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In Re Manuel Cass

COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 7, 2010

IN RE MANUEL CASS ON HABEAS CORPUS.

The opinion of the court was delivered by: Nares, Acting P. J.

In re Cass CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County)

Petition for Writ of Habeas Corpus. Relief granted.

In 1988, Manuel Cass killed Anthony White. Cass pleaded guilty to second degree murder and admitted using a firearm, and was sentenced to 17 years to life. Cass, now 41 years old, has been incarcerated for over 22 years. After denying parole at several hearings over the past decade, the Board of Parole Hearings (BPH) found him suitable for parole at his 2008 suitability hearing when it concluded he did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger (the Governor) reversed the BPH's decision, finding Cass posed an unreasonable risk of danger to society if released.

Cass petitioned the trial court for a writ of habeas corpus, but the court denied the writ, concluding the Governor's decision was supported by some evidence. Cass then petitioned this court for a writ of habeas corpus. We issued an order to show cause, the People filed a return, and Cass filed a traverse. Cass asserts the Governor's decision to deny parole violated due process because its conclusion that he currently posed an unreasonable risk of danger was based on immutable past facts and was contrary to the only reliable evidence that he was not currently dangerous. We conclude the Governor's decision was not supported by some evidence, pursuant to the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), and we therefore grant the relief requested in Cass's petition.

I

FACTS

A. The Commitment Offense

Around 7:00 a.m. on March 23, 1988, Anthony White (age 17) was walking from his home to a bus stop when Cass (riding in a car driven by his then-girlfriend) stopped near White. Cass (then age 18) emerged from the car, confronted White, and shot him several times. Cass then got back into the car and left the scene.

B. Cass's Performance in Prison

Cass has remained discipline free during his 22 years of incarceration. In addition to this unblemished discipline record, he furthered his vocational training through numerous programs, became involved in numerous self-help programs, and consistently received praise from prison staff.

C. Professional Evaluations

Cass's evaluations from various correctional and mental health professionals over the years consistently have been favorable and have concluded his potential for violence was low. As early as 1992, a staff psychologist stated his "involvement in criminal activity and the eventual murder appears to have come about due to opportunity and a vulnerability to peer influence, [and Cass] appears sincerely remorseful," and that his behavior "would continue to be appropriate in a less controlled setting." Three years later, another psychologist stated he had no psychiatric disorders and concurred in the 1992 assessment. In 1998, a psychologist stated Cass "takes full responsibility for his crime and realizes the impact on the victim's family[,] . . . has gained considerable insight [and] [h]is feelings of remorse are clear." The psychologist concluded his potential for violence is "less than the average inmate [and] [i]n a less structured environment it is likely that he would be able to maintain the gains and build on them given the opportunity." In 2001, the psychiatrist evaluating him stated that, were Cass released, his "risk for violence would be considered minimally higher than the average citizen due to the nature of the crime, and his involvement in drug sales. Past significant risk factors of lack of responsibility, being naive, and immature, and having a lack of direction and goal setting abilities, all have improved." However, the psychiatrist also clarified the statement that Cass's risk of violence was "minimally higher than the average citizen" was a purely statistical assessment based on his commitment offense, and he "has made progress to the point where he would not present a significant risk as long as he follows through with his parole plans and has good support from his family, obtains employment and does not become involved in criminal activity."

In a 2004 report, apparently prepared in connection with an unsuccessful parole hearing, another psychiatrist stated Cass's "insight and judgment are good," he has "take[n] full responsibility for the offense and does not appear to rationalize or minimize his role [and] fully express[es] remorse," and concluded his risk for violence if released on parole was "on par with the average citizen." In the 2008 psychological report prepared in connection with his most recent parole hearing, another psychologist reported Cass received the best possible classification score and he "took responsibility for his actions," "did not minimize his behaviors and appears to have developed insight into the causative factors," and "did not blame his actions on his friends or his criminal lifestyle." The psychologist assessed Cass's potential for violence by employing two separate empirically based assessment guides--the Psychopathy Checklist-Revised (PCL-R) and the History-Clinical-Risk-20 (HCR-20). Cass's PCL-R score placed him the "low range" for potential violence, and his score on the HCR-20 also placed him the "low risk category" of recidivism. The psychologist concluded Cass "poses a low likelihood to become involved in a violent offense if released into the free community." The psychologist concluded he "is to be commended for his positive and prosocial programming since his incarceration. He has received a significant number of laudatory chrono's for his positive behavior including a letter from the warden praising his positive behavior. His parole plans remain feasible and comprehensive. . . . He has taken full responsibility for the instant offense. The current risk assessment suggested [Cass] represents a low risk of recidivism if released to the community."

D. Other Suitability Factors

Cass had no history of prior violence and his only criminal record was a juvenile court true finding of selling drugs. He has developed marketable skills, and has realistic parole plans and available support from family members and third parties on release from prison.

II

HISTORY OF PROCEEDINGS

A. The BPH Proceedings

Cass's minimum eligible parole date was in 1999. He apparently had several hearings before the BPH during the ensuing years, including one at which the BPH found him suitable for parole.

At his 2008 parole hearing, the BPH concluded Cass was suitable for parole after hearing his testimony at the hearing and reviewing the written reports. The BPH relied on his discipline-free prison record, his positive behavior in prison, his lack of any prior record of violence, his maturation and conduct over the previous 20 years, his realistic parole and employment plans, his remorse and insight into his behavior, and the opinions of the evaluators supportive of release to conclude he did not pose an unreasonable risk of danger to society if released on parole.

In February 2009 the Governor reversed the BPH's decision because he found Cass did pose an unreasonable risk of danger to society if released. The Governor cited two reasons for this finding: (1) the circumstances of the crime, which the Governor concluded were especially heinous and callous because there was some evidence of premeditation and of exceptionally callous behavior; and (2) Cass lacked insight into (and had not accepted responsibility for) the crime because his version of the events had changed over the years. Because the Governor concluded the gravity of the murder and Cass's failure to accept full responsibility outweighed the positive factors, he concluded Cass's release would pose an unreasonable risk of danger to society at this time.

The Habeas Proceedings

Cass petitioned the San Diego County Superior Court for a writ of habeas corpus, alleging the Governor's reversal of the BPH's decision violated his due process rights because the Governor's unsuitability determination was not supported by the evidence and was arbitrary and capricious. The trial court denied the petition, concluding the Governor's decision was supported by some evidence, and Cass then petitioned this court for a writ of habeas corpus. We issued an order to show cause, the People filed a return, and Cass filed a traverse.

Cass's petition asserts the Governor's reversal of the BPH's decision violated due process because its conclusion that he posed an unreasonable risk of danger was based on immutable past facts and was contrary to the only reliable evidence that he was not currently dangerous.

III

LEGAL STANDARDS

A. The Parole Decision

The decision whether to grant parole is a subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a number of factors, some objective, identified in Penal Code section 3041 and the BPH's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) In making the suitability determination, the BPH must consider "[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b); hereafter, reference to section 2402 refers to the regulations), including the nature of the commitment offense; behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude toward the crime; and parole plans. (§ 2402, subd. (b).) The circumstances that tend to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel manner*fn1 ; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (§ 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (§ 2402, subd. (b).)

Circumstances tending to show suitability for parole include that the inmate: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use on release; and (9) has engaged in institutional activities that evidence an enhanced ability to function within the law on release. (§ 2402, subd. (d).)

These criteria, which apply equally to the Governor when he considers whether to reverse a BPH decision to grant parole, are general guidelines, illustrative rather than exclusive, and "the importance attached to [any] circumstance [or combination of circumstances in a particular case] is left to the judgment of the Governor." (Rosenkrantz, supra, 29 Cal.4th at p. 679; § 2402, subds. (c) & (d).) The endeavor is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, at p. 655.) Because parole unsuitability factors need only be found by a preponderance of the evidence, the BPH may consider facts apart from those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.)

B. Standard for Judicial Review of Parole Decisions

In Rosenkrantz, the California Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch. The court first held that "the judicial branch is authorized to review the factual basis of a decision of the [Governor] denying parole . . . to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the [Governor] supports the decision to deny parole, based on the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)

In Lawrence, the Supreme Court noted that its decisions in Rosenkrantz and In re Dannenburg (2005) 34 Cal.4th 1061, and specifically Rosenkrantz's characterization of "some evidence" as "extremely deferential" and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, 29 Cal.4th at p. 667), had generated confusion and disagreement among the lower courts "regarding the precise contours of the 'some evidence' standard." (Lawrence, supra, 44 Cal.4th at p. 1206.) Lawrence explained some courts interpreted Rosenkrantz as limiting the judiciary to reviewing whether "some evidence" exists to support an unsuitability factor cited by the Governor, while other courts interpreted Rosenkrantz as requiring the judiciary to instead review whether "some evidence" exists to support "the core determination required by the statute before parole can be denied--that an inmate's release will unreasonably endanger public safety." (Lawrence, at pp. 1207-1209.)

The Lawrence court, recognizing the legislative scheme contemplates "an assessment of an inmate's current dangerousness" (Lawrence, supra, 44 Cal.4th at p. 1205), resolved the conflict among the lower courts by clarifying that the analysis required when reviewing a decision relating to a prisoner's current suitability for parole is "whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212.) Lawrence clarified that the standard for judicial review, although "unquestionably deferential, [is] certainly . . . not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision--the determination of current dangerousness." (Id. at p. 1210, italics added.) Indeed, it is Lawrence's numerous iterations (and variants) of the requirement of a "rational nexus" between the facts underlying the unsuitability factor and the conclusion of current dangerousness that appear to form the crux of, and provide the teeth for, the standards adopted in Lawrence to clarify and illuminate "the precise contours of the 'some evidence' standard." (Id. at p. 1206.)

After clarifying the applicable standard of review, Lawrence addressed how one "unsuitability" factor--whether the prisoner's commitment offense was done in a particularly heinous, atrocious, or cruel manner--can affect the parole suitability determination, and whether the existence of some evidence supporting the BPH's finding that the offense was particularly heinous, atrocious, or cruel is alone sufficient to deny parole. Lawrence concluded that when there has been a lengthy passage of time, the Governor may continue to rely on the nature of the commitment offense as a basis to deny parole only when there are other facts in the record, such as the prisoner's history before and after the offense or the prisoner's current demeanor and mental state, that provide a rational nexus for concluding an offense of ancient vintage continues to be predictive of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221.)

IV

ANALYSIS

A. Analysis of Merits

The People do not dispute that the evidence on most of the relevant suitability factors,*fn2 as well as the evidence on most of the unsuitability factors, uniformly militated in favor of finding Cass suitable for parole. In this evidentiary context, we examine whether, notwithstanding the numerous factors supporting parole, there is some evidence that Cass's current mental attitudes provides a rational nexus for concluding the crime continues to be predictive of his current dangerousness.

B. The Circumstances of the Crime

The Governor concluded the commitment offense was aggravated based on two factors: (1) the murder was especially heinous because there was some evidence that Cass premeditated the killing, and (2) the murder was especially callous because Cass pushed White to the ground and then emptied his gun, shooting him seven times.

Cass asserts there is no "reliable" evidence to support either conclusion. He argues the evidence in the record is too insubstantial to support a finding of premeditation, because the Governor relied on (1) hearsay statements from White (who said Cass had told him Cass would kill him to avenge a prior killing in which White was involved) and (2) Cass's girlfriend's report (the girlfriend stated "[Cass] said he had to go and 'take care of some business' and that they drove to the [vicinity of the shooting] where he got out of the vehicle and went someplace," where Cass encountered and shot White). Cass argues the former evidence was too self-serving to be given any weight, and the latter was too ambiguous to support a premeditation finding. He also asserts the evidence relied on for callousness--that Cass shot the victim multiple times while the victim was on the ground--overlooks the evidence that he justifiably feared White might harm him and simply overreacted during their confrontation.

Cass's argument in effect asks us to reweigh the evidence by discounting the evidence the Governor found significant while crediting the evidence supporting Cass's version of the events. This argument, however, does not comport with the guiding principle that our review of the decision must be deferential. To support the decision, "[o]nly a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor. . . . As long as the Governor's decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision." (Rosenkrantz, supra, 29 Cal.4th at p. 677.) "Nothing in Lawrence changed this aspect of judicial review. We do not, for example, decide that some evidence is inconsequential or that the [Governor] should have credited the inmate's version of the commitment offense. That is reweighing, which is not our role." (In re Criscione (2009) 173 Cal.App.4th 60, 73-74.) Because some evidence supports the Governor's conclusion the commitment offense involved some level of premeditation and callousness, we may not ignore the Governor's conclusion the commitment offense was especially aggravated.

C. Cass's Current Mental State

Although some evidence supports the Governor's conclusion the commitment offense was aggravated, it is clear, after Lawrence, this "unsuitability" factor is not alone sufficient to deny parole. Instead, Lawrence teaches that when there has been a lengthy passage of time, the Governor may continue to rely on the nature of the commitment offense as a basis to deny parole only when there are other facts in the record, such as the prisoner's history before and after the offense or the prisoner's current demeanor and mental state, that provide a rational nexus for concluding an offense of ancient vintage continues to be predictive of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221.)

The Governor concluded Cass's current mental state provided the rational nexus for concluding the 1988 murder continued to be predictive of his current dangerousness because the Governor found, notwithstanding the contrary assessments by numerous experts over the years, that Cass did not have insight into what led him to commit the murder and had not accepted responsibility for the crime. Because the Governor's conclusion of Cass's current dangerousness appears to have been based exclusively on his findings that (as of the 2008 hearing) Cass lacked adequate insight into his prior criminal conduct and did not accept responsibility for his conduct, an extended examination of these factors,*fn3 and whether there is any evidentiary support for these findings, is required. Before Lawrence and Shaputis were decided, it appears that virtually all decisions of the BPH and Governor denying parole relied primarily on the gravity of the commitment offense. (See Lawrence, supra, 44 Cal.4th at p. 1206 [noting "the practical reality that in every published judicial opinion [reviewing a parole decision], the decision of the Board or the Governor to deny or reverse a grant of parole has been founded in part or in whole upon a finding that the inmate committed the offense in an 'especially heinous, atrocious or cruel manner' "].) In the wake of Lawrence and Shaputis, the articulated grounds for denial of parole now seem usually based, at least in part, on the inmate's asserted "lack of insight," which has become the " 'new talisman.' " (In re Shippman (2010) 185 Cal.App.4th 446, 481 (dis. opn. of Pollak, J.).) The intensified interest in this malleable factor--which is not among the criteria indicative of unsuitability for release on parole set forth in the governing regulations (Cal. Code Regs., tit. 15, §§ 2281, 2402)--seems to have been sparked by the Supreme Court's opinion in Shaputis, in which the Governor's reversal of an award of parole was upheld because his reliance on the gravity of the inmate's commitment offense was coupled with concern about the inmate's "lack of insight into the murder and into the years of domestic violence that preceded it." (Shaputis, supra, 44 Cal.4th at p. 1258.)

The weight placed on this factor in Shaputis has stimulated far greater use of it by the BPH and Governor than was formerly the case. Considering that "lack of insight" is not among the factors indicative of unsuitability for parole specified in the sentencing regulations and has been rarely relied on by the BPH or Governor in the past, the increasing use of this factor is likely attributable to the belief of parole authorities that, as in Shaputis, "lack of insight" is more likely than any other factor to induce the courts to affirm the denial of parole. The recitation of "lack of insight," a more subjective factor than those specified in the regulations as indicative of unsuitability, should have no talismanic impact on our review, particularly because a statement that an inmate "lacks insight" appears to be stating a conclusion drawn from other evidence rather than being evidence itself. (Cf. In re Macias (Nov. 9, 2010, H033605) ___ Cal.App.4th ___ [2010 Cal.App. Lexis 1924, *33] [a finding of lack of insight must be rooted in a "factually identifiable deficiency in perception and understanding [involving] an aspect of the criminal conduct or its causes"].)

We conclude that, as with any other factor relied on to find an inmate unsuitable for release on parole, "lack of insight" is probative of unsuitability only to the extent that it is both demonstrably shown by evidence in the record, and is rationally indicative of the inmate's current dangerousness.

We conclude the Governor's finding that Cass did not have insight into the factors that led him to commit the murder, or did not accept responsibility for White's death, is not demonstrably shown by the record. The factual foundation for the Governor's conclusion that Cass did not have insight and minimized his responsibility was the Governor's finding that Cass's version of the events "changed over the years, and [Cass's] failure to recognize this indicates that he still lacks full insight into the circumstances of the murder and his responsibility for it."

However, the only change in Cass's version of the events supported by any evidence is the discrepancy between Cass's original version (given over 22 years ago) and his subsequent iteration of the events. When Cass described the events to a probation officer in 1988 in connection with the probation officer's presentencing report, Cass stated he saw the victim "reaching for the gun he had in his back pocket." He then told the probation officer that, in reaction, Cass charged the victim, knocked him to the ground, and began shooting out of a perceived need to defend himself and because he was scared.*fn4 Since 1988, Cass has consistently reiterated (in various milieus) that he charged the victim, knocked him to the ground, saw a gun fall from his pocket onto the ground, and then shot him multiple times. We have found no evidence (and the People have not identified any evidence in the record) that Cass ever maintained after 1988 that he was not the instigator or that the victim provoked the shooting by reaching for a gun.*fn5 Instead, for over 20 years, it appears Cass has consistently described the same version of events.

The Governor's reasoning, at bottom, is that Cass's descriptions over the last two decades (in which he consistently admitted he was the aggressor and did not shoot to preempt an imminent danger) differs in one respect from the version he gave 22 years ago, and that this discrepancy showed Cass remains a danger because he does not currently accept responsibility or currently lacks insight into what led to the crime. After Shaputis, the courts have upheld orders refusing parole where there is some evidence the inmate remains a danger because he or she currently deflects responsibility or lacks insight into what led to the commitment offense. (See, e.g., In re Rozzo (2009) 172 Cal.App.4th 40, 62-63 [where evidence showed inmate acted out of racial animus to commit brutal murder, inmate's failure to address racial animus in rehabilitative efforts or to acknowledge role played by animus supported finding that lack of insight into causative factors made inmate currently dangerous, applying Shaputis]; In re Smith (2009) 171 Cal.App.4th 1631, 1639 [applying Shaputis, the gravity of offense had "continuing predictive value as to current dangerousness in view of her lack of insight into her behavior and refusal to accept responsibility for her personal participation in the [murder]"].) The People argue the principles discussed in Shaputis, and applied in cases such as In re Smith and In re Rozzo, support the Governor's decision in this case.

However, in all of these cases, the record contained some evidence that the inmate's attitudes toward or understanding of the offense as of the time of the parole hearing would permit the conclusion that the same personality traits leading to the original crime remained operative as of the time of the parole hearing. (See, e.g., In re Rozzo, supra, 172 Cal.App.4th at pp. 62-63 [inmate's crime was shown to have been racially motivated but no evidence that inmate made efforts to reform racial attitudes during prison rehabilitative efforts or to explain his current views on race]; In re Smith, supra, 171 Cal.App.4th at pp. 1638-1639 [where child died from physical abuse and evidence permitted conclusion both inmate and boyfriend combined to inflict physical abuse leading to death, inmate's effort at parole hearing to deflect responsibility onto boyfriend and to only express remorse for failing to stop boyfriend supported finding of current dangerousness].) In contrast, the record below unambiguously shows Cass currently understands (and has understood for many years) that he killed the victim without justification or necessity, and that he understood the crime resulted from his own poor choices rather than the victim's actions, and the fact he minimized his culpability in a statement made 22 years ago does not reflect on his current dangerousness. We reject the People's suggestion that the principles discussed in Shaputis support the Governor's decision in this case.

Because the record is replete with evidence of Cass's current acceptance of responsibility, and of his current understanding of the converging influences that led to the murder, the Governor's contrary conclusion, rooted in a relic from 1988, does not provide the modicum of evidence necessary to support a finding of current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1213 [the determination of current dangerousness "must be supported by some evidence, not merely by a hunch or intuition"].) Indeed, as numerous courts have recognized, when an inmate has expressed remorse for his or her crime and accepted responsibility for the crime, as here, the fact the inmate continues to adhere to a version of events that provides some explanation of why he or she killed the victim cannot be the sole ground for concluding the inmate is unsuitable for parole. (See In re Palermo (2009) 171 Cal.App.4th 1096, 1112 [where defendant's version of the shooting of the victim "was not physically impossible and did not strain credulity such that his denial of an intentional killing was delusional, dishonest, or irrational" and he accepts full responsibility and expressed complete remorse, and psychologists conclude he did not represent a risk of danger if released on parole, "his continuing insistence that the killing was the unintentional result of his foolish conduct (a claim which is not necessarily inconsistent with the evidence) does not support the Board's finding that he remains a danger to public safety"]; In re Moses (2010) 182 Cal.App.4th 1279, 1307-1310; accord, In re Juarez, supra, 182 Cal.App.4th at pp. 1341-1342 [while BPH can rely on finding that inmate lacks credibility to deny parole as where inmate asserts he did not engage in criminal or other relevant misconduct despite evidence to the contrary, inmate's failure to recall the details of his commitment offense has no bearing on his current dangerousness where he accepts full responsibility for the crime and his explanations for what induced his actions not disputed].)

Because there has been a lengthy passage of time since the commitment offense, and there are no other facts in the record that provide a rational nexus for concluding the offense continues to be predictive of current dangerousness (Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221), we conclude the Governor's determination that Cass remains a current danger is without evidentiary support, and we therefore reverse the Governor's reversal of the BPH's 2008 determination that Cass is suitable for parole.

D. The Disposition

We have concluded there was no evidence from which the Governor could have found Cass's history as a prisoner or his current demeanor and mental state could provide a rational nexus for concluding, based on his offense in light of his postincarceration conduct, that Cass would pose an unreasonable risk of danger if released on parole. The People assert that, if we conclude there was no evidence to support the Governor's determination, the appropriate disposition would be to vacate the decision and to remand the matter to the Governor with instructions to proceed in accordance with due process. Cass argues the proper remedy is to order him immediately released on parole subject to the same conditions ordered by the BPH's 2008 determination.

Our Supreme Court's recent decision in In re Prather, supra, 50 Cal.4th 238 stated that, when a court reverses a determination of unsuitability by the BPH, we are limited to ordering the BPH to conduct a new parole suitability hearing in accordance with due process of law and consistent with the decision of this court. (Id. at pp. 258-259.) However, Prather provides no guidance in the present context. Indeed, Prather expressly stated that its prior decision in Lawrence (as well as in Shaputis) "did not determine the proper remedy when a reviewing court grants a petition for writ of habeas corpus on the basis that the Board's decision to deny parole was not supported by some evidence of current dangerousness" because those decisions "addressed the Governor's reversal of a grant of parole by the Board."

Several Courts of Appeal, including this Court, have held the proper remedy when a court reviews and vacates a gubernatorial parole decision is to reinstate the BPH's grant of parole and require the inmate to be paroled in accordance with the reinstated BPH decision. (See In re Masoner (2009) 179 Cal.App.4th 1531, 1538; In re Loresch (2010) 183 Cal.App.4th 150, 162-163; In re Dannenberg (2009) 173 Cal.App.4th 237, 256-257; In re Moses, supra, 182 Cal.App.4th at pp. 1313-1314; In re Aguilar (2008) 168 Cal.App.4th 1479, 1491-1492; In re Vasquez (2009) 170 Cal.App.4th 370, 386-387.) Those decisions were unaffected by Prather, and we adhere to the approach of those cases where, as here, the Governor has fully exhausted his constitutional power to review the BPH decision but his determination is without any evidentiary support. The remand order suggested by the People, in addition to being inconsistent with the effective disposition ordered in Lawrence, would allow the Governor an unlimited number of reviews of the BPH's parole decision and render the writ of habeas corpus meaningless. (In re Masoner, supra, 179 Cal.App.4th at pp. 1539-1540.) We therefore conclude the proper remedy in this case is to reinstate the BPH's 2008 decision and require Cass be granted parole on terms and conditions consistent with the BPH's 2008 decision.

Disposition

The relief requested in the petition for a writ of habeas corpus is granted, and the Governor is ordered to vacate his decision of February 6, 2009, which reversed the BPH's 2008 decision granting Cass parole. The BPH's 2008 decision granting parole is reinstated and Cass is granted parole on the terms and conditions of that decision. Pursuant to California Rules of Court, rule 8.387(b)(3)(A), this opinion shall be final as to this court within seven days after it is filed.

McDONALD, J.

WE CONCUR:

McINTYRE, J.


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