ORIGINAL PROCEEDING on a petition for writ of habeas corpus. Relief granted. (Los Angeles County Super. Ct. No. BH006011).
The opinion of the court was delivered by: Woods, J.
CERTIFIED FOR PUBLICATION
David Allen Twinn filed a writ of habeas corpus seeking an order overturning the Governor's 2010 decision to reverse the Board of Parole Hearings' (the Board) 2009 order granting him parole, and reinstating of the Board's parole release order. In 1992, Twinn was sentenced to an indeterminate term of 15 years-to-life in state prison for second degree murder. The Board found Twinn suitable and granted parole in 2006, 2008 and 2009. On each occasion the Governor, exercising his authority under Article V, section 8, subdivision (b), of the California Constitution and Penal Code section 3041.2, reversed the Board's decision. In July 2010, Twinn filed the instant petition in which he argued, inter alia, that the Governor's 2010 reversal was not supported by "some evidence" that he currently posed an unreasonable risk of danger to society if released and thus violated his right to due process. He specifically argues that the Governor relies on evidence taken out of context and outdated evidence, including old psychological evaluations to conclude erroneously that he lacks insight into his crimes and has not accepted full responsibility for his actions. Twinn further asserts the Governor has no evidence to support the finding that he lacks viable parole plans. Twinn also complains the Governor has failed to establish a nexus between the commitment offense and his current dangerousness. As we shall explain more fully below, we agree with Twinn. In our view, although there is a modicum of evidence to support the Governor's finding that in the past Twinn had minimized his role in the victim's demise, other evidence the Governor relies upon to justify the reversal of the Board's decision, lacks a rational basis in fact. In addition, the identified facts that do find support in the record are not probative to the central issue of current dangerous when considered in light of the full record. Accordingly, we grant relief.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Twinn was born in 1972 and grew up in a "gang-infested" area of Venice. He has nine siblings. Twinn's father abused alcohol and his mother was a nurse; Twinn stated that his parents had an unstable relationship and separated a number of times, but never divorced. Twinn reported that his father "was not always around," and therefore, Twinn had a childhood with "a lot of responsibility" to take care of his siblings as well as a bedridden aunt. As a result, Twinn stated he had a lot of anger and he reported that he looked to his friends and street gangs to serve as a surrogate family. He was involved in a gang, the "Venice Shoreline Crips" from age 13-16, but he denied he was involved in any serious violence in connection with that gang; he described himself as "not a very good" or active gang member. Twinn stated that he left the gang when he was 16 and moved to Fresno to live near his mother.
In 1987, when Twinn was 14 years old, a juvenile delinquency petition was sustained against him for grand theft of an automobile, and he was committed to community camp. Twinn described that offense as "joyriding." In 1989, another petition was sustained against Twinn and he was again sent to community camp for "robbery, armed with a deadly weapon, and taking a vehicle without the owner's consent." Twinn explained that the 1989 offense involved his failure to return a car to a person who had "rented" it to him in exchange for money to buy drugs. Twinn was on probation at the time of the commitment offense.
B. The Commitment Offense
On the morning of June 16, 1990, Irma Blockman (Twinn's stepbrother's aunt) was collecting bottles on the street in Venice.*fn1 She saw a couple of bottles near a trio of men who stood on a corner. When she approached intending to pick up the bottles, one of the men, the victim, Curtis Golder, who appeared to be intoxicated, stopped her and an argument ensued. Blockman was under the influence of cocaine at the time. Blockman walked away. A short time later Blockman saw what she thought was an abandoned shopping cart with clothes and other items in it. Blockman took the cart and began to walk home. Golder stopped her again and told her the shopping cart belonged to him. Golder punched Blockman in the eye and she hit him with a bottle. Golder then knocked Blockman down. Blockman got up from the ground and walked home.
That night Blockman was at her mother's house, when Twinn, who was 17 years old at the time, and Blockman's nephew Julius Yates learned what had transpired between Blockman and Golder earlier in the day. Twinn and Yates decided to retaliate by beating up Golder. They approached Golder on the street and struck Golder with their fists and feet. It was also alleged at trial that they struck Golder with a piece of wood.*fn2 They beat Golder for five to ten minutes, even after Golder fell to the ground and did not resist. Either Twinn or Yates also threw a shopping cart on Golder. Yates and Twinn fled; Twinn believed that Golder was still alive when they left.*fn3 In the beating Golder suffered fractured ribs, abrasions, lacerations to his face, head, hand and lower body. Golder was pronounced dead at the scene.
Twinn was arrested and charged with second degree murder in violation of Penal Code section 187. During the trial, the medical examiner testified that the immediate cause of Golder's death was arteriosclerotic disease of the heart (i.e., obstructed arteries). Nonetheless, the medical examiner also concluded that the blunt force injuries from the beating contributed to his death. In 1992, Twinn was convicted and sentenced to 15 years to life. He was initially housed in the California Youth Authority.
Twinn and Yates appealed their convictions, claiming various instructional errors and that insufficient evidence supported a finding of malice aforethought and use of a dangerous weapon. They argued that there was insufficient evidence that they intended to kill Golder, and that but for Golder's heart condition, their actions would not have caused Golder's death. This court rejected the contentions and affirmed the judgment.
C. Post-Conviction Conduct
During Twinn's almost two decades in prison, Twinn obtained his high school diploma, worked in various trades including welding and carpentry, participated in vocational courses and has participated in educational and self-help programs. While in prison he has served as chair of the NA and AA programs and continued to follow the 12-step program. Although nothing in his record shows that he has a substance abuse problem, Twinn noted that he enjoyed being involved in the programs.
Twinn has also served as a literacy volunteer and as a mentor and speaker for Phoenix House. He has also worked with an instructor in the prison vocational program to develop financial planning materials for fellow inmates to teach them about life skills in banking, credit cards and investment plans.
All of his psychological assessments have found him to be a low risk of dangerousness; and he has not been found to have suffered from any psychological or mental disorders.
Twinn's first mental evaluation was conducted in 1995. According to the evaluator's report, Twinn revealed that when he was 14 or 15 years old he had ingested more than a gram of cocaine to "avoid arrest" and as a result lost consciousness and was hospitalized for a few days. When asked about the commitment offense, Twinn told the evaluator that he was appealing his conviction and was "innocent of the charges of murder" and further stated that he was advised by counsel not to discuss the offense and therefore refused to discuss the circumstances of the crime. The evaluation further reflected that Twinn had not had any behavior problems while incarcerated or institutional disciplinary problems; that he had been working in a warehouse trade and had obtained a certificate as an office clerk.
Twinn's 2000 psychological evaluation reflected that while describing the commitment offense, Twinn stated that the victim suffered from heart disease and had a heart attack when Twinn and Yates attacked him. Twinn also told the evaluator that he was "offered six years since the death was accidental but I didn't take it.... I should have taken the deal when I was a juvenile but I was scared." The report further indicated that Twinn had made impressive gains while in prison and had matured considerably.
In 1999 Twinn married a friend he had known since he was a teenager and has a child from the marriage.
Twinn's 2008 psychological evaluation indicated that Twinn discussed how he had changed since he had been incarcerated, how he had adopted a 'better value system" and had learned to deal with stress and anger. In discussing, the commitment offense, he told the evaluator that he and Yates "jumped [Golder] and he died of a heart attack and because of the beating... the fight made [Golder] too excited...." Twinn also stated that at the time he thought he was "protecting" Blockman, whom he considered to be a family member. Twinn indicated that on an occasion prior to the crime that he had failed to protect his sister during some incident and that the prior situation with his sister had stayed in his mind. He stated that he acted out of anger and had made a "poor choice." He further told the evaluator that he "felt terrible" about his crime; "I never wanted to take a man's life. I have to carry this around with me for the rest of my life... I want to apologize.... He didn't deserve to die." In the evaluator's view, Twinn had taken responsibility for his actions: "He was able to discuss some of the environmental and personal factors that contributed to him committing the crime. He also expressed remorse for committing his offense." The evaluator also noted that Twinn has "demonstrated appropriate insight into the personality style and causation factors of the life of crime." The report concluded that Twinn presented a "low risk for violent recidivism."
The 2008 evaluation found that Twinn's plans for parole appeared feasible and that he could lower his risk for recidivism by continuing "to refine his plans for residence and employment in the community" prior to release from custody. The reports concluded that "if" Twinn remains in custody he may benefit from, among other things, "continuing to explore the circumstances of the crime."
Over the years Twinn has received consistent positive reports about his strong work ethic, positive and dependable attitude. His supervisors and trainers have described him as an excellent worker, who expressed a willingness to learn, possessed a sense of humor, had effective communication skills and was respectful. While in prison he has served as manager of the "tool crib." Twinn completed all of the vocational training and obtained the requisite certificates to work as a welder. He serves as the assistant to the welding instructor. His training as a welder qualifies him for post-release acceptance into an ironworker's apprenticeship program which pays $17.75 an hour and includes benefits. Twinn's welding instructor indicated a belief that Twinn would be accepted into the program.
Twinn has no history of involvement with criminal activity or substance abuse while in prison. In May 1993, while he was housed at the California Youth Authority, Twinn received a 115 violation report alleging that he tampered with a urine sample. He received two rule 128A, the most recent in 2001 for speaking loudly during a vocational training course.*fn4
D. Prior Parole Suitability Proceedings
In 2000, at Twinn's first parole suitability hearing, the Board denied him parole for two years based on the commitment offense, his juvenile record and insufficient institutional programming. In 2003 and 2004, the Board denied him parole again.
In May 2006, the Board found Twinn suitable for parole for the first time. In September 2006 the Governor reversed the Board's decision based on the nature of the crime, Twinn's "too recent" acceptance of responsibility and the opposition of law enforcement.
In May 2007, the Board found Twinn unsuitable for parole, based on the grounds cited by the Governor in his 2006 reversal. Twinn filed a habeas petition challenging the Board's 2007 decision in this court (case No. B208105).*fn5 He argued that the Board incorrectly applied the "some evidence" standard and that its decision was arbitrary and capricious. This court directed respondent to file an informal response to the petition.
E. 2008 Suitability Proceedings, Habeas Petition and Appeal
On October 9, 2008, Twinn again appeared before the Board for another parole hearing. Although Twinn exercised his right not to discuss the circumstances of the commitment offense, he discussed his background, juvenile conduct, work and conduct in prison, his participation in rehabilitation, self-help and development programs. The Board received into evidence letters of support and commendation from Twinn's supervisors in prison and family members. The Board considered Twinn's most recent psychological evaluation, finding Twinn to be a low risk of recidivism and danger if released. Twinn discussed his parole plans: he intended to live with his wife and daughter; he would continue to participate in NA/AA; and he had a job offer at a non-profit agency "Venice 2000" that works with young people struggling with "hardships and seeking assistance to transform their lives."*fn6 He stated that his long term goal was to find work as a union welder. Twinn explained to the Board how he had developed methods to deal with stress and acting impulsively. He also noted that he has severed all gang ties he had as a young person. Twinn discussed how he had matured in prison and had learned to take responsibility for his crime and had engaged in prayer, meditation and sought forgiveness. He related that he had developed positive relationships with his family members. Twinn spoke of the debt he owed to society and his victim, about how he planned to volunteer to work with young people if he is released. The district attorney continued to state his opposition to Twinn's release.
The Board found Twinn suitable for parole. The Board stated its decision was based on its conclusion that notwithstanding the grave circumstances of the commitment offense, and Twinn's juvenile record, the weight of positive factors supported a finding of suitability, including: his positive programming in prison, his expression of "genuine remorse," his efforts to make amends, accept responsibility for his conduct, his commitment to work with young people, and his insight into his actions. The Board commended him for his institutional behavior and development, and pursuit of a career as a welder, and training as a carpenter and in office services. The panel noted that Twinn had a "stable social history"; that he had "stable relationships" with others, including family members.
On March 5, 2009, the Governor reversed the Board's 2008 parole decision. In reversing the Board's decision, the Governor relied on the nature of the commitment offense, which he described as "especially atrocious." The Governor also concluded that Twinn lacked "full insight" into his crime and appeared to have minimized his responsibility. In making this finding the Governor acknowledged that Twinn had taken responsibility for his crimes since 2002, but that prior to that time he had made statements indicating that he lacked insight. Specifically the Governor cited to statements in Twinn's 1995 psychological evaluation in which he claimed he was "innocent," and his 2000 evaluation in which he purportedly said that Golder's death was "accidental." The Governor concluded that, "[b]ased on the record, I do not believe Mr. Twinn has shown a sufficient pattern of consistent progress to assure me that he understands the circumstances surrounding the crime and his responsibility for the murder." Finally, the Governor cited Twinn's parole plans, which the Governor found to be lacking in sufficient detail, including lacking "the number of hours he can expect to work or the rate of pay he would receive." The Governor noted that given the fact that Twinn's 2008 mental evaluation had concluded that Twinn's success on parole would be determined, in part, on his securing employment, additional details to confirm his employment offer were needed to "confirm the viability" of his plans. The Governor concluded that three factors--the commitment offense, his inconsistent history of insight and responsibility, and the "lack of a viable means" of supporting himself demonstrated that Twinn posed an unreasonable risk to public safety if released on parole.
On May 1, 2009, Twinn filed the petition for a writ of habeas corpus in the superior court challenging the Governor's reversal of the Board's 2008 decision to grant him parole. Twinn argued that the Governor's reversal was not supported by some evidence of Twinn's current dangerousness. On November 25, 2009, the trial court issued an order granting the petition for a writ of habeas corpus. The superior court ordered that the Governor's decision must be vacated and the Board's grant of parole reinstated. The court found that given Twinn's conduct in prison, and his programming and rehabilitation, there was no rationale nexus between Twinn's commitment offense and current dangerousness to support a finding of suitability. Finally, the court ...