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In Re Marshall Lee Field


December 16, 2010


(Santa Clara County Super. Ct. No. 73964)

The opinion of the court was delivered by: Duffy, J.

In re Field CA6


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In 1980, Marshall L. Field, Jr. pleaded guilty to the 1979 second-degree murder of Sarah Prewitt, with whom he had been romantically involved. He was sentenced to a term of 15 years to life in prison with the possibility of parole, plus two consecutive years for the personal use of a firearm and one year for a prior prison term for a total of 18 years to life in prison. Field first became eligible for parole in 1991 and since then has had 11 parole suitability hearings, the last in August 2008, just preceding the California Supreme Court's decisions in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), both of which clarified the law in the area of judicial review of parole decisions. At that 2008 hearing, the Board of Parole Hearings (Board) again denied parole, citing in support of its conclusion the gravity of the commitment offense, Field's criminal record and escalating pattern of criminal and violent conduct, his previous failures at probation, an "unstable social history," Field's disciplinary violations while in prison, and his most recent psychological evaluation, which though assessing his risk of dangerousness to the public if released at low to moderate, also cited a 2005 disciplinary violation as an issue of lingering concern about Field's potential threat level and as the factor that increased his risk assessment from low to low to moderate.

Field filed a petition for writ of habeas corpus in the superior court, which was granted in 2009.*fn1 The court concluded that Field had been denied due process because the Board had failed to "articulate a rational nexus between its factual findings and a conclusion" of current dangerousness in accordance with Lawrence. The court remanded the matter to the Board, directing that body to hold a new hearing within 95 days and if the Board were to again deny parole based on the gravity of the commitment offense, to "isolate the parts of [that offense] that qualif[y] for invocation of an unsuitability factor or factors and state the nexus between the factor or factors and the ultimate decision of current dangerousness."

Warden Ben Curry appeals from the order, contending that the Board's parole denial is legally sufficient because it is supported by some evidence in the record that Field is a current risk of danger.*fn2 Like the trial court, we conclude that the Board's decision fails to comply with Lawrence in that it does not specifically articulate a rational nexus between the commitment offense or other static factors cited by the Board and its ultimate conclusion that Field remains a risk of danger to society were he now to be released. On this record, Field's most recent 2005 disciplinary violation might supply the basis of that nexus in that it may reflect that the commitment offense or other historic, static factors remain probative of Field's dangerousness--the ultimate issue in the decision whether to find an inmate suitable for parole. But under the current state of the law, such a conclusion must be articulated by the Board or the Governor in denying parole based on the commitment offense. We accordingly affirm the trial court's order vacating the Board's decision. But we also conclude that the order may exceed the bounds of judicial review in its specific directives. We will thus modify the order on remand, directing the Board to conduct a new hearing in accordance with due process, consistently with the dictates of Lawrence and Shaputis.


I. The Life Crime*fn3

On November 15, 1979, Sarah Prewitt, who was then 20 years old and had been involved with Field in a volatile relationship, drove to her workplace to pick up her paycheck. She was accompanied by a female friend. Field, then 26 years old and on probation, drove up in the parking lot where Prewitt was outside her car. She went inside her workplace for about five minutes during which Field spoke with Prewitt's friend. He threatened the friend and told her that he didn't appreciate her meddling in his affairs and that he was " 'going to win this,' " referring to Prewitt's recent attempt to end their relationship. Prewitt came out of her workplace and spoke with Field. At first, he threatened to kill himself. Prewitt then got into her car to leave but Field asked her to take her keys out of the ignition, which she did. Field then got a shotgun he had under the seat in his car and pointed it at Prewitt, motioning for her to get out of her car. Prewitt ran into the middle of the parking lot, trying to wave down a passing car, but the car kept going. Prewitt then approached Field and said, " 'If you're going to shoot me, go ahead.' " Field shot her in the chest. He shot her again as she fell to the ground. Field approached Prewitt's friend, who had stayed in Prewitt's car, and said, " 'I did it because I love her.' " He got into his car and left the scene, where Prewitt died.

Later that day, Field spoke with police and said that he would turn himself in as soon as his mother and clergyman arrived to accompany him. But officers later received information from Field's family about where he was located. They made contact with him and he surrendered. Field told officers that the gun was still in his truck, of which he consented to a search. He also expressed some hope that Prewitt did not suffer. Prewitt's father later said that Field had previously threatened their family, including his young grandchildren. And both her friend who was present when she died and an aunt told police that Prewitt had previously suffered physical violence at Field's hands.

Field pleaded guilty to second degree murder in violation of section 187 and he admitted to having personally used a firearm within the meaning of section 12022.5 and having served a prior prison term within the meaning of section 667.5, subdivision (b). He was sentenced to 15 years to life in prison plus two years, consecutive, for the use of a firearm and one year for the prior prison term for a total sentence of 18 years to life in prison.

II. Social History

Field was born on October 3, 1953 in San Francisco to an intact family that ran an engraving business. He was diagnosed early on with attention deficit disorder and was placed in special education classes as a child. He also was treated for this condition while in grade school and in high school attended group sessions for children with behavioral and emotional problems. He was put on Ritalin in high school and placed in "educationally handicapped" classes. As a result of this, he felt socially ostracized and personally inadequate and he quit school after the 11th grade. He later obtained his high school diploma in 1976 while in prison for an offense preceding the life crime. His employment history before incarceration includes stints as a printer and as a photo engraver.

Field's brothers are "successful professionals" and his sister is married. His siblings have not been involved in criminality and everyone else in his family is educated and owns their own homes. Field remains in close telephone contact with his family but his parents are now elderly. He "rebuilt those [family] relationships" and all of his family members have indicated that they would help him to reintegrate into the community. He married while incarcerated and has an adult daughter, with whom he maintains periodic telephone contact. He remains married and friendly with his wife but they do not see each other often, perhaps twice per year, and they speak on the phone three or four times per year. He was diagnosed with lung cancer while in prison and had a lung removed. He has also been diagnosed with hepatitis C and he suffers from arthritis. Field admits that he experienced serious drug (PCP, opiates, ethanol, barbiturates) and alcohol dependency for a significant period of time in his younger life and believes that this dependency was a causative factor in his commission of the life crime.

III. Criminal History

Before committing the life crime, Field was arrested for or convicted of driving under the influence (1972); driving under the influence, possession of dangerous drugs (1972); disorderly conduct (1972); driving under the influence (1973); driving under the influence (1973); reckless driving (1974); "under the influence"; assault with intent to kill, kidnapping, burglary (1975); and driving under the influence (1979).*fn4 The 1975 offense involved Field taking a pistol to the high school that his former girlfriend was attending. He went into her class and told her to go outside or he "would blow her brains out." Her teacher tried to intervene and Field pointed the gun at him and threatened him, forcing his ex-girlfriend outside. The school principal attempted to talk to Field but he threatened him with the gun as well and also threatened to harm his ex-girlfriend if he was interfered with. Field attempted to take a young man's car by threatening him with the gun but authorities intervened. One officer fired a round and Field then placed his gun against his ex-girlfriend's chest and pulled the trigger. But the gun misfired and police captured Field. He served time in prison for the offense.

IV. Post-Conviction Disciplinary History

Field received nine CDC 115 disciplinary violations while in prison for the life crime.*fn5 None of the violations involved violence or drugs or alcohol. Four of them were in 2003, and one was in 2005. They are (1) 1984--attempt to bring contraband (construction paper); (2) 1993--verbal statement to manipulate staff; (3) 2001--refusal to return to dorm; (4) 2003--delaying an officer; (5) 2003--refusing direct order; (6) 2003--delaying peace officer; (7) 2003--delaying peace officer; (8) 2003--delaying peace officer; (9) 2005--smuggling contraband.

The four 2003 violations resulted in discussion at Field's 2004 parole hearing, where he was given a four-year denial, and an advisement that he should remain free of disciplinary violations pending his next hearing.*fn6 But as noted by the Board in 2008, despite that advisement, Field received another violation in 2005. This resulted from Field having smuggled two razor blades, which he was allowed to have and to purchase for $1.00, from his workshop area by hiding them in his belt buckle. About this violation, Field explained to a psychologist in 2008 that he was intending to use the razor blades for " 'everyday things' " and he admitted having made a mistake and using bad judgment. He characterized this violation as " 'minor' " and in trying to explain his action said, " 'We are who we are, we do what we do and we live in a world that is wild. Everybody stumbles in this environment. Life isn't perfect and I'm not perfect." Field described all of his 115's "as stemming from 'conflicts' with the system when he attempted to get his needs met in ways that did not reflect standard protocol." And in discussing his disciplinary violations at the 2008 Board hearing, Field pointed out that none of them involved weapons, violence, or substance abuse and that the 2005 violation probably wouldn't be his last as he occasionally stumbles though he does not get out of control by committing violations that are more serious in nature.

In addition to the disciplinary violations, Field also received seven custodial counseling chronos. They were (1) 1983--contraband; (2) 1984--refusal to stand for count; (3) 1987--out of bounds; (4) 1990--trying to manipulate staff; (5) 1993--failing to complete assigned work; (6) 1993--disobeying written orders; (7) 2000--smoking violation.

V. Prison Programming

In 2008, Field was working as a housing unit porter, receiving satisfactory to above average reports. He had vocationally participated in graphic arts, upholstery, small engine repair and sheet metal trade school while in prison. In 2008, he was participating in religious studies and engaged in reading and completing college level small business coursework, maintaining a B average. He was regularly participating in self-help activities, including ongoing Alcoholic Anonymous for many years, and in 2006 he had completed courses in conflicts resolution, anger management, and stress management, receiving laudatory chronos for these latter two. He also completed a 2004 Bible course, and in 2007 a course called Celebrating Recovery, and a spiritual growth course.

VI. Psychological Evaluations

The most recent 2008 psychological evaluation summarized earlier evaluations. Regarding a 1985 evaluation, it noted that Field had expressed remorse for the life crime and suggested that he was " 'demonstrating maturity and increased psychological stability consistent with an eventual finding of parole suitability.' [His] institutional adjustment was 'better than average, with the exception of several CDC115 disciplinary infractions, primarily for misconduct.' " 1990 evaluations noted that Field had then been free of disciplinary violations and was " 'less inclined to defensively argue and resent authority than was previously the case.' " He had accepted " 'total responsibility' " for the life crime and had acknowledged that his past drug use had been " 'out of control.' " A 1991 evaluation noted that Field " 'still does blame others more than he needs to or should about the dynamics of his past' " while also noting his own observation that he had had " 'a problem with authority in the past and especially with [his] parents telling him what to do.' " The 1991 evaluators observed the " 'significance of alcohol and drugs in [Field's] past aberrant behaviors' " and expressed concern about the possibility of any future substance abuse whatsoever.

1992 evaluations assessed Field's potential for violence in the community as average. A 1993 evaluation noted that Field's adjustment to prison " 'ha[d] undergone a setback in the form of acting out behaviors, followed by a CDC 115 and an assignment to Administrative Segregation' " and it recommended psychotherapy, particularly focusing on Field's relationships with " 'maternal/parental authority figures.' "

1995 evaluations reflected Field's participation in the Category T program.*fn7 One noted that he had " 'demonstrated a drastic change in his attitude' " from anger to accepting responsibility and that his progress could be judged in the long run through " 'his decision making.' " It was also noted that Field's " 'issue of violence is somewhat enigmatic' " as except for the life crime and the previous weapon-related crime, his life had been free of violent behavior. His risk of violence was assessed to be lower than average. He was observed to have gone from being self centered to more " 'other centered' " and to have made a " 'sincere and successful quest for identifying and understanding the underlying causes of his behavior.' " This included his realization that substance abuse was not the cause of his problems but that he had problems with his personality and that substance abuse was his way of coping with feelings of personal inadequacy. He understood that a return to substance abuse would compromise those things that had become important to him such as self-acceptance, his family, and his freedom. His participation in group sessions was excellent and he was noted to have the "potential to evolve as a group leader." He was considered to be "a thoughtful, competent person whose only limitation is his attitude." He was noted to have demonstrated a high level of insight into his past criminal history, the influence of drugs and alcohol on his life, and his commitment to sobriety. In view of his overall progress and maximal benefit from therapy, this treatment was no longer indicated or necessary. And his previous Axis II diagnosis of Antisocial Personality Disorder was no longer thought to be warranted.

A 1996 evaluation noted Field's positive programming and assessed his violence potential as low. A 1997 evaluation observed that Field continued to show improvement in his behavior and that he should be able to " 'maintain the gains he has made' " as long as he avoids drugs. A 1998 evaluation suggested that Field " 'has the capacity to abide by institutional standards and has generally done so during his incarceration' " and because of his relative lack of rules violations, his violence potential was assessed at below average.

The 2008 evaluation observed Field's own assessment that at the time of the commitment offense, his life was " 'out of control' " due to sustained drug use and he was then overwhelmed by a "general sense of failure and hopelessness," both of which he had overcome. The catalysts for change were his incarceration and desire to stop using drugs and the birth of his daughter. After these experiences, Field "became oriented toward other people" instead of himself and wanted to help others and to be part of the community. Regarding past observations about Field's difficulties responding appropriately to authority, the evaluation noted that Field himself explained that he does not have a problem with supervision and that society has a right to feel safe. He considered himself " 'not a problem,' " observing that in prison, he lives in a predatory environment and still does not experience conflicts with others. The evaluation observed that given Field's history of conflict while having family support, if he were to be released, he should consider support in the community beyond his family as he "exhibits continued struggles to abide by the rules of the institution" and would "benefit from careful consideration of how he will manage frustration, unmet expectations, potential rejection from others, and probable conflict without returning to substance use or illegal activity as a means of escape from stress."

The 2008 psychological evaluation noted no documented primary mental disorder but further observed that Field met criteria for a diagnosis of Polysubstance Dependence, a diagnosis that could be dropped if he were to maintain full remission once released to the community where access to drugs and alcohol is readily available. It opined that Field's past behaviors did not begin early enough and did not evidence a pervasive disregard for the rights of others so as to warrant a diagnosis of Antisocial Personality Disorder on Axis II. But it noted that there was a "previous history of personality-related concerns, with several previous evaluators suggesting [Field] manifested the presence of underlying antisocial and/or narcissistic traits," which factored into his repeated rules violations in prison. While noting that Field had assessed his past rules violations as "stemming from 'conflicts' with the system when he attempted to get his needs met," the evaluator observed that Field "expressed difficulty describing other options he might have used," suggesting that "his interpersonal functioning and problems solving are impacted by a rather constricted and self-centered way of addressing situations" and that his "pattern of interpersonal functioning, problems solving, and emotional intensity is impacted by underlying traits associated with an antisocial and narcissistic style." The evaluator assessed Field's "pattern of interpersonal relationships" as being based on "his difficulty seeing situations from the point of view of others, as well as his apparent willingness to engage in what he considers 'minor' rules violations 'if [he] has to.' The overall impact of this Axis II impairment does cause occasional difficulty in his relationships and in his general adaptation to specific situations."

The 2008 psychological evaluation used two clinical assessment guides (PCL-R: 2d edition & HCR-20) to assess Field's risk of future violence in the community and a separate instrument (LS/CMI) to assess his risk for general recidivism. On the PCL-R instrument, which examines interpersonal and affective traits and general social deviance--generally static variables, Field's overall score placed him in the low range of psychopathy. On the HCR-20 instrument, which examines historical, clinical, and future risk management factors, he also placed in the low range for risk of future violence. But the evaluator noted that Field had committed two violent crimes and had been diagnosed with a nonspecific personality disorder manifested by antisocial and narcissistic traits, though he displayed a complete lack of symptoms associated with mental illness and had no history of early maladjustment. In the " 'clinical' or more current and dynamic domain of risk assessment," the evaluator noted that Field appeared "somewhat easily confused about why 'minor' rules violations would continue to elicit concern among others. He did not appear to understand why others do not view his motivations in the same light that he does. His most recent CDCR-115 suggests poor problem solving, poor impulse control, or some other underlying issue that was not identified during this interview."

In the realm of " 'management of future risk,' " the 2008 evaluator noted that Field had not lived independently for many years while acknowledging that he had adapted reasonably well to the prison environment. But "independent community living would almost certainly expose him to unforeseen situations which would significantly test his coping skills in the future. He continues to struggle to consistently follow institutional expectations and his stress coping skills in the community have not been 'tested.' " Even with verified residential plans and his obvious ability to maintain adequate employment, he has a "well-documented past history of non-compliance with a community-based probation attempt, and he continues to struggle with respect to the need for him to follow 'minor' rules while incarcerated. These factors raise troubling concerns about his willingness to remain actively engaged in proactive self-management efforts outside an environment where strict controls and consequences are in place."

As for the LS/CMI designed to evaluate general risk of recidivism and not violence per se, Field scored in the moderate category. This score reflected past history and was "elevated by [Field's] continued struggles with compliance and apparent problem solving deficits with respect to getting his needs met without violating institutional policies. Mr. Field reported that most of the CDCR 115's on his record were related to his attempts to meet some need that he believed could not be met any other way. Because of this ongoing concern, the moderate rating based primarily upon past history does remain appropriate."

The 2008 psychological evaluation noted that his overall "risk of future violent or general re-offense is increased by his past violent history, previous failure to benefit from a probation attempt, past drug/alcohol involvement and poor interpersonal history. [He] has been issued one additional Rules Violation Report since the last hearing. This suggests he continues to struggle in his ability or willingness to abide by prison expectations when it comes to issue[s] he believes are trivial in nature." At the same time, Field's overall risk was "decreased by the fact that he does have a supportive family and apparent work opportunities that he could choose to utilize in the future. He has consistently utilized available programming and does have a consistent history of sobriety while incarcerated. This individual has no exhibited behaviors or symptoms associated with severe mental illness. He is generally described as having adequate intelligence and there is no intellectual impairment in his ability to make pro-social choices if he chooses to do so." These factors, combined with the three instrument scores, led the evaluator to assess Field's overall risk assessment in the low to moderate range. The evaluator finally noted Field's exhibited dedication to sobriety and suggested that he would be able to refrain from use of drugs or alcohol if released. And he assessed Field as having a high degree of insight into his past drug use and the motivating factors leading to his commission of the life crime.

VII. Parole Plans

Field planned to live with family members if released, all of whom expressed support in a letter. He did not rule out the possibility of returning to his wife. He did not have concrete employment plans but had well-developed skills and expressed that he would rely on family advice concerning work, which might include working in the family engraving business. And he would continue with his education and substance abuse rehabilitation counseling.

VIII. The 2008 Board Hearing and Decision

The Board panel discussed the above topics with Field at the hearing in August 2008, though Field declined to discuss the commitment offense, as was his right. A Deputy District Attorney then asked some questions of Field and offered argument against his release, contending that he remained a danger to society. A statement was read on Field's behalf, in which he contended that he was then suitable for parole and that prior Board panels had ignored psychological reports assessing his risk of danger as low and had deprived him of individualized consideration by using "stock phrase[s]" about his asserted lack of insight and need for more therapy. He admitted that his crime was "despicable" but expressed his remorse and said that he was no longer a threat to anybody.

After deliberating, the Board panel announced its decision that Field was not yet suitable for parole and would pose an unreasonable risk to society if he were then released. In support of its decision, the panel relied on the gravity of the commitment offense, concluding that it was carried out in an especially cruel and callous manner, one that was dispassionate and calculated like an "execution style murder." The panel found that the motive for the crime was also trivial in relation to the offense. The panel also relied in support of its decision on Field's criminal history in that he previously had attempted to inflict serious harm on a victim and had shown an escalating pattern of criminal conduct and violence. He had also failed at previous grants of probation and failed "to profit from society's previous attempts to correct his criminality, such attempts included adult probation, parole, county jail and a prior prison term. He has an unstable social history and prior criminality, which includes several counts on a seven-page rapsheet that was within the file, several of those counts dealing with drugs and alcohol. [Field] has failed to demonstrate evidence of positive change and he has [engaged in] misconduct while incarcerated in prison. He has nine serious 115 disciplinary reports, the last one being on 2/8/05, which is after the last Board hearing, and he has seven 128(a) counseling chronos, the last one being on January 16th, 2000."

Although the panel acknowledged positive aspects of the 2008 psychological evaluation, it also relied in support of its decision to deny parole on the evaluation's observations and concerns about Field's 2005 disciplinary violation and his apparent failure to understand why his so-called "minor" rules violations would elicit concern among others, noting that the evaluator had placed the violation and the concerns it elicited in the current and dynamic--as opposed to static--area of risk assessment. The panel also cited the evaluator's conclusion that Field's 2005 violation reflected a continuing deficit in Field's problem-solving ability and poor impulse control or some other unidentified, underlying issue that raised his threat level and suggested that he was continuing to struggle in his ability or willingness to abide by prison expectations when it comes to issues that he believes are trivial in nature. The panel also observed the evaluator's "historical correlation" in that previous evaluators had noted "underlying antisocial/narcissistic personality traits" that were also highlighted in this evaluation as well, confirming their "present existence." Finally concerning the 2008 psychological evaluation, the panel relied on the evaluator's opinion in scoring his threat level at low to moderate that Field "tended to minimize any potential thinking errors that may have been behind ongoing 'minor' rules violations. Because of this tendency, there's no way to reliably evaluate whether or not these same personality traits were factors in why he avoided seeking help while he was living in the community or why he eventually became willing to use threats/violence in his interactions when faced with rejection and sexual rejection by way of females at the time of the life crime."

The Board panel also concluded that although it was not addressed at great length, Field's remorse was lacking in the hearing in that he never referred to his victim by her name, Sarah Prewitt, calling her instead "the victim." The panel also found Field's gains recent and told him that he must "demonstrate an ability to maintain the gains over an extended period of time."

On the positive side, the Board panel found Field's parole plans viable. And they commended him for his educational pursuits and positive work reports, and his record of self-help. But in the panel's view, these positive aspects did not outweigh factors tending towards unsuitability.

In a separate decision but for most of the same reasons, the Board panel concluded that it was not reasonable to expect that Field would be granted parole for a period of three years.

IX. The Instant Habeas proceeding and the Court's Grant of Relief

Field challenged the Board's parole denial by filing a petition for writ of habeas corpus in the trial court in January 2009. As grounds for relief, he contended that his parole denial constituted a violation of his due process rights because there was insufficient evidence to support it in that the Board had failed to draw a nexus between past events and a current unreasonable risk of danger to public safety and he had the benefit of psychological reports establishing a low risk of danger, 30 years of sobriety, and no violent or predatory behavior since his 1980 incarceration.

The court issued an order to show cause that questioned whether the Board's denial complied with Lawrence, which was decided two weeks after the Board hearing, in that Lawrence 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.' " The court expressed that there was no need to determine whether or not the Board would have denied parole under the new Lawrence standard "because the nature of discretionary decisions such as these is that there is usually evidence supporting either conclusion. Under these circumstances the central aspect of an inmate's due process rights is review to insure that the decisionmaker employs the correct legal standard in evaluating the evidence. . . . And an exercise of discretion is fundamentally, and irremediably, flawed if the wrong analytical framework is used." The court directed the Warden to show cause why the Board's use of the wrong legal standard did not require a remand. The court considered the question whether the Board's decision was supported by " 'some evidence' " to be irrelevant because the Board had not cited such evidence "within the context of the necessary nexus analysis." (Bold and underscore omitted.)

The Warden filed a return that contended that Lawrence did not require the Board to articulate a nexus before a court determines whether some evidence supports the Board's decision, and, further, that in this case, the decision was supported by some evidence. The Warden finally contended that if the Board's decision were found to be unsupported, that the proper remedy was remand to the Board to proceed in accordance with due process. Field, by then having been appointed counsel, filed a traverse.

Without having held a hearing, the court issued an order granting habeas relief on April 24, 2009. The order referred back to the points made in its order to show cause and granted relief for the same reasons, remanding the matter and directing the Board to hold "a new parole suitability hearing within 95 days. If the Board chooses to again deny parole the Board must 'articulate a rational nexus between its factual findings and a conclusion.' [Citation.] If the Board again invoke[s] the crime itself the Board is ordered to 'isolate the parts of [Field's] commitment offense that qualif[y] for invocation of an unsuitability factor or factors and state the nexus between the factor or factors and the ultimate decision of current dangerousness.' [Citation.]"

The Warden timely appealed.


I. Contentions on Appeal and Standard of Review

The Warden raises two specific contentions on appeal. They are that some evidence supports the Board's decision to deny parole and that in any event the Board is not required to isolate the parts of the commitment offense or articulate a nexus between those aspects and the inmate's current risk of dangerousness.

In conducting our appellate review where, as here, a trial court has granted habeas relief without an evidentiary hearing, the question presented is one of law, which we review de novo. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz) [reviewing court independently reviews grant of habeas petition challenging parole denial based on documentary evidence]; In re Zepeda (2006) 141 Cal.App.4th 1493, 1497.) We proceed accordingly after setting forth the substantive legal principles that govern parole decisions and review thereof.

II. General Legal Principles

Section 3041 subdivision (b) requires a parole release date to be set "unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." (Italics added.) "[A]s set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after considering the circumstances enumerated in section 2402, of the regulations, that the prisoner is unsuitable for parole."*fn8 (Rosenkrantz, supra, 29 Cal.4th at p. 654.)

In the suitability decision, the Board's discretion includes the power to "identify and weigh the factors relevant to predicting 'by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.' [Citation.] However, 'the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board.' [Citation.]" (In re DeLuna (2005) 126 Cal.App.4th 585, 591.) In exercising its discretion, the Board is constrained by the procedures specified by statute. The precise manner in which the specified factors relevant to parole suitability are considered and balanced is within the Board's discretion, but its decision must reflect an individualized consideration of all the specified criteria and it cannot be arbitrary or capricious. (In re Scott (2005) 133 Cal.App.4th 573, 590-591 (Scott II), citing Rosenkrantz, supra, 29 Cal.4th at p. 677.)

Before the California Supreme Court decided Lawrence and Shaputis in 2008, that court had articulated the "some evidence" standard of judicial review that authorized a court to grant habeas relief from a parole decision denying parole where the factual basis of such decision was not supported by some evidence in the record. (Rosenkrantz, supra, 29 Cal.4th at pp. 658, 667, 670.) In Lawrence, the court clarified that "the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." (Lawrence, supra, 44 Cal.4th at p. 1221; In re Prather (2010) 50 Cal.4th 238, 251-252 (Prather).)

The Supreme Court further explained in Lawrence that a parole decision "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. [Citations.]" (Lawrence, supra, 44 Cal.4th at p. 1221.) "[U]nder the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. 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." (Id. at p. 1212.) "[A]s specified by statute, current dangerousness is the fundamental and overriding question for the Board." (Id. at p. 1213.)

As to judicial review of a parole decision, "because the core statutory determination entrusted to the Board . . . is whether the inmate poses a current threat to public safety, the standard of review properly is characterized as whether 'some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." (Lawrence, supra, 44 Cal.4th at p. 1191; Prather, supra, 50 Cal. 4th at pp. 251-252.) There must be something "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." (Lawrence, supra, 44 Cal.4th at p. 1210.)

In exercising parole authority, the governing statute requires the Board to consider and rely upon "evidence in the record corresponding to both suitability and unsuitability factors--including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate's attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record . . . ." (Lawrence, supra, 44 Cal.4th at p. 1213.) "By reviewing this evidence, a court may determine whether the facts relied upon by the Board . . . support the ultimate decision that the inmate remains a threat to public safety." (Ibid.)

But Lawrence reaffirmed that judicial review of parole decisions is deferential, stating that its "clarification that the 'some evidence' standard of review focuses upon evidence supporting the core statutory determination of public safety [did] not alter [its] recognition in Rosenkrantz and Dannenberg [(2005) 34 Cal.4th 1061] that the [parole] decisions" by the Board "are entitled to deference." (Lawrence, supra, 44 Cal.4th at p. 1191, fn. 2; Dannenberg, supra, 34 Cal.4th at p. 1095, fn. 16; Rosenkrantz, supra, 29 Cal.4th at p. 665.) "Resolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board." (Rosenkrantz, supra, 29 Cal.4th at p. 656.) The deferential "some evidence" standard of review still requires only a "modicum of evidence" of unsuitability for parole. (Lawrence, supra, 44 Cal.4th at p. 1226; Rosenkrantz, supra, 29 Cal.4th at p. 677.) But the deferential review afforded does not mean that courts simply rubber stamp the determination as long as there is some evidence to support any of the unsuitability factors; the "standard is unquestionably deferential, but certainly is not toothless." (Lawrence, supra, 44 Cal.4th at p. 1210.)

Under the "some evidence" standard then, "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." (Lawrence, supra, 44 Cal.4th at p. 1221.) This inquiry asks "whether some evidence supports the decision of the Board . . . that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings. [Citations.]" (Id. at p. 1212; Prather, supra, 50 Cal.4th at pp. 251-252.)

"[T]he 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.]" (Lawrence, supra, 44 Cal.4th at p. 1221.) "[T]he aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Id. at p. 1214.) On the other hand, "the unexceptional nature of the commitment offense will not inevitably reflect a lack of current dangerousness without due consideration of the inmate's post-conviction actions and progress toward rehabilitation." (Id. at p. 1218.)

As noted, a decision concerning an inmate's suitability for parole must be based on a consideration of all relevant factors. (Lawrence, supra, 44 Cal.4th at pp. 1191, 1219; Regs., § 2402, subd. (b) ["All relevant, reliable information available to the panel shall be considered in determining suitability for parole"].) The factors specified by the regulations for determining parole suitability set forth in the regulations are guidelines and are not exclusive. (Regs., § 2402, subds. (c) & (d).) "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).)

"[I]n determining whether further incarceration is necessary to protect the public, the Board . . . must consider, among other factors, whether the inmate exhibits signs of remorse, has made realistic plans for release or has developed marketable skills that can be put to use upon release, and whether the inmate's institutional activities reflect an enhanced ability to function within the law upon release. [Citation.] Moreover, the Board must consider the inmate's past and present mental state and past and present attitude toward his or her crime. [Citation.] These suitability factors clearly establish that the statutes contemplate the consideration of an inmate's rehabilitation as an integral element of a parole suitability determination, and that a determination of the current threat posed by an inmate necessarily involves consideration of the inmate's post-conviction conduct and mental state as it relates to his or her current ability to function within the law if released from prison." (Lawrence, supra, 44 Cal.4th at p. 1220, fn. 19; Regs., § 2402, subds. (b) & (d)(3).)

Psychological evaluations of an inmate's risk of future violence also provide information that "bears on the prisoner's suitability for release" (Regs., § 2402, subd. (b); § 2281, subd. (b)), but such assessments do not necessarily dictate the Board's parole decision. It is the Board's job to assess current dangerousness and parole must be denied to a life prisoner "if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." (Regs., § 2402, subd. (a).) But the Board retains authority "to identify and weigh only the factors relevant to predicting 'whether the inmate will be able to live in society without committing additional antisocial acts.' (Rosenkrantz, supra, 29 Cal.4th at p. 655.)" (Lawrence, supra, 44 Cal.4th at pp. 1205-1206.)

As applied by courts conducting judicial review of parole decisions, "the 'some evidence' test may be understood as meaning that suitability determinations must have some rational basis in fact." (Scott II, supra, 133 Cal.App.4th at p. 590, fn. 6.) As confirmed by Lawrence, while courts do not reweigh the evidence or engage in judicial balancing of the specified factors, the exceedingly deferential "nature of the 'some evidence' standard of judicial review set forth in [Rosenkrantz] does not convert a court reviewing the denial of parole into a potted plant." (In re Scott (2004) 119 Cal.App.4th 871, 898 (Scott I); Lawrence, supra, 44 Cal.4th at pp. 1211-1212.) "[T]he evidence must substantiate the ultimate conclusion that the prisoner's release currently poses an unreasonable risk of danger to the public. ([Rosenkrantz, supra, 29 Cal.4th at p. 677]; In re Lee [(2006)] 143 Cal.App.4th [1400,] 1408.) It violates a prisoner's right to due process when the Board ... attaches significance to evidence that forewarns no danger to the public . . . . [Citations.]" (In re Tripp (2007) 150 Cal.App.4th 306, 313.) "Accordingly, the judiciary is empowered to review a decision by the Board . . . to ensure that the decision reflects 'an individualized consideration of the specified criteria' and is not 'arbitrary and capricious.' [Citation.]" (Lawrence, supra, 44 Cal.4th at p. 1205.)

III. The Board's Decision Failed to Articulate A Factual Nexus Between the Cited Factors and Field's Current Dangerousness

As noted, in support of its decision denying parole, the Board specifically cited the seriousness of the crime, Field's disciplinary record of serious violations in prison that were as recent as 2005, his criminal history, history of unstable social relationships, his prior failures at correcting his criminality, what the Board perceived as a lack of remorse, and the 2008 psychological evaluation. Although not all of these cited factors are historical and static, it is undisputed that the Board did not, as required under Lawrence, expressly articulate a factual nexus between such factors and Field's current level of dangerousness. The Board might be said to have drawn the dots in its reasoning, but it did not expressly connect them.

In discussing the gravity of the commitment offense as a factor in its decision, the Board specifically referenced certain factors set out at section 2402, subdivision (c)(1)(A)-(E) of the regulations that establish that an offense was carried out in an "especially heinous, atrocious or cruel manner." (Regs., § 2402, subd. (c)(1).) The panel concluded that the execution of the crime was dispassionate and calculated like an "execution style murder," referring to section 2402, subdivision (c)(1)(B) of the regulations. It also found that the motive for the crime was trivial in relation to the offense, as referenced in subdivision (c)(1)(E) of the same section. Several other factors cited by the Board panel in support of its decision are also referenced in regulations section 2402, subdivision (c) as tending to indicate unsuitability for parole, such as a previous record of violence (subd. (c)(2)), and an unstable social history (subd. (c)(3)). These, along with Field's cited past failures to correct his criminality, are all static and historical factors in the sense that they are presently unchangeable.

As noted, the Board panel also relied on what may be described as current factors, including what it perceived as a lack of demonstrated remorse during the hearing, institutional behavior involving misconduct (Regs. § 2402, subd. (c)(6)), and the 2008 psychological evaluation that cited Field's 2005 disciplinary violation as the component that elevated his threat level from low to low to moderate.

All of these cited factors find evidentiary support in the record, except perhaps the lack of remorse.*fn9 But the panel did not expressly articulate how or why the static factors remain probative of Field's current dangerousness or identify how the current factors might render the static factors so. The Warden in essence contends that the Board need not do so as long as some evidence of current dangerousness exists in the record. But as we read Lawrence and Shaputis, if the Board is to rely on the commitment offense or other static factors in denying parole, it must be evident from its decision that it considered the actual facts or circumstances inherent in such factors in establishing a rational nexus between the factors and the inmate's current dangerousness. Without such consideration and linkage, the crime itself or other static factors cannot be said to be necessarily probative of an inmate's current threat level--the relevant issue in any parole decision.

We thus find on this record that the Board panel's citation of the commitment offense and other static factors as support for its decision does not meet the standard set in Lawrence and Shaputis. Most importantly, the decision in this respect lacks the articulated rational nexus between the particular circumstances of these factors, considered in light of other facts in the record, and the determination of Field's current dangerousness. As Lawrence and Shaputis made clear, more is required than the mere characterization of the crime as aggravated to provide the due process required in a parole determination. And because the Board panel's decision in this case preceded Lawrence and Shaputis, we cannot presume that it applied the proper legal standard in considering whether the immutable circumstances of the commitment offense or other static factors continue to have a predictive value in assessing Field's current dangerousness. (In re Criscione (2009) 173 Cal.App.4th 60, 74-75, 77.) This remains so even though the panel also relied on current factors, as we also cannot presume to speculate that the panel would view these factors as singularly compelling an unsuitability determination without consideration of the static factors through the proper analytical framework. It is up to the Board to resolve conflicts in and weigh the relevant evidence and it exceeds the province of judicial review for a court to later substitute its own judgment in this regard. (Lawrence, supra, 44 Cal.4th at pp. 1205-1206; Rosenkrantz, supra, 29 Cal.4th at p. 656.) Contrary to Field's contentions, his disciplinary violations while in prison and the 2008 psychological evaluation cited by the Board panel are probative of Field's current dangerousness and as such they could well provide a rational nexus linking the circumstances of the crime or other static factors to the Board's ultimate conclusion of Field's current dangerousness, should such a nexus be properly articulated.

As we have observed, Lawrence now 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." (Lawrence, supra, 44 Cal.4th at p. 1210.) That articulated reasoning and rational nexus are missing here, though on this record, one can speculate what that reasoning and nexus might be. But that is not our job and we cannot presume that the Board would reach the same conclusions that we might. Moreover, it is up to the Board in the first instance to properly support its decision to deny parole. In making this determination, the Board must assess whether Field's commitment offense and other cited static factors continue to have predictive value in light of other relevant factors. And, per Lawrence, it must articulate a rational nexus between the commitment offense and any other cited immutable factor and Field's current dangerousness. Because the Board's decision is legally flawed, we affirm the trial court's grant of habeas relief. But because the decision here preceded Lawrence and Shaputis, the Board did not have the benefit of these decisions in reaching its conclusions, and remand is therefore warranted, on appropriate terms.

IV. The Remand Order

The Warden argues that the superior court's order remanding to the Board impermissibly controls Board discretion and in doing so, exceeds the court's authority. This contention has some merit.*fn10

The court ordered the Board to conduct a new hearing within 95 days and if the Board chooses to again deny parole, the Board "must 'articulate a rational nexus between its factual findings and a conclusion.' [Citation.] If the Board again invoke[s] the crime itself the Board is ordered to 'isolate the parts of [Field's] commitment offense that qualified for invocation of an unsuitability factor or factors and state the nexus between the factor or factors and the ultimate decision of current dangerousness.' [Citation.]"

One might say that this directive does no more than what Lawrence and Shaputis require when the Board relies on the commitment offense in denying parole. But particularly with respect to its second sentence, the order emphasizes isolation of one unsuitability factor to the exclusion of others and may in effect improperly limit the Board's consideration of a combination and interrelationship of factors in reaching a conclusion of current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1212 ["[i]t 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"]; Prather, supra, 50 Cal.4th at p. 255; In re Lewis (2009) 172 Cal.App.4th 13, 28 [Board's findings about whether certain suitability or unsuitability factors exist are "secondary to the Board's analysis and explanation of how those factors combine to support its ultimate decision to either grant or deny parole"].) And taking heed from the California Supreme Court's recent decision in Prather, we think it best to avoid directives to the Board that may improperly limit its statutory authority to review and evaluate the full record. (Prather, supra, 50 Cal.4th at p. 258.) We will accordingly direct modification of the order on remand.


The matter is remanded to the superior court with directions to modify its order granting petitioner Field's petition for writ of habeas corpus. The superior court shall strike its order and replace it with the following:

"The Board of Parole Hearings is directed to vacate its 2008 parole decision and to hold a new hearing and issue a new decision within 95 days of this order. The Board shall proceed in accordance with due process in light of In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241, taking into account all relevant factors, including any pertinent new information developed since the last hearing in August 2008."


Bamattre-Manoukian, Acting P.J. Mihara, J.

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