In re Lawrence, 59 Cal.Rptr.3d 537, 150 Cal.App.4th 1511 (Cal.App. Dist.2 05/22/2007)

[1] IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

[2] No. B190874

[3] 59 Cal.Rptr.3d 537, 150 Cal.App.4th 1511, 07 Cal. Daily Op. Serv. 5719

[4] May 22, 2007

[5] IN RE SANDRA DAVIS LAWRENCE ON HABEAS CORPUS.

[6] ORIGINAL PROCEEDING on petition for writ of habeas corpus. Petition granted, vacating the Governor's decision to reverse the Board of Parole Hearings's order granting parole to Sandra Davis Lawrence, and reinstating the Board's parole release order. (Los Angeles County Super. Ct. No. A174924).

[7] Post-Conviction Justice Project / University of Southern California Law School, Carrie L. Hempel, Michael J. Brennan and Heidi L. Rummel for Petitioner.

[8] Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, J. Conrad Schroeder, Jennifer A. Neill and Gregory J. Marcot, Deputy Attorneys General, for Respondent.

[9] The opinion of the court was delivered by: Johnson, J.

[10] CERTIFIED FOR PUBLICATION

[11] This habeas corpus proceeding arises after Governor Schwarzenegger's (Governor) second reversal of a Board of Parole Hearings's (Board) grant of release on parole, decided in 2005. These two reversals were the third and fourth time a Governor has reversed such a grant of parole to this petitioner in the past dozen years. On August 24, 2006, we issued an order to show cause in order to review the Governor's action. Finding the Governor lacked "some evidence" the petitioner's release on parole would represent an "unreasonable risk" of danger to the community under either state or federal constitutional standards, we grant a writ vacating the Governor's reversal and reinstating the Board's 2005 grant of a parole release to petitioner.

[12] 1. Lawrence's Personal History, The Crime and Its Aftermath

[13] Sandra Davis Lawrence (Lawrence), an African-American woman, was born and raised in Birmingham, Alabama, the youngest of 12 children. At the time of her birth, her father was 68 and her mother 40.*fn1 As the youngest child, Lawrence spent much of her teenage years as a nanny for her older siblings' babies and young children while the parents worked or attended college, as well as a caretaker for a mentally retarded sister. After graduation from high school as an average student, Lawrence left Alabama for Chicago where she lived with one of her brothers and his wife. She soon had what was her first serious boyfriend, William Lawrence, got pregnant, married him and later had a second boy. Along the way, her husband took up again with his previous girlfriend. Lawrence finally gave up, and fled with her two young boys to Los Angeles where another married brother and another sister lived.

[14] Lawrence's Los Angeles brother was an established dentist while the sister was Sandra's next youngest sibling, with whom she had always had a contentious and competitive relationship. She took a job as a receptionist in her brother's dental office. Also working for the brother in his dental practice was another dentist, Robert Williams (Mr. Williams), who was married to Rubye Williams (Mrs. Williams). Lawrence and Mr. Williams were soon drawn into a serious affair.

[15] Mr. Williams rented an apartment for Lawrence and provided her with an automobile as well. This relationship started in June 1970 and Mr. Williams was spending nearly half his time with Lawrence, frequently moving into her apartment for days at a time. At some point Mrs. Williams learned of the affair and began pressuring the husband to end it, threatening to take the couple's children and leave him. Mrs. Williams frequently drove to Lawrence's apartment when Mr. Williams was there and left notes on the door and sometimes exchanged vehicles, leaving hers and taking her husband's. There were even three-way, emotional and contentious telephone conversations among the wife, the husband, and the mistress.

[16] Mr. Williams repeatedly told Lawrence he was going to divorce his wife and marry her. But when he failed to follow through with any of these promises, Lawrence finally told Mr. Williams it was over and terminated the relationship in late 1970.

[17] On February 10, 1971, Lawrence was celebrating her 24th birthday at a family party held in her brother's home when Mr. Williams arrived unexpectedly and uninvited. He declared to everyone he was going to leave his wife and return to Lawrence, if she would have him. Lawrence and Mr. Williams spent the rest of that day and the weekend together, reaffirming their love and making plans for their future together. Mr. Williams was then in the process of opening his own dental office and wanted Lawrence to get a dental assistant certificate and join him in this venture.

[18] Mr. Williams returned to his home Monday morning with the avowed intent of informing his wife he would be seeking a divorce in order to marry Lawrence. However, later that day he called Lawrence and told her he could not go through with it. He could not stand losing his children, and would be staying with his wife. During the conversation, he mentioned Mrs. Williams was at the new dental office waiting for the delivery of some equipment.

[19] Lawrence was enraged at Mr. Williams's betrayal. She eventually explained her state of mind and motivation during therapy with prison psychologists. She took out her anger at Mr. Williams on Mrs. Williams, perceiving her not as a human being but as an obstacle. It was Mrs. Williams whose pressure on Mr. Williams was preventing Lawrence from having a future with him. In a rage, she drove over to the dental office to vent her anger on Mrs. Williams. Anticipating a possible confrontation she took along a potato peeler and also stopped off at her sister's home on the way to pick up a pistol the sister kept under a mattress. There was a struggle in the office, with the two rolling around on the floor, what Lawrence later characterized as a regular "cat fight." Finally, Lawrence pulled out the firearm, fired wildly at Mrs. Williams wounding her in the hand, arm, leg, and neck, and then stabbed her with the potato peeler.

[20] Lawrence returned to her sister's home and replaced the pistol under the mattress, then went to her brother's house and collapsed. A few weeks later, the sister discovered the pistol had been fired. She contacted the police and told them the handgun had been used and it wasn't her or anyone in her household. She also said Lawrence had told family members she had killed Mrs. Williams as a birthday present to herself.

[21] A few weeks after Mrs. Williams's death, Lawrence was in Chicago in connection with an industrial accident lawsuit she had filed in that city. Her family called and told her the FBI said there was a fugitive warrant for her arising from the death of Mrs. Williams. Lawrence flew back to Los Angeles, but during the flight decided she could not turn herself in at that time. So she fled on a bus to Las Vegas. She remained there for three months, supporting herself as a gambler, then used her gambling winnings to move to Puerto Rico where she stayed for three years, earning a living in a real estate agency. Her next stop was New York City where she worked for two years in advertising sales for a local television publication. Then she moved to Pennsylvania where she trained as a cosmetologist. She used that training to work as a hairdresser, cosmetology teacher and later a beauty salon manager.

[22] After three and a half to four years living in Pennsylvania, Lawrence's conscience caught up with her. She decided she should return and turn herself in. So in 1982, some 11 years after the Mrs. Williams homicide, Lawrence returned to Los Angeles, hired an attorney and surrendered to the police. Thereafter, she pled not guilty and suggested the now despised Mr. Williams may have committed the crime.

[23] The case went to trial in 1983. Prior to trial, according to the probation report, Lawrence turned down a plea offer that would have resulted in a two-year prison sentence. When the jury returned a guilty verdict of first degree murder, the trial judge imposed a sentence of seven years to life-the standard statutory penalty for murders committed before 1978.

[24] The probation report indicated Lawrence had no prior juvenile or adult record, yet recommended the court deny probation based on the seriousness of the current conviction. But the report's evaluation also included the following comments. "Defendant presented herself as an intelligent, articulate, and thoughtful woman who stands convicted of a premeditated murder which occurred 12 and a half years ago. Defendant fled the jurisdiction of the court and has now surrendered herself to the court and has been found guilty by a jury of the crime. . . . [¶] . . . It is undoubtedly true that defendant is not now the same person she was when the crime was committed and it is not expected that defendant would be involved in another similar crime. However, given that defendant has been convicted of first degree murder, probation does not appear to be an appropriate recommendation."*fn2

[25] 2. Lawrence's Prison History and First Three Positive Parole Recommendations

[26] Lawrence received her initial "Psychological Evaluation" in September 1984 while awaiting the results of her appeal from the 1983 conviction. The examining psychologist concluded Lawrence was narcissistic, lacked emotional insight, repressed her emotions and avoided reality through excessive activity. The examining psychologist predicted these characteristics may lead to problems with other inmates and staff. He recommended more altruistic involvement in activities benefiting others. The report also characterized Lawrence as "explosive" and to be a "high flight risk if she loses her appeal."

[27] Lawrence indeed lost her appeal when this division, in an unpublished opinion authored by Justice Leon Thompson, affirmed her conviction on November 14, 1984. Contrary to the prediction, however, she did not escape or attempt to escape-nor has she during the ensuing nearly 23 years of confinement.

[28] There is a sharp contrast between that rather negative psychological evaluation in 1984 and Lawrence's next such evaluation some five years later, in October 1989. By that time she was living in Miller A. Honor house, was active as a plumber for the prison and as a tennis coach for other inmates while also having earned a BS in computer science from Laverne University. The examining psychologist gave a positive review of her health, intelligence, and overall psychological condition. While he had found she exhibited some indicia of an "avoidant personality disorder" he also reported that she has "much to offer any community." Most significantly, he found she no longer represented a danger to society.

[29] Because of the conflict between the 1984 and 1989 evaluations, a full battery of tests was ordered. The MMPI revealed Lawrence as being at a borderline between normal and mildly disturbed on the "sociopathic or unstable" scale. The "Thematic Apperception" test revealed fear of aging, a lack of hope and quiet resentment. Her verbal IQ was 101 and her performance IQ was 95 for an overall IQ of 99. In the accompanying interview she admitted the crime but at that point could not remember her motivation. The examiner rated her violence potential as indeterminable, but substantially reduced from the time the murder occurred. The final recommendation was that Lawrence needed further therapy to explore the motive for her crime.

[30] The next psychological assessment in August 1991 recommended intensive psychotherapy based on a finding Lawrence exhibited "features" of three psychological "disorders"-borderline personality disorder, antisocial disorder and avoidant personality disorder. In an addendum to this August report dated October 3, 1991, the examining psychologist reported Lawrence had appealed and requested a follow-up interview. She reportedly became angry during the interview, feeling the psychologist had been biased in his appraisals of her psychological condition. The examining psychologist concluded she might be "moderately psychopathic," possessing a narcissistic personality disorder with antisocial features. Nonetheless, he concluded she had made significant progress through psychotherapy and recommended she participate in once a week group therapy sessions.

[31] Only a little over a year later, Lawrence's November 1992 psychological evaluation reflected remarkable improvement. For the first time, the examining psychologist reported Lawrence looked into herself and recognized the monstrous dimension of her crime. She also now comprehended her psychological motivation-that she killed the wife to get back at the husband. This evaluation also involved administration of the same MMPI tests as Lawrence had taken in September 1990. This time, all the results were positive including those that had been negative in the past. The psychologist concluded he would anticipate even further improvement in a less controlled environment He assessed Lawrence's violence potential at the time of the crime was greater than the average person but now was substantially decreased.

[32] The rather brief 1993 psychological evaluation made similar findings and pointed out Lawrence's only negative reports were a few "128(a)"s for being late to work assignments or classes. The report ended with the appraisal that Lawrence no longer posed a significant threat to public safety should she be released on parole.

[33] On December 28, 1993, over 13 years ago, a unanimous parole Board panel made the first of what has become four positive recommendations to grant a parole to Lawrence. Among the reasons: a finding Lawrence committed the crime as a result of significant stress. Findings she demonstrated motivation and growth and a greater understanding of herself and the crime she committed. A finding there was a reduced probability of recidivism. A finding she exhibited signs of remorse. Findings she has earned a BS in computer science, she was in the initial group of tutors in a program that now has spread to all the state's prisons, and she had remained "disciplinary free" in the decade she had been imprisoned. And, finally, a finding the examining psychologists reported she had made sufficient progress that she no longer represented a significant danger to public safety.

[34] The Board used a matrix applicable to first-degree murderers who committed their crime before 1978. It assigned her the maximum term available under that matrix, based on the great violence involved in the murder she committed combined with her having fled prosecution for over 11 years. This gave her a term of 204 months from which was deducted 40 months for her discipline-free 10 years at the institution. This yielded a net 164 months term (13 years 8 months) before she was eligible for release. Accordingly, the proposed release date was set almost three and a half years in the future-July 29, 1997.

[35] On March 11, 1994, Governor Pete Wilson reversed the parole Board's recommendation, reciting two reasons. First he argued "public safety" may require a lengthier incarceration. Second, he opined the Board had given inadequate consideration to the "public interest in a punishment proportionate to the seriousness of the crime." The rationale for these findings gave primary credence to the earlier psychological reports and tests reflecting various psychological disorders as opposed to the more recent reports finding no current evidence Lawrence still was subject to those problems. The veto report also stated the base term should be longer (even though the 1970 matrix the parole Board employed was the one the statute required it to use and the base term was the maximum available for pre-1978 first degree murderers).

[36] Lawrence's December 1994 psychological evaluation continued the positive trend of the previous few years. She had made further progress despite the serious disappointment of the Governor's veto of her 1997 release date. The examining psychologist found no psychopathology of any kind at this point. Indeed he found she would not have surrendered back in 1982, if the earlier narcissistic, antisocial or borderline personality disorder diagnoses had been correct. But assuming they had been correct at that time there was no evidence any of those disorders continued in 1994. The psychologist found Lawrence's violence potential outside the institution was that of an average citizen and was greatly decreased from the time she committed the murder of Mrs. Williams some 23 years earlier. He did recommend as a condition of parole she continue psychotherapy and not drink alcohol.

[37] The July 1996 psychological evaluation reported the first glitch in many years, one that turned out to be temporary, however. Lawrence received her very first "disciplinary CDC 115" on January 6, 1996 for allegedly stealing excess food from the kitchen. This troubled the examining psychologist. Nonetheless, he found Lawrence still exhibited no indicia of any psychological disorder. Furthermore, that psychologist stated no drug therapy would be required should Lawrence be released on parole.

[38] A June 1997 evaluation reported the favorable news Lawrence had successfully appealed her CDC from the previous year and thus still had no disciplinary record whatsoever. The psychologist viewed this as a positive and encouraging response to what had been an emotionally frustrating experience for Lawrence. That frustration had been compounded by sorrow because Lawrence's mother had died-a mother who had repeatedly pled for her daughter to be paroled so she could visit the ill and aged parent before her death. Once again, the examining psychologist reported an absence of any psychiatric disorder and further found no evidence of dangerousness outside a controlled setting.

[39] Succeeding psychological evaluations repeated the same pattern. Lawrence no longer needed psychotherapy, even though she desired to continue, because she no longer qualified. That is, she no longer tested as having any psychiatric disorder.

[40] In both 2000 and 2001, Lawrence's parole hearings resulted in split decisions with one commissioner voting against release. This required en banc consideration and each time parole was denied. But 2002 brought a different outcome, the second of the four positive recommendations Lawrence be granted parole.

[41] In a report dated November 8, 2002, by unanimous vote the panel hearing Lawrence's case recommended she receive parole. The reasons given parallel the findings in her favorable recommendation in 1993. This time, however, there was more psychiatric evidence she had taken responsibility for her crime and felt greater remorse and that she would not be a danger to public safety. She also had a much longer record as a model prisoner-only a few credits short of a Masters in Business Administration, membership in the plumbers union, major contributions to a number of educational and public service programs at the prison, and the like. This time there were some minor changes in the computation of her term. The Board calculated 216 months for the aggravated term and 12 more for use of a firearm. However, from this it deducted 64 months in post-conviction credits for a net term of 152 months (12 years 8 months, in contrast to the 13 years 8 months calculated in 1993). Of course, by this time Lawrence already had been imprisoned far longer than 152 months-some 18 years of an original "seven years to life" sentence. The panel chair concluded the hearing by congratulating Lawrence and telling her, "You've earned it."

[42] On April 7, 2003, Governor Gray Davis reversed Lawrence's second positive parole recommendation.

[43] A little over a year later, on May 18, 2004, another unanimous parole panel recommended granting parole to Lawrence. This time the net term was calculated at 130 months (10 years 9 months). After reciting essentially the same list of findings as in the previous two parole recommendations, the Board highlighted Lawrence had no "115s," that is, disciplinary actions in her nearly two decades at the prison. Although she had received a few "128(a)"s for being late, the last of those had been received a decade earlier in April 1993. An April 5, 2004 psychological evaluation had once again been favorable and reported she was not a danger to public safety and that she understood the seriousness of her crime and what had led to it. The Board did recommend a drug condition requiring counseling and monitoring for a year, although it did not expect a problem but merely wanted to provide assistance to Lawrence during the transition.

[44] A month later Governor Schwarzenegger reversed this third positive parole recommendation. He based this veto on a finding Lawrence's release would represent an unreasonable risk of danger to the public safety. The report stated the murder was a vicious crime committed for an incredibly petty reason and that was "reason enough to pose an unreasonable risk to public safety."

[45] 3. The 2005 Board Once Again Recommends Lawrence be Granted Parole

[46] On August 25, 2005, a panel of the Board of Parole Hearings filed a 98-page report, incorporating other documents and including a full transcript of the hearing. The panel consisting of Presiding Commissioner Inglee and Deputy Commissioner May unanimously recommended Lawrence be paroled.

[47] The report reflects the panel heard testimony from Lawrence, considered her prison record, read some 24 letters from Lawrence's family and other supporters, studied the full report issued by the Governor in reversing the May 18, 2004 Board recommendation Lawrence be released, and listened to arguments from the District Attorney as well as Lawrence's attorney. The panel commended Lawrence for her resilience after experiencing the disappointment of a gubernatorial veto of her third parole release from imprisonment. It then recites a number of favorable developments since the Governor's action: "a laudatory chrono" from a staff member on the "second watch" stating Lawrence is a "team player who interacts with everyone in a courteous manner." Another chrono shows her continued participation in a conflict transformation program. Still others discuss activities that improve even further her employability, such as participation in Toastmasters, a Women's First Job Fair, etc., as well as religious and charitable work.

[48] Other changes and developments contained in the report include the fact she had obtained her Masters in Business Administration in June, 2005. She also had updated her computer skills and received above average evaluations in her "office services" assignment. The file also contained a letter from a lieutenant on the prison staff commending Lawrence for her work as a physical fitness trainer during the previous five years, stating she is "a superb motivator and trainer." This was accompanied by a letter bearing the signatures of 78 physical fitness trainees praising Lawrence for what she "has done for us in reference to getting some self-esteem, along with some know-how, along with mental strength and physical strength." This letter goes on "to commend her on being just one person that has to deal with hundreds of hundreds of women with different personalities and attitudes . . . and still continues to get up each morning and encourage and teach us how to be just as strong . . . I truly believe that if a person such as Ms. Lawrence gives so much of herself to so many people, then the least we can do is give something back."

[49] Other letters discussed in the report came from people outside the institution. One from the English instructor in her college program run through the University of LaVerne saying she was a good student. Sister Mary, coordinator of the Partnership for Re-entry Program writes: "Ms Lawrence . . . is indeed a remarkable woman. She's applied and been accepted into the Archdioceses Partnership for Re-entry Program. The Program [lasts] four years, and upon release, where the mentor and team meets with the participant weekly. I am confident of both Sandra's and the team's success in working together." A Sister Agnes adds reassurance Lawrence will have the full support of the Los Angeles Archdioceses Partnership for Re-entry if paroled to that county.

[50] The Sisters are backed up by a letter from the Bishop of the Dioceses of San Bernardino, who is a regular visitor to the California Institution for Women. He writes: "I have known Sandra Lawrence for the past number of years. I urge that you would grant Sandra Lawrence release from prison, knowing that she will be a productive member of society if given a chance." This message was echoed in letters from several other outside observers who regularly visit the institution for various purposes and have had the opportunity to know Lawrence.

[51] Notably, no one spoke or wrote in opposition to a grant of parole, with the sole exception of a pro forma argument from the District Attorney. Not the victim's now adult children. Not the victim's husband. Nor any other family or friend of the victim. Not even a representative of a "victims' rights" organization.

[52] After reviewing all the evidence post-dating the Governor's reversal of the 2004 Board recommendation-as well as the earlier evidence relevant to her suitability-the panel announced its decision orally. The following excerpts from that portion of the hearing capture the panel's findings and its rationale for, once again, recommending Lawrence be released on parole.

[53] "The panel reviewed all information received from the public in relying on the following circumstances in concluding that the prisoner is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The prisoner has no juvenile record of assaulting others. While in prison, she [increased her ability] to functioning within the law upon release through the participation of [sic] educational programs, and in this regard she recently completed her Masters of Business Administration, many self-help programs, vocational programs, institutional job assignments and leadership responsibility in positions within the prison. The commitment of the crime was as the result of stress and life, was spurned by a lover in favor of his wife, lack of a significant history of violent crime prior to the instant offense, because of maturation, growth, greater understanding and advancing age has reduced the probability of [recidivism]. . . . (Sic.) [¶] . . .

[54] "She has realistic parole plans, which includes a job offer and family support, has maintained close family ties while in prison through letters and visits, has maintained positive institutional behavior which indicates . . . that she understands the nature and magnitude of the offense, and accepts responsibility for her criminal behavior and has decided to change towards good citizenship. As other information in this regard . . . she completed both her undergraduate and Masters degree in Business Administration while in prison. . . . I'm going to refer . . . to the psychological report of April the 5th, 2004, Peter Hugh, M.D. In that regard, he is supportive. In his April 2004 assessment, Dr. Hugh states:

[55] `The inmate has not demonstrated herself to be dangerous within a controlled setting. I concur with the opinion of Dr. McDaniel as she has demonstrated a tremendous understanding of her early life and result, and the sequence and events that led up to this incarceration. I believe that with passage of time and years and maturity, and her current level of (indiscernible) potential for risk would be greatly decreased. She has been able to look at her past relationships, understands the type of predatory and pathological men that she has been associated with. Ms. Lawrence is now able to look at her behavior and formulate a number of different options in order to avoid conflict and violence in other settings and situations. She has shown motivation to improving herself, not only through vocational pursuits, but also through self-initiated efforts. I believe that Ms. Lawrence has the resources necessary to become a productive member of society. She has learned to look at motivations behind her behavior and to assess each situation more realistically, and to make informed and thoughtful decisions. I believe she would be able to maintain a strict adherence to rules and regulations that govern our society should she be granted an opportunity for parole.'[*fn3 ]

[56] "In regard to the setting of terms, we now go to the basic terms of [commitment]. The basic life offense for what's occurred is first degree murder. That is 187 of the Penal Code. The offense occurred on February the 15th, 1971. The term is July from the matrix located in the CC&R title 15 at 2282[b], first degree murder. The offense committed on or before 11/7 of 1978. The panel finds the category IIIC is appropriate. Death resulted from severe trauma . . . . The victim was stabbed and shot with a firearm three or four times, and that the inmate had little or no relationship with this victim prior to the actual death, other than telephone and letter communications. The panel assessed 192 months as the base offense, and knows that this is the middle term. The panel for the base term gave 192 months, and there is a [24]- month enhancement for the use of firearms, for the total term calculated at 216 months. Post-conviction factors credit from trial date of 1983 to today's date, 8/25, 2005, is a total of 86 months. No time was taken off because the prisoner had no 115 disciplinary actions. So the total period of confinement is 130 months."

[57] After discussing the terms of her parole including requirements she participate in alcohol and drug programs, the panel chair addressed Lawrence directly.

[58] "And I want to tell you that Mr. May and I had a lot of discussion of what you would do in this regard. And we came to this conclusion, and we think it's a good decision. And we wish you a great deal of luck and success in this process that you go through."

[59] Despite the Board's good wishes Lawrence ran out of luck not long after she walked out of the hearing room, as her recommended release moved to the Governor's desk.

[60] 4. The Governor Reverses the 2005 Parole Recommendation

[61] Having reviewed and evaluated the same factors and supporting evidence as the Board, the Governor arrived at the opposite conclusion. He filed a report reversing the recommendation Lawrence be granted release on parole. While the Board's positive recommendation was announced orally, the Governor's reversal appeared in a written report dated January 11, 2006. We include that report in its entirety.

[62] On the morning of February 15, 1971, Sandra Lawrence murdered Rubye Williams by shooting and stabbing her multiple times.

[63] Ms. Lawrence and the victim's husband started an affair several months before the murder. Mrs. Williams knew about the affair and threatened to leave Mr. Williams if he did not break it off. At some point, the affair ended.

[64] On the morning of the murder, Mr. Williams telephoned Ms. Lawrence and mentioned that his wife was at his dental practice waiting for deliveries. After the call, Ms. Lawrence went to her sister's home, let herself inside, and took a gun without permission that was kept under a mattress. Ms. Lawrence then went to Mr. Williams's office. Following a confrontation at the office with the victim, Ms. Lawrence pulled out the gun and began shooting - striking Mrs. Williams in the arm, hand, neck, and leg. As Mrs. Williams lay on the floor, Ms. Lawrence stabbed her multiple times. After leaving the scene, Ms. Lawrence returned the gun to her sister's home and went home to bed. Mrs. Williams's dead body was found by Mr. Williams.

[65] Two months later, Ms. Lawrence fled the state. For more than 11 years, she lived in different states and Puerto Rico using various aliases. Although she eventually returned to California and surrendered to authorities, she denied any involvement in Mrs. Williams's murder and instead tried to blame Mr. Williams. Despite her not-guilty plea, she was convicted by a jury of first-degree murder and sentenced to an indeterminate life term in prison. The judgment was affirmed on appeal.

[66] At the time of the murder, Ms. Lawrence was 24 years old and had no previous criminal record. Since her incarceration, while Ms. Lawrence has been counseled eight times for misconduct, including as recently as 2005, she has avoided any disciplinary actions. She also has worked to enhance her ability to function within the law upon release. She has, since my last reversal of the Board's decision to grant Ms. Lawrence parole in 2004, earned a Master's degree in Business Administration. Prior to that, she earned her Bachelor's degree in Human Development and an Associate of Arts degree. She received vocational training in data processing, word processing, and plumbing and has worked within the institutional setting as a library porter, which is her current position, and as a plumber, fitness trainer, and food manager's clerk. Ms. Lawrence has continued to avail herself of self-help and therapy, including Conflict Transformation Skills, Pathways to Wholeness, an array of substance-abuse programs, Stress Management, and Anger Management. She has participated in charitable events, a job fair, Toastmasters, Friends Outside programs, and other activities. Moreover, she has established and maintained seemingly solid relationships with family and others and has made realistic parole plans in Los Angeles for housing in a residential program and employment at a local newspaper. These are all factors supportive of Ms. Lawrence's parole suitability.

[67] But as stated in my 2004 decision, the murder perpetrated by Ms. Lawrence demonstrated a shockingly vicious use of lethality and an exceptionally callous disregard for human suffering because after she shot Mrs. Williams - four times - causing her to collapse to the floor, Ms. Lawrence stabbed her repeatedly. And the gravity alone of this murder is a sufficient basis on which to conclude presently that Ms. Lawrence's release from prison would pose an unreasonable public-safety risk. She made it a point to arm herself, not with one weapon but with two, and show up at a location where she knew she would find her victim. She told the 2002 Board that she did this because "I always viewed [Mrs. Williams] as the obstacle in my fantasy romance. That she was the one that was keeping me from having what I wanted. So in my mind, it was natural for me to confront her as though she would disappear . . . ." Ms. Lawrence made similar comments to the 2005 Board and said that she saw Mrs. Williams as her "problem." This was a cold, premeditated murder carried out in an especially cruel manner and committed for an incredibly petty reason. According to the appellate decision, Ms. Lawrence told a relative that the killing was a "birthday present" to herself. Ms. Lawrence's birthday was two days before the murder.

[68] Ms. Lawrence was categorized in early prison reports by mental-health evaluators as sociopathic, unstable and moderately psychopathic. Subsequent mental-health evaluations have been more favorable and include low risk assessments. For many years, Ms. Lawrence denied killing Mrs. Williams, but since has admitted that she committed this crime. She says that she fully understands and is sorry for what she did. At the 2004 parole hearing, Ms. Lawrence said that she "wasn't shooting at [the victim]" and she "didn't even know the gun was loaded." She told the 2005 Board that she brought the gun with her for protection, and that she had no intent to physically harm Mrs. Williams when she went into the dental office. She maintained at the 2005 hearing that, even though she was only two feet from Mrs. Williams when she fired the gun, she did not intend to kill her and stabbing Mrs. Williams afterwards, with the metal peeler that "had about a two-inch blade," was the result of "just [being] in a fit of rage - not to break skin, not to hurt her."

[69] The 2005 Board concluded that the "commitment of the crime was the result of stress and life, was spurned by a lover in favor of his wife. . . ." Regardless of whether this is accurate, there is evidence in the record that any stress under which Ms. Lawrence was operating at the time was not of such level or significance to mitigate her murderous conduct. Ms. Lawrence told the 2005 Board that she "had lost all reasonability" and that after the attack, "I [knew] I had injured Mrs. Williams, and it frightened me to death at that point, that I had injured her and she wasn't moving. I wasn't in a state of mind to know whether she had a pulse or she was still alive. I was in such an emotional state at that point." Yet, as Ms. Lawrence herself admitted to the 2005 Board, she returned the gun to her sister's home, even put it back under the mattress, right after murdering Mrs. Williams. The Commissioner noted the rationality of this behavior. Ms. Lawrence additionally told the 2005 Board about how, just after returning the gun, she proceeded to another sister's home and "went to sleep on her couch" before ultimately fleeing the state.

[70] Ms. Lawrence has been incarcerated nearly 24 years now and has made creditable gains during this time. But after carefully considering the very same factors the Board is required to consider, I find the factors weighing against Ms. Lawrence's parole suitability presently outweigh the positive ones tending to support it. Accordingly, because I continue to believe that her release from prison would pose an unreasonable risk of danger to society, I REVERSE the Board's 2005 decision to grant parole to Ms. Lawrence.

[71] On August 24, 2006, this court considered Lawrence's petition for writ of habeas corpus, and issued an order to show cause. Although we receive such petitions regularly, this is the first time this court has issued an OSC in order to examine a Governor's reversal of a Board grant of parole in such a case.

[72] DISCUSSION

[73] I. STANDARD OF REVIEW

[74] The California Supreme Court has formulated a standard of review in parole denial cases, a "some evidence" test, based on the due process requirements of the California Constitution. Meantime, the Ninth Circuit has constructed a standard of review in such cases based on the due process clause of the U.S. Constitution. This federal standard applied by district courts in the Ninth Circuit also uses the "some evidence" language-requiring affirmance of the decision denying parole if that decision is supported by "some evidence." Thus, it is not absolutely clear there indeed are two different standards of review-a California state standard and a federal standard. But it is clear the Ninth Circuit has added content to the federal test not yet found in the California Supreme Court's elaboration of its "some evidence" standard. Accordingly, we will discuss both and apply each to the Governor's reversal of the Board's recommendation Lawrence be released on parole.

[75] A. Standard of Review Under California Due Process

[76] In a pair of recent opinions the California Supreme Court has outlined the courts' scope of review under the California Constitution when a Governor overturns a Board's grant of parole to a prisoner serving an indeterminate sentence. Rejecting the Governor's position the courts had no role in reviewing nor power to reverse a Governor's veto of a Board's positive recommendation, in In re Rosenkrantz the Supreme Court held, "[t]o the extent the Governor asserts that the court is not authorized to determine whether the Board's parole decision has a factual basis and thus satisfied the requirements of due process of law, we disagree. . . ."*fn4 [C]onstitutional and statutory provisions . . . set forth standards and criteria that limit the Governor's review of a parole decision . . . and give rise to a protected liberty interest under the California due process clause."*fn5 "Under California law, this liberty interest underlying a Governor's parole review decisions is protected by due process of law."*fn6

[77] But this same decision while granting prisoners judicial review when either a Board or Governor denies them parole, also took away much of the courts' ordinary power when reviewing those determinations. First, the Supreme Court addressed judicial review of a Board's decision. "[W]e conclude that the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation."*fn7 Then the Court held, "the courts properly can review a Governor's decisions whether to affirm, modify, or reverse parole decisions by the Board to determine whether they comply with due process of law, and that such review properly can include a determination of whether the factual basis of such a decision is supported by some evidence in the record that was before the Board."*fn8

[78] Other than reiterating the "some evidence" standard of review, the Supreme Court's second opinion bearing on the parole approval process for life prisoners, the hotly-contested 4-3 decision of In re Dannenberg,*fn9 has scant relevance to Lawrence's petition. In essence, it merely held Penal Code section 3041, subdivision (a)*fn10 in stating the Board "shall normally set a parole release date"*fn11 when a prisoner approaches her minimum parole eligibility release date did not mean generally or usually or in most cases. Instead the Board can and should first consider under section 3041, subdivision (b)*fn12 whether a prisoner's commitment crime and/or other past crimes require further delay in setting a release date because of public safety concerns.*fn13 In Lawrence's case, the Board already has fixed a release date, in fact four of them over the past 13 years. The only issue before this court is whether the Governor validly revoked the most recent of those parole releases voted by the Board.

[79] The California Supreme Court has provided less guidance about the content of the "some evidence" test. It has, however, suggested the "some evidence" must tend to prove the existence of some factor which is relevant to the ultimate finding the statute requires before parole can be denied-release of the prisoner on parole would create an unreasonable risk to public safety. Citing to section 3041, subdivision (b), in Rosenkrantz our highest court held, "the governing statute provides that the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction."*fn14 And in Dannenberg, it held, "the Board may decline to [set fixed release dates] in an individual case if it concludes, on relevant grounds with support in the evidence, that the grant of parole date is premature for reasons of public safety."*fn15 Later in the Dannenberg opinion, the court further explained, "if the circumstances of a particular murder persuade the Board that the prisoner who committed it is presently too dangerous to grant a fixed parole release date, the Board may deny parole without deciding when the inmate will be released . . . ."*fn16 "`[T]he Legislature left a "consideration of the public safety" as the fundamental criterion in assessing suitability.'"*fn17

[80] When evaluating whether a commitment offense alone can support such a finding, the Supreme Court has supplied some further guidance, focused largely on the nature of that offense. In Rosenkrantz, it explained, "a denial of parole based upon the nature of the offense alone might rise to the level of a due process violation-for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. . . . Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.' [Citation.]."*fn18 In Dannenberg's vigorously contested 4-3 decision, the four justice majority took the position the Rosenkrantz formulation, "including our use of the phrase `particularly egregious,' conveyed only that the violence or viciousness of the inmate's crime must be more than minimally necessary to convict him of the offense for which he is confined."*fn19

[81] Putting together the elements of the California "some evidence" due process test, the appellate court can uphold the Board or Governor's denial of parole if there is some evidence the prisoner's commitment offense was "more violent and vicious than minimally necessary to convict of that offense" such that it provides "relevant evidence" that "public safety requires a lengthier period of incarceration."

[82] B. Standard of Review Under Federal Due Process

[83] As noted above, the California Supreme Court expressly based the "some evidence" standard of review exclusively on the due process requirements of the California constitution. Indeed the Court observed, "[b]ecause we conclude as a matter of California law that the `some evidence' standard of review is applicable to judicial review of a Board's decision denying parole, we have no occasion to determine whether the same standard is also mandated under federal constitutional principles."*fn20 Consequently, there is no California Supreme Court interpretation of the federal due process standard to bind this court when it evaluates a Board or Governor's denial of parole. As a result, we appropriately turn to the federal courts for their construction of the requirements imposed by federal due process when courts review parole decisions.

[84] Both before and after the California Supreme Court's decision in Rosenkrantz, the federal courts in fact have found California's parole determination process also is subject to the U.S. Constitution's due process mandates. While those courts likewise have articulated a "some evidence" standard of review under the federal Constitution, they have provided more and in an important sense different guidance as to the meaning of that concept than is found in the only two California Supreme Court cases to discuss the issue thus far. As it turns out, some of that guidance has special relevance to this court's review of the Governor's reversal of Lawrence's parole in this case.

[85] Two United States Supreme Court decisions, Greenholtz v. Inmates of Nebraska Penal and Correctional Complex*fn21 decided in 1979 and Board of Pardons v. Allen*fn22 decided in 1987, held the federal due process clause creates a constitutional liberty interest for convicted persons in certain jurisdictions. The existence of this right depends on whether the state employs "mandatory language" indicating parole will be granted if certain findings are made.*fn23 In 2002, the Ninth Circuit examined the California parole scheme in McQuillion v. Duncan*fn24 and found it "uses mandatory language and is largely parallel to the schemes found in Greenholtz and Allen."*fn25 Accordingly, the McQuillion court found a "liberty interest" was created under the federal Constitution for state prisoners in California.*fn26

[86] In 2003, a year after McQuillion, the Ninth Circuit poured some content into this federal constitutional right in the case of Biggs v. Terhune.*fn27 First, the court held the "liberty interest" protected under the federal Constitution "is created, not upon the grant of a parole date, but upon the incarceration of the inmate."*fn28 Thus, the liberty interest exists at the time the parole board or Governor determines whether the prisoner is too dangerous to consider setting a parole date. The Biggs court then explained, "In the parole context, the requirements of due process are satisfied if `some evidence' supports the decision."*fn29 But then the court went on to elaborate on the "some evidence" standard as it applies to parole denials based principally on the nature of the prisoner's commitment offense.

[87] "To insure that a state-created parole scheme serves the public interest purposes of rehabilitation and deterrence, the Parole Board must be cognizant not only of the factors required by state statute to be considered, but also the concepts embodied in the Constitution requiring due process of law. [Citation.]

[88] "The Parole Board's decision is one of `equity' and requires a careful balancing and assessment of the factors considered. [Citation.] As in the present instance, the parole board's sole supportable reliance on the gravity of the offense and conduct prior to imprisonment to justify denial of parole can be initially justified as fulfilling the requirements set forth by state law. Over time, however, should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs' offense and prior conduct would raise serious questions involving his liberty interest in parole.

[89] "We must be ever cognizant that `[d]ue [p]rocess is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.' [Citation.] A continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation."*fn30

[90] Although the Biggs court affirmed the Board's denial of parole at what was this prisoner's first parole hearing, conducted in 1999 for his 1985 murder conviction, this conviction arose out of the execution-style assassination of a witness scheduled to testify against an illegal enterprise where Biggs was employed.*fn31 This was a comparatively early parole hearing (only 14 years after the prisoner's conviction) involving a type of murder demonstrating cold calculation, arising out of the prisoner's participation in ongoing criminal activity pursued with an economic motive, and striking at the heart of the justice system. Nonetheless, the court issued the above warning suggesting even a murder of this nature although supplying "some evidence" of a continuing threat to "public safety" justifying a denial of parole at this first hearing, might not be enough evidence of that threat in subsequent parole proceedings.

[91] Several federal district courts in decisions to be discussed later in this opinion have considered parole denials at later stages of prisoners' incarceration and applied the standard of review announced in Biggs. In doing so, those courts frequently have found the nature of the commitment offense alone, essentially no matter how bad the circumstances of that offense, to be less than "some evidence" justifying a denial of parole to the prisoner involved, at least after 15 or more years of incarceration.*fn32

[92] Two subsequent Ninth Circuit opinions have reaffirmed the Biggs rationale, although both refused to order release of the petitioner and also suggested a limitation on federal courts when applying the Biggs standard when reviewing state court denials of relief.

[93] The first of these, Sass v. California Board of Prison Terms*fn33 was decided in August, 2006 considering an appeal from a district court decision*fn34 denying relief to a prisoner. The district court's denial was based principally on that court's finding the California Supreme Court's Dannenberg opinion meant California's parole scheme no longer created a due process liberty interest in release on parole.*fn35 The Ninth Circuit quickly reversed this part of the district court's rationale.

[94] "The district court misread Dannenberg. Dannenberg addressed the narrow question whether the Board must engage in a comparative proportionality analysis in setting parole dates pursuant to section 3041(a) before determining whether an inmate is suitable for parole pursuant to section 3041(b). [Citation.] . . . [¶] The California court did not hold that section 3041(b) does not use mandatory language. . . . Instead, the court proceeded to the second step of the due process analysis-whether the procedures attendant upon a deprivation were constitutionally sufficient. . . . The court would not reach this step if it had held that there was no liberty interest. [Citation.] Dannenberg does not explicitly or implicitly hold that there is no constitutionally protected liberty interest in parole."*fn36

[95] The Ninth Circuit then turned to the second issue, whether "some evidence" supported the Board's denial of parole at hearings in 1999 and 2000-and the California courts' refusals to grant relief from those denials. Sass had been convicted of second degree murder, gross vehicular manslaughter, hit and run death, causing injury while driving under the influence, and felony drunk driving in 1988.*fn37 So the denials under consideration by the Ninth Circuit occurred 11 and 12 years after the prisoner's conviction. On this issue of existence of "some evidence" justifying denial of parole, one of the three judges dissented, but the majority upheld the Board decisions and the California courts' refusal to intervene.*fn38

[96] Unfortunately for proper analysis of the court's rationale on this second issue, the majority opinion is only brief and conclusionary, while the dissent is lengthy and detailed. Based primarily on revelations in the dissent, the apparent reason the majority found "some evidence" supported the Board's denial of parole was Sass's extensive drunk driving record before the fatal crash. He had seven prior DUI convictions (and who knows how many undetected drunk driving incidents) over several years.*fn39 Where the dissenting judge and the majority apparently differed was over the likelihood the prisoner would return to drinking once released and thus represent a continuing danger to public safety. The dissent placed great weight on Sass's efforts to cure his addiction to alcoholism and also emphasized nothing in the future will reduce the risk of relapse.*fn40 Thus, the inevitable consequence of the majority's view would be a lifetime in prison for Sass,*fn41 the very result the Biggs court found would violate the prisoner's due process rights to parole.

[97] The two judges in the majority tipped their hats to Biggs v. Terhune and did not purport to differ with its rationale.*fn42 Yet, consistent with the conclusionary nature of their opinion the majority failed to distinguish Biggs or explain whether and when in the future the commitment offense and Sass's pre-commitment drunk driving would lose their predictive capacity and thus no longer provide "some evidence" in support of the denial of parole.

[98] The even more recent Ninth Circuit opinion, Irons v. Carey,*fn43 was authored by the dissenting judge in Sass, yet also denied relief for the prisoner challenging the Board's denial of parole. The court reversed the district court decision which had found a lack of "some evidence" the prisoner's release would represent a present danger to the community.*fn44 But this Ninth Circuit opinion, unlike Sass, expressly embraced the Biggs rationale and indeed emphasized its denial of relief was only for the time being-indeed predicated only on the fact the prisoner had not yet served the minimum time required for the offense he committed.*fn45

[99] The Irons court noted the narrow scope of review allowed federal courts in applying federal due process standards to a denial of parole. "Because Irons filed his petition after the effective date of AEDPA [Antiterrorism and Effective Death Penalty Act of 1996], his petition for habeas corpus may be granted only if he demonstrates that the state court decision denying relief was `contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.' 28 U.S.C. § 2254(d)(1)."*fn46 Thus, when it came down to determining whether the denial of parole to Irons violated federal due process, the Ninth Circuit felt compelled to invoke the general "some evidence" standard announced by the Supreme Court in Superintendent v. Hill*fn47 and ask only whether the state court "unreasonably applied" that standard.*fn48

[100] The Ninth Circuit panel then responded to Irons's argument invoking Biggs v. Terhune for the proposition the Board could no longer rely on the "immutable factor" of his commitment offense to find him unsuitable for parole. Turning to Sass, the Irons court pointed out, "[a]lthough we acknowledged [in Sass] that Biggs represents the law of this circuit . . . we nonetheless held that the Board's reliance on the `gravity' of the . . . murder . . . , in combination with prior incidents of unlawful conduct, provided a sufficient basis for the Board to deem Sass unsuitable for parole. Because the murder Sass committed was less callous and cruel than the one committed by Irons, . . . our decision in Sass precludes us from accepting Iron's [sic] due process argument. . . ."*fn49

[101] But after apparently "taking away" from the Biggs interpretation of the federal "some evidence" test, the Irons court "gaveth back"-adding further content to that standard of review, suggesting for how long in an inmate's imprisonment a Board or Governor's sole reliance on the commitment offense (and pre-commitment behavior) may still satisfy due process. "We note that in all the cases in which we have held that a parole board's decision to deem a prisoner unsuitable for parole solely on the basis of his commitment offense comports with due process, the decision was made before the inmate had served the minimum number of years required by his sentence. Specifically, in Biggs, Sass, and here, the petitioners had not served the minimum number of years to which they had been sentenced at the time of the challenged parole denial by the Board. [Citations.] All we held in those cases and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole prior to the expiration of their minimum terms."*fn50

[102] As noted earlier, the Ninth Circuit decision in Irons was heavily influenced by constraints imposed on federal courts by the ADPEA, denying them the power to reverse state decisions upholding a board or gubernatorial denial of parole unless they can legitimately find the state court's decision was "`contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'"*fn51 The ADEPA does not apply to state courts, however. Thus, state courts are free to apply what they discern to be the proper interpretation of federal due process standards in evaluating a governor's reversal of a parole board's recommendation a defendant be released on parole whether the source of the federal standard derives directly from Supreme Court authority or a federal circuit court interpretation of that authority. Moreover, a state court is free to do so even if a federal court could not because of the ADEPA and also even if the federal standard subjects the governor's decision to a somewhat closer and slightly different brand of scrutiny than called for by the state due process standard. To put it another way, as a state court we can apply the Ninth Circuit's Biggs v. Terhune standard to reverse a board or gubernatorial denial of parole where it is reasonable to do so, while federal courts can only reverse that executive branch decision where it would be unreasonable not to.

[103] Combining the California and federal standards of review, as they have been articulated thus far by the California Supreme Court and the Ninth Circuit, respectively, the commitment crime can lack the power to supply "some evidence" supporting a denial of parole because of the interplay between two factors-the nature of that crime and the passage of time since its commission. That is, the fact there is "some evidence" the crime was committed and committed a certain way at a certain time does not mean that crime necessarily represents "some evidence" the prisoner's release on parole will pose an unreasonable risk of danger to the public safety at the present time. Whether it possesses the necessary predictive value depends both on the nature of the crime and how long ago it happened.

[104] II. LAWRENCE'S COMMITMENT OFFENSE, NOW OVER 30 YEARS IN THE PAST AND AFTER NEARLY A QUARTER CENTURY OF INCARCERATION, DOES NOT PROVIDE "SOME EVIDENCE" HER PRESENT RELEASE WOULD REPRESENT AN "UNREASONABLE RISK" OF DANGER TO THE COMMUNITY.

[105] As quoted earlier, the Governor's memo justified his reversal of the Board's favorable parole recommendation primarily on the basis of the commitment offense which he characterized as "a shockingly vicious use of lethality and an exceptionally callous disregard for human suffering." The Governor's report further attempted to minimize the Board's finding this murder "was the result of stress . . . spurned by a lover in favor of his wife." It argued, "[r]egardless of whether this is accurate . . . any stress under which Ms. Lawrence was operating at the time was not of such level or significance to mitigate her murderous conduct." Thus, some 34 years (now 36 years) after the crime and 22 years (now 24 years) into Lawrence's incarceration, the Governor was still relying almost entirely on the nature of the commitment offense to justify Lawrence's continued confinement because "her release from prison would pose an unreasonable risk of danger to society." (As explained later in this opinion, the report's references to other possible factors contribute nothing supporting a rational inference Lawrence's release would unreasonably endanger public safety.)

[106] A. General Considerations

[107] The main issues before this court are whether "some evidence" supports the Governor's finding the commitment offense is properly characterized as a "shockingly vicious use of lethality and an exceptionally callous disregard for human suffering" and, if so, whether this commitment offense given its nature and the passage of time provides "some evidence" supporting a conclusion the release of Lawrence on parole would represent an "unreasonable risk" of danger to public safety.

[108] Other than rehabilitation, imprisonment of those who are convicted of committing crimes generally serves and is justified by one or more of three societal goals:*fn52

[109] (1) retribution - that is, punishment of the offender commensurate with the seriousness of the crime;*fn53

[110] (2) deterrence of future offenses by the offender and other potential offenders;*fn54

[111] (3) incapacitation of the offender so she is not free to commit other offenses.

[112] When the Legislature sets an indeterminate maximum term with a fixed minimum term, the latter can be viewed as setting the period of imprisonment deemed necessary to satisfy the first two purposes, while the justification for continued imprisonment beyond that fixed minimum depends on the need for continued incapacitation of the offender.*fn55

[113] California's sentencing structure in murder cases makes it clear the denial of parole can only be justified by the third of these purposes-the need for further incapacitation of the prisoner. Unless there is an unreasonable risk the parole applicant will re-offend and thus pose a risk to public safety she or he is to be released on parole.*fn56 Neither the Board nor the Governor properly takes account of whether release on parole will impair the retributive or the deterrent value of continued imprisonment at this late stage of the inmate's incarceration.

[114] The Legislature has made this abundantly clear in Penal Code section 3041, subdivisions (a) and (b) which provide the Board "shall normally set a parole release date . . . that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public"*fn57 "unless it determines that the gravity of the current or past 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."*fn58 As the California Supreme Court emphasized in Dannenberg, a prisoner can be found unsuitable for parole only when there is "some evidence . . . [suggesting] he remains a danger to public safety."*fn59

[115] But returning to the statutory test, only evidence bearing on the likelihood of recidivism and only to the extent it reveals an "unreasonable risk" of same is relevant to the decision whether to grant or deny parole. As a recent court of appeal opinion emphasized, a parole release decision authorizes the Board (and Governor) only "to identify and weigh the factors relevant to predicting . . . `whether the inmate will be able to live in society without committing additional antisocial acts.'"*fn60

[116] The factors relevant to that determination are not spelled out in statutes enacted by the Legislature but in regulations promulgated by corrections administrators. Factors those regulations identify as militating against a finding the inmate can be released without an "unreasonable risk of danger to the public safety" include certain characteristics of the commitment offense, e.g., it was committed in an especially heinous, atrocious or cruel manner, or it involved multiple victims, or it was carried out in a dispassionate or calculated manner, or the victim was abused or mutilated, or was killed in a callous disregard of human suffering, or the motive was inexplicable or trivial.*fn61 Other potential negative factors include an inmate's previous record of violence, or an unstable social history, or commission of sadistic sexual offenses, or a history of severe mental problems related to the crime, or serious misconduct while imprisoned.*fn62

[117] The same set of regulations also spells out some factors militating in favor of a finding the inmate can be released without an "unreasonable risk" of danger to the public safety. These include no record of assaultive behavior as a juvenile or adult, a history of stable relationships with others, evidence of remorse, the crime was committed as a result of significant stress (especially if built up over considerable time) or as a result of battered woman's syndrome, no significant history of violent crime, the inmate's age reduces recidivism risk, the inmate has marketable skills or realistic plans for release, and institutional behavior indicating "an enhanced ability to function within the law upon release."*fn63

[118] As revealed earlier, as it had three times earlier, the Board found Lawrence's record exhibited all the positive factors listed in the regulations as favoring release on parole, except for the one applicable only to battered spouses. As to the commitment offense itself, the Board found it had been committed while under the stress of an emotional love triangle. It also found none of the other negative factors were present. Lawrence had no criminal record whatsoever, to say nothing of a history of violent crimes or assaultive behavior. Nor was there any suggestion of sadistic sexual acts or an unstable social history. Psychological examinations for the last 15 years uniformly report Lawrence to be sound psychologically and with no severe mental problems. Finally, Lawrence's performance during more than two decades of incarceration has been exemplary, to say nothing of being free of "serious misconduct."

[119] Despite the Board's action and its repeated overwhelmingly positive findings-on four occasions spread over more than a decade-the Governor's reversal of its recommendation must be upheld if there is "some evidence" to support his contrary conclusion the parole should be denied. But as explained earlier in discussing the standard of review, it is not just "some evidence" to support the Governor's findings, but "some evidence" sufficient to satisfy the statute's ultimate test, that is, "some evidence" the release of Lawrence would subject society to an "unreasonable risk" of danger to public safety.*fn64

[120] As a result, a finding a given murder was committed in an "atrocious" manner, for example, only supports a denial of parole to an otherwise suitable inmate when the atrociousness of the murder was of such a nature it logically leads to the conclusion release of the inmate at the present time would create an "unreasonable risk" of danger to public safety. "The commitment offense can negate suitability only if circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison."*fn65

[121] The fact Lawrence was not a career criminal or a serial or mass murderer or sex offender, nor one who murdered for financial gain, but whose only crime was the murder she committed during a period of emotional stress while still a young woman, combined with the fact she is now entering her sixties, greatly reduces the risk she will be a danger to the public safety if released on parole. But the issue remains whether it can be said there is "some evidence" to support the Governor's contrary conclusion within the state and federal standards of review.

[122] B. Cases Interpreting the State "Some Evidence" Standard

[123] In recent years, several California appellate courts have applied the state constitution's due process "some evidence" standard as declared by the California Supreme Court in Rosenkrantz and found a commitment murder insufficient to sustain a denial of parole many years or decades later. Meanwhile, several federal district courts have invoked the federal due process "some evidence" standard set forth in Biggs v. Terhune to reverse parole denials, again when based on old commitment offenses. The California Supreme Court expressly limited its own definition of the "some evidence" standard to what the California Constitution and not the U.S. Constitution requires when courts review Board and gubernatorial denials of parole. Accordingly, we are free to consider opinions applying both the federal Biggs standard as well as those applying our own state's Rosenkrantz standard. If the Governor's veto of the Board's grant of parole fails under either of these standards of review, it is subject to reversal.

[124] We turn first to our fellow appellate courts and the commitment offenses they found insufficient to supply "some evidence" to support a denial of parole. In re Smith*fn66 involved the February, 1985 shooting, beating and drowning of a man who was believed to have sold bad cocaine to a major customer of the prisoner. The prisoner was with several others who were driving with the victim in a limousine, while drinking, using drugs, and visiting night clubs. After an argument between the victim and the unhappy customer, they drove the limo into a canyon area and ordered the victim out. He was chased and eventually murdered. The prisoner was one of those convicted of second degree murder, kidnapping and robbery as a result of this crime, receiving a sentence of 16 years to life.*fn67

[125] In 2000, the Board set a parole release date, but the Governor reversed the finding.*fn68 The trial court found the Governor's reversal was not supported by "some evidence" and granted the writ of habeas corpus which the Governor appealed. The Court of Appeal affirmed in an opinion stressing the many factual errors in the Governor's report.*fn69

[126] More significant for purposes of Lawrence's appeal is In re Scott.*fn70 This case, like the one before our court, involved a love triangle. This time, however, it was the husband who killed his wife's lover.*fn71 On the day of the murder, July 4, 1986, the wife told her husband she was going to end her relationship with the lover and would return to the husband and their home that night. When she failed to return home, the husband drove to the lover's house, finding the two of them together. He shot the lover in the head and thigh and left the scene. He was convicted later that year of first degree felony murder, the felony being the theft of his wife's purse, but acquitted of premeditated murder.*fn72 To avoid Scott's appeal on grounds of ineffective assistance of counsel, the prosecutor agreed to a second degree conviction in return for the defendant's waiver of the right to appeal.*fn73

[127] In 2004, the Board found Scott did not pose an unreasonable risk of danger to the community and therefore was suitable for parole. The Governor reversed based on the commitment offense which he characterized as "`especially atrocious'" and "`particularly heinous.'"*fn74 The appellate court rejected this characterization. "[T]he record contains no evidence Scott committed his offense `in an especially heinous, atrocious or cruel manner,' or that the nature of his crime indicates he poses a continuing threat to the public safety if released. . . . All of the many psychological evaluations of Scott emphasized that he committed his crime while he was experiencing an unusual amount of stress arising from unusual circumstances not likely to recur, and for that reason (as well as his prior crime-free life) there was a low risk he would commit another violent act if released."*fn75

[128] The same could be said about Lawrence based on the record in her case. Indeed there are close parallels between the two cases. Lawrence's paramour told her he was leaving his wife then called to say he couldn't do it, because the wife threatened loss of his children. Just like Scott, Lawrence drove over in a rage to confront and eventually kill the person who was keeping her from her lover. Moreover, in both cases, the Governor based his reversal of the parole board's recommended release on the nature of the commitment crime-characterizing Scott's as "especially atrocious" and "particularly heinous" while Lawrence's as "a shockingly vicious use of lethality and an exceptionally callous disregard for human suffering."

[129] In In re Lee,*fn76 a man had sold his restaurant, but the buyer was behind in his payments. In 1987, the seller brought a gun and box of bullets when he came to the restaurant to collect an overdue payment, purportedly intending to kill the buyer and then himself. When the buyer refused to pay, the seller drew the gun and fired five rounds, wounding the buyer but killing the buyer's wife. In 1989, the seller pled guilty to second degree murder and premeditated attempted murder. He was sentenced to 17 years to life for the second degree murder and life with the possibility of parole for the attempted murder. Sixteen years later, in 2005, Lee had his first parole hearing and the Board approved an immediate release, but the Governor reversed the recommendation.*fn77

[130] The Court of Appeal reversed the Governor's reversal, summarizing its reasons in the following words. "We must . . . view the Governor's two reasons within the context of the other factors he must consider to see if some evidence shows Lee continues to pose an unreasonable risk to public safety. [Citation omitted.] Applying that test, we find no evidence that Lee is likely to commit another crime or that his release would unreasonably endanger the public. Like the Governor, we do not minimize the seriousness of Lee's offenses [now] 19 years ago, for which society has legitimately punished him. No reasonable possibility exists, however, that Lee will re-offend. Other than his offenses here, he has led a crime-free life. The dispute over the restaurant debt that motivated the shootings occurred almost 20 years ago. Weakened by the march of time trod by all mortals, Lee is now 82 years old and in poor health, leaving him to hobble from room to room. The two reasons the Governor cites-the nature of Lee's crimes and recent acceptance of responsibility-do not change those facts. We conclude the Governor's reversal of the Board's decision is therefore not supported by some evidence."*fn78

[131] Once again, many of the same things could be said about Lawrence. She too has led a crime-free life. The love triangle that motivated the murder she committed is 15 years further in the past than the restaurant debt that motivated Lee and she has been incarcerated several years longer. Although not as old and ill as Lee, she also was much younger when she committed her one and only crime and has moved well into the more stable phase of middle age. Lee's crime, unlike Lawrence's, involved multiple victims-indeed the third person rather than the target is the one who died. This is an objective factor about the commitment crime, in contrast to the subjective characterization about "lethality" and "callousness" the Governor used in Lawrence's case to justify reversal of parole. As was true of Division One in Lee, however, "we do not minimize the seriousness of [Lawrence's] offense" now 36 years ago, "for which society has legitimately punished [her with nearly a quarter century in prison]."*fn79 Nevertheless, like that court, "we find no evidence that [Lawrence] is likely to commit another crime or that [her] release would unreasonably endanger the public" and "conclude the Governor's reversal of the Board's decision is therefore not supported by some evidence."*fn80

[132] In re Weider,*fn81 decided in December, 2006, like In re Scott and the case before this court, arose from yet another love triangle. The homicide occurred in the midst of a confusing struggle at a restaurant in February 1987, some two years after the wife left the husband for the other man. As was true of Lawrence in the case before this court, the husband focused his anger on the other person, not the one he loved who had chosen another. That night at the restaurant, the distraught husband had demanded his wife talk with him or he would shoot the other man and himself. He then went to his car and retrieved a handgun. He first fired a couple of errant shots across the restaurant at the fleeing paramour. During an ensuing struggle over the gun, not only did the lover receive fatal wounds, but two other restaurant patrons were wounded.

[133] After a series of parole hearings and court reviews in 2002 through to 2004, the Board held yet another hearing in 2005 and once again denied a release date based on findings the murder was carried out in an especially cruel and callous manner and had multiple victims.*fn82 The trial court granted Weider's writ but remanded to the Board instructing it to reconsider its decision using only new evidence, having found the grounds used before to be insufficient to support a denial.*fn83 When the Board appealed, the Court of Appeal affirmed the remand for another hearing although it removed the limitation to new evidence.*fn84

[134] In affirming the reversal of the Board's denial, the court made some observations relevant to the case before this court. "[T]he circumstances [in cases upholding the denial of parole based on the commitment offense]-rehearsing the murder, executing of a sleeping victim, stalking-reflect behavior that reasonably suggests that the inmate could present a danger if released. That is, these cases implicitly acknowledge that the overarching consideration in the suitability determination is whether the inmate is currently a threat to public safety."*fn85

[135] Also decided in late 2006, In re Elkins*fn86 ordered the forthwith release of a prisoner who had been convicted of first degree murder in 1980 receiving a sentence of 25 years to life and whose recommended parole in 2005 had been reversed by the Governor. As is true in Lawrence's case, the primary grounds for the Governor's rejection of the Board's recommendation was the "heinous, atrocious or cruel" nature of the commitment offense.*fn87

[136] The victim of Elkins's crime was a friend to whom Elkins, at the time a 19-year old drug user, owed money for prior drug purchases.*fn88

[137] Elkins committed the murder in the course of a robbery by beating the sleeping victim repeatedly with a baseball bat. He then stole money and property from the victim's bedroom, placed the body in a car trunk, drove to an isolated area near Donner Pass and dumped it. He went home and slept for several hours before stealing more of the victim's property from a storage locker and the house of the victim's girl friend. Elkins then fled the state and remained on the run for several months before being captured and returned to California for prosecution. He pled not guilty, but was convicted by a jury of first degree murder and robbery. The judge sentenced him to 25 years to life for the first degree murder and a concurrent sentence on the robbery.*fn89 Elkins finally revealed the location of the victim's body some 10 months after the murder.*fn90 By the time it was found, and the victim's relatives received some closure, the body was partially eaten by animals.

[138] In contrast to Lawrence, Elkins did not have a discipline-free prison record-although it had been for a long time before the parole hearing.*fn91 He had two serious violations in the first three years of his commitment, one of which put him in "Max B," an increased custody level, for seven months. There also were claims by other prisoners caught in drug-dealing to the effect Elkins was a "major dealer" within the prison as recently as 1990, but nothing evidently came of those confidential reports. Like Lawrence, Elkins also had a number of minor incidents, primarily being late to assignments, resulting in counseling.

[139] In other respects, Elkins had a very good record of progress while in prison-but not nearly as outstanding as Lawrence.*fn92 While Lawrence earned an AA, BA, and an MBA, in a comparable period of time Elkins only received a GED and was working on his AA. But Elkins had, like Lawrence, participated in a wide array of behavior modification programs including several designed to address the serious drug addiction he suffered during the period he committed the robbery-murder that put him in prison. He also had developed marketable skills, although not as many as Lawrence, and had a viable post-release plan. Age also was a factor cited to the Board in support of Elkins's parole application. At the time of the 2005 Board hearing, Elkins was 47 years old (49 in 2007), while at the time of the hearing considered in this appeal Lawrence was 58 (60 in 2007).

[140] As of 2005, unlike Lawrence, Elkins had been unsuccessful in all his prior parole hearings, 10 in number.*fn93 But the eleventh time proved the charm, and the Board finally and for the first time recommended his release. By this time, like Lawrence, Elkins was far beyond his minimum eligibility date as computed by the applicable matrix. Thus, release would have been immediate after the waiting period for gubernatorial review expired, had the Governor not reversed the Board's recommendation.

[141] The Governor's report rejecting the Board's recommendation Elkins be released is strongly reminiscent of the one filed in Lawrence's case. In both reports it is stated the prisoner has accepted responsibility and expressed remorse too recently. And, in both reports the commitment offense "alone is sufficient for me to conclude [the prisoner] would pose an unreasonable risk to the public's safety if released from prison at this time."*fn94

[142] The Elkins court first found the Governor's report was simply wrong on the facts as to the finding the prisoner's acceptance and remorse came too late to be counted as a factor favoring release on parole.*fn95 Noting Elkins had first expressed acceptance and remorse over a decade earlier and not just in 2005, the court went on to point out the timing was largely irrelevant. "There is no minimum time requirement. Rather acceptance of responsibility works in favor of release `[no] matter how longstanding or recent it is,' so long as the inmate `genuinely accepts responsibility. . . .' [Citation.] . . . There is thus no rational support for the astounding conclusion that Elkins's decade-long acceptance of full responsibility does not even `weigh in favor of his parole.'"*fn96

[143] The Elkins court then addressed the single factor militating against parole the Governor found sufficient to reverse the Board's recommendation-the "heinous, atrocious or cruel" nature of the murder. Despite the violence of the act-striking the victim multiple times with a baseball bat-even coupled with the robbery motive for the crime, dumping the body down a steep embankment deep in the wilderness, and then fleeing the state to escape responsibility, the court found this commitment crime failed to supply "some evidence" Elkins's release posed "`an unreasonable risk of danger to society.'"*fn97 It then concluded, "Given the lapse of 26 years and the exemplary rehabilitative gains made by Elkins over that time, continued reliance on these aggravating facts of the crime no longer amount to `some evidence' supporting denial of parole."*fn98 The Elkins court also observed the case before it "compares favorably to cases affording habeas corpus relief on federal due process grounds,"*fn99 pointing to the federal district court decisions discussed below,*fn100 and concluded "[t]he facts of the offense here are older than in any of those . . . cases and less or only equally aggravating. . . . The Governor's decision reversing the Board's grant of parole on the basis of the facts of the offense lacks `some evidence' that granting parole posed `an unreasonable risk of danger to society.'"*fn101

[144] The Court of Appeal in the Elkins case took the unusual step of issuing its writ forthwith, ordering the prisoner's immediate release.*fn102 The California Supreme Court then not only denied review, but also denied supersedeas and a depublication request.*fn103 If the result and rationale in Elkins are correct, a fortiori, the Governor's reversal of Lawrence's parole release cannot be sustained. Beating a man to death in order to take his property and savings, then hiding the body and fleeing the state is certainly more indicative of a predisposition to reoffend than is a shooting and stabbing during a fit of rage over the loss of a lover. To the extent fleeing the jurisdiction rather than seeking to evade prosecution and conviction in other ways is a negative, continuing to flee until captured as Elkins did is far worse than eventually returning to California and voluntarily turning oneself in to the authorities, as Lawrence did. Furthermore, as to positive factors cited as favoring release, Lawrence is more than a decade older than Elkins and has a discipline-free record in contrast to Elkins's serious misbehavior during the early years of his imprisonment.

[145] As mentioned earlier, the dissent rejects the "some evidence" test applied in the above cases-that the commitment offense must supply "some evidence" supporting a finding the prisoner's release at the present time would represent an "unreasonable risk" of danger to the public safety. Instead, the dissent argues, "some evidence" of one of the factors listed in the regulations as militating against release suffices to justify a Governor's reversal of a recommended release on parole. But as discussed further below, assuming as we do these other appellate courts employed the correct test, the nature of the commitment offenses and other circumstances in those cases provide strong precedent for concluding Lawrence's commitment offense fails to satisfy the California "some evidence" test and thus the Governor's reversal should be reversed.

[146] C. Cases Interpreting the Federal "Some Evidence" Standard

[147] We turn now to the federal cases interpreting the federal "some evidence" standard framed in Biggs v. Terhune, and find they focus more directly on the age of rather than the nature of the commitment offense.

[148] Our suspicion there may be a difference between the state Constitution's "some evidence" standard and the federal Constitution's "some evidence" standard finds its strongest support in Rosenkrantz v. Marshall*fn104 decided in 2006. This is the same Rosenkrantz the California Supreme Court decided in 2002 could be denied parole under the California "some evidence" test based solely on the nature of the commitment offense. In ordering Rosenkrantz's release on parole, the federal court relied on Biggs v. Terhune*fn105 to hold, "While relying upon petitioner's crime as an indicator of his dangerousness may be reasonable for some period of time, in this case, continued reliance on such unchanging circumstances-after nearly two decades of incarceration and half a dozen parole suitability hearings-violates due process because petitioner's commitment offense has become such an unreliable predictor of his present and future dangerousness that it does not satisfy the `some evidence' standard. After nearly 20 years of rehabilitation, the ability to predict a prisoner's future dangerousness based simply on the circumstance of his or her crime is nil."*fn106

[149] Thus, a commitment offense the California Supreme Court had found serious enough to supply "some evidence" under California's constitution to justify a Governor's rejection of parole was found too old to satisfy the federal constitution's "some evidence" test by this federal court.

[150] Martin v. Marshall,*fn107 another 2006 case, this one in the Northern District, also found an aging commitment conviction fell short of providing "some evidence" sufficient to justify a denial of parole. This case involved a Governor's reversal of a parole release date the Board had recommended. In this one, the petitioner had not only killed one person, but two-and wounded a third-in 1979.*fn108 Yet he was only convicted of second degree murder, presumably because the shooting occurred when petitioner was approached in a restaurant by a drug dealer known for violence. Petitioner was a drug user who owed the dealer money not only for drugs but for damage sustained by the dealer's automobile when he had borrowed it. When the dealer reached into his pocket petitioner began firing, killing the dealer but also shooting two innocent bystanders, killing one and wounding the other.

[151] The district court first pointed out the "`some evidence' standard applies equally to the Board's decision and the Governor's review of the grant or denial of parole. [Citation.]"*fn109 The Martin court discounted the Governor's characterization of the commitment offense as showing a "callous disregard for human life" but relied more directly on the Biggs court's reasoning about why the commitment offense cannot sustain a dangerousness finding forever. "Because petitioner cannot change the past, denying petitioner parole based only on the facts surrounding the crime itself effectively changes his sentence from twenty years-to-life into life imprisonment without the possibility of parole."*fn110 The judge then used that rationale to question the Governor's reversal of a parole recommendation in this case.

[152] "This case presents a stronger case for release than Biggs for several reasons. First, petitioner's commitment offense was less serious than the petitioner's in Biggs. The Biggs petitioner was involved in a violent, manipulative, and premeditated murder, while petitioner here acted impulsively and, at least in part, in response to the circumstances. [Citation.] Second, the Biggs petitioner had not yet served the full terms of his sentence, while petitioner here has exceeded his sentence by approximately six years. Finally, unlike petitioner here, the petitioner in Biggs had not been granted parole by the original panel hearing his case. Petitioner here has `demonstrate[d] exemplary behavior and evidence of rehabilitation,' as required by the Biggs court, for a significant period of time. Therefore, the sole reliance on petitioner's commitment offense in denying him parole impinges on petitioner's constitutional liberty interest in parole."*fn111

[153] D. Because of the Nature and Age of Lawrence's Commitment Offense, It Does Not Supply "Some Evidence" She is a Present Threat to Public Safety

[154] We first focus on the report's discussion of factors other than the commitment offense, in which the report principally questions factors the Board cited as favoring release. Then we turn to the nature of Lawrence's commitment offense and whether it supplies "some evidence" rationally establishing her release would pose an unreasonable risk of danger to public safety. And finally, we consider whether that commitment offense has lost whatever predictive value it might have initially possessed because of intervening time and events.

[155] 1. Discussion of Factors Unrelated to the Commitment offense in the Governor's Report Do Not Contribute "Some Evidence" Lawrence's Release would Represent An Unreasonable Risk to Public Safety

[156] Using selected quotes from Lawrence's 2002 and 2005 board hearings, at one point the report suggests Lawrence was not remorseful but was still justifying her murder of Mrs. Williams. Among these selective quotes from the record are the following. "`I always viewed [Mrs. Williams] as the obstacle in my fantasy romance. That she was the one that was keeping me from having what I wanted. So in my mind, it was natural for me to confront her as though she would disappear . . . .' Ms. Lawrence . . . [also] said that she saw Mrs. Williams as her `problem.'"

[157] In context, however, it is apparent Lawrence was only explaining her state of mind at the time of the homicide, not justifying it. To the contrary, these and like statements were made in the course of condemning her own behavior on that occasion and expressing deep remorse for what she had done and why she had done it.*fn112 Furthermore, the 2005 statement was only one in a long line of expressions of remorse Lawrence had made repeatedly and consistently during the decade before the Board's 2005 recommendation she be released on parole. There simply is nothing approaching "some evidence" Lawrence lacked remorse or her remorse was not genuine or came too recently to count. Nor does the Governor's report directly rely on a lack of remorse to justify denial of parole.

[158] In the same vein, the report appears to imply Lawrence had serious psychiatric problems and therefore her release would pose an unreasonable risk of danger to the public. At least, that seems to be the only reason the report recites the negative language found in a couple of her early psychiatric evaluations, language also discussed in the dissent. "Ms. Lawrence was categorized in early prison reports by mental-health evaluators as sociopathic, unstable and moderately psychopathic. Subsequent mental-health evaluations have been more favorable and include low risk assessments."

[159] Those "early reports" of psychiatric conditions, in fact, were over 15 years in the past. The psychologists conducting those evaluations recommended Lawrence should undergo specific forms of therapy - which she did for many years. As a result, those unfavorable diagnoses have been erased by a consistent line of psychiatric evaluations finding Lawrence no longer has any psychiatric problems. Indeed for the past several years the annual psychological evaluations have recommended Lawrence no longer participate in therapy of any kind, because she no longer has any psychiatric condition requiring a cure. For the Governor's report to rely in any sense on the early reports Lawrence had one or more psychiatric problems, subsequently cured, as evidence her release would pose a present danger to public safety is the functional equivalent of relying on reports she had pneumonia or tuberculosis when first imprisoned as evidence her release would pose a present danger to public health, even though the disease had been cured long ago while she was in prison. As such, it does not even approach the level of "some evidence" Lawrence would represent an "unreasonable risk" to reoffend if paroled. And once again it is not apparent the report is relying directly on Lawrence's current psychological state as a ground for denying release on parole.

[160] In another ambiguous reference, perhaps calculated to either undercut a positive factor favoring release or to provide an additional negative factor suggesting release would pose a risk to public safety, the report mentions Lawrence has been counseled a number of times. "Since her incarceration, while Ms. Lawrence has been counseled eight times for misconduct, including as recently as 2005, she has avoided any disciplinary actions." But being "counseled" on the average of once every three years supplies no evidence to say nothing of amounting to "some evidence" the release of a prisoner will present an "unreasonable risk" to public safety. Most of these "counseling" sessions arose when Lawrence was late to some class or other appointment. All of them are in the same league with overtime parking tickets or at worst jaywalking in the world outside prison. Unlike the far more serious conduct which can result in disciplinary actions, these minor infractions tell us nothing about the prisoner's predisposition to be a danger to public safety if released on parole.

[161] 2. The Nature of Lawrence's Offense does not Supply "Some Evidence" Rationally Demonstrating Lawrence's Release would Unreasonably Endanger Public Safety

[162] So what we are left with then as the sole possible support for the gubernatorial veto of the Board's recommendation Lawrence be released on parole is Lawrence's commitment offense. Turning to that offense, it is hard to characterize what Lawrence did as more "atrocious," "heinous," "callous," or committed with more "extreme lethality" than most of the other murders described above in which our fellow appellate courts found they failed as "some evidence" supporting a Board or gubernatorial denial of parole. Several of these other murders happened in public places with the murderer shooting in complete disregard of the safety of third persons and indeed sometimes hitting and even killing those third persons. Another involved deliberately and with premeditation beating the victim to death with a baseball bat. The Governor characterized all seven of those murders with the same sort of pejorative terms as was included in the report justifying denial of Lawrence's parole. Yet the appellate courts in those cases did not deem these characterizations satisfied the "some evidence" test.

[163] Lawrence was convicted of first degree murder. Premeditated first degree murders ordinarily are bloody events, unless committed with poison or the like. At the option of the observer, most could be said to be "atrocious, heinous, or callous"-or pick your pejorative. And, in the experience of this Division in regularly reviewing parole board and gubernatorial denials of parole to murderers over the past few years, it is seldom either a board or a governor classifies a murder, first or second degree, as less than "atrocious, heinous, or callous" or the equivalent. Indeed they usually add a qualifier such as "extremely" or "vicious" to the description.

[164] The California Supreme Court has clarified California's "some evidence" test in this respect, however. To be used as the primary basis of a denial of parole, a commitment offense must involve more than the minimum elements of that crime.*fn113 Not every first degree murder can be found to be "atrocious, heinous, or callous" or the equivalent without doing violence to the Supreme Court's articulation of the "some evidence" test.

[165] The evidence in this case may be sufficient to find the defendant intent on killing her victim. Lawrence, after all, was convicted of premeditated first degree murder. On the other hand, it does not reflect a person intent on torturing or otherwise causing unusual suffering to that victim. Other than the bare outline of the crime contained in this court's opinion affirming the conviction and seven years to life sentence, the only evidence in the record concerning what actually happened at the scene of the crime is found in Lawrence's account during parole hearings. This evidence is not disputed in the Governor's report. This evidence is of a rank amateur at physical combat in a full rage and unfamiliar with firearms caught up in a close quarters, life-or-death struggle who eventually fires wildly at her opponent. This account is consistent with the physical evidence of four widely dispersed gun shot wounds, none of them immediately fatal-to a hand, an arm, a leg, and the victim's neck-and with another bullet completely missing and hitting a wall. The stabbing with the potato peeler added a few additional wounds and some further blood to the scene. It is possible those stab wounds, although necessarily shallow, conceivably may have contributed to the victim's death. According to the elements of the crime the jury found that death was the intended, indeed premeditated, result of the crime Lawrence committed. Nothing suggests those wounds were inflicted to cause Mrs. Williams more pain than required to kill her.

[166] If the Governor's finding of a "shockingly vicious use of lethality" refers to the number of wounds inflicted during the struggle, the evidence suggests it was not something Lawrence intended. Rather the "lethality" resulted from her lack of experience with lethal weapons and the ferocity of the struggle. (With one notable exception, Weider, most of the men who committed the murders described above were experienced gun owners and did not give their victims the chance to get close enough to disturb their aim. So a single shot or two was generally enough to produce the victim's death.) Similarly, if the Governor's finding Lawrence exhibited an "exceptionally callous disregard for human suffering" suggests she intentionally inflicted more suffering than needed to commit the murder, that finding likewise is inconsistent with the evidence. Once again, any additional suffering accompanying the four bullet wounds and the stab wounds was not intended but rather the product of Lawrence's fury and her ineptitude at the crime of murder-hardly a reason for labeling her an especially heinous or dangerous murderess.

[167] But there is a more fundamental problem with the Governor's finding about the nature of Lawrence's crime. Assuming the Governor had "some evidence" sufficient to justify his finding the murder Lawrence committed involved a "shockingly vicious use of lethality" and an "exceptionally callous disregard for human suffering," it is difficult to find Lawrence's commitment crime supplies "some evidence" rationally demonstrating she represents an unreasonable danger to the public safety at the present time. That is, how can it be said her crime is more predictive of future dangerousness than the murders found insufficient for that purpose by our fellow appellate courts in In re Smith, In re Scott, In re Lee, In re Weider, and In re Elkins, nor by Federal district courts in the published decisions, Rosenkrantz v. Marshall and Martin v. Marshall all discussed in more detail above.*fn114 In those cases, as here, the Board or the Governor labeled the murders in terms similar to the Governor's "shockingly vicious use of lethality" and "exceptionally callous disregard for human suffering" description of Lawrence's commitment crime. Nonetheless, our fellow state appellate courts or federal courts found crimes so described as inadequate to provide the sole or primary "some evidence" of present dangerousness some 15 to 20 years later, at least when in the meantime the prisoner had an exemplary record in prison.

[168] And what of those crimes?

[169] In In re Smith, the prisoner, a drug dealer, was convicted for his role in the shooting, beating, and drowning of another drug dealer some 15 years before the grant of parole the Governor had reversed.*fn115

[170] In In re Scott, a wayward wife told her husband she was leaving her lover and returning to the husband, but then didn't show up. In a rage, the husband drove over to the lover's house and shot him in the head with a rifle.*fn116

[171] In In re Lee, a man seeking to collect on a business debt brought a gun and a box of bullets along to a meeting and when refused a payment fired five shots, wounding the debtor but killing the debtor's wife.*fn117

[172] In In re Weider, another distraught husband took a gun into a public restaurant and fired twice at the man who had been living with his estranged wife for two years but missed, then threatened to kill himself and in the ensuing fracas managed to kill not only the other man, but wound two innocent restaurant patrons, one of them fatally.*fn118

[173] In In re Elkins, in order to rob a sleeping friend he owed money for drugs, a 19-year-old addict who was on probation for another offense struck the victim with a baseball bat then pummeled him to death with that bat, drove the body into the wilderness and dumped it down a remote embankment, stole more of the victim's belongings from a storage locker, and fled the state.*fn119

[174] In Rosenkrantz v. Marshall, a young man provoked by being "outed" by his brother and a friend acquired an automatic weapon, planned and even rehearsed the shooting for a week before blasting his victim with a fusillade from the gun.*fn120

[175] In Martin v. Marshall, a drug user shot his drug dealer whom he owed money, and two other innocent restaurant patrons, killing both the dealer and one of the patrons.*fn121

[176] All of the above murders involved at least as "shockingly vicious use of lethality" and "exceptionally callous disregard for human suffering" as did Lawrence's murder of her paramour's wife. Several resulted in the killing or wounding of multiple victims. Several had economic as opposed to emotional motives, and several prisoners were involved in other criminal activities at the time of the offense. Yet state appellate courts or federal courts found these earlier commitment offenses failed to provide "some evidence" of the perpetrator's present dangerousness if released to the outside world.

[177] In earlier denials of positive parole recommendations from the Boards reviewing Lawrence's case, Governors claimed Lawrence's motive for the killing was "trivial." This characterization clearly was not supported by "some evidence" in the record. Rather, the only relevant factor the evidence in the record supports is that Lawrence committed this crime while under emotional stress, a factor favoring a grant of parole. Comparing Lawrence's case to In Re Scott and In re Weider, it is certainly possible to discern a significant "moral" difference between Lawrence's position in the triangle-as the non-spouse in a relationship with one of the spouses then killing her lover's spouse, in contrast to one of the spouses killing the other spouse's lover. But when evaluating this not entirely unknown three-party scenario from the perspective relevant to what counts here-whether the person committing the murder was in a state of intense emotional stress unlikely to be reproduced in the future-there is no difference. A paramour, especially one who has reason to expect elevation to the category of a spouse, can be as emotionally out of control as one of the spouses she or he hopes to replace, if threatened with loss of that status. Lawrence found herself in just this position and unfortunately reacted with the same rage and with the same fatal consequences as the husbands in Scott and Weider.

[178] This time the Governor's report sought to diminish the emotional stress factor by suggesting that, if true, it still does not reduce Lawrence's culpability for the murder. But this confuses culpability for a past crime with the predictability of future crimes. There is no doubt Lawrence is culpable for the premeditated murder she committed over three decades ago, despite the emotional stress she was experiencing at the time. But whether the fact Lawrence was under a unique level of stress when she committed that murder reduces the likelihood she would repeat the conduct if released from prison three decades later is a very different question. For the same reason our fellow appellate courts found the emotional context of the murders in several of the cases described above-and especially In re Scott and In re Weider-meant those murders failed to supply "some evidence" the perpetrators were presently a danger to the community, we conclude Lawrence likewise is no such threat.

[179] The Governor's report, in another somewhat ambiguous statement this time somewhat related to the offense, recounts Lawrence fled the jurisdiction and remained free for 11 years before turning herself in. It is not clear how this makes her a greater risk of reoffending than the many defendants who try to evade prosecution by concealing their guilt and avoiding prosecution in other ways. Except for those found red-handed at the scene, it is rare for murderers to turn themselves in to the authorities. None of the seven prisoners whose parole denials were reversed in the cases described above had done so. Not only did all seven try to avoid prosecution in one way or the other but they, like Lawrence, pled not guilty. And one, Elkins, had fled the state after hiding the victim's body, but was captured a few months later. Lawrence, on the other hand, was in no danger of recapture and safely settled in a state thousands of miles away, yet returned to California and voluntarily surrendered to authorities.

[180] None of this common post-crime but pre-conviction behavior discouraged the courts in the seven cases discussed above from finding the commitment offense an insufficient predictor of future danger to the community. If the commitment offense itself lacks predictive power, certainly the prisoner's initial attempts to evade prosecution also lack such power.

[181] 3. Whatever Predictive Value this Commitment Offense may have had 35 Years Ago or 23 Years Ago has Dissipated given Lawrence's Exemplary Prison Record and Rehabilitation Over the Ensuing Years

[182] Shifting attention to the length of the prisoner's confinement and number of parole hearings before the one the court was reviewing, most of the seven cases discussed above involved prisoners who had been imprisoned for a shorter period than Lawrence and only Elkins had gone through as many hearings. One, Martin, had only been incarcerated for 15 years, others 17 or 18 years, and only Elkins had been in prison longer. The court ordered one of these prisoners released after his first parole hearing resulted in a denial and one after the Governor's reversal of the Board's first grant of parole. Only two of these other prisoners had had as many as a half dozen hearings. Meanwhile Lawrence has had nearly a dozen, four of them successful at the Board level but none surviving gubernatorial review.

[183] Thus, if as some of the federal cases hold, the predictive value of the commitment crime dissipates to the point it cannot satisfy the "some evidence" standard 17 to 20 years after its commission, a fortiori it has lost all its predictive steam over a third of a century after it was committed and nearly a quarter century into the prisoner's incarceration. Unlike Biggs, Sass and Irons, Lawrence has served far beyond the "minimum number of years required by her sentence." At the time the Governor reversed the Board's parole recommendation, Lawrence had been imprisoned for 15 years longer (now nearly 17 years longer) than her minimum seven years to life sentence. At that point, she also had been incarcerated for ten years beyond her minimum parole date (now nearly 12 years beyond that date).

[184] None of the seven murderers discussed above, whom courts found warranted release on parole, had a more exemplary record in prison than Lawrence. Only two, like Lawrence, had been discipline-free during their entire term. Indeed several had engaged in some serious misconduct involving drugs or violence, or both, while in prison, although they had been discipline-free for several years before the parole hearing the court was examining. Only one approached Lawrence's educational attainments-a BS and a Masters degree. None had acquired any more marketable skills than she or had more viable post-release plans. At age 60, she is older than several of these prisoners at the time of the Board or gubernatorial denial of parole was deemed unsupported by "some evidence." Indeed, most were substantially younger-in their forties or early fifties.

[185] Accordingly, whether focusing on the nature of the commitment offense or how much time has elapsed since it occurred, Lawrence is at least as deserving of release as these seven male prisoners whose denials of parole were reversed by California state appellate courts or federal district courts during the past few years. Moreover, entirely independent of any comparisons with other prisoners found to warrant release by other courts, in this case proper application of either the California or federal "some evidence" due process standard requires reversal of the Governor's decision. That decision simply is not supported by some evidence rationally indicating Sandra Davis Lawrence presently represents an unreasonable risk to public safety if released on parole.

[186] DISPOSITION

[187] For all the reasons discussed above, we conclude the Governor's reversal of the Board's fourth recommendation Sandra Davis Lawrence be released on parole is not supported by "some evidence" under either the California or the federal view of what constitutes "some evidence" when courts review parole decisions. Accordingly, we grant the petition for writ of habeas corpus. The Governor's decision to reverse the Board's grant of parole to Sandra Davis Lawrence is vacated, the Board's parole release order is reinstated and it is ordered she be released forthwith.

[188] I concur: ZELON, J.,

[189] PERLUSS, P. J., Dissenting.

[190] I respectfully dissent.

[191] Article V, section 8, subdivision (b), of the California Constitution*fn122 and Penal Code section 3041.2*fn123 authorize the Governor to review parole decisions made by the Board of Parole Hearings (Board) with respect to individuals sentenced to an indeterminate state prison term based on a conviction for murder. After considering the same factors evaluated by the Board, but weighing them differently, the Governor reversed the Board's decision to grant parole to Sandra Davis Lawrence, concluding she would pose an unreasonable risk of danger to society. As reflected in the disagreement between the Governor and the Board, whether Lawrence is now suitable for parole may be a close question. Whether the Governor's decision not to release Lawrence is devoid of even a modicum of evidence to support it or is otherwise so arbitrary as to offend established notions of due process is not. Applying the "extremely deferential" standard of review mandated by In re Rosenkrantz (2002) 29 Cal.4th 616, 679 (Rosenkrantz), the Governor's determination that Lawrence is not suitable for parole at this time should be upheld. Accordingly, I would deny the petition.

[192] 1. The Murder of Rubye Williams: The Commitment Offense

[193] Spurned by her lover, Dr. Robert Williams, who had reneged once again on his promise to leave his wife and marry her, on the morning of February 15, 1971 Lawrence armed herself with a potato peeler with a two-inch blade from her kitchen, drove to her sister's home to retrieve a gun from under a mattress and finally proceeded to Dr. Williams's new dental office where Williams had told Lawrence his wife was waiting alone for deliveries. After a physical confrontation between the two women, Lawrence shot the unarmed Mrs. Williams four times, hitting her in the neck, leg, arm and hand. As Mrs. Williams lay bleeding on the floor, Lawrence repeatedly stabbed her with the potato peeler. Lawrence then left the office (and her victim) and returned the gun to its hiding place at her sister's home. Dr. Williams found his wife's dead body at the dental office.

[194] In reversing the Board's decision to release her on parole, the Governor primarily relied on the nature and circumstances of Lawrence's first degree murder of Mrs. Williams: "[T]he murder perpetrated by Ms. Lawrence demonstrated a shockingly vicious use of lethality and an exceptionally callous disregard for human suffering because after she shot Mrs. Williams -- four times -- causing her to collapse to the floor, Ms. Lawrence stabbed her repeatedly. . . . This was a cold, premeditated murder carried out in an especially cruel manner and committed for an incredibly petty reason."

[195] 2. Lawrence's Post-murder Flight and Fugitive Status

[196] Lawrence was not immediately implicated in Mrs. Williams's murder. A short time after the crime, Lawrence left Los Angeles for Chicago, where several members of her extended family lived. While there, one of her siblings informed Lawrence the FBI had issued a fugitive warrant for her arrest. At her parole consideration hearing in August 2005 Lawrence stated, after learning she was wanted for Mrs. Williams's murder, she had intended to return to Los Angeles, but while on the flight from Chicago decided she was not ready to accept responsibility for her crime. When the airplane landed, she immediately boarded a bus for Las Vegas and remained a fugitive for the next 11 years. During that time she lived in several different cities under various assumed names and with related false identity papers (including, it appears, social security numbers and passports).*fn124

[197] Lawrence finally returned to California in 1982, met with an attorney and surrendered to the authorities. Lawrence denied any involvement in Mrs. Williams's murder and instead tried to blame Dr. Williams. Testifying on her own behalf at trial in August 1983, Lawrence denied killing Mrs. Williams, insisted she did not want to marry Dr. Williams and asserted it was "no big thing" when he ended their relationship. (People v. Lawrence (Sept. 17, 1985, B003354) [nonpub. opn.].) The jury disbelieved Lawrence and convicted her of first degree murder. She was sentenced to an indeterminate state prison term of seven years to life in accordance with the sentencing scheme in effect at the time she committed the murder.*fn125

[198] Lawrence's flight from California and her fugitive status for 11 years following the murder of Mrs. Williams, as well as her denial of involvement in the crime when she finally returned to California in 1982, were also identified by the Governor in explaining his reasons for reversing the Board's parole decision.

[199] 3. The Early Psychological Assessments of Lawrence as Suffering from Narcissistic Personality Disorder and Being Moderately Psychopathic

[200] Although observing that more recent mental health evaluations of Lawrence were favorable and included low risk assessments, in reversing the Board's parole decision the Governor noted Lawrence had been identified in early evaluations as "sociopathic, unstable, and moderately psychopathic." Lawrence's initial psychological evaluation for the Board, conducted in September 1984 while her appeal was still pending in this court, indicated "a high degree of repressed hostility that is marginally controlled. . . . Because emotions are only controlled intellectually, and because that control is marginal, the potential for emotional explosion or severe depression is high unless adjustments are made. Test results indicate that the former is more probable, and emotional problems may be accompanied by violent acting- out behavior." Following several positive assessments, in October 1990 Lawrence was diagnosed with "antisocial personality disorder in partial remission, with remaining narcissistic, histrionic and antisocial personality traits." Her scores on the Minnesota Multiphasic Personality Inventory (MMPI) showed "the typical configuration for a sociopathic or unstable personality but the scores are relatively low and on the dividing line between normal and disturbed." Her potential for violence was "indeterminable at this time." A follow-up psychological assessment in August 1991 noted features of three personality disorders: borderline personality disorder, antisocial personality disorder and avoidant personality disorder. Lawrence wrote a "letter/grievance" after receiving this report and had a second interview with the evaluating psychologist, who described her as "very angry." After further discussion with a colleague, the psychologist prepared an addendum report in which he stated Lawrence met the full criteria for a narcissistic personality disorder, which is characterized, in part, by reacting to criticism with feelings of rage, shame or humiliation. Lawrence was rated on Robert Hare's psychopathy checklist, a commonly used diagnostic tool, and scored as moderately psychopathic. Lawrence declined the invitation to take another MMPI.

[201] 4. Evidence Supporting Lawrence's Current Suitability for Parole

[202] The majority opinion accurately recites Lawrence's exemplary record while incarcerated and the many positive factors upon which the Board relied in August 2005 to conclude she was suitable for parole, including the absence of any history of violent crime prior to the murder of Mrs. Williams, Lawrence's current remorse and acceptance of responsibility for her criminal behavior and her maturation, growth, greater understanding and advancing age. As discussed by the Board and my colleagues, and noted by the Governor, Lawrence's more recent psychological evaluations are largely positive. In addition, she has earned bachelor's and master's degrees (in psychology and business administration) while in prison, participated in a wide variety of self- help and vocational programs and capably performed in leadership positions within the prison. Lawrence has realistic parole plans, has maintained close ties with members of her family and has had no serious prison disciplinary record. In short, there is no doubt that she is a strong candidate for release on parole or that the Board's decision to release her was a reasonable one. But that, of course, is simply not the question we are to address.

[203] 5. The Governor's Decision Reflects Due Consideration of the Specified Factors, Is Supported by "Some Evidence" and Is Not Arbitrary or Capricious

[204] a. The Standard Governing Limited Judicial Review of the Governor's Parole Decisions: "Some Evidence Related to the Specified Factors Governing Parole"

[205] The California Constitution vests the Governor with the power to override parole decisions made by the Board in cases involving convictions for murder. (Cal. Const., art. V, § 8, subd. (b).) The Governor may review decisions of the Board, and affirm, modify or reverse the Board's decision on the "basis of the same factors which the parole authority is required to consider." (Ibid.; Pen. Code, § 3041.2.) Those factors include the nature and circumstances of the commitment offense, which encompasses behavior before, during and after the crime; the prisoner's past and present mental state, including psychological factors related to the crime; and the prisoner's past and present attitude toward the crime. (Cal. Code Regs., tit. 15, § 2281, subds. (b), (c)(1) & (5); see also Pen. Code, § 3041, subd. (b) [Board authorized to determine individual is unsuitable for parole if it 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"].) Although "the Governor's decision must be based upon the same factors that restrict the Board in rendering its parole decision," (Rosenkrantz, supra, 29 Cal.4th at p. 660), the Governor undertakes an independent, de novo review of the prisoner's suitability for parole. (Ibid.)

[206] In Rosenkrantz, supra, 29 Cal.4th at pages 663 to 664, the California Supreme Court held a prisoner granted parole by the Board has a legitimate expectation the Governor's decision to reverse that determination will be based upon the same factors the Board is required to consider, giving rise to a liberty interest protected by the due process clause of the California Constitution. (Cal. Const., art. I, § 7, subd. (a).) "[B]ecause due process of law requires that a decision considering such factors be supported by some evidence in the record, the Governor's decision is subject to judicial review to ensure compliance with this constitutional mandate." (Rosenkrantz, at p. 664.) The Supreme Court repeatedly described the "some evidence" standard as "extremely deferential" (e.g., id. at pp. 665, 679), requiring only a "modicum of evidence" to support the decision (id. at p. 677), and stated judicial review of a Governor's parole decision is limited to a determination whether the decision is "supported by some evidence related to the specified factors governing parole . . . ." (Id. at p. 667; see also id. at p. 670 ["We have determined that the judicial branch properly can review a gubernatorial decision reversing a grant of parole, in order to ascertain whether the decision is supported by some evidence related to the pertinent criteria specified by law"].) "[A] court is authorized to review the factual basis of the Governor's decision only to determine whether it is supported by some evidence relevant to the factors the Governor is required to consider under article V, section 8(b) [of the California Constitution]." (Rosenkrantz, at p. 626.)

[207] The Rosenkrantz Court made plain that the courts were not authorized to review the Governor's weighing of the various factors that indicated suitability or unsuitability for parole, but only to determine whether the factors considered by the Governor in reaching a decision were actually supported by some evidence and whether the Governor had decided the case on an individualized basis: "[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor, 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 Governor'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 Governor's decision." (Rosenkrantz, supra, 29 Cal.4th at p. 677; accord, In re Elkins (2006) 144 Cal.App.4th 475, 492 ["while Elkins argues that the Governor did not give favorable factors enough weight, our `some evidence' scope of review does not allow us to second-guess the Governor's weighting choices"].)*fn126

[208] b. Some Evidence Supports the Governor's Primary Reliance on the Nature and Circumstances of the Commitment Offense to Reverse the Board's Grant of Parole

[209] Although the Governor's statement of reasons for reversing the Board's grant of parole discussed Lawrence's flight from California and 11 years as a fugitive from justice, her denial of any involvement in the murder upon her return to California and her early psychological assessments indicating the possibility of multiple personality disorders, all factors properly considered in evaluating her suitability for parole, the Governor concluded "the gravity alone of this murder is a sufficient basis on which to conclude presently that Ms. Lawrence's release from prison would pose an unreasonable public-safety risk": "[T]he murder perpetrated by Ms. Lawrence demonstrated a shockingly vicious use of lethality and an exceptionally callous disregard for human suffering . . . ." (See generally Rosenkrantz, supra, 29 Cal.4th at p. 682 ["[t]he nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole"]; In re Dannenberg (2005) 34 Cal.4th 1061, 1094 [same] (Dannenberg).)

[210] The majority does not truly dispute that some evidence supports the Governor's characterization of Lawrence's premeditated murder of Mrs. Williams as shockingly vicious or exceptionally callous. Rather, utilizing a variant of the comparative analysis rejected in a related context by Dannenberg, supra, 34 Cal.4th at page 1098, the majority simply asserts it is hard to characterize Lawrence's crime as "more `atrocious,' `heinous,' `callous,' or committed with more `extreme lethality' than most of the other murders described" in other appellate decisions discussed by the majority.*fn127 That, of course, is not the proper question for us to address in deciding whether, in the exercise of extremely deferential review, to overturn the Governor's decision to reverse the Board's grant of parole.*fn128

[211] At least implicitly recognizing the disingenuousness of directly challenging the Governor's characterization of the commitment offense on the ground there is not even a modicum of evidence to support it, the majority follows the lead of several recent decisions by Courts of Appeal and asserts the proper question is not whether there is some evidence to support the Governor's findings, but whether, notwithstanding that assessment of the commitment offense, there is some evidence to support the Governor's ultimate conclusion that release of Lawrence would create an unreasonable risk to the public.*fn129 (See, e.g., In re Lee (2006) 143 Cal.App.4th 1400, 1408 ["The test is not whether some evidence supports the reasons the Governor cites for denying parole, but whether some evidence indicates a parolee's release unreasonably endangers public safety. . . . Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee's release unreasonably endangers public safety"];*fn130 In re Elkins, supra, 144 Cal.App.4th at p. 502 [Governor's decision reversing Board's grant of parole on basis of facts of offense "lacks `some evidence' that granting parole posed `an unreasonable risk of danger to society' [citation]"]; see also In re Weider (2006) 145 Cal.App.4th 570, 589 ["these cases [upholding parole denials] implicitly acknowledge that the overarching consideration in the suitability determination is whether the inmate is currently a threat to public safety. [Citations.] Weider's act of simply going out to his car to retrieve the murder weapon does not reflect the type of heinous, atrocious, or cruel behavior described in the foregoing cases and does not rationally indicate that he will present an unreasonable public safety risk if released from prison"].)

[212] However appealing this recasting of the some-evidence standard may be to my colleagues' sense of justice in this particular case, it is squarely at odds with the clear holding of Rosenkrantz, which precludes us from intruding on the Governor's constitutional authority to weigh the specified factors relevant to parole suitability. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) The majority, of course, does not acknowledge that its analysis involves an impermissible reweighing of suitability and unsuitability factors. But if a factor is properly part of the evaluation of a prisoner's suitability for parole, as specified either by statute or by regulation, and if the existence of that factor is supported by some evidence, to hold the same evidence does not support the ultimate conclusion concerning parole suitability is possible only if the court decides the probative (or predicative) value of that factor is outweighed by other indicia of suitability. It is precisely that determination the electorate entrusted to the Governor's discretion, not the courts', when it adopted article V, section 8, subdivision (b), of the California Constitution. (See Rosenkrantz, supra, 29 Cal.4th at p. 667 [judicial review of Governor's parole decision limited to determination whether decision is "supported by some evidence related to the specified factors governing parole"].)

[213] c. Ninth Circuit Case Authority Does Not Justify Overturning the Governor's Decision

[214] As a corollary to its reformulation of the some-evidence standard, citing obiter dicta from two decisions from the United States Court of Appeals for the Ninth Circuit -- Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 916 (Biggs) ("[o]ver time . . . should Biggs continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of Biggs' offense and prior conduct would raise serious questions involving his liberty interest in parole") and Irons v. Carey (9th Cir. 2007) 479 F.3d 658, 665 (Irons) ("in some cases, indefinite detention based solely on an inmate's commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process") -- and several decisions from federal district courts sitting in California, the majority holds the Governor's continued reliance on the nature and circumstances of Lawrence's premeditated murder of Mrs. Williams to deny her parole violates due process.

[215] The United States Supreme Court has held that due process in the context of decisions affecting a prisoner's release date "requires only that there be some evidence to support the findings" made by the prison board (or, by extension, the Governor) and that the decision not otherwise be arbitrary. (Superintendent v. Hill (1985) 472 U.S. 445, 457 [105 S.Ct. 2768, 86 L.Ed.2d 356] [good time credits]; see Jancsek v. Oregon Bd. of Parole (9th Cir. 1987) 833 F.2d 1389, 1390 [parole denial]; Sass v. California Bd. of Prison Terms (9th Cir. 2006) 461 F.3d 1123, 1129 ["`[t]he fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact.' [Citation.]"] (Sass).) That is the current state of federal due process law as it related to parole denials. The majority's assertion there is a different or more refined "Biggs v. Terhune standard" that permits courts to reverse the Governor's subjective weighing of the relevant factors relating to parole suitability notwithstanding the existence of some evidence to support the Governor's specific findings does not simply push the envelope of federal due process analysis but leaps far beyond its outer boundary.

[216] In Biggs the Ninth Circuit upheld the Board's determination the petitioner was unsuitable for parole because the commitment offense involved the murder of a witness and was carried out in a manner exhibiting a callous disregard for the life and suffering of another. (Biggs, supra, 334 F.3d at p. 913.) Although upholding the parole denial, the court did caution that continued reliance solely on the gravity of the commitment offense and the petitioner's conduct prior to that offense to deny parole might at some point violate due process: "A continued reliance in the future on an unchanging factor, the circumstances of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." (Id. at p. 917.) Other than speculate that such a situation could exist in the future, however, the court did not purport to give any substantive content to its ruminations.

[217] The lack of any holding or substantive standard in Biggs that purports to authorize a more rigorous judicial scrutiny of parole denials by either the Board or the Governor was emphasized last year in Sass, supra, 461 F.3d 1123, in which the Ninth Circuit rejected a prisoner's claim, based on the speculative dicta in Biggs, that the Board's determination he was unsuitable for parole at his third suitability hearing based on the unchanging factors of his commitment offense violated due process. The court held Sass's prior offenses and the gravity of his commitment offense constitute some evidence to support the Board's decision and emphasized it is not the proper function of the courts "to speculate about how future parole hearings could proceed." (Id. at p. 1129.)

[218] Finally, two months ago in Irons the Ninth Circuit once again upheld the denial of parole (this time reversing the district court's decision to grant the prisoner's petition for habeas corpus) and confirmed the holding of Sass that "denying parole to an individual in reliance on his offense of commitment did not violate due process." (Irons, supra, 479 F.3d at p. 664.) While once again musing that "at some point" and "in some cases" indefinite detention based solely on an inmate's commitment offense, regardless of the extent of his or her rehabilitation, could violate due process, the court emphasized, "All we held in those cases [Biggs and Sass] and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole . . . ." (Id. at p. 665.)

[219] It is true, as the majority explains, some district courts and federal magistrate judges have relied upon the Biggs dicta to overturn parole unsuitability determinations. Those decisions, however, do not appear to hold that the gravity of the commitment offense has no predicative value in assessing the prisoner's current risk to public safety if released but rather that, because the inmate can never change the historic facts relating to her or his crime, continued reliance on those facts impermissibly transforms the sentence received into life without the possibility of parole.

[220] For example, in Martin v. Marshall (N.D.Cal. 2006) 431 F.Supp.2d 1038, the district court granted the petition for writ of habeas corpus challenging the Governor's reversal of the Board's grant of parole to an inmate who had served 26 years in state prison on a 20-years-to-life sentence imposed for second degree murder with a firearm enhancement. The court found the Governor's reasoning in support of his decision "thin to the point of being pretextual" (id. at p. 1049), and held his reliance on petitioner's flight from the scene of the crime without securing medical help and involvement with drugs at the time he committed the crime did not constitute evidence that supported the reversal of the grant of parole. "Because petitioner cannot change the past, denying petitioner parole based only on the facts surrounding the crime itself effectively changes his sentence from twenty years-to-life into life imprisonment without the possibility of parole." (Id. at p. 1046.)

[221] Similarly, in Irons v. Warden of California State Prison -- Solano (E.D.Cal. 2005) 358 F.Supp.2d 936, a federal magistrate judge, in an opinion adopted by the district court but then reversed by the Ninth Circuit in Irons, supra, 479 F.3d 658, found a due process violation in the denial of parole to the petitioner who had served 16 years of a 17- years-to-life sentence for second degree murder: "[C]ontinuous reliance on unchanging circumstances transforms an offense for which California law provides eligibility for parole into a de facto life imprisonment without the possibility of parole. . . . Given that no one seriously contends lack of seriousness or lack of triviality at the present time, the potential for parole in this case is remote to the point of non- existence. Petitioner's liberty interest should not be determined by such an arbitrary, remote possibility." (358 F.Supp.2d at p. 947.)

[222] On the other hand, in Singler v. Schwarzenegger (N.D.Cal. April 3, 2007, No. C 06-3373 SI) 2007 U.S. Dist. LEXIS 28755, District Judge Susan Illston, after examining the Ninth Circuit's decisions in Biggs, Sass and Irons, explained, "Past criminal conduct is not some arbitrary factor like eye color that has nothing to do with present dangerousness. Recidivism concerns are genuine. [Citation.] California's parole scheme does not offend due process by allowing the [Board] to predict that an inmate presents a present danger based on a murder he committed many years ago." (Id. at pp. 13-14; see also Mejia v. Kane (N.D.Cal. Jan. 3, 2007, No. C 06-04097 WHA) 2007 U.S.Dist. LEXIS 3078 ["it is improper to rely on the dicta from Biggs to grant habeas corpus relief . . . . However wise Biggs' statement was, it is Ninth Circuit dicta without apparent foundation in any United States Supreme Court holding"]; Hill v. Kane (N.D.Cal. Oct. 23, 2006, No. C 06-3203 SI) 2006 U.S.Dist. LEXIS 79023 ["the parole board is not precluded from relying on unchanging factors such as the circumstances of the commitment offense or the petitioner's pre-offense behavior in determining parole suitability"].)

[223] Whatever minimal persuasive value the federal cases cited by the majority may have, they do not justify overturning the Governor's decision and granting Lawrence's petition. To be sure, after confirming that the nature of the commitment offense alone can constitute a sufficient basis for denying parole (Rosenkrantz, supra, 29 Cal.4th at pp. 682, 683 ["the [parole] authority properly may weigh heavily the degree of violence used and the amount of viciousness shown by a defendant"]), the Supreme Court in Rosenkrantz observed that "[i]n some circumstances, a denial of parole based upon the nature of the offense alone might rise to the level of a due process violation -- for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set `in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .' [Citation.]" (Id. at p. 683; accord, Dannenberg, supra, 34 Cal.4th at pp. 1094-1095.)

[224] For our purposes, what the Rosenkrantz Court did not say in this portion of its opinion is as significant as what it did. In holding the Governor properly considered the circumstances of Rosenkrantz's crime in denying parole, the Court did not in any way suggest that over time the egregious nature of the commitment offense loses all predicative or probative value in assessing the prisoner's suitability for parole -- a belief that is the lynchpin for the majority's opinion in this case -- or endorse the view that continued reliance on the aggravated nature of the crime to evaluate the prisoner's current risk to the public impermissibly interferes with the rehabilitative goals of the prison system. Rather the Court's concern, as it was three years later in Dannenberg, supra, 34 Cal.4th 1061, was to reconcile the general rule requiring uniform terms for offenses of similar gravity (Pen. Code, § 3041, subd. (a)) with the Board's and the Governor's responsibility for case-by-case parole suitability determinations. That balance was achieved by requiring a parole denial based solely on the circumstances surrounding the commitment offense be supported by some evidence suggesting the inmate's crime involved "violence or viciousness . . . more than minimally necessary to convict him of the offense for which he is confined" (Dannenberg, at p. 1095) or "particularly egregious acts beyond the minimum necessary to sustain a conviction" for the commitment offense. (Rosenkrantz, supra, 29 Cal.4th at p. 683.)

[225] Pursuant to Rosenkrantz and Dannenberg, therefore, if some evidence supports the Governor's assessment that the prisoner committed the murder in an aggravated manner or that his or her behavior before, during or after the crime was particularly egregious -- proper considerations for both the Board and the Governor in determining parole suitability -- a court may not substitute its judgment for the Governor's as to the predicative value of those factors. Whatever law professors or social scientists may say about recidivism rates for murderers (see, e.g., Park, Symposium: Character at the Crossroads (1998) 49 Hastings L.J. 717, 771 ["It is not surprising to find the recidivism rate for convicted murderers to be low, if only because their productivity as murderers is likely to be impaired by age by the time they are released"]) -- and notwithstanding my colleagues' own speculation about which types of murderers are more or less likely to be repeat offenders, logical though their conjecture may be -- weighing the significance of these factors against others that suggest the prisoner presents a low risk to the public if released on parole is not a judicial function. Nor can we rewrite the parole eligibility statutes and regulations to provide that at some point the nature of the commitment offense may not be considered at all, no matter its predicative value. That is a task for the Legislature.

[226] In my view, the majority violates both of those principles. As described in section 1, above, at least some evidence supports the Governor's characterization of the commitment offense in this case as involving a shockingly vicious use of lethality and an exceptionally callous disregard for human suffering, circumstances beyond the minimum necessary to sustain Lawrence's conviction for first degree murder.*fn131 In addition, Lawrence's post-crime behavior and attitude toward the offense (her 11 years as a fugitive from justice and subsequent denial of involvement in the murder), cited by the Governor, are also relevant considerations in evaluating her suitability for parole. No more need be shown to uphold the Governor's decision.

[227] d. The Governor's Decision to Reverse the Board Provided the Requisite "Individualized Consideration" to Lawrence's Case and Was Not Otherwise Arbitrary Or Capricious

[228] In her petition Lawrence asserts the Governor's indifference to evidence of her significant emotional distress at the time she murdered Mrs. Williams denies her the right to an individualized consideration of all relevant factors. The majority echoes this contention, chastising the Governor for diminishing the significance of the emotional distress factor in the commission of the crime and thereby confusing culpability for a past crime with the predictability of future crimes. These arguments are misplaced. (See Rosenkrantz, supra, 29 Cal.4th at p. 670 ["Although the Governor is required to consider whether the prisoner committed the crime as the result of significant stress in his or her life, the importance attached to this circumstance is left to the judgment of the Governor"].)

[229] Although the Governor in any review of a decision by the Board must consider all available relevant and reliable information in determining suitability for parole, the Governor is required only to provide a written statement specifying his reasons for any reversal or modification of a Board decision. Neither the due process clause nor the governing statutes obligates the Governor to provide a detailed written analysis of each parole suitability factor. (In re Elkins, supra, 144 Cal.App.4th at p. 492 ["it does appear that the Governor considered and at least implicitly accepted all of the above favorable factors"]; In re McClendon (2003) 113 Cal.App.4th 315, 323; In re Morrall (2002) 102 Cal.App.4th 280, 299-300.)

[230] When he reversed the Board's grant of parole to Lawrence, the Governor represented he had considered the same factors the Board had considered. There is no reason to conclude he did not in fact do so. Indeed, the Governor's written decision specifically enumerated many of the factors supporting Lawrence's release on parole, including her lack of prior criminal record, her educational accomplishments while incarcerated and her participation in self-help and therapy programs. That the decision did not discuss each of the factors relied upon by the Board in granting parole does not mean the Governor did not review each of the factors or consider all of the evidence. (See In re Elkins, supra, 144 Cal.App.4th at p. 492, fn. 4 ["This record does not show a failure to give individual consideration to all factors, and Elkins cites no authority that a Governor's decision must specify in detail every pertinent fact relied upon"]; In re Morrall, supra, 102 Cal.App.4th at p. 300 [the Governor "gave Morrall a written statement saying that he had considered the same factors considered by the Board, and he provided a statement of the specific reasons why he disagreed with the Board. Hence, the Governor's failure to discuss favorable information means only that he had no factual disagreement with respect to the Board's assessment of those factors. It does not mean that he failed to consider them"].)

[231] In sum, Lawrence was provided with the requisite procedural rights (see Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 12 [99 S.Ct. 2100, 60 L.Ed.2d 668] [inmate must be afforded opportunity to be heard before unbiased decision-maker and informed of reasons for denial of parole]; Jancsek v. Oregon Board of Parole, supra, 833 F.2d at p. 1390 [same]);*fn132 and the Governor applied controlling legal principles to the facts before him and rendered a decision supported by "some evidence." His decision to reverse the Board's grant of parole is fully consistent with the requirements of procedural due process under both the California and United States Constitutions. (See Dannenberg, supra, 34 Cal.4th at p. 1071.) Accordingly, I would deny Lawrence's petition for writ of habeas corpus.

[232] PERLUSS, P. J.


Opinion Footnotes

[233] *fn1 Since the father lived to 110 and the mother into her 90's, Lawrence's birth was not as late in her parents' lives as it might have appeared at the time.

[234] *fn2 Italics added.

[235] *fn3 Italics added.

[236] *fn4 In re Rosenkrantz (2002) 29 Cal.4th 616, 657.

[237] *fn5 In re Rosenkrantz, supra, 29 Cal.4th at page 660, italics added.

[238] *fn6 In re Rosenkrantz, supra, 29 Cal.4th at page 661.

[239] *fn7 In re Rosenkrantz, supra, 29 Cal.4th at page 658, italics added.

[240] *fn8 In re Rosenkrantz, supra, 29 Cal.4th at page 667, italics added.

[241] *fn9 In re Dannenberg (2005) 34 Cal.4th 1061.

[242] *fn10 Further statutory references are to the Penal Code. Section 3041, subdivision (a) reads in pertinent part:
"One year prior to the inmate's minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5. No more than one member of the panel shall be a deputy commissioner. In the event of a tie vote, the matter shall be referred for an en banc hearing by the Board. The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime."

[243] *fn11 Section 3041, subdivision (a), italics added.

[244] *fn12 Section 3041, subdivision (b) reads in pertinent part:
"The panel or the board, sitting en banc, shall set a release date unless it determines that 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."

[245] *fn13 In re Dannenberg, supra, 34 Cal.4th at pages 1087- 1088.

[246] *fn14 In re Rosenkrantz, supra, 29 Cal 4th at page 654, italics added.

[247] *fn15 In re Dannenberg, supra, 34 Cal.4th at page 1071, italics added.

[248] *fn16 In re Dannenberg, supra, 34 Cal.4th at page 1080, italics added.

[249] *fn17 In re Dannenberg, supra, 34 Cal.4th at page 1080, quoting In re Duarte (1983) 143 Cal.App.3d 943, 948, italics added.

[250] *fn18 In re Rosenkrantz, supra, 29 Cal.4th at page 683, italics added.

[251] *fn19 In re Dannenberg, supra, 34 Cal.4th at page 1095, italics omitted.

[252] *fn20 In re Rosenkrantz, supra, 29 Cal.4th at page 658, footnote 12.

[253] *fn21 Greenholtz v. Inmates of Nebraska Penal and Correctional Complex (1979) 442 U.S. 1, 12.

[254] *fn22 Board of Pardons v. Allen (1987) 482 U.S. 369, 381.

[255] *fn23 Board of Pardons v. Allen, supra, 482 U.S. at pages 377- 381.

[256] *fn24 McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895.

[257] *fn25 McQuillion v. Duncan, supra, 306 F.3d at page 901.

[258] *fn26 McQuillion v. Duncan, supra, 306 F.3d at page 901.

[259] *fn27 Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910.

[260] *fn28 Biggs v. Terhune, supra, 334 F.3d at page 915.

[261] *fn29 Biggs v. Terhune, supra, 334 F.3d at page 915.

[262] *fn30 Biggs v. Terhune, supra, 334 F.3d at pages 916- 917, italics added.

[263] *fn31 Biggs v. Terhune, supra, 334 F.3d at page 912.

[264] *fn32 See cases discussed at pages 46- 48, below.

[265] *fn33 Sass v. California Board of Prison Terms (9th Cir. 2006) 461 F.3d 1123.

[266] *fn34 Sass v. California Board of Prison Terms (2005) 376 F.Supp.2d 975.

[267] *fn35 Sass v. California Board of Prison Term, supra, 376 F.Supp.2d at pages 981- 983.

[268] *fn36 Sass v. California Board of Prison Terms, supra, 461 F.3d at pages 1127- 1128.

[269] *fn37 Sass v. California Board of Prison Terms, supra, 461 F.3d at page 1125.

[270] *fn38 Sass v. California Board of Prison Terms, supra, 461 F.3d at page 1129.

[271] *fn39 Sass v. California Board of Prison Terms, supra, 461 F.3d at page 1130, footnote 1 (dis. opn. of Reinhardt, J.).

[272] *fn40 Sass v. California Board of Prison Terms, supra, 461 F.3d at page 1138.

[273] *fn41 Sass v. California Board of Prison Terms, supra, 461 F.3d at page 1132.

[274] *fn42 Sass v. California Board of Prison Terms, supra, 461 F.3d at page 1129.

[275] *fn43 Irons v. Carey (9th Cir. 2007) 479 F.3d 658.

[276] *fn44 In Irons v. Warden of California State Prison- Solano (E.D.Cal. 2005) 358 F.Supp.2d 936, 939 a district court judge in the Eastern District (J. Karlton) found a 17- year- old commitment offense insufficient as "some evidence" of the prisoner's continued dangerousness, even though it was coupled with some other pre- conviction criminality. Similar to Lawrence, Irons had both shot and stabbed the victim. (Id. at pages 940- 941.) In March 1984, the prisoner and the victim were renting rooms in the same house and the landlords told Irons the victim had stolen some items from them. Irons went to the victim's room and an argument ensued, with the victim denying the alleged thefts. Irons left and retrieved a rifle from his room. He fired 12 rounds into the victim then told him he was going to let him bleed to death. Then he pulled out a knife and stabbed the victim twice in the back, rolled him up into a sleeping bag and locked the room. Ten days later he weighted the sleeping bag, drove the body to a deserted coastal area and threw it into the surf. In 2001, some 17 years after Irons's crime and conviction, the Board denied him a release date, a decision that after being upheld in the California state courts came before the federal courts on a habeas corpus petition. The Board's denial was based on a finding Irons committed the murder in a calculated manner, demonstrated a callous disregard for human life, and for a trivial motive. Furthermore, at the time of the crime Irons was a drug user. (Id. at page 944.) The district court found these factors failed to supply "some evidence" of present dangerousness under the standard of review declared in Biggs, but made a somewhat different point than the judge in Rosenkrantz.
"[I]mportant . . . in assessing any due process violation is the fact that continuous reliance on unchanging circumstances transforms an offense for which California law provides eligibility for parole into a de facto life imprisonment without the possibility of parole. The court asks rhetorically-what is it about the circumstances of petitioner's crime or motivation which are going to change? The answer is nothing. The circumstances of the crimes will always be what they were, and petitioner's motive for committing them will always be trivial. . . . Given that no one seriously contends lack of seriousness or lack of triviality at the present time, the potential for parole in this case is remote to the point of non- existence. Petitioner's liberty interest should not be determined by such an arbitrary, remote possibility.
"In the instant case, the [Board] has apparently relied on these unchanging factors at least four prior times in finding petitioner unsuitable for parole. Petitioner has `continue[d] to "demonstrate exemplary behavior and evidence of rehabilitation."' [Citation.] Under these circumstances, the continued reliance on these factors at the 2001 hearing violated due process." (Id. at page 947, footnote omitted.)

[277] *fn45 Irons v. Carey, supra, 479 F.3d at pages 664- 665.

[278] *fn46 Irons v. Carey, supra, 479 F.3d at pages 661- 662. Two of the panel members, Judges Noonan and Reinhardt, were deeply concerned about the constitutionality of the AEDPA's constraints on their review of the state court's decision upholding denial of parole in this case. The court requested supplemental briefing on that issue (Id. at page 665, footnote 5) and Judge Noonan filed a separate concurring opinion, joined by Judge Reinhardt, expressing grave doubts about the AEDPA's constitutionality. The two judges ultimately yielded to a prior decision of the Ninth Circuit holding the Act constitutional, but invited a re- examination of that decision and its rationale. (Id. at pages 667- 670.) What is not made explicit in this concurring opinion is whether the result in Irons's case would have been different had the panel been free of the AEDPA's limitations on its review of this particular denial of parole. But there is more than a hint in the concurring opinion's recurring complaint about being confined to considering only that federal law which has been "`clearly established' . . . by the Supreme Court." (Id. at pages 666- 667.)

[279] *fn47 Superintendent v. Hill (1985) 472 U.S. 445, 454.

[280] *fn48 Irons v. Carey, supra, 479 F.3d at page 664.

[281] *fn49 Irons v. Carey, supra, 479 F.3d at pages 664- 665.

[282] *fn50 Irons v. Carey, supra, 479 F.3d at page 665, italics added.

[283] *fn51 Irons v. Carey, supra, 479 F.3d at page 662.

[284] *fn52 For general background on the alternative rationales for incarceration of convicted offenders as discussed in this opinion, see 1 LaFave, Substantive Criminal Law (2d ed. 2003), section 1.5, pages 36- 47, and authorities cited therein.

[285] *fn53 This can be viewed as either society's own retribution or society's retribution in behalf of the victim (that is, as a more orderly replacement for personal revenge by the victim or the victim's family). But the same proportionate period of imprisonment can be as easily justified as necessary in order to signify society's concern about the relative seriousness of the crime compared to other criminal acts.

[286] *fn54 Imprisonment for purposes of deterrence is generally deemed justifiable for as long as the maximum statutory term or for as long as is required to persuade the defendant or others who are rational enough to weigh costs and benefits that they would pay a heavy price in loss of freedom should they be convicted and imprisoned for the crime they might be contemplating.

[287] *fn55 For purposes of parole, the "fixed minimum" is not necessarily the determinate term specified in the statute in effect at the time the court sentenced the defendant-for example, the seven years in the "seven years to life" sentence Lawrence received. That minimum can be decreased by credits for time served and good conduct in prison. It also can be increased by application of the "matrix" which sets the minimum period before a prisoner is eligible for parole. This matrix takes account of factors demonstrating the crime the prisoner committed was more or less serious than the bare elements of the commitment offense. Thus, the de facto minimum sentence may be far longer (or sometimes shorter) than the statutory minimum embodied in the determinate element of the sentence-depending largely on the prisoner's relative culpability. This was true in Lawrence's case where, as explained earlier (see pages 8, 10 and 14, above) applying the matrix resulted in fixing her minimum release date not at seven years (or seven years minus time earned by good conduct credits) but at over 10 years because of her enhanced culpability given the circumstances of the crime she committed.

[288] *fn56 Section 3041, subdivisions (a) and (b), quoted in footnotes 10 and 12, above.

[289] *fn57 Section 3041, subdivision (a).

[290] *fn58 Section 3041, subdivision (b), italics added.

[291] *fn59 In re Dannenberg, supra, 34 Cal.4th at page 1098.

[292] *fn60 In re DeLuna (2005) 126 Cal.App.4th 585, 591, quoting In re Rosenkrantz, supra, 29 Cal.4th at page 655, italics added.

[293] *fn61 California Code of Regulations, title 15, section 2402, subdivision (c)(1).

[294] *fn62 California Code of Regulations, title 15, section 2402, subdivision (c)(2)- (6).

[295] *fn63 California Code of Regulations, title 15, section 2402, subdivision (d).

[296] *fn64 "The test is not whether some evidence supports the reasons the Governor cites for denying parole, but whether some evidence indicates a parolee's release unreasonably endangers public safety." (In re Lee (2006) 143 Cal.App.4th 1400, 1408, italics added.)

[297] *fn65 In re Scott (2005) 133 Cal.App.4th 573, 595, italics added.

[298] *fn66 In re Smith (2003) 109 Cal.App.4th 489.

[299] *fn67 In re Smith, supra, 109 Cal.App.4th at pages 492- 493

[300] *fn68 In re Smith, supra, 109 Cal.App.4th at page 492.

[301] *fn69 In re Smith, supra, 109 Cal.App.4th at pages 504- 505.

[302] *fn70 In re Scott, supra, 133 CalApp.4th 573.

[303] *fn71 In re Smith, supra, 109 Cal.App.4th at page 579.

[304] *fn72 In re Smith, supra, 109 Cal.App.4th at page 580, footnote 1,

[305] *fn73 In re Scott, supra, 133 CalApp.4th at pages 585- 587.

[306] *fn74 In re Scott, supra, 133 CalApp.4th at pages 586, 587.

[307] *fn75 In re Scott, supra, 133 CalApp.4th at pages 600- 601.

[308] *fn76 In re Lee, supra, 143 Cal.App.4th at page 1404.

[309] *fn77 In re Lee, supra, 143 Cal.App.4th at pages 1404- 1405.

[310] *fn78 In re Lee, supra, 143 Cal.App.4th at page 1409.

[311] *fn79 In re Lee, supra, 143 Cal.App.4th at page 1409.

[312] *fn80 In re Lee, supra, 143 Cal.App.4th at page 1409.

[313] *fn81 In re Weider (2006) 145 Cal.App.4th 570, 575- 576.

[314] *fn82 In re Weider, supra, 145 Cal.App.4th at pages 577- 579, 581.

[315] *fn83 In re Weider, supra, 145 Cal.App.4th at pages 582- 583.

[316] *fn84 In re Weider, supra, 145 Cal.App.4th at pages 590- 591.

[317] *fn85 In re Weider, supra, 145 Cal.App.4th at page 589, italics added.

[318] *fn86 In re Elkins (2006) 144 Cal.App.4th 475, 479- 480.

[319] *fn87 In re Elkins, supra, 144 Cal.App.4th at pages 486, 493.

[320] *fn88 In re Elkins, supra, 144 Cal.App.4th at pages 480- 481.

[321] *fn89 In re Elkins, supra, 144 Cal.App.4th at page 479.

[322] *fn90 In re Elkins, supra, 144 Cal.App.4th at page 481.

[323] *fn91 In re Elkins, supra, 144 Cal.App.4th at pages 483, 484 and footnote 2, 493, footnote 5.

[324] *fn92 In re Elkins, supra, 144 Cal.App.4th at pages 483- 484, 493, footnote 5.

[325] *fn93 In re Elkins, supra, 144 Cal.App.4th at page 480.

[326] *fn94 In re Elkins, supra, 144 Cal.App.4th at page 486.

[327] *fn95 In re Elkins, supra, 144 Cal.App.4th at page 494.

[328] *fn96 In re Elkins, supra, 144 Cal.App.4th at page 495.

[329] *fn97 In re Elkins, supra, 144 Cal.App.4th at pages 496- 499.

[330] *fn98 In re Elkins, supra, 144 Cal.App.4th at page 498.

[331] *fn99 In re Elkins, supra, 144 Cal.App.4th at page 500.

[332] *fn100 See pages 46- 48, below.

[333] *fn101 In re Elkins, supra, 144 Cal.App.4th at page 502.

[334] *fn102 "The Governor's decision reversing the Board decision granting Elkins parole is vacated. Elkins's petition for habeas corpus is granted. The Board is ordered to release Elkins forthwith pursuant to the conditions set forth in its decision of March 4, 2005. Considering that release by the Board would have been final on June 30, 2005, over a year ago, and in the interests of justice, this opinion shall be final as to this court immediately." (In re Elkins, supra, 144 Cal.App.4th at p. 503.)

[335] *fn103 In re Elkins, supra, 144 Cal.App.4th 475, review denied and depublication request denied February 7, 2007.

[336] *fn104 Rosenkrantz v. Marshall (C.D. Cal. 2006) 444 F.Supp.2d 1063.

[337] *fn105 Biggs v. Terhune, supra, 334 F.3d 910, discussed at pages 23- 25, above.

[338] *fn106 Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at page 1084. Among other federal and state opinions the judge quoted was an unpublished 2006 district court opinion, Johnson v. Finn (E.D. Cal. 2006) 2006 WL 195159, which stated at page 8, footnote 3, "the seriousness of the crime had predictive value for the dangerousness of petitioner's release for the first, second, and perhaps third suitability hearing. But as the years go by, this factor loses its predictive value in light of the growing experience to the contrary (assuming petitioner's record in prison is exemplary)." (Ibid.)

[339] *fn107 Martin v. Marshall (N.D. Cal. 2006) 431 F.Supp.2d 1038, 1048.

[340] *fn108 Martin v. Marshall, supra, 431 F.Supp.2d at page 1040.

[341] *fn109 Martin v. Marshall, supra, 431 F.Supp.2d at page 1043.

[342] *fn110 Martin v. Marshall, supra, 431 F.Supp.2d at page 1046.

[343] *fn111 Martin v. Marshall, supra, 431 F.Supp.2d at page 1047.

[344] *fn112 At the 2005 hearing, after discussing the commission of the crime and her flight from prosecution two months later, Lawrence was asked if there was anything else she had to say about the crime itself. She responded: "I would like to let you know, you know, that I'm totally, totally aware of what I did. I take full responsibility for what I did. . . . And I made that first step back into reality to come and let you know that I do understand that I did something horrible, and I'm willing to suffer the consequences for what I did. And I lived here for 21 1/2 years suffering those consequences, and have grown and gotten stronger behind it. So I come to you today, apologizing as I do on a daily basis when it comes up in my mind - - apologize to Ruby [sic] Williams, knowing that I took her life. She was not my victim. She was the object of my rage. She was the object of my disgust with everything that had happened to my life, and my unfulfillment in my life up to that point. And it was an irrational act that I committed against her, her family, and that - - that - - that stone knife that I threw in that river that morning, how it affected so many people. I understand that. And I have stood strong here for 21 years letting everyone know that I was willing to make a change, and I worked every day to make a change and to let anybody and everybody know that nothing like that could happen in my life again, and anybody's life that comes within my contact, because my life is an open book where anybody could see how they can involved [sic] in situations that leads to much damage to people and society. So I just want to apologize to Ruby [sic] and her children for doing that to her, as well as to my children and my family, and to the community at large. I can't take it back. All I've done is try to work to improve myself and improve my surroundings. And that's all I can do today."
Later in the hearing, in answer to the question why she took out her rage on Mrs. Williams instead of Mr. Williams, who had chosen to stay with his wife, Lawrence explained: "Because women blame women when not getting what they want. They don't blame men. And a 24- year- old distraught, betrayed woman looked for the easiest probably person to take out any frustration on. I wanted him, so in my 24- year- old mine [sic], she was my problem - - he wasn't my problem. So it's irrational, it's unfounded, it's unfair, and I understand that now. She was not the person to blame for my rage. I just took it out on her because it was - - it was just probably the easiest thing to do to confront her instead of Robert."

[345] *fn113 In re Rosenkrantz, supra, 29 Cal 4th at page 683.

[346] *fn114 See pages 37- 48, above.

[347] *fn115 In re Smith, supra, 109 Cal.App.4th at pages 492- 493.

[348] *fn116 In re Scott, supra, 133 CalApp.4th at page 579.

[349] *fn117 In re Lee, supra, 143 Cal.App.4th at page 1404.

[350] *fn118 In re Weider, supra, 145 Cal.App.4th at pages 575- 576.

[351] *fn119 In re Elkins, supra, 144 Cal.App.4th at pages 480- 481.

[352] *fn120 Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at page 1065; In re Rosenkrantz, supra, 29 Cal.4th at pages 627- 629.

[353] *fn121 Martin v. Marshall, supra, 431 F.Supp.2d at page 1040.

[354] *fn122 Article V, section 8, subdivision (b), of the California Constitution provides, "No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. 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."

[355] *fn123 Penal Code section 3041.2 provides, "(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority's decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority. [¶] (b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision."

[356] *fn124 According to information contained in one of Lawrence's early psychological assessments, while a fugitive, Lawrence was arrested for her role in a financial scam, but escaped after being apprehended and relocated to another city under a new assumed identity. Lawrence also acknowledged she periodically experimented with cocaine and other controlled substances during the 11 years she lived as a fugitive. Although neither these offenses nor the other crimes potentially committed by Lawrence to obtain false government identification documents during her fugitive years should have any significant impact on the evaluation of Lawrence's current suitability for parole, they do belie Lawrence's suggestion that her conduct during this period was "crime free" and thus supports her release on parole.

[357] *fn125 By way of comparison, the penalty today for an individual with no prior felony convictions who commits first degree murder by using a firearm is 50 years to life. (Pen. Code, §§ 190, subd. (a), 12022.53, subd. (d).)

[358] *fn126 Although Rosenkrantz itself left the issue open (Rosenkrantz, supra, 29 Cal.4th at p. 658, fn. 12), the same "some evidence" standard governs any due process analysis under federal constitutional principles. (In re Dannenberg (2005) 34 Cal.4th 1061, 1098, fn. 18; see Sass v. California Bd. of Prison Terms (9th Cir. 2006) 461 F.3d 1123, 1128- 1129 [state cannot interfere with constitutionally protected liberty interest in parole without some basis in fact or in an otherwise arbitrary fashion]; McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895, 902 [due process demands that "some evidence support[] the decision" by the Board to revoke or deny parole].)

[359] *fn127 The majority's observation that reports explaining a parole denial by either the Board or the Governor in the cases we have reviewed on prisoners' petitions for writ of habeas corpus usually classify the murder involved as "especially atrocious, heinous or callous" does not in any way diminish the significance of that description; for one would assume that it is precisely those most grisly of crimes that warrant denial of parole. (If the Board has granted parole and the Governor has not reversed that decision, of course, we do not see a writ petition from the prisoner.) That the same language is used in those decisions reflects not rote use of hyperbole, as the majority appears to suggest, but the fact that the regulations governing the determination of parole suitability expressly provide as a circumstance tending to indicate unsuitability, "The prisoner committed the offense in an especially heinous, atrocious or cruel manner." (Cal. Code Regs., tit. 15, § 2281, subd. (c)(1).)

[360] *fn128 The majority's comparative approach is markedly different from the analysis in In re Scott (2005) 133 Cal.App.4th 573, one of the cases on which it purports to rely, in which the court found "the record contains no evidence Scott committed his offense `in an especially heinous, atrocious or cruel manner.'" (Id. at pp. 600- 601.)

[361] *fn129 As phrased by the majority, the question presented by Lawrence's petition is not whether there is "`some evidence' to support the Governor's findings, but `some evidence' sufficient to satisfy the statute's ultimate test, that is, `some evidence' the release of Lawrence would subject society to an `unreasonable risk' of danger to public safety." (Maj. opn., p. 35.)

[362] *fn130 Although Division Eight of this court in In re Lee, supra, 143 Cal.App.4th at page 1408, reframed the some- evidence test as whether there was evidence to support the ultimate conclusion of unsuitability rather than evidence of a specified factor relevant to the parole decision, when actually considering the Governor's decision, the court concluded there was no evidence to support the Governor's characterization of the crime as "atrocious" or "especially heinous." (See id. at pp. 1409- 1412 ["Lee's crimes were more commonplace than egregious"].)

[363] *fn131 In In re Van Houten (2004) 116 Cal.App.4th 339 the Court of Appeal noted the petitioner's offense was the equivalent of first degree murder without special circumstances justifying the death penalty or life without the possibility of parole. (Id. at p. 352.) Applying the standards articulated in Rosenkrantz, supra, 29 Cal.4th at page 683, the court reasoned that the presence of special circumstances would necessarily constitute "`particularly egregious acts beyond the minimum necessary to sustain' the conviction." (Van Houten, at p. 352.) The court then held some evidence supports the existence of several special circumstances in Van Houten's offense and reversed the trial court's order overturning the Board's decision denying her parole. (Ibid.) Contrary to Lawrence's argument, although Van Houten holds that the presence of facts establishing special circumstances under Penal Code section 190.2, subdivision (a), demonstrates "particularly egregious acts beyond the minimum necessary" for a first degree murder conviction, nothing in that case suggests the Board or the Governor is not entitled under Rosenkrantz and Dannenberg to consider the aggravated nature of the defendant's crime or her callous disregard for the suffering of her victim, facts surrounding the murder that may not qualify as a special circumstance, in weighing the gravity of the offense as it relates to parole suitability.

[364] *fn132 The Governor must conduct his review of the Board's decision within 30 days (Cal. Const., art. V, § 8, subd. (b)), affirm, modify or reverse that decision on the basis of the same factors as the Board is required to consider (ibid.) and provide the prisoner with a written statement of the reasons for his decision (Pen. Code, § 3041.2). Lawrence does not argue the Governor failed to comply with any of these procedural requirements.
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In re Lawrence, 190 P.3d 535, 82 Cal.Rptr.3d 169, 44 Cal.4th 1181 (Cal. 08/21/2008)

[1] IN THE SUPREME COURT OF CALIFORNIA

[2] No. S154018

[3] 190 P.3d 535, 82 Cal.Rptr.3d 169, 44 Cal.4th 1181, 2008 Daily Journal D.A.R. 13,171, 08 Cal. Daily Op. Serv. 11,070,

[4] August 21, 2008

[5] IN RE SANDRA DAVIS LAWRENCE

[6] Los Angeles County Super. Ct. No. A174924 Ct.App. 2/7 B190874 on Habeas Corpus.

[7] Attorneys for Appellant:

[8] Carrie L. Hempel, Michael J. Brennan and Heidi L. Rummel for Petitioner Sandra Davis Lawrence.

[9] Munger, Tolles & Olson, Blanca F. Young and Hailyn J. Chen for Stanford Criminal Justice Center as Amicus Curiae on behalf of Petitioner Sandra Davis Lawrence.

[10] Sean Kennedy, Federal Defender (Central District), Daniel Broderick, Federal Defender (Eastern District) and Monica Knox, Assistant Federal Defender, as Amici Curiae on behalf of Petitioner Sandra Davis Lawrence.

[11] Attorneys for Respondent:

[12] Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, J. Conrad Schroeder, Jennifer A. Neill, Gregory J. Marcot and Anya M. Binsacca, Deputy Attorneys General, for Respondent State of California.

[13] John R. Poyner, District Attorney (Colusa); Bonnie M. Dumanis, District Attorney (San Diego); Albert C. Locher, Assistant District Attorney (Sacramento); Richard J. Sachs, Deputy District Attorney (San Diego); and W. Scott Thorpe for California District Attorneys Association as Amicus Curiae on behalf of Respondent State of California.

[14] Counsel who argued in Supreme Court (not intended for publication with opinion):

[15] Carrie L. Hempel Usc Post Conviction Justice Project University of Southern California 699 Exposition Boulevard Los Angeles, CA 90089-0071 (213) 740-2586

[16] Julie L. Garland Assistant Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-704 (415) 703-5713

[17] The opinion of the court was delivered by: George, C. J.

[18] Filed 8/21/08 (this opn. precedes companion case, S155872, also filed 8/21/08)

[19] In 1971, Sandra Davis Lawrence (petitioner) murdered her lover's wife, Rubye Williams. Petitioner fled the state, remaining a fugitive until 1982, when she voluntarily returned to California and surrendered to the authorities. Petitioner declined a plea offer that would have resulted in a two-year prison sentence. After the jury returned a guilty verdict on a charge of first degree murder, the trial court imposed a sentence of life imprisonment - the statutory penalty for murders committed prior to November 8, 1978 - and set a minimum eligible parole date of November 29, 1990.

[20] In August 2005, after numerous hearings before the Board of Parole Hearings (the Board),*fn1 that entity for the fourth time found petitioner suitable for parole and set a parole date. In finding petitioner suitable for parole, the Board emphasized the presence of multiple statutory factors favoring suitability, including petitioner's exemplary record of rehabilitation, her acceptance of responsibility for the crime, her realistic parole plans, and her close ties to her family, who would offer her support in reintegrating into the community.

[21] The Governor, however, as he had done previously, found that the gravity of the commitment offense indicated petitioner remained unsuitable for parole, and reversed the Board's decision. In an original petition for writ of habeas corpus filed in the Court of Appeal, Second Appellate District, petitioner challenged on several grounds the Governor's decision denying parole. Finding the Governor lacked "some evidence" upon which to conclude, consistently with state and federal constitutional standards, that petitioner's release on parole would represent an "unreasonable risk" of danger to the community, the Court of Appeal in a split decision issued a writ vacating the Governor's reversal and reinstating the Board's 2005 grant of a parole release to petitioner.

[22] We granted review to consider the Attorney General's contention that the Court of Appeal improperly applied the highly deferential "some evidence" standard of review set forth in our decision in In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz) and later applied in In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg). The Attorney General disputes the appellate court's view that in order to uphold the Governor's decision, there must be some evidence demonstrating that petitioner remains a current threat to public safety, rather than merely some evidence supporting the Governor's characterization of the commitment offense as particularly egregious. For the reasons set forth below, we conclude that because the core statutory determination entrusted to the Board and the Governor is whether the inmate poses a current threat to public safety, the standard of review properly is characterized as whether "some evidence" supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous. Moreover, with regard to the aggravated circumstances of a commitment offense, we conclude that to the extent our decisions in Rosenkrantz and Dannenberg have been read to imply that a particularly egregious commitment offense always willprovide the requisite modicum of evidence supporting the Board's or the Governor's decision, this assumption is inconsistent with the statutory mandate that the Board and the Governor consider all relevant statutory factors when evaluating an inmate's suitability for parole, and inconsistent with the inmate's due process liberty interest in parole that we recognized in Rosenkrantz. (Rosenkrantz, supra, 29 Cal.4th at p. 664.) In some cases, such as this one, in which evidence of the inmate's rehabilitation and suitability for parole under the governing statutes and regulations is overwhelming, the only evidence related to unsuitability is the gravity of the commitment offense, and that offense is both temporally remote and mitigated by circumstances indicating the conduct is unlikely to recur, the immutable circumstance that the commitment offense involved aggravated conduct does not provide "some evidence" inevitably supporting the ultimate decisionthat the inmate remains a threat to public safety.

[23] Applying the "some evidence" standard to the case presently before us, we agree with the Court of Appeal that the record fails to support the Governor's conclusion that petitioner remains a current danger to public safety. Accordingly, we affirm the judgment of the Court of Appeal rendered in favor of petitioner.*fn2

[24] I.

[25] The facts underlying the commitment offense and the history of petitioner's parole hearings are not in dispute. The following summary is taken from the Court of Appeal's lengthy and thorough statement of the facts.

[26] A.

[27] Petitioner was born and raised in Birmingham, Alabama, the youngest of 12 children. Following her graduation from high school, she moved to Chicago, where she married and had two children. After her marriage dissolved due to her husband's infidelity and her own immaturity, petitioner relocated to Los Angeles, where several of her siblings resided. She took a position as a receptionist in her brother's dental office, where she met and began a romantic affair with Robert Williams, a married dentist employed by her brother. Williams's wife, the victim Rubye Williams, was aware of the affair. She frequently confronted both petitioner and her husband about the relationship in telephone calls and notes left on the front door of the apartment that Dr. Williams rented for petitioner.

[28] Dr. Williams repeatedly told petitioner he would divorce his wife and marry her. When he failed to follow through with any of these promises, however, petitioner terminated the relationship in late 1970, ceasing all contact with Dr. Williams. On February 10, 1971, petitioner was celebrating her 24th birthday at a family party held at her brother's home, when Dr. Williams unexpectedly arrived, uninvited. He announced that he intended to leave his wife and return to petitioner. During the next few days, petitioner and Dr. Williams planned their romantic and professional future together, which was to include petitioner's obtaining certification as a dental assistant in order to assist Dr. Williams in the new dental practice he was then in the process of opening.

[29] On February 13, 1971, however, Williams telephoned petitioner and told her he had changed his mind; he could not bear losing his children, and hence would remain with his wife. During the conversation, he mentioned Mrs. Williams would be helping him set up his new dental practice, and that she was at that time present at the new office waiting for the delivery of some equipment.

[30] Petitioner was enraged with Dr. Williams, but as she subsequently recognized in therapy sessions with prison psychologists, she instead took out this anger on Mrs. Williams, perceiving her as an obstacle to the relationship. She drove to Dr. Williams's new dental office. Anticipating a possible confrontation with Mrs. Williams in light of previous highly charged encounters, she stopped at her sister's home to acquire a pistol and a potato peeler. When she arrived at the office, the two women argued and physically struggled, pushed, threw punches, and at one point wrestled on the floor. At some point, petitioner produced the firearm. She fired wildly at Mrs. Williams, wounding her in the hand, arm, leg, and neck, and then stabbed her repeatedly with the potato peeler. Mrs. Williams died as a result of the gunshot wounds.

[31] Petitioner returned to her sister's home and replaced the pistol under the mattress. A few weeks later, petitioner's sister discovered the pistol had been fired. She contacted the police and reported the handgun had been used and not by her or anyone in her household. She also informed the police that petitioner had told family members that petitioner had killed Mrs. Williams as a birthday present to herself.

[32] The authorities did not immediately investigate petitioner's involvement in Mrs. Williams's death, and petitioner moved to Chicago, Illinois with her children. A few weeks later, petitioner's family telephoned to tell her that the Federal Bureau of Investigation had informed them there existed a fugitive warrant for her arrest, arising from the death of Mrs. Williams. Petitioner left her children with their father in Chicago and flew back to Los Angeles, but during the flight she decided against turning herself in. She instead fled by bus to Las Vegas, Nevada. In the ensuing years, she resided in Puerto Rico, New York, and Pennsylvania, and worked in various professions, including real estate, sales, and cosmetology. In 1982, some 11 years after the murder, petitioner voluntarily returned to Los Angeles, hired an attorney, and surrendered to the police. Thereafter, she pleaded not guilty and suggested that Dr. Williams may have committed the crime.

[33] As reflected in the report prepared by the probation department after her subsequent conviction, petitioner rejected a plea offer that would have resulted in a two-year prison sentence. The case went to trial in 1983, and the jury returned a guilty verdict on the charge of first degree murder.

[34] The probation department's report noted that petitioner had no prior criminal record as a juvenile or as an adult, but recommended the court deny probation based upon the seriousness of the offense. The report recounted the circumstances surrounding the murder and petitioner's subsequent flight, but stated: "Defendant presented herself as an intelligent, articulate, and thoughtful woman who stands convicted of a premeditated murder which occurred 12-and-a-half years ago. Defendant fled the jurisdiction of the court and has now surrendered herself to the court and has been found guilty by a jury of the crime. . . . [¶] . . . It is undoubtedly true that defendant is not now the same person she was when the crime was committed and it is not expected that defendant would be involved in another similar crime. However, given that defendant has been convicted of first degree murder, probation does not appear to be an appropriate recommendation." The trial court imposed a sentence of life imprisonment - the standard statutory penalty for such offenses committed prior to November 8, 1978, and set a minimum parole eligibility date of November 29, 1990.*fn3

[35] B.

[36] During the 23 years petitioner spent in prison serving her sentence on the present offense, she was free of serious discipline, except for two administrative violations for being late to work assignments, and several other instances of being counseled for administrative violations that did not result in discipline. Within a year of her incarceration, she was placed in Miller A Honor house, housing reserved for discipline-free inmates. She worked as a plumber for the prison and volunteered as a tennis coach for other inmates. She was a charter member of the Yes-I-Can tutorial program, a member of Toastmasters International and the Friends Outside parenting program, and a physical trainer for other inmates. Petitioner earned a bachelor's degree in computer science from the University of La Verne, and was described by prison staff as a "team player who interacts with everyone in a courteous manner."

[37] Petitioner's psychological reports map the path of her rehabilitation. Her initial report, received in September 1984 shortly after her incarceration, concluded petitioner was narcissistic, lacked emotional insight, repressed her emotions, and avoided reality through excessive activity. The examining psychologist predicted these characteristics could lead to problems with other inmates and staff. He recommended greater altruistic involvement in activities benefiting others. The report also characterized petitioner as "explosive" and a "high flight risk if she loses her appeal."

[38] By 1989, petitioner's psychological report provided a positive review of petitioner's health, intelligence, and overall psychological condition. Although the examining psychologist found she exhibited some indicia of an "avoidant personality disorder," he also reported that she has "much to offer any community." Significantly, the examining psychologist found petitioner no longer represented a danger to society.

[39] The psychological assessment in August 1991 was less favorable, recommending intensive psychotherapy based upon a finding that petitioner exhibited features of three psychological disorders - borderline personality disorder, antisocial disorder, and avoidant personality disorder. In an addendum to this August report (dated October 3, 1991), the examining psychologist reported that petitioner had appealed and had requested a follow-up interview. Petitioner reportedly became angry during the interview, feeling the psychologist had been biased in his appraisals of her psychological condition. The examining psychologist concluded she might be "moderately psychopathic," possessing a narcissistic personality disorder with antisocial features. Nonetheless, he concluded she had made significant progress through psychotherapy and recommended she participate in once-a-week group therapy sessions.

[40] Petitioner's November 1992 psychological evaluation reflected improvement. The examining psychologist reported petitioner had gained insight into the monstrous dimension of her crime. She also now comprehended her psychological motivation - that she killed Dr. Williams's wife in order to retaliate against him. The examining psychologist assessed petitioner's violence potential at the time of the crime as greater than the average person's, but opined that this potential had substantially decreased.

[41] The psychological report from 1994 repeated the positive findings in the earlier reports, and stated that petitioner "would not have surrendered [to the authorities] back in 1982, if the earlier narcissistic, antisocial or borderline personality disorder diagnoses had been correct." Positive psychological reports continued in subsequent years, although in July 1996, the psychological evaluation reported that petitioner received her first "disciplinary CDC 115" in January 1996 for allegedly stealing excess food from the kitchen. Although this troubled the examining psychologist, he found petitioner exhibited no indicia of any psychological disorder. The June 1997 evaluation reported that petitioner successfully had appealed the food-theft-related discipline from the previous year and hence her record remained discipline-free.

[42] Psychological reports after 1997 disqualified petitioner from receiving any further psychotherapy, concluding she no longer tested as having any psychiatric or psychological disorder. In total, five psychologists conducting 12 separate evaluations since 1993 concluded that petitioner no longer represented a significant danger to public safety.

[43] C.

[44] In late December 1993, the Board made the first of four positive recommendations that petitioner should be granted parole. Among its findings, the Board concluded that petitioner committed the crime as a result of significant stress, and had demonstrated motivation, growth, and a greater understanding of herself and the crime she committed. It also found a reduced probability of recidivism and that petitioner exhibited signs of remorse. The Board acknowledged that the examining psychologists had concluded petitioner no longer represented a significant danger to public safety.

[45] Employing a matrix applicable to first degree murderers who committed their crime prior to November 8, 1978 (Cal. Code Regs., tit. 15, § 2282, subd. (b)),*fn4 the Board assigned petitioner the maximum term available under that matrix, based upon the great violence involved in the murder she committed and upon her having evaded prosecution for more than 11 years. This yielded a term of 204 months, from which was deducted 40 months for her discipline-free 10 years at the institution. The result of this computation was a net term of 164 months (13 years 8 months) before she would be eligible for release. Accordingly, the proposed release date was set almost three and a half years in the future - for late July 1997.

[46] In March 1994, former Governor Pete Wilson reversed the Board's recommendation, providing two reasons for his decision. First, he stated "public safety" might require a lengthier incarceration. Second, he found the Board had given inadequate consideration to the "public interest in a punishment proportionate to the seriousness of the crime." These findings gave primary credence to the earlier psychological reports and tests reflecting various psychological disorders, as opposed to the more recent reports finding no current evidence that petitioner remained subject to those problems. The Governor's statement also asserted the base term should be longer.

[47] In both 2000 and 2001, petitioner's parole hearings resulted in split decisions, with one commissioner voting against release. This required en banc consideration and each time, parole was denied. In November 2002, the Board issued its second positive recommendation that petitioner be granted parole.

[48] The reasons given at this time parallel the findings contained in the Board's favorable recommendation in 1993. Additionally, there was further psychiatric evidence indicating that petitioner had taken responsibility for her crime and felt greater remorse, and that she would not be a danger to public safety. By then, she also had a much longer record as a model inmate. She was only a few credits short of a master's degree in business administration, held membership in the plumbers union, and had made major contributions to a number of educational and public service programs at the prison. The Board calculated the appropriate period of incarceration as 216 months for the aggravated term and 12 more for use of a firearm. From this, however, it deducted 64 months in post-conviction credits for a net term of 152 months (12 years 8 months, in contrast to the 13 years 8 months calculated in 1993). By this time, however, petitioner already had been imprisoned some 18 years - far longer than the net term of 152 months.

[49] In April 2003, former Governor Gray Davis reversed petitioner's second positive parole recommendation.

[50] In May 2004, the Board again recommended granting parole to petitioner. This time the net term was calculated at 130 months (10 years 9 months). After reciting essentially the same list of findings as in the previous two parole recommendations, the Board highlighted that petitioner had no "115's" (that is, serious rules violations) in her nearly two decades at the prison. Although she had received a few "128(a)'s" (administrative rules violations) for being late to work appointments or counseling sessions, the last of those had been received a decade earlier, in April 1993. An April 2004 psychological evaluation once again had been favorable and reported petitioner was not a danger to public safety and understood the seriousness of her crime and what had led to it. The Board recommended as a condition of parole that petitioner be required to undergo drug counseling and monitoring for one year.

[51] A month later, Governor Arnold Schwarzenegger reversed this third positive parole recommendation. He based his decision upon a finding that petitioner's release would pose an unreasonable risk of danger to public safety. His decision characterized the murder as a vicious crime committed for an "incredibly petty" reason, and found that this constituted "reason enough to pose an unreasonable risk to public safety."

[52] In August 2005, the Board again recommended petitioner be paroled. The Board's report reflects that the panel heard testimony from petitioner, considered her prison record, read some 24 letters from petitioner's family and other supporters, studied the full statement issued by the Governor in reversing the May 2004 Board recommendation that petitioner be released, and considered arguments from a representative of the Los Angeles County District Attorney's Office opposing parole as well as from petitioner's attorney. The panel commended petitioner for her resilience after experiencing the disappointment of a gubernatorial reversal of her third parole-release-recommendation. It then recited a number of favorable developments subsequent to the Governor's action, including a laudatory note from a staff member describing petitioner as a "team player who interacts with everyone in a courteous manner." Another internal evaluation reflects her continued participation in a conflict transformation program. Other reports discuss activities that have further improved her employability, such as her participation in Toastmasters, a Women's First Job Fair, and other programs, as well as religious and charitable work.

[53] Additional developments described in the Board's report include the circumstance that petitioner obtained her master's degree in business administration in June 2005. She also updated her computer skills and received above-average evaluations in her "office services" assignment. The file also contained a letter from a lieutenant on the prison staff commending petitioner for her work as a physical fitness trainer during the previous five years, stating she is "a superb motivator and trainer." This was accompanied by a letter bearing the signatures of 78 physical fitness trainees praising petitioner for what she "has done for us in reference to getting some self-esteem, along with some know-how, along with mental strength and physical strength." This letter proceeds "to commend [petitioner] on being just one person that has to deal with hundreds of women with different personalities and attitudes, and still continues to get up each morning and encourage and teach us how to be just as strong. . . . I truly believe that if a person such as [petitioner] gives so much of herself to so many people, then the least we can do is give something back."

[54] The Board's report also discussed numerous other letters written by persons outside the institution in support of petitioner's parole, which variously describe petitioner as a good student and a "remarkable woman." A letter from the coordinator of the Partnership for Re-entry Program stated that petitioner had applied for and been accepted into the Los Angeles Archdiocese's Partnership for Re-entry Program, a four-year program in which, upon release, a mentor and a team meet with the participant weekly. The coordinator expressed confidence that petitioner would succeed in the program and in re-entry into society. Additional letters from various clergy and social workers who knew petitioner stated the writers' belief that petitioner would be a productive member of society if released from prison. With the sole exception of a pro forma argument from the District Attorney, no one spoke or wrote in opposition to a grant of parole.

[55] After reviewing the evidence that became available following the Governor's reversal of the 2004 Board recommendation - as well as the earlier evidence relevant to her suitability - the panel announced its decision orally, stating its reasons for concluding that petitioner was suitable for parole and would not pose any unreasonable risk of danger to society or a threat to public safety if released. Those reasons included the circumstances that petitioner has no juvenile record of assaulting others, nor any adult record other than the underlying offense; her exemplary record of participating in self-help, vocational, and educational programs while in prison, including her recent attainment of a master's degree in business administration; her leadership role among other inmates; and her realistic parole plans, which included a job offer and family support.

[56] The Board concluded, as it had in prior recommendations, that petitioner should be granted parole. In reaching this conclusion, the Board found that the crime was committed as the result of stress, and that the possibility of recidivism was low because of petitioner's maturation, growth, greater understanding, and advancing age, and the absence of a history of significant violent crime. The Board also found that petitioner "understands the nature and magnitude of the offense, and accepts responsibility for her criminal behavior and has decided to change towards good citizenship." The Board further cited favorably the most recent psychological report, in which the examining psychologist explained that petitioner had demonstrated substantial insight and understanding into her life and the circumstances that led her to commit the crime, including her past relationships with predatory and pathological men, and that petitioner is "now able to look at her behavior and formulate a number of different options in order to avoid conflict and violence in other settings and situations." Consulting its matrix once again, the Board set the total period of confinement at 130 months - less than half of petitioner's actual incarceration at that time, which was nearly 24 years.

[57] In mid-January 2006, the Governor again reversed the Board's decision. His statement recounted the circumstances of the crime and petitioner's subsequent flight from the authorities. The Governor, while acknowledging that petitioner had surrendered voluntarily, discounted this circumstance by observing that at the time, petitioner denied any involvement in Mrs. Williams's murder and instead attempted to blame Dr. Williams.

[58] The Governor observed that subsequent to her incarceration, petitioner had been counseled eight times for misconduct, including as recently as 2005, but acknowledged that she has not been subject to any disciplinary actions. He further acknowledged that petitioner had made additional efforts toward rehabilitation subsequent to the Governor's last statement. "She has, since my last reversal of the Board's decision to grant [petitioner] parole in 2004, earned a Master's degree in Business Administration. Prior to that, she earned her Bachelor's degree in Human Development and an Associate of Arts degree. She received vocational training in data processing, word processing, and plumbing and has worked within the institutional setting as a library porter, which is her current position, and as a plumber, fitness trainer, and food manager's clerk. [Petitioner] has continued to avail herself of self-help and therapy, including Conflict Transformation Skills, Pathways to Wholeness, an array of substance-abuse programs, Stress Management, and Anger Management. She has participated in charitable events, a job fair, Toastmasters, Friends Outside programs, and other activities. Moreover, she has established and maintained seemingly solid relationships with family and others and has made realistic parole plans in Los Angeles for housing in a residential program and employment at a local newspaper. These are all factors supportive of [petitioner's] parole suitability."

[59] Nonetheless, the Governor again relied upon the circumstances of the offense to justify his reversal of the Board's decision: "[T]he murder perpetrated by [petitioner] demonstrated a shockingly vicious use of lethality and an exceptionally callous disregard for human suffering because after she shot Mrs. Williams - four times - causing her to collapse to the floor, [petitioner] stabbed her repeatedly. And the gravity alone of this murder is a sufficient basis on which to conclude presently that [petitioner's] release from prison would pose an unreasonable public-safety risk." The Governor described petitioner's crime as "a cold, premeditated murder carried out in an especially cruel manner and committed for an incredibly petty reason."

[60] Despite acknowledging petitioner's recent positive mental health evaluations, the Governor noted that early prison reports by mental health evaluators characterized petitioner as sociopathic, unstable, and moderately psychopathic. He also emphasized that for many years, petitioner denied killing Mrs. Williams, although "she since has admitted that she committed this crime. She says that she fully understands and is sorry for what she did." The Governor further observed that at both the 2004 and 2005 parole hearings, petitioner denied having brought the gun to the dental office with the intent to shoot the victim.

[61] Regarding the Board's finding that that the "commitment of the crime was the result of stress and life, [petitioner] was spurned by a lover in favor of his wife," the Governor concluded that "there is evidence in the record that any stress under which [petitioner] was operating at the time was not of such level or significance to mitigate her murderous conduct." In this respect, he emphasized that as petitioner herself admitted at the 2005 Board hearing, "she returned the gun to her sister's home, even put it back under the mattress, right after murdering Mrs. Williams. . . . [J]ust after returning the gun, she proceeded to another sister's home and went to sleep on her couch before ultimately fleeing the state."

[62] Although petitioner had been incarcerated nearly 24 years at the time of the Governor's review and had "made creditable gains" during that time, he concluded that "the factors weighing against [petitioner's] parole suitability presently outweigh the positive ones tending to support it. Accordingly, because I continue to believe that her release from prison would pose an unreasonable risk of danger to society, I REVERSE the Board's 2005 decision to grant parole to [petitioner]."

[63] In an original petition for writ of habeas corpus filed in the Court of Appeal, petitioner challenged on several grounds the latest decision of the Governor denying parole. In a split decision, the appellate court found that the Governor's decision "is not supported by some evidence rationally indicating [petitioner] presently represents an unreasonable risk to public safety if released on parole." The majority found that the commitment offense did not demonstrate a more "shockingly vicious use of lethality" or a more "exceptionally callous disregard for human suffering" than other premeditated first degree murders, or than the murders in other appellate cases in which courts had found no evidence supporting the Governor's decision. The majority also concluded that even if some evidence supported his characterization of the seriousness of the murder, the gravity of the commitment offense did not supply some evidence "rationally demonstrating [petitioner] represents an unreasonable danger to public safety at the present time."

[64] The dissent criticized the majority for misapplying the deferential standard of review set forth in Rosenkrantz, supra, 29 Cal.4th 616, and for relying upon federal authority to consider the predictive value of the offense. The dissent concluded that, because the commitment offense involved facts beyond the minimum necessary for a conviction of first degree murder, the aggravated circumstances of the commitment offense supplied some evidence supporting the Governor's decision.

[65] Accordingly, 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. After we declined to issue a writ of supersedeas to stay the judgment rendered by the Court of Appeal, petitioner was paroled on July 11, 2007. The Attorney General sought review in this court, which we granted on September 19, 2007.

[66] II.

[67] A.

[68] The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. (§§ 3040, 5075 et seq.) The Board's parole decisions are governed by section 3041 and Title 15, section 2281*fn5 of the California Code of Regulations (Regs., § 2230 et seq.) Pursuant to statute, the Board "shall normally set a parole release date" one year prior to the inmate's minimum eligible parole release date, and shall set the date "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), italics added.) Subdivision (b) of section 3041 provides that a release date must be set "unless [the Board] determines that 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." (Italics added; see Rosenkrantz, supra, 29 Cal.4th at p. 654, fn. omitted.)

[69] Title 15, Section 2281 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statute. The regulation is designed to guide the Board's assessment of whether the inmate poses "an unreasonable risk of danger to society if released from prison," and thus whether he or she is suitable for parole. (Regs., § 2281, subd. (a).)*fn6 The regulation also lists several circumstances relating to unsuitability for parole*fn7 - such as the heinous, atrocious, or cruel nature of the crime, or an unstable social background; and suitability for parole - such as an inmate's rehabilitative efforts, demonstration of remorse, and the mitigating circumstances of the crime.*fn8 (Regs., § 2281, subd. (d).) Finally, the regulation explains that the foregoing circumstances "are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Regs., § 2281, subds. (c), (d).)The Governor's power to review a decision of the Board is set forth in article V, section 8, subdivision (b) of the California Constitution.*fn9

[70] In Rosenkrantz, supra, 29 Cal.4th 616, we were presented with the threshold question of whether courts are authorized to review the merits of a Governor's decision affirming, reversing, or modifying a parole decision of the Board. We held that both the Board and the Governor must consider the statutory factors concerning parole suitability set forth by section 3041 and Board regulations (Regs., § 2230 et seq.), and that "because due process of law requires that a decision considering such factors be supported by some evidence in the record, the Governor's decision is subject to judicial review to ensure compliance with this constitutional mandate." (Rosenkrantz, supra, 29 Cal.4th at p. 664.)

[71] "[T]he governing statute provides that the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. (Pen. Code, § 3041, subd. (b).) And as set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after considering the circumstances enumerated in section 2402 of the regulations, that the prisoner is unsuitable for parole. Accordingly, parole applicants in this state have 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." (Rosenkrantz, supra, 29 Cal.4th at p. 654, italics added. See also In re Smith (2003) 114 Cal.App.4th 343, 366) ["parole is the rule, rather than the exception"].)

[72] Nonetheless, we emphasized in Rosenkrantz that the Board's " 'discretion in parole matters has been described as "great" [citation] and "almost unlimited" ' [citation]." (Rosenkrantz, supra, 29 Cal.4th at p. 655.) "Resolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board." (Id. at p. 656.) We further concluded that the broad discretion to be granted to the Board also exists with regard to decisions rendered by the Governor. (Id. at p. 677.) Although "the Governor's decision must be based upon the same factors that restrict the Board in rendering its parole decision" (id. at p. 660), the Governor undertakes an independent, de novo review of the inmate's suitability for parole. (Ibid.) Thus, the Governor has discretion to be "more stringent or cautious" in determining whether a defendant poses an unreasonable risk to public safety. (Id. at p. 686.) "[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor. . . . 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 Governor'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 Governor's decision." (Id. at p. 677, italics added.)

[73] Although we emphasized that a court's review should be highly deferential, we rejected the Governor's contention that the judicial branch is authorized to review parole decisions only to ensure that all procedural safeguards have been satisfied, but not to consider the merits of a parole decision. (Rosenkrantz, supra, 29 Cal.4th at p. 657.) In doing so, we cautioned against a less stringent standard of review that would permit the Board to render a decision without any "basis in fact" and not supported by any evidence in the record simply because "the decision, on its face, recited supposed facts corresponding to the specified factors and appeared reasonable." (Id. at p. 665.) Such a decision would be arbitrary and capricious and, because it affects a protected liberty interest, would violate established principles of due process of law. (Ibid.) Accordingly, " '[r]equiring a modicum of evidence to support a decision . . . will help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens.' " (Id. at p. 658, quoting Superintendent v. Hill (1985) 472 U.S. 445, 455 (Hill).)

[74] We held that despite the broad authority granted to the Board and the Governor, and the limited nature of judicial review, a petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate's due process right "cannot exist in any practical sense without a remedy against its abrogation." (Rosenkrantz, supra, 29 Cal.4th at p. 664.) Accordingly, the judiciary is empowered to review a decision by the Board or the Governor to ensure that the decision reflects "an individualized consideration of the specified criteria" and is not "arbitrary and capricious." (Id. at p. 677.)

[75] Subsequently, in Dannenberg, supra, 34 Cal.4th 1061, we specifically rejected the petitioner's contention that the Board must schedule an indeterminate life inmate's release on parole, within the parameters of uniform terms for similar offenses, unless it finds the callousness and brutality of a particular inmate's offense, or other indicia of his or her dangerousness, so extreme that the case falls outside the uniform-term matrices set forth in the Board's regulations. Instead, in construing section 3041, we considered it "obvious" that the public-safety provision of subdivision (b) takes precedence over the "uniform terms" principle of subdivision (a). We recognized that the "statute expressly provides that the fixing of a 'uniform' parole release date shall occur unless the Board finds the indeterminate life inmate unsuitable on grounds of 'public safety.' "

[76] (Dannenberg, supra, 34 Cal.4th at p. 1082, italics omitted.) Accordingly, emphasizing that the primary, overriding consideration for the Board is public safety, we affirmed the "some evidence" standard of review, but our decision did not specifically reconsider, limit, or amplify the contours of the standard of review recognized and outlined in Rosenkrantz.

[77] In sum, the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety (§ 3041; Regs., §§ 2281, 2402), and our discussion in both Rosenkrantz and Dannenberg emphasized this point. Moreover, it is apparent from the foregoing discussion that the core determination of "public safety" under the statute and corresponding regulations involves an assessment of an inmate's current dangerousness. As noted above, a parole release decision authorizes the Board (and the Governor) to identify and weigh only the factors relevant to predicting "whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, supra, 29 Cal.4th at p. 655.) These factors are designed to guide an assessment of the inmate's threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate. (Regs., § 2281, subds. (c) & (d); Rosenkrantz, supra, 29 Cal.4th at p. 655.)

[78] B.

[79] In the years since our decision in Dannenberg, supra, 34 Cal.4th 1061, courts have struggled to strike an appropriate balance between deference to the Board and the Governor, and meaningful review of parole decisions. A growing tension has emerged in the decisions regarding the precise contours of the "some evidence" standard of review. This conflict is rooted in the practical reality that in every published judicial opinion addressing the issue, the decision of the Board or the Governor to deny or reverse a grant of parole has been founded in part or in whole upon a finding that the inmate committed the offense in an "especially heinous, atrocious or cruel manner,"*fn10 and in the growing recognition that in some instances, the circumstances of the underlying offense, remote in time and attenuated by post-conviction rehabilitation, bear little relationship to the determination we recognized in Rosenkrantz and Dannenberg as critical - whether the inmate remains a threat to public safety. Accordingly, a conflict has emerged concerning the extent to which a determination of current dangerousness should guide a reviewing court's inquiry into the Governor's (or the Board's) decision and, more specifically, as to whether the aggravated circumstances of the commitment offense, standing alone, provide some evidence that the inmate remains a current threat to public safety.

[80] In Rosenkrantz, supra, 29 Cal.4th 616, we held that "[t]he nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole." (Id. at p. 682.) We also observed, however, that a parole denial based upon the circumstances of the offense might deny due process under the California Constitution when "no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .' (Pen. Code § 3041, subd. (a).) . . . [¶] 'Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.' " (Id. at p. 683.)

[81] In Dannenberg, we confirmed that "[w]hen the Board bases unsuitability on the circumstances of the commitment offense, it must cite 'some evidence' of aggravating facts beyond the minimum elements of that offense. (Rosenkrantz, supra, 29 Cal.4th 616, 658, 683.)" (Dannenberg, supra, 34 Cal.4th at pp. 1095-1096, fn. 16.) We also clarified that "[o]ur use of the phrase 'particularly egregious' " in Rosenkrantz did not mandate a proportionality review as a threshold inquiry in every case, but "conveyed only that the violence or viciousness of the inmate's crime must be more than minimally necessary to convict him of the offense for which he is confined." (Dannenberg, supra, 34 Cal.4th at p. 1095, quoting Rosenkrantz, supra, 29 Cal.4th at p. 683.)

[82] In considering whether such evidence existed in petitioner Dannenberg's case, we recounted that the inmate had bludgeoned his wife with a pipe wrench and then either pushed his wife into a bathtub of water, or left her to drown in the tub despite awareness of her injuries. In light of these circumstances, we concluded "there clearly was 'some evidence' (Rosenkrantz, supra, 29 Cal.4th 616, 658) to support the Board's determination that Dannenberg's crime was 'especially callous and cruel,' showed 'an exceptionally callous disregard for human suffering,' and was disproportionate to the 'trivial' provocation. Accordingly, under Rosenkrantz, the Board could use the murder committed by Dannenberg as a basis to find him unsuitable, for reasons of public safety, to receive a firm parole release date." (Dannenberg, supra, 34 Cal.4th at p. 1095, fn. omitted, italics added.)

[83] Although we did not explicitly consider whether the aggravated circumstances of the commitment offense established that the inmate remained a current threat to public safety, it is apparent that in basing our conclusion that the inmate's due process rights were not violated upon the existence of evidence in the record establishing that the commitment offense was particularly egregious, we presumed that the evidence of egregiousness supported the ultimate determination that the inmate posed a threat to public safety, as opposed to merely providing support for the Board's or the Governor's conclusion that the crime was particularly aggravated. (Dannenberg, supra, 34 Cal.4th at p. 1095 [finding "some evidence" supported Board's determination that the petitioner's crime was particularly egregious, and concluding under Rosenkrantz that the Board could employ the murder committed by the petitioner as a basis for finding him unsuitable for parole "for reasons of public safety"]; Rosenkrantz, supra, 29 Cal.4th at p. 682 ["the decision of the Governor made clear that he independently found that petitioner poses a risk of danger based upon the nature of the offenseand petitioner's conduct before he surrendered"].)

[84] Applying the presumption that evidence of egregiousness supports the ultimate determination that an inmate poses a threat to public safety, some courts have concluded that a denial-of-parole decision must be affirmed if "some evidence" supports the Board's or the Governor's factual determination that the commitment offense was particularly aggravated, or that some other factor establishing unsuitability is present. (See Bettencourt, supra, 156 Cal.App.4th at p. 800; Andrade, supra, 141 Cal.App.4th at p. 819; Burns, supra, 136 Cal.App.4th at pp. 1327-1328; Fuentes, supra, 135 Cal.App.4th at pp. 162-163; Honesto, supra, 130 Cal.App.4th at p. 96; Lowe, supra, 130 Cal.App.4th at pp. 1427-1428; DeLuna, supra, 126 Cal.App.4th at p. 593.) Under this approach, if some evidence supports a finding that the crime is especially heinous, atrocious, or cruel, and the record establishes that the Board or the Governor gave consideration to the factors required by law to be taken into account, the court will not weigh the balance of relevant factors differently, and will not independently assess whether an inmate poses an "unreasonable risk" to public safety.*fn11 (Regs., § 2402, subd. (a).)

[85] Conversely, an emerging majority of courts, concluding that an inquiry focused only upon the existence of unsuitability factors fails to provide the meaningful review guaranteed by the due process clause, define the "some evidence" standard by focusing upon those aspects of our earlier opinions in which we stated that the judicial inquiry is centered upon an evaluation of the evidence supporting the Board or the Governor's decision,*fn12 - and that decision is whether or not an inmate continues to pose a threat to public safety. (Rosenkrantz, supra, 29 Cal.4th at pp. 654 ["the governing statute provides that the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction"]; Dannenberg, supra, 34 Cal.4th at pp. 1083, 1084, 1098 ["the suitability determination should focus upon the public safety risk posed by 'this individual' "; "the determination of suitability for parole involves a paramount assessment of the public safety risk posed by the particular offender, without regard to a comparative analysis of similar offenses committed by other persons"; some evidence "indicated exceptional callousness and cruelty with trivial provocation, and thus suggested [Dannenberg] remains a danger to public safety" (italics added)].)*fn13

[86] These cases emphasize that public safety is the overarching consideration for both the Board and the Governor, and interpret the Rosenkrantz "some evidence" test as "meaning that suitability determinations must have some basis in fact." (Scott, supra, 133 Cal.App.4th at p. 590, fn. 6.) Accordingly, these decisions conclude that the some evidence standard described in Rosenkrantz and Dannenberg poses not simply a question of whether some evidence supports the factors cited for denial, but instead, whether the evidence supports the core determination required by the statute before parole can be denied - that an inmate's release will unreasonably endanger public safety. (Roderick, supra, 154 Cal.App.4th at p. 263; Gray, supra, 151 Cal.App.4th at p. 410; Barker, supra, 151 Cal.App.4th at p. 366; Tripp, supra, 150 Cal.App.4th at p. 313; Weider, supra, 145 Cal.App.4th at p. 589; Elkins, supra, 144 Cal.App.4th at p. 499; Lee, supra, 143 Cal.App.4th at p. 1408; Scott, supra, 133 Cal.App.4th at p. 595.)As articulated in Lee, supra, 143 Cal.App.4th 1400, these decisions conclude that "[s]ome evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee's release unreasonably endangers public safety." (Id. at p. 1409, fn. omitted.)

[87] In most of the decisions discussed above, the courts have not explicitly recognized a conflict between the two alternative approaches. Several dissenting justices, however, including Justice Perluss in the present case, as well as the majority in several cases in which we have granted review (and which we have held pending resolution of the present case),have criticized the so-called current dangerousness approach as incompatible with our analysis in Rosenkrantz and Dannenberg. (E.g. Roderick, supra, 154 Cal.App.4th at pp. 311-312 (dis. opn. of Sepulveda, J.).) These justices view a standard of review focusing upon the ultimate statutory decision rather than the existence of an unsuitability factor as one that transmutes the deferential standard of review set forth in Rosenkrantz into one that impermissibly reweighs the evidence, recalibrates the relevant factors, and permits an independent determination whether the inmate continues to pose a risk to public safety.

[88] We disagree with the view that a standard of review that focuses upon the existence of "some evidence" that an inmate poses a current threat to public safety - rather than merely some evidence of the existence of an unsuitability factor - is incompatible with either Rosenkrantz or Dannenberg. As set forth above, our previous cases recognize that the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety and thus may not be released on parole. (Dannenberg, supra, 34 Cal.4th at pp. 1070-1071, 1079-1080, 1083-1084, 1091, 1094, 1098; Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, 682-683.) We have held that to ensure that a Board's decision comports with due process, a court must consider whether "some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added.)

[89] We also have emphasized that under the some evidence standard, a reviewing court reviews the merits of the Board's or the Governor's decision, and is not bound to affirm a parole decision merely because the Board or the Governor has adhered to all procedural safeguards. We have remarked that "[a]s long as the Governor'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 Governor's decision." (Rosenkrantz, supra, 29 Cal.4th at p. 677, italics added.) This standard is unquestionably deferential, but certainly is not toothless, and "due consideration" of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision - the determination of current dangerousness. "It is well established that a policy of rejecting parole solely upon the basis of the type of offense, without individualized treatment and due consideration, deprives an inmate of due process of law." (Id. at p. 684.)

[90] Indeed, our conclusion that current dangerousness (rather than the mere presence of a statutory unsuitability factor) is the focus of the parole decision is rooted in the governing statute. We have observed that " '[t]he Board's authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate's current or past offenses should not operate so as to swallow the rule that parole is 'normally' to be granted. Otherwise, the Board's case-by-case rulings would destroy the proportionality contemplated by Penal Code section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole, 25 years to life, and 15 years to life for various degrees and kinds of murder. (Pen. Code, § 190 et seq.)' " (Rosenkrantz, supra, 29 Cal.4th p. 683.) Consistent with this statutory regime, the Board's regulations, establishing a matrix of factors for determining the suggested base terms for life prisoners, 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. (See, e.g., Regs., §§ 2282(b), 2403(b)) [formulating longer suggested base terms for first degree murderers who have no prior relationship to their victim and who inflict trauma on their victims].) Of course, as we stated in Dannenberg, the statute does not contemplate that the goal of uniformity will take precedence over the goal of public safety. (See Dannenberg, supra, 34 Cal.4th at p. 1087.) But the statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.

[91] In expressly rejecting a purely procedural standard of review in Rosenkrantz, we recognized that in light of the constitutional liberty interest at stake, judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights. If simply pointing to the existence of an unsuitability factor and then acknowledging the existence of suitability factors were sufficient to establish that a parole decision was not arbitrary, and that it was supported by "some evidence," a reviewing court would be forced to affirm any denial-of-parole decision linked to the mere existence of certain facts in the record, even if those facts have no bearing on the paramount statutory inquiry. Such a standard, because it would leave potentially arbitrary decisions of the Board or the Governor intact, would be incompatible with our recognition that an inmate's right to due process "cannot exist in any practical sense without a remedy against its abrogation." (Rosenkrantz, supra, 29 Cal.4th. at p. 664; In re Scott (2004) 119 Cal.App.4th 871, 898 [observing that the deferential standard of review set forth in Rosenkrantz, although requiring courts to be "exceedingly deferential" to the Board's findings, "does not convert a court reviewing the denial of parole into a potted plant"].)

[92] Accordingly, if we are to give meaning to the statute's directive that the Board shall normally set a parole release date (§ 3041, subd. (a)), a reviewing court's inquiry must extend beyond searching the record for some evidence that the commitment offense was particularly egregious and for a mere acknowledgement by the Board or the Governor that evidence favoring suitability exists. Instead, under the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.

[93] Accordingly, when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings. (Rosenkrantz, supra, 29 Cal.4th at p. 658; Dannenberg, supra, 34 Cal.4th at p. 1071; Lee, supra, 143 Cal.App.4th at p. 1408, fn. omitted.) Contrary to the Attorney General's contention, our recognition that judicial review contemplates an evaluation of the record for some evidence supporting the decision reached by the Board or the Governor does not impermissibly shift the ultimate discretionary decision of parole suitability from the executive branch to the judicial branch. In Rosenkrantz, supra, 29 Cal.4th 616, we expressly recognized that judicial review of a Governor's parole decision for adherence to both statutory and constitutional mandates was both (a) contemplated by the governing statutes and the California Constitution, and (b) integral to protecting an inmate's constitutional liberty interest in the setting of a parole date. (Id. at p. 664.) Our recognition today that the focus upon current dangerousness is the appropriate articulation of the "some evidence" standard does not alter the role assigned either to the executive or to the judiciary, but merely articulates the circumstance that the relevant consideration both for the executive decisionmakers and for reviewing courts is the core statutory determination of public safety. (Id. at p. 662.)

[94] The Attorney General further asserts that the some evidence standard, focused upon current dangerousness, does not lend itself to appropriate judicial review, because a "predictive" determination regarding parole suitability is not subject to objective proof and thus is not amenable to review under the some evidence standard. We disagree. As explained above, as specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor. In addition, and as further explained below, evidence in the record corresponding to both suitability and unsuitability factors - including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate's attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record - must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition. By reviewing this evidence, a court may determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety. A standard of review focusing upon the existence of some evidence supporting the determination required by statute does nothing more than ensure that the Board and the Governor have complied with the statutory mandate and have acted within their constitutional authority.

[95] III.

[96] The Attorney General contends that the aggravated circumstances of a commitment offense inherently assess current dangerousness, and that the existence of "some evidence" demonstrating that the offense was aggravated beyond the minimum elements of the offense therefore is sufficient to support the conclusion that an inmate is currently dangerous. Arguably, the manner in which we applied the some evidence standard in Rosenkrantz and Dannenberg implicitly endorsed the Attorney General's position. In each case, we evaluated the egregiousness of the commitment offense by considering whether the offense involved some act beyond the minimum required for conviction of the offense, and upon finding that the circumstances of the offense established egregiousness, we affirmed the Board's or the Governor's decision without specifically considering whether there existed a rational nexus between those egregious circumstances and the ultimate conclusion that the inmate remained a threat to public safety.

[97] In light of the conflict among the Courts of Appeal discussed above, it is necessary to clarify the manner in which courts must apply the some evidence standard. As we explain below, an inquiry into whether the offense is more aggravated than the minimum elements necessary to sustain a conviction was not intended by this court to be the exclusive measure of due process, and has proved in practice to be unworkable, leading to arbitrary results. Most importantly, the circumstance that the offense is aggravated does not, in every case, provide evidence that the inmate is a current threat to public safety. Indeed, it is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole - it is the implication concerning future dangerousness that derives from the prisoner having committed that crime. Because the parole decision represents a prospective view - essentially a prediction concerning the future - and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision.

[98] Accordingly, we conclude that although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.

[99] A.

[100] Although we relied upon a "minimum elements" inquiry to determine whether the commitment offenses in Rosenkrantz and Dannenberg were particularly egregious, by doing so we did not intend to define the exclusive situation in which a decision relying solely upon the circumstances of the commitment offense to justify a denial-of-parole decision might be found to be arbitrary or capricious. After all, we recognized that the fundamental purpose of judicial review is to permit courts to provide a remedy for arbitrary decisions. As noted above, we observed that a parole denial based upon the circumstances of the offense might, "for example," violate due process under the California Constitution "where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. . . . [¶] 'Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.' " (Rosenkrantz, supra, 29 Cal.4th at p. 683.) To the extent this language has been read to suggest that reliance solely upon the circumstances of the commitment offense would violate an inmate's due process rights only in those cases in which the circumstances of the crime are not particularly egregious, we emphasize that due process cannot, and should not, be so narrowly defined.

[101] B.

[102] Nonetheless, reading the minimum elements language as talismanic, Court of Appeal decisions have interpreted our cases as establishing this focus as the sole relevant consideration in determining whether an inmate's due process rights were violated by the Board's or the Governor's reliance upon the circumstances of the commitment offense. This preoccupation with minimum elements has created an irrational dichotomy between those appellate decisions that are premised upon the existence of "some evidence" of an unsuitability factor and those decisions premised upon the existence of "some evidence" of current dangerousness. Decisions in the first category uniformly have concluded that the circumstances of the underlying homicide were, in fact, particularly egregious and extended beyond the minimum elements necessary for conviction (and therefore, because the statutory factor corresponding to the gravity of the offense applied, these decisions have affirmed the denial of parole.)*fn14 Decisions in the second category have focused upon the existence of "some evidence" of current dangerousness, and, with a few exceptions,*fn15 have concluded that the underlying homicide was not particularly egregious and did not exceed the minimum elements required for conviction of that offense (thereby mandating reversal of the Board's or the Governor's action, because the record did not contain some evidence supporting a finding of current dangerousness).*fn16

[103] A review of these cases reveals that resort to a minimum elements inquiry has proved to lead to arbitrary results. For example, in Bettencourt, supra, 156 Cal.App.4th at page 800, the court found the commitment offense particularly aggravated where the petitioner and his friend beat and stabbed the victim with a screwdriver and a knife, and after the murder the petitioner cleaned the victim's apartment and dumped the body off a cliff. (See also Burns, supra, 136 Cal.App.4th at p. 1327 [crime found particularly aggravated where the petitioner confronted the victim, his ex-girlfriend, in a dark and isolated area and shot her in the head with a stolen gun; the victim died several hours later; and after the shooting, the petitioner went to his dorm room where he watched television].)*fn17

[104] In contrast, in Barker, supra, 151 Cal.App.4th at pages 377-378, the court found the commitment offense was not particularly aggravated where the petitioner and his accomplice planned to kill the accomplice's parents for money. After the accomplice shot the parents, the petitioner killed the accomplice's 76-year-old grandfather by striking him on the head with a chisel several times and then shooting him twice in the head. Following the murders, the petitioner and his accomplice ransacked the house to make the crime look like a burglary. (See also Elkins, supra, 144 Cal.App.4th at p. 502 [crime found not particularly aggravated where the petitioner, a drug dealer, owed the victim money; after drinking alcoholic beverages and consuming cocaine, the petitioner planned to rob the victim of money and drugs; the petitioner killed victim by repeatedly beating him over the head with a baseball bat while he was sleeping; after the murder, the petitioner dumped the body in a remote area, burglarized victim's storage area and his girlfriend's house, and left the state].)*fn18

[105] Furthermore, as the Attorney General points out, undue focus upon minimum elements has led many courts that also properly focus upon some evidence of current dangerousness - including the Court of Appeal majority in the present case - to compare the facts under review with the circumstances of other murders in other cases as a means of considering whether the underlying crime is particularly egregious in comparison with others, and whether the evidence supports the conclusion that the petitioner poses a threat to public safety. (See, e.g., Gray, supra, 151 Cal.App.4th at pp. 405-410; Weider, supra, 145 Cal.App.4th at pp. 588-589; Elkins, supra, 144 Cal.App.4th at pp. 500-502; Lee, supra, 143 Cal.App.4th at pp. 1410-1412; Scott, supra, 133 Cal.App.4th at p. 598.)

[106] Focus upon whether a petitioner's crime was "particularly egregious" in comparison to other murders in other cases is not called for by the statutes, which contemplate an individualized assessment of an inmate's suitability for parole, nor is it a proper method of assessing whether "some evidence" supports the Governor's conclusion that a particular inmate represents an unreasonable threat to public safety. The circumstance that some inmates who committed murders were or were not adjudged to be threats to public safety has a minimal bearing upon whether any other inmate poses such a threat. Moreover, comparative analysis is incompatible with our decision in Dannenberg. In Dannenberg, supra, 34 Cal.4th 1061, we held that nothing in section 3041 suggests that the Board's members must vote in favor of parole unless the inmate's offense is substantially more serious than most others of the same class. (34 Cal.4th at pp. 1083-1084, 1095.) In other words, we recognized that the statute does not require the Board to compare the inmate's actual period of confinement with that of other individuals serving life terms for similar crimes. (Id. at pp. 1070-1071.) Rather, the statutory suitability determination is individualized, and focuses upon the public safety risk posed by the particular offender. (Ibid.)

[107] C.

[108] Reiterating the contention that the statutory factors inherently assess unsuitability for parole, and thus that no additional inquiry regarding current dangerousness is required, the Attorney General contends that if it is determined that a crime involves an act beyond the minimum necessary for conviction of that offense, some evidence necessarily supports the Governor's decision, and that if the record establishes the Governor has considered all other relevant statutory factors, a court must affirm the Governor's decision. To address the arbitrary results that in practice have resulted from resort to a minimum elements inquiry, the Attorney General suggests we disavow the trend toward comparative analysis and instead resurrect a pure minimum-elements inquiry that determines whether a crime is particularly egregious, by determining whether "the violence or viciousness of the inmate's crime [was] more than minimally necessary to convict [defendant] of the offense for which he [or she is] confined." (Dannenberg, supra, 34 Cal.4th at p. 1095, italics omitted.)

[109] A survey of the appellate court decisions reveals, however, that the minimum elements inquiry is unworkable in practice, not merely because it has led courts to engage in comparative analysis or to characterize clearly aggravated conduct as not particularly egregious, but also because it has become evident that there are few, if any, murders that could not be characterized as either particularly aggravated, or as involving some act beyond the minimum required for conviction of the offense. Accordingly, because it also is apparent that the gravity of the offense is the sole or primary determinative factor in each of these cases, a strict minimum elements inquiry would mandate upholding in every case the denial of parole, regardless of whether other evidence in the record clearly attenuates the predictive value of the offense, and without any consideration of whether the gravity of the offense continues to provide some evidence that the inmate remains a threat to public safety many years after commission of his or her offense. Similarly, the unexceptional nature of the commitment offense will not inevitably reflect a lack of current dangerousness without due consideration of the inmate's post-conviction actions and progress toward rehabilitation.

[110] More importantly, the minimum elements inquiry, which assesses only the gravity of the commitment offense, fails to provide a workable standard for judicial review, because it is now apparent that the aggravated nature of the commitment offense does not, in every case, provide some evidence that the inmate remains a current threat to public safety. (Roderick, supra, 154 Cal.App.4th at p. 277 [although record indicated the petitioner had a long criminal history, court required the Board to hold a new hearing, noting inmate's age and "the immutability of [his] past criminal history and its diminishing predictive value for future conduct"]; Elkins, supra, 144 Cal.App.4th at pp. 498-499 [recognizing that the predictive value of the commitment offense may be very questionable after a long period of time, and concluding that "[g]iven the lapse of 26 years and the exemplary rehabilitative gains made by [the petitioner] over that time, continued reliance on these aggravating facts of the crime no longer amounts to 'some evidence' supporting denial of parole"]; Lee, supra, 143 Cal.App.4th at p. 1412 [court concluded that the petitioner's crimes had "little, if any, predictive value for future criminality," because the crimes committed 20 years ago had "lost much of their usefulness in [predicting] the likelihood of future offenses"]; Scott, supra, 133 Cal.App.4th at p. 595 [the "predictive value of the commitment offense may be very questionable after a long period of time"]; see also Tripp, supra, 150 Cal.App.4th at p. 319 ["[e]stablishing that the commitment offense involved some elements more than minimally necessary to sustain a conviction is a step on the path of evaluating a prisoner's current dangerousness, but it is not the final step under the regulations."].)

[111] An evaluation of the circumstances of the crime in isolation allows a fact finder or reviewing court to determine whether a commitment offense was particularly egregious - a designation that we have seen applied in nearly every murder case considered by the Board or the Governor - and to conclude that the prisoner was a danger to the public at or around the time of his or her commission of the offense. Absent affirmative evidence of a change in the prisoner's demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner's dangerousness for some time in the future. At some point, however, when there is affirmative evidence, based upon the prisoner's subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner's current dangerousness.

[112] As we recognized in Rosenkrantz, supra, 29 Cal.4th 616, when evaluating whether an inmate continues to pose a threat to public safety, both the Board and the Governor must consider all relevant statutory factors, including those that relate to post-conviction conduct and rehabilitation. (Id., at p. 2655 [noting that the Board " 'cannot, consistently with its obligation, ignore post-conviction factors unless directed to do so by the Legislature,' " and that " '[a]lthough a prisoner is not entitled to have his term fixed at less than maximum or to receive parole, he is entitled to have his application for these benefits "duly considered" based upon an individualized consideration of all relevant factors' "].) Indeed, in directing the Board to consider the statutory factors relevant to suitability, many of which relate to post-conviction conduct and rehabilitation, the Legislature explicitly recognized that the inmate's threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living within the strictures of the law. In other words, contrary to the Attorney General's contention that if the circumstances of the commitment offense are egregious,those circumstances will provide some evidence of current dangerousness in perpetuity, it is evident that the Legislature considered the passage of time - and the attendant changes in a prisoner's maturity, understanding, and mental state - to be highly probative to the determination of current dangerousness.

[113] The minimum elements test, because it functionally removes consideration of relevant suitability factors and fails to assess current dangerousness, substantially undermines the rehabilitative goals of the governing statutes.*fn19

[114] Moreover, because the minimum elements test would mandate affirmance in every parole-denial case in which the crime is aggravated, and we have determined that there are few, if any, cases in which the underlying offense is not aggravated in some way, the minimum elements inquiry has proved to be incompatible with our earlier recognition that the "some evidence" standard of review contemplates review of a parole decision on the merits in order to prevent arbitrary and capricious decision-making. (Rosenkrantz, supra, 29 Cal.4th at p. 655.)*fn20

[115] Accordingly, as we held in Dannenberg, the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. (Dannenberg, supra, 34 Cal.4th at pp. 1083-1084, 1095.) Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense.

[116] This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude. (Rosenkrantz, supra, 29 Cal.4th at p. 682 ["although the state expects prisoners to behave well in prison, the absence of serious misconduct in prison and participation in institutional activities that indicate an enhanced ability to function within the law upon release are factors that must be considered on an individual basis by the Governor in determining parole suitability"]; see also In re Minnis (1972) 7 Cal. 3d 639, 645; Irons v. Carey (9th Cir. 2007) 505 F.3d 846, 854 ["in some cases, indefinite detention based solely upon an inmate's commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process, given the liberty interest in parole that flows from the relevant California statutes"].)

[117] In sum, the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. (Regs., § 2281, subd. (a).) Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.

[118] IV.

[119] Turning now to the facts of the present case, we observe that the Governor concluded that the murder of Rubye Williams "demonstrated a shockingly vicious use of lethality and an exceptionally callous disregard for human suffering because after she shot Mrs. Williams - four times - causing her to collapse to the floor, [petitioner] stabbed her repeatedly. . . . She made it a point to arm herself, not with one weapon but with two, and show up at a location where she knew she would find her victim. . . . This was a cold, premeditated murder carried out in an especially cruel manner and committed for an incredibly petty reason. According to the appellate decision, [petitioner] told a relative that the killing was a 'birthday present' to herself. [Petitioner's] birthday was two days before the murder." Although the Governor alluded to other possible grounds for denying petitioner's parole, he expressly relied only upon the nature of petitioner's commitment offense to justify petitioner's continued confinement, because "the gravity alone of this murder is a sufficient basis on which to conclude presently that [petitioner's] release from prison would pose an unreasonable public-safety risk."

[120] Before evaluating the Governor's reliance upon the gravity of the commitment offense, we first consider his discussion of facts not related to the circumstances of the commitment offense. Although his statement does not directly rely upon a lack of remorse to justify denial of parole, the Governor suggested that petitioner continued to pose a threat to public safety because she was not remorseful and because she continued to attempt to justify the victim's murder. As support, the Governor pointed to quotations excerpted from the proceedings at petitioner's 2002 and 2005 Board hearings, such as petitioner's observation at the latter hearing that " 'I always viewed [Mrs. Williams] as the obstacle in my fantasy romance. That she was the one that was keeping me from having what I wanted. So in my mind, it was natural for me to confront her as though she would disappear . . . .' [Petitioner also] said that she saw Mrs. Williams as her 'problem.' "

[121] We agree with the Court of Appeal majority that it is evident from the full context of petitioner's statements that she merely was explaining her state of mind at the time of the homicide, not justifying it. "To the contrary, these and like statements were made in the course of condemning her own behavior on that occasion and expressing deep remorse for what she had done and why she had done it."*fn21 Additionally, as the Court of Appeal recognized and as the record amply demonstrates, petitioner consistently, repeatedly, and articulately has expressed deep remorse for her crime as reflected in a decade's worth of psychological assessments and transcripts of suitability hearings that were before the Board.*fn22 Accordingly, the Governor's conclusion that petitioner showed insufficient remorse is not supported by any evidence; rather, it is clearly contradicted by abundant evidence in the record. (Rosenkrantz, supra, 29 Cal.4th at p. 681 [upholding the Governor's decision but finding "no evidence supporting the Governor's additional determination that petitioner has continued . . . to avoid responsibility for his crime by lying about pertinent events or by improperly attempting to portray himself as a victim"].)

[122] Although again the following circumstance is not expressly advanced as a ground for reversing the Board's grant of parole, there is an implication in the Governor's statement that petitioner has serious psychiatric problems and therefore her release would pose an unreasonable risk of danger to the public. Specifically, his statement recites the negative language found in several early psychiatric evaluations. "[Petitioner] was categorized in early prison reports by mental-health evaluators as sociopathic, unstable and moderately psychopathic. Subsequent mental-health evaluations have been more favorable and include low risk assessments."

[123] Here, too, we agree with the Court of Appeal majority that the Governor's conclusion is not supported by any evidence. Rather, the positive psychological assessments of petitioner in every evaluation conducted during the last 15 years have undermined the evidentiary value of these dated reports setting forth stale psychological assessments. Moreover, in the negative psychological assessments cited by the Governor, the treating psychologists recommended petitioner should undergo specific forms of therapy - which she did for many years, resulting in successive positive evaluations. Indeed, several consistent psychiatric evaluations have found petitioner no longer suffers from any psychiatric problems, and since 1997 the annual psychological evaluations have recommended that petitioner not participate in therapy of any kind because she does not suffer from any psychiatric condition. As we stated above, the passage of time is highly probative to the determination before us, and reliance upon outdated psychological reports - clearly contradicted by petitioner's successful participation in years of intensive therapy, a long series of reports declaring petitioner to be free of psychological problems and no longer a threat to public safety, and petitioner's own insight into her participation in this crime - does not supply some evidence justifying the Governor's conclusion that petitioner continues to pose a threat to public safety.

[124] The Governor also stated that "[s]ince her incarceration, while [petitioner] has been counseled eight times for misconduct, including as recently as 2005, she has avoided any disciplinary actions." Again, it is unclear whether the Governor directly relied upon this circumstance to justify his reversal of the Board's parole decision, but in any event the record indicates that petitioner was counseled when she was late to a class or other appointment. Nothing in the record supports a conclusion that petitioner poses a threat to public safety because she was occasionally late to appointments or job assignments during her almost 24 years of incarceration.*fn23

[125] The sole remaining ground supporting the Governor's decision is the gravity of petitioner's commitment offense. Under the standard of review recognized above, we must determine whether some evidence in the record supports the Governor's conclusion that petitioner poses an unreasonable public safety risk because of the gravity of her commitment offense. The facts cited by the Governor - the use of multiple weapons, the premeditated nature of the offense, the cruelty attendant to the murder, as well as the petty motive attributed to petitioner - undoubtedly supply some evidence supporting the Governor's conclusion that the commitment offense was carried out in an "especially heinous, atrocious or cruel manner." (Regs., § 2281, subd. (c)(1).) As noted above, however, few murders do not involve attendant facts that support such a conclusion. As further noted above, the mere existence of a regulatory factor establishing unsuitability does not necessarily constitute "some evidence" that the parolee's release unreasonably endangers public safety. (Lee, supra, 143 Cal.App.4th at p. 1408.) Accordingly, even as we acknowledge that some evidence in the record supports the Governor's conclusion regarding the gravity of the commitment offense, we conclude there does not exist some evidence supporting the conclusion that petitioner continues to pose a threat to public safety.

[126] In the present case, the Board found, as it had after three previous parole hearings resulting in a grant of parole, that petitioner's record exhibited all the factors listed in the regulations indicating suitability for release on parole, except for the factor applicable only to battered spouses. The Board noted petitioner's long-standing involvement in self-help, vocational, and educational programs, her insight into the circumstances of the offense, her acceptance of responsibility and remorse, and her realistic parole plans, which included a job offer and family support. Regarding the commitment offense, the Board found petitioner had committed the murder while under the stress of an emotional love triangle. The Board found no evidence establishing the existence of any other statutory factor relevant to an inmate's unsuitability for parole. Petitioner had no prior criminal record or history of violent crimes or assaultive behavior. There also was no evidence of sadistic sexual acts or an unstable social history. Although earlier psychological reports were mixed or negative, petitioner's psychological examinations for the most recent 15 years were uniformly positive, finding her to be psychologically sound and to pose no unusual danger to public safety should she be released. Finally, petitioner was free of "serious misconduct" during her more than two decades of incarceration, and exhibited exemplary efforts toward rehabilitative programming.

[127] The commitment offense occurred 36 years ago when petitioner, who is now 61 years of age, was 24 and, as the Board found, under significant emotional stress as a result of her love affair with the victim's husband. Although the Governor's statement sought to diminish the emotional stress factor by suggesting that, even if genuine, it still does not reduce petitioner's culpability for the murder, the existence of emotional stress as a mitigating factor favoring suitability is not dependent upon a degree of stress that would fully negate culpability for the murder. Indeed, if facts fully negated culpability, the inmate would not have been convicted of murder. In the present case, there is no doubt petitioner is culpable for the premeditated murder of Rubye Williams, despite the emotional stress she was experiencing at the time. The Governor, however, was reviewing petitioner's twelfth parole suitability hearing and the fourth grant of parole by the Board. Psychological evaluations of petitioner conducted during the last 15 years, as well as the conclusion of four panels of the Board authorizing parole, have emphasized that petitioner committed this crime while she was experiencing an unusual amount of stress arising from circumstances not likely to recur, and that for this reason (as well as her prior crime-free life, her age, and her record of rehabilitation) there was a low risk she would commit another violent act if released. The Governor's conclusion regarding culpability does not negate this reasonable evaluation of the evidence, nor does it provide some evidence that petitioner remains a threat to public safety.

[128] Moreover, other factors establishing suitability, which the Governor considered but did not find dispositive in making his final evaluation, strongly support our view that the Governor's ultimate conclusion is not supported by some evidence. Petitioner was incarcerated for nearly 24 years and during that period had an exemplary record of conduct. She participated in many years of rehabilitative programming specifically tailored to address the circumstances that led to her commission of the crime, including anger management programs as well as extensive psychological counseling, leading to substantial insight on her part into both the behavior that led to the murder and her own responsibility for the crime. Petitioner repeatedly expressed remorse for the crime, and had been adjudged by numerous psychologists and by the Board as not representing any danger to public safety if released from prison.

[129] In light of petitioner's extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board at successive hearings - decisions reversed by the Governor based solely upon the immutable circumstances of the offense - we conclude that the unchanging factor of the gravity of petitioner's commitment offense had no predictive value regarding her current threat to public safety, and thus provides no support for the Governor's conclusion that petitioner is unsuitable for parole at the present time.

[130] Our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. (Rosenkrantz, supra, 29 Cal.4th at p. 658.) This does not mean, however, that evidence suggesting a commitment offense was "especially heinous" or "particularly egregious" will eternally provide adequate support for a decision that an inmate is unsuitable for parole. As set forth above, the Legislature specifically contemplated both that the Board "shall normally" grant a parole date, and that the passage of time and the related changes in a prisoner's mental attitude and demeanor are probative to the determination of current dangerousness. When, as here, all of the information in a post-conviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner's rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere 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.

[131] Accordingly, under the circumstances of the present case - in which the record is replete with evidence establishing petitioner's rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety - petitioner's due process and statutory rights were violated by the Governor's reliance upon the immutable and unchangeable circumstances of her commitment offense in reversing the Board's decision to grant parole. Contrary to the assertion of the dissent, the Governor's action vacating the Board's grant of parole to petitioner runs contrary to both his statutory and his constitutional obligations. As set forth in detail above, both the governing statutes and constitutional due process principles require the Governor to base his decision to set aside a grant of parole on "some evidence" of current dangerousness. The evidence relied upon by the Governor in this case - the egregiousness of the commitment offense - does not provide "some evidence" that petitioner remains a current threat to public safety. Accordingly, the Governor's decision is not supported by "some evidence" of current dangerousness and is properly set aside by this court.

[132] We emphasize that our recognition that a proper review of a parole decision must focus upon "some evidence" of current dangerousness, does not alter our recognition in Rosenkrantz and Dannenberg that the purpose of the parole statutes is to guarantee that the decision makers fully have addressed the public safety implications of releasing on parole any inmate serving a maximum term of life imprisonment. The relevant determination for the Board and the Governor is, and always has been, an individualized assessment of the continuing danger and risk to public safety posed by the inmate. If the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date. The same holds true for the Governor's decision to set aside a decision of the Board. Notably, despite the conclusion we reach in the present case, we reiterate our recognition in Dannenberg that pursuant to section 3041, subdivision (b), the Board has the express power and duty, in an individual case, to decline to fix a firm release date, and thus to continue the inmate's indeterminate status within his or her life maximum sentence, if it finds that the circumstances of the inmate's crime or criminal history continue to reflect that the prisoner presents a risk to public safety. (Dannenberg, supra, 34 Cal.4th at pp. 1083-1084, 1095.)

[133] Our conclusion that petitioner's conviction offense does not reliably predict, 36 years after commission of the offense and following 24 years of incarceration and demonstrated rehabilitation, that petitioner currently poses a danger to society, does not alter our affirmation that certain conviction offenses may be so "heinous, atrocious or cruel" that an inmate's due process rights would not be violated if he or she were to be denied parole on the basis that the gravity of the conviction offense establishes current dangerousness. In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide "some evidence" of current dangerousness even decades after commission of the offense.

[134] Indeed, as established in the companion case of In re Shaputis, supra, ___ Cal.4th___,___[pp. 22-26], filed concurrently with this opinion, the Governor does not act arbitrarily or capriciously in reversing a grant of parole when evidence in the record supports the conclusion that the circumstances of the crime continue to be predictive of current dangerousness despite an inmate's discipline-free record during incarceration. As explained in detail in that case, where the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. (See also Hyde, supra, 154 Cal.App.4th at p. 1215; Tripp, supra, 150 Cal.App.4th at pp. 314, 320.)

[135] Finally, it should be noted that our recognition that the proper articulation of the some evidence standard focuses upon the inmate's current dangerousness should not produce a wave of reversals of decisions denying parole. In the overwhelming majority of post-Rosenkrantz/Dannenberg appellatedecisions that have applied the strict minimum elements inquiry, the affirmance of a denial-of-parole determination was not founded solely upon the conclusion that the circumstances of the commitment offense were more than what was minimally required to obtain a conviction of that offense, but rather upon the presence of other additional statutory factors establishing unsuitability. (Bettencourt, supra, 156 Cal.App.4th at p. 807 [unsuitability based upon criminal history, social history, institutional behavior, psychological evaluations, and behavior at the parole hearing]; Burns, supra, 136 Cal.App.4th at p. 1328 [unsuitability based upon history of unstable or tumultuous relationships with others, and psychological evaluations]; Fuentes, supra, 135 Cal.App.4th at p. 163 [unsuitability based upon criminal history as evidence of inmate's repetitive and recidivist nature]; Honesto, supra, 130 Cal.App.4th at p. 97 [unsuitability based upon unstable social history, inadequate participation in prison programs, and inadequate parole plans].)*fn24

[136] V.

[137] For the reasons discussed above, the judgment of the Court of Appeal is affirmed.

[138] WE CONCUR: KENNARD, J., WERDEGAR, J., MORENO, J.

[139] CONCURRING OPINION BY MORENO, J.

[140] I concur in the majority opinion. I write separately to explain this concurrence in light of my dissent in In Re Dannenberg (2005) 34 Cal.4th 1061, 1100 (dis. opn. of Moreno, J.). In that case, the majority held that a denial of parole was justified if there is some evidence that the particular circumstances of the prisoner's underlying offense beyond the "minimum elements" indicated exceptional callousness and cruelty. (Id. at p. 1098.) I found the minimum elements test to be both unworkable and not consistent with the statutory mandate to normally grant parole to life prisoners. (Id. at pp. 1101-1104 (dis. opn. of Moreno, J).) I would have instead required an inquiry into whether the commitment offense was particularly egregious as measured by the Board of Parole Hearings' (Board) own matrices for determining the seriousness of the commitment offense. (Id. at pp. 1106-1107; see Pen. Code, § 3041, subd. (a); Cal. Code Regs., tit. 15, § 2403.)

[141] After observing the courts of appeal grappling with the parole suitability issue since Dannenberg was decided, I now agree with the majority opinion that neither a minimum elements test nor some other sort of metric for determining the gravity of the commitment offense is workable or called for by the statutory scheme. As the majority rightly recognizes, the seriousness of the commitment defense as determined by the Board's own matrix of factors is used primarily to calculate the prisoner's base term and release date. (Maj. opn., ante, at p. 32; see Pen. Code, § 3041, subd. (a).) In order to deny parole outright, as opposed to merely delay the release date, the gravity of the commitment offense must be linked to a prisoner's current dangerousness (Pen. Code, § 3041, subd. (b)), and the other factors that go into a determination of current dangerousness must be taken into account. The majority opinion appropriately reconciles Penal Code section 3041, subdivision (a) with subdivision (b) by recognizing that a parole date shall normally be granted except when some evidence of current dangerousness, after considering the totality of the circumstances, justifies denial of parole. The majority opinion therefore properly balances the statutory mandate to normally grant parole to life prisoners with the statutory mandate to protect the public, and also properly balances the need for judicial deference in reviewing executive decisions with the judicial obligation to ensure the executive complies with statutory and due process mandates.

[142] MORENO, J.

[143] DISSENTING OPINION BY CHIN, J.

[144] I dissent.

[145] The Governor carefully considered whether petitioner, Sandra Davis Lawrence, is suitable for parole. He issued a reasoned report that assessed petitioner's case individually. The report considered the relevant factors - both those supporting parole and those weighing against parole. It recognized the progress petitioner has made over the years that weighs in favor of parole. Nevertheless, balancing these factors, the Governor concluded "that her release from prison would pose an unreasonable risk of danger to society" and reversed the finding of the Board of Parole Hearings (Board) that she was suitable for parole.

[146] The majority cites to no factual misstatements in this report. It agrees that evidence supports every fact cited. It identifies nothing the Governor did that was incorrect or contrary to his constitutional and statutory obligations. Rather, the majority simply substitutes its own judgment in place of the Governor's considered judgment that petitioner is not suitable for parole.

[147] The awesome responsibility of deciding whether to release a convicted murderer on parole - an act that inherently runs the risk of recidivism, i.e., the risk that the inmate will again kill an innocent person - lies with the executive branch, not the judicial branch. We made this clear in In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz) and later in In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg).*fn25 In those cases, we held both that the executive branch may deny parole based on the seriousness of the crime (as long as the executive branch has considered all relevant factors, and the seriousness determination is based on an individualized assessment of the specific case), and that the judicial branch will overturn the executive branch's decision only if no evidence supports it. These holdings were consistent with, indeed compelled by, the applicable statute. (Pen. Code, § 3041, subd. (b) (section 3041(b)).)

[148] Today, the majority departs dramatically from these basic legal standards. I cannot agree; accordingly, I dissent.

[149] I. FACTUAL AND PROCEDURAL BACKGROUND

[150] Petitioner was convicted of first degree murder. Because the Governor's three-page report denying parole states the underlying facts, I attach it as an appendix to this opinion and adopt by reference its factual recitation. (See appen., post.) I see no need to repeat those facts, as the report speaks for itself.*fn26

[151] Petitioner is now eligible for parole, and has been for some time. Over the years the Board, or its predecessor, the Board of Prison Terms, has found petitioner suitable for parole several times. Three different Governors, Pete Wilson, Gray Davis, and Arnold Schwarzenegger, have overturned these determinations, most recently Governor Schwarzenegger in January 2006. Petitioner filed a petition for writ of habeas corpus in the Court of Appeal asking that court to overturn the Governor's January 2006 determination. Over Presiding Justice Perluss's dissent, the majority did so and ordered petitioner's release on parole. We granted review.

[152] II. DISCUSSION

[153] The applicable law is not as complex as the majority opinion makes it appear. We settled the legal standard in Rosenkrantz, supra, 29 Cal.4th 616, and Dannenberg, supra, 34 Cal.4th 1061.

[154] The Board determines whether persons sentenced to an indeterminate term, such as convicted murderers, are suitable for parole. (Pen. Code, § 3041.) The Board "shall set a release date unless it determines that 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(b).) Under this statute, "the Board, exercising its traditional broad discretion, may protect public safety in each discrete case by considering the dangerous implications of a life-maximum prisoner's crime individually." (Dannenberg, supra, 34 Cal.4th at p. 1071.) In making this determination, the Board must consider various criteria established by regulation. (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654.)

[155] In murder cases such as this one, the Governor has the power to reverse the Board's decision, while considering the same criteria. (Cal. Const., art. V, § 8, subd. (b); Pen. Code, § 3041.2; see Rosenkrantz, supra, 29 Cal.4th at pp. 625-626, 660.) The Board's parole decision and the Governor's decision reviewing the Board are subject to the same standard of judicial review. (Rosenkrantz, supra, 29 Cal.4th at p. 626.) (Because the Board and the Governor must consider the same criteria, and their actions are subject to the same standard of judicial review, I will sometimes describe the entity that denied parole generally as the executive branch or the parole authority rather than specifically either the Board or the Governor.)

[156] The executive branch, not the judicial branch, makes the parole decision, although it may not simply deny parole to all convicted murderers. (Rosenkrantz, supra, 29 Cal.4th at pp. 655, 683-684.) Accordingly, as we explained in Rosenkrantz, "the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor, 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 Governor'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 Governor's decision." (Rosenkrantz, supra, 29 Cal.4th at p. 677, italics added.) This "some evidence" standard is "extremely deferential" (id. at p. 665) and requires "[o]nly a modicum of evidence." (Id. at p.677; see also id. at p. 679.)

[157] Applying this standard in this case is not difficult. Readers may review the attached report and judge for themselves whether the Governor acted arbitrarily or capriciously, failed to engage in an individualized assessment of petitioner's case, failed to consider the factors supporting as well as those weighing against parole, failed to do anything else he should have done, or did anything he should not have done. In fact, he did exactly what he was supposed to do. He fulfilled his statutory and constitutional obligations precisely. His conclusion that petitioner remains too dangerous to release into society was not arbitrary or capricious. It was based on an individualized assessment of all the relevant factors, both those supporting and those weighing against parole. His factual recitation was accurate and everything he stated, including his conclusions, was supported by far more than a modicum of evidence. As Presiding Justice Perluss stated in dissent in the Court of Appeal, whether petitioner is suitable for parole "may be a close question," but whether some evidence supports the Governor's decision is not close.

[158] When a person is paroled, that person is released into the general society, to interact with many vulnerable people who may be unaware of the person's background. The parole decision thus involves the inherent risk of recidivism which, in the case of a convicted murderer, means the risk that an innocent person may die. Parole must be granted in proper cases, but the decision is an awesome responsibility, one entrusted to the executive branch. In deciding whether to grant or deny parole, i.e., whether to release the person into society, it is entirely appropriate for the executive branch to examine the facts of the crime (and here, surrounding circumstances) and, exercising its broad discretion, conclude that those facts are so horrendous, and so frightening, that it is not yet willing to take a chance and approve parole. The statute makes this clear. It permits the parole authority to deny parole if "it determines that the gravity of the current convicted offense or offenses . . . is such that consideration of the public safety requires a more lengthy period of incarceration . . . ." (§ 3041(b).) In Rosenkrantz, we interpreted this statute to mean what it says: "The nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole." (Rosenkrantz, supra, 29 Cal.4th at p. 682; see also Dannenberg, supra, 34 Cal.4th at p. 1094 [reiterating this point].)

[159] Petitioner committed a particularly vicious and premeditated first degree murder, shooting her lover's wife multiple times, then repeatedly stabbing the victim after she collapsed to the floor. She did this as a "birthday present" to herself because she was disappointed that her lover would not leave the victim for her. On her way to confront the victim, she stopped to arm herself with a pistol and a potato peeler. (See appen., post.)

[160] Moreover, other facts support the denial of parole. As Presiding Justice Perluss explained in dissent, petitioner remained a fugitive for 11 years after the cold-blooded killing. "During that time she lived in several different cities under various assumed names and with related false identity papers (including, it appears, Social Security numbers and passports)." When she surrendered, she still denied involvement in the murder and tried to blame her former lover. "Testifying on her own behalf at trial in August 1983, [petitioner] denied killing Mrs. Williams, insisted she did not want to marry Dr. Williams and asserted it was ' "no big thing" ' when he ended their relationship. . . . [¶] [Petitioner's] flight from California and her fugitive status for 11 years following the murder of Mrs. Williams, as well as her denial of involvement in the crime when she finally returned to California in 1982, were also identified by the Governor in explaining his reasons for reversing the Board's parole decision." Presiding Justice Perluss also explained that, "[a]lthough observing that more recent mental health evaluations of [petitioner] were favorable and included low risk assessments, in reversing the Board's parole decision the Governor noted [petitioner] had been identified in early evaluations as 'sociopathic, unstable, and moderately psychopathic.' "

[161] All this provides ample evidence supporting the Governor's denial of parole. It is true that the facts of the crime, petitioner's fugitive status, and the early psychological evaluations do not change, and hence these factors do not grow stronger over time. It is also true that the facts supporting parole may be dynamic and may grow stronger over time. They appear to have done so here. At some point, the parole authority might conclude that the facts supporting parole have increased sufficiently to finally outweigh the immutable facts of the crime and the other circumstances supporting denial of parole. When that occurs, the parole authority may exercise its authority to grant parole notwithstanding the horrendous facts of the crime. But this weighing process is for the executive branch to perform, not the judicial branch. Nothing in the statute or our previous cases permits the judiciary to engage in its own weighing process and to conclude that the evidence supporting parole outweighs the evidence supporting denial of parole and, on that basis, grant parole.

[162] Certainly, as both the Governor and Presiding Justice Perluss noted, the record contains evidence that would support a grant of parole. Obviously, the majority would weigh the competing factors differently than the Governor and would reach a different decision than he did. But this circumstance is "irrelevant" and cannot negate the evidence that supports the Governor's decision. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) "In short," as Presiding Justice Perluss stated in dissent, "there is no doubt that [petitioner] is a strong candidate for release on parole or that the Board's decision to release her was a reasonable one. But that . . . is simply not the question we are to address."

[163] I agree with the majority that the "some evidence" test asks whether evidence supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous. (Maj. opn., ante, at pp. 2-3.) But, as section 3041(b) and our cases make clear, the facts of the crime can alone justify the conclusion that the inmate is currently dangerous. If, as here, some evidence supports the Governor's determination that the facts of the crime (and the other individualized facts the Governor cited) show petitioner is dangerous, that should end the inquiry. As Presiding Justice Perluss correctly explained, "if a factor is properly part of the evaluation of a prisoner's suitability for parole [such as, here, the facts of the crime, petitioner's lengthy fugitive status, and her early unfavorable mental health evaluations], . . . and if the existence of that factor is supported by some evidence, to hold the same evidence does not support the ultimate conclusion concerning parole suitability is possible only if the court decides the probative (or predictive) value of that factor is outweighed by other indicia of suitability. It is precisely that determination the electorate entrusted to the Governor's discretion, not the courts', when it adopted article V, section 8, subdivision (b), of the California Constitution."

[164] I also agree that "the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude." (Maj. opn., ante, at pp. 46-47.) This inquiry is exactly what the Governor undertook. No one can read the Governor's report and reasonably conclude he simply examined the crime in isolation without considering the passage of time and changes in petitioner's psychological or mental attitude. The only thing the Governor did wrong, according to the majority, was to assess the predictive value of the circumstances of the crime and the post-crime factors he cited differently than the courts would later do. But making that assessment is for the executive branch to do, not the courts.

[165] To try to justify its conclusion, the majority appears to create a new test for courts to apply when reviewing the executive branch's decision to deny parole: "Accordingly, we conclude that although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Maj. opn., ante, at p. 36.)

[166] This language distorts Rosenkrantz and Dannenberg beyond recognition. Apparently, under the new test, the courts decide whether the circumstances of the crime (and presumably the other circumstances weighing against parole) "continue to be predictive of current dangerousness." (Maj. opn., ante, at p. 46.) But nothing in Penal Code section 3041 or Rosenkrantz or Dannenberg supports such a conclusion. Rather, it is for the parole authority, not the courts, to decide, while exercising its "traditional broad discretion" (Dannenberg, supra, 34 Cal.4th at p. 1071), when, if ever, the commitment offense loses its predictive value on the issue of current dangerousness. This point is particularly crucial, for permitting the courts to decide whether the facts of the crime continue to be predictive of current dangerousness also permits those courts to ignore the deferential "some evidence" standard of review. A court merely has to decide, contrary to the considered judgment of the parole authority, that the crime no longer has a predictive value - as the majority has done in this case - then it can ignore the evidence supporting the executive branch's decision and substitute its own judgment. The majority's new test renders the "highly deferential" standard of review of Rosenkrantz and Dannenberg a phantom. In effect, the standard now is independent review.

[167] By this convoluted method, the majority has created a new scheme in which a court may effectively grant parole whenever it wishes, contrary to California Constitution, article V, section 8, subdivision (b), Penal Code section 3041, Rosenkrantz, supra, 29 Cal.4th 616, and Dannenberg, supra, 34 Cal.4th 1061. I cannot agree. Some evidence, indeed, much evidence, supports the Governor's well-reasoned, individualized decision. The judicial branch must defer to this executive branch decision, for that is the branch entrusted with making parole decisions.

[168] I would reverse the judgment of the Court of Appeal and deny the petition for writ of habeas corpus.

[169] CHIN, J.

[170] WE CONCUR: BAXTER, J., CORRIGAN, J.

[171] Review Granted XXX 150 Cal.App.4th 1511


Opinion Footnotes

[172] *fn1 The Board of Parole Hearings replaced the Board of Prison Terms in July 2005. (Pen. Code, § 5075, subd. (a).) For ease of reference, and because both entities have performed the same duties, we refer to both as "the Board."

[173] *fn2 In the companion case of In re Shaputis (Aug. 21, 2008, S155872) ___ Cal.4th ___ [pp. 22-26] filed concurrently with this opinion, the Court of Appeal also properly recognized that the relevant inquiry is whether some evidence supports the Governor's ultimate decision that the inmate poses a current risk to public safety. As we explain in Shaputis, however, our clarification that the "some evidence" standard of review focuses upon evidence supporting the core statutory determination of public safety does not alter our recognition in Rosenkrantz and Dannenberg that the decisions of both the Board and the Governor are entitled to deference. In Shaputis, the Court of Appeal impermissibly substituted its own evaluation of the record for that conducted by the Governor. Because, unlike the record before us in the present case, the record in Shaputis contains some evidence supporting the Governor's determination that the inmate poses a current threat to public safety, we reverse the judgment rendered by the Court of Appeal in his case. (In re Shaputis, ___ Cal.4th ___, ___ [p. 2].)

[174] *fn3 Pursuant to Penal Code section 3046, persons sentenced to life imprisonment cannot be paroled during the first seven years of their confinement.

[175] *fn4 Unless otherwise indicated, all further unspecified statutory references are to the Penal Code, and all further undesignated references to Regulations are to title 15 of the California Code of Regulations.

[176] *fn5 Because petitioner's murder was committed prior to November 8, 1978, title 15, section 2281 governs her parole suitability. Title 15, section 2402, which we discussed in Rosenkrantz, supra, 29 Cal.4th 616, as excerpted in substantial part below, provides parole consideration criteria and guidelines for murders committed on or after November 8, 1978. The two sections are identical.

[177] *fn6 These factors include "the circumstances of the prisoner's: social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Regs., § 2281, subd. (b).)

[178] *fn7 Unsuitability factors are: (1) a commitment offense carried out in an "especially heinous, atrocious or cruel manner"; (2) a "[p]revious [r]ecord of [v]iolence"; (3) "a history of unstable or tumultuous relationships with others"; (4) "[s]adistic [s]exual [o]ffenses"; (5) "a lengthy history of severe mental problems related to the offense"; and (6) "[t]he prisoner has engaged in serious misconduct in prison or jail." (Regs., § 2281, subd. (c)(1)-(6).) This subdivision further provides that "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Regs., § 2281, subd. (c).)
Factors supporting a finding that the inmate committed the offense in an especially heinous, atrocious, or cruel manner include the following: (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 that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense. (Regs., § 2281, subd. (c)(1).)

[179] *fn8 Suitability factors are: (1) the absence of a juvenile record; (2) "reasonably stable relationships with others"; (3) signs of remorse; (4) a crime committed "as the result of significant stress in [the prisoner's] life"; (5) battered woman syndrome; (6) the lack of "any significant history of violent crime"; (7) "[t]he prisoner's present age reduces the probability of recidivism"; (8) "[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release"; and (9) the inmate's "[i]nstitutional activities indicate an enhanced ability to function within the law upon release." (Regs., § 2281, subd. (d)(1)-(9).)

[180] *fn9 Article V, section 8, subdivision (b) of the California Constitution provides in full: "No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. 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."
The statutory procedures governing the Governor's review of a parole decision pursuant to California Constitution article V, section 8, subdivision (b), are set forth in Penal Code section 3041.2, which states: "(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority's decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority. [¶] (b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision."

[181] *fn10 (Regs., §§ 2281, subd. (c)(1), 2402, subd. (c)(1); see In re Bettencourt (2007) 156 Cal.App.4th 780, 791 (Bettencourt); In re Roderick (2007) 154 Cal.App.4th 242, 260 (Roderick); In re Gray (2007) 151 Cal.App.4th 379, 396 (Gray); In re Tripp (2007) 150 Cal.App.4th 306, 316 (Tripp); In re Barker (2007) 151 Cal.App.4th 346, 361-362 (Barker); In re Burns (2006) 136 Cal.App.4th 1318, 1323 (Burns); In re Andrade (2006) 141 Cal.App.4th 807, 813 (Andrade); In re Lee (2006) 143 Cal.App.4th 1400, 1405 (Lee); In re Weider (2006) 145 Cal.App.4th 570, 581 (Weider); In re Elkins (2006) 144 Cal.App.4th 475, 486 (Elkins); In re Scott (2005) 133 Cal.App.4th 573, 587-588 (Scott); In re DeLuna (2005) 126 Cal.App.4th 585, 590 (DeLuna); In re Honesto (2005) 130 Cal.App.4th 81, 89 (Honesto); In re Fuentes (2005) 135 Cal.App.4th 152, 158 (Fuentes); In re Lowe (2005) 130 Cal.App.4th 1405, 1414-1415 (Lowe).)

[182] *fn11 As discussed in part III, post, implicit in this approach is the assumption, gleaned from our application of the standard in Rosenkrantz and Dannenberg, that evidence establishing that a commitment offense was particularly egregious inherently assesses the threat currently posed by the inmate to public safety.

[183] *fn12 (Rosenkrantz, supra, 29 Cal.4th at p. 658 ["the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon factors specified by statute and regulation"(italics added)]; Hill, supra, 472 U.S. at pp. 455-456 ["the relevant question is whether there is any evidence in the record that could support the conclusion reached by the decision maker."])

[184] *fn13 (Roderick, supra, 154 Cal.App.4th at p. 263; Gray, supra, 151 Cal.App.4th at p. 410; Barker, supra, 151 Cal.App.4th at p. 366; Tripp, supra, 150 Cal.App.4th at p. 313; Weider, supra, 145 Cal.App.4th at p. 589; Elkins, supra, 144 Cal.App.4th at p. 499; Lee, supra, 143 Cal.App.4th at p. 1408; Scott, supra, 133 Cal.App.4th at p. 595.)

[185] *fn14 (See Bettencourt, supra, 156 Cal.App.4th at p. 807; Burns, supra, 136 Cal.App.4th at p. 1329; Andrade, supra, 141 Cal.App.4th at pp. 818-819; Fuentes, supra, 135 Cal.App.4th at p. 163; Honesto, supra, 130 Cal.App.4th at pp. 96-97; Lowe, supra, 130 Cal.App.4th at p. 1429.)
The court in DeLuna, supra, 126 Cal.App.4th at page 600, found no evidence in the record supporting the existence of any of the multiple factors cited by the Board, except for the aggravated nature of the commitment offense. The appellate court reversed the trial court's decision granting petitioner's habeas corpus petition, but did not affirm the Board's decision, instead ordering the trial court to remand the matter to the Board for a new hearing. (Ibid.)

[186] *fn15 Two cases diverged from the pattern by applying the some-evidence-of-current-dangerousness approach and finding both that the crime involved more than the minimum elements, and that the circumstances of the crime continued to be predictive of current dangerousness. In Tripp, supra, 150 Cal.App.4th at pages 314, 320, the court recognized the current dangerousness test, but concluded that the circumstances surrounding petitioner's commitment offense were particularly egregious, and could constitute some evidence if the Governor duly considered all other relevant factors. In In re Hyde (2007) 154 Cal.App.4th 1200, 1215 (Hyde), the court analyzed the record for some evidence of current dangerousness, and also concluded that the circumstances of petitioner's numerous commitment offenses were both particularly egregious and provided evidence of his continuing threat to public safety.

[187] *fn16 (See Roderick, supra, 154 Cal.App.4th at p. 278; Gray, supra, 151 Cal.App.4th at p. 410; Barker, supra, 151 Cal.App.4th at pp. 377-378; Weider, supra, 145 Cal.App.4th at pp. 590-591; Elkins, supra, 144 Cal.App.4th at pp. 502- 503; Lee, supra, 143 Cal.App.4th at pp. 1414-1415; Scott, supra, 133 Cal.App.4th at pp. 603-604.)

[188] *fn17 (See also Andrade, supra, 141 Cal.App.4th at p. 819 [crime found particularly aggravated where during an altercation between the petitioner and another man, the petitioner's adversary cut his neck with a knife; the petitioner left the scene, returned with a shotgun, and shot two bystanders, one of whom was believed by the petitioner to have stabbed him; the petitioner fired three shots, killing one victim and injuring the second]; Fuentes, supra, 135 Cal.App.4th at pp. 162-163 [crime found particularly aggravated where the petitioner and his acquaintance had an altercation with two men; during the altercation, either the petitioner or his acquaintance pulled a knife and stabbed one of the men once in the face and once in the chest; after the stabbing, the petitioner fled the scene]; Honesto, supra, 130 Cal.App.4th at p. 96 [crime found particularly aggravated where the petitioner and two co-conspirators planned to kidnap, rob, and possibly kill the victim, who was the head clerk at a grocery store and once had refused to cash a check for one of the men; the men confronted the victim at his home with firearms and forced him to drive to the store; during the drive, the petitioner shot the victim with a shotgun, causing a collision; victim died several hours later]; Lowe, supra, 130 Cal.App.4th at pp. 1427-1428 [crime found particularly aggravated where the petitioner and the victim had a sexual relationship; after the relationship deteriorated, the petitioner purchased a gun and fired five shots at the victim's head and chest while he was asleep; after the murder, the petitioner covered the body in sheets and blankets, leaving it on the bed for two months; the petitioner later placed the body in a coffin, which he used as a nightstand; after learning that the police discovered the body, the petitioner fled].)

[189] *fn18 (See also Weider, supra, 145 Cal.App.4th at p. 587 [crime found not particularly aggravated where after the petitioner's wife moved in with the victim, the petitioner confronted wife and victim in a bar with a gun, intending to kill himself; after a struggle over the gun, the petitioner shot at the victim, killing him and wounding two patrons]; Lee, supra, 143 Cal.App.4th at p. 1413 [crime found not particularly aggravated where after a buyer repeatedly failed to make promised periodic payments to the petitioner, the petitioner confronted him with a gun, shooting at him five times until the gun jammed; the buyer, hit twice, survived the shooting, but one of the bullets killed the buyer's wife]; Scott, supra, 133 Cal.App.4th at p. 601 [crime found not particularly aggravated where victim was the lover of the petitioner's wife; the petitioner approached victim while he was watching fireworks with the petitioner's wife and son, shot the victim twice in the head and thigh, and left the scene].)

[190] *fn19 Although we have not previously emphasized the rehabilitative aspects of the governing statutory requirements and the underlying legislative intent that the Board and the Governor consider an inmate's rehabilitation when evaluating parole suitability, an examination of the regulatory factors favoring suitability (quoted, ante, fn. 8) establishes that in determining whether further incarceration is necessary to protect the public, the Board (and the Governor) must consider, among other factors, whether the inmate exhibits signs of remorse, has made realistic plans for release or has developed marketable skills that can be put to use upon release, and whether the inmate's institutional activities reflect an enhanced ability to function within the law upon release. (Regs. § 2281, subd. (d)(3), (8) & (9).) Moreover, the Board must consider the inmate's past and present mental state and past and present attitude toward his or her crime. (Regs. § 2281, subd. (b).) These suitability factors clearly establish that the statutes contemplate the consideration of an inmate's rehabilitation as an integral element of a parole suitability determination, and that a determination of the current threat posed by an inmate necessarily involves consideration of the inmate's post-conviction conduct and mental state as it relates to his or her current ability to function within the law if released from prison.
Additionally, the regulatory emphasis on institutional behavior, and the specific proviso that "serious misconduct in prison or jail" is an indicator of unsuitability for parole (Regs., §§ 2042, subd. (c), 2281, subd. (c).), suggest that the possibility of parole acts as an incentive - encouraging good behavior and discouraging misconduct by confined prisoners. Failure to consider a prisoner's post-conviction behavior when evaluating suitability for parole would undermine the practical institutional benefits of this regulatory incentive.

[191] *fn20 As the United States Court of Appeals for the Ninth Circuit cogently observed in Biggs v. Terhune: "To insure that a state-created parole scheme serves the public interest purposes of rehabilitation and deterrence, the Parole Board must be cognizant not only of the factors required by state statute to be considered, but also the concepts embodied in the Constitution requiring due process of law. [¶]. . . [¶]We must be ever cognizant that '[d]ue [p]rocess is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.' [Citations.] A continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation." (Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 916-917.)

[192] *fn21 Later at the hearing, in answer to the question why she took out her rage on Mrs. Williams instead of Dr. Williams, who had chosen to remain with his wife, petitioner explained: "Because women blame women when not getting what they want. They don't blame men. And a 24-year-old distraught, betrayed woman looked for the easiest probably person to take out any frustration on. I wanted him, so in my 24-year-old [mind], she was my problem - he wasn't my problem. So it's irrational, it's unfounded, it's unfair, and I understand that now. She was not the person to blame for my rage. I just took it out on her because it was - it was just probably the easiest thing to do to confront her instead of Robert."

[193] *fn22 As the Court of Appeal majority noted, at the 2005 hearing - after discussing the commission of the crime and petitioner's flight from prosecution two months later - she was asked whether there was anything else she had to say about the crime itself. Petitioner responded: "I would like to let you know, you know, that I'm totally, totally aware of what I did. I take full responsibility for what I did. . . . And I made that first step back into reality to come and let you know that I do understand that I did something horrible, and I'm willing to suffer the consequences for what I did. And I lived here for 21 1/2 years suffering those consequences, and have grown and gotten stronger behind it. So I come to you today, apologizing as I do on a daily basis when it comes up in my mind - apologize to [Rubye] Williams, knowing that I took her life. She was not my victim. She was the object of my rage. She was the object of my disgust with everything that had happened to my life, and my unfulfillment in my life up to that point. And it was an irrational act that I committed against her, her family, and [that] stone knife that I threw in that river that morning, how it affected so many people. I understand that. And I have stood strong here for 21 years letting everyone know that I was willing to make a change, and I worked every day to make a change and to let anybody and everybody know that nothing like that could happen in my life again, and anybody's life that comes within my contact, because my life is an open book where anybody could see how they can [be] involved in situations that [lead] to much damage to people and society. So I just want to apologize to [Rubye] and her children for doing that to her, as well as to my children and my family, and to the community at large. I can't take it back. All I've done is try to work to improve myself and improve my surroundings. And that's all I can do today."

[194] *fn23 As noted in his statement quoted above, the Governor also relied upon petitioner's flight from California and her fugitive status for 11 years following the murder, as well as her denial of involvement in the crime when she finally returned to California in 1982, as relevant to his action vacating the Board's parole decision. Petitioner, however, voluntarily ended her fugitive status more than 25 years ago, when surrendering to the authorities in 1982. From at least 1992, she also has taken responsibility for the murder of Mrs. Williams. Accordingly, these circumstances, even if the Governor relied upon them, would fail to establish that petitioner currently remains a danger to public safety.

[195] *fn24 Although the majority of appellate opinions applying the strict minimum elements test have affirmed the decision to deny parole, only one - Andrade, supra, 141 Cal.App.4th 807 - based its determination solely upon the Governor's findings regarding the gravity of the commitment offense. (Id. at pp. 818-819.). That conclusion elicited a dissent by Justice Pollak, who contended that the Board's conclusion could not be sustained based solely upon the circumstances of the commitment offense, because there was no evidence in the record establishing that the petitioner would " 'pose an unreasonable risk of danger to society if released from prison.' " (Andrade, supra, 141 Cal.App.4th at p. 819 (dis. opn. of Pollak, J..)

[196] *fn25 I dissented in Rosenkrantz on the basis that permitting the Governor to overturn the Board's findings violated the constitutional proscription against ex post facto laws. (Rosenkrantz, supra, 29 Cal.4th at pp. 690-696.) At this point, I accept the majority's holding as the law of California. I agreed, and still agree, with the rest of the Rosenkrantz opinion. (See id. at p. 696, fn. 6.)

[197] *fn26 Cryptically, the third sentence of the majority opinion states: "Petitioner declined a plea offer that would have resulted in a two-year prison sentence." (Maj. opn., ante, at p. 1; see also id. at p. 6 [reiterating the fact in reviewing the procedural history].) Readers will naturally assume that a fact mentioned in the opinion's opening paragraph has some relevance to the case, and that the opinion will again refer to it in discussing the legal standard and its application. But the majority never mentions this fact again and never explains its relevance. In fact, except to the extent it shows that petitioner utterly failed to accept any personal responsibility for her actions, that petitioner turned down a plea offer is irrelevant. The record does not reveal why the prosecutor apparently offered petitioner a good deal. The offer might simply have reflected the difficulty of prosecuting a 12-year-old crime. (Petitioner had been a fugitive from justice for 11 years.)
What is relevant here is that petitioner went to trial and the jury convicted her of first degree murder.