(Super. Ct. No. NCR42048)
The opinion of the court was delivered by: Blease , Acting 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Petitioner Scott Graves was denied parole by the Board of Parole Hearings (the Board) in 2008. Graves filed a petition for writ of habeas corpus with this court. We granted the writ and directed the Board to hold a new hearing and find Graves suitable for parole unless new evidence was introduced to support a finding he was a current danger to public safety. The Board held a hearing and found Graves suitable for parole. The Governor reversed the Board's decision, and this petition for habeas relief followed.
The Supreme Court has made it clear that a decision by the Board or the Governor to deny parole must be supported by some evidence, and that such evidence must have a rational connection to the conclusion that the inmate presents a current danger to public safety. (In re Lawrence (2008) 44 Cal.4th 1181, 1212 (Lawrence).) In this case, the evidence of unsuitability cited by the Governor was a single instance of discipline during Graves's nearly 15 years of incarceration, and 10 other instances of minor misconduct. None of these involved violence or harm to others. The single instance of discipline was for failing to appear for work. We shall conclude that this evidence was not rationally connected to a determination that Graves poses a current danger to public safety.
The Governor also pointed to evidence of the nature of the crime combined with Graves's lack of insight. The lack of insight was evidenced by an asserted inconsistency in the details of the offense. We find no such inconsistency in the record. Since the nature of the crime is not in and of itself evidence of a current danger to public safety, we conclude the record does not support the Governor's determination that Graves poses such a danger.
We shall nevertheless remand the matter to the Board. When we previously granted Graves's habeas petition, we directed the Board to hold a new hearing and to find Graves suitable for parole unless new evidence of events subsequent to the 2008 parole hearing was introduced. Since our previous decision was rendered, and since the Board held its hearing as directed, the Supreme Court has held that a court order purporting to limit the Board's consideration of all relevant statutory factors is improper because it infringes on the authority of the executive branch to make parole-suitability determinations. (In re Prather (2010) 50 Cal.4th 238, 253 (Prather).) We will thus remand the matter to the Board to hold a new hearing in accordance with due process of law.
FACTUAL AND PROCEDURAL BACKGROUND
The following description of the commitment offense is taken from our prior opinion.
On January 12, 1996, when petitioner Scott Graves was 17 years old, he and three other young men murdered Robert Mehringer. Graves admitted to punching Mehringer in the face three times during a fight between Mehringer and the four assailants, but the cause of Mehringer's death was a stab wound (one of 27 total cutting wounds) inflicted by Jason Webber. Two days after the killing, Graves turned himself in to police, and eventually pled guilty to second degree murder, for which he received a sentence of 15 years-to-life.
Red Bluff police found Mehringer's body in the area of Brickyard Creek on the morning of January 12, 1996. The area showed signs of a struggle, and the body exhibited slash and stab wounds, as well as blunt force trauma. Mehringer's blood/alcohol level was .34 percent. Witnesses stated they heard a male voice moaning for help around 1:00 a.m.
Two days later, Graves went to the police department claiming to be a witness in the case. He stated that he and his friend, Keith Haney, were in Red Bluff looking for Graves's girlfriend and for gas money, when they met Mehringer. They asked Mehringer for money, but he said he did not have any. They proceeded to the Jackpot Market, where Mehringer bought two six-packs of beer. They walked from the market to the bridge, and Mehringer spotted Vincent Lombardo and Jason Webber. Mehringer thought he knew them, and crossed the street to meet them. All five then proceeded to the bridge to drink the beer.
Lombardo suggested to Graves that they "jack this fool [and] take his money." Before they could put this plan in motion, Mehringer and Webber began arguing. Everyone except Graves began kicking and punching Mehringer. Mehringer went into the creek, but Lombardo enticed him out by telling him everything was okay. When Mehringer came out, the fight continued, and this time Graves participated by striking Mehringer three times in the face when Mehringer grabbed his shirt.
Mehringer was beaten until he fell to the ground. After he collapsed, Lombardo checked his pockets, but found no wallet. Graves patted Mehringer's pockets in hopes of finding a wallet, but did not find one. As the four walked away from Mehringer, Webber stated that he had stabbed Mehringer 27 times. Graves did not know Webber was stabbing the victim, but thought instead that Webber had been punching him. When Graves found out the victim had died, he went to the police.
B. Prior Criminal History
As we noted in our prior opinion, Graves had a single incident with the law prior to the commitment offense. When Graves was 16 he was charged with giving false information to a peace officer, a misdemeanor. He and a female friend were in his mother's car. The girl was driving without a license when she got into an accident. Graves claimed to authorities that he had been driving in order to protect the girl. Graves admitted the charge, and the case was dismissed.
Graves received one CDC 115 rules violation report in 2003 when he failed to report to work.*fn1 He also received 10 CDC 128-A Custodial Counseling Chronos.*fn2 Additional facts about these incidents appear below.
As we also noted in the prior opinion, Graves has completed several religious programs, has obtained vocational certificates for janitorial and auto body work, has participated in substance abuse and anger management programs, and has completed numerous vocation and self improvement units. He has taken college courses and has received above average ratings from his supervisors.
D. Psychological Assessment
A 2007 psychological evaluation employed three assessment guides to estimate Graves's risk for future violence. The first placed him in the low range suggesting he does not possess a psychopathic profile. The second also placed him in the low category for risk of recidivism. The third assessment included a historical domain, and concluded he presented a low risk of future violence while in prison and a low to moderate risk of future violence outside of prison.
E. Parole Hearings and Review
Graves's first parole hearing was in March 2008. At that time the Board denied parole for one year. Although the Board stated there was "very little concern on the part of this Panel that you're going to be a risk to society[,]" it denied parole based upon perceived contradictory information in ...