In re RONALD SINGLER on Habeas Corpus.

Filed 3/26/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Story Continued From Part I ..

DISCUSSION

I

One year prior to the minimum eligible parole release date of an inmate sentenced to indeterminate prison term, the Board must normally set a parole release date . . . in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. (Pen. Code, 3041, subd. (a).) The Board shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting. (Pen. Code, 3041, subd. (b).)

The Board is required to establish criteria for the setting of parole release dates. (Pen. Code, 3041, subd. (a).) A panel of the Board must determine whether the life prisoner is suitable for release on parole, and [r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison. (Cal. Code Regs., tit. 15, 2402, subd. (a); further section references are to title 15 of the California Code of Regulations unless otherwise specified.) A parole date shall be denied if the prisoner is found unsuitable for parole under Section 2402(c), but [a] parole date shall be set if the prisoner is found suitable for parole under Section 2402(d). A parole date set under this article shall be set in a manner that provides uniform terms for offenses of similar gravity and magnitude with respect to the threat to the public. ( 2401.)

The regulations set forth six factors tending to demonstrate unsuitability for release on parole, including the inmates (1) commission of the offense in an especially heinous, atrocious, or cruel manner, (2) previous history of violence, (3) unstable social history, (4) prior sadistic sexual offenses, (5) lengthy history of mental problems, and (6) serious misconduct in prison or jail. ( 2402, subd. (c).)

The regulations also set forth nine factors tending to show suitability for release on parole, including (1) the absence of a juvenile record, (2) a history of reasonably stable social relationships with others, (3) tangible signs of remorse, (4) the commission of the crime resulted from significant stress, especially if the stress had built over a long period of time, (5) battered woman syndrome, (6) a lack of a history of violent crime, (7) increased age, which reduces the probability of recidivism, (8) marketable skills and reasonable plans for the future, and (9) responsible institutional behavior. ( 2402, subd. (d).)

The importance of those factors is left to the discretion of the parole panel ( 2402, subds. (c), (d)), and judicial review of the Boards parole decisions is very limited. This is so because parole release decisions entail the Boards attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts. (In reRosenkrantz, supra, 29 Cal.4th at p. 655 (hereafter Rosenkrantz). Such a prediction requires analysis of individualized factors on a case-by-case basis and, in this regard, the Boards discretion is almost unlimited. (Ibid.)

Thus, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added.) Only 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] . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Boards] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the courts review is limited to ascertaining whether there is some evidence in the record that supports the [Boards] decision. (Id. at p. 677.)

The factor statutorily required to be considered, and the overarching consideration, is public safety. (In re Scott, supra, 133 Cal.App.4th at p. 591 (hereafter Scott).) Therefore, the determination of suitability for parole involves a paramount assessment of the public safety risk posed by the particular offender. (In re Dannenberg (2005) 34 Cal.4th 1061, 1084 (hereafter Dannenberg); see also Pen. Code, 3041, subd. (b); 2401, 2402, subd. (a).) As previously noted, the decision to deny parole cannot be arbitrary or capricious. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)

Accordingly, the relevant test is not whether some evidence supports the reasons cited for denying parole, but whether some evidence indicates [an inmates] release unreasonably endangers public safety. (In reLee, supra, 143 Cal.App.4th at p. 1408, fn. & italics omitted (hereafter Lee);^[1]see also In re Tripp (2007) 150 Cal.App.4th 306, 313 [evidence must substantiate the ultimate conclusion that the prisoners release currently poses an unreasonable risk of danger to the public].)

Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolees release unreasonably endangers public safety. (Lee, supra, 143 Cal.App.4th at p. 1409.) For example, a seriously troubled adolescence, even for an 80-year-old inmate, might constitute some evidence of a history of unstable or tumultuous relationships with others. ([] 2402, subd. (c)(3).) It would not necessarily be some evidence of an unreasonable danger to public safety. (Id. at p. 1409, fn. 4.)

II

The Board does not dispute that all of the suitability factors are favorable to Singler. He has no juvenile or adult record. Other than his conflict with his wife, he has a stable social history. He has shown genuine remorse over his killing of his wife. He is over the age of 60, which means that he is of an age which reduces the probability of recidivism. He has made realistic plans for release. He has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. And there is significant evidence that he committed the crime as a result of significant stress in his life. ( 2402, subd. (d).)

This, the Board argues, does not mean Singler is entitled to parole. Asserting it need demonstrate only that a modicum of evidence supports any of the unsuitability factors, the Board argues the denial of parole is supported by evidence of Singlers lack of insight into what triggered the murder of his wife--specifically why he snapped and decided to kill [her] rather than simply scare her. According to the Board, Singlers inability to explain this supports its finding that he posed a risk of reacting in a similar way if confronted on parole with an acute loss of significant relationships or feelings of sudden betrayal in [a] relationship in which he is emotionally invested.

The problem with this position is its premise that Singler was unable to explain why he turned from intending only to scare Gayle to deciding to kill her. Actually, Singler did explain. According to him, after months of marital difficulty due to Gayles compulsive spending, he learned from Gayle that she was having an affair with another person, that she wanted to divorce him and take their children, that she had emptied their bank account, and that she threatened to leave him destitute. All of this, he said, caused him to be overcome by rage. He just completely blew it because of the heartbreak and loss of his dreams for the future.

Singler went on to explain that he recognized his response was unacceptable and that through therapy and numerous anger management and self-help programs and efforts, including his embracing Buddhism, he had learned appropriate methods to control angry impulses. In his words, because he recognized that he killed his wife in rage, he has been studying anger since day one in prison and has learned that the catalysts for anger may never change, but that he can change how he chooses to react.

All of the other evidence disclosed that Singlers efforts to learn anger and impulse control have been successful. Except for the destruction of a blanket when he was first incarcerated in 1983, Singler has been a model prisoner even though life in prison had presented a myriad of opportunities to snap from stress.

The psychological evaluations consistently described Singler as (1) having acted uncharacteristically on the night of the murder due to a loss of impulse control after being taxed beyond his coping ability; (2) having accepted responsibility promptly; (3) having embraced self-help courses; and (4) having achieved emotional stability.

As far back as 1986, a psychological evaluation described Singlers offense as an isolated episode provoked by a marital conflict and the result of an explosive release of frustration and anger which had been building[] up[,] over a period of several months.

An evaluation prepared in 1999 stated: Given Mr. Singlers somewhat conservative working class background and his difficulty in coming to terms with his wifes relationship with another woman, . . . he overreacted and emotionally lost control.

An evaluation in 1989 opined that Singler has learned from his experience, accepts responsibility for it, and would tend to approach even more serious situations in a very calm, rational manner.

A different therapist echoed this opinion in 1994, opining that Singlers maturation and experience in state prison would induce him to deal with volatile serious situations in an even more rational controlled fashion.

The psychotherapist who evaluated Singler in 1990, observed that he continue[d] to program in an outstanding and exceptional manner, and [i]n a less-controlled setting, such as return to the community, he is likely to hold present gains and continue improvement.

A psychologists report from 1995, which addressed whether Singler needed therapy, stated that limited clinical services would be more wisely utilized on other prisoners, and Singler is indeed unusual for a prison population, being free from the customary concerns with regard to public safety, emotional stability and personal responsibility.

An evaluation in 1999 described Singler as having been an active participant in a range of self-help groups and community based service type projects and, thus, he has gained significantly in emotional understanding and insights regarding himself.

Similarly, a 2002 evaluation described Singler as having taken steps to decrease his risk factors for future violent behavior.

And the most recent evaluation in 2006 stated that Singler had gained a higher level of maturity after participating in religious, educational, and occupational activities while in prison and that he had a low risk for violence outside of a controlled setting.

In sum, there is no evidence that Singler lacks insight into why he killed his wife. To the contrary, the evidence disclosed that for many years, Singler has understood the reasons why he killed his wife, has recognized that he significantly overreacted to his angry impulses in doing so, and has learned to harness in socially acceptable ways the anger arising from lifes inevitable frustrations.

III

We now turn to the question whether some evidence supports the Boards finding that the circumstances of the murder and disposal of the body demonstrate that Singler remains a danger to the public.

As we have already noted, the nature of the . . . offense, alone, can constitute a sufficient basis for denying parole. (Rosenkrantz, supra, 29 Cal.4th at p. 682.) An inmate may be unsuitable for parole if he 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. ( 2402, subd. (c)(1).)

Thus, under the regulations, for Singlers second degree murder of his wife to make him unsuitable for parole, it must have been committed in an especially heinous, atrocious or cruel manner, which is not measured by general notions of common decency or social norms, for by that yardstick all murders are atrocious. [Citation.] (Lee, supra, 143 Cal.App.4th at p. 1410.) This is so because malice is a necessary element of Singlers crime, and by definition it involves an extreme indifference to the value of human life, an element of viciousness, some callousness, and a degree of emotional insensitivity to the feelings and suffering of others. (Ibid.) Hence, an unsuitability determination must be predicated on some evidence that the particular circumstances of [the] crime--circumstances beyond the minimum elements of his conviction--indicated exceptional callousness and cruelty with trivial provocation, and thus suggested he remains a danger to public safety. (In re Weider (2006) 145 Cal.App.4th 570, 588, quoting Dannenberg, supra, 34 Cal.4th at p. 1098.) Otherwise, denial of parole based upon the nature of the offense alone might rise to the level of a due process violation . . . [and] would be inconsistent with the statutory requirement that a parole date normally shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . . [Citation.] The Boards authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmates current or past offenses should not operate so as to swallow the rule that parole is normally to be granted . . . [and] destroy the proportionality contemplated by Penal Code section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole, 25 years to life, and 15 years to life for various degrees and kinds of murder. (Pen. Code, 190 et seq.) [] Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date. [Citation.] (Rosenkrantz, supra, 29 Cal.4th at p. 683.)^[2]

Rosenkrantz emphasized, however, that the Board has great . . . and almost unlimited discretion in assessing the importance attached to the circumstances of an inmates crime in the Boards attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts; thus, judicial review of the denial of parole is extremely deferential to the Boards decision, i.e., a court does not independently assess the merits of the Boards analysis, [i]t 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, and a court can overturn the Boards decision only if it was arbitrary and capricious. (Rosenkrantz, supra, 29 Cal.4th at pp. 626, 654, 655, 657, 665, 677, 679.)

Strictly construing this directive of Rosenkrantz, we initially denied Singlers petition for writ of habeas corpus because, giving great deference to the Boards finding, we could not say it acted arbitrarily and capriciously in concluding that in reacting to the heated argument with his wife by getting a shotgun, loading it, and shooting her, and then dumping her body on the side of a rural road, Singler acted in a particularly egregious way--beyond that which was necessary for a conviction--because the shooting occurred in the family home while their two small children were present and, as one of the Board members observed, [e]ither child could have walked into that room (Rosenkrantz, supra, 29 Cal.4th at p. 683), and (2) the crime was therefore sufficiently heinous to demonstrate that Singler would remain a danger to the public if released on parole.

It appears, however, that in granting review and transferring the matter back to us for reconsideration in light of additional authorities, the California Supreme Court believes we construed the standard of review articulated in Rosenkrantz too narrowly and were too deferential to the Boards finding. We reach this conclusion because of the specific citations to authority included in the Supreme Courts order, i.e., authorities interpreting Rosenkrantz in a manner that appears to give courts greater leeway in reviewing the Boards finding that an inmate remains a danger to public safety.

Pages 594-595 of Scott, supra, 133 Cal.App.4th 573, which were specifically cited by the Supreme Court, held the fact an inmate may be deemed unsuitable for parole based solely upon the nature of the offense must be properly understood as follows: The commitment offense is one of only two factors indicative of unsuitability a prisoner cannot change (the other being his Previous Record of Violence). Reliance on such an immutable factor without regard to or consideration of subsequent circumstances may be unfair [citation], and runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation. [Citation.] The commitment offense can negate suitability only if circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison. Yet, the predictive value of the commitment offense may be very questionable after a long period of time. [Citation.] Thus, denial of release solely on the basis of the gravity of the commitment offense warrants especially close scrutiny. (Id. at pp. 594-595, fns. omitted; italics added.)

Pages 496-498 of In re Elkins, supra, 144 Cal.App.4th 475 (hereafter Elkins), which were specifically cited by the Supreme Court, quoted and applied the holding of Scott stated above, and emphasized language of a footnote on page 595 of Scott, supra, 133 Cal.App.4th 573, which says that a large number of legal and scientific authorities believe that, even where the passage of time is not a factor and the assessment is made by an expert, predictions of future dangerousness are exceedingly unreliable. (Id. at p. 595, fn. 9) Therefore, Elkins reiterated, whether the nature of the offense justifies the denial of parole must be viewed in light of subsequent circumstances, namely the rehabilitative efforts made by the inmate while in prison. (Elkins, supra, 144 Cal.App.4th at pp. 498-499.)

Page 1408 of Lee, supra, 143 Cal.App.4th 1400, which was specifically cited by the Supreme Court, also quoted and applied the holding of Scott stated above, emphasizing that some evidence of the existence of a particular factor--i.e., the nature of the inmates offense--does not necessarily equate to some evidence the [inmates] release [on parole] unreasonably endangers public safety. (Lee, supra, 143 Cal.App.4th at p. 1409, fn. omitted.)

The Board contends that Scott, Elkins, and Lee were wrongly decided. (See In re Jacobson (2007) 154 Cal.App.4th 849, 853, review granted Dec. 12, 2007, B195521 [We disagree with the recent decisions of some courts of appeal [citations, including Scott, Elkins, and Lee], which have transmuted the Rosenkrantz standard into one that permits the court to reweigh evidence, recalibrate relevant factors, and reach an independent determination whether the inmate continues to pose a risk to public safety].)

However, when it granted review in this case and transferred the matter back to us, the California Supreme Court cited Scott, Elkins, and Lee with approval, thus indicating the Supreme Courts view that those decisions do not conflict with Rosenkrantz.

Consequently, we obediently reassess this matter, applying the judicial gloss that Scott, Elkins, and Lee placed on the standard of review articulated in Rosenkrantz. As we now understand the test apparently embraced by the California Supreme Court, a court may overturn the Boards denial of parole based solely on the nature of the commitment offense if (1) a significant period of time has passed since the crime, (2) there is uncontroverted evidence of the inmates rehabilitation, and (3) the crime was not committed in such an especially heinous, atrocious, or cruel manner so as to undermine the evidence that the inmates rehabilitative efforts demonstrate he no longer would be a danger to society if released on parole.

Such is the case here.

As recounted in detail in our summary of the facts, ante, there was overwhelming, uncontroverted evidence that Singler immediately expressed genuine remorse for murdering his wife, and that during his 23 years of incarceration, Singler had learned through therapy, anger management classes, and other self-help programs how to deal in socially acceptable ways with anger that may arise from lifes inevitable frustrations, such that in the view of mental health experts, he posed a low risk of danger to the public if released on parole.

The fact that Singler disposed of Gayles body in a rural area did not make the crime so especially heinous, atrocious or cruel ( 2402, subd. (c)(1)(C)) as to undermine the evidence that his rehabilitative efforts demonstrated he no longer would be a danger to public safety if released on parole. His disposal of the body was not equivalent to abusing, defiling, or mutilating it during or after the offense. He says he simply attempted to evade detection by hiding the body. He revealed the location of the body the following day, and there is no evidence supporting a Board members concern that wild animals could have ravaged the body in the interim. (Elkins, supra, 144 Cal.App.4th at p. 498 [given the lapse of 26 years and the rehabilitative gains made by Elkins, the continued reliance on the fact that he dumped the body down a steep grade at Donner Pass did not amount to some evidence supporting the denial of parole].)

And the fact that Singler shot his wife as their children slept in the next room does not demonstrate the crime was so especially heinous, atrocious, or cruel that, despite Singlers rehabilitative efforts, he remains a danger to the public nearly a quarter of a century later. He did not attack, injure, or kill multiple victims; he did not carry out the offense in a dispassionate and calculated manner, such as an execution-style murder; the shooting did not demonstrate an exceptionally callous disregard for human suffering; and the motive for the crime was not inexplicable or very trivial. ( 2402, subd. (c)(1).) Rather, all the psychological evaluations and uncontradicted evidence disclosed that Singler, as he claims, committed the offense while experiencing an unusual amount of stress over a long period of time, which is a factor indicating suitability for parole. ( 2402, subd. (d)(4).) He became enraged upon learning that his wife was having an affair and that she planned to divorce him, take their children, and leave him destitute. This was an unacceptable reason to kill another human being--as are virtually all motives except for defense of self or others. However, viewed in context, it was not trivial, inexplicable, or dispassionate; and it did not reflect an exceptionally callous disregard for human suffering so as to undermine the uncontested evidence that his rehabilitative efforts showed he no longer would be a danger to public safety if released on parole. (See, e.g., In re Roderick (2007) 154 Cal.App.4th 242, 264-266; Lee, supra, 143 Cal.App.4th at pp. 1404, 1412.)

In sum, uncontested evidence established that Singler met every suitability factor listed in the regulations; his psychological evaluations were uniformly supportive; his Life Prisoner Evaluation Report was completely favorable and opined that he will reintegrate into society without incident; and his children, who were victimized by the murder, desired his release. Against this backdrop, Singlers crime, which occurred over two decades ago, was not so especially heinous, atrocious or cruel ( 2402, subd. (c)(1)(C)) to undermine the evidence that his rehabilitative efforts demonstrate he no longer would be a danger to public safety if released on parole. Therefore, the Boards decision to deny parole must be overturned, as indicated by the California Supreme Court in its order directing us to issue an order to show cause why the Board did not abuse its discretion and violate due process in finding petitioner unsuitable for parole in June 2006, and why petitioner remains a danger to public safety. (See Pen. Code,  3041; In re Rosenkrantz[,supra,] 29 Cal.4th [at p.] 683; In re Elkins[,supra,] 144 Cal.App.4th [at pp.] 496-498; In re Lee[,supra,] 143 Cal.App.4th [at p.] 1408; In re Scott[,supra,] 133 Cal.App.4th [at pp.] 594-595.) (Order granting petn. review, Apr. 25, 2007.)

DISPOSITION

The petition for writ of habeas corpus is granted because the evidence presented at the 2006 parole hearing does not support the Boards finding that Singler was unsuitable for parole at that time. The Board is directed to release Singler on parole unless, within 30 days of finality of this decision, the Board holds a hearing and determines that new evidence of Singlers conduct in prisonsubsequent to the 2006 parole hearing supports a determination that parole should be rescinded because he currently would present a danger to public safety if he is released on parole. (See  2450 et seq.; Rosenkrantz, supra, 29 Cal.4th at p. 626.)

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

RAYE , J.

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^[1] It is to this statement in Lee that the California Supreme Court specifically directed us in its order granting review and transferring the matter to us.

^[2] The paragraph above is taken from the page in Rosenkrantz that the Supreme Court cited in its order granting review and transferring the matter to us.