Filed 5/25/10 In re Scott CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Peter Paul Espinoza, Judge. Reversed with directions.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill and Charles Chung, Deputy Attorneys General, for Appellant.

Marilee Marshall & Associates and Marilee Marshall, under appointment by the Court of Appeal, for Respondent.

I. INTRODUCTION

Warden Ben Curry appeals from the trial courts August 25, 2009 order granting the habeas corpus petition of Darryl Scott.  The trial courts order vacated Governor Arnold Schwarzeneggers September 10, 2008 reversal of the April 24, 2008 determination of the Board of Parole Hearings (the board) to parole Mr. Scott who was serving three concurrent prison terms.  The basis of the gubernatorial reversal was: the especially atrocious nature of the killing and the extremely trivial nature of the motive; Mr. Scotts lacked insight into his crime; Mr. Scott would benefit from further self-help and group treatment; and, as a result, Mr. Scott posed a current unreasonable risk of danger to public safety.  The Attorney General argues that some evidence supports the Governors decision.  We reverse the trial courts order and reinstate Governor Schwarzeneggers reversal of the boards parole decision.

II. THE HEARING AND EVIDENCE BEFORE THE PANEL

When Mr. Scott arrived in state prison to begin serving his indeterminate term, he was subject to three concurrent sentences. On April 11, 1985, Mr. Scott had been convicted of selling cocaine base. (Health & Saf. Code, 11352.) Mr. Scott, who admitted selling the contraband, was placed on probation for three years on the cocaine base sales case. On February 29, 1988, Mr. Scott was sentenced to prison for 17 years to life for second degree murder and firearm use. (Pen. Code,  187, 12022.5.) On May 23, 1988, Mr. Scott was sentenced to prison for 12 years for attempted murder and inflicting great bodily injury. (Pen. Code, 187, 664, 12022.7.) Also on May 23, 1988, defendant was found in violation of probation and sentenced to prison for a four-year term for selling cocaine base. Mr. Scott had no juvenile record.

Prior to his arrest, Mr. Scott used marijuana periodically (about five cigarettes per week) and had tried cocaine and alcohol. According to the probation reports prepared in connection with the murder and attempted murder cases, on April 11, 1985, Mr. Scott was placed on three years probation on the condition he serve 66 days in county jail and perform 25 hours of community service in the cocaine base sale matter. Mr. Scott did not make a satisfactory adjustment while on probation.

According to the probation report prepared in connection with the murder case, the following occurred: The defendant, while armed with a .38 [caliber] handgun, shot the victim Mark Uribe, causing his death. [] . . . [A]t approximately 9:50 p.m. on November 21, 1986, the defendant was passenger in a 1986 Hyundai Excel, being driven by co-defendant George Wendall Glass. They went to the location of Anaheim Street and Broad Avenue . . . . While parked at the location, gang names were called out between the defendant and a group of people outside the vehicle.  . . .  [T]he defendant fired a .38 [caliber] handgun into the crowd standing outside a hamburger stand at the location. One of the shots hit the 15-year-old victim, Mark Uribe [(the minor)], in the head, fatally wounding him as the bullet entered the forehead and exited the rear of the head. At another point, the probation report states: Detective Terrell . . . was contacted. He indicates that the defendant is like a little leader in the 190th East Coast Crips. On the evening of the present offense, he was out looking for Bloods to shoot. In the present offense, he shot into a crowd and killed a 15-year-old boy, who was a non-gang member.

Immediately after the minor was shot to death, defendant and other gang members went to another hamburger stand. According to the probation report in the attempted murder case: [A] witness to the shooting . . . told sheriffs deputies that he and the victim were waiting to be served when both suspects entered . . . and approached the victim. He said that one suspect purposely bumped into the victim, asking him Whats up? The victim said nothings up. Without any warning or provocation, suspect number one pushed the victim in the chest area with both hands. The victim then struck suspect number one in the face with his right fist. After the victim struck suspect number one, . . . the defendant, took a gun out of the front waistband of his pants and shot at the victim twice. The victim then was chased out the west door . . . and was shot in the upper right back and lower right back. The victim in the second shooting, a rival gang member, was in critical condition.

At the current parole hearing, Mr. Scott described the killing of the minor thusly. Earlier in the day, Mr. Scotts fellow gang members came to his house. Mr. Scott described what had happened: [W]hat was taking place during that particular time was that a lot of guys at the high school were being jumped by older guys . . . in my community, so they came back earlier that day to my house with glass all stuck in their chests asking me could I come back and help them go back up there and fight the older guys. Mr. Scott described the incident involving the broken glass: [S]ome of my friends went up to the high school earlier that day and a lot of guys around my age came up there and attacked them and when they broke the windshield, the window, the glass scattered and struck their chests . . . . [] So when the guys came over with the glass struck in their chests, I told them what can I do for you. [] So later on that night I went up the street and talked to some guys, and they said well well go up to the high school and if we see the guys, well see whats going on if were going to get in a fight with them or whatever.

Despite the fact he was 22 years old, Mr. Scott continued to attend high school football games. He testified to the panel, After the football games, we come back to the high school and there was pretty much people from all around different parts of the community that go to the high schools and we hang out and talk and kind of be mischievous . . . . After arriving back at the high school, Mr. Scott testified the following occurred: [M]e and some of my friends were the first ones to arrive at the high school. There was no one there at the time so we went down the street . . . and we ended up at Broad and Anaheim where we saw . . .  [] the hamburger stand . . . on the corner and we saw at least about maybe 12 or 13 . . . gang members. According to Mr. Scott the 12 or 13 guys were rival gang members. Mr. Scott continued: I yelled out to them because they yelled out Blood and my codefendant . . . drove around the corner . . . and slowed down and as they began to move and scatter they was yelling Blood and moving so I pulled out the .38 from the glove compartment and just fired at them. Then we drove off down the street and turned right . . . and took off . . . . Mr. Scott denied knowing the rival gang members really hung at the corner where the shooting occurred or even having gone that far down Broad Street ever before.

Mr. Scott knew the gun belonged to a fellow gang member and it was in the glove box. Mr. Scotts group shared the gun. Mr. Scott testified he fired the gun four or five times. When asked why he took the gun on the trip down Broad Street, Mr. Scott testified: [W]e took the gun because earlier they say that them guys that had broke the car windshield had weapons on them. So we took the gun just in case it was needed and which I did use later on.

When asked what his intent was, Mr. Scott testified: My intent was just to scare them, make them scatter. Not knowing that it would hit any of them since the distance -- I must have been about 150 yards from them, so I didnt know if I hit any of them at the time. (Italics added.) Later while testifying, defendant indicated he thought the rival gang members were about to shoot at him: I dont know if they knew what I was doing. I didnt know what they were doing. So I actually thought that they was going to fire at us, so I fired at them, which I take full responsibility for my part in firing at them which was not right. Mr. Scott denied knowing the minor had been shot. According to Mr. Scott, the minor was in the wrong place at the wrong time. Mr. Scott initially lied to his mother about his involvement in the fatal shooting.

Approximately 10 to 15 minutes after murdering the minor, Mr. Scott, still armed, went to a nearby Carls Jr. restaurant. Mr. Scott described what happened: It was the same thing in the sense he was a rival. This guy named Sebastian Cornell, I really didnt like him. I never really had any altercations with him before but I know for a fact that he shot a few of my buddies before, but I figured that was their situation. I never really went and retaliated with him over that. Mr. Scott continued: This particular night in the mental status in which I was under I seen him and he saw at least maybe 17-18 of us standing in the parking lot . . . and I figured if he decided to get out of the car while he would see at least 17 people that dont like him, then he must be crazy enough to take on the challenge which I would try to produce with him. So I went up and said something to him and started a fight with him. []  . . .  We was fist fighting . . .  and . . . one of my friends . . . snatched me back . . . . Mr. Scott heard a shot but did not know where it came from inside the restaurant. After fleeing the restaurant, a friend gave Mr. Scott the weapon and the following ensued: So I went around the side of the restaurant and came back around to the front and Sebastian was standing . . . in the front of the restaurant . . . and as I came up when he turned around I fired at him about three times. Mr. Scott hit Mr. Cornell two times. Mr. Cornell was hit as he was turning around. After the second shooting, Mr. Scott gave the gun to a friend who threw it away. Mr. Scott was arrested three days after the two shootings.

Mr. Scott denied he was a leader of the gang. In fact, according to Mr. Scott, his gang had no leader. Mr. Scott was a member of the gang because it was like growing up around fellows who play sports. Mr. Scott explained why he participated in the shootings: I believe my mental statics at the time of being poor in education and not being able to achieve different goals that I thought I would be able to accomplish in life weighed down on me as a individual and pressure of being in a relationship of a young girl wanting to get engaged with me and then when you look at the time of year, which was November. It was Thanksgiving and Christmas coming up and she was expecting me to come big and buy gifts and start a family. I wasnt emotionally ready for that. I believe by then the press with all this at the time in my mind and not being able to achieve education, I gave up on myself. Mr. Scott also explained that he had been jumped by some Samoans and he could not continue to participate in sports.

Two of Mr. Scotts siblings were shot to death. One brother was shot in a dispute in a liquor store. Another brother, who was armed with a rifle, was shot to death by Los Angeles police officers. Mr. Scotts parents and sisters visited him in prison.

Dr. Sara Bowerman, a psychologist, examined Mr. Scott March 8, 2008. In her view, Mr. Scott gave a straightforward assessment of the minors murder and expressed appropriate remorse. In connection with the effort to kill Mr. Sebastian, Dr. Bowerman reported, In the case of his second charge of attempted murder, Mr. Scott reported being motivated by self-defense, because the victim brandished a handgun and fired first. Although previously diagnosed with an Antisocial Personality Disorder in prior psychological evaluations, Dr. Bowerman felt Mr. Scott no longer met the criteria for that diagnosis based on: his failure to have incurred a CDC Form 115 violation; the ability to refrain from fights while incarcerated; his humble, open and honest attitude; and his consistent, positive work evaluations. Dr. Bowerman believed Mr. Scott presented a low risk of future violence. Dr. Bowerman concluded: [T]his examiner is of the opinion that the inmate has explored the factors involved in his life crime fairly well. Mr. Scott has addressed and explored his commitment offense both within his self-help programs and by involving himself in some offered mental health classes and services even though he is a GP inmate and is generally precluded from these services. He expresses remorse for the impact of his crime on both his own and the victims family, innocent bystanders, and the victim himself. He takes full responsibility for his actions as it relates to his crimes.

On April 6, 2006, Dr. Jeff Howlin, a staff psychologist with an Ed.D degree, concluded, Due to the inmates lack of any CDC-115 violations throughout his entire incarceration period, it is felt that he would pose a less than average risk for violence when compared to this Level II inmate population. Dr. M.E. Gleason, Ph.D., a board certified forensic psychologist, reached a similar conclusion on December 22, 2003. Two psychologists reached similar conclusions in January 2000. In 1996, a staff psychologist concluded Mr. Scotts violence potential as below average relative to the inmate population. In 1991, Dr. Charles D. Willis, a board certified psychiatrist and neurologist, concluded, In a less controlled setting, such as a return to the community, he is considered probably likely to hold present gains.

While incarcerated, Mr. Scott: had no CDC Form 115 violations; in 2003, received a single Form CDC 128 violation for speaking to someone elses visitor in the visiting room; attended Alcoholics Anonymous and anger management classes; participated in the Basic Reentry Activity Group; had received vocational training in dry cleaning, landscaping, power tools, and upholstery and worked as an upholsterer and furniture finisher; participated in religious training including Bible studies; donated his prison earnings to assist churches outside the prison; attended choir and anger management classes and workshops entitled 40 Days of Purpose Driven Life, Lets Save America and Power of Prayer; completed a course in sexually transmitted and other diseases; and received his general equivalency degree after taking the test seven times. As a result of his attendance at Alcoholics and Narcotics Anonymous, Mr. Scott learned that he could not rely on himself to obey the law. Rather, Mr. Scott, a Christian who attends church and reads the Bible daily, testified, [I]t has allowed me to view myself in not depending on me or any other human to resolve my problems, but trust in God as who called me to give me an understanding of who I am as an individual. Mr. Scott had written letters to the minors mother and the Cornell family. The parties did not provide copies of those letters. Finally, Mr. Scott had received numerous favorable chronos.

In terms of parole plans, Mr. Scott had an opportunity to live with his parents or sister. He had received letters of support. Mr. Scott has a job offer as a camera operator editor with Designer Corner Productions and the opportunity to live in two homes owned by its owner, Janelle Scott. Edwin Walker, a family friend, offered Mr. Scott a job as a clerk. Perry Strouder wrote a letter offering Mr. Scott a position as a property maintenance person. Reverend Sherman Mitchell with the Southern Christen Leadership Conference in Victorville agreed to provide transitional housing and job placement assistance. Mr. Scott also had an M-2 advisor, James Potter, who resides in San Jose.

There are numerous documents presented to or considered by the panel and available to the Governor which were not attached to the petition, return or traverse and are not before us. Documents reviewed in Mr. Scotts central file and support letters have not been presented. The deputy district attorney referred to a letter drafted by Mr. Scott to the Sebastian family and the attempted murder reports and prosecutorial memoranda submitted in April 2007 by Deputy District Attorney Alexis Delagarza to the board. That letter was inconsistent with Mr. Scotts testimony. One of the reports, which was read into the record, stated Mr. Scott continued to use his gang moniker. When interviewed by Dr. Bowerman, Mr. Scott claimed to have been chased by Mr. Sebastian, who was armed with a handgun, and fired in self-defense. An investigative report which was read into the record and is part of the central file indicates a witness to Mr. Sebastians shooting emphatically stated only Mr. Scott was in fact armed. One of Mr. Scotts fellow gang members was interviewed. According to the report, which was read into the record, a fellow gang member stated Mr. Scott was the only person armed with a firearm when Mr. Sebastian was shot. Moreover, the parties have failed to provide us with the prior hearing transcripts. We have been provided only a portion of the hearing transcripts; the rulings by the panels on Mr. Scotts parole requests. The deputy district attorney adverted to Mr. Scotts prior fabrication during a prior hearing that Mr. Sebastian had a gun. An ensuing follow-up investigation was conducted by the district attorneys office. The district attorney memoranda was lodged with the board but has not been provided by the parties although, as noted, portions of it were read into the record.

III. THE GOVERNORS REVERSAL

The Governor acknowledged certain facts supporting the panels decision including: Mr. Scotts completion of educational and training programs; favorable reports by behavioral professionals; Mr. Scotts maintenance of family relationships; and Mr. Scotts plans to live with family and job offers. But the Governor concluded: Nonetheless the murder for which Mr. Scott was convicted was especially atrocious because Mr. Scott fired into a group, putting multiple people at risk and killing a bystander. When the rival group started to disperse, Mr. Scott had the opportunity to cease and withdraw. In fact, Mark Uribe was no threat to Mr. Scott. Yet Mr. Scott chose to fire at a group of people, showing extreme recklessness. There is also evidence that he premeditated, on some level, to commit murder, including evidence that he sought retaliation against rival gang members because of an incident earlier that day. According to the investigating officer from the Los Angeles Police Department, Mr. Scott was like a little leader in the Crips. After shooting Mr. Uribe, Mr. Scott then went to another location and fired two shots into the back of another victim, demonstrating an exceptionally callous disregard for human life and suffering. And Mr. Scotts apparent motiverevenge against rival gang memberswas extremely trivial in relation to the magnitude of the crime he committed. [] Mr. Scott said that he accepts responsibility for his actions and is remorseful. But I am concerned that Mr. Scott continues to claim that he shot Sebastian in self-defense, even though the record indicates that he shot Sebastian twice in the back while he was running away. Mr. Scotts explanation suggests that he does not yet have sufficient insight into the circumstances of the crime so that he can avoid such situations in the future. [] In addition, Mr. Scotts most recent mental-health evaluation stated that he could also benefit from continuing to explore the underlying triggers and psychological/personal factors which led to his choice to act in a violent manner on the evening of his instant offense. This evaluation, combined with the gravity of his offense and the evidence that Mr. Scott lacks insight into his crime, indicates to me that he would pose a current unreasonable risk of danger to public safety if released on parole. I would like to see continued good behavior in prison and a record that Mr. Scott has better insight into the circumstances of his offense. [] At age 44 now, after being incarcerated for more than 21 years, Mr. Scott made some creditable gains in prison. But after carefully considering the current record before me, including the very same factors the Board must consider, I believe his release from prison would pose an unreasonable risk of danger to society at this time. The Los Angeles County District Attorneys Office agrees, registering its opposition to parole with the Board. Accordingly, I REVERSE the Boards 2008 decision to grant parole to Darryl Scott.

IV. DISCUSSION

Penal Code section 3041, subdivision (a) states that one year prior to the inmates minimum eligible parole release date the board shall normally set a parole release date. Our Supreme Court has explained: Accordingly, parole applicants in this state have 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. ([In re] Rosenkrantz[ (2002)] 29 Cal.4th [616,] 654, italics added.) (In re Shaputis (2008) 44 Cal.4th 1241, 1258.) California Code of Regulations title 15, section 2402, lists the factors to be considered by the board in determining whether the inmate poses an unreasonable risk of danger to society if released from custody.^[1]The Governors power to review a decision of the Board is set forth in article V, section 8, subdivision (b) of the California Constitution, which states in part, The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor in making a parole suitability decision is subject to the same standards as those that apply to the board. (In re Shaputis, supra, 44 Cal.4th at p. 1258; In re Rosenkrantz, supra, 29 Cal.4th at p. 660.) In Shaputis, our Supreme Court held: Although the Governors decision must be based upon the same factors that restrict the Board in rendering its parole decision (Rosenkrantz, supra, 29 Cal.4th at p. 660), the Governor undertakes an independent, de novo review of the inmates suitability for parole. (Ibid.) Accordingly, the Governor has discretion to be more stringent or cautious in determining whether a defendant poses an unreasonable risk to public safety. (In re Shaputis, supra, 44 Cal.4th at p. 1258.)

Our Supreme Court set forth the standard for judicial review of a finding of an inmates unsuitability for parole, [T]he standard for review properly is characterized as whether some evidence supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.  (People v. Lawrence (2008) 44 Cal.4th 1181, 1191; accord In re Shaputis supra, 44 Cal.4th at p. 1255.) Our Supreme Court further explained: [T]he Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmates criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmates crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the . . . the Governor. (In re Shaputis, supra, 44 Cal.4th at p. 1255; accord In reLawrence, supra, 44 Cal.4th at p. 1221.)

The Governors interpretation of documentary evidence is entitled to deference. (In re Shaputis, supra, 44 Cal.4th at p. 1258; In re Rosenkrantz, supra, 29 Cal.4th at p. 677.) As our Supreme Court noted: Our deferential standard of review requires us to credit the Governors findings if they are supported by a modicum of evidence. (Rosenkrantz, supra, 29 Cal.4th at p. 658.) (In re Lawrence, supra, 44 Cal.4th at p. 1226; see also In re Aguilar (2008) 168 Cal.App.4th 1479, 1488.) Stated differently, our Supreme Court held: As we stated in Rosenkrantz, supra, 29 Cal.4th 616, however, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of 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 Governors 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 Governors decision. (Id. at p. 677, 174, italics added.) (In re Shaputis, supra, 44 Cal.4th at pp. 1260-1261.)

We now evaluate the Governors decision. First, the Governor found the murder was especially atrocious. Some evidence supports the Governors conclusion. Mr. Scott, a leader of the gang, fired into a crowd. As the Governor noted, Mr. Scott fired after the crowd began to scatter. It was after the crowd began to scatter and they yelled out the word Blood that Mr. Scott reached into the glove box, pulled out the handgun and fired it. Further, some evidence supports the Governors finding Mr. Scott acted in a calculated manner by planning the killing of the minor and attempted murder of Mr. Sebastian. Earlier in the day, a lot of guys were jumped by older guys in the community. The guys from the high school had glass from a broken windshield stuck in their clothing. As noted, Mr. Scott testified he asked the guys, [W]hat can I do for you? Mr. Scott conferred with his fellow gang members. Mr. Scott described their plan, [T]hey said well well go up to the high school and if we see the guys, well see whats going on if were going to get in a fight with them or whatever. Pursuant to the plan, Mr. Scott went to the high school after the football game and there was nobody present. As a result, Mr. Scott, accompanied by another gang member and armed with the handgun just in case it was needed, went to the corner of the first shooting and fired four or five shots killing the minor. Not satisfied, minutes later Mr. Scott accosted another rival Bloods gang member at a nearby Carls Jr. restaurant. Mr. Scott then shot Mr. Sebastian twice in the back. Although originally in critical condition, Mr. Sebastian survived his two gunshot wounds. It was perfectly appropriate for the Governor to consider the circumstances of the crime in determining the premeditation, willfulness and deliberation were presentelements beyond those in the crime of second degree murder. (In re Dannenberg (2005) 34 Cal.4th 1061, 1095; In re Rosenkrantz, supra, 29 Cal.4th at p. 683.) Moreover, the foregoing constitutes some evidence to support the Governors finding of an extreme disregard for human life on Mr. Scotts part. Further, the Governor could reasonably find the motive, revenge for prior gang disputes, was trivial. Also the explanation provided by Mr. Scott for his decision to participate in gang activities and the two shootings, he was weighed down by pressures including a girlfriends desire that they marry, is utterly trivial. Some evidence supports the Governors finding the murder was especially atrocious.

Second, the Governor found Mr. Scott continued to lack insight into the circumstances of the commitment offense. For example, Mr. Scott claimed to have shot Mr. Sebastian in self defense. There was evidence Mr. Scott was the only actor who was armed and shot Mr. Sebastian twice in the backhardly a self-defense scenario. Also, Mr. Scott claimed to have only intended to scare the group when the minor was shot. In fact the Governor could find that Mr. Scott was convicted of an intentional killingsecond degree murder. Moreover, the Governor reasonably could disregard Dr. Bowermans conclusion that Mr. Scott demonstrated remorse for the two shootings. Dr. Bowerman had no way of knowing when she prepared her March 8, 2008 report that later on April 24, 2008, during the hearing that Mr. Scott would claim he only intended to scatter the crowd at the hamburger stand when he fired four or five shots at them. No doubt, Dr. Bowerman was satisfied with Mr. Scotts statement to her that the shooting of Mr. Sebastian was in self-defense evidenced insight into the crime. But the Governor was entitled to disagree with Dr. Bowermans insight conclusion. As noted, there was evidence Mr. Scott shot Mr. Sebastian twice in the back. This was confirmed by one of Mr. Scotts fellow gang members and another eyewitness. Mr. Scotts mischaracterization of the shootings is some evidence he lacks insight into the effect of his gang affiliation and its relation to the killing and attempted murder. And there is some evidence Mr. Scott continues to use his gang moniker. The Governor could reasonably find that Mr. Scotts serial fabrications also demonstrate a lack of insight and failure to accept full responsibility. This lack of insight and failure to accept full responsibility for the killing and attempted murder, coupled with other circumstances, has been determined by our Supreme Court to be probative of an inmates current dangerousness. (In re Shaputis, supra, 44 Cal.4th at p. 1261, fn. 20 [In the present case, the Governors decision is supported by some evidencenot merely because the crime was particularly egregious, but because petitioners failure to take full responsibility for past violence, and his lack of insight into his behavior, establish that the circumstances of petitioners crime and violent background continue to be probative to the issue of his current dangerousness]; In re Lawrence, supra, 44 Cal.4th at p. 1228 [In some cases, such as those in which the inmate . . . has shown a lack of insight . . . the aggravated circumstances of the commitment offense may well continue to provide some evidence of current dangerous even decades after commission of the offense. [] . . . [W]here the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration].)

Third, the Governor found Mr. Scott would benefit from continuing to explore the dynamics that led to the shootings. Dr. Bowerman concluded Mr. Scott would benefit from continuing to explore the underlying triggers and psychological/personal factors which led to the shootings. Dr. Bowerman noted that although Mr. Scott had not participated in mental health programs, he would benefit from participation in self-help programs. Dr. Bowerman encouraged Mr. Scott to participate in introspective treatment groups if they were available. Dr. Bowermans report constitutes some evidence, when coupled with the circumstances of the crime and Mr. Scotts lack of insight and unwillingness to accept full responsibility for his past violent conduct, supports the gubernatorial determination to reverse the boards parole decision.

To sum up, we defer to the Governors interpretation of the conflicting documentary evidence. (In re Shaputis, supra, 44 Cal.4th at p. 1258; In re Rosenkrantz, supra, 29 Cal.4th at p. 677.) The Governors current dangerousness evaluation is supported by a modicum of evidence. (In re Lawrence, supra, 44 Cal.4th at p. 1226; In re Rosenkrantz, supra, 29 Cal.4th at p. 658.) Because the Governors measured decision reflects individualized due consideration of the specified factors as they relate to Mr. Scott, our review is limited to ascertaining whether there is some evidence in the record that supports the gubernatorial decision to reverse the boards parole order. (In re Shaputis, supra, 44 Cal.4th at pp. 1260-1261; In re Rosenkrantz, supra, 29 Cal.4th at p. 677.) As some evidence supports the Governors decision, the order granting Mr. Scotts habeas corpus petition must be reversed.

Our resolution of the appeal means other issues need not be discussed. We need not address the question of whether the trial court erroneously declined to direct the board to reconsider the issue of whether Mr. Scott should be paroled. Moreover, we need not discuss the question of the effect of the boards subsequent denial of Mr. Scotts parole request after the Governors September 10, 2008 reversal of its April 24, 2008 determination to release him.

IV. DISPOSITION

The August 25, 2009 order granting the habeas corpus petition filed December 26, 2008, is reversed. Upon remittitur issuance, a new order denying the habeas corpus petition is to be entered. Pending entry of the new order, our previously entered stay order shall remain in full force and effect. Upon entry of the new order denying the December 26, 2008 habeas corpus petition, the stay order shall dissolve.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

I concur:

KRIEGLER, J.

MOSK, J., Concurring

The Attorney General invokes only one ground of the Governors parole decision: Scott lacked adequate insight. (See In re Shaputis (2008) 44 Cal.4th 1241, 1252.) First of all, the question of insight concerns an event for which Scott is not serving his life sentence. Second, he conceded that the evidence was such that he did not shoot in self defense. Third, the 2008 evaluation reports that Scott takes full responsibility for his actions as it relates to his crimes and that he evidences gains in maturity, insight, and empathy/remorse for his crime. The trial court found there was no evidence in the record indicating that Scott lacks insight or remains a current risk of danger.

Scott has served 21 years in prison. He had no juvenile adjudications and one conviction for selling cocaine. He has not been disciplined at all in prison. He earned his GED, completed vocational training, participated in self-help programs, has received a favorable psychological evaluation, has plans to live with his sister if released, and has received job offers. In addition, he reports that he sends some of his income to churches outside the prison.

In In re Shaputis, supra, 44 Cal.4th at p. 1254, the Supreme Court said, the proper articulation of the standard of review is whether there exists some evidence that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor.

As to insight, this is not a situation as in Shaputis, supra, 44 Cal.4th 1241, in which Scott has failed to take responsibility for the murder or exhibited a pattern of violence or abuse prior to the killing. The remoteness of the commitment offense, the lack of any previous record of violence, Scotts institutional behavior and accomplishments while incarcerated, his parole plans, his psychological evaluations, all suggest that Scott is not a current danger to society if released.

The factor that the Governor focuses on is Scotts purported lack of candor in connection with one of the shootings. The Governor says, But I am concerned that Mr. Scott continues to claim that he shot Sebastian in self-defense, even though the record indicates that he shot Sebastian twice in the back while he was running away. Scott told the Parole Board that he heard shooting but learned it was by his friend. He said, I know on record I went and said that he brought a weapon out on me, but Im not sure because the cop didnt find a weapon on him when they came to the crime scene. . . . So I went around the side of the restaurant and came back around to the front and Sebastian was standing right in the front of the restaurant while everybody jumped in the cars and driving away and as I came up when he turned around I fired at him about three times. [] I hit him as he was turning around in the back two or three times. This account does not seem like one of self-defense. In the psychological evaluation of April, 2008, there is a sentence, In the case of his second charge of attempted murder, Mr. Scott reported being motivated by self-defense because the victim brandished a handgun and fired first. It appears that before the Parole Board Scott recognized that this was not accurate. Scott did not, as the Governor said, continue to claim the shooting was in self-defense.

So the issue is whether the psychologists report of what Scott said constitutes some evidence of dangerousness. As noted, that psychologist opined that Scott had a low likelihood to recidivate in a violent manner if released into the free community. I believe the Governors conclusion that Scott continues to claim self defense is not entirely accurate. (See In re Moses (2010) 182 Cal.App.4th 1279, 1307 [We agree with Moses that there is no evidence that he continued to maintain that he shot (victim) in self defense].) As stated in In re Moses, to the extent the Governor relied on discrepancies between Mosess version of events and other evidence, the Governor also failed to articulate any rational nexus between these discrepancies and current dangerousness. (Ibid.)

Although there is merit in the trial courts determination that there is not some evidence in the record that Scott now poses a threat to public safety, unlike the court in In re Moses, supra, 182 Cal.App.4th 1279, I would reverse the order and have the matter returned to the Governor to reevaluate his decision based on the record. In this case, I am willing to give the Governor the opportunity to make a determination based on a reevaluation in light of an accurate reading of the record. Accordingly, I concur in the judgment to that extent.

MOSK, J.

^[1] California Code of Regulations, title 15, section 2402, subdivision (b) lists the information to be considered as follows: Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoners social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoners suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability. Factors indicating unsuitability are set forth in California Code of Regulations, Title 15, section 2402, subdivision (c): Circumstances tending to show unsuitability include: [] (1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. . . .  [] . . . [] (2) Previous Record of Violence. . . . [] (3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others. [] (4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. [] (5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense. [] (6) Institutional Behavior. The prisoner has engaged is serious misconduct in prison or jail. On the other hand, suitability factors include: (1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims. [] (2) Stable Social History. The prisoner has experienced reasonably stable relationships with others. [] (3) Signs of Remorse. . . . [] (4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time. [] (5) Battered Woman Syndrome. . . . [] (6) Lack of Criminal History. The prisoner lacks any significant history of violent crime. [] (7) Age. The prisoners present age reduces the probability of recidivism. [] (8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release. [] (9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.