(Marin County Super. Ct. No. SC157558A)
The opinion of the court was delivered by: Siggins, J.
CERTIFIED FOR PUBLICATION
Petitioner Bruce Cerny committed a second degree murder in 1980 that was enhanced due to his use of a firearm. He was sentenced to 17 years to life in prison and has been in prison ever since. At the time of the murder, Cerny was a chronic drug abuser. He claims he has been drug free since entering prison, and there is no evidence he has abused any substance since 1981. He has regularly participated in Narcotics Anonymous since 1989, and since then he has not been disciplined for violating prison rules. He has the lowest classification score possible for a prisoner serving a life sentence and the most privileged form of prison custody allowable for his classification. He now challenges the two most recent (2007 and 2008) decisions by the California Board of Parole Hearings (the Board) to deny him parole for the 13th and 14th time since he was first eligible for parole consideration.*fn1
This case requires us to apply the standard of review articulated by the California Supreme Court in two cases, In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241. We are to review the Board‟s actions to determine whether the decisions to deny Cerny a parole date are supported by some evidence that Cerny‟s release at this time will endanger public safety. (In re Lawrence, supra, at p. 1209.) We are not to engage in balancing and thereby second-guess the Board. Rather, we are required to look only for evidence of dangerousness that could support the Board‟s decisions. (Ibid.) Although these standards are relatively simple and straightforward to articulate, as this case demonstrates, they are more vexing to apply.
The primary issue presented by these petitions is whether the Board properly found Cerny unsuitable for parole because his postrelease plans were indefinite. The Board‟s regulations list factors the Board is to consider in hearings to determine whether a prisoner is suitable for parole. Certain factors indicate unsuitability, and others indicate suitability. Sufficient postrelease plans are listed in the Board‟s regulations as a factor favoring suitability, but inadequate plans are not listed as a factor indicating an inmate is unsuitable for parole. The regulations also provide that: "Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Cal. Code Regs., tit. 15, § 2402, subd. (b).) Moreover, in accord with our Supreme Court‟s instruction in the Lawrence case, "the importance attached to any circumstance or combination of circumstances [tending to show suitability] in a particular case is left to the judgment of the [parole] panel." (Cal. Code Regs., tit. 15, § 2402, subd. (d).)
In light of Cerny‟s extensive history of drug abuse and dependence, the Board‟s concern about his uncertain plans for parole was justified. The more difficult issue presented by these petitions is whether standing alone, the absence of this factor that favors suitability can serve as a basis to deny parole. As we explain, although we would decide this case differently if so empowered, our standard of review requires that we deny these petitions because we are not empowered to engage in the kind of balancing of factors that is entrusted to the Board in the first instance.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the murder, Cerny was living in San Francisco with his girlfriend, Jerri Becker. Both were heroin users. On March 3, 1980, Becker went to purchase heroin from Daisy Rutter and the murder victim, Rickey Caponio, at their houseboat in Sausalito. Becker paid them $60. The next day Rutter and Caponio left the houseboat to procure the drug. While they were gone, Becker returned several times looking for heroin, and appeared to be very upset that she did not have it. Rutter and Caponio later returned to the houseboat and fell asleep until Barbara Paschal arrived with some heroin. While Paschal was there, Becker and Cerny arrived. Becker kicked in the door, and angrily accused Rutter of stealing her money without delivering the drugs. Rutter and Becker began to wrestle and Rutter pushed Becker out the door. At that point, Rutter noticed Cerny who had a handgun.
Rutter, Caponio, and Cerny struggled for the gun and, momentarily, Caponio and Rutter seemed to over power Cerny so that the gun was pointing at him.*fn2 Caponio threatened to shoot Cerny. Just then Rutter thought she saw Becker take out a gun and she started wrestling with Becker. When she began to wrestle with Becker, Rutter heard a gunshot and saw Caponio fall. Cerny was holding the gun. While Rutter attended to Caponio, Becker and Cerny argued with her and Paschal about the money and the heroin. Cerny suggested to Becker that they also kill Rutter, but Becker dissuaded him. Becker then threatened Rutter not to talk about the incident, and she and Cerny left the houseboat. They were apprehended on the dock before they could flee.
In July 2007, the Board denied Cerny parole, based in part, on his commitment offense. The Board determined that Cerny killed in a dispassionate manner that demonstrated an exceptionally callous disregard for human suffering, and for a trivial motive-a $60 drug deal gone bad. The Board also supported its decision with findings that Cerny had an "escalating pattern of criminal conduct in his adult life involving drug-related crimes," had "failed previous grants of probation," had an "unstable social history and prior criminality," including "polysubstance abuse with use of LSD, cocaine, alcohol, methamphetamine, heroin and marijuana," and two AWOLS from the United States Army. Cerny‟s parole plans were also considered insufficient because they "do not appear to be solid or verifiable in the areas of residency or employment," despite prior recommendations that he have such verifiable plans.
The Board also noted several factors that favored parole and commended Cerny for remaining discipline free since his last hearing, for his long-term commitment to Narcotics Anonymous, and his work as a library clerk. He had positive reports from prison officials and good support from his sister. The Board did not question Cerny‟s psychological evaluation which concluded that he had below average propensity for violence compared to other prison inmates and that in the community his propensity for violence was "less than that of the average citizen." The assessment was based in part on Cerny‟s minimal disciplinary history since 1984 and the skills he acquired in various self-help groups such as anger management, alternative to violence, communication, and Narcotics Anonymous.
The 2008 panel which denied parole was a two-person panel, comprised of Presiding Commissioner Sandra Bryson and Deputy Commissioner Booker Welch. At the hearing, Presiding Commissioner Bryson‟s rationale to deny parole was similar to that expressed by the Board in 2007. First, she relied on Cerny‟s commitment offense. He used a gun, multiple victims were involved, the motivation for the crime was trivial, and despite having the opportunity to cease his activity, he did not do so. She also stated that the Board found that he displayed "precious little remorse" for his crime. In expressing his decision, Deputy Commissioner Welch said his only concern about granting parole was Cerny‟s parole plans, and he said nothing of Cerny‟s lack of remorse.*fn3 He described Cerny as "almost a model prisoner." Commissioner Bryson also noted that although Cerny was able to discuss the steps in Narcotics Anonymous, he could use "continuing work" so that he could more readily discuss the tools provided by that program.
The only basis for denial expressed by both commissioners was Cerny‟s lack of definite parole plans. He claimed to have approximately $17,000, but provided no documentation to substantiate his claim. Similarly, there was no documentation that his son would provide Cerny the support that he claimed he would. The Board was also concerned that Cerny‟s son had convictions for drug-related offenses and could possibly be an adverse influence on his father.*fn4
The "biggest issue" the 2008 Board expressed about Cerny‟s future was the possibility that he would relapse into using drugs. It determined that Cerny‟s reaching out to various postrelease drug rehabilitation programs was inadequate because none of them promised to provide him housing or employment. Accordingly, the Board encouraged Cerny to seek a commitment from an out-of-county relapse ...