P. v. Missamore

Filed 4/17/07 In re Mason CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

On January 24, 2006, the Board of Prison Terms (Board) found Anthony Mason, who was serving an indeterminate prison term of 16 years to life with the possibility of parole for his conviction of second degree murder with use of a deadly weapon (Pen. Code, 187, 12022, subd. (b)), unsuitable for release on parole. Mason filed a petition for writ of habeas corpus in this court, alleging that the Board unconstitutionally denied him parole at his 2006 suitability hearing. We issued an order to show cause directed at the Director of the Department of Corrections and Rehabilitation (warden), and appointed counsel for Mason. We conclude that the Board did not violate Masons due process rights when finding him unsuitable for parole because some evidence supported the Boards decision. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz).) We therefore deny Masons petition for habeas corpus relief.

BACKGROUND

In 1982, Mason and another person went to the home of Masons 53-year-old mother-in-law, who was confined to a wheelchair. Mason reported that his companion told him that she had a large sum of money at her residence and the two men decided to rob Masons mother-in-law while she was asleep. At trial, Masons companion testified that Masons mother-in-law asked him to take her two-year-old granddaughter outside, leaving Mason alone with his mother-in-law. According to Masons companion, about 15 to 30 minutes later, Mason appeared and asked him for fresh clothing; Mason had blood on his clothing and his shoes. The following day, after Masons wife became concerned about her mothers welfare, Mason accompanied his wife back to the home of his mother-in-law. The mother-in-law was found dead inside the residence. She had been stabbed eight times; four of the wounds were fatal.

Mason denied that he was the one who committed the murder. He claimed that he remained outside while his companion entered the residence of his mother-in-law. According to Mason, his companion returned and told him that the victim had tried to hit him with her cane. Mason asserted that his companion stabbed her and took her money, which the two men divided. Mason claimed that he got blood on himself after he went back into the house. Once he became aware of the stabbing, Mason stated that he wanted to call the police, but he did not call because his companion threatened him.

Mason maintained that he was innocent, but his companion, who was given immunity for his testimony, testified against him. On September 12, 1982, a jury convicted Mason of second degree murder with use of a deadly weapon (Pen. Code,  187, 12022, subd. (b)). The trial court sentenced Mason to an indeterminate sentence of 16 years to life with the possibility of parole.

Mason had no prior record of convictions. He had been arrested for a battery on March 22, 1977, and for petty theft ( 484) on December 28, 1981. Both matters were dismissed.

While incarcerated, Mason had four official misconduct hearings known as CDC 115s. The first, in 1984, was for force and violence, and for threatening staff. Mason had a CDC 115 in 1984 for possession of marijuana and currency and another CDC 115 in June 1990 for being under the influence. He also had a CDC 115 in January 1990 for trafficking of narcotics.

In January 2006, Mason appeared before a two-person panel of the Board (Board panel) for his ninth parole subsequent hearing.^[1]The Board panel reviewed Masons disciplinary history and noted that he had four CDC 115s, but the last one had been in 1990. When asked about the offense related to trafficking narcotics, Mason explained that he had one balloon of cocaine and one balloon of heroin, which were found on him after his visit with his wife. He claimed that he did not have the drugs for either personal use or for money, but others in prison forced him to carry the drugs since he was not affiliated with anyone. He asserted that an old man in prison warned him to hide the drugs on his body and then make sure that he was busted. Consequently, he stuck one of the balloons all the way in him and left the other one hanging halfway out. He commented that the other inmates considered him a standup guy because he did not tell, but he had no choice but to hide the drugs.

When asked about prior drinking problems, Mason admitted that he was an alcoholic. He stated that he would not drink when out of prison and that he would go to Narcotics Anonymous and to Alcoholics Anonymous. The Board panel questioned Mason about his participation in Narcotics Anonymous and whether he practices the steps. Mason responded:  I practice in my way, and let me explain to you this.  First off, I think that the NA Program is a crutch that a lot of people need, so I don't want to bad mouth it.  But theres a part of it that I dont agree with, and that part is once an addict, always an addict.  I think you can stop being an addict.  I think if you used drugs when you were 20, and you live to be, and you stopped at the age of 30, and you live for 50 years and died at 80, you didnt die an addict.  But to say that you were an addict and you havent used drugs in 50 years, I think thats baloney.  But I dont say it in the group because I dont want to knock down what people are building up. . . .  Now, I believe, I believe that God can change me, you, and everybody else, but you have to be willing to let him change. . . .  I believe you can spread the positive parts of NA or AA, not the part that I just told you about. . . .  To learn the Steps word for word verbatim just to make a good show and dont practice them I think is a mistake.  Just understand a mistake, I mean, understand the Step as you understand it and practice it the way you want to practice it and dont drink no more.

The Board panel reviewed the letters in support of Masons parole and the letters in opposition. It also reviewed Masons parole plans with him. The Board panel noted that Mason had a classification score of 19, which is the lowest classification score that a life inmate can attain.

Mason stated that he was currently involved in an anger management class. Mason explained: The name of the program is Healing the Angry Heart.  I dont call it Anger Management because Im not angry no more.  I already know where Im at in my head and in my heart.  Im just taking it because Im bored.  Theres nothing else to do in that dorm. . . .  I know me better than anybody knows me, and I know Im not angry. Now, to say that Im a bit disappointed would be true because I honestly feel like this here is just the first step of the potential for me to get out. Its like making it to third base if Im found suitable, and then I have to deal with the Terminate [sic], the Governor, to get to home plate. See, and when youre dealing with someone who holds an office that high and you just a little person, its hard man. Thats why I consider me and others like me political prisoners. I understand whats going on, and if I dont understand it then Im mistaken. But I just kind of see it as a way thatits just so hard man. Its just hard. Im trying to do the right thing, so yeah, I go to it, I go to it, and I look at the video, then I leave out of there. Its a deeply spiritual program is what it is, and its about knowing ones self and giving yourself up to God, which Ive already done. I dont want to keep doing that stuff. It dont feel good.

The Board panel also reviewed the 2005 psychological evaluation of Mason. The evaluation indicated that Masons current level of insight and judgment regarding his commitment offense appeared to be good and supported a positive prediction of successful adaptation to community living. The doctor concluded that Masons risk for violent behavior within a controlled setting was considered to be low relative to the inmate population, and that his level of dangerousness was no higher than the average citizen in a community setting.

At the end of the hearing, the Board panel asked Mason if he had anything to say. Mason said that he did and he spoke about the victim. He commented: But Id like to say that I am deeply, deeply, deeply sorry that I lost a friend [the victim]. People always say, oh, its your mother-in-law, but she was more than that to me. We danced together. We went to the liquor store together. We went to the park together, and yes, we even, we got high together too. We did all kinds of things together. The fact that she was in a wheelchair makes itIm not trying to lessen her ability to walk, to make it look better, Im not trying to do that, but Toni, as we called her, was working the disability fraud thing. I mean, she could walk. She was a little, she wasnt like totally disabled or nothing. . . .

The two-person Board panel recessed for a short time to deliberate and then reconvened. The Board panel found that Mason was not yet suitable for parole, and issued a one-year denial. In finding that Mason was not yet suitable for parole, the presiding commissioner relied on, among other things, that Mason continues to need self-help and further therapy in order to face, discuss, understand, and cope with the stress in a nondestructive manner, and until progress is made the inmate continues to be unpredictable and a threat to others. The presiding commissioner also found the offense was carried out in a dispassionate and calculated manner and opposition to parole was expressed by the District Attorney of Alameda County and the Oakland Police Department.

The second commissioner also explained his reasons for denying parole: Mr. Mason, I was a little concerned about a couple of areas. Certainly, youre involved in self-help, but Ive got some concerns and questions about whether youre going through the self-help programs as a means of getting self-help, or youre simply going through the programs because youre going through them. When we talked about Narcotics Anonymous, you basically told me that there youre going, youre going through it, and youve been going through it, but you dont really buy in to the program in general. There are some things you agree with but some things you dont agree with, and it leads me to believe that particularly looking at your long-term substance abuse history that in the community Narcotics Anonymous would be a critical involvement. I disagree with the doctors report saying, you know, thats not critical anymore. And I dont see you making moves toward that. . . . He further commented that Mason was participating in programs because the Board asked him to do them, but he did not believe Mason was attending the programs for himself.

The presiding commissioner added: I thought the way you did your parole plan package was excellent. . . . Youre definitely well on your way [to reenter society]. Theres just these, you know, few areas that Commissioner Smith spoke about where we need to really see that you are committed, and youre not going to go out there and just say, okay, you know, Ill just do things my way now, and you know, Im out, and I really dont have a drinking problem, so Ill not go to [Alcoholics Anonymous], Im not going to go to [Alcoholics Anonymous]. I dont have a drug problem. Im not going to go to [Narcotics Anonymous]. And its all too easy for people to relapse into things, and then thats when they present a danger. . . .

Mason filed a petition for writ of habeas corpus in the superior court, challenging the Boards decision. The lower court denied the petition on August 2, 2006, without conducting an evidentiary hearing. Shortly thereafter, on August 31, 2006, Mason filed a petition for writ of habeas corpus in this court, again challenging the Boards decision. On November 16, 2006, we issued an order to show cause directed at warden and we appointed counsel for Mason. Pursuant to our order to show cause, warden filed a return, and Masons counsel filed a traverse brief on January 4, 2007.

DISCUSSION

I. The Statutory Framework and Judicial Review

When considering parole for an indeterminate life inmate, the Board first determines suitability for parole. If it finds the inmate suitable, the Board establishes a parole release date. [Citations.] Conversely, if the Board concludes that public safety requires a lengthier period of incarceration, parole will be denied. (In re Burns (2006) 136 Cal.App.4th 1318, 1325.) Penal Code section 3041, subdivision (a) reads: One year prior to the inmates minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in [Penal Code] Section 3041.5. . . . The release date 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, 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. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.

Subdivision (b) of Penal Code section 3041 reads in pertinent part, that [t]he panel or the board sitting en banc shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of the 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.

The Boards parole decision is guided by regulations, which direct the Board to consider six nonexclusive circumstances tending to show unsuitability (Cal. Code Regs., tit. 15, 2042, subd. (c))^[2]and nine tending to show suitability (id., 2042, subd. (d)). (See also In re Scott (2004) 119 Cal.App.4th 871, 888, 897 (Scott I).) Circumstances tending to show unsuitability include that the inmate: (1) . . . committed the offense in an especially heinous, atrocious or cruel manner. ( 2402, subd. (c)(1).) In deciding whether the crime was particularly heinous, atrocious, or cruel the Board is to consider the following factors: (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.

Other circumstances tending to indicate unsuitability for parole are that the inmate possesses a previous record of violence, has an unstable social history, has previously sexually assaulted another individual in a sadistic manner, has a lengthy history of severe mental problems related to the offense, and has engaged in serious misconduct while in prison. ( 2402, subd. (c).)

Circumstances tending to show suitability for parole are that the inmate has no juvenile record, a stable social history, has shown signs of remorse, committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time ( 2402, subd. (d)(4)), committed the offense as a result of battered woman syndrome, lacks any significant history of violent crime, is of an age that reduces the probability of recidivism, has made realistic plans for release, and has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Id., subd. (d).)

The specified unsuitability and suitability factors are general guidelines only. ( 2402, subds. (c), (d).) The Board is expected to consider [a]ll relevant, reliable information available . . . . Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability. (Id., subd. (b).) Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison. (Id., subd. (a).)

In Rosenkrantz, our Supreme Court held that the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, 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 the statute and regulation. If the decisions consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoners petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added; see also Scott I, supra, 119 Cal.App.4th 871; In re Scott (2005) 133 Cal.App.4th 573 (Scott II).)

By some evidence, courts have explained that [o]nly a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board]. . . . [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. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)

In denying relief in the present case, the court below did not conduct an evidentiary hearing. This is therefore an original proceeding in which we independently review the record. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) However, [r]esolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Board. (Ibid.)

II. Reviewing the Parole Decision for Some Evidence

When reviewing the Boards decision, [t]he test is not whether some evidence supports the reasons . . . for denying parole, but whether some evidence indicates a parolees release unreasonably endangers public safety. (In re Lee (2006) 143 Cal.App.4th 1400, 1408, fn. omitted.)

With regard to the suitability evidence, the Board panel noted that Mason did not have a juvenile record, had no prior criminal convictions, had no other history of violent crime, had a favorable psychological report of low risk of danger if released, had realistic parole plans, and had developed marketable skills to use upon his release. The record does not indicate that Mason committed the crime as a result of significant stress in his life.

Although it is not clear that a lack of remorse ( 2402, subd. (d)(3)) was the basis of the Boards decision, the Board panel clearly considered this factor when asking Mason questions about the murder. The Board panel noted that Mason had always and continued to deny that he had killed the victim. Further, Mason displayed little remorse when he commented that his mother-in-law was not really confined to a wheelchair and was attempting to defraud the system by pretending she was more disabled than she really was.

Rather than focus on Masons lack of remorse, the Board focused on two other factors when finding Mason unsuitable for parole. The Board panel specified that the offense was committed in an especially heinous, atrocious, or cruel manner and that Mason had not participated fully in the self-help programs. We consider each of these factors.^[3]

A. Lack of Personal Commitment to Self-Help Programs

The Board panel found that, even though Mason was attending Narcotics Anonymous meetings and an anger management program, his comments evinced a lack of personal commitment to these programs. Mason argues that this factor is a non-regulatory factor, although he concedes it can relate to a determination of whether his release poses an unreasonable public safety risk. We conclude, however, that participation in a group relates to the factor of institutional behavior, in that [i]nstitutional activities indicate an enhanced ability to function within the law upon release[.] ( 2402, subd. (d)(9).) Additionally, involvement in programs and classes is relevant to a prisoners social history (id., subd. (c)(3)) and can be indicative of the prisoners efforts to remedy an unstable social history. (See In re Van Houten (2004) 116 Cal.App.4th 339, 356.) Accordingly, we conclude that the Board panel properly considered as a regulatory factor participation in and commitment to self-help programs.

Mason argues the record establishes that he participated in rehabilitation programs and he notes that his sincerity regarding his rehabilitative efforts had never been questioned in his prior parole hearings. Further, he points out that he has committed himself to his reform for many years and has not used drugs or alcohol for over 15 years while attending Narcotics Anonymous. He asserts that, if the Board were concerned that he might lapse in his treatment after his release, it could have conditioned his parole on participation in substance-abuse treatment.

Mason also contends that the Boards focus on his comments that he did not agree with all of the steps in Narcotics Anonymous was misguided. He states that the fact that he realized that he did not agree with all of the steps reflected that he was practicing the principles in his way and making them more meaningful to him. Similarly, he maintains the Board made unfounded findings about his lack of commitment to the anger management program simply because he stated that he was taking it to relieve boredom. He noted that the program was spiritual, but he was not benefiting because he was no longer angry. He asserts that the Boards refusal to set a parole release date despite his showing that he had maximized his rehabilitation within the confines of prison is contrary to the fundamental premises of the parole system. (See In re Minnis (1972) 7 Cal.3d 639, 644.)

We, however, cannot agree with Mason that there was not some evidence that Mason had not personally committed to fully participating in the programs. Mason claims that he has a stable social history, but the record does not support this assertion. Of particular relevance is the fact that Mason has a history of drug and alcohol abuse. Prior to his conviction of second degree murder, Mason received an administrative-type discharge from the military for drug abuse. Additionally, Mason admitted that he was an alcoholic when he was younger. While in prison, Mason had a CDC 115 in 1984 for possession of marijuana and a CDC 115 in June 1990 for being under the influence.

Mason asserts that his drug offenses are more than 15 years old and therefore his history shows that he is rehabilitated. However, Mason admitted to having problems with alcohol prior to his imprisonment and he had drug offenses prior to his incarceration and during the first eight years of his imprisonment. Indeed, Mason stated at the parole hearing that he had used drugs with the victim, his mother-in-law. Given Masons past history of using drugs it was reasonable for the Board panel to be particularly concerned about his qualified commitment to the steps in Narcotics Anonymous. We recognize that past drug use in itself is insufficient to establish a reasonable belief that the prisoner will currently use drugs. (See In re Smith (2003) 114 Cal.App.4th 343, 370.) However, Masons statement that he practiced the steps in his way was of particular significance given that he also remarked that he did not agree with the premise of Narcotics Anonymous that once a person is an addict, the person is always an addict. Mason stated that he believed one could stop being an addict. Mason made this latter comment without providing any insight about the difficulty he may encounter in staying away from alcohol or drugs once outside an institutional environment. Masons history of substance abuse combined with his current lack of commitment to the steps of Narcotics Anonymous and his comments about addicts provide some evidence that, once released, he will begin to use drugs and alcohol outside his regulated environment and therefore his release at this time poses an unreasonable risk of danger to society.

Additionally, the Board panel expressed concern about Masons lack of commitment to his anger management program. Masons past establishes that he had problems with anger management. In addition to his second degree murder conviction where he stabbed his mother-in-law eight times, he was charged in 1979 with a battery, which was dismissed. During his early years in prison, he had a CDC 115 for force and violence and threatening staff. Mason told the Board panel that the anger management class did not benefit him because he was no longer angry. However, given the violence in his past, and Masons pattern of denial,^[4]the Board panel had reason to believe that Masons lack of commitment to the anger management program indicated a failure to appreciate his problems with anger in the past and that he therefore posed an unreasonable risk to society if released.

B. The Commitment Offense

The Board panel also found that the murder committed by Mason was especially heinous, atrocious, and cruel. To support a finding that the offense was committed in an especially heinous, atrocious or cruel manner there must be some evidence that the violence and viciousness of the inmates crime is greater than that which is minimally necessary to convict [the defendant] of the offense for which he is confined. ( 2402, subd. (c)(1); In re Dannenberg (2005) 34 Cal.4th 1061, 1095.)

The court in In re Dannenberg clarified that, in finding an inmate unsuitable for parole, the Board may rely solely upon the circumstances of the crime. (Dannenberg, supra, 34 Cal.4th at p. 1095.) The court recognized, however, that reliance upon the circumstances of the prisoners offense alone might contravene the inmates constitutionally protected expectation of parole. The court explained: [S]uch a violation could occur, for example[,] where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. [Citation.] . . . [I]n order to prevent the parole authority's case-by-case suitability determinations from swallowing the rule that parole should normally be granted, an offense must be particularly egregious to justify the denial of parole. (Id. at pp. 1094-1095.)

Similarly, and as we stressed in Scott II, reliance exclusively on the commitment offense, which is 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. (Scott II, supra, 133 Cal.App.4th at p. 595, fns. omitted.)

Mason argues that he has now been imprisoned for 25 years, long enough to be eligible for parole had he been convicted for first degree murder. He maintains that the remoteness of the commitment offense, the fact that he is now over the age of 50, as well as the evidence of his rehabilitation in prison establish that he does not currently pose an unreasonable risk to society.

In the present case, the commitment offense was not the sole factor relied on by the Board in denying Mason parole. Further, we conclude that, although much time has lapsed since he committed the murder, Masons own testimony establishes that his release would pose an unreasonable risk to society.

A jury convicted Mason of second degree murder. Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elementsi.e., willfulness, premeditation, and deliberationthat would support a conviction of first degree murder. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102, italics omitted.) Malice itself involves an element of viciousnessan extreme indifference to the value of human life. (People v. Summers (1983) 147 Cal.App.3d 180, 184.) All second degree murders will involve some amount of viciousness or callousness. (In re Weider (2006) 145 Cal.App.4th 570, 587.) Thus, we must consider whether Masons crime was more violent or vicious than minimally necessary to convict him of killing with malice aforethought.

The Board panel found that the murder committed by Mason was carried out in dispassionate and calculated manner in that the victim in this case, who was the inmates mother-in-law, . . . , age 53 at the time, was killed with eight stab wounds to her neck, liver, and arm, and she bled to death. And the victim was also in a wheelchair. And the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering in that indeed being stabbed and bleeding to death must certainly have been a painful and traumatic ending to life.

As we have previously noted, [a]ll second degree murders by definition involve some callousnessi.e., lack of emotion or sympathy, emotional insensitivity, indifference to the feelings and suffering of others. (Scott I, supra, 119 Cal.App.4th at p. 891.) In the present case, however, as the Board panel found, this murder was completed in an exceptionally dispassionate and calculated manner given that the victim was his 53-year-old mother-in-law, who was confined to a wheelchair. Further, there was no evidence that Mason was angry at his mother-in-law.

Mason contends that the regulation specifies that a dispassionate and calculated manner has to be an execution-style murder ( 2402, subd. (c)(1)(B)). However, the regulation explains that the murder must be committed in a dispassionate and calculated manner such as an execution-style murder (ibid., italics added). The regulation does not limit this factor to execution-style murder. Rather, execution-style murder is an example of committing a crime in an exceptionally dispassionate and calculated manner.

In the present case, other than Masons testimony about the plan to rob his mother-in-law, there is no explanation for Masons killing of his mother-in-law. The record reveals no evidence that Mason was angry or otherwise mentally or emotionally impaired. Thus, there is some evidence to support the Board panels finding that the commitment offense was committed in a dispassionate and calculated manner. Moreover, after killing his mother-in-law, the record establishes that Mason acted in a particularly dispassionate manner when he returned the following day to the crime scene with his wife, who had become concerned about her mothers welfare. Despite knowing that his mother-in-law was stabbed to death inside the residence, Mason went there with his wife without ever warning her about her mothers condition.

Masons commitment offense was also exceptionally callous in that he had a special relationship with his mother-in-law and, yet, he stabbed her eight times. The stabbings were particularly violent; four of the eight stab wounds were fatal. The number and severity of the stabbings against a helpless woman in a wheelchair established that Mason acted with extreme and sustained violence[.] (See, e.g., In re Dannenberg, supra, 34 Cal.4th at p. 1095.)

Masons comments at the parole hearing supported the conclusion of the Board panel that his commitment offense does have predictive value for future criminality. His own testimony provides some evidence that his release unreasonably endangers public safety. (In re Lee, supra, 143 Cal.App.4th at p. 1408; see also In re Elkins (2006) 144 Cal.App.4th 475, 499; In re Weider, supra, 145 Cal.App.4th 570.) At the parole hearing, Mason asserted that he wanted to call the police, but did not do so because his companion threatened him. Not only does Mason still attempt to blame his companion for his failure to call the police, Mason currently is attempting to discredit his mother-in-law, the victim. At the parole hearing, Mason explained: But Id like to say that I am deeply, deeply, deeply sorry that I lost a friend. People always say, oh, its your mother-in-law, but she was more than that to me. We danced together. We went to the liquor store together. We went to the park together, and yes, we even, we got high together too. We did all kinds of things together. The fact that she was in a wheelchair makes itIm not trying to lessen her ability to walk, to make it look better, Im not trying to do that, but Toni, as we called her, was working the disability fraud thing. I mean, she could walk. She was a little, she wasnt like totally disabled or nothing. . . .

Although time has passed since Masons crime, Masons own testimony, which attempted to discredit the victim and blamed his companion for his failure to call the police after the murder, supports a finding that his release would pose an unreasonable risk to society.

C. Masons Parole Suitability

Mason argues that the Board failed to consider the fact that Mason is over the age of 50, which should have weighed in favor of parole. He also argues that he has a stable social history that should have been considered as a favorable factor. Mason asserts that the Boards failure to consider these factors establishes that it did not give due consideration to all of the factors in accordance with legal standards. (See In re Rosenkrantz, supra, 29 Cal.4th at p. 658.)

As discussed earlier, for the past 15 years Mason does have a stable social history, but he had problems with drugs and violence prior to his incarceration and during the early years of his incarceration. The Board properly considered Masons social history. As for the Boards failure to mention Masons age, the Board does not need to articulate each factor it considers in a parole hearing (Scott I, supra, 119 Cal.App.4th at p. 898). The record establishes that the Board considered the regulatory factors.

We conclude that some evidence supported the Boards finding that Mason failed to participate fully in programs in prison and supported a finding that his commitment offense was especially heinous, atrocious, and cruel such that his release from prison would pose an unreasonable risk to society.

DISPOSITION

The requested petition for writ of habeas corpus is denied.

_________________________

Lambden, J.

We concur:

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Kline, P.J.

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Haerle, J.

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^[1] The parties report that this was Masons tenth subsequent hearing, but the record establishes that he had his eighth subsequent hearing and received a one-year denial on July 26, 2004. Thus, the record indicates that this is Masons ninth subsequent hearing.

^[2] All further unspecified section references and all further references to regulations are to title 15 of the California Code of Regulations.

^[3] The Board panel also mentioned that the district attorney and the police agency that investigated the murder opposed parole. Although the Board panel mentioned this opposition as a basis for its decision, it provided no further explanation. We therefore simply note the Board panel considered this opposition to parole when issuing its decision.

^[4] At the parole hearing, Mason denied the following: that he had an anger problem, that he killed his mother-in-law, and that he had trafficked drugs in prison for personal use or for money. With regard to the latter incident, he claimed that other inmates forced him to traffic drugs and he acted in a manner to ensure that he would be caught. Similarly, he blamed his failure to call the police after his mother-in-law was killed on someone else; he stated that he wanted to call the police but did not because his companion threatened him.