(Napa County Super. Ct. No. HC1491). Trial Judge: Hon. Stephen T. Kroyer.
The opinion of the court was delivered by: Jenkins, J.
CERTIFIED FOR PUBLICATION
This matter involves a petition for writ of habeas corpus. Inmate Robert Shippman,*fn1 serving an indeterminate life sentence for the second degree murder of his wife, challenges as contrary to the evidence a decision by the Board of Parole Hearings that he remains an unreasonable risk to public safety and, thus, unsuitable for parole. For reasons we will explain, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Commitment Offense
On April 23, 1993, Shippman (petitioner) fatally shot his third wife, Juli, and then immediately turned the gun on himself, inflicting serious but nonfatal wounds. At this time, petitioner, age 55, and Juli, age 28, were separated. Juli wanted out of the marriage and was having an extramarital affair with a local police officer, her second such affair during the couple's two year marriage. Petitioner was taking Valium to alleviate the stress and anguish he suffered from the breakdown of his marriage.
About a month before the murder, petitioner had arranged to take Juli to breakfast in Calistoga so they could discuss their marital problems. However, petitioner refused to stop in Calistoga as planned, and instead drove Juli on to Ukiah, where he forced her to talk to him for about four hours. Juli later obtained a restraining order against him.
Nonetheless, according to petitioner, on the day of her murder, Juli agreed to come to his house to pick up her mail, which he said would be left on the porch. Petitioner also stated that Juli then agreed to go for a ride in his truck, during which time he intended to convince her to end her extramarital affair. The estranged couple stopped near Howell Mountain Road, where they talked for about 10 or 15 minutes, at which time Juli told petitioner she was leaving to call her lover. Petitioner, angered by Juli's statement, retrieved a rifle he kept in his truck for hunting trips, and shot her three times, twice in the chest and once in the back of the head. He then shot himself three times, twice in the chest and once in the head.
Later that morning, petitioner's friend, who had been staying at petitioner's house, found Juli's vehicle parked on a nearby street, still running and with her purse inside.
According to statements made by Juli's brother to police shortly after her murder, petitioner and Juli had been having marital difficulties for months and she was "terrified" to be alone with him. Further, petitioner had recently forced Juli to go with him to Ukiah, where he had been "extremely violent towards her." Consistent with these statements, a probation report submitted in the case noted "a number of police reports at the department relating to the events surrounding [the couple's] separation and of the problems they were having."
In September 1993, petitioner pleaded guilty to second degree murder, with an enhancement for use of a firearm, and was sentenced to an indeterminate term of 15 years to life in prison, plus four additional years for the enhancement. Petitioner's minimum parole eligibility date was scheduled for August 15, 2005.
II. Petitioner's Personal Background
Petitioner was raised on a chicken farm in central California by his mother and father with 10 older siblings. Petitioner's parents remained married, and provided well for their large family. His father worked as a rancher and then, upon his retirement, became a local pastor. Petitioner recalls a happy, stable childhood, with no issues of emotional or physical abuse, substance abuse, disciplinary problems or medical problems of any kind. Petitioner had no juvenile record or criminal record aside from his commitment offense.
Petitioner graduated from high school and attended one year of college before meeting and marrying his first wife and leaving school to gain employment. Petitioner divorced his first wife, with whom he has one daughter, after seven years of marriage when she became pregnant by one of his best friends. Petitioner denies any history of physical or emotional abuse in his first marriage, but admits hitting his first wife's lover in the head with a baseball bat, "put[ting] him in the hospital."
Two years after divorcing his first wife, petitioner married his second wife, with whom he shares a daughter and stepson. As with his first marriage, petitioner denies any history of physical abuse or emotional abuse in his second marriage, but admits "there was one [incident] with my [second] wife," which stemmed from the couple's disagreement over how best to handle their son's drug abuse. Petitioner's second marriage ended after 22 years, when he had an extramarital affair with Juli, his eventual third wife and the victim in this case.
Prior to his incarceration, petitioner was continuously employed, as a plumbing contractor and owner of a plumbing company, and as the owner of a gas station. He had no problems with alcohol or drug abuse or history of mental problems.
III. Petitioner's Incarceration
While serving his indeterminate sentence, petitioner has completed certificates in vocational plumbing and carpentry, and obtained skills in vocational electricity. In addition, he has worked as a plumber, and voluntarily taught basic plumbing and electricity skills to other inmates. His work reports have all been satisfactory or above average.
Petitioner has had no disciplinary problems while incarcerated, and has participated in one 44-week anger management course and one 14-week self-help course entitled "Awareness and Empathy for Survivors of Crime." He has also become a self-described born-again Christian, taught Bible study, and coached softball.
Petitioner has undergone at least two psychological evaluations during his incarceration. The results of both were favorable and supportive of his release. For example, a 2004 evaluation concluded that, "based upon his years of incarceration, the maturity he has gained over those years, his deep sense of sorrow and remorse about the commitment offense, his ever-deepening awareness of spiritual truths, and the fact that he has learned that he must not take things into his own hands when disaster strikes, he actually poses less of a threat to society than the average citizen."
The most recent evaluation, prepared in 2008 in connection with this latest effort at parole, describes petitioner, now age 70, as being at a "very low" risk for future violence. The 2008 evaluation further notes that petitioner has "programm[ed] in an excellent fashion" during his incarceration and "shows no indications of psychopathy." When asked to describe his strengths, petitioner identified his faith in God; when asked about his weaknesses, he identified "too many sweets."
IV. Petitioner's Parole Hearings and Board Decisions
In September 2004, petitioner participated in his first parole hearing, after which a panel of hearing officers from the Board of Parole Hearings (the Board) denied parole for four years, finding him unsuitable for release.
On October 22, 2008, petitioner's second parole hearing (known as the "first subsequent parole hearing") was held. At this hearing, the presiding commissioner questioned petitioner at length regarding his suitability for parole, touching on, among other topics, Juli's murder; his social history, including his three failed marriages; his accomplishments during incarceration; and his future plans. In addition, the district attorney questioned petitioner in greater detail regarding "control issues" he experienced in his relationships with Juli and his other wives, and any efforts he has made while incarcerated to address this antisocial behavior.
Following this hearing, the Board decided petitioner remained unsuitable for parole because he continued to pose an unreasonable risk of danger to public safety. The Board based its decision on the following grounds: (1) the commitment offense was particularly aggravated in nature; (2) petitioner lacks insight into what caused him to commit the offense and to otherwise engage in controlling behavior; (3) he has an unstable social history; and (4) his parole plans are "marginal." Of particular concern to the Board was petitioner's apparent ignorance of the factors that "trigger" his irrational need to control others, the behavior that led him to commit murder. The Board expressed optimism, however, regarding petitioner's exemplary disciplinary record while incarcerated and his lack of a juvenile or other criminal record, and encouraged him to participate in additional self-help programs to better prepare him for release. Accordingly, the Board denied parole for three additional years.
On April 1, 2009, petitioner filed a petition for writ of habeas corpus in superior court. On May 4, 2009, the superior court denied his petition, finding the Board's denial of parole adequately supported by the evidence in the record. Petitioner then filed for habeas relief in this court.
We issued an order to show cause and appointed counsel for petitioner, after concluding based on the factual allegations in his petition that he may be entitled to habeas relief. (See People v. Duvall (1995) 9 Cal.4th 464, 474-475.) In compliance with this order, the prosecution filed a timely return, and petitioner thereafter filed a traverse responding to the issues raised therein. With this factual and procedural background, we now turn to the relevant law.
The sole issue before us is whether petitioner is entitled to habeas relief from the Board's finding that he was unsuitable for parole. The relevant legal principles, most of which have been codified, are as follows.
I. The Legal Framework: Suitability for Parole
Under Penal Code section 3041, the governing statute, the Board is normally required, one year before an inmate's minimum eligible parole release date, to set a parole release date "in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public . . . ." (Pen. Code, § 3041, subd. (a).) Specifically, the Board must set a parole release date unless it determines that public safety requires a lengthier period of incarceration for the inmate given the gravity of the commitment offense. (Pen. Code, § 3041, subd. (b); see also In re Shaputis (2008) 44 Cal.4th 1241, 1257-1258.)
Consistent with section 3041, the governing regulations require the Board to determine whether an inmate is suitable for parole after considering "[a]ll relevant, reliable information available to the panel . . . ." (Cal. Code Regs., tit. 15, § 2402, subd. (b).) "Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." (Id., § 2402, subd. (a).)
Factors set forth under the governing regulations that demonstrate an inmate's suitability for parole include: (1) lack of juvenile record; (2) stable social history; (3) signs of remorse; (4) motivation for the crime (e.g., whether the inmate committed the crime as the result of significant stress in his life); (5) experience of battered woman syndrome; (6) lack of criminal history; (7) present age; (8) plans for release; and (9) institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) Factors demonstrating an inmate's unsuitability for parole include: (1) the nature of the commitment offense; (2) previous record of violence; (3) unstable social history; (4) commission of sadistic sexual offenses; (5) psychological factors (e.g., whether the inmate has a lengthy history of severe mental problems related to the offense); and (6) institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
In considering these factors, " the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) The Board must keep in mind, however, that " 'parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.' (In re Rosenkrantz [(2002) 29 Cal.4th 616] at p. 654 . . . .)" (In re Shaputis, supra, 44 Cal.4th at p. 1258.)
II. The Standard Governing Review of Board Parole Decisions
On appeal, only limited grounds exist for overturning a Board's decision regarding a particular inmate's suitability for parole. Specifically, if there is "some evidence" supporting the Board's decision, we will not disturb it on appeal. (In re Lawrence (2008) 44 Cal.4th 1181, 1212; In re Shaputis, supra, 44 Cal.4th at p. 1254.) However, "because the paramount consideration for . . . the Board . . . is whether the inmate currently poses a threat to public safety, and because the inmate's due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists 'some evidence' that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor," to support the Board's decision. (In re Shaputis, supra, 44 Cal.4th at p. 1254.) "It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (In re Lawrence, supra, 44 Cal.4th at p. 1212; see also In re Lee (2006) 143 Cal.App.4th 1400, 1409 ["[s]ome evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee's release unreasonably endangers public safety"].)
In applying this standard, the reviewing court must affirm the Board's reading of the evidence so long as it is reasonable and based upon due consideration of the relevant legal factors. (In re Shaputis, supra, 44 Cal.4th at p. 1258; In re Singler (2008) 169 Cal.App.4th 1227, 1238.) However, while this standard is "highly deferential," requiring just a "modicum of evidence," it "certainly is not toothless." (In re Lawrence, supra, 44 Cal.4th at pp. 1204-1205, 1210.) "If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (In re Rosenkrantz (2002) 29 Cal.4th 616, 658.)
III. The Board's Decision and the Supporting Evidentiary Record
Here, the Board found petitioner not suitable for parole after determining that he remained a threat to public safety. In making this determination, the Board relied upon the following: (1) the aggravated nature of his commitment offense; (2) his lack of insight into the offense's causative factors; (3) his unstable social history (and, in particular, a pattern of "control issues" he had with respect to his romantic partners); and (4) his marginal parole plans. Thus, applying the legal principles set forth above, we must decide whether "some evidence" supports the Board's reliance on these factors to deny petitioner parole. (In re Shaputis, supra, 44 Cal.4th at p. 1255.)
A. The Commitment Offense
Under the governing regulations, when deciding whether an inmate is suitable for parole, the Board may consider whether the inmate committed the underlying offense in an especially heinous, atrocious or cruel manner. In particular, the Board may consider whether the offense had multiple victims, whether it was carried out in a dispassionate and calculated manner, whether the inmate acted with exceptionally callous disregard for human suffering, and whether the inmate's motive was inexplicable or very trivial. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)
However, as the California Supreme Court has clarified, the Board "may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, 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 . . . ." (In re Lawrence, supra, 44 Cal.4th at p. 1221.) "This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude. (In re Rosenkrantz, supra, 29 Cal.4th at p. 682.)" (Ibid.; see also In re Shaputis, supra, 44 Cal.4th at p. 1255.)
Here, the Board found petitioner's commitment offense particularly grave because it was "done in a dispassionate and somewhat calculated manner" and "in a manner which demonstrated exceptional callous disregard for human suffering." The Board also found that petitioner did not act in the heat of the moment upon discovering Juli's extramarital affair. Rather, petitioner knew Juli wanted a divorce and was seeing someone else when he used a "false pretense" to lure her into ...