In re ALFRED WILLIAM RODERICK

Filed 8/17/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Story continued from Part III .

The majority, relying upon Barker, supra, opines that fewif anymotives would not be trivial relative to the kind of findings that are required to convict on first or second degree murder. (Maj. opn. at p. 23, original italics.) Indeed the language relied upon by the majority from Barker states,  Given the high value our society places upon life, there is no motive for unlawfully taking the life of another human being that could not reasonably be deemed trivial.   (Barker, supra, 151 Cal.App.4th at p. 374.) This analysis ignores the fact that the governing regulations specifically direct the Board to consider whether [t]he motive for the crime is inexplicable or very trivial in relation to the offense. ( 2402, subd. (c)(1)(E).) If properly evaluated, the motive would be compared to the circumstances of the commission of the underlying offense, and if it was trivial in comparison to the crime committed, that would support a finding that the commitment crime was egregious.

Even if the Board in the present case did not generally rely upon Rodericks motive for committing the crime, at the very least it specifically relied upon Rodericks missed opportunities to diffuse the situation and avoid the escalation which led to the murder. The majority opines, however, that it was inappropriate for the Board to consider these missed opportunities to avoid committing the crime, as that is not a specifically enumerated factor under section 2402, subdivision (c)(1)(A)-(E). The factors listed there, however, should not be considered all inclusive and are intended as guidelines to, rather than limitations upon, the types of factors that the Board can consider in determining whether the offense was carried out in an especially heinous, atrocious, or cruel manner. As the court explained in Dang v. Ornoski, supra, 2006 WL 3041096 at p. 6, the list of circumstances in section 2402(c) is nonexclusive, and section 2402(b) specifically allows the [Board of Prison Terms] to consider a great range of relevant and reliable information . . . . (Accord, Paluzzi v. Kane (N.D.Cal. Oct. 23, 2006, No. C 06-801 SI) 2006 WL 3020919 at p. 6 [the list of circumstances in section 2402, subdivision (c) is nonexclusive]; Elkins v. Brown (N.D.Cal., Dec. 21, 2006, No. C 05-1722 MHP) 2006 WL 3782892 at p. 7 [same].)

Similarly, the factors enumerated in section 2402, subdivision (c)(1)(A)-(E) should not be read to limit the Boards discretion in determining whether a crime was committed in an especially heinous, atrocious, or cruel manner. The language of the regulation itself supports this interpretation. ( 2402, subd.(c)(1) [The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: [] (A) Multiple victims were attacked, injured or killed in the same or separate incidents.]; Rosenkrantz, supra, 29 Cal.4th 616 at p. 653, fn. 11 [Factors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner include the following . . . .], italics added.) Indeed In re Morrall reached exactly that conclusion, indicating that the factors listed in section 2402, subdivision (c)(1)(A)-(E) to be considered in determining if the crime was carried out in an especially heinous, atrocious, or cruel manner, are nonexclusive. (Morrall, supra, 102 Cal.App.4th at p. 301.)

In In re Smith (2003) 114 Cal.App.4th 343, 368, the fact that the petitioner had an opportunity to stop the crime but continued on with it, along with several other facts about the manner in which the crime was committed, was relied upon as supporting a finding that the crime was particularly egregious. There was some evidence in the record to support the Boards similar conclusion in the present case. There is evidence that Roderick killed the victim by inflicting multiple knife wounds, with a trivial motive, and that he had opportunities to prevent the crime from occurring. Just as in Smith, this is some evidence supporting the Boards finding that the circumstances of the commitment offense weighed against suitability for parole.

The majority relies, in part, upon Rodericks account that it was the victim who initially pulled the knife on him, in concluding that the motive for the crime was not less significant than in other cases. (Maj. opn., ante, at p. 22.) Other than defendants account of the crime, which both the investigating officer^[1]and the district attorney indicated conflicted with both physical evidence and witness accounts, and which was apparently rejected by the jury, there was no indication that the victim initiated the physical altercation, or that he initially had the knife. (See Paluzzi v. Kane, supra, 2006 WL 3020919, at p. 6 [district attorneys statement could not be independent basis for denying parole, but was relevant in countering petitioners characterization of killing].)

According to Rodericks statement to the probation officer, and apparently his testimony at trial, the victim was armed with the knife and pulled it on Roderick. A struggle ensued, and Roderick was able to get control of the knife. Roderick claimed that he stabbed the victim with the knife in self-defense as the victim kept trying to throw Roderick down, and that was when the fatal wound was administered. Had the jurors accepted Rodericks version of the events, they would have either acquitted him (if they believed that he was acting in self-defense) or found him guilty of manslaughter (if they believed he acted in an honest, but unreasonable need to defend or in the heat of passion). Because jurors convicted him of second degree murder, it appears they rejected his story. The majority unreasonably carves out one small part of Rodericks account, that the victim initially had the knife, concludes that the jury believed that (but nothing else that Roderick said), and relies upon that version of the events. A more reasonable conclusion is that the jury rejected the entirety of Rodericks version of the events, including who initially had the knife.^[2]

In any event, the interpretation of the facts, and the weight to be given to the circumstances of the offense, are matters for the Boards determination. As the court indicated in Rosenkrantz, supra, 29 Cal.4th at page 679, Although the [Board] is required to consider whether the prisoner committed the crime as the result of significant stress in his or her life, the importance attached to this circumstance is left to the judgment of the [Board] . . . . [O]ur inquiry strictly is limited to whether some evidence supports the [Boards] assessment of the circumstances of petitioners crimenot whether the weight of the evidence conflicts with that assessment or demonstrates that petitioner committed the offense because of extreme stress. (Italics added.)

The majority concludes that [t]o state that a defendant could have just left or could have just gone home says nothing more than the defendant could have chosen not to pick the fight or mortally wound his victim; these facts do not describe the manner in which the murder was committed.  (Maj. opn., ante, at p. 24, original italics.) That may be true, but the same could be said regarding ones motive to commit the crime, and yet section 2402, subdivision (c)(1)(E) indicates that a trivial motive for committing the crime is a factor to consider in determining the gravity of the offense. Again, the opportunity to avoid a crime goes to the motive for committing it; even if it does not, however, the Board is not restricted from considering factors other than those specifically enumerated in determining the gravity of the commitment offense.

While I agree with the majority that the manner in which the commitment crime here was carried out was not otherwise heinous, atrocious, or cruel, there was evidence that the victim died from multiple knife wounds inflicted by Roderick, that the motive for the commitment offense was trivial in comparison to the crime committed, and that Roderick ignored opportunities to avoid committing the crime. There was, therefore, some evidence to support the Boards reliance upon the gravity of the offense, and their implied finding that it was more egregious than required by the minimal elements of second degree murder. However, the Board did not rely on the nature of the commitment crime alone in finding Roderick unsuitable for parole, and indeed this circumstance did not appear to be the primary focus of their findings.^[3]

(2) The Prisoners Social History

Again, although not articulately stated, the Board relied upon Rodericks unstable social history.^[4] Section 2402, subdivision (c)(3) indicates that an unstable social history (a history of unstable or tumultuous relationships with others) is a circumstance tending to show unsuitability for parole. There is some evidence in the record to support this circumstance.

The record indicates that Roderick was raised by his paternal grandmother after his parents divorce (when he was an infant), that he never had contact with his estranged mother until he was 16 (although she lived within 40 miles of his home), and that he never established a relationship with her. Roderick stated at the parole hearing that he also never had a relationship with his father, because he did not care for his stepmother. Roderick dropped out of high school after the 11th grade. His first marriage ended in divorce after three years. Additionally, as specifically referenced by the Board, Rodericks extensive criminal history and abuse of alcohol are also indicative of an unstable social history. Factors such as the prisoners criminal history, dropping out of high school, and drug abuse have been found to support reliance upon the unstable social history circumstance in finding unsuitability. In Robles v. Solis (N.D.Cal. Oct. 12, 2006, No. C 04-2529 CRB) 2006 WL 2934086 (Solis), the court relied upon the petitioners street-gang lifestyle, resulting in multiple juvenile arrests, and the fact that petitioner was on probation at the time of the commitment offense, as showing an unstable social history. (Id. at p. 3.) In Dang v. Ornoski, supra, 2006 WL 3041096 at pp. 6-7, the Board properly relied upon the prisoners dropping out of high school, running away, and joining a gang as indicative of an unstable social history, despite his unfortunate history as a Vietnamese refugee. In Elkins v. Brown, supra, 2006 WL 3782892 at p. 7, the court similarly found that the Board properly relied upon the prisoners limited past criminal history and drug abuse as indicating an unstable social history. (Accord, Paluzzi v. Kane, supra, 2006 WL 3020919 at p. 6 [prisoners past drug abuse and past poor family relationships (although now healed) some evidence supporting unstable social history].)

There are also facts in the record that could arguably indicate that Roderick has had some stable social relationships. First, he was married for 20 years, although he was divorced long before the commitment offense. He spent much of those 20 years behind bars, a fact that could be argued to either show a very stable relationship that endured despite forced separation, or which could be argued to lessen the value of this long-term marriage as indicative of stable social relationships that would prevent the prisoner from reoffending in the future. His crimes during this period were numerous and included not only several alcohol-related offenses (indicating abuse of alcohol), but also felonies and crimes of violence. Additionally, one of his arrests during this time period was for vagrancy. (Pen. Code  647.6.)

Roderick has an adult daughter, Angela Stapp, who has offered him a place to reside after he is paroled. Ms. Stapp was 21 years old when the probation report was prepared in 1985. Again, this relationship might be seen as a stable social relationship were it not for the fact that Roderick spent many of the years that Ms. Stapp was growing up either in jail or state prison, where of course he has also spent the last 20 years. While it could be argued that her support of her father indicates a stable social relationship that has survived their years of separation, it could also be argued that Rodericks daughter never really had the opportunity to have any relationship with her father, much less a stable one. Given Rodericks criminality and alcoholism during the pertinent periods of time, neither his relationship with his ex-wife, nor his relationship with his daughter, is the type of stable social relationship that has predictive value, that is, neither relationship would indicate that Roderick would be able to function in society without returning to his old ways.

In any event, the fact that there was evidence that might arguably indicate that Roderick might have some stable social relationships does not negate the evidence that he did not have an overall stable social history. Applying the correct standard of review, while there was evidence to support a contrary conclusion, there was some evidence in the record that Rodericks social history was not stable.^[5]The Boards reliance on this factor was supported by a modicum of evidence in the record; nothing more is required. As noted previously, cases have relied upon a prisoners past criminal history and drug abuse alone as indicative of an unstable social history. Here, there is ample evidence of both an extensive criminal history and severe alcohol abuse. These facts, along with the other indications of a lack of stable social history, support the Boards reliance on this circumstance. However, this circumstance also did not appear to be the primary basis of the Boards finding of unsuitability for parole.

(3) The Prisoners Attitude Toward the Commitment Offense

The Board also relied upon Rodericks attitude toward the commitment offense, pursuant to section 2402, subdivision (b), which indicates that the Board should consider the prisoners past and present attitude toward the commitment offense. The Board specifically indicated that the prisoner needed to develop insight into the impact of his criminal behavior and in particular, the impact of this crime where a man lost his life. Further, the Board found that the prisoner needed to understand the underlying factors that led not only to this commitment offense, but also to his entire criminal history . . . . This circumstance did appear to be one of the primary reasons the Board found Roderick unsuitable for parole.

One past psychological report (2003 report of E. W. Hewchuk, Ph.D.) indicated that Roderick talked openly about the circumstances of the instant offense, and his comments reflect a new sense of insight into his incarceration. He is fully remorseful, and aware of the effect of his actions on the victims family. In 1999, M. E. Carswell, Ph.D., stated that [t]his inmate is very remorseful for causing the victims family grief, and he is as sorry for taking this time away from his own family.^[6]The majority relies upon these past reports in concluding that [w]e see no evidence to support a conclusion that Roderick lacked insight into the impact of his criminal behavior or his commitment crime. (Maj. opn., ante, at p. 28, original italics.) The majority goes on to find that Roderick provided a less than incisive explanation for his chronic criminality, but his responses also reflected acceptance of his alcoholism, acknowledgement of responsibility for his crimes, remorse, and shame.^[7] (Maj. opn., ante, at p. 30.)

The inmates responses to questions posed by the Board at the parole hearing, however, belie earlier indications in psychological reports of remorse and insight into his incarceration. When asked why his criminal history was so long,^[8]Roderick replied, Stupid is all I can tell you. Obviously responding negatively to the inmates attitude as expressed in this answer, the Board pressed him further, asking, Does that make sense to you? Roderick replied that it did not. The Board then inquired, What kind of answer is that? Roderick replied, I dont know. The Board then tried to get Roderick to express some reason for his long criminal history by asking if he committed the crimes because he thought it was exciting, and expressed that I hear all kinds of reasons for criminal behavior and you just dont seem to know why you were doing it. Roderick replied, It dont make sense, Ill agree with you. The Board then tried to lead the inmate into a possible explanation for his criminality, asking if he had a substance abuse problem, and Roderick admitted that he was drinking. When asked if he was an alcoholic, Roderick replied, Evidently were, I was drinking too much. The inmate expressed that he only drank when he wasnt working.^[9]The Board then asked again why Roderick committed all these crimes, if it wasnt to support a drug or alcohol problem, and since he had a family. Roderick could never articulate any reason why he led such a long life of crime, and he was unable to draw a connection between his alcoholism (which was quite extreme, given the number of alcohol-related crimes he was arrested for over the years) and his criminal history.

As to the commitment offense, Roderick indicated that the victim produced the knife initially, Roderick gained control over the knife, and then the victim was fatally injured during a struggle over the knife. This was apparently largely the same account of the crime that Roderick has repeated over the years during prior parole hearings, and which has been reiterated in psychological reports (including the 2005 report). Roderick did originally tell the probation department, and apparently testified at trial, that he stabbed the victim during a struggle over the knife, during which the victim kept trying to throw him down, and that he was acting in self-defense. The investigating officer told probation that this account of the crime was inconsistent with the physical evidence and witness accounts. Further, Rodericks claim of acting in self-defense was rejected by the jury. Rodericks testimony at the 2005 parole hearing, however, did not include a specific claim that he was acting in self-defense, but did include an admission that he intentionally stabbed the victim, without any real explanation as to why he did so.^[10] The district attorney at the parole hearing argued that Rodericks account was inconsistent with the victims injuries, the statements of the witnesses, and the verdict of the jury. As argued by the prosecutor at the parole hearing, Roderick still showed no remorse for the killing and still seemed to take the position that he had no choice but to kill the victim. (See Paluzzi v. Kane, supra, 2006 WL 3020919 at p. 6 [proper consideration of district attorneys argument].)

Rodericks attitude toward the current offense, both in terms of understanding why it occurred and showing remorse, as expressed at the parole hearing, was poor. The Board was present at the hearing and was able to evaluate Rodericks credibility, sincerity, and attitude. The Board was entitled to give the prisoners own testimony, demeanor, and attitude more weight than it did past psychological reports.^[11]We are not permitted to substitute our judgment on those issues for that of the Board. The fact that there is evidence in the record regarding this circumstance which would support a finding of suitability (the prior psychological reports) does not negate the evidence in this regard which supports a finding of unsuitability. Resolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board. (Rosenkrantz, supra, 29 Cal.4th at p. 656.) We should not engage in an examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by [the Board]. [Citations.] [Citation.] (Id. at p. 665, original italics.) In the present case, even though there may have been evidence in the record to the contrary, there was some evidence supporting the Boards determination that Rodericks attitude toward the commitment offense weighed in favor of unsuitability; that is all that is required.^[12] The fact that the majority may read Rodericks responses differently is of no import under the deferential standard of review applicable here.

Finally, the majority recognizes that Board members, like trial judges, are in the best position to evaluate the credibility and attitude of the prisoner, and that we must defer to their judgment on those issues. The majority concludes, however, that [i]t was only the content of Rodericks responses [not his attitude] that did not satisfy the panel, citing the fact that the Board took him to task when it was upset with his attitude. (Maj. opn., ante, at p. 29, fn. 26.)^[13]The portion of the record that the majority cites to in support of this position does little to bolster their conclusion. The comments by the Board member cited by the majority come from the prisoners 1994 parole hearing, after the Presiding Commissioner had stated the ruling of the Board and turned to Deputy Commissioner Mar for any concluding comments. Mar remarked, Yeah, I have one comment. Mr. Roderick, youve been in prison as long as Ive worked in prisons, and what you give me in your appearance today is a very nonchalant, indifferent attitude about your whole situation, about your life history and the crime. And Im really puzzled by the solution as to what can the State or what can you do to keep yourself out of prison, which I dont think you really care much about in or out of prison. (Italics added.) The fact that a Board member, at a hearing some 11 years before the hearing at issue here and with completely different Board members, specifically chose to take Roderick to task for his attitude does not indicate that Board members were not similarly impacted by Rodericks attitude in the 2005 hearing. Indeed, Mars comments in 1994 would seem to pretty well summarize the Boards conclusions in 2005. A fair reading of the 2005 hearing transcript reveals that the Board was frustrated with Rodericks attitude toward his criminal history, the commitment crime, and his programming in state prison.

(4) Prisoners Institutional Behavior

The Board also relied heavily upon Rodericks institutional behavior in denying parole, finding: During his incarceration, Mr. Roderick has programmed in a very limited manner. Hes failed to upgrade either vocationally or educationally and has not yet sufficiently participated in beneficial self-help. He has had only one 128(a) counseling Chrono and that was back in 1991. And has had three serious 115 disciplinarians and the last one was back in 1993 and that was for marijuana. The majority dismisses these findings, indicating, The Panels find[ing] that Roderick is in need of additional programm[ing] as well as vocational and educational upgrade[s], is without support in the record, and there is not a scintilla of evidence that would support the conclusion that these findings demonstrate Rodericks release would constitute an unreasonable risk to public safety. (Maj. opn., ante, at pp. 31-32.) This is simply not so.

The majority focuses on evidence in the record that could support a finding of suitability for parole, such as the fact that Roderick has been discipline-free since 1993, the report of J. Steward, Ph.D. (that states that Roderick has attended all of the self help groups available in the prison such as Anger Management and Alcoholics Anonymous), and Dr. Hewchuks indication that Roderick freely admitted to a former problem with alcohol, and has dealt with this issue through membership and attendance at Alcoholics Anonymous.  (Maj. opn, ante, at p. 32.) However, the majority ignores the fact that Rodericks answers to specific questions by the Board about the two significant programs he had attended, Alcoholics Anonymous (AA) and Project CHANGE (a 44-week-long program), were deficient. Roderick was unable to accurately explain the steps of AA,^[14]and he was similarly unable to articulate anything additional he learned in the almost year-long Project CHANGE program.^[15]Although he attended and completed these programs, the inmate apparently had absorbed little, if any, useful information from either of them. As the Board pointed out, he certainly did not appear to have learned anything from the programs that would give them any confidence that he would refrain from the use of alcohol in the future, or be able to avoid committing crimes in the future. He could not extrapolate from what he allegedly had learned in the programs to an understanding of why he had committed so many crimes in the past, including the commitment offense.^[16]There is thus certainly some evidence in the record to support the Boards finding that Rodericks institutional behavior supported a denial of parole. Again, lest we turn deferential review on its head, the fact that there is evidence to the contrary in the record is of no moment. The fact that there may be alternative explanations for Rodericks behavior in the hearing, such as his nervousness, does not negate that evidence; it was the Boards role to judge credibility issues and to resolve such matters.

Additionally, the Board noted that Roderick never obtained his GED or participated in any vocational counseling during his 20-plus years of confinement on the current offense. While it may be argued that he is now too old for either of these failures to really matter in terms of his likelihood to reoffend if released into the community, it nevertheless remains true that he failed to program in these areas. Roderick was told by the Board in the past to obtain his GED, and when asked by the Board why he had not done so, his response was typical of his answers as to why he had not programmed more: I dont know either. They never called me to go to school really. Apparently frustrated by Rodericks responses, the Board asked, You never really tried, did you? Rodericks response was, I talked to them a couple of times at Central 13 years ago over here. And when I went over there, I never did talk to them. Rodericks answers would certainly support a conclusion that he never really attempted to obtain a GED, despite being told to do so by the Board on prior occasions. Roderick also never attempted to upgrade vocationally over the more than two decades that he had been in state prison, despite being told to do so by the Board on prior occasions. When asked if there was a reason for this failure, Roderick replied, No. When the Board noted that he had been down for 20 years, Roderick replied, My age. He claimed that if youre over 50 they dont want to get you . . . into a place. Given the other failures at effective institutional programming detailed above, however, I decline to enter the fray over the issue of whether, and at what point, vocational training became unavailable to Roderick due to his age. In Rodericks hearing in 2002, the Board did tell him that he would now just be taking up space in those classes that someone else could more effectively use. The fact remains, however, that Roderick never programmed in these areas in more than 20 years of incarceration in state prison, and that he repeatedly ignored specific directions by the Board to do so. If nothing else, these failures to follow the specific directions of the Board over the years may reasonably cause concern about his ability to follow the directives of his parole officer upon his release.

The majority concedes that [t]he evidence does show that Roderick has a limited capacity either to understand or to explain the mechanisms that led to his criminality. But this limitation is a known quantity and has been factored into his risk assessment. (Maj. opn., ante, at p. 29.) While it may be true that some past psychological reports seemed to conclude that Rodericks lack of insight did not affect his risk assessment, I frankly find the conclusion perplexing. The psychological evaluations over the years are inconsistent in their approach to Rodericks lack of insight. In earlier psychological reports (in 1989 and 1992), there was no indication that Roderick was able to articulate any such insight, and these reports reach no conclusions regarding his risk assessment. The 1994 report states, Inmate Roderick demonstrates little self-understanding about the causative factors regarding this offense or his previous offenses. His only explanation is that he had bad judgment, but he cannot elaborate further about this explanation. The report then indicates, If he is paroled or released, his violence potential in the past is considered to have been average, and at present is estimated to be decreased. The psychological evaluation for the 1999 hearing indicates that Rodericks psychiatric evaluation demonstrate[d] little self-understanding about the causative factors regarding [the commitment] offense or his previous offenses, and yet jumps to the conclusion that his understanding was somehow appropriate within the structure of the offense.^[17] This same evaluation indicates that [t]his inmate had a difficult time understanding the complexity of substance abuse. He was finally able to articulate that, for three years before this life commitment arrest, he had been drinking in such a way that was no longer social.^[18] In fact, Rodericks criminal history reflects arrests for driving under the influence and being drunk in public as early as 1967. At least in this one evaluation, however, Roderick was able to draw a connection between his alcoholism and his commission of crimes.

The 2003 report indicates that Roderick talked openly about the circumstances of the instant offense, and his comments reflect a new sense of insight into his incarceration, without further elaboration.^[19] The most recent report, in 2005, does not address this issue at all.^[20] Rodericks account of the commitment crime and explanation for his long criminal history has changed little over his years of incarceration. But for the one time when he drew a connection between his use of alcohol and his commission of crimes, there was no explanation as to what had changed to lead the psychological evaluators to conclude either that Roderick had gained such insight, or that it did not matter that he had failed to do so.

The majority describes the Board as becoming antagonistic toward Roderick when he was unable to adequately answer questions about the programs he had participated in. Moreover, we can discern even on the cold record that the questioning by one Panel member, plainly irritated at Rodericks inability to give the kind of answers he expected to hear, became quite antagonistic. He even criticized Roderick for not attending programs available in the afternoons because he was sleeping, despite the fact that Rodericks job in the canteen required him to begin work at 2:00 a.m. It could not have been surprising that at this point Rodericks responses were more defensive than introspective. (Maj. opn., ante, at p. 33.) While I agree with the majority that at times it was clear that the Board members had become frustrated with petitioner, I disagree with their conclusion that it was the fault of the Board members that Roderick was unable to adequately respond to Board members questions. The interchange cited by the majority to support this position occurs after Roderick was unable to give any explanation for his 30-year criminal history (other than it was stupid), and after he was equally unable to show any insight gained from the programs he participated in that would give the Board members confidence that he would not return to drinking and committing crimes if released. At the point in the record relied upon by the majority, the Board was basically winding up the hearing and giving Board members the opportunity to ask any final questions. One member again questioned Rodericks inability to explain why he had such a lengthy criminal history and commented about his failure to adequately program in prison so as to gain insight into this issue. Much earlier in the hearing, as well as in this concluding portion, the Board expressed its dissatisfaction with Rodericks responses. Just as in Dannenberg, [t]he parole panels questions to [the prisoner] showed its reasonable skepticism . . . of the prisoners responses. (Dannenberg, supra, 34 Cal.4th at p. 1095, italics added.)

The majority finds that there is no evidence to support the Boards determination that Rodericks programming was deficient. As indicated by the majority, the record before the Board included Rodericks various explanations for why he was unable to attend programs: because of his work schedule, because of his meal schedule, because of lock-downs, because they did not call him to go to school, and because no programs were available. At the hearing before the Board, Roderick was asked why he had not participated in more self-help group programs. At first he responded that They dont have nothing . . . . When the Board member pointed out that Roderick had been in prison for 20 years, Roderick reiterated that the prison did not have anything, and added that they were locked up all the time. Upon continued questioning in this area, Roderick stated that for seven years he was getting up at 2 a.m. to work in the kitchen, and that he would return to his cell and sleep in the afternoon, rather than attend programs. The Board could reasonably have concluded that Roderick conveniently had many excuses for not programming.

This case involves the prosecutions appeal from the order of the trial court granting Rodericks writ of habeas corpus. As to this issue regarding the adequacy of Rodericks programming in state prison, the trial court conducted an evidentiary hearing on Rodericks petition for habeas relief, and found that the Boards conclusion that Roderick had not sufficiently programmed was not supported by the record, after listening to additional testimony from Roderick on this issue. To the extent that an evidentiary hearing is conducted in the trial court on a petition for habeas corpus relief, we are ordinarily bound by the trial courts factual findings if they are supported by substantial evidence.^[21]

There were several procedural anomalies regarding the habeas proceeding below. First, the Attorney General was not given notice of the hearing on Rodericks petition for writ of habeas corpus, nor did the trial court initially issue an order to show cause. Only after the Attorney General filed a motion for reconsideration did the trial court permit that office to file a return to the petition. After Rodericks counsel was given the opportunity to file a traverse to this return, the court apparently granted the motion for reconsideration, but refused to vacate its previous order granting the petition and instead conducted a hearing. That hearing was not evidentiary and was submitted on the pleadings. The trial court renewed its earlier order granting the writ. Having never received notice of that first hearing where Roderick had testified, the Attorney General was not present and could neither cross-examine Roderick nor present evidence to rebut his claims.

Beyond that, however, the trial court could not properly receive Rodericks testimony at the hearing on the habeas writ. Rodericks testimony did not relate to matters outside the hearing before the Board, and to permit evidence to be given on the same factual issues that were before the Board totally undermines the standard of review that the trial court was required to apply in the habeas proceeding. The trial court should have reviewed the Boards decision under the same any evidence standard of review that we are compelled to apply. Under this standard of review, Rodericks proffered testimony was not relevant, and was outside the scope of the habeas proceeding. (See, e.g., Rosenkrantz,supra, 29 Cal.4th at pp. 675-676 [evidentiary hearing properly held to add evidence to record regarding Governors record in overturning Boards decisions in other cases]; Pope v. Superior Court, supra, 9 Cal.App.3d at pp. 640-641 [court should not hold  evidentiary hearing  to review on habeas Adult Authority revocation of parole unless record of Adult Authority discloses a distinct reason therefore].) As in Pope, an evidentiary hearing may not be held by a court to redetermine an issue of fact . . . which has been determined upon an adequate record by the Adult Authority. (Id. at p. 642.)

Such evidentiary hearings further convert the normal standard of review that we would apply, whether some evidence supports the Boards determination, into an inquiry of whether substantial evidence supports the trial courts ruling to the contrary. Allowing the petitioner to augment the record by introducing evidence not before the Board, but relitigating factual issues that were before it, should therefore not be permitted. The trial court improperly expanded the permissible scope of the habeas hearing, and we should not be bound to apply the substantial evidence standard of review to the trial courts finding regarding Rodericks full participation in available programs.

Story Continues as Part V

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^[1]The investigating officers statement in this regard was made to the probation officer and is included in the probation report.

^[2]There were inconsistencies between Rodericks account of the commitment offense at the 2005 parole hearing and the limited information regarding witness accounts that is contained in the probation report, as well. (See p. 25, fn. 21, post.)

^[3]Although not specifically addressed in the section of the majority opinion discussing the commitment offense, the propriety of reliance upon such immutable factors is raised by the majority in their discussion of Rodericks prior criminal history, and is therefore similarly addressed, post, at pp. 38-42.

^[4]The Board stated, His unstable social history is certainly related to that criminal history but also to the abuse of alcohol.

^[5]The majority concludes that there is no evidence to support a finding that Roderick had difficult relationships with other prisoners and prison staff. (Maj. opn., ante, at p. 26.) I note that the record indicates Roderick was in fact involved in a physical altercation with his roommate, and was stabbed by him, in 1989.

^[6]Psychological evaluation reports over the years have treated Rodericks attitude toward the commitment offense differently. (See discussion, post, at pp. 30-32.)

^[7]The majority concedes that Roderick has a limited capacity to understand or explain why he committed so many crimes in the past, but opines that his limitations are a known quantity that has been factored into his risk assessment. (Maj. opn., ante, at p. 29.) The majoritys opinion in this regard is discussed post, at pp. 30-32.

^[8]The Board first inquired, You were breaking the law in 1952, from 1952 until 1980. All through the 50s, all through the 60s, all through the 70s, you have criminal offenses. So, why?

^[9]Rodericks answers to questions regarding his alcohol problem could reasonably be interpreted to reflect both an attitude of indifference and an attempt to minimize his alcoholism. At the very least, they do not reflect a full admission by Roderick of his past and continuing addiction to alcohol and thus support the Boards determination that he had little insight into this issue, despite his past participation in programs intended to address this problem. (See discussion, post, at pp. 27-29.)

^[10]Roderick also insisted at this parole hearing that witness accounts that the stabbing occurred within seconds of his and the victims leaving the bar were incorrect, and he testified to details of intervening circumstances. Additionally, Roderick claimed it was the victim who initiated the physical altercation by kicking him after they left the bar. This was also contradictory to the accounts given by other witnesses, which are included in the probation report.

^[11]Indeed, some of the psychological reports contain factual inaccuracies. (See fns. 28 & 31, p. 31, post.)

^[12]This factor did appear to be one upon which the Board relied heavily in its determination that Roderick was not suitable for parole.

^[13]Of course attitude may be expressed by the content of ones answers to questions, as well as by body language and tone of voice, etc.

^[14]When asked about the steps of AA, Roderick could not articulate what the eighth step was (make a list of all persons harmed and make amends to them), and confused the fourth step (make a searching and fearless moral inventory) with the similar tenth step (continue to take personal inventory and where wrong, promptly admit it). (See Griffin v. Coughlin (N.Y. 1996) 673 N.E.2d 98, 100, fn. 1 [12 steps of AA]; http://www.alcoholics-anonymous.org/en_information_aa.cfm?PageID+2&SubPage=56 [as of August 16, 2007].)

^[15]Apparently the Project CHANGE program was mostly conducted by Roderick himself in his cell, and presumably the tests he references taking for the program were self-administered there. This information, however, was supplied in Rodericks testimony at the evidentiary hearing on his habeas petition in the trial court, which was improperly admitted. (See discussion, post, at pp. 33-35.)

^[16]The majority dismisses these legitimate concerns of the Board, stating, [a]s we have already explained, Rodericks inability to gain or articulate a better understanding of his behavior is a known factor that, according to all reports, does not negatively affect his suitability for parole. (Maj. opn., ante, at p. 33.)

^[17]Some of the psychological evaluation reports also contain factual inaccuracies. For example, the 1999 report, in its assessment of Rodericks dangerousness, concludes that Due to several factors including his complete lack of violent crime and his non-existent disciplinary problems since incarceration, within a controlled prison population, this inmate poses a less than average violence potential. (Italics added.) Roderick in fact had prior disciplinary problems in state prison and several of his prior convictions, as well as the commitment crime, were crimes of violence.

^[18]Roderick also admitted that he occasionally used marijuana.

^[19]Roderick has always seemed more than willing to tell his story about what happened the night of the commitment crime. Why his willingness to do so during this psychological evaluation showed a new insight, however, is never explained.

^[20]The 2005 report also contains a factual inaccuracy, as it appears to attribute to the probation department a comment actually made by Roderick, when it states that [e]ven in the Probation Officers Report there is a comment about the unfortunate nature that the jury did not find him guilty of a lesser charge, if even any charge were appropriate due to the self defense nature of this altercation.

^[21]The majority does not specifically rely upon this substantial evidence standard of review, but does reference the trial courts findings after conducting the evidentiary hearing, although indicating that they are only reviewing the record before the Board. (Maj. opn., ante, at pp. 21-22.)