In re Kang

 

 

 

 

 

 

 

 

 

Filed 7/16/13  In re Kang CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
>

In re HUI KYUNG KANG,   on Habeas Corpus.

H038257      (Santa Clara County       Super. Ct. No. 175010)

 

>I. 
INTRODUCTION

            After killing a visiting Korean businessman in 1993 by stabbing him
approximately 40 times in his hotel room, petitioner Hui Kyung Kang pleaded
guilty to href="http://www.fearnotlaw.com/">second degree murder and was sentenced to
16 years to life in the state prison. 
Following a parole hearing held on January 6, 2011, the Board of Parole Hearings (the Board)
found that Kang was unsuitable for parole because she would pose an
unreasonable risk of danger if released from prison.  Kang challenged the Board’s decision by
filing a petition for a writ of habeas corpus in the superior court.  The superior court granted the habeas corpus
petition, vacated the Board’s decision, and remanded the matter to the Board
with directions to provide Kang with “a new hearing comporting with due
process.”

            On appeal,
Acting Warden Deborah Johnson (the Warden) contends that the superior court
erred because some evidence supports the Board’s finding that Kang would pose
an unreasonable risk of danger if released from prison.  For the reasons stated below, we conclude
that under the deferential standard of review established by the California
Supreme Court in In re Lawrence (2008)
44 Cal.4th 1181 (Lawrence) and >In re Shaputis (2008) 44 Cal.4th
1241 (Shaputis I) and clarified in >In re Shaputis (2011) 53 Cal.4th 192 (>Shaputis II), some evidence supports the
Board’s decision.  Therefore, we will
reverse the superior court’s order and remand the matter to the superior court
with directions to issue a new order denying the petition for writ of habeas
corpus.

>II. 
FACTUAL AND PROCEDURAL BACKGROUND

            A.  Social
and Criminal History

            After emigrating from South
Korea at the age of two, Kang lived with her mother, father, two brothers, and
a sister in San Jose.  Kang, the youngest
child, was left alone at home much of the time while her parents worked.  Both parents used corporal punishment,
striking her with wooden utensils, and her older brothers physically abused her
by slapping her.

            Kang
attended elementary school and high school. 
After she was expelled from public high school for non-attendance, she
attended a private high school where she became truant before graduation but eventually
received a diploma.  While she was in
high school, Kang was engaged in extracurricular
activities, including cheerleading, school orchestra, the school newspaper,
and team sports.

            Kang
remembers lying to her friends and family for no reason.  She also “stole a lot as she got older. . .
.  [S]he did it to get ‘bad attention,
which is better than no attention at all.’ ” 
At the age of 11 or 12, Kang began experimenting with drugs.  By the age of 18 or 19, Kang was involved in
the lifestyle of partying and using cocaine.

            After high
school, Kang had a series of short-term jobs, including working for her father
in his video store and working for chiropractors.  She was terminated from her position as a
chiropractor’s receptionist after she committed fraud using patients’ credit
cards.  When she was 19 years old Kang
“ran away to Hawaii” where she worked in restaurants and hotels.

            In 1991,
Kang was arrested for receiving stolen property.  Her diversion was terminated in 1992 as
successful.  Kang was also arrested in
1991 for forgery, possession of a bad check, and attempted grand theft, but
apparently she was not prosecuted due to victim unavailability.  In 1993, Kang was arrested for vehicle theft
and theft by use of access card data, but the record does not reflect a
disposition for those arrests.

            B.  The
Commitment Offense

            In 1993,
Kang, who was then 21 years old, was introduced to a Korean businessman in a
karaoke bar in San Francisco who wanted to meet her at a hotel.  He gave her his telephone number at his
office in Korea, but Kang did not follow up. 
A few months later, when Kang needed money, she decided to call him
thinking that “she would give him what he wanted and then ask for money.”  The victim, Han Suk Yoon, was a Korean
businessman on a trip to California who was staying in a hotel in
Sunnyvale.  Kang telephoned Yoon and
offered to travel to Sunnyvale if he would pay her cab fare from San Francisco.

            After Kang
arrived at his hotel, she realized that Yoon, age 49, was not the businessman
she had met at the karaoke bar in San Francisco.  She nevertheless stayed at the hotel that
night.  The next morning Yoon left $100 in
cash and told her to order food and wait for his return at 5:00 p.m.  While she was waiting, Kang “thought about
her situation, her need for money, having sex with an older man, the
probability of him helping her out financially, and the difficulty of the
police finding traceable fingerprints in a hotel room.”  She also hid a knife underneath the mattress.

            Before
going to bed with Yoon that night, “Kang placed her clothes far away
from the bed because she knew she was going to attack him, try to hurt
him, [and] possibly kill him, so she didn’t want blood on her clothes when she
left.”  Kang then had consensual sex with
Yoon.  After he fell asleep, Kang thought
“she could get away with killing him.” 
She then began to stab Yoon while he was sleeping.  Yoon awoke and fought back.  Kang screamed “so that if someone heard the
attack, she could say that she
herself, was being attacked.”  When a
security guard came to the door to investigate a noise complaint, “Kang started
making noises like she was having a good time having sex with Mr. Yoon. . . .”  She apologized for the noise and promised the
security guard that she would “keep it down.” 
After waiting for Yoon to stop breathing, Kang showered, took Yoon’s
credit cards, wallet, and car keys, and returned to San Francisco.

            The next
day, a female telephoned the hotel and asked that housekeeping staff not enter
Yoon’s room because important papers had been left there.  Five telephone calls with the same request
were made the next day.  Due to the
telephone calls, Yoon’s body was not discovered until three days after his
death, when police officers made a security check of his hotel room at a
co-worker’s request.  Yoon had been
stabbed 10 times in the chest, which was the cause of his death.  Approximately 30 other knife wounds were
found on his body.  A bloody fingerprint
on the hotel room telephone was later identified as Kang’s fingerprint.

            Kang began
using Yoon’s credit cards the day after the murder.  She stayed at an expensive hotel in San
Francisco and then traveled to New York City, where she purchased clothing,
jewelry, and other items until she reached the credit limit of $20,000.  About six months later, Kang was arrested in
Bedford, New York, where the local police department was investigating a grand
larceny in which she was a suspect.  Kang
had been working as a nanny for several families on the east coast, from whom
she stole before moving on to her next job.

            Kang gave a
different version of the commitment
offense when she spoke with a probation officer in 1996.  At that time, Kang claimed that Yoon had
beaten her and raped and sodomized her in the hotel room, so while he was
taking a shower, she armed herself with a knife from the kitchen and hid it
under the mattress.  When Yoon returned
to bed, he tried to sodomize her again. 
In self-defense, Kang grabbed the knife and attacked him.  In 2009, Kang admitted to prison staff that
“her explanation of self-defense was a lie, that there was not one true word in
her explanation for self-defense.”

            After Kang
was arrested in 1994, she gave birth to a son who now lives with her
brother.  In 1996, she pleaded guilty to
second degree murder and admitted the special allegation of personal use of a
deadly and dangerous weapon.  She also
pleaded guilty to forging an access card holder’s signature.  Kang was sentenced to a total prison term of
16 years to life.

            C.  Conduct
While Incarcerated

            Kang’s
incarceration in state prison began in 1996. 
Her history of prison discipline shows that she has not received a
disciplinary report since 2002.  During
the six-year period between 1997 and 2003, Kang received nine California
Department of Corrections (CDC) 115 reports of serious rule violations,
including four reports of mutual combat and five other reports for smoking in
the kitchen, inmate-manufactured alcohol, refusing to work, conspiracy to
introduce narcotics, and forging a state document.href="#_ftn1" name="_ftnref1" title="">[1]  She also received 11 CDC 128 reports of minor
administrative rule violations, including refusal to work, failing to wear
gloves while handling food, refusing to program, stealing food, not reporting
to class, and clothing violations.

            Kang has
participated in numerous self-help and therapeutic programs while
incarcerated.  Recently, her programming
has included attending church and Bible study. 
She has also served as a volunteer for the Friends Outside Program and
as a Parole Employability Academics Resource Lifeskills mentor, a Creative
Conflict Resolution facilitator, and an alternatives to violence program
facilitator.  She also started two
organizations within the prison, The Coalition for Cultural Awareness and the
Asian Prisoners Group.  She volunteers in
the administrative office for the Associate Warden and the Investigative
Services Unit.

            Educational
and vocational programming has included Kang’s completion of programs for
eyewear manufacturing and forklift operator. 
While in prison, Kang has been employed in the kitchen and laundry,
served as a porter in the chapel, performed clerical work, and served as an English
language tutor.

            D.  Psychological
Evaluation

            During the parole hearing, the
Board considered the 2009 comprehensive risk assessment prepared by Martin H.
Williams, Ph.D.  Dr. Williams interviewed
Kang in January 2009 and reviewed her institutional records.

            The records
show that Kang was prescribed psychotropic drugs and given a diagnosis of
bipolar disorder when she was first arrested. 
Dr. Williams noted that although Kang was initially treated in the
prison mental health system, “[s]he acknowledges now that she was creating
symptoms and was lying ‘about a lot of things.’ 
Among other symptoms, Ms. Kang created a speech difficulty, such that
she would speak with great hesitation at times. 
However, at other times, she would forget to malinger this symptom and
would speak normally.”  In 2009, Kang was
taking no medications, appeared to be free from any mood disorder, and her
health records revealed no psychiatric problems.  Dr. Williams also reported that Kang “has a
history of impulsivity and a lack of behavioral control, both prior to her
incarceration and during the first years of incarceration.  However, she has demonstrated that she can
maintain adequate control and direct herself only towards pro-social activities
during the past five to six years.”

            Although
Kang used heroin for the first six years of her incarceration, she became
drug-free in 2003 after she received a 2002 CDC 115 report for conspiracy to
introduce narcotics.  Kang told Dr.
Williams “it was [a] really serious 115, that she lost a lot of privileges and
finally decided she could not keep up with the lies she told her family.”  In March 2003, Kang “reportedly became a
Christian” and learned about “taking responsibility for her actions.”

            Regarding
the commitment offense, Kang told Dr. Williams that she was not using drugs or
alcohol at the time of the offense and had no one to blame but herself.  She admitted that she went to Yoon’s hotel
room in an effort to get money from him and that she had lied when she
originally claimed that he had raped her. 
While discussing the commitment offense with Dr. Williams, Kang cried
and stated, “ ‘You really can’t explain murder easily.  I really didn’t have any regard for human
life.  I wish I could say I was high or I
was drunk.  I wish there was some reason
why.  I didn’t think he was going to help
me the way I thought I needed the help. 
These past few years it’s hard to talk about because it just sounds so
cold.  I hear these ladies when they
share their stories, they’re either battered women or in a fight in a heated
moment, and I did it while he was sleeping.’ ”

            Kang also
stated to Dr. Williams:  “ ‘I can’t
imagine the person I am today being capable of something like that.  I know that it happened, and I know that is
somebody who I was.’ ”  Dr. Williams
reported that “Ms. Kang, to this day, cannot understand how she committed that
crime.  To her credit, she offers no
excuses or facile explanations that might ease her conscience.”  He found that she “is remorseful and has a
difficult time understanding why she committed that crime and how she had been
emotionally able to do so.”

            Dr.
Williams assessed Kang’s future risk of violence in the community after
considering the data he had obtained from several risk assessment tools, which
placed her in the low risk category.  His
overall risk assessment was that Kang “presents a relatively Low Risk for
violence in the free community.  [¶  Her] risk of violent recidivism would likely >increase if she:  returned to the use of intoxicating
substances; associated with antisocial peers; possessed a weapon; found herself
without a permanent residence, her income was insufficient to meet her living
expenses, or she had no social support in the community.  She could decrease
her risk of violent reoffense by: 
adhering to a substance abuse relapse prevention plan; verifying all
parole plans; continuing to examine and come to terms with the causative
factors of the life crime, as well as developing proactive strategies to avoid
those liabilities, such as never associating with substance abusers, even if she
herself continued to refrain from use.”

            E.  Parole
Plans

            As a Korean
national, Kang is subject to an active Immigration and Customs Enforcement
hold.  If she is granted parole, she
intends to live with relatives in the Bay Area and has several job opportunities,
including working in her brother’s construction business, working as a home
health aide for her parents, or doing clerical work for a roofing company or a
gutter cleaning company.  Alternatively,
she plans to live with her sister’s “congregational family” in South Korea and
work as an English translator for international guests.

            F.  The
Board Hearing

            During the hearing held on
January 6, 2011,  the Board reviewed the
facts of the commitment offense.  The
presiding commissioner then asked Kang, “I want to know why, why it
happened.  Do you know why?”  Kang replied, “I know at that point in my
life I chose to believe, I made a distinction that I had no other out, and that
was my last resort pretty much.  I backed
myself into a corner.”  She further
answered, “I wanted to hurt him, immobilize him.  I knew there was a possibility that I was
going to end up killing him. . . .  I
needed money, I needed out.”  Kang
acknowledged that she “didn’t have any kind of respect for human life at that
time. . . .  I have
absolutely no excuse.”

            At the time
of the commitment offense, Kang recalled, she was supporting herself by staying
with friends, stealing from her parents and family, and selling drugs.  She explained that “a lot of the things that
I did was in support of my [cocaine and alcohol] habit.”  Kang agreed with the presiding commissioner’s
statement that “the reason that you got involved in the commitment offense
would be your reckless behavior and your need for money.”

            The Board
also reviewed Kang’s extensive family support for her release from parole, her
parole plans, and her relapse plans, as well as her institutional record and
Dr. William’s 2009 comprehensive risk assessment.  When asked why she had not received any
disciplinary reports since 2002, Kang responded that her last CDC 115
disciplinary report had consequences that she could not ignore.  She explained that she “was just tired.  My lies, I couldn’t keep up with them.”  She also developed a personal relationship
with her “higher power” immediately after her last CDC 115 disciplinary report
in 2002 and came to understand the gravity of the commitment offense and that
she could be forgiven.  By the end of
2002, Kang had decided to continue her recovery and sobriety.

            The Board
heard the closing arguments of the
prosecutor and defense counsel as well as Kang’s statement.  Among other things, Kang expressed her
remorse for the commitment offense and her understanding of the harm she had
caused to Yoon’s family.  She also
asserted that since taking Yoon’s life she has changed due to making an effort
to “fix[] what was wrong with me.”  Kang
further stated, “My Biblical foundation is who I am.”

            G.  The
Board’s Decision

            After the
conclusion of the hearing, the Board announced its decision denying parole for
a three-year period.href="#_ftn2"
name="_ftnref2" title="">[2]  The Board concluded that Kang “is not
suitable for parole because [she] currently poses an unreasonable risk of
danger if released from prison.”

            The first
basis for the Board’s conclusion was the commitment offense, which the Board
described as “an atrocious, heinous and cruel crime.”  The Board further explained, “There were
approximately 30 wounds that were found on his body, and many of them
defensive-type wounds located on the hand and forearms. . . .  [B]ecause of the number of wounds, the
defensive wounds, this it torture, because he’s still alive and he’s fighting
for his life.  He doesn’t die right
away.”

            Second, the
Board found that Kang’s institutional misconduct showed that she had continued
her “reckless lifestyle” in prison, including her “propensity for violence” and
her use of drugs and alcohol.

            Third, the
Board determined that Kang had credibility issues, noting that she had faked
mental illness when she was first incarcerated. 
The Board was also concerned that the record contained some information
that Kang had failed to mention during the hearing, which the Board quoted from
the brief submitted by Kang’s attorney: 
“Draw[ing] your attention to the brief submitted by counsel, the brief
in support of parole for Ms. Kang, page 16, paragraph two.  ‘In 2002, I got caught for conspiring to
bring drugs into the institution, and one would think that would be a wake-up
call, and it wasn’t.  I tried again, I
didn’t get caught the second time, but a friend who was having problems started
going to church.  I started going to
church with her.  I actually started
using church for me to get to where I needed to to try to bring drugs inside.’
”  The Board stated, “[T]he credibility
issues just seem to surface all around. . . . 
[I]t was just, this Panel just couldn’t quite buy everything, tie it all
together, with what we see in the record.”

            Finally,
the Board found that Kang needed to further develop her insight into her reasons
for committing the murder since she still could not explain why she did
it.  The Board advised Kang that
“[y]ou’ve got to be able to articulate reasons. 
This is why I did it, and these are the things I’ve done to ensure that
this kind of action will never happen again.”

            However,
the Board commended Kang for her positive prison programming and her excellent
parole plans, and recommended that she remain disciplinary-free, continue to be
involved in self-help programs, and cooperate with a clinical evaluation.

            H.  Habeas
Proceedings

            Kang challenged the Board’s
three-year denial of parole by filing a petition for writ of habeas corpus in
the superior court on July 19, 2011.  She
argued that she met the statutory criteria for release on parole and that there
was no valid evidence to support the Board’s finding that she would pose an
unreasonable threat to others if released. 
She also contended that the Board had failed to articulate a rational
nexus between its reasons for denying parole and her “purported current
dangerousness.”

            The
superior court issued an order to show cause on October 3, 2011, stating that
the Board had erred in making a “ ‘torture’ finding” with respect to the
commitment offense, and had also erred in holding it against Kang that she had
“invoked her right to not discuss the crime itself (Penal Code, § 5011).”href="#_ftn3" name="_ftnref3" title="">[3]  The court also stated that “another error of
such magnitude that alone it requires reversal” was the Board “demanding from
[Kang] a statement of ‘why I did it.’ ”

            The Warden
filed a return arguing that the Board’s denial of parole was based on some
evidence that Kang remains a current danger, consisting of Kang’s minimization
of her conduct when discussing the commitment offense, her institutional record
of serious misconduct violations, the concerns about her credibility, and her
lack of insight in the reasons she committed the murder.  The Warden further argued that the Board’s
discussion of the commitment offense was not improper and its characterization
of the offense as torture was reasonable under state regulations defining
torture.  Finally, the Warden did not
agree that the Board had violated section 5011 by asking Kang why she did it,
since the Board did not ask her to admit guilt and it is well established that
an inmate’s lack of insight into the reasons for committing the life crime is
relevant to a determination of suitability for parole.

            Kang filed
a traverse in which she disputed the Warden’s contentions and asserted that her
rehabilitation had been sustained for a number of years, the record showed she
was honest and credible, the commitment offense did not show current
dangerousness, and the Board failed to expressly articulate “a rational nexus
between the facts and current dangerousness.”

            I.  The
Superior Court’s Order

            On April
19, 2012, the superior court issued its order granting the petition for writ of
habeas corpus for three principal reasons.

            First, the
superior court relied on this court’s pre-Shaputis
II decisions in In re Ryner (2011)
196 Cal.App.4th 533 and In re Rodriguez (2011)
193 Cal.App.4th 85 (Rodriguez) for
the proposition that “if ‘lack of insight’ is invoked as a reason to deny
parole, that finding must be based on a factually identifiable deficiency
manifested by the inmate concerning a matter of probative significance on the
issue of current dangerousness.”  The
court determined that the Board had failed to meet this test because the
Board’s decision ignored Dr. Williams’ opinion that Kang presented a low risk
of danger and failed to identify a material deficiency that Kang had manifested
that was probative on the issue of current dangerousness.

            Second,
relying on the decision in In re Morganti
(2012) 204 Cal.App.4th 904, the superior court faulted the Board for
finding that Kang’s inability to explain the reasons for the murder constituted
a lack of insight.  In the court’s view,
Kang’s inability to provide an explanation indicated that Kang’s “changed
values and internal moral compass are now such that a life crime is
unthinkable.”

            Finally,
the superior court determined that the Board had failed to articulate a nexus
between Kang’s history of prison discipline and her current dangerousness,
stating that the Board “[w]hen drawing a nexus from the crime it must reach to
the inmate’s present dangerousness, not to [CDC] 115s that are so old that they
must themselves be deemed stale and static factors.  This is another Board finding that compounds,
rather than cures, its errors.”

            The
superior court therefore ordered as follows: 
“For the above reasons, as well as those outlined in the order to show
cause (the unsupportable ‘torture’ finding and the . . . section
5011 violation) the petition is granted and the matter is remanded to the Board
with directions to provide Petitioner, within 100 days, a new hearing
comporting with due process.”

            The Warden
filed a timely notice of appeal from the superior court’s order.  This court granted the Warden’s petition for
a writ of supersedeas and ordered a stay of enforcement of the superior court’s
order until final determination of this appeal.

>III. 
DISCUSSION

            A.  The
Parties’ Contentions

            On appeal,
the Warden emphasizes the California Supreme Court’s ruling in >Shaputis II, supra, 53 Cal.4th 192 that the Board’s decision to deny parole must
be upheld where “the decision ‘reflects due consideration of the specified
factors as applied to the individual prisoner in accordance with applicable
legal standards,’ and some evidence in the record supports the conclusion that
an inmate remains a current danger. . . .”

            Under this
standard, the Warden argues, some evidence supports the Board’s decision to
deny parole to Kang because the evidence shows the following:  (1) the commitment offense “was brutal and
egregious”; (2) Kang lacked credibility in discussing her rehabilitation, since
she represented that she had developed a personal relationship with a higher
power immediately after receiving the 2002 CDC 115 for a serious drug violation
although she had previously admitted that she attended church in order to traffic
drugs into prison; (3) Kang’s extensive record of institutional misconduct
included nine serious rule violations, and she had been disciplinary-free only
in the past decade; and (4) Kang lacked insight into her reasons for committing
the murder because she could not articulate why she did it.  The Warden therefore contended that the
Board’s decision was not arbitrary or procedurally flawed and should be upheld
under Shaputis II.

            Kang
responds that the Board’s multiple errors “rendered the decision a violation of
due process.”  In her view, these errors
include (1) giving the commitment offense “independent weight” without
explaining how the offense supported a parole denial; (2) finding that
Kang lacked credibility although she “openly and honestly discussed her past
actions of manipulation and dishonesty”; (3) failing to articulate any
deficiency in Kang’s insight and failing to articulate a nexus between the lack
of insight and current dangerousness; (4) violating Kang’s right under section
5011 not to discuss the commitment offense by telling her the Board “needed to
understand how the crime happened”; and (5) relying on prison rule violations
without articulating a nexus to current dangerousness.  Kang contends that absent these errors on the
Board’s part, the decision would have been different and for that reason the
superior court’s order granting her habeas petition should be affirmed.>

            We> will begin our analysis of
the parties’ contentions with an overview of the legal framework that governs
the Board’s parole suitability decisions, followed by the standard for judicial
review established by the California Supreme Court in Lawrence, supra, 44
Cal.4th 1181 and Shaputis I, >supra, 44 Cal.4th 1241, and clarified in
Shaputis II, >supra, 53 Cal.4th 192.

            B.  The
Legal Framework for Parole Suitability Decisions

            The Board is the administrative
agency within the executive branch that is generally authorized to grant name=SearchTerm>parole
and set release dates.  (§§ 3040, 5075 et
seq.; In re Vicks (2013) 56 Cal.4th
274, 294 (Vicks).)  The Board’s parole
decisions are governed by section 3041 and title 15, section 2400 et seq. name=FN5>of the California Code of Regulations.href="#_ftn4" name="_ftnref4" title="">[4]

            Under section 3041, “[a] panel of
two or more commissioners or deputy commissioners must meet one year prior to a
prisoner’s minimum eligible parole release date to consider whether to set a
parole date.  ‘The panel . . . 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, subd. (b).)”  (Vicks,
supra, 56 Cal.4th at p. 294, fn.
omitted.)

            name="sp_999_10">In assessing 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,” the Board is
guided by the factors set forth in title 15, section 2402 of the California
Code of Regulations.  (>In re Prather (2010) 50 Cal.4th 238, 249
(Prather).)  Title 15, section 2402 “lists several
circumstances relating to unsuitability for parole (such as the heinous,
atrocious, or cruel nature of the crime, or an unstable social background) and
several circumstances relating to suitability for parole (such as an inmate’s
rehabilitative efforts and demonstration of remorse, and the mitigating
circumstances of the crime).  (Regs.,
§ 2402, subds. (c), (d).)”  (>Prather, supra, at pp. 249-250, fns. omitted.)  “The circumstances identified in
the regulations ‘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.’ 
[Citations.]”  (>Vicks, supra, 56 Cal.4th at p. 294.)

            “The Board applies these criteria name="sp_999_11">to ‘attempt to predict by subjective
analysis whether the inmate will be able to live in society without committing
additional antisocial acts. 
[Citation.]  “The [Board’s]
exercise of its broad discretion ‘involves the deliberate assessment of a wide
variety of individualized factors on a case-by-case basis, and the striking of
a balance between the interests of the inmate and of the public.’  [Citation.]” 
[Citation.]  “The [Board’s]
discretion in parole matters has been described as ‘great’ [citation] and
‘almost unlimited’ [citation].” 
[Citation.]’  [Citation.]  The Board’s discretion is limited only by the
requirements that it provide an individualized consideration of all relevant
factors, provide a written statement that sets forth its reasons for denying a
parole date, and not render an arbitrary decision.  [Citation.]” 
(Vicks, supra, 56 Cal.4th at p. 295.)

            C.  Judicial
Review

            “When a superior court grants
relief on a petition for [writ of] habeas corpus without an evidentiary
hearing, as happened here, the question presented on appeal is a question of
law, which the appellate court reviews de novo. 
[Citation.]  A reviewing court
independently reviews the record if the trial court grants relief on a petition
for writ of habeas corpus challenging a denial of parole based solely on
documentary evidence.  [Citation.]”  (In re
Lazor (2009) 172 Cal.App.4th 1185, 1192.)

>       The California Supreme Court has established the standard that governs
our independent review.  In >Shaputis II, the court stated:  “As we have explained, in Lawrence [supra, 44 Cal.4th 1181] we
‘resolved a conflict among the appellate courts regarding the proper scope of
the deferential “some evidence” standard of review we set forth in [>In re Rosenkrantz
(2002) 29 Cal.4th 616] . .
. .  We clarified that in
evaluating a parole-suitability determination by either the Board or the
Governor, a reviewing court focuses upon “some evidence” supporting the core
statutory determination that a prisoner remains a current threat to public
safety—not merely “some evidence” supporting the Board’s or the Governor’s
characterization of facts contained in the record.  Specifically, we explained that, because 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
because the inmate’s due process interest in parole mandates a meaningful review
of a decision denying parole, the proper articulation of the standard of review
is whether there exists “some evidence” demonstrating that an inmate poses a
current threat to public safety, rather than merely some evidence suggesting
the existence of a statutory factor of unsuitability.  [Citation.]’ 
[Citation.]”  (>Shaputis II, supra, 53 Cal.4th at p. 209, fn. omitted.)name=F00662026773247>

       “[T]he ‘ “some evidence” standard is
extremely deferential . . . ,’ and cannot be equated with the substantial
evidence standard of review. 
[Citation.]”  (>Shaputis II, supra, 53 Cal.4th at p. 214.) 
“It is settled that under the ‘some evidence’ standard, ‘[o]nly a
modicum of evidence is required. 
Resolution of any conflicts in the evidence and the weight to be given
the evidence are matters within the authority of [the Board or] the Governor. .
. .  [T]he precise manner in which the
specified factors relevant to parole suitability are considered and balanced
lies within the discretion of [the Board or] 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 . . .  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 . . .
decision.’  [Citations.]”  (Id.
at p. 210.)

       Thus, a court reviewing the Board’s
parole unsuitability determination “must consider the whole record in the light
most favorable to the determination before it, to determine whether it
discloses some evidence—a modicum of evidence—supporting the determination that
the inmate would pose a danger
to the public if released on parole. 
[Citations.]  The court may not .
. . substitute its own credibility determination for that of the parole
authority.  [Citations.]  Any relevant evidence that supports the
parole authority’s determination is sufficient to satisfy the ‘some evidence’
standard.  [Citation.]”  (Shaputis
II, 53 Cal.4th at p. 214, fn.
omitted.)

       In short, “[w]hile the evidence
supporting a parole unsuitability finding must be probative of the inmate’s
current dangerousness, it is not for the reviewing court to decide which
evidence in the record is name="citeas((Cite_as:_53_Cal.4th_192,_*211,_2">convincing.  [Citation.] 
Only when the evidence reflecting the inmate’s present risk to public
safety leads to but one conclusion may a court overturn a contrary decision by
the Board or the Governor.  In that
circumstance the denial of parole is arbitrary and capricious, and amounts to a
denial of due process.  [Citation.]”  (Shaputis
II, supra, 53 Cal.4th at p. 211.)

            D.  Analysis

            To evaluate the merits of Kang’s
habeas corpus petition, we have carefully reviewed the record in the light most
favorable to the Board’s parole unsuitability decision, pursuant to the
direction of the California Supreme Court in Shaputis II, supra, 53 Cal.4th at page 214, to determine whether
some evidence supports the Board’s conclusion that Kang “is not suitable for
parole because [she] currently poses an unreasonable risk of danger if released
from prison.”  Our review indicates that
the Board’s decision was based on four factors: 
(1) the commitment offense; (2) institutional misconduct; (3) lack of
credibility; and (4) lack of insight.  We
will address these factors in turn.

                        1.  The Commitment Offense

            Under the regulatory scheme, one
of the circumstances tending to show parole unsuitability is that “[t]he
prisoner committed the offense in an especially heinous, atrocious or cruel
manner.  The factors to be considered
include:  [¶]  (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 which demonstrates an exceptionally callous disregard for human
suffering.  [¶]  (E) The motive for the crime is inexplicable
or very trivial in relation to the offense.” 
(Regs., § 2402, subd. (c)(1).)

            The Board
described the commitment offense as “an atrocious, heinous and cruel
crime,”  noting that “she stabbed him 40
times, ten times in the chest.  There
were approximately 30 wounds that were found on his body, and many of them
defensive-type wounds located on the hand and forearms. . . .  [B]ecause of the number of wounds, the
defensive wounds, this is torture, because he’s still alive and he’s fighting
for his life.  He doesn’t die right
away.”  Thus, the Board’s decision
implicitly relied, in part, upon a finding that the aggravated circumstances of
the commitment offense showed that Kang was unsuitable for parole.

            We find
that some evidence supports the Board’s determination that circumstances of the
commitment offense show that it was committed in “an especially heinous,
atrocious or cruel manner.”  (Regs., §
2402, subd. (c)(1).)  The record reflects
that Kang hid a knife under the mattress before engaging in consensual sex with
Yoon and then stabbed him to death, beginning while he was sleeping, in order
to steal his credit cards.  Kang stabbed
Yoon a total of 40 times and waited for him to stop breathing before she
showered and dressed in the clean clothing she had purposefully placed away
from the bed.  However, in accordance
with the Supreme Court’s instruction in Lawrence,
supra, 44 Cal.4th at page 1214,
that the aggravated circumstances of the commitment offense alone are not
sufficient to show current dangerousness, we next consider whether some
evidence supports the Board’s determination that additional factors establish
that the circumstances of the commitment offense “remain probative of the
statutory determination of a continuing threat to public safety.”  (Ibid.)

                        2.
Institutional Misconduct

            Another
circumstance tending to show unsuitability for parole is institutional
behavior; specifically, whether “[t]he prisoner has engaged in serious
misconduct in prison or jail.”  (Regs., §
2402, subd. (c)(6).)

            Explaining
its decision that Kang was not suitable for parole, the Board stated, among
other things, that Kang had continued her “reckless lifestyle” in prison, including
her “propensity for violence” and her use of drugs and alcohol.  The record showed that during the six-year
period between 1997 and 2003, Kang received nine CDC 115 reports of serious
rule violations, including four reports of mutual combat and five other reports
for smoking in the kitchen, inmate-manufactured alcohol, refusing to work,
conspiracy to introduce narcotics, and forging a state document.  She also received 11 CDC 128 reports of minor
administrative rule violations, including refusal to work, failing to wear
gloves while handling food, refusing to program, stealing food, not reporting
to class, and clothing violations.

            On this
record, it cannot be disputed that the evidence shows that Kang has engaged in
serious misconduct while in prison.  Kang
argues that the Board nevertheless erred in considering her institutional
misconduct, because her rule violations were “stale,” she had not received any
disciplinary reports during the past 10 years, and the Board did not articulate
a nexus between institutional misconduct and her current dangerousness.  For three reasons, this argument is not
convincing.

            First, as
we have noted, serious misconduct in prison is a factor that the Board may
properly consider in determining parole suitability.  (Regs., § 2402, subd. (c)(6).)  Second, our Supreme Court in >Shaputis II instructed that the “
‘precise manner in which the specified factors relevant to parole suitability
are considered and balanced lies within the discretion of [the Board or] the
Governor . . . .’ ”  (>Shaputis II, supra, 53 Cal.4th at p. 210.) 
Third, as the reviewing court we do not examine the Board’s decision to
determine whether the Board has expressly articulated a nexus between each
specified factor and the parole suitability decision; instead, we “consider[]
whether there is a rational nexus between the evidence
and the ultimate determination of current dangerousness.”  (Shaputis
II, supra, 53 Cal.4th at p. 221.)  As
we will discuss, the evidence of institutional misconduct in the context of the
Board’s findings regarding Kang’s credibility (see, e.g., In re Hare (2010) 189 Cal.App.4th 1278, 1294-1295 [seven-year-old
CDC 115 relevant to risk of current dangerousness in context of particular
violation]), as well as the evidence of Kang’s lack of insight, is sufficient
to provide a modicum of evidence to support the Board’s decision that Kang is
currently dangerous.  (>Shaputis II, supra, at p. 209.)

                        3.  Lack of Credibility

            In finding that Kang was not
suitable for parole, the Board expressed its concern that she lacked
credibility.  One Board member stated,
“[T]he credibility issues just seem to surface all around. . . . [I]t was just,
this Panel just couldn’t quite buy everything, tie it all together, with what
we see in the record.”

            In particular,
the Board pointed to its discussion with Kang about the 2002 CDC 115 for
conspiracy to introduce narcotics, and its inquiry as to “why . . . this point
in time, why was this your wake up?”  The
Board had reviewed the brief in support of parole submitted by Kang’s attorney,
which included two admissions by Kang: 
(1) that she even after receiving the 2002 CDC 115 for conspiracy to
introduce narcotics, she had done it again and not been caught; and (2) she had
initially attended church in order to bring drugs into the prison.  The Board was concerned that Kang “didn’t
talk to us at all about this additional attempt to bring narcotics into the
institution when [she] didn’t get caught, and how [she] really only went to the
church to get to where [she] needed to get the drugs inside. . . .  [W]e were talking about it, and [she] didn’t
cover that gap.  That’s just one
example.”

            Kang
contends that the Board erred in finding that she lacked credibility because
she “openly and honestly discussed her past actions of manipulation and
dishonesty.”  This contention has no
merit under the applicable standard of review.

            “Under the
‘some evidence’ standard of review, the parole authority’s interpretation of
the evidence must be upheld if it is reasonable, in the sense that it is
not arbitrary, and reflects due consideration of the relevant
factors.  [Citations.]”  (Shaputis >II, 53 Cal.4th at p. 212.)  Here, it was not arbitrary for the Board to
find that Kang’s statements about her rehabilitation lacked credibility.  The Board could reasonably doubt Kang’s
claim, made during the hearing, that after receiving the CDC 115 in 2002
for conspiracy to introduce narcotics she immediately experienced a spiritual
awakening and began her recovery.  As the
Board pointed out, Kang’s brief in support of parole included the contrary
admissions that she had subsequently attempted to introduce narcotics and her
initial purpose in attending church was to bring drugs into the prison.

            Moreover, a
“court may not . . . substitute its own credibility determination for
that of the parole authority. 
[Citations.]  Any relevant
evidence that supports the parole authority’s determination is sufficient to
satisfy the ‘some evidence’ standard. 
[Citation.]”  (>Shaputis II, supra, 53 Cal.4th at p. 214, fn. omitted.)  We therefore determine that the Board did not
err in considering Kang’s credibility in making its parole decision.

                        4.  Lack of Insight

            The Board
also found that Kang was not suitable for parole because she could not explain
why she murdered Yoon and therefore she needed to further develop her insight
into the commitment offense.  The Board
advised Kang that “[y]ou’ve got to be able to articulate reasons.  This is why I did it, and these are the
things I’ve done to ensure that this kind of action will never happen again.”

            According
to Kang, the Board erred because it failed to articulate any deficiency in her
insight and also failed to articulate a nexus between the lack of insight and
current dangerousness.  This argument
lacks merit under the California Supreme Court’s clarification in >Shaputis II of “the use of an inmate’s
degree of insight into his or her criminal behavior as a factor in parole
suitability determinations.”  (>Shaputis II, supra, 53 Cal.4th at p. 217.)

            In >Shaputis II, the court instructed that
“[c]onsideration of an inmate’s degree of insight is well within the scope of
the parole regulations.  The regulations
do not use the term ‘insight,’ but they direct the Board to consider the
inmate’s ‘past and present attitude toward the crime’ (Regs., § 2402, subd.
(b)) and ‘the presence of remorse,’ expressly including indications that the
inmate ‘understands the nature and magnitude of the offense’ (Regs., § 2402,
subd. (d)(3)).  These factors fit
comfortably within the descriptive category of ‘insight.’ ”  (Shaputis
II, supra, 53 Cal.4th at p. 218.)

            In >Shaputis I, the court determined that
some evidence supported the Governor’s decision that inmate Shaputis remained
“a threat to public safety in that he has failed to take responsibility for the
murder of his wife, and despite years of rehabilitative programming and
participation in substance abuse programs, has failed to gain insight into his
previous violent behavior, including the brutal domestic violence inflicted upon
his wife and children for many years preceding the commitment offense.  By statute, it is established that the
gravity of the commitment offense and petitioner’s current attitude towards the
crime constitute factors indicating unsuitability for
parole . . . .”  (>Shaputis I, supra, 44 Cal.4th at p. 1246.) 
Referring to its decision in Shaputis
I, the Shaputis II court stated,
“Thus, we have expressly recognized that the presence or absence of insight is
a significant factor in determining whether there is a ‘rational nexus’ between
the inmate’s dangerous past behavior and the threat the inmate currently poses
to public safety.  [Citations.]”  (Shaputis
II, supra, 53 Cal.4th at p. 218.)

            The >Shaputis II court accordingly clarified
“that lack of insight, like any other parole unsuitability factor, supports a
denial of parole only if it is rationally indicative of the inmate’s current
dangerousness.  [Citation.]”  (Shaputis
II, supra, 53 Cal.4th at
p. 219.)  The court emphasized “that
lack of insight pertains to the inmate’s current state of mind, unlike the
circumstances of the commitment offense, the factor primarily at issue in Lawrence.  [Citation.] 
Thus, insight bears more immediately on the ultimate question of the
present risk to public safety posed by the inmate’s release.  Moreover, insight, unlike the circumstances
of the offense, may change over time. 
[Citation.]  Therefore, the most
recent evidence of the inmate’s degree name="SDU_220">of
insight will usually bear most closely on the parole determination, although .
. . this is not necessarily so.”  (>Id. at pp. 219-220.)

            The court
further explained in Shaputis II that
“it is difficult to imagine that the Board . . . should be required to ignore
the inmate’s understanding of the crime and the reasons it occurred, or the
inmate’s insight into other aspects of his or her personal history relating to
future criminality.  Rational people, in
considering the likely behavior of others, or their own future choices,
naturally consider past similar circumstances and the reasons for actions taken
in those circumstances.”  (>Shaputis II, supra, 53 Cal.4th at
p. 220.)  In other words, as this
court has previously stated:  “[A] ‘lack
of insight’ into past criminal conduct can reflect an inability to recognize
the circumstances that led to the commitment crime; and such an inability can
imply that the inmate remains vulnerable to those circumstances and, if
confronted by them again, would likely react in a similar way.  [Citations.]” 
(Rodriguez, supra, 193
Cal.App.4th at p. 98.)

            In the
present case, the Board could reasonably find that Kang lacked insight into the
reasons that the commitment offense occurred. 
(Shaputis II, supra, 53 Cal.4th at
p. 220.)  At the Board hearing, when
a Board member asked Kang why she had murdered Yoon, she replied, “I know at
that point in my life I chose to believe, I made a distinction that I had no
other out, and that was my last resort pretty much.  I backed myself into a corner.”  She further answered, “I wanted to hurt him,
immobilize him.  I knew there was a
possibility that I was going to end up killing him. . . .  I needed money, I needed out.”  Kang acknowledged that she “didn’t have any
kind of respect for human life at that time. . . .  I have absolutely no excuse.”  In his 2009 comprehensive risk assessment,
Dr. Williams reported that “Ms. Kang, to this day, cannot understand how
she committed that crime.  To her credit,
she offers no excuses or facile explanations that might ease her conscience.”  However, Dr. Williams also reported that Kang
“could decrease her risk of violent
reoffense by:  . . . continuing to
examine and come to terms with the causative factors of the life crime. . .
.”  Thus, there was evidence that even
after many years of rehabilitative programming, Kang still lacked “understanding
of the crime and the reasons it occurred.” 
(Shaputis II, >supra, 53 Cal.4th at p. 220.)  Kang’s lack of insight was therefore
“rationally indicative of [her] current dangerousness.”  (Id.
at p. 219.)

            We are also
not convinced by Kang’s argument, in reference to the insight factor, that the
Board violated her right under section 5011 not to discuss the commitment
offense by telling her the Board needed “to understand how the crime
happened.”  Section 5011, subdivision (b)
states: “The Board of Prison Terms shall not require, when setting parole
dates, an admission of guilt to any crime for which an inmate was
committed.”  Where, as here, the inmate
does not deny guilt, the provisions of section 5011 have no
application.  (Shaputis II, 53 Cal.4th at
p. 216.)

            Moreover,
the Board is not precluded from questioning an inmate about the commitment
offense.  To the contrary, the pertinent
regulation provides:  “The facts of the
crime shall be discussed with the prisoner to assist in determining the extent
of personal culpability.  The [B]oard
shall not require an admission of guilt to any crime for which the prisoner was
committed.  A prisoner may refuse to
discuss the facts of the crime in which instance a decision shall be made based
on the other information available and the refusal shall not be held against
the prisoner.”  (Regs., § 2236; Shaputis
II, supra, 53 Cal.4th at pp. 211-212.) 
Accordingly, in Shaputis II
the court explained that if Shaputis had participated in the hearing, the Board
could have asked him “about the offense,” and also could have inquired about
“his psychologist’s report, the statement he prepared with counsel, or his
current state of mind.”  (>Shaputis II, supra, at p. 211.)

                        5.  Conclusion

       The California Supreme Court has instructed
that a court reviewing the Board’s parole unsuitability determination “ ‘must
consider the whole record in the light most favorable to the determination
before it, to determine whether it discloses some evidence—a modicum of
evidence—supporting the determination that the inmate would pose a danger to
the public if released on parole. 
[Citations.]  The court may not .
. . substitute its own credibility determination for that of the parole
authority.  [Citations.]  Any relevant evidence that supports the
parole authority’s determination is sufficient to satisfy the ‘some evidence’
standard.  [Citation.]”  (Shaputis
II, 53 Cal.4th at p. 214,
fn. omitted.)

            Having
independently reviewed the record under the deferential “some evidence”
standard clarified in Shaputis II, we
determine that the the facts of the commitment offense, together with the
Board’s findings regarding Kang’s institutional misconduct, her lack of
credibility, and her lack of insight into her past criminal behavior,
constitute a modicum of evidence supporting the Board’s decision that Kang is
unsuitable for parole because she currently poses a threat to public
safety.  (Shaputis II, supra, 53
Cal.4th at p. 221.)  As in >In re Stevenson (2013) 213 Cal.App.4th
841, 870 “[t]he Board could reasonably conclude that [Kang] had not yet fully
developed the insight and coping skills necessary to ‘live in society without
committing additional antisocial acts.’ 
[Citation.].”

            For these
reasons, we conclude the Board’s decision to deny parole to Kang was not
“arbitrary or procedurally flawed” and should be upheld.  (Shaputis
II, supra, 53 Cal.4th at p.
221.)  We will therefore reverse the
superior court’s order granting Kang’s habeas corpus petition and direct the
court to issue a new order denying the petition.

>IV. 
DISPOSITION

            The
superior court’s April 19, 2012 order granting the petition for a writ of
habeas corpus is reversed, and the matter is remanded to the superior court
with directions to issue a new order denying the petition for writ of habeas
corpus.

 

 

 

 

                                                            ___________________________________________

                                                            Bamattre-Manoukian, J.

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

 

 

________________________________

ELIA,
ACTING P.J.

 

 

 

 

 

 

 

________________________________

Márquez, J.