The opinion of the court was delivered by: Raye, P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 1986 defendant Thanh Nguyen shot 14-year-old Bobby Carver three times, killing him. Defendant pled guilty to second degree murder and was sentenced to 15 years to life with a minimum eligible parole date of July 27, 1996. On June 2, 2008, the Board of Parole Hearings (Board) found defendant suitable for parole. However, the Governor reversed the Board's decision, concluding that if released, defendant would pose an unreasonable risk to public safety. Defendant filed a petition for writ of habeas corpus in the trial court, which the court denied. Defendant filed a petition for writ of habeas corpus in this court, and we issued an order to show cause. We conclude the Governor's decision is not supported by the record and grant defendant's petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Crime Defendant was born in Vietnam in 1968, the son of a South Vietnamese soldier. Following the war, defendant worked with his father on their fishing boat. In 1977 defendant emigrated to the United States with his family in the fishing boat, first landing in the Philippines. Defendant's family eventually settled in Stockton. Defendant did not graduate from high school, but studied electronic engineering at a Stockton vocational school. While still in high school, defendant committed a misdemeanor burglary, his only prior offense.
At the time of the murder, defendant was known for working with Asians new to the community. There were tensions between the Asian community and the African-American community. Some Asian youths told defendant that the victim, Bobby Carver, and his older brother, Eric McKenzie, had been harassing them. They asked defendant to intervene on their behalf.
In 2006 defendant told the Board, "certain group of black and Hispanic were picking on those young kid, the Asian kid at the neighborhood, and the first incident when they beat up a little kid and when the neighborhood community called the police, and the police did show up [and] patrol the neighborhood for about a week or so and everything was quite [sic] down, and then later on this little girl went to school and was attacked and was cut over the eyebrow with a knife." The police were contacted again and patrolled the area, but "when the police disappear, and here they come up again threatened people, so it happened one of juvenile in the car with me that night was it happened to be his sister and that day he come and ask me, you know, to go help him."
On October 31, 1986, defendant and three co-defendants removed the rear license plate from their car and went in search of Eric McKenzie. They instead found Carver, who was walking with three other people. Someone said, "that's him," and Carver approached the car. Defendant shot Carver three times with a .32-caliber handgun before the car drove away. Fourteen-year-old Carver died from his wounds, and police arrested defendant a few days later.*fn1
On eight occasions since 1995 Nguyen has appeared before the Board. Beginning in 2000 the Board advised defendant he was close to receiving a parole date. He was told by a deputy commissioner: "I think you're a young man that's got a good future ahead of you. You know, you made a terrible terrible mistake and you're still going to have to pay for it, you know, for however long and I really think that you can make it out there too and with a little more work I think you can pull it together."
In 2006, after receiving his fifth one-year denial, defendant was told to study the Alcoholics Anonymous (AA) book, which would help him "when you get a date too because you are getting close." The presiding commissioner also told defendant, "we still felt with everything that you've done that you're moving in the right direction, this is why we are giving you a one-year denial, and within that year we feel . . . you are getting very close to getting a date if you continue to move in the direction that you're moving in at this time."
On June 2, 2008, the Board found defendant did not pose an unreasonable risk of danger to society or a threat to public safety if released, and granted him parole. The Board based its decision on a variety of factors.
The Board noted defendant's lack of a juvenile record and that he had a stable social history. Defendant had an uneventful life prior to the commitment offense, with just one adult conviction of misdemeanor burglary, for breaking into a car. Defendant had a stable relationship with his family, both prior to and after his incarceration. Defendant's family visited him consistently in prison on a rotating basis, and the Board noted his "family ties have been close." Several family members offered defendant a home, job, transportation, and support following his release.
The Board also noted that defendant "enhanced [his] ability to function within the law through participation in education programs." The Board noted defendant earned a GED (general equivalency diploma) in 1991 and an associate of arts degree in business. He also participated in AA, the Victim Offender Reconciliation Group, "IMPACT," and Men's Violence Prevention Training.
The Board relied on defendant's "maturation, growth, greater understanding and advanced age" in granting parole. After serving 22 years in prison, defendant had made significant improvement in self-control. Defendant had only two nonviolent disciplinary actions, expressed remorse, and stated he "understand[s] the nature and magnitude of the offense and accept[s] responsibility for [his] criminal behavior and [has] shown a desire toward a change toward good citizenship."
Finally, the Board cited positive psychiatric evaluations by Dr. Starrett in 2007 and by Dr. Marek in 2006. Dr. Starrett noted defendant believed he acted like an "idiot" by taking the law into his own hands, was trying to act tough, and was not thinking correctly. Defendant said he was "very regretful" about Carver's death and stated, "No one has a right to take a life and how much it has hurt the victim's parents. I see what I put my own parents through. I regret what I've done, and I'm truly sorry."
Dr. Starrett concluded: "The inmate has apparently spent a considerable amount of time attempting to understand and gain insight into the causal factors of his crime. It is unlikely that a requirement for further exploration of the instant offense will produce more significant behavioral changes of a positive or prosocial nature in the inmate."
The Deputy Commissioner stated it was his third time on a panel considering defendant's parole and noted he was familiar with defendant's case, commenting, "you persevered and you didn't get involved in any negative programs in prison, so I'm really impressed with that. And sometimes patience and perseverance pays [sic] off and I think today your patience and your perseverance and your programming paid off for you. And I just want to be amongst the ones to congratulate you for receiving a date."
The Governor's Decision to Reverse
The Governor's parole release review acknowledged defendant had no juvenile record, pled guilty to the crime, took steps toward self-improvement by participating in programs, pursued educational opportunities, did well on job assignments, and received favorable evaluations from correctional and mental health professionals over the years. The Governor noted defendant maintained "seemingly solid relationships and close ties with supportive family members," with offers of work and a place to live.
In reversing the Board's grant of parole, the Governor noted the gravity of the crime, defendant's lack of insight, and defendant's need for further self-help programs. He stated defendant's most recent mental health evaluation rated his risk of future violence as "low moderate" when considering his history. These four factors led the Governor to reverse the grant of parole.
The Governor found the facts of defendant's crime to be "particularly heinous" due to the premeditation of defendant and his co-defendants in removing the license plate and setting off to find the "black guy" who harassed local Vietnamese. Defendant's actions showed an "exceptionally callous disregard for human life and suffering." He fled the scene without seeking medical aid for the wounded Carver.
Although defendant currently accepts personal responsibility for his crime and expresses remorse, the Governor found defendant's version of events had changed significantly over the years, indicating a lack of insight into the circumstances surrounding the crime. At the time of his arrest and for approximately 10 years thereafter, defendant claimed he did not murder Carver. In 1990 defendant told a mental health evaluator his co-defendants conspired to make him a "scapegoat." A decade after the murder, defendant admitted killing Carver and "taking the law into [his] own hands." The Governor found these conflicting statements indicative of defendant's lack of insight into the circumstances of the offense and that he "has not done enough to ensure that these circumstances will not reoccur."
The Governor also expressed concern over defendant's limited participation in self-help and therapy programs in prison. Although defendant participated in AA and Narcotics Anonymous (NA), there was no evidence defendant suffered from substance abuse. Defendant had not participated in self-help or therapy since 2002. According to the Governor, "Considering the exceptional violence Mr. Nguyen demonstrated when he perpetrated the murder, I believe he would benefit from additional, and consistent, participation in self-help and therapy programs, particularly in the areas of anger and impulse management."
As previously noted, the Governor cited defendant's most recent mental health evaluation, which rated his risk of future violence as "low moderate" when considering historical factors. As expressed by the Governor, "Although the gravity of the crime supports my decision, this mental-health evaluation, in conjunction with Mr. Nguyen's lack of documented self-help and therapy, and his lack of insight into the circumstances of his life ...