In re Clutchette

Filed 3/13/07 In re Clutchette CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

State inmate John Clutchette is serving a life sentence with the possibility of parole following his 1980 conviction for first degree murder. The People appeal from the order of the trial court granting his petition for writ of habeas corpus.

The trial court concluded that, in October of 2003, the Board of Prison Terms^[1](the Board) erred in disapproving, for reasons other than those required by section 3041,^[2]the decision of a parole panel, which set a parole date for Clutchette. We conclude the trial court properly granted the petition and shall affirm.

PROCEDURAL BACKGROUND

On August 20, 2003, the matter of setting a parole date for Clutchette came on for hearing before a two-person panel of the Board. Clutchette elected to represent himself at the hearing. At the outset the presiding commissioner reviewed on the record various procedural matters. He inquired into the need for accommodation under the Americans with Disabilities Act. He noted the governing statutes and regulations. He explained the issues to be decided, the matters that would be considered, and the process of the hearing and rendition of the decision. He explained that Clutchette was not required to discuss the murder offense and that the panel, in any event, would accept as true the findings of the court concerning the offense.

He then asked the other panel member: Any confidential material to be used today? She replied: There is a confidential file, but we will not be using any material. The presiding commissioner then gave Clutchette and the deputy district attorney a checklist to make sure were all operating off the same set of documents. The presiding commissioner inquired about introduction of any additional documents. He then administered the oath to Clutchette and questioned him about the murder offense.

The presiding commissioner noted the essentials of the murder offense from the record. Clutchette, a Ms. Polson, the driver, and Robert Bowles were traveling in a car together on a trip involving a drug deal. Bowles was in the front passenger seat and Clutchette was in the back seat. Without warning or provocation Clutchette shot Bowles in the back of the head killing him. Clutchette had Polson drive the two of them away.

Clutchette denied he committed the offense or that he was present when it occurred. He said the killing arose out of a narcotics sales enterprise in which the victim, Clutchette, and Polson, who testified against him, were all involved. Clutchette suggested Polson lied to protect their kingpin. He conceded he attempted to conceal the crime by removing blood stains from the car in which the murder had occurred.

The presiding commissioner then reviewed on the record Clutchettes prior criminal history, his family and social history, his history of drug use, his plans if he were released from prison, and his letters of support from friends and family for that outcome.

The other panel member, a deputy commissioner, then reviewed, at length, on the record, Clutchettes misconduct, health, and education and training history during his incarceration. She noted, among other things, a report that in 2002 Clutchette was validated as an inactive Black Guerilla Family Gang Member. Her review of Clutchettes health history included detailed excerpts from the 17-page mental health evaluation prepared for the hearing. The evaluation concludes that he presented a moderately low to low risk for future violence.

The presiding commissioner asked Clutchette to explain a 2001 misconduct report, his first since 1989. Clutchette said that, after a vending machine purchase, he had witlessly put a Ziploc bag containing about $10 in bills and change in his pocket, during a visit with his wife. Inmates are not permitted to possess money.

The presiding commissioner assured Clutchette that he would not be penalized for choosing to represent himself. He asked if Clutchette wanted to add anything about the crime or other matters that had been discussed. Clutchette said that he had tried to atone for his earlier misconduct and now understood the perils of drugs. The presiding commissioner questioned him about participation in Narcotics Anonymous and asked him who he would place at the top of the list of people he had harmed. Clutchette responded: his children.

The deputy district attorney made a brief closing statement opposing parole and Clutchette made a brief reply. About an hour after the hearing commenced, the panel recessed to consider its decision.

The panel returned to announce its decision. The presiding commissioner announced that they concluded Clutchette was suitable for parole. He noted the following factors: Clutchette had enhanced his ability to function under the law by participating in educational programs, self-help and therapy, and obtaining a marketable skill. Maturation, growth, insight and advanced age (Clutchette was then 60 years old) had reduced the probability of recidivism. Clutchette had realistic parole plans, a job offer, and offers of places to live. He had been free of discipline for many years and the panel accepted his account of the possession of money incident. The mental health evaluation was favorable and rated his risk of violence as low.

The presiding commissioner then announced the panels calculations in setting the base term and adjustments, and the parole conditions it deemed appropriate. He told Clutchette that the favorable decision was subject to review and advised him to keep the outcome to himself. Thereafter the hearing ended.

On September 29, 2003, the panel decision was referred to the Board for review. On October 3, 2003, the Board sent Clutchette a letter announcing that it would consider his parole suitability at an executive board meeting on October 15, 2003. The letter told him he could send a statement in writing or appear and make oral comments, not exceeding five minutes. It said: The Executive Board Meeting is not a hearing conducted pursuant to Penal Code section 3041.5.

Clutchette replied with a letter of his own. He said he assumed that he would not actually be allowed to appear and said he was unsure if counsel or family would appear on his behalf. He made brief argument in favor of sustaining the grant of parole.

When the matter came on before the Board at the October 15 meeting, five commissioners were present. Four voted in favor of disapproving the panel decision and setting the matter for rehearing. On October 24, 2003, the executive officer of the Board signed a written memorandum of decision asserting the Board found a rehearing necessary for the following reasons:

1. The August 20, 2003 hearing panel did not consider the confidential material contained in the prisoners central files.

2. The August 20, 2003 hearing panel did not fully consider the prisoners mental health evaluations.

3. The August 20, 2003 hearing panel did not fully consider the prisoners Life Prisoner Evaluations.

Clutchette filed a petition for a writ of habeas corpus in the Sacramento County Superior Court. He contended that the decision of the Board to disapprove the panels parole suitability decision was insupportable as there was no evidence to support any finding required under section 3041 (see fn. 2, ante). He also contended that the Board proceeding resulting in disapproval did not comply with section 3041.5 and constitutional due process of law requirements or with the public hearing provision of section 3041. His last contention was that the decision was in violation of section 3041, subdivision (b),^[3]because it was not voted for by a majority vote of the Board.

The Attorney General responded that the Board decision was valid and appropriate because the findings recited in the October 24, 2003 memorandum of decision amount to a valid determination under section 3041 that the panel decision is based on a material error of fact. The Attorney General submitted that the reference to confidential material in Clutchettes central file is to the information that he had been a high ranking member of the Black Guerilla Family and the reference to the mental health evaluation is to the information that Clutchette is the last surviving member of the Soledad Brothers who had received national media attention in the 1970s. The Attorney General argued that the panel was unaware of these facts and this amounts to a material mistake of fact, because they tend to support the view that Clutchette was an assassin, rather than a low level flunkey who only acted as an accessory after the fact.

The trial court decided that the record showed the panel was aware Clutchette had been a member of the Black Guerilla Family and that the determination not to use confidential file material was not an error of fact. The court decided the same was true of the panels failure to comment on the information in the mental health evaluation that Clutchette had been a Soledad Brother. It concluded that there was no evidence the panel had failed to consider the information cited by the Board. Hence, it granted the petition and remanded the matter back to the Board for action in accord with the courts opinion.

The People appeal from the order granting Clutchettes habeas petition.

DISCUSSION

I

The People contend the trial court erred in overturning the decision of the Board. They argue that the Board properly deemed the panels failure to mention Clutchettes status‑‑as a Soledad Brother and a member of the Black Guerilla Family‑‑and his prison misconduct, a failure to consider the confidential information in his central file and his mental health evaluation. The People submit that such failure to consider relevant information constitutes an error of fact or an error of law. The argument is unpersuasive.

As pertinent here, section 3041 limits the power of the Board to disapprove a panel decision to circumstances where the panel makes an error of law or bases its decision on a mistake of fact and a correction is material, i.e., substantial likelihood of resulting in a substantially different decision upon rehearing. ( 3041, subd. (b).) Of course, a disapproval cannot be upheld merely because the Board recites a finding of one of these circumstances. (See In re Caswell (2001) 92 Cal.App.4th 1017, 1027 (Caswell).) There must be an adequate factual underpinning for the finding. (Ibid.) A finding by the Board that a panel had failed to consider material information could satisfy the criteria of section 3041, if adequately supported by the record before the Board.^[4] Adequate support for such a finding would consist of some evidence in the record that the panel was ignorant of or affirmatively disregarded the information. (See Caswell, supra, at p. 1029 [what is required is: findings or conclusions [that] cannot be reconciled with the evidence before the granting panel, or when the granting panel misstated facts or explicitly declined to consider information].) A demonstration of ignorance of material facts is tantamount to new information [that] should be presented to the board ( 3041, subd. (b)) and conscious disregard of material facts is an error of law in view of the panels duty to consider these facts (see Cal. Code Regs., tit. 15,  2402).

However, if the gist of the finding by the Board is that the panels consideration was inadequate because reasonable commissioners might disagree regarding parole suitability and the Board disagrees with the finding of the panel, this will not suffice. It satisfies none of the criteria of section 3041. Those criteria unmistakably place the Board in the posture of an appellate review body. The limited grounds listed in section 3041 for disapproving the panel decision are inconsistent with de novo review. The Board is not empowered to supply its own view on the question of parole suitability. Substantial evidence in support of a view contrary to that of the panel is unavailing; it is not some evidence in support of a decision to disapprove the panel decision to grant parole. (Caswell, supra, 92 Cal.App.4th at p. 1029.)^[5] Some evidence in this context means evidence that the panel made a predicate error listed in section 3041.

The remaining question then is whether the People have identified such evidence. They argue that Clutchettes membership in the Black Guerilla Family and his status as a Soledad Brother are facts relevant to his criminal history and the Board properly found the hearing panel committed an error of law by failing to consider these facts. But the question is whether there is evidence that the panel failed to consider these facts.

The People argue that the panels failure to discuss these matters on the record suffices to show they were not considered. The argument is unpersuasive. The People identify no requirement that the panel mention or discuss every fact relevant to parole suitability. Such a requirement would be unattainable as a practical matter.

To endorse the view that any relevant fact which the panel does not comment upon or discuss may be used to overturn its decision would eviscerate the findings requirements of section 3041. (People v. Kimbrel (1981) 120 Cal.App.3d 869, 874, fn. 4 [The universe of nots is spacious indeed].) The bare absence of mention or discussion of particular facts does not suffice to overcome the presumption under Evidence Code section 664 that the panel performed its duty to consider the facts in the record before it. (Caswell, supra, 92 Cal.App.4th at pp. 1031-1032.)

Nor was the remark during the preliminary portion of the hearing that the panel would not be using material from the confidential file an indication that it had not been considered. The panel is governed by title 15 of the California Code of Regulations, section 3321, which provides that when a decision is based on confidential information the inmate must receive documentation about the use and nature of that information. The remark that the panel would not be using confidential material only shows that the panel decided not to base its decision on that information. It does not show that the panel was ignorant of or refused to consider the material in the confidential file.

It is a general rule of administrative law and judicial review that a failure to mention information in a decision does not evidence that the information was not considered. E.g., People v. Samayoa (1997) 15 Cal.4th 795, 860: We also reject defendants contention that the trial court erred in denying the motion for modification by failing to consider all mitigating evidence presented by the defense. The trial courts mere failure to mention expressly all evidence presented in mitigation (such as the evidence of the impact of a death verdict upon defendants family) does not mean the trial court ignored or overlooked such evidence, but simply indicates that the court did not consider such evidence to have appreciable mitigating weight. (See also, e.g., People v. Weaver (2001) 26 Cal.4th 876, 991.)^[6]

However, there is an exception. When the information that is not mentioned or discussed is so significant that no reasonable decision maker would have failed to address it, then the failure to bring it up does afford the conclusion it was not considered.

The question then is whether the information the panel failed to mention or discuss is so significant that no reasonable decision maker would have failed to address it. The answer is no. On the issue of Clutchettes gang membership, viewed in the light most favorable to the Board, the record shows no more than that Clutchette was validated as a Black Guerilla Family member in April 1982, and his last documented gang activity was in June of that year‑‑more than 20 years before the parole hearing at issue here. That Clutchette was validated as an inactive member of the gang in July 2002 means only that it took the Department of Corrections 20 years to determine Clutchette was no longer engaged in gang activity.

In the trial court, the People argued that Clutchettes former high level BGF status, along with other information, supported the conclusion that the murder Clutchette committed was an assassination for the drug family to which he belonged, and this conclusion creates a substantial likelihood of a different decision upon rehearing. The problems with this argument are (1) the People do not make it on appeal; (2) the People no longer assert Clutchette was a high-level gang member, nor is there any evidence he was; (3) there is no necessary logical connection between being a high-level member in a prison gang and being an assassin for a drug family, absent evidence of a connection between the gang and the family (which the People do not point to); and (4) the panel discussed the circumstances of the crime in which it was readily apparent that the crime was an execution-style killing related to drug dealings involving the drug family to which Clutchette admitted he belonged at the time.

Under these circumstances, assuming it is relevant at all, Clutchettes prison gang membership 20 years in the past is not so significant that no reasonable decision maker would have failed to mention and discuss it.

The same pertains to Clutchettes status as a Soledad Brother. Information about that status appears in the mental health evaluation prepared for the parole hearing. Essentially, Clutchette was one of three inmates at Soledad Prison who were charged with murdering a corrections officer at the prison in 1970. In August 1970, there was an escape attempt and hostage taking at the Marin County courthouse involving one of the other Soledad Brothers, which resulted in the death of several individuals, including a Marin County Superior Court Judge. The evaluation goes on to note that [d]uring a subsequent jury trial, Mr. Clutchette was acquitted of the murder.

Thus, when reduced to its essence, the fact that Clutchette was one of the Soledad Brothers denotes only an alleged involvement in the murder of a corrections officer, of which he was acquitted, and some unspecified associational tie with persons involved in the offense and a sensational escape/hostage taking at a courthouse, both of which occurred more than 30 years before the parole hearing at issue here. It is no wonder the People have never, even in the trial court, attempted to explain how this historically interesting but otherwise irrelevant material was significant for denial of parole. It cannot be deemed so significant that no reasonable decision maker would have failed to mention and discuss it.

Moreover, even if the claim of legal defect by omission in the panel decision were valid, it would have to be a matter that has a substantial likelihood of resulting in a substantially different decision upon a rehearing. ( 3041, subd. (b).) Just as the information is not significant enough to require mention and discussion, it does not meet the substantial likelihood test of the statute. The trial court did not err in concluding that the Boards decision is unsupported by reasons sufficient to satisfy section 3041.

II

Clutchette contends that the decision of the Board is also infirm on procedural grounds. He makes the following arguments, albeit cursorily. The Board erred in disapproving the panel decision without a majority vote of the board following a public hearing under section 3041, subdivision (b) (see fn. 2, ante), and in failing to hear the matter in accord with due process of law and section 3041.5. Since the matter will be remanded to the Board we briefly address these claims.

Preliminarily, we address the Peoples contention that the trial court erred in requiring the Board on remand to proceed in accordance with the principles expressed in its decision. They argue that this improperly restricts the Boards discretion. We also address Clutchettes related argument that remand would be irrational because there is no evidence in the record that could warrant the Board disapproving the panel decision on remand. We assume arguendo that argument is cognizable, notwithstanding the lack of a cross-appeal. Both arguments are unpersuasive.

As a general rule, when an administrative agencys decision is overturned on writ review the judgment may order reconsideration in light of the courts opinion and judgment and may order the agency to take any legally required action, but may not limit or control any discretion vested in the agency. (Cal. Admin. Hearing Practice (Cont.Ed.Bar 2006)  8.118, p. 490; see, e.g., Code Civ. Proc.,  1094.5, subd. (f).) This means the court can order the agency to follow the law as interpreted by the court. Thus, in requiring the Board on remand to proceed in accordance with the principles expressed in its decision the trial court did not err.

As the trial court noted, remand is prescribed in the analogous circumstances of incorrect denial of parole in In re Rosenkrantz (2002) 29 Cal.4th 616, 658: 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 [inmates] 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. This is the ordinary outcome when the affected individual prevails on a claim against an agency. (See Cal. Admin. Hearing Practice (Cont.Ed.Bar 2006)  8.119, p. 490; cf. III Pierce, Admin. Law Treatise (4th ed. 2002)  18.1, pp. 1324-1325.) Only when the record of the administrative proceedings requires a particular determination as a matter of law, can the court dispense with further proceedings. (See, e.g., Cal. Admin. Mandamus (Cont.Ed.Bar 2006)  15.11, pp. 544-545.)

It is not within judicial purview to determine whether there may be any other lawful basis in the record of the panel proceedings that could warrant the Board disapproving the panel decision on remand. Accordingly, we conclude the trial court did not err in remanding the matter to the Board. If the Board does not act to disapprove the panel decision within 120 days from the issuance of the remittitur, that panel decision will become final.

That brings us to Clutchettes other procedural claims. We discern no violation of the command of section 3041, subdivision (b) for a majority vote of the Board after a public hearing. As the Attorney General notes, in 2003, former section 5076.1 provided five members are a quorum of the Board needed to act in either public or executive sessions and that no such action shall be valid unless it is concurred in by a majority vote of those present. (3 Stats. 1986, ch. 1446,  6, p. 5172.) Here, five members were present and a majority of those voted in favor of the adverse action, hence the action was taken by a majority of the Board.

The term public hearing has a number of meanings. (Silver B. Co. v. State Bd. of Education (1940) 36 Cal.App.2d 714, 718 [The term public hearing has been defined in various ways and its meaning no doubt varies depending upon the subject of the hearing, the nature of the board or person holding the hearing and nature of the board or person to be heard].) Clutchette submits that public hearing is a hearing in accord with section 3041.5.^[7] However, as the Attorney General notes, that statute is not manifestly applicable. The Boards review of a parole panel decision is not a suitability hearing and parole dates are not fixed or moved. The issues are, properly viewed, much narrower and do not require the introduction of evidence to be weighed by a trier of fact. Absent some compelling argument to the contrary, we defer to the construction of an ambiguous statute by the agency charged with administering it. (See, e.g., City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 956.) We see no compelling reason to find the evidentiary hearing provisions of section 3041.5 were meant to apply to the Boards panel review decision under section 3041.

That leaves Clutchettes claim that the hearing afforded him did not comport with due process of law. Clutchette simply asserts that a lack of notice of the impending grounds of possible disapproval of the panel decision and a lack of an opportunity to appear personally, or through counsel and witnesses were constitutional transgressions. Clutchette provides no discussion of the extensive case law of due process hearing requirements or its application to these circumstances. He does not attempt to explain why the notice and opportunity to appear actually offered by the Board in its letter to him are inadequate to protect his interests. Where a point is merely asserted by counsel without any argument of or authority for it, it is deemed to be without foundation and requires no discussion. (See, e.g., People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; People v. Callegri (1984) 154 Cal.App.3d 856, 865.) On this ground we reject the due process claim.

DISPOSITION

The trial courts order granting Clutchettes petition for writ of habeas corpus is affirmed. The matter is remanded to the Board of Parole Hearings for further proceedings consistent with this opinion.

BUTZ , J.

I concur:

ROBIE , J.

Nicholson, Acting P.J., Dissenting

Over the past 20 years, the Board of Prison Terms (Board) held 10 hearings concerning the petitioners suitability for parole and, each time, found him unsuitable, based mainly on the petitioners commission of the murder for which he was incarcerated. In 2003, a panel of the Boards commissioners, meeting to consider the petitioners suitability for an eleventh time, held a flawed hearing concerning the petitioners suitability for parole. After the panel found the petitioner suitable for parole, the Board, sitting en banc, including the commissioner who presided over the panel, voted, without dissent, to vacate the panels decision because of the panels errors. As did the trial court, the majority substitutes its own judgment for that of the Board in finding that the Boards decision was improper. I respectfully dissent.

The Board is vested with exclusive authority to decide whether a life prisoner is suitable for parole. [Citations.] (In re Caswell (2001) 92 Cal.App.4th 1017, 1026.) A panel of two commissioners may conduct a hearing to determine a prisoners suitability for parole. (Pen. Code, 3041, subd. (a).) Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison. (Cal. Code Regs., tit. 15,  2402, subd. (a).) The panel's decision shall become final pursuant to this subdivision unless the board finds that the panel made an error of law, or that the panel's decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing. (Pen. Code,  3041, subd. (b).)

A panel, consisting of Presiding Commissioner Al Angele and Deputy Commissioner Sharonne Foster, convened a hearing to determine the petitioners suitability for parole. It reviewed the facts of the petitioners crime. When asked whether he committed the crime, the petitioner said he did not and added: I stick by my same statement that I had at my previous 10 hearings. He admitted only to changing the seat covers in the car to conceal the crime. Despite the availability of a confidential file, in which the petitioners membership in the Black Guerilla Family, a violent prison gang,^[8]was noted, the panel declined to consider the confidential file.

The panel recessed then reconvened to announce its decision, finding the petitioner suitable for parole. It noted that the petitioner still denied involvement in the murder. Commissioner Angele stated: You know, you deny the crime, and I cant sit here and say that you did or didnt, but we go by what the court says, so we have to assume you did. Commissioner Angele concluded: You know, I got to be honest with you. The crime is a horrible crime (inaudible) assassination. Whether you did it or you didnt do it, only two people know that for real.

Five commissioners, including Commissioner Angele, met pursuant to the Boards authority to review the panels decision. Four, including Commissioner Angele, voted to disapprove the panel decision and set the matter for rehearing. The fifth commissioner abstained. The Board based its decision on three specific findings:

1. The August 20, 2003 hearing panel did not consider the confidential material contained in the prisoners central files.

2. The August 20, 2003 hearing panel did not fully consider the prisoners mental health evaluations.

3. The August 20, 2003 hearing panel did not fully consider the prisoners Life Prisoner Evaluations.^[9]

This decision comports with Penal Code section 3041, subdivision (b), which gives the Board authority to disapprove a panels decision if the panel made an error of law, or . . . the panels decision was based on an error of fact if further consideration has a substantial likelihood of resulting in a substantially different decision upon a rehearing.

[U]nder California law the factual basis for a Board decision granting or denying parole is subject to a limited judicial review under the some evidence standard of review. (In re Rosenkrantz (2002) 29 Cal.4th 616, 652.) There is some evidence in the record that the panel failed to consider relevant information in the confidential file.^[10] In fact, it declined to consider the confidential file at all. The confidential file contained a discussion of the petitioners membership in the Black Guerilla Family prison gang. Also, there is some evidence the panel failed to consider that the petitioner was a Soledad Brother and therefore associated with George Jackson, the founder of the Black Guerilla Family. Finally, even though the Attorney General does not make the argument, the record reflects some evidence that the panel did not adequately consider the petitioners crime. Although the panel incanted the assumption that the petitioner committed the crime, it repeatedly wondered out loud if the petitioner was guilty. The Board, with its exclusive authority over parole, had the power to determine that the panel committed an error of law in not giving the petitioners conviction the weight to which it was entitled and committed an error of fact in not holding the petitioner accountable for his crime and in failing to consider fully the facts contained in the various documents.

During the hearing, the panel described the petitioners crimes as follows, speaking to the petitioner: The documentation has you, along with Mr. Bowles [the victim] and a third individual in a vehicle, a Mr. Polson [sic; the third person was female], driving into a used car lot for some reason. Apparently you had met, according to the information, you were an acquaintance of drug dealings. You were in the backseat of the car. After you went in the car lot, got in the backseat [sic]. The victim got in the front seat drivers side. You were sitting behind him, and according to the record, after he got in the car you shot him in the back of the head and killed him and had Mr. Polson [sic] drive off.

This summary of the facts bears little resemblance to the facts presented in the petitioners mental health evaluation, the same evaluation the panel failed to consider fully, according to the Board.

The mental health evaluation recounted: [The petitioner], the victim, and a female reportedly drove to Sacramento to make a drug deal; the victim had $16,000 in cash with him. After the group stopped at a car dealership to look at used cars and then reentered their vehicle, the female drove the vehicle, the victim was a front seat passenger, and [the petitioner] sat in the rear seat. A few minutes after they drove off, the female witness said that [the petitioner] produced a gun and shot the victim once in the head. He reportedly told her that the gun went off accidentally. When [the petitioner] found that the victim was still alive, he shot him a second time in the head. [The petitioner] disposed of the body; and he and the female returned to Oakland, California. . . . When police interviewed the female who was driving the vehicle, she stated that [the petitioner] shot the victim once and then again after checking the victims pulse. She indicated that she had no idea that there would be a killing and was shocked and frightened. She added that she felt the victim was shot because he was a white man selling drugs in a black crowd. She also thought that the victim may have been involved with the girlfriend of the man who allegedly arranged the hit. She stated that [the petitioner] was his lieutenant, his henchman.

The mental health evaluation continued: Information garnered during the investigation suggested that [the petitioner] was a member of the Black Guerilla Family and the Soledad Brothers. The vehicle in the crime was ultimately recovered in Los Angeles. When [the petitioners] estranged wife (from whom he had been separated for five years) was interviewed, she indicated that [the petitioner] contacted her around the time of the murder, when he had in his possession the murder vehicle. He asked about reupholstering the blood-stained interior of the car (which he apparently later had done in Los Angeles). Ms. Clutchette also indicated that [the petitioner] was an extremely violent person in possession of guns at his residence; she added that he was addicted to cocaine, had drug dealings with the man who reportedly ordered the hit on the victim, and served as this mans enforcer and body guard in the past. Initially, [the petitioners] estranged wife, also a law student and legal runner, attempted to assist [the petitioner] in his defense; however, she reportedly became convinced that he was guilty and withdrew from the case.

The commissioners are required to consider all relevant, reliable information in making the parole determination. (Cal. Code Regs., tit. 15,  2402, subd. (b).) The panel declined to consider the confidential file and failed to consider fully other information. Information the panel must consider includes the base and other commitment offenses, including behavior before, during and after the crime [and] past and present attitude toward the crime . . . . (Ibid.) The panel reviewed some of the facts of the petitioners crime but did not discuss the cold-blooded nature of the murder and did not challenge the petitioners denial. Instead, the panel conjectured: Whether you did it or you didnt do it, only two people know that for real. Thus, the panel failed to consider the petitioners baseless denial and his total lack of remorse.

The majority says that there is no requirement that the panel mention every material fact. While it is true that there is no requirement that the panel discuss every material fact, that truism does not negate the fact that failure to discuss material facts is some evidence that they were not considered. I would therefore conclude that, under the appropriate standard, the evidence before the Board supported its decision to disapprove the panels finding of parole suitability.

I would also conclude that a substantially different result on rehearing is substantially likely. (Pen. Code,  3041, subd. (b).) Several circumstances tending to indicate unsuitability for release apply to the petitioner:

The prisoner committed the offense in an especially heinous, atrocious or cruel manner. (Cal. Code Regs., tit. 15,  2402, subd. (c)(1).)

The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. (Cal. Code Regs., tit. 15,  2402, subd. (c)(1)(B).)

The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. (Cal. Code Regs., tit. 15,  2402, subd. (c)(1)(D).)

The motive for the crime is inexplicable or very trivial in relation to the offense. (Cal. Code Regs., tit. 15,  2402, subd. (c)(1)(E).)

The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age. (Cal. Code Regs., tit. 15,  2402, subd. (c)(2) [petitioners lengthy and violent criminal record was detailed in the panels hearing].)

The prisoner has a history of unstable or tumultuous relationships with others. (Cal. Code Regs., tit. 15,  2402, subd. (c)(3) [applicable because of petitioners prison gang membership].)

The fact that there may also be some circumstances tending to support a finding of suitability for release does not justify the majoritys apparent belief that it knows better than the Board whether the petitioner is suitable for release on parole. It appears that nothing has changed for the petitioner over 20 years and 10 hearings in which he was found unsuitable for parole. He still denies he committed the grisly crime. He continues to deny that he is or ever was a member of the Black Guerilla Family prison gang. Until now, these denials, in the face of adjudications against the petitioner, have not fooled the Board or the courts that have dealt justice. There is nothing in the record to base the majoritys conclusion that a panel, properly considering the evidence, would come to a decision different from every decision, properly made, over the past 20 years, to deny the petitioner parole. The commissioners could very well deem it necessary to deny parole in order to protect society from this unrepentant murderer.

I would reverse the trial courts judgment.

NICHOLSON , Acting P.J.

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^[1] The Board of Prison Terms is now known as the Board of Parole Hearings. (Pen. Code,  5075 [further undesignated statutory references are to the Penal Code].)

^[2] In pertinent part, section 3041, subdivision (b) is as follows: [A]ny decision of the parole panel finding an inmate suitable for parole shall become final within 120 days of the date of the hearing. During that period, the board may review the panels decision. The panels decision shall become final pursuant to this subdivision unless the board finds that the panel made an error of law, or that the panels decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing.

^[3] In 2003, section 3041, subdivision (b), in pertinent part, provided: No decision of the parole panel shall be disapproved and referred for rehearing except by a majority vote of the board following a public hearing. (Stats. 2001, ch. 131,  2.)

^[4] The findings in the executive officers memorandum of decision concerning inadequate consideration of certain materials in the record do not identify specific errors of fact or conclusions of law. These were supplied by after-the-fact assertions of the Attorney General in the trial court. In future proceedings disapproving a panel decision under section 3041, the Board should give a statement of reasons that tracks the criteria in that statute and identifies the error of fact or law, or the new evidence deemed material by the Board. Failure to do so could render the decision infirm and it denies the inmate notice of the basis of the Board decision, impairs meaningful judicial review, and increases the likelihood that the Board may stray beyond the analytic boundaries of its authority. (See, e.g., In re Sturm (1974) 11 Cal.3d 258, 268-269; Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517.)

^[5]The cited passage in Caswell, supra, 92 Cal.App.4th at page 1029 is as follows: This language in [In re Johnson (1995) 35 Cal.App.4th 160] should not be misconstrued. Johnson could be read‑‑incorrectly‑‑to uphold the rescission of a parole release date merely because reasonable minds could differ as to the panels determination of the [inmates] suitability for parole. That is, as long as there had been some evidence before the granting panel that could have reasonably justified a finding of unsuitability, a subsequent panel would have carte blanche to rescind the parole, decades later, for no reason other than its conclusory disagreement with the granting panels ultimate decision, or mere political aversion to the concept of parole in general. Notwithstanding the nearly absolute discretion of the Board, we find this interpretation of the standard untenable, and not in line with what our Supreme Court had in mind when it decided [In re Powell (1988) 45 Cal.3d 894]. Indeed, some evidence of unsuitability for parole would exist in virtually every parole hearing, exposing every grant of parole to a Boards subsequent change of heart or political whim.

^[6]Cf. Caswell, supra, 92 Cal.App.4th at page 1029 (italics added): In reviewing a rescission of parole based on the granting panels failure to adequately consider the gravity of the offenses, the proper focus is on the findings and conclusions that were central to the original panels ultimate decision to grant parole. When these findings or conclusions cannot be reconciled with the evidence before the granting panel, or when the granting panel misstated facts or explicitly declined to consider information germane to the gravity of the crimes, it can fairly be said that reasonable minds could differ on whether the panel gave adequate consideration to the severity of the crimes. In those instances, some evidence of the panels failure to adequately consider the gravity of the [inmates] offense(s) would exist, thereby justifying rescission of the parole release date. (Cf. Cal. Code Regs., tit. 15,  2451, subd. (c) [rescission hearing (and rescission) warranted for [f]undamental errors by granting panel].)

^[7] Section 3041.5 applies to: [A]ll hearings for the purpose of reviewing [an] [inmates] parole suitability, or the setting, postponing, or rescinding of parole dates. ( 3041.5, subd. (a).) It provides various procedural rights, e.g., right of inmate to review and respond to the file, to appear, to ask questions and speak, and to receive a copy of the stenographic record.

^[8] For a discussion of some of the violent activities of the Black Guerilla Family, see People v. Johnson (1993) 19 Cal.App.4th 778.

^[9] The majority posits a straw man: [I]f the gist of the finding by the Board is that the panels consideration was inadequate because reasonable commissioners might disagree regarding parole suitability and the Board disagrees with the finding of the panel, the opinion surmises, this will not suffice. (Typed maj. opn. at p. 10.) The Board did not base its decision on a disagreement with the panel regarding parole suitability.

^[10] The majority, in footnote 4, appears to legislate new requirements for Board review of panel decisions. I disagree that this court has authority to impose these requirements.