Trial Court: Alameda County Superior Court Trial Judge Hon. Larry J. Goodman Super. Ct. Case No. 76143A)
The opinion of the court was delivered by: Jenkins, J.
CERTIFIED FOR PUBLICATION
Petitioner Joe Denham was convicted in December 1983 of first degree murder of Jose Mendoza, attempted murder of John Tappan, two counts of robbery (both victims), and two counts of kidnapping (both victims). The jury also found true as to each count an arming enhancement pursuant to Penal Code section 12022, subdivision (a).*fn1 Denham is currently serving an indeterminate sentence of 31 years to life.*fn2 His minimum eligible parole date was September 21, 2003.
In April 2010, at a fourth parole hearing, the Board of Parole Hearings (hereafter the Board) denied Denham's request for parole and deferred a new parole hearing for three years. In his petition, Denham challenges the Board's finding that he poses a current risk of danger to society if released on parole. He also contends the Board's decision to apply the 2008 amendments to Penal Code section 3041.5 (known as and hereafter referred to as Marsy's Law) to defer his next parole hearing for three years violated federal and state constitutional prohibitions against ex post facto application of the law.
After the 2010 hearing, the Board denied parole based on (1) the gravity of the offense, (2) Denham's "escalating pattern of criminal conduct," (3) his unstable social history, as manifested by his having been a drug dealer before he was incarcerated, and (4) his past mental state and attitude towards his crime because he is in "denial" and "lacks insight into the causative factors of his conduct, even today."
Denham unsuccessfully sought writ relief in the Alameda County Superior Court and then filed a writ petition in this court on October 21, 2011. After requesting and reviewing the parties' informal briefing, we issued an order to show cause and directed that counsel be appointed on Denham's behalf on January 5, 2012. We have reviewed the return and traverse and considered the oral arguments of counsel. For the reasons explained below, we remand the case for a new hearing before the Board.
FACTUAL AND PROCEDURAL BACKGROUND
The 1983 probation officer's report summarized the facts of the life crime, in pertinent part, as follows: "On December 2, 1982, John Tappan went to the Campbell Village Projects with a black male, known to him by the name of 'Gator', in order to buy some tires. . . . Tappan parked his car in a lot located at the corner of Tenth and Campbell Streets while 'Gator' went to look for the tire connection. 'Gator' never returned. In the meantime, Tappan fell asleep in his car with the car radio on. Tappan woke up to find his battery dead. It is now sometime between 5:00 and 6:00 p.m. Tappan attempted to get a 'jump' for his car, but was unable to get any assistance from the locals at Campbell Village. At some point, Tappan . . . went to the Standard Gas Station at the corner of Seventh and Cypress Streets where he met gas station attendant, Jose Mendoza. Tappan paid Mendoza $10.50 for road service and both victims returned to Tappan's car with jumper cables in hand. [Mendoza] took his car to the scene so as to enable him to 'jump' Tappan's car off the battery. While they were attempting to start Tappan's car, five to six people surrounded them with at least two guns. Tappan was robbed of some jewelry, a knife and two guns that he had on him at the time. Mendoza had a buck knife that he used at work removed from him. Tappan identified Willie Johnson and Joe Denham as two of his assailants at that time. After Tappan was robbed, it was suggested that he was one of 'Grem's boys' by one of [the] attackers, that reference being to Oakland Police Department Vice Officer Everett Gremminger. Mendoza was known to these defendants due to the fact of his employment at the gas station that the defendants had been known to frequent. [¶] At that point, the victims were marched across the street to Prescott School to an enclosed courtyard area. During the walk across the street, defendants Willie Johnson, Michael Aaron, Joe Denham, Richard Bell and Bernard Adams were spotted by Louiell Davis, a lookout for the dope gang they all belong to. Davis saw defendants march Mendoza and Tappan into the schoolyard. A few minutes later, screams and gunshots were heard by Davis, who subsequently saw people running from the schoolyard. [¶] Mendoza was stabbed and shot numerous times and was already dead at the time police arrived at the scene. Tappan was stabbed numerous times and was shot in the face, the bullet lodging in his neck after deflecting off his jawbone. Tappan survived the attack."
B. Previous Parole Proceeding
Before his third parole hearing in 2009, Denham was interviewed by a forensic psychologist. In describing his participation in the life crime, Denham said he "didn't really know what was going on," when he initially joined the men. He described his participation by saying he followed the group as they led the two victims to a schoolyard and he punched one victim one time after being challenged by another assailant to "do something." The psychologist expressed concern about the fact that Denham "did not discuss any of the underlying factors behind why he associated with the co-assailants in the first place. He did not provide any detailed discussion regarding why he felt the need to 'keep the image that I was with them' on that day, and he did not provide any response other than 'I don't know' when he was directly asked why he did not make some effort to intervene. Instead, Mr. Denham continues to assert he was unaware of what was about to take place and unaware of the potential for violence." In the "[c]linical or more current and dynamic domain of risk assessment," the psychologist indicated Denham displayed "mild limitations in his verbalized insight into the causative factors underlying his involvement into the life crime."
At the 2009 parole hearing, the Board members granted Denham a release date for parole. At that time, Denham admitted he threw "a couple of punches at Mr. Tappan." When asked why he had participated in the crimes, Denham said he wanted to be accepted by the guys in the neighborhood. He denied seeing anyone with guns or knives and he only heard the gun, but did not see who did the shooting because he ran. The Board members expressed concern about Denham's explanation of his involvement in the crime, but felt the nexus between the committed crimes and his current threat to public safety did not rise to the level of demonstrating he lacked insight into his crime sufficient to justify denial of parole on that basis.
However, the then Governor reversed the Board's 2009 decision, and denied Denham's request for parole. In pertinent part, the Governor found Denham's explanations for his life crime consistently minimized his conduct by characterizing himself as only a marginal or passive participant in the crime, indicating he had not gained sufficient insight into the circumstances that led to the murder and he had not fully accepted responsibility for his criminal conduct. "The evidence of Denham's lack of insight and refusal to accept full responsibility for the murder renders his life offense still relevant to [a] determination that Denham poses a current, unreasonable risk of danger if released to the ...