IN RE: ISMAEL SEPULVEDA on Habeas Corpus.

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Court of Appeal, Second District, California.

IN RE: ISMAEL SEPULVEDA on Habeas Corpus.

B222529

Decided: November 23, 2010

UnCommon Law and Keith Wattley, under appointment by the Court of Appeal, for Petitioner. Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Phillip Lindsay and Kim Aarons, Deputy Attorneys General, for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In 1990, Ismael Sepulveda was sentenced to a term of 17 years to life for second degree murder.   In 2009, at his fifth subsequent parole suitability hearing, the Board of Parole Hearings (Board) found Sepulveda unsuitable for parole.   Sepulveda filed a petition for writ of habeas corpus contending that he had been denied due process because no evidence supports the Board's finding that he would pose an unreasonable risk of danger to public safety if released on parole.   We agree and grant the petition.

FACTUAL AND PROCEDURAL HISTORY

A. Commitment Offense

At about 10:00 p.m. on April 3, 1988, Sepulveda shot and killed Gary Sandoval and Guadalupe Portillo in a car behind “The Pub,” a bar in Altadena.   Earlier that evening, Sepulveda and Sandoval had been drinking with Jose Hernandez, who was the son of the bar's owner and Sandoval's friend.   At about 9:00 or 9:30 p.m., Sepulveda told Frank Araiza, a security guard at the bar, that someone was going to beat Sepulveda up.   Sepulveda appeared a “little scared” and “very serious.”   Araiza said he would call the sheriff to escort Sepulveda home;  thereafter Sepulveda telephoned his wife and then talked to Sandoval, after which he told Araiza he did not need the sheriff or police.   There did not appear to be any sign of anger between Sepulveda and Sandoval;  Sandoval told Araiza he would take Sepulveda home.

Sepulveda then told Sandoval, whose car was parked in front of the bar, that he would not go with him unless they left by way of the back door.   Sandoval agreed and drove his car around to the alley.   Araiza unlocked the rear gates for Sepulveda and walked over to Sandoval's car to wish him a nice evening.   Sandoval was in the right rear seat of the car and a person unknown to Araiza was driving.   Araiza was uncertain whether there was a third person in the car.   Robert Mendoza, another security guard, followed Araiza and saw three people in the car:  one in the driver's seat and two in the rear seat.   After Araiza finished talking to the people in the car, Araiza and Mendoza started back toward the bar.   Araiza was locking the rear gates when he heard three shots.   Araiza saw Sepulveda holding a gun and firing first at Sandoval, then at the driver.

After the shooting, Araiza thought he saw someone wearing a white T-shirt running away from the car.   Mendoza said he saw someone wearing a white T-shirt inside the car as it drove up to the rear of the bar.   Araiza told Sepulveda to “freeze,” “drop the gun,” and “put his hands on top of his head.”   Sepulveda refused and Araiza fired a shot at him but missed.   Sepulveda walked toward Araiza and Araiza fired again in his direction.   Sepulveda then ran behind a water heater, but later surrendered.   After Sepulveda was handcuffed, he said someone was after him.1

Sepulveda was convicted by jury of second degree murder and was sentenced to 17 years to life.2

B. Social History

At the time of the crime, Sepulveda was 32 years old.   Sepulveda was born on October 3, 1955.   His mother died when he was one year old.   His father died when he was 14.   He grew up working on the streets in Mexico.   When he came to the United States at age 18 he started working in construction;  after work everyone would go out drinking and smoking pot.   He worked construction all his life and all his friends were from work, so he joined them.

Sepulveda has no juvenile criminal record.   His only other contact with law enforcement occurred at age 27 when he was charged with a misdemeanor for carrying a switchblade.

Sepulveda admits to a history of drug abuse.   He started using drugs when he worked construction in the United States.   He worked in construction for 15 years prior to his incarceration.   He would drink beer with his coworkers and eventually started smoking marijuana.   He started using cocaine in his mid-20's and used on almost a daily basis until he was arrested at age 32.

As to his parole plans, they are realistic and viable, despite an INS hold.   His cousin owns a trucking company in Mexicali, and has full time work available for him loading trucks.   Sepulveda owns his own home next to his sister's home in Mexicali;  the house is currently rented out, but Sepulveda can move in when released.

C. Prison Record

Sepulveda was received at the Department of Corrections and Rehabilitation (CDC or CDCR) in 1990.   His placement score is 28, which is the lowest he can achieve with a multiple victim offense.   He has no disciplinary record-no CDC 115's 3 and no CDC 128-A's.4

Since he has been in prison, Sepulveda has completed a number of educational programs.   He earned his GED in 1996 and has completed vocational sewing machine repair and mechanic programs.   He has received Proficiency Certificates as a Baker Helper, as a Weaver and Stitcher in Textiles, and as a Flat Iron Operator in the Laundry.   He currently works in the PIA Bakery where he has been employed for one year.   Prior to that, he worked for 11 years in PIA Textiles, Laundry, and Shoe Factory.   He has positive Supervisor Reports in his files for all jobs and classes he has attended.

Sepulveda has long term certificates of attendance for AA and NA, and has completed courses in Creative Conflict Resolution, Alternatives to Violence, Breaking Barriers, and Parenting.   He has participated in the Walkathon to raise money for community projects, and participated in the Spanish Christian Conference.   In his spare time, Sepulveda studies the Bible, exercises, goes to church services, and reads books.   He receives letters, phone calls, and visits from his son, daughter and sister.

D. Psychological Evaluation5 and Insight into Offense

According to the 2008 psychological evaluation, the Diagnostic Impressions are:

“Axis I Alcohol Abuse (by history, in sustained remission)

“Cannabis Abuse (by history, in sustained remission)

“Cocaine Dependence (by history, in sustained remission)

“Axis II None

“Axis III None

“Axis IV Life Term Incarceration

“Axis V GAF 89 (on a 100 point scale)”

Sepulveda's history of marijuana and alcohol use meet the criteria for abuse.   His use of cocaine appears to meet the criteria of dependence.   The fact that he has remained abstinent from all substances for over 21 years provides support for the qualifier “sustained remission.”   Sepulveda has no juvenile or adult criminal history other than the index offense, and does not appear to meet the criteria for Antisocial Personality or other mental illness.

The evaluation discussed previous evaluation summaries.  “Mr. Sepulveda's most recent evaluation, by Dr. Christopher Simonet, Ph.D., dated Sept. 14, 2001, was consistent with the current evaluator's diagnostic impression of previous substance abuse/dependence.   Dr. Simonet did not find any evidence of Antisocial Traits or other mental illness.   He concluded that Mr. Sepulveda's risk level was low based upon his prison behavior, and lack of violence prior to the index offense.

“Mr. Sepulveda was evaluated by Dr. John Adams, Ph.D., in July of 1998;  Dr. Louis Blumberg, Ph.D. in May of 1996;  and Dr. William Evans, Ph.D. in September of 1993.   These evaluations were also consistent in finding no evidence of Antisocial Personality Traits, mental illness or other factors that would make Mr. Sepulveda a risk to the community.   Each evaluator noted Mr. Sepulveda's exemplary prison behavior, his dedication and commitment to work, and his abstinence from drugs and alcohol, which they also noted as a major contributing factor to his offense.”

The psychologist also discussed Sepulveda's risk for violence based on several empirical factors as follows:

“BPH Question # 1-The prisoner's violence potential in the free community.

“The current research literature indicates that an empirically based approach is the most reliable and valid method for assessing risk of future violence.   In the present evaluation the Psychopathy Checklist-Revised (PCL-R), the History-Clinical-Risk 20 (HCR-20) the Level of Service Inventory/Case Management Inventory (LS/CMI), and the Static-99 were used to help estimate this individual's risk for future violence in the community.   The PCL-R is a standardized ratings scale of psychopathic personality traits that is a reliably associated with risk for future violence.   The HCR-20 is a rating for known violent risk factors drawn from research on violence.   The LS/CMI is an actuarial instrument designed to evaluate levels of risk to recidivate.   This instrument is focused on risk of general recidivism and not violence per se.   The Static-99 utilizes static (unchangeable) factors that have been identified to correlate with sexual reconviction in adult males.   The data for scoring each of these instruments was obtained from information derived in both the inmate interview and the files reviewed.   These measures have been widely used and are supported by years or research in the risk assessment field.   They have been cross validated with various forensic populations, including United States males in correctional settings.

“PCL-R

“The PCL-R rates an individual for characteristics and traits such as superficial charm, grandiosity, pathological lying, lack of remorse, shallow affect, lack of empathy, poor behavior controls, impulsivity, and criminal versatility.   During the evaluation Mr. Sepulveda demonstrated openness, honesty, maturity, and insight.   He did not present as glib or superficial, and offered neither excuses or blame for his behaviors.   He did not have early behavior problems, impulsivity problems, juvenile delinquency, or a parasitic lifestyle.   Mr. Sepulveda's total score was Low for psychopathy relative to incarcerated adult male offenders.

“HCR-20

“Focusing more specifically on the ‘historical’ domain of assessing likelihood of future violence, Mr. Sepulveda's records indicate that he did not have a prior history of violence, psychopathy, personality disorder, or mental illness.   He did however have a serious drug problem.

“Within the ‘clinical’ or more current and dynamic domain of risk assessment, Mr. Sepulveda had an absence of risk factors.   He had no history of psychiatric difficulty while incarcerated, nor when he was living in the community.   His attitude is positive and constructive, and his record showed no past history of mental health treatment.   He shows self-control, and seems to respond to personal growth opportunities.

“Within the ‘management of future risk’ domain, Mr. Sepulveda's risk level appears low.   He has realistic plans with personal support from family and relatives.   He stays busy with his jobs and responsibilities, and seems to manage stress appropriately.   Overall, Mr. Sepulveda rated Low for risk of re-offending on the HCR-20.

“LS/CMI

“The LS/CMI addresses factors that contribute to recidivism.   Mr. Sepulveda scored low or very low in all areas.   He had no criminal history aside from the index offense, had no educational or employment deficiencies, and no antisocial character traits or patterns.   He has positive, non-criminal acquaintances and associates, he has not used or abused substances for 21 years, and he has completed his education and maintained steady employment all of his life.   He does not show a procriminal attitude or orientation.   His employment and positive use of time are considered strengths.   Overall Mr. Sepulveda rated Very Low for risk of recidivism on the LS/CMI.

“VIOLENCE RISK

“The factors that contribute to an elevated risk status for Mr. Sepulveda are historical.   His commitment offense was especially violent, and resulted in the loss of human life.   He also appeared to have a serious drug problem.   These are factors that would increase his risk status.

“On the other hand, there are salient factors that appear to mediate and lessen Mr. Sepulveda's overall risk status.   Foremost is that he has no history of criminal, or violent behavior aside from the index offense.   Before incarceration, he always supported himself in the community with long term, stable employment.   Upon entering prison he appears to have been completely compliant, and has abstained from all substances including drugs and alcohol.   He has never had a disciplinary or negative behavior report, since his incarceration.   He has always held long term responsible prison jobs, with excellent supervisory chronos.   He has also used his time to acquire additional vocational skills and training.   He demonstrates remorse for his offense, and shows insight to both the external and internal factors related to his offense.   He appears to have the respect of correctional staff and other inmates, and does not appear to be affected by pressure or the negative influence of others.   He is able to acknowledge and admit to his current faults and mistakes, and seems to be proactive in making better choices.   He has consistently participated in AA and NA programs, and appears to have internalized the things he has learned.   He has attempted to provide service to others by participating in community fund raisers, and religious service programs.   The objective measures of both static and dynamic variables rate him Low for psychopathy, Low for violence, and Very Low for future re-offending.   Overall, when weighing all of the factors, Mr. Sepulveda's risk of future violence or re-offending in the community is Very Low to Low. Mr. Sepulveda's behavior has been consistently positive since his incarceration.   Given this long term positive behavior pattern, Mr. Sepulveda's low risk status could be expected to continue in the community setting areas.”

Furthermore, the psychologist opined as to Sepulveda's insight and underlying issues as to the commitment offense:  “Mr. Sepulveda appears to have explored the contributing factors associated with his drug and alcohol abuse through his participation in the AA and NA programs.   He was able to articulate an understanding of his desire to fit in as an immigrant, and join in on the after work drinking with his fellow construction workers.   He noted how this progressed into using marijuana and eventually cocaine, which provided extra energy to work longer and harder at his job.   He was also able to link his drug use as a means to avoid feelings of loneliness, and the hardship from losing his parents at such an early age, and growing up on the streets in Mexico.   He talked about how he has learned to stay positive through work, church and associating himself with positive people.   He also described how he manages stressful feelings when alone, through exercise and prayer.”

The psychologist further opined that Sepulveda shows remorse, and appears to take responsibility for his offense, without rationalizing.   He demonstrates insight and awareness of the contributing factors that drugs and alcohol had in his offense.

E. District Attorney's Position on Parole

The deputy district attorney opposed Sepulveda's release on parole.

F. Board's Decision

At the parole suitability hearing on June 24, 2009, the Board found Sepulveda unsuitable for parole and that he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.   The Board relied primarily on the commitment offense itself, stating that this particular offense was a truly atrocious crime.   Multiple victims were attacked and killed in the same incident.   It was carried out in a dispassionate calculated manner with disregard for human suffering.   The Board was still somewhat concerned as to what the true motivation for this crime was.   The Board was concerned that Sepulveda continued to maintain this was self-defense and found he was not credible as evidenced by the contradiction with the actual facts of this case, whereby he indicated he saw them with guns.   The Board further stated that Sepulveda did not take responsibility for his actions and lacked insight into the causative factors of this conduct because his version of the commitment offense was inconsistent with the record.   The Board was not convinced Sepulveda truly understood the nature and magnitude of the offense because he was indicating this was a matter of self-defense.   The Board further stated it had some trepidation about Sepulveda's remorse.

Furthermore, the Board commended Sepulveda for his good institutional adjustment and his participation in AA and other activities.   However, the Board was concerned that Sepulveda did not know the 12-steps.   The Board noted the District Attorney's opposition to parole, but commended Sepulveda for his programming, self-help achievements, adequate parole plans and receiving his GED. The Board noted the psychological evaluation was favorable.   The Board noted Sepulveda's lack of a disciplinary history.   The Board recommended Sepulveda get involved with self-help and therapy, get some insight, and remain disciplinary free.

G. The Habeas Corpus Proceeding

Sepulveda filed a petition for writ of habeas corpus on November 16, 2009 in Los Angeles County Superior Court.   The Superior Court concluded the record contained “some evidence” to support the Board's finding that Sepulveda was unsuitable for parole.   The court cited the fact that Sepulveda lacked remorse and insight because his version of the commitment offense indicates he has yet to accept responsibility for his own actions.   The court also cited the fact that multiple victims were attacked.   The petition was denied on January 23, 2010.

Contrary to the Attorney General's position at oral argument that the Los Angeles Superior Court did not consider the decision of Sepulveda's 2009 parole consideration hearing, the superior court file shows otherwise.   The superior court's minute order of January 23, 2010 states, in relevant part:  “The Court has read and considered the Petition for Writ of Habeas Corpus filed on November 16, 2009.   The habeas petition the superior court considered was dated November 16, 2009.   Sepulveda states in that petition, “On 6/24/09, at Petitioner's 5th parole hearing, the Board found Petitioner unsuitable for parole and a threat to public safety.”

Sepulveda timely filed his petition for writ of habeas in this Court on February 26, 2010.   We issued an order to show cause and set a briefing schedule.

DISCUSSION

Sepulveda contends the Board's decision finding him unsuitable for parole denied him due process because it was not based on any evidence that he currently poses an unreasonable risk of danger to society if released on parole.   We agree.

A. Governing Law

The purpose of parole is to help prisoners “reintegrate into society as constructive individuals as soon as they are able,” without being confined for the full term of their sentence.  (Morrissey v. Brewer (1972) 408 U.S. 471, 477.)   Although a prisoner has no constitutional or inherent right to be conditionally released before the expiration of his sentence (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7), in this state, Penal Code section 3041 creates in every inmate a cognizable liberty interest in parole, and that interest is protected by the procedural safeguards of the due process clause.  (In re Lawrence (2008) 44 Cal.4th 1181, 1205 [“petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate's due process right ‘cannot exist in any practical sense without a remedy against its abrogation,’ ” quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 664].) 6

Section 3041, subdivision (b) establishes a presumption that parole will be the rule, rather than the exception, providing that the Board “shall set a release date unless it determines that the gravity of the current convicted offense ․ 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.”  (See Board of Pardons v. Allen (1987) 482 U.S. 369, 377-378 [unless designated findings made, parole generally presumed to be available].)  “[I]n light of the constitutional liberty interest at stake, judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights.”  (In re Lawrence, supra, 44 Cal.4th at p. 1211.)

When assessing whether a life prisoner will pose an unreasonable risk of danger to society if released from prison, the panel considers all relevant, reliable information available on a case-by-case basis.   The regulations set forth a nonexclusive list of circumstances tending to show suitability or unsuitability for release.  (Cal.Code regs., tit 15, § 2402, subds. (c) & (d).)  Factors tending to indicate suitability include:  (1) the absence of a juvenile record, (2) a stable social history, (3) signs of remorse, (4) significant life stress motivated the crime, (5) battered woman syndrome, (6) no significant history of violent crime, (7) the inmate's age, (8) realistic plans for the future, and (9) institutional behavior.  (Id., subd. (d).)  Circumstances tending to show unsuitability include:  (1) the commitment offense was committed “in an especially heinous, atrocious or cruel manner,” (2) a previous record of violence, (3) an unstable social history, (4) sadistic sexual offenses, (5) psychological factors, and (6) serious misconduct while incarcerated.  (Id., subd. (c).)  “In sum, the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety.”  (In re Lawrence, supra, 44 Cal.4th at p. 1205.)

The “core determination” thus “involves an assessment of an inmate's current dangerousness.”  (In re Lawrence, supra, 44 Cal.4th at p. 1205.)   The Board is authorized “to identify and weigh only the factors relevant to predicting ‘whether the inmate will be able to live in society without committing additional antisocial acts.’ ”  (Id. at pp.   1205-1206, quoting In re Rosenkrantz, supra, 29 Cal.4th at p. 655.)  “[D]irecting the Board to consider the statutory factors relevant to suitability, many of which relate to postconviction conduct and rehabilitation, the Legislature explicitly recognized that the inmate's threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living within the strictures of the law.”  (Id. at p. 1219.)   As a result, the “statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.”  (Id. at p. 1211.)   The Board can, of course, rely on the aggravated circumstances of the commitment offense as a reason for finding an inmate unsuitable for parole;  however, “the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his ․ commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.”  (Id. at p. 1214.)

B. Standard of Review

“[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.”  (In re Lawrence, supra, 44 Cal.4th at p. 1212.)   The standard is “unquestionably deferential,” and “ ‘limited to ascertaining whether there is some evidence in the record that supports the [Board's] decision.’ ”   (Id. at p. 1210.)   Nonetheless, the standard “certainly is not toothless, and ‘due consideration’ of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision-the determination of current dangerousness.”  (Ibid.) Our inquiry thus is “not merely whether an inmate's 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 Board․”  (Id. at p. 1221.)   The Board or Governor must articulate a “rational nexus” between the facts of the commitment offense and the inmate's current threat to public safety.  (Id. at pp.   1226-1227 [finding no evidence supported Governor's determination that Lawrence remained a threat to public safety in view of her “extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board”].)

C. Analysis

Unlike Lawrence, here the Board's decision was not based solely on the commitment offense.   However, the gravity of the murders was certainly a consideration for the Board.   An exhaustive review of the record and the Attorney General's opposition to the habeas petition indicates that the Board relied on the atrocious nature of the commitment offense and the fact multiple victims were involved, and Sepulveda's lack of insight and remorse to deny parole.

Reliance on the aggravated circumstances of the commitment offense as a factor in finding an inmate unsuitable for parole is proper, but there must also be “something in the prisoner's pre- or post- incarceration history or his or her current demeanor and mental state, indicat[ing] that the implications regarding the prisoner's dangerousness that derive from his ․ commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.”  (In re Lawrence, supra, 44 Cal.4th at p. 1214.)   Not only is that “something” missing from the Board's 2009 decision, but the record establishes the contrary, that is, that nothing in Sepulveda's pre- or post-incarceration history or his current demeanor and mental state support a prediction of current dangerousness.   The Board offered no reason why Sepulveda remains a public safety threat, 22 years after the commitment offense, let alone “establish[ed] a rational nexus between those factors and the necessary basis for the ultimate decision-the determination of current dangerousness.”  (Id. at p. 1210.)

Also, the Board questioned Sepulveda's insight and his acceptance of responsibility but failed to articulate the nexus between the “question” and the conclusion that Sepulveda posed an unreasonable risk of danger to the public if released on parole.   Since as early as Sepulveda's first parole consideration hearing in 1998, it has been clear that Sepulveda rejects the version of the circumstances surrounding the commitment offense that is found in the appellate opinion.   Indeed, in every one of his five hearings, Sepulveda has repeated his claims that the victims intended to kill him because he refused to sell drugs for their boss;  that he was threatened by the victim's boss;  and that he saw at least one of the victims with a gun, though the police did not find it.   Yet, he admitted committing the crime and he took responsibility.   Basically, the Board's claim that Sepulveda lacks insight is based on the fact that his version of the commitment offense was inconsistent with the record.   The Board maintains that since Sepulveda admitted killing the victims, the statutory and regulatory prohibitions against requiring an admission of guilt do not apply.   We conclude that the discrepancies between the two versions are immaterial to the determination of whether there is evidence Sepulveda presents a current and unreasonable risk to public safety.

Our Supreme Court has held that a lack of insight may only be a valid basis for denying parole if that lack of insight is relevant to a current risk to the public.  (In re Lawrence, supra, 44 Cal.4th at p. 1228.   Reviewing courts must consider the Board's stated reasons for denying parole in light of the full record.   Where the prisoner's record is replete with evidence of positive programming, maturation, growth, discipline-free conduct, acceptance of responsibility for actions, increased marketable skills, viable parole plans and a psychological profile confirming the presence of remorse and a very low risk to public safety, the Board cannot lawfully deny parole on the isolated nonfactor that a prisoner lacks insight.  (In re Lawrence, supra, 44 Cal.4th at pp.   1226-1227.)

Here, Sepulveda has remained disciplinary free throughout his incarceration, he has aged into his fifties, he has upgraded his education by earning a GED, he has excelled in all his work assignments, he has consistently participated in AA, NA and numerous other self-help and therapy programs, he has maintained stable relationships with others, he has a positive psychological evaluation, and he has made multiple viable plans for his release on parole-whether in the United States or in Mexico.   It is also undisputed that Sepulveda has no record of violence either before or since the commitment offense.

We conclude there is no evidence in the record to establish that Sepulveda's parole currently poses a threat to public safety, and his rights were violated by the Board's reliance upon the circumstances of his commitment offense and the lack of insight as proxies for the necessary evidence.

DISPOSITION

The petition for writ of habeas corpus is granted.   The decision of the Board of Parole Hearings is hereby vacated.   The Board is directed to conduct a new parole suitability hearing consistent with due process and In re Prather (2010) 50 Cal.4th 238.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. According to Sepulveda's version, he is not guilty of murder because he killed the victims under the perceived threat that they were going to kill him, that he overheard one of the victims tell someone else that he was going to kill Sepulveda, that the victims worked for a crime boss who had earlier tried to coerce Sepulveda to sell drugs for him and that he believed one or both of the victims had a gun when he shot them..  FN1. According to Sepulveda's version, he is not guilty of murder because he killed the victims under the perceived threat that they were going to kill him, that he overheard one of the victims tell someone else that he was going to kill Sepulveda, that the victims worked for a crime boss who had earlier tried to coerce Sepulveda to sell drugs for him and that he believed one or both of the victims had a gun when he shot them.

FN2. It is unclear from the record whether Sepulveda was convicted of two counts of second degree murder.   This analysis notes there were two victims..  FN2. It is unclear from the record whether Sepulveda was convicted of two counts of second degree murder.   This analysis notes there were two victims.

FN3. A CDC 115 documents misconduct believed to be in violation of law or otherwise not minor in nature.  (See Cal.Code Regs., tit. 15, § 3312, subd. (a)(3);  In re Gray (2007) 151 Cal.App.4th 379, 389.).  FN3. A CDC 115 documents misconduct believed to be in violation of law or otherwise not minor in nature.  (See Cal.Code Regs., tit. 15, § 3312, subd. (a)(3);  In re Gray (2007) 151 Cal.App.4th 379, 389.)

FN4. A CDC 128-A documents incidents of minor misconduct.  (See Cal.Code Regs., tit. 15, § 3312, subd. (a)(2);  In re Gray, supra, 151 Cal.App.4th at p. 389.).  FN4. A CDC 128-A documents incidents of minor misconduct.  (See Cal.Code Regs., tit. 15, § 3312, subd. (a)(2);  In re Gray, supra, 151 Cal.App.4th at p. 389.)

FN5. The American Psychiatric Association publishes the Diagnostic and Statistical Manual of Mental Disorders, Text Edition (4th ed.2000) setting forth all currently recognized mental health disorders and a comprehensive classification system.   Generally, the classification system calls for information to be organized into five “axes” or dimensions to assist clinicians in planning treatment and assessing prognosis:  (1) clinical disorders, (2) personality disorders, (3) medical conditions, (4)psychosocial and environmental problems, and (5) global assessment of functioning (GAF).  (Id. at p. 27.)   Using a point scale from one hundred down to one and organized into 10-point descriptive ranges, e.g., 80-71, 50-41, or 20-11, GAF scoring reflects higher functioning in the higher numbers.  (Id. at p. 33.)   Although we refer to the DSM-IV criteria, we recognize that the 2000 text edition of the manual is the authoritative source..  FN5. The American Psychiatric Association publishes the Diagnostic and Statistical Manual of Mental Disorders, Text Edition (4th ed.2000) setting forth all currently recognized mental health disorders and a comprehensive classification system.   Generally, the classification system calls for information to be organized into five “axes” or dimensions to assist clinicians in planning treatment and assessing prognosis:  (1) clinical disorders, (2) personality disorders, (3) medical conditions, (4)psychosocial and environmental problems, and (5) global assessment of functioning (GAF).  (Id. at p. 27.)   Using a point scale from one hundred down to one and organized into 10-point descriptive ranges, e.g., 80-71, 50-41, or 20-11, GAF scoring reflects higher functioning in the higher numbers.  (Id. at p. 33.)   Although we refer to the DSM-IV criteria, we recognize that the 2000 text edition of the manual is the authoritative source.

FN6. All references to section 3041 are to that section of the Penal Code. Section 3041, subdivision (a), provides as relevant:  “One year prior to the inmate's 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 Section 3041.5․  The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude with 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.”.  FN6. All references to section 3041 are to that section of the Penal Code. Section 3041, subdivision (a), provides as relevant:  “One year prior to the inmate's 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 Section 3041.5․  The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude with 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.”

MALLANO, P. J. ROTHSCHILD, J.