In re ALFRED WILLIAM RODERICK

Filed 8/17/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Story continued from Part II .

5. Rodericks Past Criminal History

A prisoners past criminal history, including involvement in other criminal misconduct which is reliably documented is relevant in determining his or her suitability for parole. ( 2402, subd. (b).) Also, a [p]revious [r]ecord of [v]iolence is a circumstance tending to show unsuitability for parole. ( 2402, subd. (c)(2).) In denying Roderick parole, the Panel found that he has an extensive criminal history starting in 1952 . . . related to traffic violations, Vehicle Code violations, pretty much continuously, almost without a break until this crime in 1980.

The record does reflect Rodericks long criminal history over 28 years, including two prior violent crimes. Thus, the Panels finding that Roderick has an extensive criminal history is most certainly supported by the evidence. The question, however, is whether, on this individualized record, the criminal history constitutes some evidence to support the Panels conclusion that Roderick poses an unreasonable risk of danger to the public safety. If one or more of the factors [relied upon by the board] lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result satisfies the requirements of due process of law because the factors for which there is some evidence constitute a sufficient basis supporting the . . . discretionary decision to deny parole.  (DeLuna, supra, 126 Cal.App.4th at p. 598, quoting Rosenkrantz, supra, 29 Cal.4th at p. 677.) We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion. (DeLuna, supra, 126 Cal.App.4th at p. 598.) On the other hand, the decision cannot stand when findings on important factors lack evidentiary support and it is not clear that the Board would have reached the same conclusion based on the supported factors. (Ibid.)

The relevant question then is whether the Panel would have denied Roderick parole based only on his past criminal history. In Rosenkrantz our high court stated that  [t]he Boards authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmates . . . past offenses should not operate so as to swallow the rule that parole is normally to be granted. Otherwise, the Boards 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. [Citation.]  (Rosenkrantz, supra, 29 Cal.4th at p. 683.) [T]he parole boards 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 [the inmate] continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of [the commitment] offense and prior conduct would raise serious questions involving his liberty interest in parole. [] . . . A continued reliance in the future on an unchanging factor, . . . conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation. (Biggs, supra, 334 F.3d at pp. 916-917.)

The dissent construes Sass v. California Bd. of Prison Terms (9th Cir. 2006) 461 F.3d 1123 as having abrogated the principle announced in Biggs, citing to Robles v. Solis (N.D.Cal. Oct. 12, 2006, No. C 04-2529 CRB) 2006 WL 2934086, 2006 U.S.Dist. Lexis 77086. (Dis. opn., post, at p. 39.)^[1] We do not agree. As recently explained, Sass did not dispute the principle that, other things being equal, a criminal act committed 50 years ago is less probative of a prisoners current dangerousness than one committed 10 years ago. (McCullough v. Kane (N.D.Cal. June 1, 2007, No. C 05-2207 MHP) 2007 WL 1593227, *8, 2007 U.S.Dist. Lexis 43674.) Thus, the message of [Biggs, Sass, and Irons II] is that the [Board] and Governor can look at immutable events, such as the nature of the conviction offense and pre-conviction criminality, to predict that the prisoner is not currently suitable for parole even after the initial denial (Sass), but the weight to be attributed to those immutable events should decrease over time as a predictor of future dangerousness as the years pass and the prisoner demonstrates favorable behavior (Biggs and Irons). . . . Not only does the passage of time in prison count for something, exemplary behavior and rehabilitation in prison count for something according to Biggs and Irons. Superintendent v. Hills standard might be quite low, but it does require that the decision not be arbitrary. (Id. at *7, *8.) Applying this standard, the court in McCullough concluded the Governor had violated the inmates due process rights by denying parole 21 years into a 15-years-to-life sentence based only upon the commitment offense and past criminality, in the face of an exceptional prison record. (Id. at *9.)

In this case Roderick has a long criminal history fueled by his alcohol abuse. However, since he has been incarcerated, Roderick has exhibited exemplary behavior, with few serious disciplinary violations (none since 1993), and excellent work reports. He has attended AA meetings since at least 1992, and all of the evidence in the record indicates that Rodericks alcoholism is, and will remain, in remission. Roderick has maintained close ties with his family, has no diagnosed mental or personality disorders, and has expressed shame and remorse for his criminal history. For more than six years prior to his most recent parole denial, Roderick has been assessed as posing no more danger to the public than the average citizen, particularly given his advanced age. Against the immutability of Rodericks past criminal history and its diminishing predictive value for future conduct, these factors must be considered. (Scott II, supra, 133 Cal.App.4th at pp. 594-595 [reliance on an immutable factor without regard to subsequent circumstance may be a due process violation].) Therefore, it is not at all evident the Panel would have found Roderick unsuitable for parole based solely on this factor.

6. Conclusion

Of the five section 2402 subdivision (b) factors relied upon by the Panel in denying Roderick parole, only oneRodericks past criminal historyconstitutes some evidence to conclude that Roderick would pose an unreasonable risk of danger if released. As of 2005, Roderick had served 20 years of a 16-years-to-life sentence, the last 12 of those years with a perfect disciplinary record. Roderick does have a lengthy rap sheet, but subsequent circumstances have indisputably shown that Roderick has become a competent and responsible person who has done quite well while incarcerated. And, [g]iven everything inmate Roderick has learned, his age and the fact that he has experienced a slowing down during the last year, due to aging, he would make an excellent candidate for parole. The Board must therefore consider whether continuing to deny parole to Roderick based upon the immutable factor of his past criminal history would be a denial of due process.

III. DISPOSITION

The order is affirmed. The Board is ordered to vacate the denial of parole and to conduct a new parole suitability hearing for Roderick consistent with this opinion. The hearing shall be held no later than November 14, 2007.

________________________

RIVERA, J.

I concur:

___________________________

RUVOLO, P.J.

A113370

Sepulveda, J.

I respectfully dissent. Whether the prisoner Alfred Roderick is suitable for parole may be a close question. This panel, if determining that question in the first instance, might well set a parole date for him. We may not agree with the Board of Prison Terms (Board)^[2]decision. We may not believe there is substantial evidence supporting unsuitability and that if we were reviewing the record under a sufficiency of the evidence standard, that the record would not support the Boards decision. We may believe there is more evidence in the record supporting his suitability than there is supporting unsuitability. We may, in fact, believe that the evidence supporting suitability substantially outweighs that favoring unsuitability. We may even believe that the evidence supporting suitability is overwhelming. We may strongly feel that the states money, or our money as taxpayers, could be better spent than by continuing to house this prisoner in state prison. We may feel sorry for the prisoner. We may feel that his age calls out for his release. We may disagree with the entire statutory scheme governing the setting of parole dates for life prisoners. None of these beliefs, however, matters under the very deferential standard of review that we are compelled to apply. Our role on review is extremely limited and does not permit us to be impacted by any of these factors. Nor are we permitted to manipulate the deferential standard of review in an attempt to effectuate a change in a statutory scheme that we may find distasteful.

Under the extremely deferential standard of review applicable in this case, the only issue before us is whether there is even a modicum of evidence to support the Boards decision. Stated differently, unless the record is absolutely devoid of even the slightest evidence supporting the Boards determination that Roderick is unsuitable for parole, we are required to affirm its decision. While the facts of this case are not as egregious as some recent cases where reviewing courts overturned either the Boards or the Governors decision finding an inmate unsuitable for parole, and while it might therefore be tempting just to go along with the majority, I write separately because I view the majority opinion here as symptomatic of recent decisions that appear to succumb to the temptation to substitute the reviewing courts evaluation of suitability for parole for that properly vested in the Board or in the Governor. In many of these cases the appellate courts appear to determine first whether they personally believe the prisoner should have been granted parole (or, perhaps more aptly put, whether they would have found him suitable for parole had they been the decision maker), and then review the record through a lens created by their own sense of justice. By subtle manipulation of the standard of review, along with what often appears to be a hypercritical evaluation of the evidence relied upon by the Board or the Governor, these cases slowly but surely erode the highly deferential standard of review that is mandated in these cases.^[3] As the United States Supreme Court stated in Superintendent v. Hill (1985) 472 U.S. 445, 455, while due process requires some evidentiary basis for the Boards decision, that does not imply that the Boards factual findings are subject to second-guessing upon review. Second guessing, it appears to me, is exactly the path that the majority and several other reviewing courts have ventured down recently. Having examined the record, and applying the appropriate standard of review, I would reverse the trial courts order granting Rodericks petition for writ of habeas corpus.

Standard of Review

The majority correctly summarizes the applicable standard of review, although it then succumbs to the temptation to ignore it and apply their own sense of justice to the case. It is therefore worthwhile to review the highly deferential standard of review we must be bound by here. The California Supreme Court has described the Boards discretion in parole matters as  great  and almost unlimited,  but it has also indicated that it is not absolute, as it is subject to a prisoners right to procedural due process. The Boards decision must therefore have a factual basis, and not be based on whim, caprice, or rumor. [Citation.] (In re Powell (1988) 45 Cal.3d 894, 902.) The Boards decision regarding suitability is subject to judicial review; however, that review is extremely limited. [T]he 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. If the decisions 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 prisoners 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.)

Rosenkrantz repeatedly describes the some evidence standard as extremely deferential, which requires only a modicum of evidence to support the Boards denial of parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 679, 677, italics omitted.) Rosenkrantz indicates that the reviewing court is not permitted to review the Boards weighing of the various circumstances indicating suitability or unsuitability for parole; the court should only determine whether the circumstances relied upon by the Board in determining unsuitability are supported by some evidence and whether the Board decided the defendants case on an individualized basis. (Id. at pp. 626, 677.) As long as [the Boards] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the courts review is limited to ascertaining whether there is some evidence in the record that supports the [Boards] decision.^[4](Id. at p. 677.) Further, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board] . . ., and [r]esolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board. [Citation.] (Id. at pp. 656, 677.) Thus, the reviewing court must defer to the Boards interpretation of the evidence.^[5]Further, as the court in Rosenkrantz explained, 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. (Id. at p. 677; accord, In re Elkins (2006) 144 Cal.App.4th 475, 492.)

The Rosenkrantz court elaborated upon this extremely limited review, stating, As the United States Supreme Court explained in a related context: Requiring a modicum of evidence to support a decision [to deny parole] will help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens. In a variety of contexts, the [United States Supreme] Court has recognized that a governmental decision resulting in the loss of an important liberty interest violates due process if the decision is not supported by any evidence [Citations.] [Citation.] . . . . Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by [the Board]. [Citations.]  (Rosenkrantz, supra, 29 Cal.4th at pp. 664-665, some italics added and some original, citing Superintendent v. Hill, supra, 472 U.S. at pp. 455-456.)^[6]

The court thus specifically recognizes that the standard of review is not to impose undue administrative burdens. The Boards hearings must be reviewed in context: they are neither trials nor full-blown evidentiary hearings. Although principles of due process apply, the parole authority is not required to proceed with the formality required of courts. [Citation.] (In re Morrall ( 2002) 102 Cal.App.4th 280, 294 (Morrall).) As the court explained in Rosenkrantz, prior decisions characterize proceedings before the Board as informal, in contrast to judicial or formal administrative proceedings. (Rosenkrantz, supra, 29 Cal.4th at p. 654; see also Pope v. Superior Court (1970) 9 Cal.App.3d 636, 641 [Adult Authority not limited to rules of evidence applicable in judicial proceedings; Authority not required to proceed with formality required of courts]; accord, In re Spence (1974) 36 Cal.App.3d 636, 639-640.) For example, the California Supreme Court has previously held that a prisoner is not entitled to the same type of evidentiary hearing regarding parole suitability as is mandated when he is faced with revocation of his parole, and has therefore declined to hold Morrissey^[7]directly applicable to parole suitability hearings. (In re Sturm (1974) 11 Cal.3d 258, 266 (Sturm).) As the court explained, [T]here are valid reasons for a distinction between revocation and release. In Morrissey the court recognized that revocation of parole involves the loss of a parolees conditional liberty, whereas parole release decisions concern an inmates mere anticipation or hope of freedom [citation]. Furthermore, a parole release proceeding is an attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts; in contrast, a revocation hearing involves a specific charge of out-of-prison misconduct which commends itself to quasi-judicial resolution. [Citations.] (Sturm, supra, at p. 266; accord, In re Arafiles (1992) 6 Cal.App.4th 1467, 1480.) However, the prisoner does have a right to be free from an arbitrary parole suitability decision. (Rosenkrantz, supra, 29 Cal.4th at p. 655 [In Sturm, supra, 11 Cal.3d 258, we found in prior California decisions a limited cognizance of rights of parole applicants to be free from an arbitrary parole decision, to secure information necessary to prepare for interviews with the [Board], and to something more than mere pro forma consideration. [Citation.]])

While the Boards findings must state the circumstances it relies upon in deeming a prisoner unsuitable for parole and must be in writing, the Board need not detail facts in the record that support those circumstances. (See In re Lawrence (2007) 150 Cal.App.4th 1511, 1575-1576 (dis. opn. of Perluss, P. J.) (Lawrence) [Neither the due process clause nor the governing statutes obligates the Governor to provide a detailed written analysis of each parole suitability factor. [Citations.]]; In reElkins,supra, 144 Cal.App.4th at p. 490 [nothing in due process concepts requires Board to specify particular evidence in inmates file or at his interview on which it rests discretionary determination that inmate not ready for conditional release (citing, cf. Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 15)].) The Board may use the language of the governing statutes and regulations in their decision. (Dang v. Ornoski (N.D.Cal. Oct. 24, 2006, No. C 05-4254 SI) 2006 WL 3041096 at p. 8 [for legal reasons, decision-makers often use boiler-plate language].) As the court recently explained in In re Fuentes (2005) 135 Cal.App.4th 152, 162 (Fuentes), The trial court believed the Board used the statutory language in an attempt to justify an arbitrary decision to deny parole, rather than engaging in a reasoned consideration of the relevant factors. To the extent the court placed any weight on the Boards use of the phrase cruel manner rather than the word egregious, the court erred; both have similar meanings and may be used interchangeably. Nor do we find any significance to the Boards use of any other language contained in the regulation to describe its findings about the commitment offense. (See also Lawrence, supra, 150 Cal.App.4th at p. 1569, fn. 6 (dis. opn. of Perluss, P. J.).) [use of language  especially atrocious, heinous or callous  reflects not rote hyperbole, but fact that governing regulations expressly provide crime committed in such a manner indicates unsuitability].) So long as the record contains a modicum of evidence supporting the circumstances the Board relies upon, their decision comports with due process.

In sum, the some evidence standard is extremely deferential and reasonably cannot be compared to the standard of review involved in undertaking an independent assessment of the merits or in considering whether substantial evidence supports the findings underlying [the Boards] decision. (Rosenkrantz, supra, 29 Cal.App.4th at p. 665.) We should not scour the entire record looking for evidence contrary to the Boards decision, independently assess the credibility of witnesses, or reweigh the evidence; we are neither deciding the issue of suitability of parole de novo, nor are we even reviewing the Boards decision to determine if it is supported by substantial evidence.

Regulations GoverningDetermination of Suitability

As indicated by the majority, the circumstances to be considered by the Board in determining whether a prisoner is suitable for parole, or if his release would pose an unreasonable risk of danger to society if released, are set forth in California Code of Regulations, title 15, section 2402, subdivisions (c) and (d).^[8]As explained in detail in Rosenkrantz, supra, 29 Cal.4th 616, According to the applicable regulation, circumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. [Citation.] [] The regulation further provides that circumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. [Citation.] (Rosenkrantz, supra, at pp. 653-654, fn. omitted.) These regulations are set forth only as general guidelines and the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. (Id. at p. 654.) In reviewing the Boards decision, the court may determine only whether some evidence in the record supports the circumstances relied upon by the Board in finding unsuitability and [i]f the decisions 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 prisoners petition for writ of habeas corpus . . . . [Citations.] (Id. at p. 658;  2402, subdivision (c) & (d).)

Review of the Boards Finding of Rodericks Unsuitability for Parole

Although not a model of clarity, the Boards finding of unsuitability in the present case appears to have been based on five circumstances: (1) the commitment offense; (2) the prisoners social history; (3) the prisoners past and present attitude toward the commitment offense; (4) the prisoners institutional behavior; and (5) the prisoners prior criminal history. The majority concludes that only the last of these circumstances, the prisoners criminal history, was supported by any evidence in the record, and that this immutable factor may not be a sufficient basis for denial of parole. To the contrary, the record does show some evidence supports each of the circumstances relied upon by the Board in finding that release of the prisoner would pose an unreasonable risk to public safety.

(1) Commitment Offense

If the prisoner committed the offense in a particularly atrocious, cruel, or heinous manner, that circumstance tends to establish unsuitability for parole. ( 2402, subd. (c)(1).) As explained in Rosenkrantz, supra, 29 Cal.4th 616 at page 653, footnote 11, Factors that support a finding that the prisoner 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. [Citation.]

The majority disagrees with the Boards determination that the nature of the commitment offense weighed in favor of unsuitability. They criticize the Board for not specifically relying upon the language of section 2402, subdivision (c)(1) (that the crime was committed in an especially heinous, atrocious, or cruel manner) in their findings, and for not specifically referencing the factors set forth in section 2402, subdivision (c)(1)(A)-(E) that the Board is directed to consider in making such a determination, citing In re DeLuna (2005) 126 Cal.App.4th 585, 593-594. They further conclude that a finding the Board did specifically make, that the prisoner had opportunities to avoid the commission of the murder but failed to do so, was neither supported by the evidence, nor properly relied upon by the Board. I disagree on all points.

The Board did indicate that it was relying on the circumstances of the commitment offense. The only circumstance listed in section 2402, subdivision (c) that relates to the commitment offense is subdivision (c)(1)that the crime was committed in an especially heinous, atrocious, or cruel manner. We can infer, therefore, that the Board was relying upon section 2402, subdivision (c)(1) when it spoke to the circumstances of the commitment offense. While the Board is required to state in its written findings the circumstances it is relying upon to find the prisoner unsuitable for parole, under section 2402, subdivision (c), it is unclear whether the Board is additionally required to set forth in its findings the factors that the Board is directed to consider in making that determination as set forth in section 2402, subdivision (c)(1)(A)-(E).^[9] Assuming for the sake of argument, however, that the Board is required to further elaborate in some fashion in its decision upon the factors that it considered in determining that the crime was especially atrocious, cruel, or heinous, that requirement was adequately met here. Although the Board did not use the language of the enumerated factors specifically,^[10]it did indicate in its findings that it was basing its decision to deny parole in part on the nature of the commitment offense. The Board, relying upon the summary of the offense in the probation report, then explained that the offense arose out of a verbal disagreement inside a bar that Roderick escalated into a physical altercation, culminating in the death of the victim due to knife wounds inflicted by Roderick.

According to the probation reports summary of the witness accounts, the bartender told the victim and Roderick to take their fight (to this point only a verbal disagreement) outside. Roderick punched the victim in the face as they were going out the door; the victim staggered back and fell against the tables near the juke box. The victim was dazed, stumbled around, and started to head out the door again. As the victim came out the door, Roderick punched him again. The altercation continued outside and in a few seconds it was reported that the victim had been stabbed. The victim died of knife wounds to the chest. Roderick fled the scene and was apprehended a short distance away. In its findings, the Board noted that according to Roderick, the verbal altercation inside the bar began when the victim confronted him because Rodericks daughter (a security officer for Safeway) had arrested the victims aunt for shoplifting.

The Board then focused on the opportunities that Roderick had to diffuse the developing confrontation, to not escalate it into a physical altercation, and to hence avoid murdering the victim, stating, And there are a lot of other choices that you could have made, Mr. Roderick. You could have just left. You could have just gone home. You could have called the police. But that wasnt the choice that you made. Although not phrased in the exact language of section 2402, subdivision (c)(1)(E), the Board considered Rodericks motive for committing the crime (that the offense arose from a verbal disagreement in a bar, that Roderick escalated it into a physical altercation that ultimately resulted in Roderick killing the victim by inflicting multiple knife wounds, and that he could have avoided committing the crime), and impliedly found it to be trivial.^[11] Thus, even if we are not able to rely upon factors the Board is directed to consider under section 2402, subdivision (c)(1)(A)-(E), which are supported by the record but were not relied upon by the Board in denying parole (In re DeLuna, supra, 126 Cal.App.4th at 593-594), here it appears that the Board did in fact rely upon the prisoners trivial motivation for committing the crime.

The majority indicates that [t]he motive for the killing was not inexplicable or trivial in its context and concludes that in this case there is no evidence to support a finding that the motive for the murder was less significant than in other second degree murder cases. (Maj. opn., ante, at p. 23, italics added.) The majority relies on Scott I, supra, 119 Cal.App.4th at page 894 to support their position that the prisoners motive for committing the crime should be compared to that in other second degree murders. If this was ever the correct test, it certainly can no longer be considered accurate in light of the California Supreme Courts holding in In reDannenberg (2005) 34 Cal.4th 1061 (Dannenberg). The ScottI decision imports limitations upon the factors underlying the Boards determination that the commitment crime was committed in an especially heinous, atrocious, or cruel manner (including the consideration of whether the motive was trivial) that the court specifically rejected in Dannenberg. The majority in Scott I, for example, found that to demonstrate an exceptionally callous disregard for human suffering ( 2402, subd. (c)(1)(D)), the offense in question must have been committed in a more aggravated or violent manner than that ordinarily shown in the commission of second degree murder. (Scott I, supra, 119 Cal.App.4th at p. 891, italics added.) This requirement of a comparative analysis with other second degree murders is carried over into their analysis of the underlying factor of whether the motive for the crime was trivial.

Justice Haerle in his dissenting opinion in Scott I best sets forth why this comparative analysis approach was, even at the time of Scott I, improper. The majority, in frankly the least convincing part of its opinion, effectively substitutes its opinion for that of the Board, and does so by the tactic of setting up a patently false premise, to wit: The reference in Board regulations to motives that are very trivial in relationship to the offense therefore requires comparisons; to fit the regulatory description, the motive must be materially less significant (or more trivial) than those which conventionally drive people to commit the offense in question . . . . [ ] This requirement of comparisons with other second degree murders is, purely and simply, an invention out of the proverbial whole cloth. Not a sentence, not a phrase, not a word in the Boards regulations suggest that, at the parole-eligibility stage, the motives underlying Penal Code section 187 convictions are, much less should be, subject to any sort of comparison test. But such is what the majority then embarks oncomplete with quotations from several abstract academic musings regarding criminal motive. It concludes that the Board erred in finding that Scotts motive for killing Bradford is less significant or important than others which account for the commission of second degree murder . . . . [ ] [] The majoritys discursive venture into the exquisitely abstruse issue of comparative second degree murder motivations ignores the real issue. The only comparison the Board was making, or indeed was entitled to make, was that Scotts motive for his actions was trivial in relationship to the crime which resulted . . . . (Scott I, supra, at p. 902 (dis. opn. of Haerle J.).)^[12] That Justice Haerles analysis was correct appears clear after the Supreme Courts ruling in Dannenberg, supra, 34 Cal.4th 1061.

In Dannenberg the court was faced with the issue of whether the Board had to evaluate the prisoners case under standards of term uniformity before exercising its authority to deny parole on the grounds that the prisoners criminality presented a continuing public danger. The court determined that the Board need not do such a uniformity evaluation before determining suitability for parole. In reaching this conclusion, the court discussed its prior opinion in Rosenkrantz,supra, 29 Cal.4th 616, quoting from that opinion as follows: . . . we suggested that, in order to prevent the parole authoritys case-by-case suitability determinations from swallowing the rule that parole should normally be granted, an offense must be particularly egregious to justify the denial of parole. (Dannenberg, supra, 34 Cal.4th 1061 at p. 1095.) The Governor in Rosenkrantz had relied upon circumstances of the prisoners offense that involved particularly egregious acts  beyond the minimum necessary to sustain a conviction for second degree murder,  and  [a]ccordingly, the Governor properly could consider the nature of the offense in denying parole.  (Ibid.) The court noted that Rosenkrantz did not say the parole authority must routinely subordinate suitability to uniformity . . . or otherwise engage in a comparative analysis of similar offenses before deeming a particular life inmate unsuitable . . . . Our discussion, including our use of the phrase particularly egregious, conveyed only that the violence or viciousness of the inmates crime must be more than minimally necessary to convict him of the offense for which he is confined. (Ibid., original italics.) Further, the Dannenberg court, in evaluating whether the facts of that commitment crime were particularly egregious, found that the crime was  especially callous and cruel, showed an exceptionally callous disregard for human suffering, and was disproportionate to the trivial provocation.  (Ibid., italics added.) Thus the motive for committing the crime in Dannenberg was evaluated not by comparing it to the motive in other murders, but as suggested by Justice Haerle in his dissent in Scott I, by comparing it to the crime committed. Indeed, that method of comparison would appear to be the only appropriate one, given the specific language of section 2402, subdivision (c)(1)(E), which directs the Board to consider whether [t]he motive for the crime is inexplicable or very trivial in relation to the offense in determining whether the prisoner committed the crime in an especially heinous, atrocious, or cruel manner. (Italics added.)

The court recognized in In re Scott (2005) 133 Cal.App.4th 573, 598 (Scott II) that Dannenberg, supra, 34 Cal.4th 1061and Rosenkrantz, supra, 29 Cal.4th 616 require that the commitment offense be compared to the minimal elements necessary for conviction, as opposed to the court engaging in a comparative analysis with other second degree murders, in determining its egregiousness. In conducting that analysis, however, the court compared the facts of Scotts commitment offense with the facts of the commitment offenses in three other published cases. Other reviewing courts appear to have similar difficulty fully escaping from the incorrect method of comparative analysis and continue to engage in improper comparisons with other similar offenses. For example, the majority in Lawrence also compares the commitment crime to similar offenses in other published cases, stating, Turning to [the] 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. (Lawrence, supra, 150 Cal.App.4th at p. 1556.)

By this approach, employing an ordinary method of legal analysis by comparing the facts of the current offense to the facts in other published opinions, a line of cases is developing wherein reviewing courts accomplish through the back door that which they are forbidden to do directly. These cases compare their commitment crime with the facts of prior published cases which found the circumstances of the commitment crime not to be sufficiently egregious, declare their commitment crime to not be as egregious as the facts in those published opinions, and thereby conclude that the facts of their commitment offense are not egregious enough to weigh in favor of unsuitability for parole. Of course, to the extent the earlier cases incorrectly conducted a comparative analysis, the subsequent reliance on that comparison becomes suspect; the entire line of case authority thus potentially becomes a house of cards. This method of comparing the current commitment crime to the facts in other cases, in this context, subtly employs the improper method of comparing the facts of the commitment offense to other similar offenses, rather than simply comparing it to the minimal elements of the offense. As Presiding Justice Perluss correctly explains in his dissent in Lawrence, [U]tilizing a variant of the comparative analysis rejected in a related context by Dannenberg . . . the majority simply asserts it is hard to characterize Lawrences 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. [ ] 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 Governors decision to reverse the Boards grant of parole. (Lawrence,supra, 150 Cal.App.4th at pp. 1568-1569, fn. omitted (dis. opn. of Perluss, P. J.).)

Another example of deviation from the correct method of comparison occurred in the recent case of In re Barker (2007) 151 Cal.App.4th 346, 373 (Barker). There the court stated, Barkers petition appropriately concedes that [his friends] grandfather did suffer until he was shot, but goes on to assert that the murder was no more callous, dispassionate, calculated, cruel or committed with more disregard for suffering than most such offenses. Without in any way minimizing the severity of Barkers crimes, we agree with this argument. [Citation.] (Italics added.) As authority for this position, the Barker court quotes Scott I, supra, 119 Cal.App.4th at page 891 [the offense in question must have been committed in a more aggravated or violent manner than that ordinarily shown in the commission of . . . murder]. (Barker, supra, at p. 373.) As previously indicated, even Scott II recognizes that after Dannenberg, supra, 34 Cal.4th 1061, this method of comparison is no longer appropriate. (Scott II, supra, 133 Cal.App.4th at p. 598.) The court in Barker drifts back to the correct analysis, comparing the commitment crime to the minimal elements required for murder, but reaches the extraordinary conclusion that But however horrific the murders, however horrific the outcome of Barkers participation, again it is difficult to discern how that participation can be considered anything other than the minimum for malice aforethought.  (Barker, supra, at p. 373.) The Barker opinion also harkens back to Scott Is incorrect analysis regarding the motivation for the crime, indicating that  the motive must be materially less significant (or more trivial) than those which conventionally drive people to commit the offense in question . . . rather than properly comparing the motive to the particular circumstances of the commitment crime. (Barker, supra, at p. 374, italics added.) Undoubtedly some future cases will compare the facts of their commitment crimes to the fairly egregious facts in Barker, declare the facts of their cases to be less egregious than the Barker facts, and conclude that their cases are therefore not sufficiently grave to weigh in favor of unsuitability. For the reasons indicated ante, these types of comparative analyses are inappropriate. Applying the correct analysis here, Rodericks motive for committing the murder was trivial when compared to the crime committed, killing the victim by inflicting multiple knife wounds.

Story continues as Part IV ..

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^[1]Opinions of the United States District Court that have not been published in the Federal Supplement are properly cited by this court as persuasive, although not precedential, authority. (Schlessinger v. HollandAmerica (2004) 120 Cal.App.4th 552, 559, fn. 4.)

^[2]The Board of Prison Terms was abolished in 2005 and replaced by the Board of Parole Hearings. (See Gov. Code  12838.4; Pen. Code  5075.)

^[3]Embraced by the majority here, In re Scott (2004) 119 Cal.App.4th 871 (Scott I)concluded that the deferential standard of review set forth in In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz), while it requires us to be exceedingly deferential to the Boards findings, does not convert a court reviewing the denial of parole into a potted plant. (Scott I, supra, 119 Cal.App.4th at p. 898, maj. opn., ante, at p. 20.) Several post-Rosenkrantz decisions seem to adopt a similar attitude toward the deferential standard of review, stretching it far beyond its required confines, as discussed post.

^[4]Rosenkrantz, supra, 29 Cal.4th 616 actually dealt with judicial review of the Governors decision to override the Boards finding of suitability for parole, but the same standard of review applies to review of the Boards finding of unsuitability for parole. (Id. at pp. 660, 667.)

^[5]Where the facts presented at the hearing would support two different interpretations, the Boards interpretation must be deferred to. As the court explained in Superintendent v. Hill,supra, The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the . . . board. Instead, due process in this context requires only that there be some evidence to support the findings made in the . . . hearing. (Superintendent v. Hill, supra, 472 U.S. at p. 457.) Thus only if the record is devoid of evidence so that the Boards interpretation or conclusion is without support or otherwise arbitrary, is due process implicated. (Ibid.)

^[6]The Board must make an individualized decision as to each prisoner, and if it fails to consider circumstances which would point toward suitability for parole, due process may be violated. (See, e.g., Rosenkrantz, supra, 29 Cal.4th 616 at p. 677.) The majority, however, does not contend that the Board here failed to consider all the evidence, including that which would have supported a finding of suitability for parole.

^[7]Morrissey v. Brewer (1972) 408 U.S. 471.

^[8]All further section references are to the Code of Regulations, unless otherwise specified.

^[9]Penal Code section 3042, subdivision (c) requires that the Board state its findings and supporting reasons on the record.

^[10]See, e.g., Fuentes, supra, 135 Cal.App.4th 152 at page 162 [failure to use exact language of factor not fatal].

^[11]The court in Fuentes similarly relied in part upon the prisoners opportunity to avoid the commission of the crime in determining that his motive was trivial, stating, Fuentes easily could have avoided any confrontation by going into his friends house instead of continuing to walk with Luken. Fuentess participation was thoughtless. His motive was inexplicable or trivial. (Fuentes, supra, 135 Cal.App.4th at p. 163.)

^[12]Justice Haerle goes on to note that there were an infinite variety of actions short of murder that Scott could have taken to diminish, deflect, defeat or even punish the victims despicable conduct short of murder. (Scott I, supra, 119 Cal.App.4th 871 at p. 903 (dis. opn. of Haerle J.).) As in the present case, the failure of Scott to avoid the commission of the crime goes to his trivial motive for committing it.