ORIGINAL PROCEEDINGS. Petition denied. (Super. Ct. No. 06HB1582).
The opinion of the court was delivered by: Scotland, P. J.
CERTIFIED FOR PUBLICATION
When the Board of Parole Hearings determines that a prisoner sentenced to an indeterminate prison term is suitable for parole (Pen. Code, § 3041), the Governor has the authority to review the matter de novo and to reverse or modify the Board's parole decision. (Cal. Const., art. V, § 8, subd. (b); Pen. Code, § 3041.2, subd. (b); In re Lawrence (2008) 44 Cal.4th 1181, 1204 ["Governor undertakes an independent, de novo review of the inmate's suitability for parole"] (hereafter Lawrence).) When the Board or Governor finds a prisoner unsuitable for parole, the prisoner may seek judicial review, by petition for writ of habeas corpus. (In re Rosenkrantz (2002) 29 Cal.4th 616, 652, 658 (hereafter Rosenkrantz).) The court's review "is limited to ascertaining whether there is some evidence in the record that supports [the unsuitable for parole finding]" (id. at p. 677), i.e., there is some evidence that, at the time parole was denied, the prisoner "continues to pose an unreasonable risk to public safety [if released from prison]." (Lawrence, supra, 44 Cal.4th at p. 1221 ["current dangerousness" test], original italics.)
In 2006, the Governor found that Timothy Ross's "criminal history, the 'extremely brutal and callous' nature of the murder [that he committed, resulting in incarceration for an indeterminate term up to life imprisonment], and his misconduct in state prison, including threatening prison staff, demonstrated that despite his rehabilitative efforts, his release would pose an unreasonable risk of danger to society." (In re Ross (2009) 170 Cal.App.4th 1490, 1496 (hereafter Ross).)
This court granted Ross's petition for writ of habeas corpus, but not on the ground that there was no evidence to support the Governor's finding. Indeed, we concluded Ross's "especially heinous, atrocious, or cruel method of murdering the victim; his prior acts of violence; his subsequent threats to prison staff after incarceration; and a psychologist's opinion that defendant 'continues to exhibit dependent features and an exaggerated need for acceptance' (a mental state that had contributed to his history of violent crime) [were] some evidence supporting the Governor's finding that [Ross] was unsuitable for parole in 2006." (Ross, supra, 170 Cal.App.4th at p. 1497, italics added.)
We were compelled to grant the petition for two reasons. First, the Governor's decision, issued prior to the Supreme Court's decision in Lawrence, supra, 44 Cal.4th 1181, did not contain the "explicit 'articulation of a rational nexus between th[e] facts and current dangerousness'" thereafter required by Lawrence. (Ross, supra, 170 Cal.App.4th at p. 1497.)*fn1 Second, the Governor did not cite the mental state evidence italicized above, and it would have been inappropriate for us, as a court, to "'salvage'" the Governor's otherwise inadequate findings by relying on evidence not articulated in his decision. (Id. at p. 1513.) Yet, we could not ignore that critical piece of mental state evidence because, when he made the parole decision, the Governor might have relied upon the mental state evidence without explicitly saying so, since the controlling Supreme Court authority did not require him to specifically identify the evidence upon which he relied in finding Ross unsuitable for parole.
Thus, we remanded the matter to the Governor "with directions to vacate his decision of October 10, 2006, which reversed the Board's finding in 2006 that [Ross] was suitable for parole, and to reconsider the matter consistent with the standards articulated in Lawrence, supra, 44 Cal.4th 1181." (Ross, supra, 170 Cal.App.4th at p. 1515.)
On remand, in a decision dated April 9, 2009, the Governor again reversed the Board's 2006 parole ruling because the evidence, "along with the risk assessment contained in [Ross's] most recent mental-health evaluation [in 2008], indicate[d] to [the Governor] that Mr. Ross still pose[d] a risk of recidivism and violence, and that his release from prison at this time would pose an unreasonable risk to public safety."
It is Ross's new petition for writ of habeas corpus that is now before us. He contends the Governor's decision in 2009 to once again reverse the Board's parole suitability finding in 2006 is "unlawful" because the Governor considered new evidence (the mental evaluation in 2008) provided to the Governor by the Board. He argues that, by considering new evidence, the Governor (1) "arbitrarily disregarded" this court's "implicit" directive in Ross, supra, 170 Cal.App.4th 1490, to reevaluate the matter based only on evidence considered by the Board in 2006, and (2) "arbitrarily disregarded California Constitution, article V, section 8(b)" and Penal Code section 3041.2, which, according to Ross, "contemplated gubernatorial review of the record that the Board reviewed when it made its parole decision."
At oral argument in this court, Ross's counsel took the position that, even if the 2008 mental health evaluation had been favorable to Ross, the Governor could not consider it. For example, if the 2008 evaluation had concluded Ross no longer exhibited dependent features and an exaggerated need for acceptance (a mental state that had contributed to his history of violent crime and constituted some evidence, along with other facts, to support the Governor's 2006 finding that Ross posed a then-current, unreasonable risk to public safety if he were released on parole), the Governor would have had to ignore the 2008 evidence favorable to Ross. Thus, the position taken by Ross's counsel would mean that, when reconsidering the matter in 2009, the Governor could have denied parole based in part on the outdated 2006 mental health evaluation, and Ross could not complain because he takes the position that the new evidence, the 2008 evaluation, would have to be ignored.
We shall deny Ross's petition. As we will explain, when, on remand after the granting of a petition for writ of habeas corpus, a Governor reconsiders whether a prisoner is suitable for parole, our ruling in Ross, rulings of the California Supreme Court, and the applicable constitutional provision and statute, all permit the Governor to rely on new evidence provided to the Governor by the Board and regarding which the inmate has had an opportunity to respond. This is so because the test the Governor must apply is whether, at the time the parole decision is made, the prisoner "continues to pose an unreasonable risk to public safety [if released from prison]." (Lawrence, supra, 44 Cal.4th at p. 1221, original italics.) Thus, if for the proceeding on remand, the Board provides the Governor with such new evidence (evidence unavailable when the Board made its parole decision) regarding whether the prisoner would pose a risk to public safety if released on parole, the evidence must be considered by the Governor. After all, "public safety is the overarching consideration for both the Board and the Governor [in determining whether a prisoner serving an indeterminate sentence should be released on parole]." (Id. at p. 1209.)
FACTS AND PROCEDURAL BACKGROUND
Ross was sentenced to a term of 15 years to life in prison for a second degree murder that he committed in 1984. Twenty-two years after the killing, the Board of Parole Hearings found Ross suitable for parole. However, exercising the authority vested in him by Penal Code section 3041.2, the Governor reversed the Board's decision. The Governor did so because he found Ross's "criminal history, the 'extremely brutal and callous' nature of the murder, and his misconduct in state prison, including threatening prison staff, demonstrated that despite his rehabilitative efforts, his release would pose an unreasonable risk of danger to society." (Ross, supra, 170 Cal.App.4th at p. 1496.)*fn2
Ross filed a petition for writ of habeas corpus challenging the Governor's decision. This court granted the petition and remanded the matter to the Governor with directions to (1) vacate his decision reversing the Board's finding that Ross was suitable for parole, and (2) reconsider the matter consistent with the standards articulated by the California Supreme Court in Lawrence, supra, 44 Cal.4th 1181, a decision ...