The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The Board of Parole Hearings (Board) "grappled back and forth" before denying parole to petitioner David Gary Peaslee who was found to be "very, very close" to receiving parole for a second degree murder committed in 1981. The Board ultimately concluded that petitioner posed a threat to public safety because he did not begin participating in substance abuse programs until 2008. The Board reasoned that petitioner's delay in enrolling in substance abuse programs meant that he had not yet had enough self-help programming to ensure his gains from the programs would be "maintained over time." The Board also considered static factors including the nature of the commitment offense, the trivial motive for the murder, and petitioner's pattern of escalating criminality based on his juvenile record and unstable social history.
In this petition for writ of habeas corpus (habeas corpus petition), petitioner contends the Board's conclusion lacked any evidence in support of its decision to deny parole. He further argues that the denial rests on the static factors surrounding the commitment offense, ignores favorable psychological evaluations concluding that he presented a low risk of criminal recidivism, and failed to draw a rational nexus between the recent participation in substance abuse programs and the potential threat of future violence.
Heeding the recent guidance of our Supreme Court, we review "whether the evidence supported a finding that petitioner posed a current threat to public safety . . . ." (In re Shaputis (2011) 53 Cal.4th 192, 199 (Shaputis II).) In doing so, we are mindful that "it is not for the courts to reweigh the evidence before the Board . . . ." (Id. at p. 199.) Nonetheless, as the high court has reiterated, "the 'some evidence' standard 'certainly is not toothless.'" (Id. at p. 215, quoting In re Lawrence (2008) 44 Cal.4th 1181, 1210.)
After examining the record, we conclude that no evidence supports the Board's denial of parole based on petitioner's "late" participation in substance abuse programs. Nothing in the record indicates that drugs or alcohol played a role in petitioner's commitment offense or that he ever had a substance abuse problem. Thus, the Board's stated concerns about petitioner's substance abuse lack evidentiary support. We also reject the Board's reliance on the circumstances of the commitment offense and static factors to support the denial because there is no modicum of evidence to support a rational nexus between those facts and current dangerousness. Accordingly, we grant the petition for writ of habeas corpus.
A jury convicted petitioner of first degree murder and robbery in 1983. In an unpublished decision, this Court reversed the convictions for lack of a unanimity instruction. After the case was remanded, petitioner entered a plea to second degree murder. His minimum eligible parole date was in 1992.
At petitioner's first parole hearing in 1991, he was denied parole for a year and directed to enroll in a Category "T" program.*fn1 Petitioner participated in the program, which involved rational behavior training including "Criminal Thinking I and II, anger management," and "Alternatives to Violence." In 1992, he was denied parole in order to complete the Category "T" program. In 1994, petitioner agreed to a one-year denial based on a disciplinary action arising out of a dispute with his cellmate who was smoking in a nonsmoking area. In 1996, petitioner received a "128" counseling "chrono" for "aggressive behavior." Petitioner has not had any disciplinary actions since then. In 1999 and 2001, petitioner was denied parole and admonished to engage in self-help programs. In 2004, he was denied parole to get an update to his psychological report. In 2006, he was denied parole with no new admonitions.
Petitioner was denied parole in November 2008 and admonished to engage in self-help programs, earn his general educational development (GED) certificate, get a new psychological evaluation, and -- for the first time -- participate in Alcoholics Anonymous (AA) and Narcotics Anonymous (NA). Petitioner immediately enrolled in AA and NA. Due to a waiting list, petitioner was not able to begin attending AA until February 2009. Petitioner earned his GED in 2009.
In October 2009, the Board denied parole for three years. In June 2010, petitioner sought habeas corpus relief, which was denied by the trial court in October 2010. In November 2010, petitioner filed a habeas corpus petition with this court. At this court's request, the People filed an opposition. Petitioner subsequently submitted a reply. This court issued an order to show cause, with the return by the People to be filed in the trial court.
Petitioner requested and was appointed counsel in the trial court. The People filed a return and petitioner filed a traverse. In October 2011, the trial court denied the habeas corpus petition. The court reasoned, "Given the presence of alcohol/drugs in the crowds that Petitioner associated with and his admission that in the past and prior to his incarceration, he drank and used drugs, the Board's determination that more programming is needed in the area of alcohol/substance abuse is not unfounded. While some reports (Pritchard's 2009 evaluation) questioned why alcohol/substance [abuse] was an issue, other reports (the Group Therapy CAT-T report) specifically noted that Peaslee acknowledged use of alcohol and marijuana at 16 or 17, and denied a 'significant' history of alcohol or drug 'abuse.' The CAT-T report further noted that the murder victim was a drug dealer. Moreover, the facts of the commitment offense established that after killing the victim, Petitioner and his co-defendant stole the victim's methamphetamine."
In November 2011, the present petition was filed with this court.
Petitioner's Criminal History Prior to the Commitment Offense
Petitioner was 13 years old when he "started getting in trouble." As a juvenile, he committed a child molestation, auto theft, and two burglaries. Petitioner twice ran away from his juvenile camp placements. Petitioner explained that he got into trouble because he felt "left out" when his parents divorced and he was abandoned by his father. At the time of the commitment offense, petitioner was not on any form of supervised release and his prior juvenile record had been expunged.
The Commitment Offense*fn2
Sometime in early 1981, petitioner sold a 1969 Camaro to the victim, Bradley Greene, on the condition that the car be used for parts. Petitioner believed Greene breached that condition and planned to "get the car back." On August 20, 1981, petitioner learned that the car was parked in front of Steven Gregory's house. Petitioner contacted Deadru Tinga for help in recovering the car. While en route to the car's location in Stockton, petitioner explained to Tinga "that he planned to use force if necessary to recover the Camaro." Petitioner also told Tinga that "he had a 'deal' with Greene which involved guns and drugs." The deal was a ruse to rob Greene of the cash without providing the promised M-16 automatic rifles.
The scheme announced to Tinga was not petitioner's first plan to rob Greene. Petitioner had earlier devised a plan with Steven Gregory to rob and kill Greene after Greene obtained the money to buy the guns. The earlier plan had been abandoned on the day before petitioner enlisted Tinga to help rob Greene.
At Gregory's house, Tinga, Gregory, and petitioner went into a back bedroom to locate a bag of marijuana while Greene remained in the living room. Petitioner also was looking for methamphetamine that Gregory reported Greene to have. Petitioner announced, "We'll get him out in the car, you'll see the signal, you'll know. And we'll take care of him out there." Petitioner, Tinga, and Greene went out to the garage where petitioner hit the victim in the face twice. Tinga placed Greene in a "head-lock" and petitioner hit the victim in the face five or six more times. While Tinga held Greene down, petitioner -- who weighed 300 pounds at the time -- jumped up and down on the victim six or seven times.
Tinga testified that Greene was rendered unconscious and gasping for air. Petitioner directed Greene to be loaded into petitioner's car. While the victim was being placed into the car, petitioner kicked him in the head several times. Tinga and defendant drove to Bear Creek. There, they removed a wallet, cigarettes, and a small bag of methamphetamine from Greene's pockets. Petitioner dragged Greene out of the car and shot Greene "several times in the head."
On the way back to Gregory's house, Tinga counted $600 to $700 in Greene's wallet. At the house, Gregory and Tinga searched for an ounce bag of methamphetamine that petitioner believed Greene to have stashed there. Petitioner gave Tinga and Gregory $200 each.
Realizing that petitioner had left expended shotgun shells at the scene, Tinga and Gregory returned to Bear Creek. There they unsuccessfully searched Greene's pockets for the missing methamphetamine. They ...