IN RE: STEPHEN MURPHY (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Stephen Murphy filed a petition for a writ of habeas corpus seeking an order overturning the Board of Parole Hearings' (the Board) 2009 decision to deny him parole.   In February 1983, Murphy pled guilty to second-degree murder and was sentenced to an indeterminate term of 15 years to life in prison with the possibility of parole.   Murphy has been denied parole a dozen times since his conviction.   In June 2010, Murphy filed the instant petition in which he argued, inter alia, that the Board's 2009 decision was not supported by “some evidence” that he currently posed an unreasonable risk of danger to society if released and thus the Board violated his right to due process.   He specifically argues the Board relies on immutable factors, including his criminal and social history prior to the commitment offense and also relies on evidence that does not have support in the record to conclude erroneously that he has minimized his conduct, has not accepted full responsibility for his actions or shown appropriate remorse for his crime.   Murphy also complains the Board has failed to establish a nexus between the commitment offense and his current dangerousness.   As we shall explain more fully below, we agree with Murphy.   In our view, there is not some evidence to support the Board's findings.   The evidence the Board relied upon to justify its decision to deny Murphy parole lacks a rational basis in fact.   In addition, the identified facts that do find support in the record are not probative to the central issue of current dangerous when considered in light of the full record.   Accordingly, we grant relief.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Murphy's Background.

Murphy was born in 1956 and raised in a suburb of Boston, Massachusetts.   He was the third of five children in his family.   His father,¹ now deceased, was a postal employee and his mother worked in a bank.   He described his childhood and upbringing as “stable,” “good,” and “middle class.”   Murphy attended Catholic High School and graduated at age 18.   Although he began abusing alcohol at age 15, Murphy has no juvenile criminal record.   After graduating from high school he joined the United States Air Force in 1974.   He was stationed in Kansas and served as a “law enforcement specialist.”   While he was in the military, Murphy attended junior college, taking administration of justice courses.   He was honorably discharged from the Air Force in 1978 at age 22.   Murphy continued to abuse alcohol while he was in the military and after he was discharged.

In 1980 Murphy relocated to California to live with a cousin who managed an apartment complex in Marina del Rey. Murphy worked for a while as a cook and even managed a restaurant at one point, but he continued to drink alcohol.   Murphy became homeless after his cousin accidently burned down the apartment complex where Murphy lived.

In late March 1981, Murphy entered a coffee shop in Marina del Rey. He brandished a pellet gun and demanded money.   He was captured by police the next day.   Murphy was convicted of the robbery of the coffee shop and sentenced to two years in prison.   He was released on parole from prison in mid-August 1982.   After Murphy was released from prison he was homeless.

B. The Commitment Offense.²

On November 15, 1982, Los Angeles Police Department (LAPD) detectives investigated the murder of a 49-year-old partially blind ³ male tenant of a hotel that had been converted into an apartment complex primarily occupied by elderly people and recent prison parolees.   The victim, Richard Maher, lived alone and had been described as a person who was quiet.   There was no evidence of forced entry into his room.   He had been “forced onto his bed face down with his upper body on the bed, and his legs and feet on the floor in a kneeling position.”   Maher had a 2-inch gash on the back of his skull, which appeared to have been caused by a blunt force trauma.   He also had a “massive laceration” at the base of his neck, and stab wound in his back.   His face was discolored and showed signs that he had been strangled.   The autopsy revealed that Maher had died of strangulation.   His room had also been ransacked.   One of Maher's pockets had been torn out and the other was turned out.

Police interviewed a number of residents of the apartment and based on those interviews Murphy was identified as a suspect in Maher's murder.

On December 16, 1982, the LAPD arrested Murphy on a charge of vehicle theft when it was reported that Murphy was living inside a stolen a car.   When he was arrested police questioned Murphy about Maher's murder and Murphy confessed.   Murphy indicated that he had come to the apartment complex because he had no place to stay after being released on parole.   He also told police that he had been caught inside one of the apartments at the complex and was told to leave.   Murphy stated that he saw Maher outside the complex and that Maher had offered to loan him money and a place to stay until Murphy met with his parole officer on the following Monday.   Murphy told authorities that he had helped Maher in the past and had run errands for him.   Murphy stated that when he got into Maher's room, Maher “propositioned him” for a homosexual act.   Murphy said that when he refused and got up to leave, Maher pulled out a knife and a struggle ensued.   Murphy admitted that he had a “stranglehold” on Maher and that he choked him and that during the fight over the knife Murphy grabbed Maher's hand and forced the knife into him.   Murphy denied any knowledge of the trauma caused by any blunt force.   According to the Probation Officer's Report (the “POR”) Murphy told police:  “I don't know how he [Maher] got the cut in the front and the back of his neck.   I don't know about any blunt instrument.   I don't know if someone else went in afterwards and did something to him.   I can only explain the scratch on his back and the wound in front of his neck.”

Murphy was charged with one count of murder in the second degree under section 187.   He was also charged with the unrelated vehicle theft under Vehicle Code section 10851.   In February 1983 he pled guilty to both counts and in March 1983 he was sentenced to an indeterminate term of 15 years to life in prison with the possibility of parole.   Given his work and good time credits his minimum eligible parole date was set for April 1991.

Murphy expressed his remorse for the crime at the time of his arrest.   Prior to being sentenced he told the probation officer that he was sorry.   The POR also reflected that Murphy also said that he had been sexually assaulted before and that he was afraid of being assaulted again and thus his fear of sexual assault motivated his actions.   The POR also indicated that after the murder of Maher, Murphy told a witness-a Mr. Jones who lived at the hotel-that he had worn Jones' jacket and had gotten blood on it.   Murphy also told Jones that he had “done something bad” and that “he needed to commit a robbery ․ he needed to get money to get out of state.”   The POR also contained the statement of another hotel resident interviewed by police, Mr. Gelprin, who told police that he saw Murphy on the evening Maher was killed and that Murphy had “blood or grass” stains on his shirt.   According to Gelprin, Murphy stated that he had “cut someone up” and had robbed him taking his money.

C. Post Conviction Conduct.

In the late 1980s Murphy placed a personal ad in a newspaper and from a response to the advertisement he met his future wife.   He and his future wife corresponded for about a year and in 1990 they were married.   Murphy's wife lives and works in Santa Barbara and visits Murphy each week.   Prior to getting married, Murphy completed a marriage and family course through the Catholic Chapel program.

Murphy also reconciled with his family while in prison, and maintained consistent contact with his mother and siblings who reside on the east coast.   His siblings and mother traveled to California to celebrate Murphy's 50th birthday with him in 2006.

While in prison Murphy began attending AA and regularly attended for 16 years.   In 2004 he gave up his spot in the prison's official AA program because of limited space in the program and Murphy wanted to make room for others who wanted to attend.   Murphy continued to practice the 12-Step program after he left.   Murphy also participated in NA and substance abuse therapy programs and programs for personality development, enrichment, anger control, rational behavior training, self-esteem and assertiveness training.

Murphy completed academic course work while in prison, including 36 units through Chapman University.   He completed vocational training in electronics and obtained other job skills in jewelry fabrication and repair, electronic assembly and repair, typing and work processing and filing.   Murphy also trained for and obtained a license as a radiologic technologist.

During his more than 25 years in prison, Murphy has held a number of positions.   In 2007 he was working as a Lieutenant's clerk.   Murphy had also worked as a clerk in the watch office, education office, and mill.   He served as a hospital x-ray technician, a social services aide and psychiatric services aide.   He received consistent positive reports about his strong work ethic, and positive attitude.   His supervisor described him as “intelligent,” “highly skilled,” “honest and ethical,” “above average” possessing a “quiet and calm demeanor,” expressing “initiative, diligence, and patience” and showing a willingness to help others.   His superiors noted that he was well respected by his peers, supervisors and correctional officers at the prison.

Murphy also worked as an aide to disabled prisoners in the Assisted Daily Living unit at the prison.   His work with developmentally disabled prisoners was recognized by prison staff:  “Murphy and his inmate co-workers proved themselves to be the proverbial ‘cream of the crop,’ as their vital efforts are integral to the success of the Assisted Daily Living unit and in maintaining the highest standards while assigned to what may be considered the most challenging and demanding of all inmate jobs.”   On one occasion Murphy administered first aid to another prisoner who suffered a seizure.   A Correction Lieutenant commended Murphy for his assistance of the other prisoner who was in medical distress, noting that “Mr. Murphy, who is white, assisted a black inmate in obvious medical distress.   While these actions may be considered an exceptional act for the vast majority of the inmate population, it is my firm belief that this type of exceptional behavior is typical for inmate Murphy.”

Murphy was also recognized for coming to the aid of a correctional officer who, in May 2008, had been sprayed with pepper spray.   The officer noted that Murphy aided him at the risk of being attacked by other prisoners.   The officer wrote that of the “many thousands of inmates I have come to know over the past years, Mr. Murphy is unquestionably one of, if not the best-qualified inmate for parole.”

Murphy has no history of involvement with gangs, criminal activity or substance abuse while in prison.   In 25 years he had two “115” violation reports and three rule “128A” incident reports.” ⁴

The 128A incidents occurred in 1987 and 1988.   One concerned Murphy giving a false name to a correctional officer while Murphy was using a telephone.   The other two 128As involved Murphy possessing unauthorized items including a deck of cards, a lamp, a candle, an expired pass and a small television set.

Murphy's first 115 occurred in 1987, when Murphy was disciplined for stealing socks and a knitting needle.   According to Murphy he had taken these items so that he could trade them for office supplies for the unit he was working in at the time.

Murphy received his second 115 rule violation in January 2002 for “attempting to undermine the Catholic Chapel program.” ⁵  Prior to 2001, Murphy had participated in the Catholic Chapel program for about 16 years.   According to Father Van Guilder who ran the program at the prison from 1988 until 1999, Murphy had worked full time in the Chapel as one of the clerks and was also volunteered to read during the weekly service.   In 2001, a new priest took over the Catholic Chapel program at the prison.   The new Chaplain made a number of changes to the weekly service, including reducing the length of the Mass from one hour to twenty minutes, changing the choir and using different inmates to assist in the service.   Murphy decided he did not like the changes and no longer liked the quality of the service so he decided to stop attending the weekly Mass. Murphy stated that there were certain elements from Canon Law that were missing from the new service, and so he made the decision that he could no longer attend in good faith.   When asked by another inmate, Murphy stated that he could no longer attend something that “was less than perfect.”   Over the next several months four other “elders,” of the program also stopped attending the services, and eventually the attendance during the Mass dropped from about 200 attendees to about 50 people.   Murphy denied discouraging others from attending the service and stated that he never confronted the new priest, or threatened him because Murphy wanted to avoid confrontation.   Murphy said that the other inmates who were more involved in the daily running of the chapel and more versed on church law had more objections to the way the new priest operated the service than he did.   Murphy said that a few others did confront the priest, but Murphy stated that he, personally accepted that the new priest had to do what he felt was right and that Murphy decided that he could no longer participate in the program as a matter of conscience and thus his option at that point was to separate himself from the situation.   Nonetheless, Murphy and the four other “elders” received a 115 rule violation for the incident.

When asked about the situation during his 2007 parole suitability hearing, and in particular in response to a question of whether Murphy had felt threatened by the new priest and the changes to the service, Murphy stated that he did not think it was a matter of the new priest disrespecting him, but instead that his whole life had been based on his Catholic faith.   Murphy stated that he preferred the “old school” manner of the service and could not accept as a matter of good conscience the “new way” the service was being conducted.   When asked about the incident during the 2009 Board hearing, Murphy stated that he did not believe that he had done anything wrong, but did accept full responsibility.

D. Psychological Evaluations 1985-2004.

Murphy's psychological evaluations from 1985 through 2004 were supportive of Murphy's release.   The 1986 evaluation states that:  “[a]s to the instant offense, [Murphy] admits his guilt and states that he confessed his crime to the police after his arrest.   He admits his guilt to the instant offense which he describes as a physical altercation over a homosexual demand by the victim, resulting in death from a knife wound․  He expresses some remorse for his act of taking another life, but thinks it was a spontaneous and unpremeditated act.”

The 1990 evaluation reflected that Murphy's statement concerning the crime as:  “[Murphy] was helping a fellow alcoholic, the victim in the crime, and when that man turned and made homosexual demands Mr. Murphy said, in his drunken state, he became enraged and assaulted the victim.”   The 1990 evaluation also noted that Murphy had a “clear understanding that his previous alcoholism not only predisposed him toward the instant offense but affected all aspects of his daily functioning and social responsibility.”

The 1993 evaluation reported that Murphy continued to take increasing responsibility for his crime.   The 1994 evaluation report relates that:  “Murphy was reluctant to blame the victim or speak of earlier reports of homosexual pressure of the victim out of respect for the dead.  [Murphy] takes full responsibility for the murder, reporting that he overreacted to the provocation from the victim, who was blocking the exit from the [room].  [Murphy] claims he worked on his guilt and developed greater insight into his responsibility for the crime․”  The 1994 report indicated that Murphy described his crime as an “impulsive act of violence,” for which Murphy “accepts responsibility without blaming the victim” and had “expressed an adequate level of remorse for the victim.”   In 1999, the evaluator noted that Murphy's “version of the instant offense was consistent with his record and accounts he has given to previous evaluators.”   The report indicated that Murphy stated that he was heavily intoxicated at the time, that Maher made a homosexual advance towards him, and then when Murphy attempted to leave, Maher stopped him and pulled a knife.   Murphy stated that they struggled over the weapon, that he stabbed Maher and then cut the phone line to avoid apprehension and then fled.   According to the 1999 evaluation, Murphy “attributed his crime to his use of alcohol, fear [of] having been previously assaulted, and extreme anger.   His expressed remorse for the victim appeared to be genuine.”

The 2004 evaluation prepared by Dr. Walker summarized the findings of the prior nine clinical evaluations of Murphy.   In the 2004 evaluation Dr. Walker noted that the consensus opinion among the previous evaluators was that Murphy represented a decreased risk for future violence in the community as compared to other inmates.   During his 2004 psychological evaluation when Murphy reflected on the commitment offense he stated that:  “(The victim) lived in parole housing also - when he'd walk through the lobby other guys would hit him up for money.   I got mad about the others taking advantage of him, so I volunteered to help him, or go to the store for him.   At the time (of the offense), I was drunk and when he propositioned me, I took it as an insult, especially after I had been trying to help him.   Now I don't know exactly what he said, but I felt threatened, and we struggled.   I was angry, and I could've stopped, but I didn't.   My nature is to help someone if I can, especially if someone is weaker and easier to take advantage of.   I thought, when he propositioned me, that he was taking my kindness as an act of weakness.”   Dr. Walker further observed that Murphy's “version of the offense has been consistent over the years, particularly with regard to having felt propositioned by the victim, reacting angrily, and struggling with the victim over the victim's knife.”   When asked about the impact on the victim and his family, Murphy told Dr. Walker that “[Maher] didn't have a family, but I can only imagine what it would have been like for them, losing someone you love, especially in that situation.   I can never justify taking his life.   The only way to atone to society and to myself is to help others and be the best I can.”

Dr. Walker further found that:

“[T]he inmate had exhibited no incidence of violence, aggression, threat or property destruction while in prison of the past 21 years.   In this domain, the inmate presents a moderately low risk of future violence.   He has no record of substance abuse/possession while in prison for 21 years.   The inmate appears to have a working appreciation of the lifelong nature of his substance abuse problem.. [ ․ ][T]he inmate has readily accepted culpability for his actions in the murder, and has taken steps to improve himself and his ability to deal with life and inherent stressors and obstacles therein.   His behavioral control is excellent, given the complete absence of violence or aggression in his prison record.  [ ․ ] Risk assessment measures suggest that the inmate poses a low to moderately low likelihood to become involved in a violent offense if released into the free community.”

All of the evaluations dating back to 1986 recognized that Murphy presented a low potential for future danger or risk of violence.   The prior reports referenced Murphy's efforts to participate in prison therapy and personal development programs, his insight, coping mechanisms and his increased level of maturity, and impulse control as well as his commitment to avoiding alcohol.

E. Prior Board Parole Suitability Proceedings and Prior Habeas Corpus Proceedings in the Superior Court.

In March 1990, at Murphy's first parole suitability hearing, the Board denied him parole based primarily on the nature of the commitment offense which the Board found was carried out in an “especially heinous, atrocious and cruel and callous manner.”   The Board further indicated its belief that in view of his record, Murphy needed to attend therapy to learn to cope with stress in a non-destructive manner.

In March 1991, the Board denied Murphy parole for the second time.   The Board cited the nature of the commitment offense, and Murphy's other criminal offenses.   The Board also felt that Murphy needed to develop additional marketable skills and participate in therapy to cope with stressors.

In April 1993 Murphy was denied parole by the Board for the third time.   The Board cited for its denial Murphy's unstable social history as evidenced by his alcohol abuse beginning in high school and cited the cruel and dispassionate nature of the commitment offense.   The Board did, however, commend Murphy for his progress and development in participating in AA and educational programs.

In May 1994, the Board denied Murphy parole a fourth time.   The Board cited the commitment offense and Murphy's prior offenses-the 1981 robbery and 1982 car theft.   The Board also noted that Murphy had not yet sufficiently participated in therapy and other programs.   Nonetheless, the Board commended Murphy's efforts to upgrade himself educationally and vocationally.

In June of 1995 and June of 1997, July 1999, April 2001 and May 2002, the Board conducted parole suitability hearings and on all occasions denied Murphy parole.   The Board cited the nature of the commitment offense, Murphy's prior record, his unstable social history and history of alcohol abuse.⁶

Murphy's eleventh parole suitability hearing was conducted on March 7, 2007.   At the hearing Murphy testified concerning his background, his prison conduct and disciplinary record and the circumstances surrounding the commitment offense.   Murphy stated that his problems after leaving the military were caused by his lack of maturity and his abuse of alcohol.   Nonetheless he accepted full responsibility for and expressed remorse for his crimes.   He stated that he had learned how to cope with stress through prayer and exercise.   He reflected that he had learned how to respond under pressure without becoming overwhelmed and that his responses were more rational.   He testified that he had no problem “walking away from something.”

Murphy also presented 17 letters of support from family members and friends, correctional officers he had worked with at the prison, and two Catholic priests.   The letters expressed his family's commitment to his financial, emotional and social support for Murphy upon his release from prison.   The letters from the correctional officers described Murphy's excellent job performance, his high level of skill, competence and maturity.   They expressed their view that Murphy had done everything in his power to prepare for life after prison and that they had no reservations about the appropriateness of his release.   Murphy also presented evidence of his future plans upon his parole.   The Board was also presented evidence of Murphy's 2004 psychological evaluation.

At the conclusion of the hearing, the Board found that Murphy was not suitable for parole.   The Board based its decision on the commitment offense, and his prior history of criminality.   The Board also stated that Murphy's second 115-the attempt to undermine the Catholic Chapel program was “a major concern” to the Board.   The Board noted however, that Murphy had “programmed commendably” and obtained marketable skills, educational advancement, had a strong and positive work history and personal development and regularly participated in AA and NA. The Board also noted Murphy had acceptable parole plans and had positive psychological evaluations showing that he was a low to moderately low risk of future violence.

F. Current Proceedings.

On March 12, 2009, during the pendency of the habeas proceedings in this court, the Board conducted another parole hearing for Murphy.

1. The 2009 Board Hearing and Decision

At the 2009 Board hearing, the Board incorporated the facts of the commitment offense and Murphy's statements to police reflected in the 1983 POR. Murphy told the Board that he would not discuss the details of the commitment offense, but agreed to speak about his personal background before the crime, including his upbringing, his prior offenses, abuse of alcohol, and service in the military.   Murphy also described his marriage, his vocational training and work in prison and the licenses he had obtained and his participation in prison self-help programs.   Murphy presented numerous letters of support from family, friends, religious leaders and correctional officers all recommending and supporting Murphy's release.

As Murphy had in 2007, in 2009 Murphy told the Board that he planned to move to Santa Barbara to live with his wife of 17 years.   He presented a letter from his wife indicating that she worked for a hospital in Santa Barbara and that she had plans in place to assist Murphy in finding employment in the medical field as a radiological technologist.   She also expressed her commitment to support him financially should he be unable to find work.   Murphy had also identified a number of AA groups in the area and expressed a plan to participate in them.

During the 2009 hearing the Board asked Murphy about the 12-Step Program.   Specifically one commissioner questioned Murphy about the 8 th Step-requiring one to make a “list” of the people harmed by his alcohol abuse and his plans to make amends to the people on the list.   The commissioner asked Murphy whether the victim, Maher, was on his “list.”   Murphy told the commissioner that because Maher was dead and had no family he was not on Murphy's “list” for amends.   Murphy stated that:  “I can only make amends through my actions as I've tried to express in the past.   Working with the developmentally disabled, working with the mentally ill, basically in how I deal with other people on a one on one basis.”

The Board also discussed the 2008 psychological examination report prepared by Dr. Moreno.   The report reflected Dr. Moreno's view that Murphy had no signs of mental illness, that his future release plan was feasible and that he had good social support.   The Board noted that Dr. Moreno found, as the prior evaluators had also concluded, that Murphy's “overall risk assessment” was “low to moderate risk” for future violence.

However, the Board also quoted from the 2008 evaluation where Dr. Moreno noted that:  “several discrepancies remain between the inmate's version of the crime and what's reported in the POR.” According to the 2008 evaluation, the “discrepancies” included:  (1) the fact that Murphy told the probation officer and the police that he had assisted Maher on prior occasions but that several witnesses also told police that (as reported in the POR) that Maher neither liked or trusted Murphy;  (2) the evaluation also stated that Murphy had “denied stabbing victim,” and yet, evidence in the POR demonstrated that Murphy said that he “had cut someone up”;  and (3) Dr. Moreno compared Murphy's version of events - the victim propositioned him, an argument ensued, and Murphy accidentally killed Maher - to evidence in the POR which in Dr. Moreno's view “suggest[ed] that Mr. Murphy intended to rob the victim to get out of the state.”   Based on these “discrepancies” Dr. Moreno concluded that “the inmate has yet to accept full responsibility for his crime.”   When given an opportunity by the Board to respond to the 2008 evaluation report, Murphy's counsel complained that Dr. Moreno misread the POR. Murphy told the Board that he did not tell Dr. Moreno that he never cut or stabbed the victim;  Murphy pointed out that he had always admitted stabbing Maher, but that there were some aspects of the crime including some injuries inflicted that he did not remember because he was drunk at the time.   Murphy further told the Board:

“In response to conclusions Dr. Moreno documented in the psychological evaluations he prepared regarding my insight into the crime I can only conclude that perhaps I did not speak clearly enough or that Dr. Moreno misunderstood my response to his question.   To clarify this apparent miscommunication I have never failed to accept full responsibilities for the injuries that I inflicted upon Mr. Maher that resulted in his death.   It is true that I do not remember inflicting some of the injuries, which Mr. Maher sustained, but I do accept full responsibility for them.   I do remember choking and or strangling Mr. Maher, and I do remember driving the knife into his throat.   The other injuries, which Mr. Maher sustained, occurred when we were fighting.   Despite my efforts to dissect the struggle in my mind I cannot honestly state at which particular point I caused these injuries.   There is a crucial difference in not remembering the particular sequence of events or not having precise knowledge of what particular action resulted in which particular injury and denying responsibility for having caused the injury.   Again I assure you I accept full and complete responsibility for any and every injury I caused Mr. Maher to suffer.   And I accept full and complete responsibility for taking Mr. Maher's life.   Despite my sorrow or best intentions, I cannot undo or take back what I have done.   I cannot and will not ever forget the horror of my actions and that they resulted in Mr. Maher's death.”

At the conclusion of the hearing, the Board announced its decision to deny Murphy's request for parole.   The Board cited as a basis for its reversal the nature of the commitment offense, which the Board described as “especially heinous, atrocious, or cruel manner as it was done in a particularly violent fashion, and that the motive for the crime is trivial in relation to the offense.”   The Board also cited as a reason to deny parole, Murphy's prior criminality, specifically his 1981 conviction for robbery, his parole and unstable social history including drug and alcohol abuse prior to the commitment offense.

In addition, the Board referenced the 2008 psychological report and found Murphy “minimizes [his] conduct” in that he:

“denied cutting or stabbing the victim.   That the victim propositioned him, an argument ensued, and that he unwittingly killed Mr. Maher, and that all of his problems started after being in the service.   And the prisoner continued to state victim Maher pulled a knife on him, a struggle ensued, he was frightened, he dropped the knife.  ‘I was choking him, I grabbed his hand and forced it into him.   I don't know about the cut on his neck I don't know about a blunt instrument.   I don't know if anyone else went in afterward and did something to him.   I can only explain the scratch on his back and the wound in the front of his neck.’   In realizing this we clearly are confused by the fact that if he were so impaired regarding his intoxication, that he could not remember, we would find that it would be difficult for him to conceal evidence in the case.   And in this we saw in the probation report on page 10 that he met with a Mr. Gelprin after the event and was wearing Gelprin's pants and that Gelprin was given $4 or $5 by Murphy for the pants.   And we see that he was certainly able to conceal that evidence at that time so his state of mind must have been far clearer than his allegation over and over that he could not remember other parts of the events of the crime.”

Finally, the Board cited as a factor it had “questions about the prisoner's remorse” based on his remarks during the hearing about the 8th step of the AA 12-Step program.   The Board found it inadequate and a “very easy way to dispose of remorse” when Murphy stated that Mr. Maher was not on his “list” to make amends because Mr. Maher was dead and had no family.

The Board also stated that it considered Murphy's institutional record, which it described as a “good record.”   In contrast to 2007, the Board in 2009 did not state that it was denying parole based on Murphy's prison record.   In fact, the Board indicated that Murphy had programmed well while in prison, had many letters of support, and learned a trade and had adequate parole plans.   Nonetheless, the Board found Murphy unsuitable for parole because he “remains a present risk of danger if released.”   The Board concluded that Murphy needed at least three additional years of incarceration.

2. Current Habeas Proceedings

In June 2010, Murphy filed the instant petition for a writ of habeas corpus in this court challenging the Board's 2009 decision denying him parole.

DISCUSSION

Before this court, Murphy contends that the Board erred in denying him parole in 2009 because the Board's finding that he was not suitable for parole was not supported by “some evidence” in the record, including the findings that Murphy had minimized his conduct and failed to express adequate remorse for his actions.   In addition, Murphy argues that none of the factors cited by the Board are supported by any evidence that he currently presents an unreasonable risk.⁸  We begin our analysis discussing the governing legal principles, and then turn our attention to the Board's decision.

A. Legal Framework Governing Parole Suitability Assessments.

“The granting of parole is an essential part of our criminal justice system and is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities.  [Citations.]  Release on parole is said to be the rule, rather than the exception [citations] and the Board is required to 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․’  [Citation.]”  (In re Vasquez (2009) 170 Cal.App.4th 370, 379-380 (Vasquez ).)

The decision whether to grant parole is a subjective determination, guided by a number of factors, some objective, identified in Penal Code section 3041 and the Board's regulations.  (Cal.Code Regs., tit. 15, §§ 2281, 2402;  In re Rosenkrantz (2002) 29 Cal.4th 616, 660-661, 655 (Rosenkrantz ).)   The Governor's decision to affirm, modify, or reverse the decision of the Board rests on the same factors that guide the Board's decision (Cal. Const., art.   V, § 8, subd. (b)), and is based on “materials provided by the parole authority.”  (Pen.Code, § 3041.2, subd. (a).)  “Although these provisions contemplate that the Governor will undertake an independent, de novo review of the prisoner's suitability for parole, the Governor's review is limited to the same considerations that inform the Board's decision.”  (Rosenkrantz, supra, 29 Cal.4th at pp. 660-661.)

In making the suitability determination, the Board and the Governor must consider “[a]ll relevant, reliable information” (Cal.Code Regs., tit. 15, § 2402, subd. (b);  hereafter § 2402), such as the nature of the commitment offense including behavior before, during, and after the crime;  the prisoner's social history;  mental state;  criminal record;  attitude towards the crime;  and parole plans. (§ 2402, subd. (b).)  The circumstances that tend to show unsuitability for parole include that the inmate:  (1) committed the offense in a particularly heinous, atrocious, or cruel manner; ⁹  (2) possesses a previous record of violence;  (3) has an unstable social history;  (4) has previously sexually assaulted another individual in a sadistic manner;  (5) has a lengthy history of severe mental problems related to the offense;  and (6) has engaged in serious misconduct while in prison. (§ 2402, subd. (c).)  A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (§ 2402, subd. (b).)

Circumstances tending to show suitability for parole include that the inmate:  (1) does not possess a record of violent crime committed while a juvenile;  (2) has a stable social history;  (3) has shown signs of remorse;  (4) committed the crime as the result of significant stress in his life, especially if the stress had built over a long period of time;  (5) committed the criminal offense as a result of battered woman syndrome;  (6) lacks any significant history of violent crime;  (7) is of an age that reduces the probability of recidivism;  (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release;  and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (§ 2402, subd. (d).)

These criteria are “general guidelines,” illustrative rather than exclusive, and “ ‘the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board or Governor].’ ”  (Rosenkrantz, supra, 29 Cal.4th at p. 654;  § 2402, subds. (c), (d).)  Thus, the endeavor is to try “to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.”  (Rosenkrantz, supra, 29 Cal.4th at p. 655.)   Such a prediction requires analysis of individualized factors on a case-by-case basis.   While parole unsuitability factors need only be found by a preponderance of the evidence, the Governor's decision, like the Board's decision, must comport with due process.  (Id. at pp. 660, 679.)

B. Judicial Review

In Rosenkrantz, the California Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch.   The court held that “the judicial branch is authorized to review the factual basis of a decision of the Board denying parole ․ 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 on the factors specified by statute and regulation.”  (Rosenkrantz, supra, 29 Cal.4th at p. 658.)

In conducting this independent review of the Board's decision, “[i]t is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole.”  (Rosenkrantz, supra, 29 Cal.4th 616, 677.)  “The court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's [or Board's] decision.”  (Ibid.)

In In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence ), the Supreme Court reaffirmed its analysis in Rosenkrantz, supra, 29 Cal.4th 616, that the decision of parole suitability is subject to the “some evidence” standard of review.  (Lawrence, supra, 44 Cal.4th at p. 1205.)   However, in doing so it recognized that Rosenkrantz 's characterization of that standard as extremely deferential and requiring “[o]nly a modicum of evidence” (Rosenkrantz, supra, 29 Cal.4th at p. 677), had generated confusion and disagreement among the lower courts “regarding the precise contours of the ‘some evidence’ standard.”  (Lawrence, supra, 44 Cal.4th at p. 1206.)   The court in Lawrence, recognizing that the legislative scheme contemplates “an assessment of an inmate's current dangerousness” (Id. at p. 1205.)  “[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.   If simply pointing to the existence of an unsuitability factor and then acknowledging the existence of suitability factors were sufficient to establish that a parole decision was not arbitrary, and that it was supported by ‘some evidence,’ a reviewing court would be forced to affirm any denial-of-parole decision linked to the mere existence of certain facts in the record, even if those facts have no bearing on the paramount statutory inquiry.   Such a standard, because it would leave potentially arbitrary decisions of the Board or the Governor intact, would be incompatible with our recognition that an inmate's right to due process ‘cannot exist in any practical sense without a remedy against its abrogation.’ ”  (Id. at p. 1211, quoting Rosenkrantz, supra, 29 Cal.4th at p. 664.)   Accordingly the Court in Lawrence clarified that the analysis required when reviewing a decision relating to a prisoner's current suitability for parole 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.”   (Lawrence, supra, 44 Cal.4th at p. 1212.)

“It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision;  the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.”  (Lawrence, supra, 44 Cal.4th at p. 1212.)   Indeed not only must there be some evidence to support the Board's factual findings there must be some connection between the findings and the conclusion that the inmate is currently dangerous.   As to this standard, the court in Lawrence further explained that although it was “unquestionably deferential, [it was] certainly ․ 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.”  (Lawrence, supra, 44 Cal.4th at p. 1210.)   In other words, the exceedingly deferential nature of the “some evidence” standard does not convert a reviewing court “ ‘into a potted plant.’ ”  (Lawrence, supra, 44 Cal.4th at pp. 1211-1212, quoting In re Scott (2004) 119 Cal.App.4th 871, 898 (Scott I ).)   We must ensure that the denial of parole is based on “some evidence” of current dangerousness.  “[S]uch evidence ‘ “must have some indicia of reliability.” ” ’  (Scott I, at p. 899.)  “[T]he ‘some evidence’ test may be understood as meaning that suitability determinations must have some rational basis in fact.”  (In re Scott (2005) 133 Cal.App.4th 573, 590, fn.   6 (Scott II ).)

Because consideration of public safety is the primary statutory issue to be determined in deciding whether an inmate should be granted parole (Pen.Code, § 3041, subd. (b);  Lawrence, supra, 44 Cal.4th at p. 1205), “[t]his inquiry is, by necessity and by statutory mandate, an individualized one,” and requires a court to consider the circumstances surrounding the commitment offense, along with the other facts in the record, to determine whether an inmate poses a current danger to public safety.  (In re Shaputis (2008) 44 Cal.4th 1241, 1254-1255 (Shaputis ).)  “Relevance to the issue of the inmate's current risk to public safety is the key.”  (Lawrence, supra, 44 Cal.4th at p. 1219.)

Regarding such consideration, “although the Board and Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, 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 postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.”   (Lawrence, supra, 44 Cal.4th at p. 1214.)

In this case, because the current petition for habeas relief is an original proceeding we independently review the record to determine whether there is some evidence to support the Board's decision to deny parole for Murphy.   (Scott I, supra, 119 Cal.App.4th at p. 884.)   In other words, “we independently review the record [citation] to determine ‘whether the identified facts [by the Board] are probative to the central issue of current dangerousness when considered in light of the full record before [him].’  [Citation.]”  (Vasquez, supra, 170 Cal.App.4th at pp. 382-383.)

C. Analysis of the Board's 2009 Decision to Deny Murphy Parole.

The Board based it's denial of Murphy's request for parole on the following:  (1) the commitment offense which it described as “especially heinous, atrocious, or cruel manner as it was done in a particularly violent fashion, and that the motive for the crime is trivial in relation to the offense”;  (2) Murphy's prior criminality, specifically his 1981 conviction for robbery, parole and unstable social history including drug and alcohol abuse prior to the commitment offense;  and (3) a finding that Murphy had “minimized his conduct” based on the Board's “confusion” as to the fact that Murphy could not recall certain aspects of the crime, and yet was able to conceal evidence afterwards;  and a finding Murphy had not shown adequate remorse based on the omission of the victim from Murphy's “list” to make amends as required by the 8th Step of the AA 12-Step program.

We examine each of the factors mentioned by the Board in determining whether the Board erred in concluding Murphy was unsuitable for parole.

1. Prior Crimes, Escalating Pattern of Criminality and Social History.

There is no evidence in the record that Murphy had a prior juvenile criminal history.   However, he admitted that he abused alcohol and occasionally marijuana from the time he was a teenager until he committed the crimes for which he now seeks parole.   Moreover, Murphy has admitted that alcohol played a significant role in his life before and during the commitment offense.   Also undisputed is the evidence that Murphy had a prior robbery conviction in 1981, and that he stole a vehicle shortly after he murdered Maher.   Thus there is no question that there is “some evidence” in the record to support the existence of these facts and circumstances, and that based on these facts the Board could reasonably conclude that in 1981 and 1982 Murphy had an escalating pattern of criminality.

This notwithstanding, in our view no reasonable inference can be drawn from this evidence to suggest that Murphy's criminal history has predictive value in determining his current risk to the public.   Murphy is now more than 50 years old.   Murphy's crimes were committed when he was 25, out of work, homeless and abusing alcohol.   Murphy has since stopped using alcohol, and there is no evidence that he has abused alcohol during his more than 25 years in prison.   He has actively participated AA, NA and understands that he has a life-long substance abuse problem and appears to be committed to remaining sober.   The Board recognized his commitment to sobriety.   The Board also observed that Murphy has marketable skills, realistic parole employment plans and a place to live after he is released.   The Board also acknowledged Murphy has a strong network of family and financial support.   Because of the strides Murphy made in prison to address the circumstance of his life prior to his incarceration, because so much time has elapsed since Murphy engaged in this criminal conduct, and because his alcohol abuse appears to be inseparable from his crimes, Murphy's criminal history is simply too far removed both in time and behavioral attributes to constitute reasonable and reliable evidence that he is currently dangerous.   Therefore, this immutable factor is not “some evidence” to support the Board's decision to deny Murphy parole.

2. Minimization of Conduct and Remorse

An inmate's acceptance of responsibility and signs of remorse may be considered in determining the inmate's suitability for parole.  (Cal.Code Regs., tit. 15, § 2402, subd. (d)(3);  Shaputis, supra, 44 Cal.4th at p. 1246.) ¹⁰  In addition, to the extent these factors show an inmate lacks insight into and understanding of the behavior precipitating the commitment offense, they can support a conclusion the inmate is currently dangerous.   (Shaputis, supra, 44 Cal.4th at p. 1260.)   Expressions of insight and remorse will vary from inmate to inmate and there are no special words for an inmate to articulate in order to communicate he or she has committed to ending a previous pattern of violent or antisocial behavior.  (Shaputis, supra, 44 Cal.4th at p. 1260, fn. 18.)   Like all evidence relied upon to find an inmate unsuitable for release on parole, findings that the inmate has minimized his or her conduct and/or not demonstrated remorse are probative of unsuitability only to the extent that they are both demonstrably shown by the record and rationally indicative of the inmate's current dangerousness.

In addition, the Board, “is precluded from conditioning a prisoner's parole on an admission of guilt.  (Pen.Code, § 5011, subd. (b);  Cal.Code Regs, tit. 15, § 2236.)”  (In re Palermo (2009) 171 Cal.App.4th 1096, 1110 (Palermo ).)   Furthermore an inmate need not agree or adopt the official version of a crime in order to demonstrate insight and remorse.  (Ibid.)

a) Minimization of Conduct

In 2009 the Board, in denying the request for parole, referenced the 2008 psychological report in passing and found Murphy “minimizes [his] conduct.”   The Board cited as supportive of this finding its “confusion” over the fact that Murphy claimed to be intoxicated and unable to remember certain aspects of the crime, and yet had the presence of mind to conceal evidence-the Board noted that Murphy “was certainly able to conceal that evidence at that time so his state of mind must have been far clearer than his allegation over and over that he could not remember other parts of the events of the crime.”

To be sure there is “some evidence” in the record that Murphy has claimed that he was intoxicated when he committed the crime and that he recalled certain details of the crime, including the events that precipitated it, the struggle over the knife and the fact that he stabbed and strangled Maher.   There is also evidence that Murphy has stated that he cannot recall other details-including inflicting some of the injuries on Maher.   In addition, the record contains evidence, including Murphy's admissions and statements of other witnesses, that Murphy had the presence of mind to conceal evidence afterwards.   Murphy has consistently related this version of events to psychological evaluators and at prior hearings before the Board for almost 20 years.   Most significantly, at all previous Board hearings before 2009, this version of events was apparently accepted by the Board;  no prior Board cited this evidence, or expressed any confusion, concern over any inconsistencies in his version or any lingering doubt about Murphy's memory of certain events.   It appears that no other Board perceived failure of Murphy to take responsibility for his actions based on his description of the crime.   Indeed, no prior Board, interpreting this same evidence has concluded that Murphy “minimized his conduct.”   Murphy's version of events has remained the same for nearly two decades.   In this case, the only things that have changed during this time period are composition of the Board and, in the shadow cast by Shaputis and Lawrenc e, the 2009 Board's reliance upon amorphous factors such as “remorse” and “responsibility.”   As this court concluded in Gaul, the Board cannot rely solely on outdated evidence to find that an inmate is unsuitable for parole.  (See In re Gaul (2009) 170 Cal.App.4th 20, 38-39 [rejecting the Board's reliance on an outdated psychological report to find the inmate unsuitable] disapproved on another ground in In re Prather (2010) 50 Cal.4th 238.)   Similarly here, the Board cannot simply rely on old evidence recast to fit recent case law pronouncements concerning responsibility, remorse and insight to support its finding of unsuitability.   Given the fact that all prior Boards have accepted, at least implicitly, this same static evidence without comment, the Board cannot now cite it as a basis for concluding that Murphy is unsuitable for parole while ignoring all other more recent evidence in the record suggesting that he is suitable for release on parole.  (See Vasquez, supra, 170 Cal.App.4th at pp.   385-386 [Governor could not ignore fact that inmate no longer claimed self-defense at the hearings though had mentioned it in earlier evaluations;  later evaluations showed inmate much improved, Governor only relied on early ones];  Lawrence, supra, 44 Cal.4th at p. 1224 [reliance upon outdated psychological reports clearly contradicted by petitioner's successful participation in years of intensive therapy, a long series of reports declaring petitioner to be free of psychological problems and no longer a threat to public safety, and petitioner's own insight into her participation in this crime does not supply some evidence justifying the Governor's conclusion that petitioner continues to pose a threat to public safety].)

In any event, we also conclude that the 2009 Board's interpretation of this evidence-as supportive of a finding that he has minimized his conduct-is not reasonable based on the evidence before the Board.   Indeed, the fact that Murphy consistently remembers parts of the crime and not others is attributable to his extensive drinking prior to the crime and the affects of alcohol on his perceptions during the crime.   Likewise the fact that afterwards, he was able to take certain actions to conceal his crime also reflects that he had stopped drinking for some period after he left Maher's room.   This construction of the evidence is rational based on Murphy's consistent expression of the same version of the essential facts since his arrest, his repeated statements during the last 25 years that he accepts full responsibility and remorse for his actions and his unwavering acknowledgment of the role alcohol played in his conduct at the time.   In our view, the evidence cited by the Board does not rationally lead to the conclusion reached by the Board in 2009-that Murphy minimizes his conduct.

In addition, the 2008 psychological evaluation does not support the Board's decision,¹¹ as Dr. Moreno's conclusions in the 2008 evaluation lack a rational basis in the record.   Dr. Moreno believed that Murphy failed to accept full responsibility for his crime based on what Dr. Moreno perceived of as three “discrepancies” between Murphy's version and that reported in the POR.

Dr. Moreno first cited evidence that Murphy claimed to have assisted the victim in the past and that they were friends, while other witnesses stated that the victim did not like or trust Murphy.   To the extent that this constitutes a “discrepancy” in the evidence, we note that Murphy's version of the relationship is consistent with the physical evidence in the case-indeed there was no signs of forced entry into Maher's room;  and the evidence indicated that Murphy had been allowed in by the victim.   Furthermore, any discrepancy is insignificant and completely unrelated to Murphy's role in the crime.   At most it shows that Murphy misunderstood the nature of his relationship with Maher prior to the offense.   Indeed, Murphy has never attempted to justify his actions based on a claim that he and Maher were friends or that he was helping Maher at the time.   Thus, the interpretation of this evidence as proof that Murphy has failed to accept responsibility or has minimized his conduct simply is not a reasonable one.

Second, Dr. Moreno cites to evidence that Murphy had “denied cutting or stabbing the victim,” but that as reflected in the POR, Murphy told witnesses that he had “cut someone up.”   This “discrepancy” has no support in the record.   Our review of the evidence discloses that Murphy has always stated that he remembers stabbing the victim, and has always claimed that he cannot remember inflicting all of the wounds.   This version is reflected in the POR and in the evidence presented at the Board hearing in 2009 and in prior hearings.

Similarly, Dr. Moreno's third discrepancy does not withstand scrutiny in view of the record.   In particular, Dr. Moreno pointed out that although Murphy described the crime as - Murphy had been propositioned, argued and unwittingly killed the victim - there was evidence in the POR to suggest that he intended to “rob the victim to get out of the state.”   There is no doubt, nor has Murphy ever denied that he robbed Maher after he assaulted him.   However, a review of the POR reflects that the statement upon which Dr. Moreno relies - by Murphy about the need to commit a robbery to get out of the state - was made by Murphy after he killed Maher not before.   Murphy made the statement to Mr. Jones during the same conversation in which Murphy told Jones that he had gotten blood on Jones' jacket.   Murphy's statement to Jones about the need to commit a robbery and flee the state, when viewed in the proper context, reflected Murphy's desire to avoid arrest for killing Maher, not Murphy's motive for killing him.

Thus, Dr. Moreno's conclusions concerning “discrepancies” between the evidence and Murphy's version and Dr. Moreno's view that Murphy had failed to accept full responsibility lacks a basis in the record and are not based on a reasonable interpretation of the evidence.   Consequently, these matters do not constitute “some evidence” supporting the Board's factual finding that Murphy minimized his conduct.   Furthermore, there does not appear to be any rational nexus between this evidence and present dangerousness.   Indeed, as discussed elsewhere herein, Murphy has consistently and repeatedly accepted responsibility for his actions and acknowledged his role in his criminal conduct.  (See In re Moses (2010) 182 Cal.App.4th 1279, 1310 [finding minor differences between inmate's version and other evidence insignificant and not evidence of current dangerousness where inmate had participated in prison programs, had an excellent prison record and repeatedly acknowledged he had committed the murder and expressed remorse for the crime].) ¹²

b) Remorse

The Board also cited as a factor in support of its decision to deny parole that it had “questions about the prisoner's remorse” based on Murphy's remarks during the 2009 hearing about the 8th step of the AA 12-Step program.   The Board found it inadequate and a “very easy way to dispose of remorse” when Murphy stated that Mr. Maher was not on his “list” to make amends because Mr. Maher was dead and had no family.   According to the tenets of the AA program the 8th Step is to make a list of all persons harmed, and to make amends to them all.   The purpose of the step is to “repair the damage done in the past.”  (See A.A. Big Book, p. 76)

It is true that during the 2009 Board hearing Murphy stated that Maher was not on his “list” under the 8th Step. However, the Board's interpretation of this evidence as a demonstration that Murphy lacked remorse is not reasonable based on the fact that the victim had no family and was dead.   One simply cannot make amends to someone who is dead, so placing Maher on “a list” would serve no purpose.   Moreover, the Board's conclusion ignores other evidence in the record of Murphy's efforts to make amends to and assist others in need.   As Murphy told the Board in 2009:  “I can only make amends through my actions as I've tried to express in the past.   Working with the developmentally disabled, working with the mentally ill, basically in how I deal with other people on a one on one basis.”   Furthermore, at the Board hearings in 2004 and 2009 Murphy testified at length concerning his feelings of remorse and responsibility.   “[A]cceptance of responsibility works in favor of release ‘[n]o matter how longstanding or recent it is,’ so long as the inmate ‘genuinely accepts responsibility․’ ”  (In re Elkins (2006) 144 Cal.App.4th 475.)   Consequently, we conclude there is not “some evidence” that Murphy has shown inadequate remorse for his crime.

In any event, the Board does not articulate a rational nexus between these discrepancies and present dangerousness, and we fail to see such a connection, particularly in light of Murphy's taking responsibility for the commitment offense and his repeated expressions of remorse since 1983.

3. The Commitment Offense

We agree with the Board that the circumstances of the commitment offense are despicable and showed a callous and cruel disregard for Maher's life.   They fully justify Murphy's conviction and sentence for second-degree murder.   However, even though there is some evidence to support the finding that Murphy's second-degree murder was committed in a cruel and callous manner and the motive was concededly trivial (§ 2402, subd. (c)(1)(E)), such reason would only provide “some evidence” to support the ultimate conclusion and denial of parole here if there were other facts in the record, such as the inmate's history before and after the offense or the inmate's current demeanor and mental state, to provide a “rational nexus” for concluding Murphy's offense continues to be predictive of current dangerousness.  (Lawrence, supra, 44 Cal.4th at pp. 1210, 1213, 1221.)   As the court in Lawrence stated, “the mere existence of a regulatory factor establishing unsuitability does not necessarily constitute ‘some evidence’ that the parolee's release unreasonably endangers public safety.  [Citation.]”  (Id. at p. 1225.)

It is certainly possible that the commitment offense, an effort to minimize one's crime, and inadequate remorse could, when considered together, provide a “rational nexus” for concluding that the commitment offense continues to be predictive of current dangerousness.   However, as we have discussed elsewhere herein, the Board's interpretation of Murphy's acceptance of responsibility and remorse is unreasonable inferences based on the facts before the Board.   Nor are there other facts or current circumstances in this record, such as Murphy's pre- or post-incarceration history, or his demeanor and mental state, to show that the implications regarding his dangerousness that derive from his commitment offense remain probative to the determination of a continuing threat to public safety.   Thus, based on the record before us, the commitment offense, notwithstanding its nature, has not been shown to be relevant to the ultimate determination of Murphy's current dangerousness.

In sum, there is not “some evidence” on the record before the Board during the 2009 parole suitability hearing to support the Board's determination that Murphy posed an unreasonably risk of danger to society if released on parole.

D. Remedy

Having concluded that the Board erred in denying Murphy's 2009 request for parole, we turn our attention to the appropriate remedy.   Murphy urges us to order his immediate release from prison.   However, we are bound by the Supreme Court's recent decision in In re Prather, supra, 50 Cal.4th at page 258, holding that the remedy to which an inmate is entitled in these circumstances is to remand to the Board for reconsideration in light of this decision.   Thus as directed by Prather, the Board should “conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of the court․”  (Ibid.) The Board may not rely solely on evidence we have rejected as insufficient.   But the Board may “evaluate the full record -including evidence previously considered by the Board, as well as additional evidence not presented at prior parole hearings.”  (Ibid.)

DISPOSITION

The petition for writ of habeas corpus is granted.   The Board is directed to vacate its decision of March 12, 2009, and to conduct a new parole suitability hearing within 60 days of the finality of this decision.   In the interests of justice and to prevent frustration of the relief granted, this decision shall be final as to this court five days after it is filed.  (Cal. Rules of Court, rule 8.387(b)(3)(A);  In re Aguilar (2008) 168 Cal.App.4th 1479, 1492.)

We concur:

FOOTNOTES

FN1. Murphy described his father as a “functional alcoholic” who routinely worked tow jobs and could sometimes be “physically punishing.”.  FN1. Murphy described his father as a “functional alcoholic” who routinely worked tow jobs and could sometimes be “physically punishing.”

FN2. The description of the commitment crime is taken from the transcript of Murphy's 2007 parole suitability hearing.   At the hearing, the presiding commissioner cited to the offense summary from the Department of Corrections Case Summary department prepared for Murphy's sentencing in 1983..  FN2. The description of the commitment crime is taken from the transcript of Murphy's 2007 parole suitability hearing.   At the hearing, the presiding commissioner cited to the offense summary from the Department of Corrections Case Summary department prepared for Murphy's sentencing in 1983.

FN3. Though the victim was legally blind, he could read and was not totally disabled by his blindness..  FN3. Though the victim was legally blind, he could read and was not totally disabled by his blindness.

FN4. A “115” report documents misconduct believed to be a violation of the law that is not minor in nature, while a “128” report documents incidents of minor misconduct.  (Cal.Code Reg., tit. 15, § 3312, subd. (a)(2);  In re Gray (2007) 151 Cal.App.4th 379, 389.).  FN4. A “115” report documents misconduct believed to be a violation of the law that is not minor in nature, while a “128” report documents incidents of minor misconduct.  (Cal.Code Reg., tit. 15, § 3312, subd. (a)(2);  In re Gray (2007) 151 Cal.App.4th 379, 389.)

FN5. The official allegations against him included a claim that from early 2001 until December 2001 he “conspired with” four other named inmates to:  (1) dissuade the free participation of other inmates in the Catholic religious program;  (2) make statements of a threatening nature against Father R. Frances Stevenson;  and (3) negatively affect the employment of Father Stevenson.”   At the time of the 2007 parole suitability hearing, Murphy was appealing the “guilty” finding on the allegations..  FN5. The official allegations against him included a claim that from early 2001 until December 2001 he “conspired with” four other named inmates to:  (1) dissuade the free participation of other inmates in the Catholic religious program;  (2) make statements of a threatening nature against Father R. Frances Stevenson;  and (3) negatively affect the employment of Father Stevenson.”   At the time of the 2007 parole suitability hearing, Murphy was appealing the “guilty” finding on the allegations.

FN6. The Board also denied Murphy parole in August 2004 after his tenth parole hearing;  however, the recording from the hearing was not transcribed..  FN6. The Board also denied Murphy parole in August 2004 after his tenth parole hearing;  however, the recording from the hearing was not transcribed.

FN7. This petition was dismissed as moot by separate order on November 18, 2010..  FN7. This petition was dismissed as moot by separate order on November 18, 2010.

FN8. Murphy also claims that the application of “Marsy's Law” (enacted in 2008), violates the ex post facto and due process clauses of the state and federal constitutions.   In view of our conclusion here, we do not address this issue..  FN8. Murphy also claims that the application of “Marsy's Law” (enacted in 2008), violates the ex post facto and due process clauses of the state and federal constitutions.   In view of our conclusion here, we do not address this issue.

FN9. Factors that support the finding the crime was committed “in an especially heinous, atrocious or cruel manner” (§ 2402, subd. (c)(1)), include the following:  (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 that demonstrates an exceptionally callous disregard for human suffering;  and (E) the motive for the crime is inexplicable or very trivial in relation to the offense..  FN9. Factors that support the finding the crime was committed “in an especially heinous, atrocious or cruel manner” (§ 2402, subd. (c)(1)), include the following:  (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 that demonstrates an exceptionally callous disregard for human suffering;  and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.

FN10. An inmate cannot, however, be required to discuss the circumstances of the commitment offense.  (Pen.Code, § 5011;  Cal.Code Regs., tit. 15, § 2236.)   Nonetheless, if an inmate chooses to discuss the circumstances of the commitment offense, or the inmate's responsibility and remorse for an offense, the Board and Governor may consider the inmate's remarks to the extent the remarks are relevant to the inmate's parole suitability.  (Cal.Code Regs., tit. 15, § 2402, subd. (b) [“All relevant, reliable information available to the panel shall be considered in determining suitability for parole.”].).  FN10. An inmate cannot, however, be required to discuss the circumstances of the commitment offense.  (Pen.Code, § 5011;  Cal.Code Regs., tit. 15, § 2236.)   Nonetheless, if an inmate chooses to discuss the circumstances of the commitment offense, or the inmate's responsibility and remorse for an offense, the Board and Governor may consider the inmate's remarks to the extent the remarks are relevant to the inmate's parole suitability.  (Cal.Code Regs., tit. 15, § 2402, subd. (b) [“All relevant, reliable information available to the panel shall be considered in determining suitability for parole.”].)

FN11. At the 2009 Board hearing, the Board did not expressly state it had relied on Dr. Moreno's conclusions on the issue of whether Murphy had accepted responsibility for his actions..  FN11. At the 2009 Board hearing, the Board did not expressly state it had relied on Dr. Moreno's conclusions on the issue of whether Murphy had accepted responsibility for his actions.

FN12. In addition, we note that Dr. Moreno reached essentially the same conclusion as prior evaluators as to the overall risk assessment of Murphy-that he presented a low to moderate level for the future risk of violence..  FN12. In addition, we note that Dr. Moreno reached essentially the same conclusion as prior evaluators as to the overall risk assessment of Murphy-that he presented a low to moderate level for the future risk of violence.

PERLUSS, P. J. ZELON, J.