(Santa Clara County Super. Ct. No. 71614). Trial Judge: Hon. Linda R. Condron.
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
Petitioner Arthur Sam Criscione was convicted in 1979 of the second degree murder of his girlfriend. He was sentenced to 15 years to life. Following a 13th subsequent parole consideration hearing in 2007, a panel representing the Board of Parole Hearings (Board) again found Criscione unsuitable for parole. Criscione petitioned the superior court for a writ of habeas corpus. The superior court granted the writ and remanded the matter to the Board. Respondent J. Hartley, Acting Warden at Avenal State Prison (Warden) appeals from that order.*fn1
Judicial review of decisions by the Board or the Governor to deny parole to inmates serving indeterminate life terms is governed by the highly deferential "some evidence" standard of review. (In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz).) Until recently, appellate courts have struggled to apply this standard but In re Lawrence (2008) 44 Cal.4th 1181, 1205 (Lawrence), and the companion case, In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), have now clarified that a decision to deny parole comports with due process only if there is a rational nexus between the relevant statutory factors as found by the Board or the Governor and the determination that the inmate would present a current danger to the public if released. (Lawrence, supra,at p. 1210.) Since Lawrence was not decided until after the proceedings from which this appeal is taken, and since our independent review of the record suggests that the Board did not adhere to the evidentiary standard Lawrence described, we shall remand the matter to the Board for rehearing in light of this clarifying law. We shall accompany the remand order with directions pertaining to certain of the Board's findings, which, as a matter of law, do not support a conclusion that Criscione is currently dangerous. In so doing, we express no opinion on the ultimate issue, which is Criscione's suitability for parole. (See In re McGraw (2009) 171 Cal.App.4th 251.)
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The 2007 Parole Hearing*fn2
1. The Commitment Offense
In describing the facts of the commitment offense, the Board read from the published decision in Criscione's direct appeal, People v. Criscione (1981) 125 Cal.App.3d 275, 280: "It is undisputed that appellant [Criscione] killed his girlfriend, Dorothy Quintanar, on the night of February 27, 1979. At about midnight he arrived at the home of his son, Ricky, age 21, and told him he had killed Dorothy. The two men then drove to the home of appellant's ex-wife (Ricky's mother), but she refused to see him. They then stopped at the police station, where defendant asked to speak to certain officers he was acquainted with, but none of them were available. Next, they drove by Mario's, a bar where appellant worked as a bouncer, then stopped at appellant's apartment so that he might see Dorothy "for the last time.' Appellant returned to the car with a photograph of himself and Dorothy, then broke into sobs. Finally the pair drove back to the police station where appellant told the desk officer that he had killed Dorothy. [¶] Appellant was taken into an interrogation room and given Miranda warnings. He admitted that he "did it,' but declined to say more, although he voluntarily gave the apartment keys to the officer.
"Proceeding to appellant's apartment the police found the body of Dorothy in a water-filled bathtub. The coroner determined the cause of death to be strangulation and drowning. It was noted that the victim had bruises on the palm of her right hand consistent with someone putting pressure on the outside of the hand while she held a blunt object. A steak knife was found in the bathtub."
In preparation for the 2007 parole hearing, Criscione was interviewed and asked about his version of the commitment offense. He declined to discuss the offense and told the interviewer that his version of the crime remained as stated in the report for his initial parole hearing in 1987, which was: "Mr. Criscione readily admits his guilt in the commitment offense. . . . Noting that he turned himself into [sic] law enforcement authorities within one hour of the crime, he indicated that the victim, his girlfriend, was hooked on PCP and attempted to stab him, resulting in his killing her. [¶] He continued to assert that he was insane at the time of the commitment offense." There is an indication elsewhere in the record that Criscione has since recanted his claim of insanity.
2. Criminal Record, Previous Record of Violence
Except for the commitment offense, Criscione had no juvenile or adult criminal record. He has never used drugs or alcohol.
Criscione was married to Doris Cabrera when he was 17. Cabrera was pregnant at the time. Testimony at the trial revealed, "Just before the marriage he gave Doris an overdose of sleeping pills, rushed her to the hospital, then reportedly said that if he couldn't have her, he would kill her. [¶] . . . On numerous occasions he exhibited violence toward his wife, accusing her of infidelity, and on one occasion even tried to strangle her." (People v. Criscione, supra, 125 Cal.App.3d at pp. 281-282.) The couple was divorced in 1976.
At the 2007 hearing, Criscione denied having given Cabrera sleeping pills or attempting to kill her. He maintained that the pills had been prescribed for him and that Cabrera, who was his girlfriend at the time, wanted an abortion so she took them herself. When asked whether he beat Cabrera "on many occasions" during their marriage Criscione responded, "Yes, yes. It was--There was physical violence." He also admitted that he had choked her a "couple of times," leaving bruises on her neck.
The murder victim's mother testified at Criscione's trial that the relationship between Criscione and the victim had been tumultuous. The victim "was a PCP addict who often behaved in a bizarre and violent manner--once even stabbing her own brother. Violent arguments between appellant and Dorothy were common: indeed only the week before the killing, appellant and Dorothy had argued wildly, appellant accusing her of infidelity, and to punish her, cutting off her hair. . . . [The victim's mother] told appellant to leave Dorothy alone, warning that some day he was going to end up killing her and spending years in prison. Appellant replied that he knew that was true." (People v. Criscione, supra, 125 Cal.App.3d at p. 281.)
3. Social History and Parole Plans
Criscione was born in 1938, making him 41 years old at the time of the crime and 68 at the time of the 2007 parole hearing. Criscione quit school in the 10th grade to work in the family's bakery business. At the time of his arrest he listed his occupation as a produce clerk and was a member of the Retail Clerks Union. A "physically formidable person" (People v. Criscione, supra, 125 Cal.App.3d at p. 281), Criscione also worked part time as a bouncer at a bar. Criscione has an older brother and sister and three adult children. He has remained in contact with all of his family. His brother and sister live in Southern California and each has offered him a place to live and any other help he might need. Criscione's son in Turlock offered to have his father live with him and to help him with any needs he might have.
If paroled, Criscione planned to live with his brother, who had formerly operated a bakery but has now retired. Criscione would look for part-time work. He had completed both the bakery and dry cleaning vocations while in prison and he believed his brother would be able to help him find work. He would have income of $1,127 per month in Social Security and about $600 per month from his union pension.
4. Institutional Behavior and Participation in Self-Help Programs
Criscione had a nearly spotless prison record, with no major disciplinary infractions and only two minor infractions from 1981 and 1983. Criscione also had numerous laudatory notations in his file.
During his incarceration, Criscione had briefly participated in AA but since he had never abused drugs or alcohol he found he could not relate to the program. He did participate in anger management programs, including the nine week, 930 hour, Conflict Anger/Lifelong Management program, which he completed in 2005. In 2006, he completed more than 20 components of Golden Hills Adult School literacy program and a domestic violence class. His counselor reported that there were limited therapy opportunities at Avenal State Prison where Criscione was incarcerated.
5. Insight Into Causes of Violent Behavior
When asked what he had learned in the domestic violence class, Criscione said he learned "to have consideration for the other person's feelings" and to be "patient." The presiding commissioner asked Criscione if the class had given him any insight into what triggered him to commit violence against his wife and girlfriend. Criscione responded, "Well, mostly it was selfishness" and he has now learned to be "more considerate." The commissioner pressed the point, asking Criscione whether he had identified and changed that which had prompted the violence. Criscione responded that in the past he had "jumped to conclusions" about things that had not actually happened and would just "start hollering." When asked how he could go from no prior arrests for violence to strangling a person and putting them in the bathtub ...