[Ozerson]: Correct.

[PC]: Okay. So now, what was it about what he was saying that led you [to] believe that he might be responsible for your husbands death?

[Ozerson]: What he was saying then was the fact that he didnt care and the fact afterwards, as I said, when I received my transcripts, it was all, whatever he said on the stand, whatever he told me here, completely opposite.

[PC]: And this occurred sometime between the 10th of June in 2005 and the 30th of June 2005? Because as of the original report on 6/10/05, there was no mention [in] the psychological report of anything to do with this gentleman in terms of your husbands death.

[Ozerson]: Perhaps they didnt ask me about it. Yeah, I dont think they asked me about it.

[PC]: Roughly, when was this visit, I dont expect a day, but just generally, when did this visit occur that gave you the idea that somehow this gentleman was responsible for your husbands death?

[Ozerson]: Well, visit? How did I come about to feel that way?

[PC]: Yes.

[Ozerson]: Maybe a year after I came here when I, after I got the transcripts and I tried to talk to him about it. He told me he drovehe told me personally, the morning of my husbands death, he drove around my house seven times. He took the stand and he said he drove around once or twice. Then I asked him again about it and he lied again. Just a lot of things.

[PC]: Okay, but this was the year after you arrived here?

[Ozerson]: [Y]es.

[PC]: And when was the first time that you ever mentioned this to anyone?

[Ozerson]: How I felt that he may be involved?

[PC]: Correct.

[Ozerson]: Oh, I cant remember. Through the years. Through the years.

[] . . . [] My parents, my relatives, his close friends all told me they felt it was him. His close friends hes had since childhood in the 30s are no longer his friends. Through certain things they speak to him about in turn said to them they feel that he was responsible for my husbands death.

[PC]: Prior to this conversation, after you were here for about a year, was there any time when he ever mentioned anything like this or any threats of any kind?

[Ozerson]: Towards my husband?

[PC]: Correct.

[Ozerson]: No, just with the exception that he didnt care what happened to him, he can die and fall into the hole, he doesnt care.

[PC]: [H]e wasnt the man that you saw inside the house?

[Ozerson]: Oh, no, definitely not. No, he was not. No.

The Deputy Commissioner (DC) continued the questioning:

[DC]: At some [point] when you had a belief that this other individual may have been involved in your husbands murder, did you ever inform your suspicions to the D.A.s office?

[Ozerson]: No, I didnt think I had an option at the time. I didnt know how the system work[ed], I had no idea. I shared it with family and friends who in turn felt the same way. I shared it with long-time friends and had written in the . . . past when I came here that they also felt that. And the man who heard the gunshot the night before has written year after year after year to contend that this is what he heard.

[DC]: . . . Never did it cross your mind that you couldnt have mentioned it to the D.A.s office.

[Ozerson]: To write to the D.A.s office, no, it never crossed my mind. I didnt know at the time. [] . . . []

[DC]: Did that individual ever make any direct comments to you about him being involved?

[Ozerson]: Kreisberg?

[DC]: Yes.

[Ozerson]: No, he said he was actually glad he was dead. He told me that I would walk out of here on appeal, they would believe me, he would take it directly to the governor, many false statements he made. [H]e knew in his heart I wasnt guilty, and I asked him, how do you know in your heart, how do you know I didnt do this. And he said he knows, he knows.

As for making amends, Ozerson stated at the hearing that she wrote to her former in-laws, but received no reply.

E. Parole Plans

Ozerson plans to reside with Bob and Nora Fitch in Thousand Oaks. The Fitches and other members of their church will provide transportation and financial and personal support such as food and new clothing. As backup options, she has support and a place to stay with Crossroads.

Approximately 90 letters of support were sent to the Board, including from the Prison Pup Program. Ozersons mother sent a letter. The Board referred by name to approximately 6570 other letter writers. She also received a letter from Correctional Lieutenant Michael Crenot, one of her supervisors, who wrote to thank her for the years she was his clerk.

She has four job offers. Dr. Bradshaw, the senior pastor of North Coast Church in Vista, offered her a position. She has offers from Dr. Dawson in Thousand Oaks and Debbie Ludwig, as well as from Dale Richmore, a pastor from Thousand Oaks. Dr. Dawson offered Ozerson a position in the front office making appointments and checking people in and out, starting at $15 per hour. Debbie Ludwig of Moulong Associates offered Ozerson a position as administrative marketing assistant in the Glendale office, which would pay between $15 and $18 per hour. Dale Richmore wanted to interview Ozerson for an administrative assistant position at the church. The position pays $30,000 a year.

F. District Attorneys Position on Parole

The District Attorney strongly opposed a grant of parole. The Los Angeles Police Department opposed Ozersons parole.

G. Board Decision

On April 25, 2007, the Board found Ozerson not suitable for parole based on the commitment offense and on the fact that her claim of an intruder was not supported by evidence. As to the latter issue, the Board stated:

This brings up the issue before the Panel of the level of the understanding for the triggers that lead a person with no documented violent history to be convicted of a crime requiring this level of violence. This leads the Panel to the next conclusion that without such an understanding that she does represent, or continue to represent a risk despite the psychological evaluation which depends largely on input from Ms. Ozerson, and that she does remain a risk.

H. Habeas Corpus Proceedings

Ozerson filed a petition for writ of habeas corpus in the Los Angeles County Superior Court on August 16, 2007. On October 26, 2007, the court denied the petition, concluding the record contained some evidence to support the Boards unsuitability finding. In particular, the court stated the motive for the murder was inexplicable, quoting the Boards view that Ozerson committed the murder for reasons still best known to herself. As her actions could not be explained, there is some evidence she is unusually unpredictable and dangerous. In addition, the court found there was some evidence to support the Boards finding that the offense was carried out in a manner that demonstrated exceptionally callous disregard for human suffering because the victim was vulnerable due to his disabilities, and Ozerson shot him several times such that the murder was more violent and aggravated than ordinary. Also, there was some evidence that Ozerson did not understand the nature and magnitude of the offense. Her version of events was not supported by the evidence, and she demonstrated no remorse for her husbands murder. Further, [b]ecause petitioner has not gained insight into the nature of her offense, she continues to be a risk of danger to society.

Ozerson filed a petition for writ of habeas corpus in the Court of Appeal on January 3, 2008. We requested opposition, then issued an order to show cause and set a briefing schedule and hearing date. On June 26, 2008, we granted respondents request for a stay pending the outcome of several cases then pending before the California Supreme Court. On December 2, 2008, we vacated the stay and set a new briefing schedule and hearing date. We asked the parties to address In re Lawrence (2008) 44 Cal.4th 1181, and In re Shaputis (2008) 44 Cal.4th 1241, in their submissions. The parties waived argument, and the matter was submitted on April 22, 2008.

DISCUSSION

Ozerson contends the Boards decision is arbitrary because it found her suitable for parole in 2004, then unsuitable in 2005 and in 2007 based on the identical circumstances. Ozerson further contends the Boards 2007 decision was not supported by some evidence because the Board failed to establish a nexus between the commitment offense and the conclusion that she currently poses an unreasonable risk of danger to society if released on parole.

A. Governing Law

The purpose of parole is to help prisoners reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of their sentence. (Morrissey v. Brewer (1972) 408 U.S. 471, 477 [92 S.Ct. 2593].) Although a prisoner has no constitutional or inherent right to be conditionally released before the expiration of his sentence (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7 [99 S.Ct. 2100]), in this state, Penal Code section 3041 creates in every inmate a cognizable liberty interest in parole, and that interest is protected by the procedural safeguards of the due process clause. (In re Lawrence, supra,44 Cal.4th at p. 1205 [petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmates due process right cannot exist in any practical sense without a remedy against its abrogation, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 664]; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 914915.)^[13]

Section 3041, subdivision (b), establishes a presumption that parole will be the rule, rather than the exception, providing that the Board shall set a release date unless it determines that the gravity of the current convicted offense . . . 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 . . . . (See Board of Pardons v. Allen (1987) 482 U.S. 369, 377378 [107 S.Ct. 2415] [unless designated findings made, parole generally presumed to be available].) [I]n light of the constitutional liberty interest at stake, judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights. (In re Lawrence, supra, 44 Cal.4th at p. 1211; Irons v. Carey (9th Cir. 2007) 505 F.3d 846, 850 [section 3041 vests California prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause].)

When assessing whether a life prisoner will pose an unreasonable risk of danger to society if released from prison, the panel considers all relevant, reliable information available on a case-by-case basis. The regulations set forth a nonexclusive list of circumstances tending to show suitability or unsuitability for release. (Cal. Code Regs., tit. 15, 2402, subds. (c) & (d).) Factors tending to indicate suitability include: (1) absence of a juvenile record, (2) stable social history, (3) signs of remorse, (4) significant life stress motivated the crime, (5) battered woman syndrome, (6) no significant history of violent crime, (7) inmates age, (8) realistic plans for the future, and (9) institutional behavior. (Id., 2402, subd. (d).) Circumstances tending to show unsuitability include: (1) comm