Filed 2/27/18 In re Padin CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


In re JOAQUIN LEON PADIN,
on Habeas Corpus. A151770

(Contra Costa County
Super. Ct. No. 05-170406)


Petitioner Joaquin Leon Padin was convicted of second degree murder in 1996 and is serving a life sentence. Denied parole after a hearing in 2016, he contends the Board of Parole Hearings (Board) violated his constitutional right to due process by conducting a procedurally flawed hearing and failing to consider all relevant statutory factors bearing on the parole decision. We conclude the hearing was indeed flawed and therefore vacate the Board’s decision and remand for a new parole suitability hearing.
BACKGROUND
Petitioner was sentenced to a prison term of 26 years to life in 1996, after a jury found him guilty of second degree murder (Pen. Code, § 187), with an enhancement for use of a weapon (§ 2022, subd. (b)), and two prior convictions were found true (§ 667, subd. (a)). This court affirmed the judgment. (People v. Bryden (1998) 63 Cal.App.4th 159.) Petitioner’s minimum eligible parole date was January 13, 2011. After a hearing in 2009, his parole was denied for seven years. The present hearing was conducted on September 27, 2016, and parole was again denied for seven years.
Petitioner filed a petition for writ of habeas corpus in the superior court on March 10, 2017, which was denied on May 8, 2017. He filed his habeas petition in this court on July 10, 2017. We issued an order to show cause on October 17, 2017, returnable before this court. Respondent filed a return and petitioner filed a traverse.
Commitment Offense and Criminal History
As described in our 1998 opinion affirming petitioner’s conviction, petitioner and codefendant Jeffrey Bryden murdered Brian Friberg in 1993, in the garage at petitioner’s aunt’s “ranch” in Contra Costa County. (People v. Bryden, supra, 63 Cal.App.4th 159.) An autopsy revealed that the cause of death was a stab wound to the heart; the victim had also been stabbed 18 times with two different knives and had two blunt force injuries to the head and a shallow cut to the throat.
The key witnesses against petitioner and Bryden were Robert Vandevort and his wife Kathy, both of whom were granted immunity. Vandevort testified that he met petitioner when they were cellmates in prison and they discussed plans for after their release, including robbing people and setting up a methamphetamine lab. In 1993, Vandevort and Kathy came to the ranch with Bryden and Friberg, who allegedly knew how to make amphetamine. As attempts to set up robberies failed to yield results, tensions grew among the men. The Vandevorts left for Thanksgiving and when they returned, Bryden told Vandevort that Friberg was dead. Bryden said he had stabbed Friberg repeatedly with a small knife and cut his throat, and Vandevort saw what he believed to be Friberg’s body wrapped in “ ‘curtain sheet-type material.’ ” Later, petitioner later told Vandevort that upon entering the garage when Friberg was shooting into the wall, he hit Friberg in the back of the head with a baseball bat, left the garage and retrieved a larger knife from the kitchen, returned and stabbed Friberg in the heart. Vandevort said that while Bryden was stabbing Friberg, petitioner instructed Bryden: “ ‘That’s how you do it . . . . Now cut his throat.’ ” Petitioner told Vandevort that Friberg had been stealing from him.
According to Vandevort, he, Kathy, Bryden, petitioner and petitioner’s girlfriend Debbie discussed how to dispose of the body, after which Vandevort and Bryden drove to the river with the body in the trunk of Vandevort’s car, buried the body, then went fishing. Vandevort testified that petitioner and “a ‘kid’ at the ranch” drove ahead of them to point out which road to take to the river, then left. Kathy, however, testified that petitioner remained at the ranch when Vandevort and Bryden left to bury the body. She and Debbie attempted to remove bloodstains in the garage and went through Friberg’s belongings, and petitioner claimed to have found some rings his aunt had said were missing.
The following week, petitioner told Vandevort to meet him at the ranch but when Vandevort and Kathy arrived, Vandevort suspected he was being set up and they left. That evening a police officer tried to pull over the car Vandevort was driving and a high-speed chase ensued, during which the officer saw Kathy throw a gun out of the vehicle. A search of the car revealed a gun with a homemade silencer, a loaded shotgun with bullets, numerous knives and a set of bolt cutters. Vandevort asked who had reported him. He told the officer he had information about another crime and wanted to make a deal, provided information about the murder, showed the police the burial site and made a staged phone call to Bryden and petitioner to try to elicit incriminating statements.
Petitioner testified that he invited Vandevort to help him fix his aunt’s ranch and did not have the courage to tell Vandevort he no longer wanted to commit the crimes he and Vandevort had planned. After Thanksgiving, when he noticed Friberg was no longer around, petitioner asked Vandevort about him and Vandevort said Friberg had left. Petitioner denied stabbing Friberg, said he never saw a body in the garage and never showed Vandevort and Bryden where to bury the body.
Between 1980 and 1985, petitioner suffered convictions for receiving stolen property, assault with a deadly weapon, possession of a concealed firearm, exhibiting a firearm and providing false identification to an officer, each resulting in probation and jail time. He was sentenced to eight years in prison in 1986, after a jury trial, on convictions resulting from a home invasion in Oakley in which the victims were assaulted, seriously injured and robbed. He was subsequently sentenced to a concurrent prison term of 10 years upon his plea of nolo contendere to charges arising from a similarly-committed home invasion, assault and robbery in Pleasanton, committed approximately a month after the Oakley incident. According to the probation reports, petitioner denied involvement in either of these incidents but said that he had confronted Oakley victim two weeks prior to the actual offenses, giving him two weeks to pay $10,000 the victim owed a drug dealer. The report for petitioner’s 2016 risk assessment relates that petitioner admitted guilt for the Oakley robbery, saying he “robbed someone who owed his friend money,” and denied involvement in the Pleasanton one, saying that he pled guilty to it, knowing his sentence would be concurrent, so his friend could get a lesser sentence. The probation reports, however, indicate that fingerprints found on the duct tape used to cover one of the Pleasanton victim’s eyes and on a paint can in the kitchen of that house were identified as petitioner’s.
Petitioner had been on parole for four months at the time of the commitment offense. At his 2016 parole hearing, petitioner recalled having a drug test during the four months on parole and did not recall it being dirty.
Prison Conduct and Program Participation
At the time of the hearing petitioner was participating in a “voluntary high school” program and working in the sign shop and metal fabrication; he had also done kitchen work including cooking and serving, and auto body work. His most recent supervisors’ reports, from 2013, reflected “above average and exceptional ratings for his performance as a fabricator and painter.” He was participating in or had completed self-help programs including Narcotics Anonymous, Alcoholics Anonymous, anger management, relapse prevention, domestic violence, life skills, “Success from the Inside Stress Management Series” and “Logo Mentoring,” as well as programs aimed at improving skills necessary for successful employment. In addition to certificates of completion and certificates of recognition for these programs, petitioner received a number of positive “chronos” commending his efforts and attitude, such as his “hard work and innovative ideas” in the Paint Factory, “hard work and dedication in making substantial changes in his life and in his recovery” in a cognitive behavioral relapse prevention program, active participation in domestic violence and anger management programs, and voluntary participation in fundraisers for cancer prevention and other charitable causes.
Petitioner had received five “Rules Violation Reports” (referred to as “115s”) during the present prison term, four of which involved violent incidents, but none since 2006. The 2006 violation involved participation in a riot in which petitioner was beaten, resulting in a fractured orbital wall, head trauma and lasting cognitive issues.
2016 Risk Assessment
A “Comprehensive Risk Assessment” was conducted in July 2016 by forensic psychologist R. Siemsen. The report discussed petitioner’s personal and social history, physical and mental health, criminal history, adjustment and performance in prison, parole plans and support, and analyzed the historic, clinical and risk management factors bearing on his risk for violence. Siemsen noted that the 2009 psychological evaluation in petitioner’s file did not diagnose any major mental or personality disorder and concluded that petitioner represented a low risk if paroled at that time. Siemsen also concluded that petitioner represented a “low risk for violence.” Noting that he had not received a 115 since 2006, had attended several self-help programs, had “quite positive” work performance, had no documented history of substance abuse or mental health issues, and had established a “seemingly viable parole plan that includes substantial support from family,” Siemsen stated that it appeared petitioner “with his family’s help, is capable of establishing himself successfully on parole.”
Siemsen observed that petitioner’s “thought process was notable for tangential rambling” which he appeared to have little control over and believed might be one of the consequences of his 2006 head injury. Petitioner reported that his memory had suffered as a result of that injury, a consequence he first noticed when his wife brought their two grandchildren to visit and petitioner did not know who they were. Petitioner had also suffered a head injury in a car accident as a young child, resulting in a three-month hospital stay, and had been kicked and beaten to the point of unconsciousness in the community.
With regard to the commitment offense, petitioner told Siemsen that he had told the Vandevorts they could live on the ranch as long as there were no drugs, stating that plans he and Vandevort had made in prison to cook methamphetamine were “ ‘all talk.’ ” Around Thanksgiving, having been busy arranging a wake for a cousin who had overdosed, petitioner came to the ranch and found Friberg and Bryden cooking meth in the garage.” He “knew right away” that Vandevort had planned to take advantage of his absence and was very angry because he was afraid his aunt would lose everything if they were caught. He told them to get rid of everything and that Friberg had to leave. A short time later, petitioner returned with his friend Debbie in the truck. Hearing what sounded like gunshots, he realized Friberg was shooting a gun into plywood in the garage. When approached and asked Friberg what he was doing, Friberg turned and smiled, pointing the gun at petitioner, then turned back and started shooting again. Petitioner told the evaluator, “ ‘All my anger at [Bryden] and [Vandevort] came up,” and he grabbed a “half handle of a floor jack” and hit Friberg on the head. He wanted to teach Friberg a lesson, not to kill him. Friberg fell down and petitioner went to the truck and told Debbie he thought he had killed him. He then returned to the garage, found Bryden on top of Friberg and realized Bryden had stabbed Friberg. Petitioner said he did not instruct Bryden to stab Friberg or to get a bigger knife, and that Bryden “bragged to [Vandevort] that he had killed [Friberg].” Petitioner said he left the ranch after the murder and denied being involved in burying the body.
Petitioner told Siemsen that during his trial and the beginning of his sentence he felt he was not responsible for Friberg’s death because he had not “dealt the fatal blow,” and for this reason he did not accept a “seven-year deal for manslaughter.” In recent years, however, petitioner had realized that Friberg would not have been killed if petitioner had not knocked him out and left him unconscious. He said he decided to tell the truth because it felt better to “finally get it off his chest.” He also said he hit Friberg “because of my ego” and to impress Bryden, not wanting Bryden to know he was scared when Friberg pointed the gun at him or think he was weak for letting Friberg get away with doing so.
Dr. Siemsen stated that petitioner “demonstrated a fair amount of insight while discussing the causative factors of the life crime. [Petitioner] explained that environmental influences, including violence demonstrated and perpetrated against him by his uncles, played a significant role in his evolution into a violent criminal. He also admitted that worries about being perceived as ‘weak’ factored heavily into his behavior on the day of the life crime. He additionally admitted that he had issues with anger and responded with violence to many situations. [Petitioner’s] insight appears to have improved over time, and he is to be commended for being honest about his responsibility for the murder for the first time. It seems that he is making genuine strides toward understanding his past, however further exploration into why he consistently felt the need to prove himself violently would be beneficial toward lowering his risk even further. It would also behoove him to consider why it took him so long to be honest. Overall, problems with insight do not pose substantial concern at this time.”
The Hearing
At the outset of the hearing, the presiding commissioner stated that he was going to summarize the commitment offense based on the probation officer’s report because he had not been able to find an appellate decision. The probation officer’s report stated that Vandevort told the police that Bryden told him petitioner walked up behind Friberg and hit him on the head with a baseball bat, then told Bryden to “finish the job.” Bryden told Vandevort that he stabbed the victim numerous times and the victim regained consciousness, then petitioner told Bryden to get a bigger knife, Bryden did so, then Bryden stabbed the victim in the heart and cut his throat. Vandevort also said that he, Bryden, petitioner and a person named Steve transported the body to the burial site and buried it, then threw two shovels in the river nearby.
Questioned about these facts, petitioner stated that he hit Friberg in the head, but with the handle of a floor jack, not a baseball bat. Friberg fell on the floor of the garage, mumbling incoherently but not bleeding. Petitioner panicked, went to his truck, and told Debbie he thought he had killed Friberg. They returned to the garage no more than 15 seconds later and saw that Friberg was no longer where he had been on the left side of the garage but was now on the right side. Bryden was sitting on top of Friberg, who was now making “painful noises, like when somebody is being punched or something.” “At that time the stabbing was—the stabbings I believe were done. They were finished.” Petitioner heard Friberg’s last gasp of air, then panicked. “I didn’t want no part of nothing. And like a coward, I left.” Petitioner said he was not present when Friberg’s body was buried. He later found out that the others had taken his cousin Steven to show them a good spot to dispose of the body, but Steven did not go all the way and Vandevort and Bryden were the only ones who knew exactly where the body was buried.
Asked why Friberg was killed, petitioner said “because I hung onto anger.” He said that Bryden and Friberg had stayed at the ranch when the others left for Thanksgiving and figured this would be the perfect time to “cook some dope” without petitioner’s knowledge. When he saw Friberg cooking dope he was not mad at Friberg as much as at Vandevort, “for the whole thing being set up.” Petitioner said that he no longer wanted to do the things he and Vandevort had talked about in prison and they were drifting apart; Vandevort did not trust petitioner and thought petitioner had called the cops on him when he was pulled over. Petitioner was angry that Vandevort brought Friberg, whom petitioner had never met, when he came to the ranch, although he noted that Friberg was the only one who actually fixed things to help petitioner’s aunt.
Asked if he knew or suspected why the Vandevorts gave him up, petitioner replied, “why shouldn’t of they given me up? They didn’t kill him. I did. Most normal people, when a crime happens, they’re supposed to call the police. So I—you know, I am thankful for—I have no anger toward [Vandevort]. I’m thankful that he exposed this crime and that’s the way most normal people are supposed to think, not the way that I was raised to believe and think.” Petitioner said he had heard that his cousin (who subsequently committed suicide) had blamed himself for participating but that “[n]obody should blame themselves except for me because I’m the one that’s solely responsible for killing [Friberg]. . . . If it wasn’t for my actions, nothing would have—not even a scratch would have happened to him.”
Petitioner explained that he became involved with Alcoholics Anonymous and Narcotics Anonymous because he “listened” when the commissioners at his last parole hearing told him he needed therapy even though he did not have drug or alcohol problems, and inmates in the classes also told him that he could “customize” by substituting “anger” where they used “alcohol” or “drugs.” He learned that he had been keeping things “balled up and hidden inside” for decades, and found the lessons from his classes intertwined with his faith.
After discussing petitioner’s conduct in prison (the commissioners noting that petitioner’s work record was “all positive” and his most recent 115 was in 2006), the Board reviewed the risk assessment, summarizing its discussion of petitioner’s early formation of “violent attitudes” due to traumatic experiences imposed upon him by his uncles and a history of violence beginning as a school boy. Petitioner’s discussion of the causative factors for the crime as related in the report were consistent with his statements at the hearing with respect to both the details of the crime and petitioner’s initial feeling that he was not responsible for Friberg’s death because he did not strike the fatal blow, now replaced by his understanding that Friberg would not have been killed if petitioner had not “knocked him out and left him helpless,” and that he acted not in self-defense but for “ego” and to impress Bryden. The presiding commissioner noted Dr. Siemsen’s statements that petitioner’s insight had improved over time and “problems with insight do not pose a substantial concern at this time,” summary of plans for parole that Siemsen believed viable, and conclusion that petitioner posed a low risk for violence.
The prosecutor did not ask any questions when offered the opportunity, saying he would reserve his remarks for closing argument. After a brief break at his request, the prosecutor began his closing as follows: “One of the reasons I needed a break in addition to needing a bathroom break was that I needed a cool-off break. I’ve done about 150 of these hearings over the last five years and I cannot remember a hearing that has made me as angry toward the inmate as this one has.” The prosecutor stated that he had submitted the appellate opinion in petitioner’s case to the Board, but it had not been used as the official version of the facts as, he said, “section 2030, subdivision (c), indicates should be the case.” The prosecutor proceeded to read the facts from our opinion into the record, asking the commissioners to compare this “official version” with petitioner’s testimony at the hearing. The prosecutor had not said anything when, at the beginning of the hearing, the presiding commissioner said he had not found an appellate decision and would be summarizing the facts based on the probation officer’s report, and had not questioned petitioner during the hearing. Petitioner’s attorney initially objected to the prosecutor’s use of the decision, saying it had not been provided to the defense within 10 days of the hearing as required, but the presiding commissioner apparently found the decision in the “ten-day file” and defense counsel subsequently acknowledged that he had received it.
The prosecutor argued that the version of the facts petitioner had presented “minimizes his role in this crime in 11 different ways” and constituted a “sanitized minimization version that amounts to a snow job,” a “bald, flat-out lie.” The prosecutor stated that petitioner also lied when he indicated he did not have positive drug tests while on parole, as the probation report reflected his having had a test on October 4, 1993, that was positive for amphetamine and methamphetamine. Further, the prosecutor stated, petitioner lied about his involvement in the two robberies for which he was first sent to prison. According to the prosecutor, petitioner and an associate broke into homes on two occasions, one in Oakley and one in Pleasanton, both times tying up, beating, stabbing and slashing the residents, a man and a woman in each case, then robbing them and leaving them with serious injuries. Petitioner consistently denied any involvement in the Pleasanton case, but the conduct was “remarkably similar” in both cases, they were committed only six weeks and a few miles apart, one of the two perpetrators in both cases was the same individual, and petitioner’s fingerprints were identified on the duct tape used to tape one of the victims’ eyes in the Pleasanton robbery and on a paint can in the kitchen of that house. Furthermore, the prosecutor suggested that petitioner’s description of the Oakley robbery in testimony at his 2009 parole hearing differed from the probation officer’s description of that crime and previous statements in which petitioner had admitted “most of the details of his violent conduct.” Stating that despite his “very nice presentation,” petitioner was a “dangerous liar,” the prosecutor argued that petitioner was “totally unsuitable” for parole as shown by the facts that he was the “product of an unstable social background that continued from his childhood until he participated in the murder of Mr. Friberg at the age of 32,” he used illegal substances including marijuana, cocaine and methamphetamine to a degree he was unwilling to admit; he had been diagnosed as having an antisocial personality disorder; his criminal history began as a juvenile and rapidly escalated into serious offenses as an adult; he gained nothing from his grants of probation and committed the murder within four months of his release on parole after his first prison term; he had an extensive disciplinary history in prison including numerous violent altercations with other inmates resulting in injuries; his self-help programming had been mainly in the last seven years, with only one course per year; and he continued to suffer from a “broad-based and deep lack of insight,” manifested in “non-believable and non-credible denials of his criminal culpability, repeated lies and perjurious testimony at prior parole suitability hearings and at his criminal trial, and minimization of his criminal conduct.” The prosecutor recommended denial of parole for 10 years.
Petitioner’s attorney acknowledged that petitioner had been an “extremely dangerous individual” 23 years ago but argued that he did not presently pose an unreasonable risk of danger if released because his expressions of remorse appeared to be genuine; he articulated understanding of his motivations for the crime; he had realistic plans for parole (with a job offer and marketable skills in welding, painting, fabrication, auto repair, kitchen work and customer service, and plans to live in a transitional house), and had support in the community; and he had demonstrated his insight not only through self-help courses but in the letters and book report he submitted to the Board, which expressed his “ardent desire to better himself.” Additionally, at his present age of 55, he was in a reduced recidivist category. Counsel emphasized that the 2009 risk assessment concluded petitioner was in the low category for recidivism, consistent with the 2016 assessment, and that Dr. Seimsen had no substantial concerns about petitioner’s insight and discussed his efforts to change antisocial patterns, including staying out of prison politics, not having received any 115’s since participating in the riot in 2006, in which he was seriously injured, attending self-help programs, demonstrating positive work performance, having no documented substance abuse or mental health issues and establishing a viable plan for parole.
Petitioner began his own remarks to the commissioners by stating that “the anger [the prosecutor] has and disgust he has for me, I can assure him I have that same anger if not worse.” Petitioner expressed remorse for his offense and prior lifestyle, and awareness that he could never “make it up” to Friberg or others he had hurt. He described having grown up in an environment “poisoned” with violence, so that things he had done seemed to be “normal behavior,” and how he had learned in his classes about letting go of hurt and anger as a necessary step toward change. Petitioner expressed disgust with his past self and certainty that he would not revert to being what he described as an “evil, cruel person” who did not care about anything except himself. Petitioner had written a letter of remorse to Friberg’s family in which he, among other things, said he was “100% guilty and solely responsible for causing your family to have to carry this suffering for the rest of your lives,” apologized repeatedly and discussed how his therapy and self-help groups had helped him understand the impact of what he had done and recognize the triggers and warning signs that would prevent him from “ever hurting anyone again in anger.” Similarly, in a “Self Analysis and Synopsis,” petitioner discussed the upbringing that he felt resulted in his “moral compass” being “completely warped and upside down,” and how he felt he had changed. In a book report on a book about families who had lost loved ones to murder and suicide, petitioner described the lessons he had learned about how actions like his affected the families forever.
DISCUSSION
“ ‘ “Subdivision (b) of section 3041 provides that a release date must be set ‘unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual,’ ” ’ and mandates that the Board ‘normally’ set a parole date for an eligible inmate, and must do so unless it determines [that] an inmate poses a current threat to public safety. ([In re] Prather [(2010)] 50 Cal.4th [238,] 249 [(Prather)], quoting In re Lawrence (2008) 44 Cal.4th 1181, 1202 (Lawrence).) As a result, parole applicants have a ‘due process liberty interest in parole’ and ‘ “an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.” ’ (Lawrence, at pp. 1191, 1204, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 654 (Rosenkrantz ).)” (In re Stoneroad (2013) 215 Cal.App.4th 596, 615 (Stoneroad).)
“ ‘We review the Board’s decision under a “highly deferential ‘some evidence’ standard.” ’ (In re Young (2012) 204 Cal.App.4th 288, 302 (Young), quoting In re Shaputis (2011) 53 Cal.4th 192, 221 (Shaputis II).) ‘[T]he appellate court must uphold the decision of the Board or the Governor “unless it is arbitrary or procedurally flawed,” and it “reviews the entire record to determine whether a modicum of evidence supports the parole suitability decision.” ([Shaputis II], at p. 221.) “The reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence.” (Ibid.) At the same time . . . the Board’s decision must “ ‘reflect[ ] due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards.’ ” (Shaputis II, at p. 210, quoting [In re] Rosenkrantz, supra, 29 Cal.4th at p. 677, and citing Lawrence, supra, 44 Cal.4th at p. 1204, and [In re Shaputis (2008) ] 44 Cal.4th [1241,] 1260–1261 [(Shaputis I)].)’ (Stoneroad, supra, 215 Cal.App.4th at p. 616.) We are required to affirm a denial of parole ‘unless the Board decision does not reflect due consideration of all relevant statutory and regulatory factors or is not supported by a modicum of evidence in the record rationally indicative of current dangerousness, not mere guesswork.’ (Ibid.)
“The nexus to current dangerousness is critical. ‘Lawrence and Shaputis I “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.” (Prather, [supra, 50 Cal.4th] at pp. 251–252.)’ (Stoneroad, supra, 215 Cal.App.4th at p. 615.) ‘ “It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.” (Lawrence, supra, 44 Cal.4th at p. 1212, italics added.) The Board “must determine whether a particular fact is probative of the central issue of current dangerousness when considered in light of the full record.” (Prather, . . . at p. 255, italics added.)’ (Young, supra, 204 Cal.App.4th at p. 303.) ‘ “[T]he 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. (Lawrence, . . . at p. 1191.)” ([Prather,] at pp. 251–252.)’ (Shaputis II, supra, 53 Cal.4th at p. 209.)” (In re Perez (2016) 7 Cal.App.5th 65, 84–85.)
The Board acknowledged several factors pointing toward petitioner’s suitability for parole—that his probability of recidivism was reduced by virtue of his age, his most recent 115 was in 2006 and he had realistic plans for release but found these were outweighed by factors relating to the commitment offense and additional criminal history involving violence. Recognizing that “ ‘ “[i]mmutable facts such as an inmate’s criminal history” . . . do not by themselves demonstrate an inmate “continues to pose an unreasonable risk to public safety” (Lawrence, supra, 44 Cal.4th at p. 1221, original italics)’ ” (In re Denham (2012) 211 Cal.App.4th 702, 717, quoting In re Sanchez (2012) 209 Cal.App.4th 962, 975), however, the Board found that petitioner posed a continued threat to public safety because his “past and present mental state, past and present attitude toward the crime” reflected a “pattern of minimization” that led the Board to find him “not credible.” The presiding commissioner, delivering the Board’s decision, stated that petitioner displayed “dishonesty” at the hearing by providing a version of the commitment offense that was “not plausible when one considers the record that was presented to us,” which the Board viewed as bearing on petitioner’s “current insight with respect to the causative factors of these crimes,” and that the “gaps” in the version of the facts petitioner provided led the Board to question the progress petitioner had made in his self-help activities.
The presiding commissioner then addressed the Comprehensive Risk Assessment: “The Board has elected today to discount totally the doctor’s work because material that was available to the Board that would have been available to the doctor was in the ten-day packet. This obviously was something that was unavailable to the doctor. She didn’t have it, wasn’t able to ask you any questions, wasn’t able to formulate any opinions with respect to honesty and things that we would be interested in having her do. So rather than to even speak to it we’re going to discount the report because it didn’t have some of the essential information that was used by the Board.”
Petitioner maintains that the Board violated his due process rights by completely disregarding the positive risk assessment. As detailed above, Dr. Siemsen not only concluded that petitioner presented a low risk for violence but stated that he demonstrated a “fair amount of insight” regarding the factors that caused him to commit the life crime and commended him for “being honest about his responsibility for the murder for the first time.”
Under the regulations governing the Board of Parole Hearings, a Comprehensive Risk Assessment must be performed by a licensed psychologist employed by the Board prior to a life inmate’s initial parole consideration hearing and every five years thereafter. (Regs., § 2240, subds. (a), (b).) The assessment “will consist of both static and dynamic factors which may assist a hearing panel or the Board in determining whether the inmate is suitable for parole. It may include, but is not limited to, an evaluation of the commitment offense, institutional programming, the inmate’s past and present mental state, and risk factors from the prisoner’s history. The Comprehensive Risk Assessment will provide the clinician’s opinion, based on the available data, of the inmate’s potential for future violence.” (Regs., § 2240, subd. (b).)
“A psychological evaluation of an inmate’s risk of future violence . . . does not necessarily dictate the Board’s parole decision.” (In re Lazor (2009) 172 Cal.App.4th 1185, 1202.) But it is an important source of information bearing on the inmate’s suitability for release (ibid.), as evidenced by the fact that the regulations require a comprehensive risk assessment to be completed every five years and, if an inmate is due for a regularly scheduled parole consideration hearing in the five year period after such an assessment has been completed, require preparation of a “Subsequent Risk Assessment” to address “changes in the circumstances of the inmate’s case, such as new programming, new disciplinary issues, changes in mental status, or changes in parole plans.” (Regs., § 2240, subd. (c).) The Regulations further specify that substantial errors found in a psychological report must be assessed by the Board’s Chief Psychologist or designee, who must decide whether the report and its conclusions remain valid or a new report or new evaluation are necessary. “If a hearing Board identifies a substantial error in a psychological report, as defined by an error which could affect the basis for the ultimate assessment of an inmate’s potential for future violence, the Board’s Chief Psychologist or designee will review the report to determine if, at his or her discretion, a new report should be completed. If a new report is not completed, an explanation of the validity of the existing report shall be prepared.” (Regs., § 2240, subd. (e).) “If a hearing Board identifies at least three factual errors the Board’s Chief Psychologist or designee will review the report and determine, at his or her discretion, whether the errors invalidate the professional conclusions reached in the report, requiring a new report to be prepared, or whether the errors may be corrected without conducting a new evaluation.” (Regs., § 2240, subd. (f).)
Here, the Board concluded that the risk assessment should be “completely discounted,” apparently because Dr. Siemsen did not have the appellate decision and, therefore, was not able to ask petitioner about the version of the offense related in it and consider it in forming her opinion as to petitioner’s honesty. Rather than considering the possibility of having Dr. Siemsen reconsider her report in light of the appellate decision or even questioning petitioner itself about the decision, the Board elected to completely disregard the entire risk assessment. This was not a matter of the Board considering the assessment and disagreeing with it, as respondent suggests. The Board effectively concluded that Dr. Siemsen’s inability to utilize the appellate decision in assessing petitioner “invalidate[d] the professional conclusions” reached in her report (Regs., § 2240, subd. (f)) and reached its conclusions as to petitioner’s current dangerousness without reference to professional input. This was contrary to the Board’s own regulations, which, as we have said, require a current risk assessment to be prepared for use at a parole suitability hearing and provide that determinations as the effect of errors in an assessment on the conclusions reached be made by the Board’s Chief Psychologist or designee. (Regs., § 2240, subds. (e), (f).)
The Board’s concern with regard to petitioner’s description of his role in the murder differing from others’ descriptions is not unreasonable. “An inmate’s downplaying or minimizing aspects of the commitment offense reflects a denial of responsibility, and is probative of current dangerousness. (In re Shippman (2010) 185 Cal.App.4th 446, 461, [the defendant’s ‘repeated denials or downplaying [of his controlling nature toward women, which resulted in violence,] support an inference that he remains a threat to public safety’].)” (In re Tapia (2012) 207 Cal.App.4th 1104, 1112.)
The Board’s conclusion that petitioner was minimizing his role in the murder, however, was based on its unquestioned acceptance of the version of facts stated in the appellate opinion affirming petitioner’s conviction. Petitioner told the Board, as he had told Dr. Siemsen, that he hit the victim in the head, causing him to fall to the ground, after which he left the garage and Bryden stabbed the victim to death. The appellate opinion, by contrast, described Vandevort’s testimony that petitioner told him he (petitioner) had stabbed the victim in the heart. While this testimony was plainly sufficient as the basis for petitioner’s conviction, it was not demonstrably true: There was no physical evidence establishing who stabbed Friberg and Vandevort was not present when the murder occurred; he was an accomplice testifying under immunity and part of his account (relating to burial of the corpse) was contradicted by his wife’s testimony. Further, Vandevort gave a different account to the police than what he described at trial. Under this third version of the facts, recounted in the probation report, Vandevort told the police that Bryden had told him petitioner hit the victim on the head with a baseball bat, then Bryden stabbed the victim in the heart and cut his throat after being instructed by petitioner to “finish the job” and to get a bigger knife.
Petitioner’s version of the events was not inherently implausible. While his account obviously minimized his role by denying he was the person who stabbed Friberg, petitioner unequivocally took full responsibility for the crime in his statements to Dr. Siemsen and at the parole hearing. He explained that while he had initially believed he was not responsible for the death because he had not inflicted the fatal blow, he had come to understand that he was fully responsible because if he had not incapacitated Friberg by hitting him on the head, the murder would not have occurred. He repeatedly expressed remorse and disgust with himself for taking Friberg’s life.
The Board is not required to accept an inmate’s account of the offense, even a plausible one. (In re Sanchez, supra, 209 Cal.App.4th at p. 974.) But the Board is not permitted to require an inmate to admit guilt for the commitment offense (§ 5011, subd. (b)), and “ ‘an inmate need not agree or adopt the official version of a crime in order to demonstrate insight and remorse.’ (In re Twinn (2010) 190 Cal.App.4th 447, 466; accord, In re Aguilar (2008) 168 Cal.App.4th 1479, 1491 [no requirement that prisoner must ‘ “admit his guilt or change his story to be found suitable for parole by the Board” ’].) These rules follow from ‘the fundamental consideration in parole decisions,’ which is ‘public safety’ ([Lawrence, supra,] 44 Cal.4th 1181), not readjudication of the offense, nor enshrinement of an official version of the crime.” (Sanchez, at p. 972.) Here, the Board accepted the truth of the facts as described in the appellate opinion and concluded that petitioner lacked credibility and insight, and therefore posed an unreasonable risk of danger and threat to public safety if released, without questioning petitioner about its concerns or considering the risk assessment that was supposed to provide a professional evaluation of petitioner’s current dangerousness. By uncritically “enshrining the appellate opinion on direct review as ‘the official record’ ” (id. at p. 973) and invalidating the risk assessment, the Board erred.
Moreover, the manner in which the Board handled the risk assessment reflects disregard for petitioner’s constitutional right to due process. As we have described, at the outset of the hearing the presiding commissioner stated that the Board did not have the appellate decision and therefore would use the summary of the life offense contained in the probation report as its basis for questioning petitioner. The prosecutor raised no question or objection. After the commissioners concluded their questioning, when offered an opportunity to question petitioner, the prosecutor declined. The prosecutor then based an impassioned argument in large part on the dishonesty reflected in petitioner’s account of the offense as compared to that in the appellate decision. The presiding commissioner, who at defense counsel’s objection stated he was following along in the opinion as the prosecutor read the facts into the record, did not explain how the originally missing opinion came to be found. The Board not only viewed the “gaps” between petitioner’s description of the offense and the facts related in the appellate opinion as demonstrating petitioner’s lack of credibility, it cited them as reason to question petitioner’s progress in self-help programs despite the many chronos discussing petitioner’s development and positive contributions. The commissioners then disregarded the risk assessment because Dr. Siemsen had not had an opportunity to question petitioner about the facts as stated in the appellate opinion without either discussing those facts with petitioner or considering the possible need for a revised risk assessment.
In short, after questioning petitioner about the life offense based on the summary presented in the probation report, the Board relied upon the different version of facts related in our description of Vandevort’s testimony at trial to conclude that petitioner lacked credibility and insight, and therefore would present a current danger if released, without benefit of professional input on this question and without opportunity for petitioner to address the issues with which the Board was concerned. “Evidence of lack of insight is indicative of a current dangerousness only if it shows a material deficiency in an inmate’s understanding and acceptance of responsibility for the crime.” (In re Ryner (2011) 196 Cal.App.4th 533, 548.) Petitioner repeatedly took full responsibility and expressed deep remorse for Friberg’s murder, he explained how he came to understand his responsibility for the crime and its impact on the victim and victim’s family, and his prison file documents progress in psychological and emotional development, abstinence from violence for over a decade, and a commendable work ethic. On this record, and without professional evaluation of the import of petitioner’s account of his conduct in light of Vandevort’s trial testimony, we find no nexus between the Board’s focus on the “gaps” in petitioner’s description of the life crime and the conclusion that he presents a current danger.
DISPOSITION
The decision of the Board is hereby vacated. The matter is remanded for a new parole suitability hearing consistent with due process of law and this decision (see Prather, supra, 50 Cal.4th at p. 244), to be held as expeditiously as possible.























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Kline, P.J.


We concur:


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Richman, J.


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Stewart, J.