The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion at Docket No. 18]
At Docket No. 18, Petitioner, Tony Cyprien, a state prisoner appearing pro se, has filed a motion under Federal Rule of Civil Procedure 60(b)(6) to vacate the judgment entered on April 26, 2010, at Docket No. 17. Respondent has opposed the motion, and Cyprien has replied.
As the motion was filed within 28 days of the entry of the judgment, this Court treats the motion as a motion to modify or amend the judgment under Rule 59(e).*fn1 This Court may grant relief under Rule 59(e) under limited circumstances: an intervening change of controlling authority, new evidence has surfaced, or the previous disposition was clearly erroneous and, if uncorrected, would work a manifest injustice.*fn2
Cyprien, relying on the recent en banc decision of the Ninth Circuit in Hayward,*fn3 argues that this Court erred in holding that his petition should be denied because he had not yet served his term. Cyprien's position is based upon the premise that "the notion that the commitment offense by itself is a valid basis to deny parole until a prisoner has served his/her minimum term derives sole form [sic] federal law." In support of his statement Cyprien cites In re Lawrence, 150 Cal. App. 4th 1511, 1530-1540 [59 Cal. Rptr. 3d 537] (2007), review of which was granted by the California Supreme Court and ordered depublished.*fn4 Cyprien argues that because *fn5 Sass,*fn6 and Irons,*fn7 to the extent that the "some evidence" standard derived from federal law, this Court must now apply the California "some evidence" standard.
Hayward overruled Biggs, While this Court must agree with Cyprien that, under Hayward, the standard to be applied is the "some evidence" rule as applied by the California courts, this Court disagrees that the prior decision of this Court should be reconsidered and the judgment vacated. First, this Court did not deny relief solely on the basis that Cyprien had not yet served his minimum term. Relief was denied principally on the basis that the Board's determination that Cyprien would pose an unreasonable risk of danger to society and a threat to public safety and, was, therefore, unsuitable for parole was supported by some evidence. Second, no court, state or federal, has held that, prior to completion of the underlying base term, the nature of the underlying conviction, standing alone, would not be sufficient basis for denial of parole.
Under Hayward, this Court "need only decide whether the California judicial decision approving the [Board's] decision rejecting parole was an 'unreasonable application' of the California 'some evidence' requirement, or 'was based on an unreasonable determination of the facts in light of the evidence.'"*fn8 Consequently, this Court must canvas and apply California law to the facts in the record. Under California law "some evidence" of future dangerousness is a sine qua non for denial of parole.*fn9 The California Supreme Court has held that "[t]he nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole."*fn10 The Board must, however, "point to factors beyond the minimum elements of the crime for which the inmate was committed" that demonstrate the inmate will, at the time of the suitability hearing, present a danger to society if released.*fn11 The Board "may credit evidence suggesting the inmate committed a greater degree of the offense than his or her conviction evidences."*fn12 "[T]he statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness."*fn13 Where, however, the record also contains evidence of other factors relevant to showing unsuitability for parole, the aggravating circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration.*fn14
The California Supreme Court has provided substantial guidance on the factors to be considered in applying these general principles.
Title 15, section 2402 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statutes.FN13 This regulation is designed to guide the Board's assessment of whether the inmate poses "an unreasonable risk of danger to society if released from prison," and thus whether he or she is suitable for parole. (Regs., § 2402, subd. (a).)FN14 The regulation also lists several circumstances relating to unsuitability for paroleFN15- such as the heinous, atrocious, or cruel nature of the crime, or an unstable social background; and several circumstances relating to suitability for parole-such as an inmate's rehabilitative efforts, demonstration of remorse, and the mitigating circumstances of the crime.FN16 (Regs., § 2402, subds. (c), (d).) Finally, the regulation explains that the foregoing circumstances "are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Regs., § 2402, subds. (c), (d).)
FN13. Petitioner's parole suitability is governed by Title 15, section 2402, which we addressed in Rosenkrantz, supra, 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174-a discussion excerpted in substantial part below. In the companion case of Lawrence, supra, 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535, the inmate's parole suitability is governed by Title 15, section 2281, which provides parole consideration criteria and guidelines for murders committed prior to November 8, 1978. The two sections are identical.
FN14. These factors include "the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Regs., § 2402, subd. (b).)
FN15. Unsuitability factors are: (1) a commitment offense carried out in an "especially heinous, atrocious or cruel manner"; (2) a "[p]revious [r]ecord of [v]iolence"; (3) "a history of unstable or tumultuous relationships with others"; (4) "[s]adistic [s]exual [o]ffenses"; (5) "a lengthy history of severe mental problems related to the offense"; and (6) "[t]he prisoner has engaged in serious misconduct in prison or jail." (Regs., § 2402, subd. (c)(1)-(6).) This subdivision further provides that "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Regs., § 2402, subd. (c).)
Factors supporting a finding that the inmate committed the offense in an especially heinous, atrocious, or cruel manner include the following:
(A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for ...