(Santa Clara County Super. Ct. No. 87874) Trial Judge: Hon. Rene Navarro.
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
By decision dated February 23, 2006, the California Board of Parole Hearings (Board) denied parole to P.F. Lazor, who was serving an indeterminate term of 17 years to life for a 1983 second degree murder conviction with a firearm enhancement. In a petition for writ of habeas corpus filed in the superior court, Lazor (hereinafter petitioner) challenged the Board's decision, alleging in part that the decision was without evidentiary support and the Board's reasons for denying parole had no nexus to public safety.
The superior court issued an Order to Show Cause (OSC) after examining the Court of Appeal opinion affirming the murder conviction*fn1 and finding that "[t]he facts of the crime reveal a fair case for imperfect self defense." The OSC stated: "While Petitioner's imperfect self defense case was not sufficiently strong such that the murder conviction was avoided, it is certainly strong enough such that Petitioner's crime does not appear to be in any way aggravated." It indicated that the murder appeared unexceptional and directed respondent custodian to explain why the crime was exceptional.
Following the filing of the return and the traverse and without ordering any evidentiary hearing, the superior court issued an order directing the Board to conduct a new parole suitability hearing and to proceed in accordance with due process. The superior court's order stated in part: "As outlined in the Order to Show Cause, this Court questioned the Board's use of the crime itself to deny parole. Respondent has not addressed those concerns and has not supported the Board's actions in this regard. Accordingly, the Board may not invoke unsuitability factor 2402(c)(1) [of Title 15 of the California Code of Regulations] in Petitioner's case unless different evidence is presented."*fn2 The superior court did not reach the validity of the disciplinary record, stating: "Regarding Petitioner's allegation that the Board used invalid 115s and 128s against him, this is not a matter that can be properly resolved in this petition. Petitioner must exhaust his administrative remedies . . . ." M. Martel, Acting Warden at Mule Creek State Prison, appeals from the trial court's order. (See Pen. Code, § 1507.)*fn3
By order dated May 7, 2008, this court granted appellant's petition for a writ of supersedeas and stayed enforcement of the trial court's order until final determination of this appeal. We consider whether the Board improperly denied parole and whether the deferential "some evidence" standard was satisfied.
A. Review of Parole Decision on Appeal from Order Granting Habeas Relief
"[T]he 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 . . . ." (In re Rosenkrantz (2002) 29 Cal.4th 616, 658.) "[T]he judiciary is empowered to review a decision by the Board or the Governor to ensure that the decision reflects 'an individualized consideration of the specified criteria' and is not 'arbitrary and capricious.' ([In re Rosenkrantz, supra, 29 Cal.4th] at p. 677 . . . .)"*fn4 (In re Lawrence (2008) 44 Cal.4th 1181, 1205.) The "some evidence" standard of review is applicable to judicial review of a Board's or Governor's parole decision. (In re Shaputis (2008) 44 Cal.4th 1241, 1254; In re Lawrence, supra, 44 Cal.4th at pp. 1191, 1212, 1224; In re Rosenkrantz, supra, 29 Cal.4th at pp. 625, 652, 667, 677.)
When a superior court grants relief on a petition for habeas corpus without an evidentiary hearing, as happened here, the question presented on appeal is a question of law, which the appellate court reviews de novo. (In re Zepeda (2006) 141 Cal.App.4th 1493, 1497.) A reviewing court independently reviews the record if the trial court grants relief on a petition for writ of habeas corpus challenging a denial of parole based solely upon documentary evidence. (In re Rosenkrantz, supra, 29 Cal.4th at p. 677.)
Petitioner appeared before the Board on February 23, 2006 for a parole consideration hearing. The Board read the description of the crime contained in a Life Prisoner Evaluation report, which was based upon the probation officer's report. According to the report, petitioner had been having a disagreement with the victim and the victim's uncle regarding the ownership of and rental agreements concerning a property owned by the victim's uncle and the uncle had directed petitioner to vacate the premises. The offense occurred when the victim arrived at the residence where petitioner was apparently removing his personal property and the victim, angered at the petitioner's presence, forcibly entered the room where petitioner was talking on the phone. Petitioner asked the person on the line to call the police. Petitioner shot the victim multiple times and subsequently called the police himself. Petitioner told the probation officer that he had no choice but to shoot the victim and his actions were taken in self-defense.
At the parole consideration hearing, petitioner asserted the victim had threatened him with a meat cleaver and he panicked but he did not intend to shoot the victim.*fn5
Petitioner discussed his responsibility for the shooting and expressed remorse but maintained he had acted in the belief he needed to defend himself. He told the panel that the shooting was a "spontaneous reaction to save [himself] under fear and panic." Petitioner acknowledged there had been five shots expelled during the incident and there had been testimony at trial regarding wounds from a bullet entering the right eyebrow, a bullet entering the back of the victim's head, and two bullets entering the victim's back.*fn6
He recalled accurately testifying at trial that he had initially fired at the victim and the victim went down and ...