(Super. Ct. No. 10F00495)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Charged with first degree murder, William Jon Pugh was convicted of second degree murder and sentenced to 15 years-to-life plus two years. At the time of the murder in April 1986, Pugh was 18 years old. He spent the next 24 years in prison before being released at age 42 pending this appeal.*fn1
The Board of Parole Hearings (the Board) granted parole in October 2009. Governor Arnold Schwarzenegger reversed the Board's decision the next month. Pugh filed a writ of habeas corpus in the trial court, which was granted. The warden of the Deuel Vocational Institution where Pugh was housed at the time of the Board hearing filed this appeal from the judgment of the trial court granting the writ.
We shall affirm the judgment of the trial court. Appellant argues Pugh's current dangerousness is evidenced by his lack of insight into the offense combined with the heinous nature of his crime. We find no evidence in the record that Pugh currently lacks insight into his offense. Furthermore, we find no evidence of any recent history of lack of insight. Appellant's claim that the lack of insight makes the heinous nature of the crime probative to Pugh's current dangerousness must, therefore, be rejected.
Because the nature of the offense is no longer an accurate indicator of current dangerousness, the trial court correctly granted Pugh's petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
When Pugh was 18 years old, he shot and killed Donald Fields. Fields was 30 years old when he was killed, and was the roommate of Pugh's best friend, Jeff Alton. Pugh stole $30.00 worth of coins from Fields, and Fields told Alton he did not want Pugh visiting the house again. On the evening of the murder, Pugh went to Fields's apartment to try to convince him that Pugh had not stolen the money, even though Pugh later admitted he had taken the coins.
The jury heard Pugh's version of events, which was that after he managed to convince the victim that he had not taken the coins, the victim started complimenting his looks, then questioned whether Pugh and Alton had a homosexual relationship. The victim continued on in this vein until he finally sat back in his chair, put his hand on his genitals and told Pugh to touch him and "give [him] some head." Pugh panicked and shot the victim as the victim sat in the chair.
The prosecution's theory of first degree murder was that Pugh went to the victim's apartment intending to talk him into believing that Pugh had not stolen the coins, and that if that did not work he intended to kill the victim. As previously indicated, the jury rejected the charge of first degree murder and instead convicted Pugh of second degree murder.
The Board granted parole in October 2009. In concluding that Pugh did not pose a current risk of danger to society, the Board found that he had no juvenile record, had a stable social history, obtained his high school diploma while incarcerated, had participated in a great number of self-help programs, had numerous laudatory chronos from prison staff, had developed several job skills, had realistic parole plans including a place to live and a job offer, had maintained positive family ties, had maintained positive institutional behavior, had shown signs of remorse, had accepted responsibility for his criminal behavior, and had been assessed as posing a low risk of violent behavior in his two most recent psychological exams.
In November 2009, the Governor reversed the Board's decision to grant parole. The Governor cited two reasons for his decision. First, was the heinous nature of the crime. As evidence of this, the Governor noted that the victim was an acquaintance of Pugh's and that the dispute had been about $30.00 in pennies, which Pugh had stolen from the victim. The Governor stated that the victim had been particularly vulnerable because he was unarmed and was in his residence, which was a place of security for him.
The Governor's second reason for reversing parole was that Pugh had "failed to obtain insight into his violent behavior[.]" The reason the Governor arrived at this conclusion was that Pugh had consistently maintained he shot the victim when he "freaked out" after the victim made sexual advances toward him, but that this version of events was inconsistent with the facts in the record. These "facts" were: (1) the probation report, which asserted that Pugh planned to confront the victim and "duke it out[;]" (2) statements from the victim's family denying he had been gay; and (3) statements made by the deputy district attorney at Pugh's parole hearing, claiming that when the victim answered the door to his apartment, Pugh did not wait before shooting the victim at the entrance of the residence.
Pugh petitioned the trial court for a writ of habeas corpus. The trial court granted the writ, concluding that the Governor's decision was not supported by some evidence Pugh constituted a current threat to public safety. The trial court found that the Governor's concern regarding Pugh's insight was based on the Governor's view that Pugh's insistence he shot the victim in a panic after a perceived sexual advance was contrary to the evidence. The trial court concluded that Penal Code section 5011 prevented the Board, and by extension the Governor, from requiring an admission of guilt as a condition for parole, and that the Governor likewise could not require Pugh to admit to a particular manner of killing, especially when Pugh's version of the facts was not necessarily inconsistent with the evidence.*fn2
The trial court also concluded there was no evidence to support the Governor's conclusion that Pugh did not accept full responsibility for the offense. The Governor relied on a 1987 mental health examination, ignoring the more recent psychological reports indicating Pugh showed insight and remorse.
No Evidence of Current Dangerousness
When making parole decisions, both the Governor and the Board must consider the factors regarding parole suitability set forth in section 3041 and Board regulations.*fn3 (In re Lawrence (2008) 44 Cal.4th 1181, 1203 (Lawrence).) We review the Governor's decision for "some evidence" demonstrating the prisoner remains a current threat to public safety. (Id. at p. 1191.)
Within this framework, the Governor's review of an inmate's suitability for parole is independent and de novo. (In re Rosenkrantz (2002) 29 Cal.4th 616, 660 (Rosenkrantz).) 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.)
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 a modicum of evidence supports the Governor's decision. (Id. at p. 677.)
Still, there must be a 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 ...