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In Re Scott Graves

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)


August 31, 2011

IN RE SCOTT GRAVES, ON HABEAS CORPUS.

(Super. Ct. No. NCR42048)

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

In re Graves CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A. Commitment Offense

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.

C. Conduct in Prison

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 his psychological evaluation regarding his history of alcohol and drug abuse.

Graves petitioned this court for habeas review, and we issued an opinion in September 2009. In March 2009, before our opinion was filed, Graves had another hearing before the Board, the one year from the last hearing having passed. The two panel members on the Board were not the same as the members composing the 2008 Board. This time the Board concluded Graves was not suitable for parole, and denied parole for three years. The reasons cited by the Board were: (1) the nature of the commitment offense; (2) Graves's tendency to minimize his conduct in the commission of the crime and his different versions of the crime; and (3) Graves's misconduct while incarcerated.

Then, in September 2009, on habeas review of the 2008 Board decision, we granted Graves's petition because we concluded that the Board's sole reason for denying parole, the confusion regarding his potential violence relative to drinking or drugging and whether it was a major factor in his life, was not supported by the record. We directed the Board to vacate its decision denying parole, hold a new hearing, and find Graves suitable for parole unless new evidence was introduced that was sufficient to support a finding of current dangerousness.

Pursuant to our order the Board conducted another hearing in November 2009. Graves's plans upon release had changed somewhat since his last hearing. The 2008 hearing suggested he go to transitional housing when released, rather than to his mother's house. Graves told the Board he acted on that suggestion and had been accepted into a transitional home in Sacramento. He also told the Board that he had investigated the field ironworkers apprentice and training program, but the coordinator informed him that he had to appear in person to get a job.

Graves was asked about inconsistencies in the 2008 hearing. Regarding where he had been when he punched Mehringer, Graves explained that the victim was in the water when the others were assaulting him, while Graves was standing about two feet away on the shore of the creek. The victim reached to him and grabbed his shirt. Graves yelled at him to let go, and when he did not let go, Graves punched him in the face.

The Board decided that Graves was suitable for parole and would not pose an unreasonable risk of danger to society or threat to public safety if released, but noted several concerns. After reciting the details of the commitment offense, the Board stated: "Inside the institution you've had one serious 115, and that was for failure to work in 2005. You've got, I think ten 128As, and those follow the pattern of the 115, of you basically deciding that you don't want to work and rather doing things that you want to do as opposed to working, establishing your own priorities other than the priorities at the institution or of your supervisors. It is a concerning pattern. We do have a poor work report as well in that same timeframe. We've got a number of CDC 101s which are work reports or school reports that state repeatedly that you're uncooperative and undependable, not wanting to be there and not putting any effort into your studies and or your job. There have been inconsistencies about the crime. . . . There's certainly been some minimization and lack of insight into your behavior. . . . There's some credibility concern. . . . Your current psych report and only psych report that we have is -- lists you as a low to moderate risk for recidivism. . . . On balance, despite the negative circumstances, which we did fully consider and after weighing all the considerations provided in Title 15, we find that you're suitable for parole because of the positive aspects of your case outweigh the other considerations just discussed."

The Governor reversed the Board's grant of parole. In his statement of reasons, the Governor first detailed the facts of the crime, then briefly mentioned Graves's background, mental health evaluation, and disciplinary record in prison. The Governor then listed positive factors he had considered in his review. These included Graves's efforts to enhance his ability to function within the law upon release, his supportive relationships with family and friends, and his arrangements to live at a transitional housing facility upon release. Although the Governor mentioned the transitional housing facility as a "positive factor," he qualified that "there is no way to know whether this plan will remain viable in March 2012."*fn3 He also mentioned that Graves did not have a current job offer, but did not specifically list this as a reason for denying parole.*fn4

After listing the positive factors he considered, the Governor stated, "[d]espite the positive factors I considered, . . ." then listed three reasons for denying parole. These were: (1) the "especially atrocious" nature of the crime; (2) Graves's failure to obtain insight or accept full responsibility for the crime; and (3) Graves's unwillingness or inability to conform his conduct within prison rules.

Graves filed an original petition for writ of habeas corpus with this court, and we issued an order to show cause to the warden of Avenal State Prison.

DISCUSSION

"The granting of parole is an essential part of our criminal justice system and is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities. [Citations.] Release on parole is said to be the rule, rather than the exception [citations] and the Board is required to set a release date unless it determines that 'the gravity of the current convicted offense . . . is such that consideration of the public safety requires a more lengthy period of incarceration. . . .' [Citation.]" (In re Vasquez (2009) 170 Cal.App.4th 370, 379-380.)

Article V, section 8(b) of the California constitution states that, "[t]he Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider." In reviewing decisions of the Board, the Governor has the 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.'" (Lawrence, supra, 44 Cal.4th at pp. 1205-1206, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz).)

Information the Board and Governor must consider includes, "the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release." (Cal. Code Regs., tit. 15, § 2402, subd. (b).) The circumstances that tend to show unsuitability for parole are that the prisoner: (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has 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. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)

The circumstances that tend to show suitability for parole are that the prisoner: (1) does not possess a violent juvenile record; (2) has a reasonably stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has 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; and (9) has engaged in institutional activities indicating an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)

Within this framework, the Governor's review of an inmate's suitability for parole is independent and de novo. (Rosenkrantz, supra, 29 Cal.4th at p. 660.) The Governor has the authority to resolve conflicts in the evidence and to decide the weight to be given the evidence. (Id. at p. 677.) "Accordingly, the Governor has discretion to be 'more stringent or cautious' in determining whether a defendant poses an unreasonable risk to public safety." (In re Shaputis (2008) 44 Cal.4th 1241, 1258 (Shaputis).)

Our review of the Governor's decision is "highly deferential . . . ." (Lawrence, supra, 44 Cal.4th at p. 1204.) "[T]he judicial branch is authorized to review the factual basis of a decision . . . denying parole in order to ensure that the decision comports with the requirements of due process of law, but . . . 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 upon the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) In other words, we do not weigh the evidence to determine suitability for parole, but look at the record to determine only whether some evidence supports the Governor's decision. (Id. at p. 677.)

Still, there must be a rational connection between the factual findings and the conclusion that the inmate is currently dangerous. (In re Criscione (2009) 180 Cal.App.4th 1446, 1458.) "[T]he relevant inquiry is whether some evidence supports the decision of 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." (Lawrence, supra, 44 Cal.4th at p. 1212.) A. Nature of the Offense

The first reason given by the Governor for reversing the Board was the nature of the commitment offense. The Governor stated that the second degree murder "was especially atrocious because [the] victim was intoxicated and was thus particularly vulnerable." The Governor further stated, "Graves made no attempt to avoid the murder or prevent it, and made no attempt to help the victim after he was kicked, hit, and stabbed. . . . the life crime was carried out in a dispassionate and calculated manner that 'demonstrates an exceptionally callous disregard for human suffering and certainly the motive for the crime is trivial in relationship to the offense and the magnitude of impact on all parties concerned.'"

We agree with the Governor that the murder was "especially atrocious." Four men beat and stabbed a man who was so intoxicated that he was unable to defend himself. Even so, we must admit that Graves's involvement in the crime, while sufficient to render him guilty of the murder, was nevertheless minimal. He punched the victim in the face three times. His motive in doing so was to get the victim to let go of his shirt. He did not know that one of the attackers had a knife and was stabbing the victim. When he found out the victim died, he went to the police. Thus, even though the nature of the crime was especially heinous, Graves's involvement in the crime was not.

Moreover, the Governor cannot rely on the immutable and unchangeable circumstances of the commitment offense in reversing the Board's decision to grant parole without articulating a rational nexus between the circumstances of the commitment offense and current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1227.) Recognizing this, the Governor found that Graves's lack of insight rendered the offense still relevant to his determination of current dangerousness. However, we find no evidence in the record before the Governor that Graves lacks insight into the offense.

B. Lack of Insight

Lack of insight is probative of unsuitability for parole only to the extent it is evidenced in the record and rationally indicates the inmate is currently a danger to public safety. (In re Twinn (2010) 190 Cal.App.4th 447, 465.) As evidence of Graves's lack of insight, the Governor cited conflicting descriptions of the crime leading to the mental health evaluator's conclusion that Graves demonstrated deficient insight into the crime. The claimed conflicting descriptions are not supported by the record.

A review of the record indicates that Graves has not given varying descriptions of the crime. In fact, the inconsistent descriptions stem from a poorly written probation report generated prior to Graves's guilty plea, and not from Graves himself.

The Governor stated, "[t]he February 1996 probation officer's Fitness Report stated that Lombardo and Graves 'ran toward the victim and started punching and kicking him. They got him on the ground, and the minor described several kicks to the face and side. The minor said he was just standing there and continued to claim he was just a witness.' In the same report, Graves claimed he and his crime partners beat Mehringer two additional times, but that Graves was only watching."

The Governor claimed there was an inconsistency because, "Graves provided a different explanation for the crime to his 2007 mental-health evaluator. The evaluator reported, 'The inmate stated that a fight broke out between the victim and the other two men and that he saw the other men punching the victim repeatedly. The victim ended up in the river, and the inmate said the victim grabbed at him, and he shoved him away about three times trying to avoid being pulled into the river.' This explanation plainly conflicts with the earlier statements that Graves participated in punching and kicking Mehringer to death."

An examination of the probation officer's report shows there is really no conflict. First, it is important to note that Graves did not speak to the probation officer. The probation officer's report is apparently derived from Graves's account to the Red Bluff Police. Second, the probation officer's report contains a confusing use of pronouns, which can only be clarified in context.

The particular paragraph highlighted by the Governor stated: "The minor further stated that at that moment, he and Vince ran toward the victim and started punching and kicking him. They got him on the ground, and the minor described several kicks to the face and side. The minor said he was just standing there and continued to claim he was just a witness." (Italics added.) Without the proper context, the pronouns "he" and "they" can be construed, as the Governor construed them, to refer to Graves and Vince Lombardo. Thus, this statement that Graves ran to the victim and started punching and kicking him would be inconsistent with his claim that he was just a witness until the point at which the victim grabbed Graves's shirt, causing Graves to punch the victim in the face.

However, in the probation officer's report, the paragraph previous to the one quoted above referred to the actions of Vince Lombardo and Jason Webber. That paragraph stated: "When the minor rejoined the group, he saw Vince's friend, Jason, and the victim arguing and yelling at each other. Jason then reached behind his own back. The minor thought Jason was going to pull a gun. Jason said 'you want to fight?', and Jason pushed the victim away. The victim then began swinging his arms round and round, describing this as loosening up, as if he was going to fight Jason." Taken in context, the ambiguous pronouns "he" and "they" in the next paragraph likely refer to Lombardo and Webber, not to Graves and Lombardo. This probability becomes even more certain in light of other evidence in the record.

Another probation officer's report prepared in 1996 after Graves pleaded guilty described this part of Graves's report to police as follows: "The victim and Webber then began arguing. Webber pushed the victim. The victim began swinging his arms around as if he was loosening up to fight. Everyone except the defendant started kicking and punching the victim. The victim retreated to the creek and entered the water. Lombardo enticed the victim out by saying everything was okay, and the victim rejoined the others. The fight then continued and this time the defendant participated with the others. They followed the victim into the water. The victim reached up and grabbed the defendant's shirt, and the defendant struck him three times in the face."

This version is consistent with Graves's later statements during his parole hearings. In 2008, the presiding commissioner asked Graves whether he joined in the fight when the others started beating and kicking the victim. Graves said no. He told the Board that he had just been watching, and that he was close enough for the victim to grab him because he was trying to see what was going on. Later in the hearing Graves told the Board, "In one of the reports I read it says I participated in beating up Mehringer. I didn't participate in the beating while they were doing it. I did sock him a couple times to get him to let go of me. That's the only time I ever showed any violence or whatever towards him. It was basically to get him to let go. That's why I did that. I didn't know Mr. Mehringer. I had no reason to dislike him or anything."

At the March 2009 parole hearing, Graves again told the Board, "it says that I participated in it and then he went into the water and I grabbed his shirt. I participated after he came out of the water, I believe it said and that's -- that's not true. The first contact that I had with Mr. Mehringer was in the water when he grabbed my shirt. I was trying to keep from falling basically." The presiding commissioner asked Graves how far from shore the victim had been. Graves replied that the victim had been right at the edge. Graves told the Board that the victim had been trying to pull him down into the water, and that is when he punched him two or three times until he (the victim) let go.

At the November 2009 hearing, the presiding commissioner asked Graves what inconsistency he remembered from the prior year's hearing. Graves stated that one report said he was in the water and one said he was not. Graves explained that the victim had been in the water when the others were assaulting him, and Graves had been standing nearby. The victim pulled on Graves's shirt when Graves was standing a couple of feet away on the shore of the creek. Graves said he yelled at the victim to let him go, but the victim would not let go so he punched him.

Later in the hearing Graves told the Board that one of the reports he had read indicated that after the victim came out of the water they all assaulted him. Graves said he interpreted that to mean that he had helped assault the victim, but he had not.

Thus, Graves's account of the crime has been consistent. Only the initial probation officer's report, which was relied upon by the Governor, but to which Graves did not contribute, is contradictory.

The Governor also points to a portion of Graves's September 2007 psychological evaluation, and asserts that the evaluator opined that Graves's discrepant descriptions demonstrated deficient insight regarding the life offense. In fact, the evaluator made no mention of Graves giving divergent descriptions of the offense. Moreover, the evaluator's comments regarding insight were general, and did not refer to Graves's insight regarding the offense. The evaluator's comments regarding insight were themselves somewhat inconsistent, since at one point the evaluator said Graves had "somewhat deficient insight" and at another point said that Graves's "insight and judgment appeared normal for an individual of his age[.]"

In short, Graves has been consistent in his recounting of the offense and particularly in his involvement in the offense. The only apparent inconsistency was based on an erroneous reading of a poorly worded probation officer's report. Graves's mental health evaluator did not claim that Graves had given inconsistent accounts of the crime or that his inconsistent accounts evidenced a deficient insight into the offense. There is thus no evidence to support the Governor's finding that Graves has failed to obtain insight into the offense.

C. Conduct Has Failed to Conform to Prison Rules

Lastly we consider the Governor's finding that Graves has been unwilling or unable to conform his conduct within prison rules, and the conclusion that this demonstrates he is not yet ready to conform his conduct to society's laws or comply with the conditions of parole.

As evidence supporting this finding, the Governor cited Graves's 2005 discipline for failure to report to work. The Governor also cited the fact that Graves was counseled for failing to report to the medical clinic in 2006. The Governor stated that "equally alarming [was] the fact that, since 1998, [Graves] required counseling for the same behavior -- failing to report to work -- on three different occasions."

The November 2009 Board made the following finding: "Inside the institution you've had one serious 115, and that was for failure to work in 2005. You've got, I think ten 128As, and those follow the pattern of the 115, of you basically deciding that you don't want to work and rather doing things that you want to do as opposed to working, establishing your own priorities other than the priorities at the institution or of your supervisors. It is a concerning pattern. We do have a poor work report as well in that same timeframe. We've got a number of CDC 101s which are work reports or school reports that state repeatedly that you're uncooperative and undependable, not wanting to be there and not putting any effort into your studies and or your job."

Included in the record is a copy of the rules violation report for the February 2005 violation. The narrative describing the offense stated: "I observed Inmate Graves . . . did not report to class. I telephoned the housing unit and spoke with Inmate Graves and he said, 'I am going to talk with my counselor to get a job change, I can't be getting anymore 128-A's. I'm not coming back. I quit.' On 1/27/05 Inmate Graves received a CDC 128-A for failure to report to work. Inmate Graves is in direct violation of CCR § 3041(b). Because of recurring failure to meet program expectations, I am requesting that Inmate Graves be disciplinary unassigned from Vocation Office Services."

A hearing was held regarding the rules violation. Graves pleaded guilty to the violation with the following explanation: "I'm trying to go to N.A. for the Parole Board as suggested. My teacher keeps writing me up when I go to N.A. meetings. I know I have to be in class and I go when there is not an N.A. meeting." The report noted that Graves had missed work on one Monday (February 14, 2005) and one Thursday (January 27, 2005). Narcotics Anonymous meetings were held on Wednesdays.

The record also contains a copy of a CDC 128-A violation dated December 12, 2006, for failure to report to the medical clinic. The record confirms that, in addition to the 2006 violation, Graves was counseled 10 times for such violations as failure to report to work, poor performance, smoking, failure to obey orders, and reporting late for work.

The Governor concluded: "The fact that Graves required discipline and counseling for the same type of misconduct demonstrates that he has not sufficiently addressed his behavior control and that he is still either unwilling or unable to follow rules. The fact that Graves engaged in misconduct so recently, combined with his sustained pattern of disregarding the regulations of prison, demonstrates that he is not yet ready to conform his conduct within society's laws or comply with the conditions of parole. This information indicates that Graves still presents an unreasonable risk of danger if released to the community at this time."

The factors to be considered by the Board and the Governor in deciding whether to parole an inmate are set forth in Title 15, section 2402 of the California Code of Regulations. "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.)

One of the factors that the Board and the Governor may consider as a circumstance tending to show unsuitability for parole is whether "[t]he prisoner has engaged in serious misconduct in prison or jail." (Cal. Code Regs., tit. 15, § 2402, subd. (c)(6).) As indicated, Graves has had only one CDC 115 violation in his nearly 15 years in prison for misconduct that "is not minor in nature." (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).) That violation was for failing to report to work. All of Graves's other disciplinary matters were minor in nature, and, other than his smoking violation, were for similar types of misconduct, i.e., failure to report to work, failure to obey orders, or reporting late for work. The Governor concluded this misconduct demonstrates that Graves is not ready to conform his conduct to society's laws or comply with parole conditions.

"[T]he core statutory determination entrusted to the . . . Governor is whether the inmate poses a current threat to public safety . . . ." (Lawrence, supra, 44 Cal.4th at p. 1191.) Before parole can be denied, there must be some evidence that the inmate's release will "unreasonably endanger public safety." (Id. at p. 1209.) It is not enough that there is evidence in the record to support the factors relied upon by the Governor. There must be a "rational nexus" between the factors relied upon and the determination that the inmate poses a current danger to public safety. (Id. at p. 1210.)

"[B]ecause the core statutory determination entrusted to the . . . Governor is whether the inmate poses a current threat to public safety," we do not review the record to determine if there is some evidence to support the conclusion that the inmate might violate parole rules, or that the inmate might have trouble holding down a job. We review the record to find some evidence to support the conclusion that the inmate is currently a danger to public safety. (Lawrence, supra, 44 Cal.4th at p. 1191.) The Supreme Court has variously described the prohibited state as a "current threat to public safety," (ibid) "currently dangerous[,]" (ibid) and "a current danger to the public." (Shaputis, supra, 44 Cal.4th at p. 1261.)

While we agree with the Governor that Graves's disciplinary record may indicate some inability to abide by rules, including the conditions of his parole, his record does not support an inference that he is a danger to public safety. Graves's disciplinary reports were for nonviolent and relatively minor misconduct. (Cf. In re Palermo (2009) 171 Cal.App.4th 1096, 1110, disapproved on other grounds in Prather, supra, 50 Cal.4th at p. 252.)

In Lawrence, supra, 44 Cal.4th at page 1224, the Governor stated that the inmate had been counseled eight times for misconduct, including an incident as recently as the same year in which the parole hearing was held. The misconduct was for being late to a class or other appointment. The court stated that the inmate's record did not support a conclusion "that petitioner poses a threat to public safety because she was occasionally late to appointments or job assignments during her almost 24 years of incarceration." (Ibid.) Likewise, there is no rational nexus between Graves's failure to report to work and the conclusion that he poses a current danger to public safety.

Respondent cites In re Reed (2009) 171 Cal.App.4th 1071, 1079, 1084, in which the court of appeal held that the inmate's minor misconduct (leaving work without permission) after the Board directed him to remain discipline free was some evidence that he would pose a threat to public safety if released. In re Reed is distinguishable because it involved a specific directive from the Board to avoid discipline. (171 Cal.App.4th at p. 1085.) Also, while Grave's misconduct was certainly not an isolated event, he did not have the extensive history of misconduct, i.e., 11 serious violations and 19 minor misconduct violations, that Reed had. (Ibid.)

We conclude that defendant's disciplinary record while incarcerated is not some evidence that he poses a current danger to public safety.

D. Remedy

Citing Prather, supra, 50 Cal.4th 238, respondent argues the appropriate remedy in the event the Governor's parole decision is unsupported by some evidence is to remand to the executive branch for a new parole decision. As indicated above, Prather held improper an order directing the Board to find an inmate suitable for parole unless evidence of the inmate's conduct subsequent to the prior hearing indicated he was currently dangerous. (50 Cal.4th at p. 246.) The court opined that such an order violated the constitutional doctrine of separation of powers and "materially infringe[d] upon the Board's discretion to make parole decisions on the basis of all relevant information, . . . thereby improperly circumscrib[ing] the Board's statutory directive." (Id. at p. 255.)

Our previous order in this case, rendered prior to Prather, directed the Board to hold a new hearing and find Graves suitable for parole "unless new evidence of his conduct and/or change in mental state subsequent to the 2008 parole hearing is introduced and is sufficient to support a finding that he currently poses an unreasonable risk of danger to society if released on parole." The Board held the hearing as directed on November 5, 2009, before the Supreme Court decided Prather.

It now appears that our prior order limiting the evidence the Board was entitled to consider was in error. Therefore, under the particular circumstances presented here, the appropriate remedy is to grant the petition and vacate the Governor's reversal, but remand the matter to the Board to conduct a new hearing consistent with the opinion of this court, the principles of res judicata, and in accordance with due process of law.

This does not entitle the Board to disregard our determination regarding the sufficiency of the evidence of current dangerousness. (In re Masoner (2009) 172 Cal.App.4th 1098, 1110, disapproved on another point in Prather, supra, 50 Cal.4th at p. 252.) "Rather, a judicial order granting habeas corpus relief implicitly precludes the Board from again denying parole -- unless some additional evidence (considered alone or in conjunction with other evidence in the record, and not already considered and rejected by the reviewing court) supports a determination that the prisoner remains currently dangerous." (Id. at p. 258.)

DISPOSITION

The petition for writ of habeas corpus is granted. The Governor's order reversing the Board's 2009 decision granting petitioner parole is vacated. This matter is remanded to the Board, which shall conduct a new parole suitability hearing within 60 days of the issuance of the remittitur in this matter, in accordance with due process of law and consistent with the decision of this court and the principles of res judicata. Pursuant to California Rules of Court, rule 8.387(b)(3)(A), this opinion shall be final as to this court within five days after it is filed.

We concur: ROBIE , J. DUARTE , J.


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