ORIGINAL PROCEEDING; petition for writ of habeas corpus. David S. Wesley, Judge. Relief granted. (Los Angeles County Super. Ct. No. PA002269).
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Paul E. Gaul pleaded guilty to second degree murder in 1991 pursuant to a negotiated plea and cooperation agreement and was sentenced in 1994 to an indeterminate term of 15 years to life. Both the district attorney and trial court recommended parole at the earliest possible time pursuant to the rules and regulations of the Board of Prison Terms (now the Board of Parole Hearings) (Board).
After denying parole on three occasions (in 1998, 2001 and 2003), the Board in 2005 found Gaul suitable for parole and set a release date. The Governor reversed the Board's decision in early 2006. In October 2006, after addressing the Governor's concerns, the Board again found Gaul suitable for parole. Once again the Governor reversed the Board's decision. Finally, in November 2007 the Board itself denied parole, concluding the nature of the commitment offense (murder-for-hire) and Gaul's unstable social history before the offense, as well as his purported failure to develop sufficient insight as to the magnitude of his crime and a continued need for therapy to cope with stress, made him unsuitable for parole "based on the unreasonable risk to society or threat to public safety if released from prison." Gaul filed a petition for writ of habeas corpus in this court, challenging the Board's decision on the ground it was not supported by "some evidence" and was otherwise arbitrary and capricious.
In In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) the Supreme Court reemphasized the highly deferential standard of review the courts must apply to parole matters, but explained "a reviewing court reviews the merits of the Board's or Governor's decision, and is not bound to affirm a parole decision merely because the Board or the Governor has adhered to all procedural safeguards." (Id. at p. 1210.) When, as here, the primary factor identified for denying parole is the nature of the commitment offense, the Lawrence Court held, "the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor." (Id. at p. 1221.)
Utilizing the Lawrence standard the Board's 2007 decision to deny parole, notwithstanding its 2005 and 2006 findings Gaul was suitable for parole, is not supported by any evidence rationally indicating Gaul poses an unreasonable risk of danger to society if released from prison. Accordingly, we grant the petition for writ of habeas corpus and order Gaul's release unless new evidence of his conduct in prison subsequent to his 2007 parole hearing supports a determination he currently poses an unreasonable risk of a danger to society if released on parole.
FACTUAL AND PROCEDURAL BACKGROUND
1. Gaul's Current Custody Status and Classification History
Gaul is currently incarcerated in Avenal State Prison in Kings County. Since 1995 his custody status has been "Medium A," the least restrictive level of custody for a life-term prisoner. During his incarceration his classification score has steadily declined (a lower placement score indicates lower security control needs); and in 2001 the score reached zero.
2. The Commitment Offense
Gaul was convicted in 1991, based on his plea of guilty, of the June 27, 1989 murder of James Bernstein. The murder was initiated by Mary Ellen Samuels, who offered Gaul $5,000 to kill Bernstein, who was then living in the same house as Gaul. Bernstein had previously killed Samuels's husband, Robert Samuels, at her request and was threatening to blackmail Samuels regarding the earlier crime.
According to the probation report read into the record at Gaul's November 8, 2007 parole hearing, Gaul and a second man, Darrell Edwards, who had been enlisted by Gaul, drove Bernstein in Samuels's car to a secluded area, purportedly to steal some cocaine. Edwards grabbed the victim from behind while Gaul slammed on the brakes. Bernstein struggled and managed to get out of the car. Both Gaul and Edwards fought with Bernstein and eventually strangled him. They then transported the body and dumped it in a remote location, where it was not discovered until nearly one month later.
3. Gaul's Plea and His Cooperation in the Prosecution of Mary Ellen Samuels Pursuant to a negotiated agreement, Gaul admitted his involvement in the murder plot and promised to cooperate with the People and to testify truthfully at the death-penalty trial of Samuels. In return, Gaul was allowed to plead guilty to second degree murder and sentenced to a state prison term of 15 years to life with a recommendation he be released on parole at the earliest possible time.
Rather than being immediately sentenced following his guilty plea in 1991, Gaul remained in the county jail pending Samuels's trial. As a result, he was not sentenced until June 4, 1994. The district attorney's letter to the court, prepared and submitted pursuant to Penal Code section 1203.01 and joined by the trial judge, described Gaul as having fully cooperated with law enforcement and the prosecution of Samuels since his early admission of guilt.*fn1 The letter also stated Gaul "continues to express extreme remorse for his actions and fully and completely accepts responsibility for what he has done." The letter explained at the time of the murder Gaul was drinking heavily and using cocaine; and his brother had recently been killed, a death Gaul believed was somehow related to his brother's cocaine use. In soliciting Gaul to murder Bernstein, Samuels "seized on the fact that Mr. Gaul had just lost his brother to cocaine and told him that James Bernstein was a drug dealer who was selling to Jr. High students. Mr. Gaul was aware of the fact that Mr. Bernstein had arranged to have Robert Samuels killed." The letter concluded, "I believe that [Gaul's] behavior, while clearly criminal in nature, harmful to society and without any justification is somewhat mitigated by the circumstances of his life at the time. [¶] Please consider his early admission of guilt, his total remorse, his full and complete cooperation with law enforcement, his voluntary waiver of time for sentencing . . . , together with his minimal record, in granting him the earliest possible parole date within your guidelines and wisdom."
4. Gaul's Parole Hearings
At his initial parole consideration hearing in 1998, Gaul was found unsuitable for parole; parole was denied for a three-year period. Gaul was again found unsuitable for parole at a hearing in July 2001. Gaul challenged the 2001 denial by a petition for habeas corpus, which was granted by the Los Angeles Superior Court. The court ordered the Board to conduct another suitability hearing and to reach a parole determination "in conformity with the following guidelines: [¶] (1) It should consider the gravity and the public safety implications of Gaul's offenses as they compare with other similar offenses and in light of the terms prescribed by the legislature for such offenses. [¶] (2) The Board should consider Gaul's psychological profile as a factor favoring his application for a parole date, unless a new psychological evaluation supports a different conclusion. [¶] (3) The Board should also consider Gaul's work history and education achievements during his years in prison as factors supporting his release." This court reversed that decision in an nonpublished opinion, applying the governing "'extremely deferential'" standard of review articulated in In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz), and concluding "the Board's decision finding petitioner unsuitable for parole is supported by some evidence." (In re Gaul (May 15, 2003, B161692).)
b. The September 15, 2005 Hearing finding Gaul Suitable for Parole
Following another denial of parole in September 2003, at Gaul's fourth parole hearing on September 15, 2005, the Board found Gaul suitable for parole and set his release date. Evaluating Gaul's progress since its denial of parole two years earlier, the Board observed he had completed 10 additional courses in emergency management (for a total of 15 such courses) and had an exceptional work record as documented in his supervisors' reports. The Board also commented that Gaul had no major disciplinary violations (as would be reflected on a form 115, "rules violation report") and had, in fact, been entirely discipline free for more than 11 years (that is, since an incident of minor inmate misconduct, reported on a form 128-A during his initial months in state prison). Reading from a recent counselor report prepared by a correctional officer, the Board noted Gaul's parole plans "are realistic and well thought out." The counselor also stated Gaul had faithfully participated in substance abuse programs (Alcoholics and Narcotics Anonymous), "anger management, life skills, religious training and study. He also has consistently participated in volunteer work to help others during his term. He has strong, close family ties as well as many ...