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In Re Marcos Gonzalez

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


October 24, 2011

IN RE MARCOS GONZALEZ, ON HABEAS CORPUS.

(Super. Ct. No. 08F09286)

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

In re Gonzalez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In 1993 20-year-old defendant Marcos Gonzalez participated in the murder of his abusive stepfather, Fernando Martinez. Defendant was convicted of murder in the second degree and sentenced to 16 years to life in prison with a minimum eligible parole date of May 28, 2004. On May 16, 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 a writ of habeas corpus in the trial court, which the court granted, vacating the Governor's reversal and reinstating the Board's suitability finding. The People appeal, arguing the trial court's order should be reversed because the Governor's decision is supported by some evidence that defendant's release poses a risk of danger to society. We conclude the Governor's decision is not supported by the record and affirm the trial court's decision.

FACTUAL AND PROCEDURAL BACKGROUND The Crime

Defendant was born in 1972. His parents separated when he was two years old and his mother, Laura Jaramillo, married Louis Oquendo. Defendant had a good relationship with his stepfather. The family suffered no physical or substance abuse and participated regularly in church activities.

Defendant graduated from high school in 1992 with a 3.6 grade point average and completed three semesters at a community college. Defendant studied psychology and sociology, planning to be a sociologist. He wanted to continue his education with the United States Air Force and had been found qualified to do so.

Prior to his arrest, defendant worked for three years at a theater box office and had worked one summer as a government clerk through a special program with the Department of Social Services. Defendant was not involved in gangs and did not abuse drugs or alcohol. Except for the commitment offense, defendant has no criminal record.

The following facts are taken from our nonpublished opinion in People

v.

Gonzalez (Aug. 22, 1996, C020610): "In the latter part of 1992 defendant's mother, Laura Jaramillo, met and developed a relationship with the victim, Fernando Martinez. By September 1993 the couple had married and Martinez began to physically abuse Jaramillo on a regular basis. On September 25, 1993, following an episode of abuse, Jaramillo decided to leave Martinez. She asked defendant to go to the apartment she shared with Martinez and retrieve her microwave, purse and television. At approximately 8 p.m., defendant, his half brother Henry Oquendo, his cousin Jose Oquendo and Jose's friends, Jesse and Francisco Orona, proceeded to the apartment to retrieve Jaramillo's possessions and to exact revenge for the assault on defendant's mother. Along the way, defendant purchased duct tape to bind the victim. Jose Oquendo had a knife, and Jesse Orona had a gun. All the members of the group except defendant expressed a desire to beat up Martinez; Jose Oquendo and one of the Orona brothers expressed a desire to stab him.

"When the group arrived at the apartment, no one was home so they entered and waited for Martinez who arrived within a few minutes. While defendant hid in a bathroom, the others fell on Martinez, beating and stabbing him several times.

"Shortly after the attack, a neighbor discovered Martinez, bound with duct tape and covered with blood. He died a short time later from multiple stab wounds."

"In an interview with an investigating officer, defendant claimed he had locked himself in a bathroom during the attack. After hearing sounds of a struggle, he opened the bathroom door and saw his associates turning off the kitchen light. Defendant told his brother Henry, 'I'm -- I'm leaving. I'm gettin' out.' Defendant left the scene alone and drove to his residence and then to the State Theater where he saw portions of 'Air Born' and 'Warlock.' Defendant failed to notify the authorities of the attack even though Martinez was alive when defendant left. Defendant did not take any of the personal items he had gone to his mother's residence to retrieve."

A jury found defendant guilty of second degree murder and further found that a principal was armed during the commission of the offense. The court sentenced defendant to 16 years to life in state prison.

Prison Experience

In almost 14 years in state prison, defendant never received a "115" disciplinary memo.*fn1 Defendant received a few "128" counseling memos, but none of the memos involved violence or the threat of violence.*fn2

Defendant participated in the victim/offender reconciliation group, in which victims and inmates meet to impress upon inmates the consequences of their crimes on others. He attended a weekly men's violence prevention class, and completed a conflict resolution program. In 2003 and 2008 defendant attended anger management classes. A correctional counselor commended defendant for his involvement in numerous self-help programs.

Defendant obtained vocational training in radiology and the optical lens lab. He also began training in office services. Defendant has worked as a teacher's aide, yard crew member, library clerk, building porter, and in the canteen. He has received high work evaluations.*fn3

Defendant has no record of substance abuse, either in or out of prison. He attended Alcoholics Anonymous because it was an available self-help program.

2003 Parole Hearing

In 2003 the Board denied defendant parole. A 2003 psychological evaluation found defendant "appears to have become somewhat naively involved in the crime. His naivete remains, to some degree, in his belief that he could have persuaded [the victim] to attend counseling . . . but he has also matured in knowing what he would do to avoid criminal events in the future. . . . He evidences no particular anger, impulse, attitude, mood, or emotional dyscontrol symptoms related to a risk of dangerousness at this time. On a scale of low, medium, and high, he is considered to have a low risk of dangerousness."

At the 2003 hearing defendant minimized his responsibility for the murder. Defendant admitted responsibility for conspiring to assault Martinez, bringing his accomplices to the apartment, and purchasing the duct tape used in the assault.

Defendant stated he did not want to kill Martinez and had only moral accountability for his death. According to defendant, the others wanted to assault Martinez, and they came up with the idea of using the duct tape, which defendant purchased "for packaging purposes." He attempted to dissuade the others from harming Martinez. Defendant admitted hearing Martinez say "no" and being dragged into the bedroom. He also admitted lying to police afterward but said he did so to prevent his mother from finding out his brother was there.

The panel denied defendant parole, noting he was an active participant in the crime, a crime which revealed a lack of regard for the life and suffering of another. In addition, the panel did not believe defendant really accepted responsibility for the murder of Martinez. It found defendant's responses "very evasive, not being able to grasp what you are responsible for . . . we feel that you minimize your participation and minimize your responsibility in the death of Mr. Martinez."

The panel noted that institutionally, defendant had much to be commended for, including "remain[ing] disciplinary-free," receiving above average work reports, and participating in various self-help workshops. However, the panel found defendant had not sufficiently participated in beneficial self-help programs. Ultimately, the panel concluded the positive aspects of defendant's behavior did not yet outweigh the factors contributing to his unsuitability for parole.

2005 Parole Hearing

The panel again denied defendant parole in 2005. The panel found Martinez's murder "a very vicious death" and the motive for the crime "very trivial in relation to the alternatives," noting defendant's mother was in a position of safety when the crime occurred.

The panel also noted that defendant "found the right words when you say you've accepted responsibility. You've learned to say it. You've learned the script. It's another thing to really live it."

The panel noted defendant was making "very appropriate and successful use" of his time in prison. The panel urged defendant to take advantage of every program available, "therapy-wise, education-wise, vocational-wise." One panel member observed: "I also think that at the end of that two-year period [until the next hearing], if you continue doing what you are doing, I would insert in the record that I believe you would be suitable and urge the Board that hears your case in two years to seriously consider granting parole . . . ."

Board's Grant of Parole -- 2008 Parole Hearing

Following an extensive hearing, the 2008 panel concluded defendant was suitable for parole and would not pose an unreasonable risk of danger or threat to public safety. The panel noted defendant acknowledged he was present when the beating of Martinez began, that he came out of the bathroom and saw the others attacking the victim. Defendant also admitted he had been the instigator of the confrontation and left Martinez to die at the hands of others.

The panel also noted defendant had no other criminal record, had a stable social history, had bettered himself educationally, and had participated in available self-help programs. Defendant had also matured since his incarceration. He had maintained close family ties, and his religious faith provided him with a moral compass. Defendant showed signs of remorse and understood the implications of his actions.

The panel also found, as a mitigating factor, that defendant was a passive participant or played a minor role in the commission of the crime itself. In addition, the crime was a situation not likely to occur again. The panel also observed that defendant's psychological evaluation was "exceptionally positive."

A 2008 psychological evaluation characterized defendant as "one of those unusual and infrequently observed inmates who is serving an indeterminate life sentence and who has no other history of criminality, and not a single disciplinary infraction while in prison. His present status is congruent with his pre-offense status, that being that he clearly has the ability to conform his behavior, and function in a conforming manner."

The evaluating psychologist noted defendant's participation in victim reconciliation programs and found defendant had developed further insight into his role in the crime. According to the psychologist: "In regard to dangerousness, Inmate Gonzalez' role in the life crime is an important consideration. His role was clearly mitigated by factors that were outside of his control; primarily among which was that he did not use a weapon and did not participate directly in the assault that resulted in the death of the victim. In fact, he tried, albeit unsuccessfully, to stop the attack . . . ."

The psychologist concluded defendant "does not manifest a significant proportion of the traits we would expect to find in a high risk individual . . . any manifest risk that might be present is in deed [sic] low."

The Governor's Decision

In October of 2008 the Governor reversed the Board's grant of parole. The Governor noted various positive factors in considering defendant's suitability for parole: his having been discipline free while incarcerated, his prior education, his efforts to enhance his ability to function within the law upon release, vocational training, work within the prison, and his participation in self-help and therapy programs.

However, the Governor found: "Nonetheless, the murder that Mr. Gonzalez participated in was especially heinous because the victim was outnumbered, beaten, tied up, stabbed 19 times, and shot in the head. Mr. Martinez was no threat to Mr. Gonzalez or the other men; in fact, they had the opportunity to take Laura's belongings and leave before Fernando arrived. Instead, the record shows that Mr. Gonzalez and his crime partners planned the attack and spoke openly of stabbing and shooting the victim. There is evidence that Mr. Gonzalez agreed to buy the duct tape in order to tie up Mr. Martinez. Although Mr. Gonzalez claims that he 'prayed and quoted scripture' to Jose and Henry, he did not warn the victim or alert authorities in an effort to stop the murder. When the attack began, Mr. Gonzalez went to a movie instead of contacting the police. After the movie he drove his crime partners to a party. Then, he attempted to obstruct the investigation by buying Henry a bus ticket and telling him to get out of town. In addition, although Mr. Gonzalez went to the police station the day after the murder, he initially gave them an untruthful version of events which minimized his role in the murder."

The Governor also expressed concern that defendant lacked insight into the circumstances leading to Martinez's murder and his responsibility for his death. The Governor recounted defendant's statement at the 2003 parole hearing that he did not commit "'the act of murder'" and the panel's determination that defendant lacked appropriate insight into his participation in the crime and had not really accepted responsibility for what he did. The Governor also recounted the 2005 panel's statement that defendant "'found the right words when you say you've accepted responsibility. You've learned to say it. You've learned the script.'"

The Governor cited the 2003 finding by the Board that defendant had not sufficiently participated in beneficial self-help programs, and noted defendant had not begun to participate in self-help and therapy until 1998, "years after his initial incarceration."

In addition, the Governor cited the 2003 mental health evaluation, which termed defendant's participation in the crime as naive. The Governor stated: "Based on this record, I do not believe that Mr. Gonzalez was naive when he brought a group of men to his step-father's apartment, bought duct tape for them, planned to beat, stab and shoot the victim, used his mother's key to enter the apartment, waited for the victim, hid from the victim as he entered the apartment, and then went to a movie while the attack was carried out."

The gravity of the crime, the Governor stated, supported his decision, but he was particularly concerned that defendant still lacked full insight into the circumstances leading to the crime, and into his responsibility for the murder. According to the Governor, "This information indicates to me that Mr. Gonzalez would pose a current unreasonable risk of danger to public safety if released on parole at this time."

Petition for Writ of Habeas Corpus

Defendant filed a petition for a writ of habeas corpus. The trial court granted the petition and ordered the suitability finding reinstated. The court, after reviewing the 2008 hearing and the Governor's reversal, found there was not "some evidence" in the record to support the Governor's decision.

The court began by noting the Governor's reliance on defendant's statements in the 2003 parole hearing minimizing his involvement in Martinez's death, and the 2003 panel's conclusion that defendant lacked insight into his participation in the crime. The court also noted the Governor's reference to the 2005 panel's statement that although defendant learned to say the script about responsibility, he had not yet really lived it, which led the Governor to conclude that defendant, in 2008, still had not accepted responsibility for Martinez's murder.

The trial court found: "The Governor, however, in so doing did not point to any evidence in the record to show that petitioner in the past three years was still not accepting responsibility, or even that petitioner was not genuine in his statements made at the 2005 parole hearing where apparently he had begun to make statements accepting responsibility that the parole panel at that time was reluctant to believe."

The trial court noted that the 2008 psychological evaluation and defendant's statements at the 2008 parole hearing "show otherwise." In addition, the 2008 panel impliedly found defendant's acceptance of responsibility had become genuine. Nor did the Governor state any disbelief of defendant's expressions of responsibility made since 2005, which both the psychological evaluators and the 2008 parole panel, who saw and heard petitioner, found to be genuine.

The trial court also observed the Governor found defendant's lack of participation in self-help programs during his first three years in prison "somehow made petitioner now currently dangerous, yet apparently did not find that petitioner's expressions of responsibility and insight made in the last three years . . . had any relevance to his decision." Instead, the Governor continued to rely on a 2003 statement and a 2005 parole panel observation "without regard to whether petitioner's continued expression of responsibility since 2005 had become genuine . . . ."

As for the underlying crime, the trial court found the motive "was not trivial or inexplicable." Defendant believed his mother was a victim of continuous domestic violence; defendant's mistake was taking the matter into his own hands. Defendant did not physically attack; instead, after seeing the knife and gun, he "chickened out" and left.

The court acknowledged defendant's weighty responsibility for the crime in buying the duct tape, in not trying to stop the assault, and in failing to call the police. Instead, defendant retreated to the bathroom, then coldly went to the movies and afterward assisted the main perpetrators. Nonetheless, defendant's lack of physical participation rendered his culpability less than that of the other perpetrators.

The trial court noted defendant's lack of a criminal record prior to the offense, his participation in self-help programs for the last 10 years of his incarceration, and his minimal in-prison disciplinary record. In the three years prior to the 2008 hearing, defendant expressed responsibility "that he had earlier shirked as well as insight into the offense that he previously lacked." The trial court disputed the Governor's reading of the 2003 psychological evaluation, finding the evaluation did not conclude defendant lacked insight into his actions.

The trial court concluded, "Petitioner is not currently lacking in accepting responsibility for the commitment offense, and there is no other factor in the record that shows that petitioner poses a current unreasonable risk of danger if released on parole at this time." Since there was not "some evidence" to support the Governor's decision, the trial court granted defendant's petition and vacated the Governor's decision reversing the grant of parole.

The People filed a petition for a writ of supersedeas, which we denied. The People filed a timely notice of appeal.

DISCUSSION I.

Parole allows incarcerated individuals to reintegrate into society as constructive individuals as soon as they are able without serving their entire sentence. By converting prisoners into constructive citizens, parole also lowers the costs of imprisonment. (In re Vasquez (2009) 170 Cal.App.4th 370, 379.)

Penal Code section 3041 sets forth the procedure under which the Board makes parole decisions for indeterminate life inmates.*fn4 One year before the prisoner's minimum eligible parole date, a Board panel that meets with the inmate "shall normally set a parole release date," and shall do so "in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public." (§ 3041, subd. (a).) This release date must comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of the date. (Ibid.)

A parole release date shall be set unless the Board determines "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." (§ 3041, subd. (b).)

Under Board regulations, the panel must determine whether the inmate is suitable for parole regardless of the length of time served. A life prisoner will be denied parole if the panel determines the inmate will pose an unreasonable risk of danger to society if released from prison. (Cal. Code Regs., tit. 15, § 2402, subd. (a).) A parole date set under the regulations "shall be set in a manner that provides uniform terms for offenses of similar gravity and magnitude with respect to the threat to the public." (Id. at § 2401.)

The Board considers six factors tending to show an unsuitability for parole: (1) commission of the offense in an especially heinous, atrocious, or cruel manner; (2) a previous history of violence; (3) an unstable social history; (4) prior sadistic sexual offenses; (5) a lengthy history of mental problems; and (6) serious misconduct in prison or jail. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)

Alternatively, the Board considers nine factors evincing a suitability for parole: (1) the absence of a juvenile record; (2) a history of reasonably stable social relationships; (3) tangible signs of remorse; (4) the commission of the crime resulted from significant stress, especially if the stress built over a long period of time; (5) battered woman syndrome; (6) lack of a history of violent crime; (7) increased age, which reduces the possibility of recidivism; (8) marketable skills or a reasonable plan for the future; and (9) responsible institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)

The Board exercises its discretion in determining the importance of these factors. (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) In reviewing the Board's parole decision, the court considers only whether some evidence in the record supports the decision based on the factors specified in the statute.

"Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board'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 [Board's] decision." (In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz).)

The Board's parole decision is subject to review by the Governor. "The 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. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action." (Cal. Const., art. V, § 8, subd. (b); see Pen. Code, § 3041.2.) The Governor must give individual consideration to the prospective parolee and consider all relevant statutory factors related to the inmate's post-conviction behavior and rehabilitation. (In re Lawrence (2008) 44 Cal.4th 1181, 1219 (Lawrence).)

The Governor's determination of an inmate's suitability for parole is subject to the same standard as that of the Board. It is also subject to review under the deferential "some evidence" standard. (In re Dannenberg (2005) 34 Cal.4th 1061, 1086; Rosenkrantz, supra, 29 Cal.4th at p. 667.)

In determining whether "some evidence" supports the Governor's determination, we focus on whether there is "some evidence" of the core statutory determination that the inmate remains a current threat to public safety, not merely whether "some evidence" supports the Governor's characterization of the facts in the record. (In re Shaputis (2008) 44 Cal.4th 1241, 1254 (Shaputis).) Where one or more factors are relied upon to support a denial of parole, we must determine whether those factors, when considered in light of the other factors in the record, are predictive of the current danger posed by the inmate. (Id. at pp. 1254-1255.)

II.

In denying defendant parole, the Governor determined that the murder of Martinez was "especially heinous." The Governor noted Martinez was outnumbered, beaten, tied up, stabbed 19 times, and shot in the head. Gonzalez posed no threat to defendant, who provided the duct tape, failed to warn the victim, and did not alert authorities in an effort to prevent the murder.

One of the factors suggesting unsuitability for parole is that the murder was committed "in an especially heinous, atrocious or cruel manner." (Cal. Code Regs, tit. 15, § 2402, subd. (c)(1).) The elements to be considered in assessing the gravity of the commitment offense include: "(A) Multiple victims were attacked, injured or killed in the same or separate incidents. [¶] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution style murder. [¶] (C) The victim was abused, defiled or mutilated during or after the offense. [¶] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense." (Ibid.)

Part of the Governor's justification for denying parole was defendant's premeditation of the crime, procurement of the duct tape, and fleeing without seeking help for the victim. However, all second degree murders, by definition, involve some callousness, some lack of emotion or sympathy, emotional insensitivity, and indifference to the feelings and suffering of others. The atrociousness of the act does not involve general notions of common decency or social norms, for by that definition all murders are atrocious. Instead, the question is whether among murders the one committed by defendant was particularly heinous, atrocious, or cruel. (In re Lee (2006) 143 Cal.App.4th 1400, 1410.)

The fact that defendant stood by while his cohorts attacked Martinez, in retaliation for Martinez's abuse of defendant's mother, does not demonstrate that the crime was particularly egregious, atrocious, or heinous. Defendant did not attack, injure, or kill multiple victims; he did not carry out the murder in a dispassionate and calculated manner, such as an execution-style murder or in a manner that demonstrates an exceptionally callous disregard for human suffering; nor was the motive for the murder inexplicable or trivial. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)

Here, defendant was motivated by Martinez's spousal abuse of defendant's mother over an extended period of time. Although certainly not providing justification for the murder, this abuse did provide motive. Defendant's actions did not reflect an impulsive and fickle perpetrator whose volatility and capriciousness made predictions of future violence impossible. (In re Rico (2009) 171 Cal.App.4th 659, 682 [gang retaliation shooting wrong, but not trivial or inexplicable].)

The record does not support the Governor's evaluation of defendant's crime as particularly heinous and predictive of defendant's continuing danger to society. As the Supreme Court in Lawrence stated: "[M]ere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required 'modicum of evidence' of unsuitability." (Lawrence, supra, 44 Cal.4th at p. 1227.)

III.

The Governor also found defendant still lacks full insight into the circumstances that led to his crime and his responsibility for the murder of Martinez. The Governor cited defendant's statement to the parole panel in 2003 that he did not commit the "'act of murder'" and noted the panel's finding that defendant lacked appropriate insight into his participation in the crime. In addition, the Governor referred to the 2005 panel's statement that although defendant had learned the right words to express remorse, he had not yet really lived it.

However, the Governor does not dispute that defendant has admitted his responsibility for the murder for the last three years and has accepted full responsibility for Martinez's death. The 2008 psychiatric evaluation stated: "Inmate Gonzalez struck this evaluator as a socially developed, and remorseful man who does recognize the errors of his ways. He is clearly able to see the impact of his conduct on the victim in the instant case. Even with some distance between himself and the instant offense, Inmate Gonzalez is still able to describe the context of the instant offense with greater awareness and appreciation for not only the origins of his conduct, but also its impact on those that were directly impacted by it." Defendant also stated: "I know Mr. Martin[ez] didn't deserve to be murdered. I should have made a better choice."

Even earlier, in 1998, an evaluation report stated: "At this time, [defendant] is clearly remorseful, not just focusing on himself, but focusing on what happened to the victim and the victim's family. . . . When he becomes eligible for parole in 2004, he certainly would be an excellent candidate."

The 2008 parole panel, who extensively questioned defendant, found he "seem[s] to grasp and understand the options that were available that you did not choose to rectify this situation, but you certainly show signs of remorse. You have a firm grasp of Mr. Martinez' loss to the world . . . ."

The Governor relied on the 2003 psychological report and offhand comments from the 2005 panel to establish defendant's lack of insight. In contrast, the psychological report from 2008 and the parole panel found defendant understood the gravity of his offense and felt remorse for his actions. The Supreme Court has rejected reliance on old reports when more recent reports show progress by the defendant. (Lawrence, supra, 44 Cal.4th at pp. 1224-1228.)

Given the record before us, which reflects defendant's admission of culpability and regret for his actions, the Governor's reliance on lack of insight into the murder of Martinez is not supported by the record. Nor does this perceived, but unsubstantiated, lack of insight provide evidence that defendant currently poses an unreasonable risk of danger if released.

IV.

Finally, the Governor determined defendant "did not begin to participate in self-help and therapy until approximately 1998, years after his initial incarceration." The Governor cited the 2003 Board finding that defendant had not "'sufficiently participated in beneficial self-help.'"

The record belies the Governor's claim. Defendant participated in self-help classes for the 10 years of his incarceration prior to the 2008 hearing. Defendant has been an active member of the victim/offender reconciliation group and participated in the "Tawheed Changing Faces Program." He attended a parenting education program and a weekly men's violence prevention class. In 2003 and 2008 defendant attended anger management classes. He also completed a conflict resolution program.

The record reveals a history of defendant's continuing to acknowledge responsibility for his actions and seeking out self-help and therapy programs. In addition, defendant's lack of disciplinary problems while incarcerated and his continuing pursuit of educational and vocational opportunities underscore the benefits from his participation in self-help programs.

In In re Gaul (2009) 170 Cal.App.4th 20, the appellate court rejected the Board's denial of parole based on the defendant's need for further therapy. The Gaul court concluded: "In light of these more recent, positive psychological assessments of [the defendant], previously accepted as valid by the Board, the findings that even more therapy is needed or that therapeutic gains need to be maintained for additional time--and the Board's concomitant conclusion that [the defendant] is not now suitable for parole--lack any evidentiary support." (Id. at p. 39.)

V.

The Governor argues that if we find a due process violation in his denial of defendant's parole, we should remand to the Governor to proceed in accordance with due process. The Governor acknowledges appellate courts have declined to adopt such a remedy under Lawrence, but argues the recent Supreme Court decision in In re Prather (2010) 50 Cal.4th 238 (Prather) directs us to remand "without improper limitation to permit the executive branch to exercise its statutory and constitutional authority over parole decisions." (Id. at p. 257.)

We disagree. In Lawrence, the Supreme Court reviewed an appellate decision that reversed the Governor's decision denying parole. The Lawrence court observed: "the Court of Appeal issued a writ vacating the Governor's reversal of the Board's decision, and reinstated the Board's 2005 grant of parole to petitioner." (Lawrence, supra, 44 Cal.4th at p. 1201.) Lawrence affirmed the judgment of the appellate court, which included the remedy fashioned by the Court of Appeal. (Id. at p. 1229.) We followed Lawrence in our opinion in In re Burdan (2008) 169 Cal.App.4th 18, finding the proper remedy is to vacate the Governor's decision and reinstate that of the Board. (Id. at p. 39.)

We recognize that Burdan's conclusion on this point may be in doubt in light of Prather, where the Supreme Court held that the proper remedy when the Board's decision is not supported by some evidence is to remand to the Board for a new hearing on the full record. (Prather, supra, 50 Cal.4th at p. 258.) Nonetheless, the Board is not the Governor, and until directed otherwise by the Supreme Court, we follow Lawrence and Burdan.

VI.

To summarize, the Governor's stated reasons for reversal of the Board's grant of parole are not supported by some evidence. The Governor did not articulate any rational nexus between any of his reasons and defendant's current dangerousness.

We remain mindful of our deferential standard of review. However, Lawrence makes clear that our judicial review must be thorough enough to reveal and remedy any evident deprivation of constitutional rights. Accordingly, the relevant inquiry is whether some evidence supports the decision of the Governor that defendant 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 pp. 1211-1212.) After evaluating the evidence, we conclude that the Governor's decision violated defendant's due process rights and that the trial court's judgment should be affirmed.

DISPOSITION

The judgment is affirmed.

We concur: BLEASE , J. DUARTE , J.


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