Trial Court: Sonoma County Superior Court Trial Judge: Hon. Virginia Marcoida (Sonoma County Super. Ct. No. SCR19691)
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PUBLICATION
The People appeal from an order granting Christopher Morganti's petition for a writ of habeas corpus and directing the Board of Parole Hearings (the Board) to hold a new hearing to determine whether to fix a release date for Morganti. Like the trial court, we conclude that, even applying the ultra-lenient "some evidence" standard, the Board's decision that Morganti is unsuitable for parole cannot be upheld. Accordingly, we affirm the superior court's decision granting habeas corpus relief.
FACTS AND PROCEEDINGS BELOW
Morganti was born in Healdsburg in 1951 into an intact and religious Italian-American family. He suffered no abuse or neglect or other trauma as a child, and has no history of juvenile convictions. He attended parochial schools until he graduated from high school in 1970, when he enrolled in Santa Rosa Junior College. He dropped out of junior college before the end of his first year and obtained employment as a carpenter. During the next five years, while working as a carpenter, he drank beer and smoked marijuana regularly. He gradually became addicted to cocaine, by the late 1970s was "shooting" cocaine intravenously, and in order to support this habit began selling it.
In 1977 Morganti moved to the State of Washington, where he obtained a contractor's license and started his own construction company. He got married and had a child, and also adopted his wife's son. After five years he and his wife divorced, and in 1987 Morganti moved back to Sonoma County to care for his father, who had cancer. During the two years he cared for his father, Morganti's drug use escalated, and at one point he was injecting or ingesting as much as an ounce of cocaine daily. Following his father's death, Morganti remarried. The commitment offense took place six weeks later, on November 16, 1991.
Morganti and Ron Turner, an employee of the Le Grande Motel in Cloverdale, were both "heavily involved in drugs." Morganti supplied Turner with cocaine in return for the free use of motel rooms. In order to hide the transaction from the owner of the motel, Morganti would give Turner his credit card on the understanding Turner would later "pull" the charge slips before they were processed by the credit card company. When Turner failed to do this on one occasion, Morganti received a credit card bill for $763. After receiving several more such bills--and at a time at which he "had been high every day, up three or four days[,] and then sleep and then up again"--Morganti confronted Turner in his room at the motel. In a rage, he stabbed Turner 26 times with a knife he had brought with him. He then set fire to the room and fled. He was arrested three days later. In June 1993 a jury found Morganti guilty of second degree murder and arson of an inhabited structure, and he was sentenced to state prison for 21 years to life. These are the only violent crimes Morganti has committed.*fn1
As noted in the most recent psychological evaluation, Morganti "has functioned without behavioral problems for almost 20 years, "worked consistently and regularly" while in prison, most recently as the lead man in the butcher shop. "He generally receives above average to superior evaluations for both relationships and performance." He has also worked on the Waste Control Crew and earned a certificate qualifying him as a Lift Truck Operator. He has applied for a computer repair program but has remained on the waiting list for more than three years. He has consistently participated for many years in Alcoholics Anonymous (AA), Narcotics Anonymous (NA), Overcomers Outreach (a faith-based 12-step program), and numerous other rehabilitative programs, including classes in stress and anger management. However, his desire to participate in such programs has been frustrated by the elimination of some of them and cutbacks in others, due to reductions in the budget of the California Department of Corrections and Rehabilitation (CDCR).
When Morganti first arrived in prison he "had a few friends in the biker group" whom he met "through my first cellie"; those relationships ended years ago, when he returned to the Catholic faith and became actively involved in church-sponsored programs. Though he previously spent a great deal of his free time engaging in physical activities and exercise, these activities have been "severely limited" by serious medical problems: he has been diagnosed with heart disease, emphysema, hyperlipidemia, hepatitis C, chronic viral illness, and cardiac arythmia, and in 2007 he underwent cardiac bypass surgery. He now uses his free time to "walk a few laps with an old friend and we play dominoes and cribbage. I watch the educational videos and we have Bible studies and classes through the church."
Morganti has plans in the event he is released on parole. He owns his own house, has numerous physically undemanding job offers, was left money by his mother, and, as indicated by numerous letters sent to the Board in his behalf, has a significant amount of support from family members, former neighbors, classmates, teachers, and others in the Healdsburg community with whom he corresponds, several of whom have offered him employment in the event his "medical issues" allow it. The Board also received a letter from a friend who stated her willingness to transport Morganti to and from support group meetings, such as AA and NA, if he needed such assistance.
On March 24, 2010, shortly before Morganti's most recent parole hearing, Dr. Michael Pritchard submitted a 14-page comprehensive risk assessment to the Board. Dr. Pritchard stated that Morganti has made a "commitment to abstinence from intoxicating substances," and participated in AA and NA even though "he believes they are not essential to his sobriety," and "intends to rely on the support of his church as well as attending NA meetings if he returns to the community." Because "sobriety in a highly controlled and structured milieu such as prison does not necessarily generalize to the free community," Dr. Pritchard opined that the "risk of relapse" might be mitigated "by ongoing participation in NA or AA meetings, adherence to said organizations' guiding principles and/or the maintenance of an AA or NA sponsor in the free community, in addition to having a well-defined relapse prevention plan."
When asked by Dr. Pritchard to assess himself, Morganti wrote: "I am a good person. I believe in my religion and my family. I believe in my country. I believe in right and wrong. I've always made my own way. I took care of myself. Sometimes I let my work overrun my relationships. I have to stay grounded in my church, in my faith. [¶] The peer pressure I used to feel, even into my 40s, I don't care about that any more. I have learned to involve myself with people through my church. I have changed. It is drug use versus religion. I am more secure in myself now. I don't have to have a lot of friends. I know who I am and what I am. I am a Catholic, an Italian, an American, a pop, and a grandpa; at least I want to be a grandpa if I get a chance." Dr. Pritchard commended Morganti for speaking "openly and directly," and observed that his statements are "not inaccurate, although perhaps self-serving." He also felt Morganti's revelations about his past use of controlled substances were "a product of thoughtful reflection on his history of substance abuse."
In assessing the risk of violence presented by Morganti's release on parole, Dr. Pritchard utilized "a combination of actuarially-derived and structured professional judgment approaches," specifically the "Psychopathy Check List-Revised" (PCL-R) approach and that prescribed by the "Historical-Clinical- Risk Management-20" (HCR-20). Additionally, for assessment of the general risk for criminal recidivism, Dr. Pritchard employed the "Level of Service/Case Management Inventory" (LS/CMI) protocol. According to him, "[t]hese measures are widely used and are supported by years of research in the risk assessment field. They have been cross-validated with various forensic populations, including United States males in correctional settings. They are scored on the basis of semi-structured interview and information obtained from the record. Estimates of risk [are] presented categorically: Low, Moderate/Medium, or High as compared to the general offender population."
Dr. Pritchard stated that under the PCL-R Morganti "obtained a total score . . . which placed him in the LowRange of Psychopathy when compared to other North American offenders at approximately the 5th percentile." Morganti's overall score as measured by the "HCR-20 was [also] in the Low Range of violent recidivism," as was his LS/CMI score, which indicated that "he is at the Low Risk/Need Level for recidivism of any kind at approximately the 5th percentile in the population of U.S. male offenses."
Dr. Pritchard's overall assessment of Morganti was that "Mr. Morganti presents a LOW RISK for violence in the free community. For all the antisocial behavior demonstrated by his cocaine addiction and penchant for the 'biker philosophy,' his record reflects no violence or crimes outside of the life crime. He has functioned responsibly and compliantly while incarcerated. He is currently 59 years old and in relatively poor health. Despite his cavalier attitude about his personal potential for substance use relapse, he nevertheless presents as an overall low risk to reoffend."
The 2010 Parole Hearing and Decision
During the course of the four-hour hearing that took place on August 2, 2010, the two members of the Board panel briefly acknowledged that Morganti had received positive psychological evaluations*fn2 ; that his discipline-free conduct in prison was exemplary; and that his parole plans were realistic, as shown by the job offers and other support expressed by many present and former residents of Healdsburg, where he planned to live if released.
Nevertheless, after taking a recess and deliberating, the presiding commissioner announced that Morganti had been found unsuitable for parole, and "[i]t's a three-year denial" (Pen. Code, § 3041.5, subd. (b)(3)), with subsequent statutory references to the Penal Code unless otherwise indicated.). Summing up the reasons for this determination, the presiding commissioner stated as follows:*fn3 "You've done some good things, but I've got to tell you the overlying issues for us were your substance abuse issues, and whether that makes you a current unreasonable risk of dangerousness in society is because it was so involved in the life crime. . . . [W]e did talk a little bit about if you had any kind of understanding of the life crime, and we did talk about how substance abuse was involved in the life crime, which kind of draws the nexus between the life crime and your substance abuse. I get very nervous and uncomfortable when someone tells me they're going to base a lot of their reasons for staying off drugs on their religion, especially when they had a situation like you went to parochial school or Catholic school. Because it didn't work then. You had a crisis of faith according to what you told us. And so, that concerned us. So, that gave us a reason for, wow, that's probably not going to be so successful. So, then we looked at your substance abuse, relapse prevention plan. I thought your relapse prevention plan was okay [but] . . . I think you need more understanding into your substance abuse. I think you need to get more involved in your AA and NA programs." Noting that Morganti had many "positives" in his record, the presiding commissioner closed his comments with the advice to"[g]et more involved in your self-help. That's our recommendation to you."
Pursuing this subject, the deputy commissioner acknowledged Morganti had taken many self-help programs in addition to AA and NA, but questioned their efficacy, stating that many were conducted "by video conference, or correspondence classes" or were of short duration. During the hearing, after Morganti had described the self-help, therapy, and vocational programs he was taking or had taken, the deputy commissioner inquired about the length of the programs, the frequency of their meetings, and the opportunity they afforded for class discussions. Morganti told her that one course, Cage Your Rage, lasted eight weeks, that other courses in anger control and stress management were each three-week courses, and that a "faith-based self-improvement course" met once a week for between four and six weeks. Morganti also stated that because of "things with the budget," the AA and NA programs were then meeting only once a month, and the stress management class used some "distance learning classes" in which class discussions were not possible.
The deputy commissioner appears to have concluded that the programs Morganti was participating in were insufficiently "comprehensive," observing that "a comprehensive relapse prevention plan would definitely speak to frequency of meetings, and where they're located, and what have you." Acknowledging that her concern "is perhaps a catch-22," because "the programs and what have you have been curtailed" due to budget cuts, the deputy commissioner advised Morganti that "the older we get, the longer learning new habits takes. And so I would encourage you to continue taking classes. We both understand that programs and what have you have been curtailed, and so take whatever you can."
The Habeas Corpus Proceedings in the Superior Court
On January 3, 2011, Morganti filed a petition for habeas corpus in the Sonoma County Superior Court arguing first, and fundamentally, that "the Board's decision to deny Morganti parole lacked any supporting evidence and was otherwise arbitrary in violation of federal and state guaranties to due process of law." Following an order to show cause, the warden filed a lengthy return, and petitioner a response. On June 6, 2011, the trial court (Honorable Virginia Marcoida) filed a detailed and thoughtful nine-page order granting the petition, concluding that the "Board's finding of lack of insight is not supported by some evidence."
Finding the Board's determination that Morganti "lack[ed] insight into his drug use and addiction" was based on its "conclusion that (1) petitioner did not believe programs such as A.A. and N.A. are essential to his recovery, and (2) petitioner did not fully understand the causative factors of his substance abuse," the court found that "[n]one of these findings are supported by the record." Rejecting the Board's conclusion that Morganti was relying solely on his religion to stay away from drugs" as a "distortion and oversimplification of [his] statements," the court stated that there was "no evidence that he lacks insight into the substance abuse that led him to commit murder." Citing portions of his testimony at the parole hearing, the court pointed out that Morganti "acknowledges that his recovery consists of a combination of things, including his religious beliefs and programs such as A.A. and N.A. He affirmed that he intends to participate in A.A. and N.A. upon his release. The mere fact that petitioner may believe that, for him, the most important aspect of his recovery is his faith in religion does not mean that he is discounting or disregarding the importance of A.A. and N.A. programs as an integral part of the recovery process." The court also noted that Morganti "affirmed that the 12-step program is part of his daily life," and that the "detailed relapse prevention plan" he presented to the Board "included participation in 12-step programs."
The court found that the Board's determination that Morganti "needs to 'go into some more understanding of the motivation of why you turned to drugs' " also unsupported by some evidence. As the court explained, Morganti "did not simply blame his past drug use on the crowd he was hanging around with. Rather, petitioner acknowledged there were multiple reasons for his addiction to cocaine. He acknowledged that he enjoyed the high and the rush. He acknowledged that he enjoyed the fast lifestyle that bikers, women, and his friends brought into his life. He has taken full responsibility for his drug use, and has fully acknowledged that he can never have as much as one drink again, as the drug use and the alcohol use are interconnected. While it is undoubtedly true that we can all gain better insight into our actions, petitioner's insight into the motivations of why he turned to drugs is more than adequate and does not show a lack of insight into his drug abuse."
Then, noting that since 1994 Morganti "has dedicated himself to leading a sober and drug free life," "participated in all the A.A. and N.A. programs that are available to him in prison" and "also participated in church-based 12-step programs," the court stated that he "has an exemplary history of rehabilitation and reform in prison; and all evidence points toward continued rehabilitation once released." "In sum," the court concluded, "the record provides no rational basis upon which to conclude petitioner is blind to the problem presented by his past drug abuse or has refused to confront the problem, nor reason to believe petitioner is likely to resume abusing substances after more than 16 years of sobriety and active participation in A.A. and N.A. There is no evidence that petitioner will return to drug or alcohol abuse if released on parole. Petitioner's resolve to put into practice the teachings of A.A. and N.A. and remain drug and alcohol free during periods of time where A.A. and N.A. programs were not available to him in prison provides additional evidence of petitioner's ability to maintain his gains upon release."
The court granted Morganti's petition and remanded the matter to the Board to conduct a new parole hearing.*fn4 (See In re Prather (2010) 50 Cal.4th 238, 244 (Prather).)
Respondent Randy Grounds, Warden of the Soledad Correctional Facility where Morganti is confined, filed timely notice of this appeal on June 7, 2011,*fn5 and the order he challenges is appealable. (§ 1506.)
The Law and the Standard of Review
We very recently collected and confirmed the applicable rules that govern here, in In re Andrew Young (2012) ___ Cal.App.4th ___ [12 CDOS 3065; 2012 WL 834786]:
In re Shaputis (2001) 53 Cal.4th 192 (Shaputis II) "is the most recent of several opinions by our Supreme Court that together explain the framework that exists among our three branches of government regarding parole decisions. (See Prather, supra, 50 Cal.4th 238; In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence); In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis I); In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg); In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz).) As they explain, the Board's parole authority is governed by a body of statutes and regulations as mandated by the Legislature, most notably Penal Code section 3041 (section 3041) and title 15, section 2402 of the California Code of Regulations. [Fn. omitted.] (Shaputis II, at p. 209, fn. 5; Prather, at pp. 249-251; Lawrence, at pp. 1201-1203.) [Fn. omitted.]
"Section 3041 mandates that the Board ' "normally" ' set a parole date for an eligible inmate, and ' "must" ' do so unless it determines that an inmate poses a current threat to public safety. (Prather, supra, 50 Cal.4th at p. 249, quoting § 3041, subds. (a), (b).) [Fn. omitted.] As a result, parole applicants have 'a due process liberty interest in parole' and ' "an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation." ' (Lawrence, supra, 44 Cal.4th at pp. 1191, 1204.) In other words, ' "parole is the rule, rather than the exception" ' (id. at p. 1204, quoting In re Smith (2003) 114 Cal.App.4th 343, 366), and 'the onus [is] on the Board to justify denial of parole.' (Shaputis II, supra, 53 Cal.4th at p. 222 (conc. opn. of Liu, J.).)
"Accordingly, as we have discussed, the Board must determine, consistent with due process, the 'essential question' of 'whether the inmate currently poses a threat to public safety.' (Shaputis II, supra, 53 Cal.4th at pp. 209, 220.) The Board answers this question by conducting 'an individualized inquiry' into the inmate's suitability for parole (id. at p. 219), "draw[ing] . . . answers from the entire record, including the facts of the offense, the inmate's progress during incarceration, and the insight he or she has achieved into past behavior.' (Id. at p. 221, italics added.) It is required to give due consideration to the criteria referred to in section 3041 and, more specifically, in [California Code of] Regulations, [title 15,] section 2402, promulgated by the Board pursuant to legislative mandate. [Fn. omitted.] (Prather, supra, 50 Cal.4th at p. 251 [Board "must consider the statutory factors concerning parole suitability set forth in section 3041 as well as the Board regulations," italics added].)
"[California Code of] Regulations, [title 15,] section 2402 contains numerous factors regarding both an inmate's unsuitability [fn. omitted] and suitability [fn. omitted] for parole that the Board must consider and rely on to assess whether the inmate poses 'an unreasonable risk of danger to society if released from prison.' ([Cal. Code] Regs., [tit. 15,] § 2402, subds. (a), (c), (d).) These 'matrix of factors . . . contemplates that even those who committed aggravated murder may be paroled after serving a sufficiently long term if the Board determines that evidence of post-conviction rehabilitation indicates they no longer pose a threat to public safety.' (Lawrence, supra, 44 Cal.4th at p. 1211.)
"We review the Board's decision under a 'highly deferential "some evidence" standard.' (Shaputis II, supra, 53 Cal.4th. at p. 221.) [Fn. omitted.] The Shaputis II opinion states that the Board's decision 'is upheld unless it is arbitrary or procedurally flawed.' (Ibid.) It does not specifically define what is meant by 'procedurally flawed.' Elsewhere, however, it states that '[u]nder the "some evidence" standard of review, the parole authority's interpretation of the evidence must be upheld if it is ...