In re Johnson

Filed 1/19/10 In re Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Petition for writ of habeas corpus following the Governor's reversal of a grant of parole. Relief granted.

In 1986 a jury convicted Tyrone Johnson of second degree murder with the personal use of a firearm and the trial court sentenced him to prison for 17 years to life. Johnson, now 48 years old, has remained in prison for the past 23 years and appears to have been an exemplary inmate. He became eligible for parole in 1996. Although the Board of Parole Hearings (the Board) found him unsuitable for parole at numerous earlier hearings, the Board found him suitable for parole at his 2008 suitability hearing when it concluded Johnson did not pose an unreasonable risk of danger to society if released on parole. However, Governor Arnold Schwarzenegger (the Governor) reversed the Board's decision, finding Johnson's release "would pose an unreasonable risk of danger to society at this time." After the trial court denied his request for habeas relief, Johnson filed the present petition for writ of habeas corpus, raising numerous challenges to the Governor's decision. We conclude the record does not contain "some evidence" to support the Governor's ultimate conclusion that Johnson was unsuitable for parole because he currently posed an unreasonable risk to public safety. Accordingly, we grant Johnson habeas relief and order reinstatement of the Board's parole release order.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Commitment Offense

The facts of Johnson's offense are derived from our earlier appellate decision in People v. Johnson (March 24, 1987, D004190 [nonpub.opn.]), which provides as follows:

"On June 22, 1985, 16-year-old Lisa Martin was shot and killed by a single shot of a .357 magnum. Identification of her assailant was not at issue. Twenty-three [year] old Johnson admitted he was the individual who pulled the trigger. The sole issue in the case was Johnson's intent at the time of the shooting. He claimed the shooting was accidental.

"Johnson shared an apartment on 42nd Street in San Diego with his fianc, Trina Burleson and her brother, Quintin Boyd, age 25. Both Johnson and Burleson were in the Navy, stationed at Miramar. Burleson owned a .22 automatic pistol and had earned her marksmanship ribbon at bootcamp. Johnson had recently purchased a .357 magnum in order to practice and eventually qualify for his own ribbon. Johnson had little training with firearms.

"The events leading to Lisa's tragic death began on June 22, 1985 at approximately 11:00 a.m. Burleson had gone to work and was to return sometime in the afternoon. Johnson and Boyd called 15-year-old La Monda Allen and invited her over. Upon her arrival either Johnson or Boyd asked if she had a friend. She then called Lisa who lived nearby. Johnson, Boyd and La Monda went to pick Lisa up.

"On the way back to Johnson's apartment, they stopped to buy sugar for a neighbor, a 40-ounce bottle of beer and a bottle of 'Night Train' wine. At the apartment they finished the beer. Boyd got the guns from the bedroom and took a photograph of La Monda and Lisa holding the guns. The group then decided to purchase some marijuana.

"At some point in their search, Johnson drove to 'Trinidad's' house. Johnson, Boyd and La Monda got out of the car. While Johnson and/or La Monda were talking with Trinidad, Boyd was urinating in the yard. Trinidad became upset with Boyd and told him to leave. An argument ensued; Johnson eventually fired the .357 magnum which he had brought with him. Trinidad had retreated into the house before the shot. The shot was fired at or over the house. Johnson drove away quickly. He put the .357 back under his seat.

"At La Monda's suggestion they went to a place on Van Dyke Street to buy marijuana. La Monda left with a friend to obtain the marijuana. Johnson, Boyd and Lisa remained behind.

"Johnson and Boyd left the car and went across the street. They talked to Wendell Butler and a man called 'Alabama' about buying marijuana. Lisa stayed in Johnson's car. Johnson told her the gun was under his seat in case she had 'any problem[s].'

"A short time later Johnson and the others heard a shot. Johnson returned to his car and found that Lisa had shot a hole through the roof of the car with the .357. He became quite angry. Butler and 'Alabama claim Johnson stated that if Lisa did not pay for the damage to his car, he would kill her. Johnson testified he told Boyd: 'I ought to kick her ass.' Lisa told Johnson that she did not have any money to pay for the repairs.

"According to Butler, Boyd took the .357 and unloaded it. He then reloaded the pistol, out of the presence of Johnson, who eventually put the gun back under the car seat.

"Burleson had returned to the apartment around 1:00 p.m. She was surprised to hear La Monda and Lisa with keys at her door. The girls told Burleson that Boyd gave them the key so they could use the bathroom. La Monda related to Burleson that Johnson and Boyd were at a nearby body shop and that her friend (Lisa) had shot a hole in the roof of Johnson's car.

"When Johnson and Boyd returned a short time later, Burleson chided Johnson about the hole in his car. Johnson became angry and again requested money from Lisa. She replied she had no money. He shouted at Lisa and La Monda to leave. He had the .357 pistol that he was bringing in from the car in his hand.

"Lisa started down the stairs of the apartment complex and Johnson was behind her. La Monda remained in the apartment looking for her cigarettes. She determined that they were in her jacket, which was in Johnson's car. At this time Johnson was on the porch, yelling at Lisa. La Monda heard him say that he was 'fixing to shoot her ass.' Johnson said he was going downstairs to get La Monda's jacket from his car.

"As Johnson was going down the stairs, Lisa turned and inquired about La Monda. Johnson told her not to worry about La Monda, 'just . . . get out.' The gun was in his right hand -- Johnson is left-handed.

"Johnson and Burleson claim that he was gesturing with his arms for Lisa to leave when the shot was fired. La Monda claims Johnson had both hands on the gun when he fired it. Neither Burleson nor La Monda had an unobstructed view of Johnson's hands.

"Johnson was approximately 44 feet from Lisa when he shot her. When he heard the gun go off he felt 'sick, scared.' He left the scene and went to a friend's house where he eventually learned of Lisa's death. That night, around 11:00 p.m., Johnson turned himself and his weapon over to the authorities at Miramar.

"In his defense testimony Johnson explained the day before Lisa was shot he had accidentally discharged the .357 in his apartment where he, Burleson and Boyd were present. Boyd showed Johnson the way to cock the weapon and uncock it without firing it. Johnson failed to do it correctly. His thumb slipped, and as the gun was falling, it went off. He did not know the gun was loaded until it had gone off. He immediately went downstairs to talk to his neighbor. Johnson also testified Lisa had told him she was 19.

"As to the incident at Trinidad's house, Johnson stated Trinidad was walking towards him carrying a .38. To scare Trinidad away, he shot the .357 straight up into the air. The gun was not fired at the house. He said the .357 was under the driver's seat while he was driving. No guns were fired when they were driving on the freeway.

"When he was going downstairs to get La Monda's jacket from the trunk of his car, the .357 magnum was still in his hand. He had insufficient time to put it away in the bedroom. At the foot of the stairs Lisa called his name and asked, 'Where is La Monda?' He told her not to worry about La Monda, but just 'go ahead and get out. I am going to get her jacket.' Johnson admitted he was pretty upset at the time. He was mad. He was gesturing with his hands when he told her again, 'I said, don't worry. Just go ahead and get out.' The gun went off. He declared he had no intention of pulling the trigger. He denied pointing the gun at her. He did not want to kill her. He did not want to shoot her.

"Several character witnesses testified that in their opinion Johnson was not violent and that he had a reputation for being nonviolent.

"In rebuttal, the prosecution called 16-year-old Joann Polite. She testified she met Johnson in June 1985 when she was dating Boyd. She frequently stopped by the apartment after school. Johnson and Boyd were always showing off their guns. A couple of days before Lisa was shot she and La Monda were at the park with Boyd and Johnson. They had beer and marijuana. Polite and La Monda used some marijuana, which Johnson had purchased from someone at the park. Polite saw Johnson and La Monda under a blanket and at some point heard a moan. She also saw Johnson smoke marijuana on that day and another time at his home. She said she saw Johnson threaten a person with a gun on an earlier occasion. Previously they had gone to a dirt area off the side of the freeway and fired weapons.

"In his rebuttal testimony Johnson denied there was the incident described by Polite with respect to scaring anyone. Although there was an occasion when marijuana was purchased, it was Boyd who had purchased it. He denied showing her the .357. He denied kissing La Monda."

Based on the above evidence, the jury convicted Johnson of second degree murder with use of a firearm regarding Lisa and with the misdemeanor of exhibiting a firearm in regard to the shooting at Trinidad's house. The trial court imposed an indeterminate term of 15 years to life for the second degree murder and imposed a two-year enhancement for the firearm use plus a six-month concurrent term for the misdemeanor offense.

B. Johnson's Criminal History and Postconviction Conduct

When Johnson entered prison, he had no prior criminal record and was a high school graduate with two years of junior college. During his approximately 23 years in prison, Johnson's disciplinary record was nearly flawless. He had only a single "115" in 1986 for "ignoring specific duties and contamination," and several "128's" or minor incidents of misconduct, the latest in 2002 for "horseplay."^[1]

Johnson also has participated in numerous self-help and therapy programs, including Alcoholics Anonymous (AA), Purification for the Soul, Inter-faith Relationship, Islamic Self-Help Group, Anger Management, Friends Outside Creative Conflict Resolution, Siddha Yoga, Conflict/Anger Lifelong Management, Alternatives to Violence, and Breaking Barriers. He has received favorable reports from various correctional and mental health professionals over the years and has maintained supportive relationships with family and others.

In addition, Johnson completed vocational certifications in business management and air conditioning and refrigeration and training in auto body and fender repair, air frame mechanics, and major appliance technology repair. He has further held institutional jobs as a welding teacher's aide, tool room attendant, education clerk, teacher's assistant, and culinary worker/porter.

Before his 2008 review hearing, Johnson had contacted various employment resource programs regarding future employment, had sent out resumes, and if released from prison, had made plans to live with his sister and brother-in-law in Los Angeles County and accept a temporary job offer with his son-in-law while he looked for more permanent employment. He also planned to go back to school to enhance his education in the field of technology.

C. The Present Proceedings

1. Suitability Hearing

At Johnson's July 1, 2008 suitability hearing before the Board, it was noted that his minimum eligible parole date was October 17, 1996, and that his last hearing before the Board had been in November of 2006, when he was denied parole with recommendations that he stay discipline free, that he update and develop parole plans and earn positive chronos. It was further noted that Johnson had no prior criminal history or arrests and elected not to speak with the commissioners on the Board about the "life crime."

During the hearing, Johnson who had been an aviation mechanic in the Navy before the life crime, described his "fairly good" childhood in Los Angeles as an only child of "good parents," a nurse and a mechanic for the Los Angeles Fire Department. He had been in Cub and Boy Scouts, loved school and played sports. Although both parents were now deceased, he kept in close contact with his three daughters, their mother (his ex-wife) and her family, and an aunt. He planned to live with his married daughter and her family in Inglewood, California.

In addition to discussing his participation in various self-help and therapy groups, employment while in prison, letters from his family and organizations offering him assistance with clothing, food, shelter and employment when he is released, his 1986 discipline and minor counseling for horseplay in 2002, the Board considered Johnson's last two psychological evaluations, one done in May 2008 and the other in May 2003, pointing out that the most recent report rated him as being in the bottom two percent which meant he was a very low risk for future violence. The most recent report also noted that even though Johnson had said "it was an accident the gun went off," he did not place any blame for the killing upon anybody but himself and offered no excuses or rationalizations for his behavior. It further noted that Johnson would have an increased risk in the community should he use alcohol or drugs in the future.

When questioned about his past anger and alcohol use, Johnson conceded he had anger issues in the past and explained how he had learned coping skills through classes, therapy, faith and communication. He did not believe that anything, including anger, warranted what he did, "killing Lisa Martin." Johnson expressed shame in sitting there because of what he had done, noting she did not deserve it and that it was his fault. He agreed with the Board that he had not made good decisions in his personal life at that time and explained he would be able to make better decisions in the future because of skills in communication and life management he had obtained working and taking classes in the institution. He also noted that his family and other "positive" people in his life were good examples for him in handling various conflicts.

As for alcohol, even though he had been dropped from AA due to lack of attendance in November 2004, he explained that he continued to read the "AA manual," had learned to use the "serenity prayer" through that substance abuse program in prison, had become a faithful Muslim, a religion that does not permit drinking, and had "no desire to drink ever again in [his] life."

Johnson also talked about his remorse, because he understood what he did to Lisa Martin "was a crime." He said that "[w]hether my version or the District Attorney's version, it doesn't make any difference. I killed Lisa Martin. The pain and the agony that I caused her family, I don't even know the adjectives for." Johnson expressed shame again for killing her and felt for her family and the community, saying he understood that if it had been his daughter he would never want the person who killed her to get out of prison. He told the Board he had worked hard in prison to ensure that the situation that led up to his taking Lisa Martin's life would never happen again, noting it should never have even happened because he never should have had a gun and been around young women her age. Johnson understood it was a great loss and that he had taken "her life" and her "generations" from her.

In Johnson's final comments to the Board, he reiterated his work on skills to stay away from alcohol and to deal with any anger problems and his willingness to seek help if necessary rather than just rely on his own faith. Once again, he stated it was a "terrible crime I committed, and I take full responsibility for that."

2. The Board's Decision

Based on the totality of the record, the Board concluded that Johnson was "suitable for parole at [that] time and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison." The Board based its decision not only on the circumstances that Johnson had no juvenile record or record of violence whatsoever, had a stable family and social history, and had enhanced his ability to function within the law upon release through postconviction work and participation in numerous self-help groups and programs, but also on its finding that he had matured and grown with greater understanding, which he had articulated during the hearing. The Board noted Johnson "has shown no propensity for violence while . . . incarcerated for almost 23 years" and had marketable skills, family support, and realistic parole plans to live with his daughter as well as back-up plans for after his release. Although the Board recognized the life crime as "a dispassionate and cruel crime," it found Johnson to be remorseful, to understand the nature and magnitude of his crime and what he did to Lisa Martin and her family, and had accepted responsibility for his criminal behavior. The Board noted that Johnson's last two psychological reports supported their decision that he was "a candidate for supervised release [on parole because he represented] a relatively low risk of danger to others in the community."

3. The Governor's Reversal

On November 20, 2008, after considering the "very same factors the Board must consider," the Governor reversed the Board's decision. After summarizing the offense, Johnson's lack of criminal record, his performance in prison, his close relationships and support of family and friends, the facts he had a place to stay and a job offer, the Governor concluded Johnson still posed an unreasonable risk of danger to society if released based on the "gravity of the [life] crime [and] the information indicating that Mr. Johnson still lacks insight into the circumstances of the life offense." The Governor specifically stated with regard to these reasons that:

"[T]he second-degree murder for which Mr. Johnson was convicted was especially atrocious because he said he would kill her if she did not pay for the damage to his car, then demanded payment again at his apartment, followed her down the stairs holding a gun as she tried to leave, told her he was 'fixing to shoot her ass,' and then shot and killed her. Then, instead of checking to see where the bullet went or checking to see if Lisa needed medical assistance, Mr. Johnson simply left and went to a friend's house, demonstrating an exceptionally callous disregard for Ms. Martin's life and suffering. Moreover, his motive for the crime -- anger over damage to his vehicle -- was extremely trivial in relation to the magnitude of the crime he committed.

"When Mr. Johnson committed this crime, he was 23 years old. He says he accepts responsibility for his actions and is remorseful, but I am concerned that he still lacks full insight into the circumstances of the life offense. Although Mr. Johnson exercised his right not to discuss the details of the life offense at his 2008 suitability hearing, he asserted over the years that the gun went off accidentally as he gestured for Ms. Martin to leave. Given the evidence in the record, I do not accept his version as true. But even if the shooting were accidental, I am concerned that Mr. Johnson does not appear to have full insight into his responsibility for the murder, including the fact that he threatened to kill her, then threatened to 'shoot her ass,' followed her with a loaded gun, shot her, and then took no action to save her life."

Although not stating it as a reason for his decision, the Governor also commented that Johnson's job offer was "only temporary in nature and does not contain sufficient detail regarding hours of employment or rate of pay that would be necessary to confirm its viability." The Governor expressed that "[a] stable and legitimate way to support himself immediately upon release from prison will be critical to Mr. Johnson's success outside of prison."

4. The Habeas Proceedings

Johnson petitioned the San Diego County Superior Court for a writ of habeas corpus alleging the Governor's decision reversing the Board's parole grant violated his due process rights because it lacked the requisite "some evidence" that he was a risk of danger to society. The court denied the petition.

Johnson then petitioned this court for a writ of habeas corpus challenging the Governor's decision as unsupported by some evidence that his parole would unreasonably endanger the public, and was arbitrary, in violation of due process. After considering respondent's informal response and Johnson's informal reply, we issued an order to show cause why the relief requested should not be granted.

Appointed counsel then filed a supplemental petition for a writ of habeas corpus claiming in addition that the Governor had disregarded the statutory framework for parole, which deprived Johnson of his right to an individualized and unbiased parole consideration review, the Governor's reversal violated ex post facto laws, and Johnson was entitled to have his parole date reinstated and be released accordingly.

The Attorney General subsequently filed a return, denying the Governor's decision violated due process as it was supported by "some evidence" and arguing Johnson has failed to show that the Governor's decision was biased, Johnson's ex post facto argument has concededly been decided against him in In re Rosenkrantz (2002) 29 Cal.4th 616, 650-652 (Rosenkrantz), and the proper remedy would be to remand the matter to the Governor with directions to proceed in accordance with due process should this court grant the petition. Johnson filed a combined denial and traverse.

DISCUSSION

A. The Parole Suitability Framework

As this court recently recognized in In Re Vasquez (2009) 170 Cal.App.4th 370 (Vasquez), "[t]he granting of parole is an essential part of our criminal justice system and is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities. [Citations.] Release on parole is said to be the rule, rather than the exception [citations] and the Board is required to 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 . . . .' [Citation.]" (Id. at pp. 379-380.)

The decision whether to grant parole is an inherently subjective determination (Rosenkrantz, supra, 29 Cal.4th 616 at p. 655) that is guided by a number of factors, some objective, identified in Penal Code section 3041 and the Board's regulations. (Cal. Code Regs., tit. 15, 2281, 2402.) The Governor's decision to affirm, modify, or reverse the decision of the Board rests on the same factors that guide the Board's decision (Cal Const., art. V, 8, subd. (b)), and is based on "materials provided by the parole authority." (Pen. Code, 3041.2, subd. (a).) "Although these provisions contemplate that the Governor will undertake an independent, de novo review of the prisoner's suitability for parole, the Governor's review is limited to the same considerations that inform the Board's decision." (Rosenkrantz, supra, at pp. 660-661.)

In making the suitability determination, the Board and the Governor must consider "[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, 2402, subd. (b); hereafter,  2402), such as the nature of the commitment offense including behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude towards the crime; and parole plans. ( 2402, subd. (b).) The circumstances that tend to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel manner;^[2](2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. ( 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. ( 2402, subd. (b).)

Circumstances tending to show suitability for parole include that the inmate: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. ( 2402, subd. (d).)

These criteria are "general guidelines," illustrative rather than exclusive, and " 'the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board or Governor].' " (Rosenkrantz, supra, 29 Cal.4th at p. 654;  2402, subds. (c), (d).) Thus, the endeavor is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, supra, at p. 655.) Because parole unsuitability factors need only be found by a preponderance of the evidence, the [Board or] Governor is free to consider facts apart from those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.) Nonetheless, the Governor's decision, like the Board's decision, must comport with due process. (Id. at p. 660.)

B. Judicial Review

In Rosenkrantz, the California Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch. The court held that "the judicial branch is authorized to review the factual basis of a decision of the Board denying parole . . . 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." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) Rosenkrantz further held that the same standards of review are applicable when a court reviews a Governor's decision reversing the Board. (Id. at pp. 658-667.)

In conducting this independent review of the Governor's decision, "[i]t 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." (Rosenkrantz, supra, 29 Cal.4th 616, 677.) Although a court must ensure that the Governor considered the same factors the Board considered, "the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision." (Ibid.)

In In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), our Supreme Court reaffirmed its analysis in Rosenkrantz, supra, 29 Cal.4th 616, that the Governor's decision of parole suitability is subject to the "some evidence" standard of review. (Lawrence, supra, at p. 1205.) However, in doing so it recognized that Rosenkrantz's characterization of that standard as extremely deferential and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, at p. 667), had generated confusion and disagreement among the lower courts "regarding the precise contours of the 'some evidence' standard." (Lawrence, supra, at p. 1206.) The court in Lawrence, recognizing that the legislative scheme contemplates "an assessment of an inmate's current dangerousness" (id. at p. 1205), clarified that the analysis required when reviewing a decision relating to a prisoner's current suitability for parole is "whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212.)

As to this standard, the court in Lawrence further explained that although it was "unquestionably deferential, [it was] certainly . . . not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision--the determination of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1210, italics added.) Because consideration of public safety is the primary statutory issue to be determined in deciding whether an inmate should be granted parole (Pen. Code,  3041, subd. (b); Lawrence, supra, at p. 1205), "[t]his inquiry is, by necessity and by statutory mandate, an individualized one," and requires a court to consider the circumstances surrounding the commitment offense, along with the other facts in the record, to determine whether an inmate poses a current danger to public safety. (In re Shaputis (2008) 44 Cal.4th 1241, 1254-1255 (Shaputis).)

Regarding such consideration, "although the Board and Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1214.)

In this case, because the court below denied Johnson's petition for a writ of habeas corpus, the current petition for habeas relief is an original proceeding that requires we independently review the record to determine whether there is some evidence to support the Governor's decision in reversing the Board's grant of parole for Johnson. (In re Scott (2004) 119 Cal.App.4th 871, 884.) In other words, "we independently review the record [citation] to determine 'whether the identified facts [by the Governor] are probative to the central issue of current dangerousness when considered in light of the full record before [him].' [Citation.]" (Vasquez, supra, 170 Cal.App.4th at pp. 382-383.)

C. Analysis

The Governor's decision in reversing the Board's grant of parole was essentially based on two related factors, the circumstances of the commitment offense, which the Governor found to be "especially atrocious," and Johnson's lack of insight into the circumstances of that offense. Specifically, the Governor referred to evidence suggesting the killing was carried out in a matter that showed "an exceptionally callous disregard" for human suffering ( 2402, subd. (c)(1)(D)) and for a trivial motive, as well as Johnson's failure to fully recognize such evidence because he had "asserted over the years that the gun went off accidently. . . ."

As noted earlier, the Governor's written decision shows he relied on the facts that Johnson "said he would kill [his victim] if she did not pay for the damage to his car, then demanded payment again at his apartment, followed her down the stairs holding a gun as she tried to leave, told her he was 'fixing to shoot her ass,' and then shot and killed her," for a trivial motive, anger over damage to his car, and then fled the crime scene without checking to see if she needed medical assistance, showing an exceptionally callous disregard for the victim's life.

Certainly these circumstances of the commitment offense are despicable and fully justify Johnson's conviction and sentence for second degree murder. However, even though there is some evidence to support the Governor's finding that Johnson's second-degree murder was committed in an "especially atrocious matter," i.e., the motive was concededly trivial ( 2402, subd. (c)(1)(E)), such reason would only provide "some evidence" to support the Governor's ultimate conclusion and reversal of the parole grant here if there were other facts in the record, such as the inmate's history before and after the offense or the inmate's current demeanor and mental state, to provide a "rational nexus" for concluding Johnson's offense of ancient vintage continues to be predictive of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1210, 1213, 1221.) As the court in Lawrence stated, "the mere existence of a regulatory factor establishing unsuitability does not necessarily constitute 'some evidence' that the parolee's release unreasonably endangers public safety. [Citation.]" (Id. at p. 1225.)

The Attorney General argues that the Governor's second reason based on Johnson's lack of insight into the circumstances of the commitment offense provides the "rational nexus" for concluding that Johnson still provides a danger to society. We disagree. Although the Governor acknowledged that Johnson had exercised his statutory right not to discuss the commitment crime at his current suitability hearing and that Johnson had said he accepted responsibility for his actions and was remorseful, the Governor in essence was requiring Johnson to admit to the same version of facts as he had arrived at even though the evidence at trial could support Johnson's previously held version that the shooting was accidental.

The Governor, like the Board, "is precluded from conditioning a prisoner's parole on an admission of guilt. (Pen. Code,  5011, subd. (b); Cal. Code. Regs, tit. 15,  2236.)" (In re Palermo (2009) 171 Cal.App.4th 1096, 1110.) Similar to the prisoner in Palermo, and unlike the inmates in Shaputis, supra, 44 Cal.4th 1241, In re McClendon (2003) 113 Cal.App.4th 315, and In re Van Houten (2004) 116 Cal.App.4th 339, Johnson's "version of the shooting of the victim was not physically impossible and did not strain credulity such that his [earlier] denial[s] of an intentional killing was delusional, dishonest, or irrational. And, unlike the defendants in Van Houten, Shaputis, and McClendon, [Johnson] accepted 'full responsibility' for his crime and expressed complete remorse; he participated effectively in rehabilitative programs while in prison; and the psychologists who evaluated him opined that he did not represent a risk of danger to the public if released on parole. Under these circumstances, his continuing insistence [prior to the most recent suitability hearing] that the killing was the unintentional result of his . . . conduct (a claim which is not necessarily inconsistent with the evidence) does not support the [Governor's] finding that he remains a danger to public safety. [Citation.]" (Palermo, supra, 171 Cal.App.4th at p. 1112.)

During the 2008 hearing, Johnson never claimed that he committed the life offense accidently. Rather, as the facts above show, at the hearing he repeatedly took responsibility for killing Lisa Martin and expressed remorse for his horrible conduct in doing so. Although Johnson had told a psychologist in 2007 that he thought the gun accidently went off as he followed Lisa in anger as she left his apartment, he did not reassert this position at the hearing and never blamed anyone but himself for the killing of Lisa Martin. The Board concluded that Johnson showed signs of remorse, indicated an understanding of the nature and magnitude of the offense and accepted full responsibility for his behavior. Although the Governor is not bound by the Board's findings (see Rosenkrantz, supra, 29 Cal.4th at p. 679), nothing in the record contradicts them. Accordingly, the Governor's reliance on Johnson's lack of insight is not supported by the record and does not constitute some evidence of current dangerousness.

Thus, although "we acknowledge that some evidence in the record supports the Governor's conclusion regarding the gravity of the commitment offense, we conclude there does not exist some evidence supporting the conclusion that petitioner continues to pose a threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1225.) But for the immutable nature of his life crime, and the unsupported inference that he did not have insight into the commission of the life crime, all the applicable regulatory criteria indicate that Johnson is suitable for parole. ( 2402, subd. (d).) Johnson has been a model prisoner; he has addressed the immaturity, anger and substance abuse that lead to his life crime via formal self-help, vocational and educational programs, therapy and religion. Johnson had no prior criminal record of violent crimes or assaultive behavior or any juvenile record, has had no mental health issues, and has remained discipline free in prison for over 20 years. Various psychological and psychiatric evaluators unanimously have concluded that he is a very good candidate for parole and would unlikely reoffend if released. The latest psychological evaluator concurred in this assessment, finding Johnson to be in the very lowest risk group for violence if released and the Board found Johnson credible, remorseful and that he had insight into his crime for which he accepted full responsibility. Johnson further has marketable skills, a supportive family and realistic parole plans, including a temporary job offer, plus backup plans and a home with his daughter.^[3]

Given the undisputed evidence of Johnson's rehabilitation and the lack of some evidence of current dangerousness to support the Governor's decision, we adhere to our Supreme Court's instruction that, although:

"Our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. [Citation.] This does not mean . . . that evidence suggesting a commitment offense was 'especially heinous' or 'particularly egregious' will eternally provide adequate support for a decision that an inmate is unsuitable for parole. As set forth above, the Legislature specifically contemplated both that the Board 'shall normally' grant a parole date, and that the passage of time and the related changes in a prisoner's mental attitude and demeanor are probative to the determination of current dangerousness. When, as here, all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner's rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required 'modicum of evidence' of unsuitability. [] Accordingly, under the circumstances of the present case--in which the record is replete with evidence establishing petitioner's rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that [he] continues to pose a threat to public safety--petitioner's due process and statutory rights were violated by the Governor's reliance upon the immutable and unchangeable circumstances of [his] commitment offense in reversing the Board's decision to grant parole." (Lawrence, supra, 44 Cal.4th at pp. 1226-1227.)

In sum, we conclude, under the standards adopted by Lawrence, supra, 44 Cal.4th 1181, and the application of those standards in this case, the Governor's decision is not supported by some evidence and therefore violated Johnson's due process rights. Accordingly, Johnson is entitled to habeas relief.^[4] Because the Governor's finding of suitability has no evidentiary support, it cannot stand.

Although the Attorney General argues the appropriate relief is to remand the matter back to the Governor for further consideration in accordance with due process standards, the Attorney General has not explained what purpose a remand would serve in this case. "The Governor's constitutional authority is limited to a review of the evidence presented to the Board. [Citations.] Our review indicates that the record does not contain some evidence to support the Governor's decision and further consideration by the Governor will not change this fact." (Vasquez, supra, 170 Cal.App.4th at p. 386.) The Attorney General has not identified any other evidence in the record bearing on Johnson's current dangerousness that the Governor has not considered or that was not reflected in the Governor's decision. Accordingly, we conclude the appropriate relief in this case is to vacate the Governor's decision, reinstate the Board's 2008 decision, and order Johnson's release subject to the conditions specified in the Board's 2008 decision.^[5] (See, e.g., In re Burdan (2008) 169 Cal.App.4th 18, 39-40; In re Aguilar (2008) 168 Cal.App.4th 1479, 1491; In re Gray, supra, 151 Cal.App.4th 379, 410-411; In re Lee (2006) 143 Cal.App.4th 1400, 1414-1415; In re Scott (2005) 133 Cal.App.4th 573, 603-604.)

DISPOSITION

The Governor's decision to reverse the Board's 2008 order granting Johnson parole is vacated, and the Board's parole release order is reinstated. In the interests of justice, this opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.387(b)(3)(A).)

HUFFMAN, Acting P. J.

I CONCUR:

McINTYRE, J.

I CONCUR IN THE RESULT

IRION, J.

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^[1] A CDC Form "115" documents misconduct believed to be a violation of law that is not minor in nature, while a CDC Form "128" documents incidents of minor misconduct. (Cal. Code Regs., tit. 15,  3312, subd. (a)(2); In re Gray (2007) 151 Cal.App.4th 379, 389.)

^[2] Factors that support the finding the crime was committed "in an especially heinous, atrocious or cruel manner" ( 2402, subd. (c)(1)), include the following: (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 that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.

^[3] To the extent the Governor may have relied on the fact Johnson only had a temporary job offer with undisclosed hours of employment or amount of pay to support his decision, such does not provide some evidence that could rationally supply any nexus to predicting an inmate's current or future dangerousness. Because Johnson had marketable skills and realistic parole plans, the fact he might be required to seek more permanent, better paying work after being released is not "probative to the determination that [he] remains a danger" if released on parole. (Lawrence, supra, 44 Cal.4th at p. 1212.)

^[4] Because we grant Johnson relief, we need not further address his assertions that the Governor failed to provide proper individualized consideration of his case or that his consideration was biased.

^[5] To the extent the Attorney General suggests that a remand is required to prevent a violation of due process or the separation of powers doctrine, such assertions have been rejected recently in In re Masoner (2009) 179 Cal.App.4th 1531, 1538-1539.