IN RE: MARK JEFFREY JONES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant J. Hartley, Warden at the Avenal State Prison, appeals from the Los Angeles County Superior Court's June 10, 2010 order granting life prisoner Mark Jeffrey Jones's petition for writ of habeas corpus.   The order reverses the Governor's decision which itself reversed the decision of the Parole Board granting parole to Mr. Jones.

Appellant contends that the superior court erred in reversing the Governor's decision because some evidence supported the Governor's finding that Mr. Jones posed an unreasonable risk of danger to public safety if released from prison.   Appellant also contends that even if the court did not err in reversing the Governor's decision, the court erred in reinstating the Board's decision and ordering Mr. Jones released on parole.   We affirm the trial court's order in part and reverse in part.

Background

In 1984, Mr. Jones was charged with robbery and murder.   He submitted the issue of guilt on the preliminary hearing transcript, was convicted of second degree murder and robbery and was sentenced to 15 years to life in state prison.   Mr. Jones was seventeen years old at the time of the offenses.

The murder occurred after Mr. Jones and two other men decided to rob Thomas Ortiz who was standing with a woman and a young boy at a payphone.   Mr. Jones was a gang associate and his two companions were apparently gang members.   They were joined by two women, and the group of five approached and surrounded Mr. Ortiz.   Mr. Jones demanded money.   When Mr. Ortiz did not produce any money, Mr. Jones grabbed a gold chain from his neck and shot him once in the chest.   Mr. Ortiz died shortly thereafter.

Mr. Jones's criminal history consisted of a juvenile adjudication for burglary in 1978 and one for robbery in 1981.

In 1986, while in prison, Mr. Jones was convicted of battery on a non-prisoner in violation of Penal Code section 4501.1 and sentenced to a consecutive two-year term.   He was disciplined 4 times for rules violations, the last occurring in 1991.   He was counseled 17 times for minor misconduct, the last occurring in 1999.   Mr. Jones has been entirely free from disciplinary actions since 1999.

Over the course of his imprisonment, Mr. Jones participated in educational and vocational programs.   In 1989, he earned his General Equivalency Degree.   He completed vocational training in Graphic Arts and worked in landscaping, sewing machine operations, painting and metal powder coating.   Since 1999, Mr. Jones has worked in the metal fabrications program through the Prison Industry Authority and has become a lead man.   His responsibilities include training new employees and implementing transitions to new product lines.   His work reviews range from above average to exceptional.

Mr. Jones participated in a variety of self-help programs.   Beginning in 1996, he started to amass a fairly significant amount of self-help, including Criminon, Hands of Peace, Conflict Resolution, Morals and Values, Kairos, Free at Last, Advanced Life Plan for Recovery, Breaking Barriers, and Way to Heaven.   Mr. Jones told the Parole Board that one of his most useful courses was conflict resolution, and that he had been able to apply it in prison, particularly in sports activities, which could get a little heated.   He had learned to step away and not argue in those situations.

Although Mr. Jones has never abused alcohol or drugs, he also participated in Alcoholics Anonymous/Narcotics Anonymous.   He chose to participate in that program because his grandmother was an alcoholic, but he found many principles of the underlying twelve step program to be useful.   Mr. Jones attended church intermittently for a long time and has been very active in religious activities since about 2005.

Since 2004, Mr. Jones has been participating in the Youth Adult Awareness Program (YAAP), which meets every week.   YAAP works with the State Probation Department to help at-risk youth make better decisions and avoid criminality.   Only 50 inmates may participate in YAAP. Mr. Jones was the vice chairman at the time of the 2009 parole hearing, his second term in that position.   Mr. Jones shared his testimony with the at-risk youth and explained to them the value of education, the importance of listening to their parents and the need to make good choices.

Mr. Jones expressed remorse for his crime, telling the Parole Board:  “I am very sorry for taking Mr. Ortiz's life.   That's something that sticks with me every day.”   Mr. Jones added:  “I understand what I did.   And I know what I did was wrong, you know.   I'm very sorry for what I did.”   Mr. Jones told his evaluating psychologist:  “[Mr. Ortiz] didn't deserve what happened to him.”   He added:  “I often, like to apologize to my victim ․ I say a prayer, ask for forgiveness.”

Mr. Jones had several offers of residence upon parole.   One was from Partnership for Re-entry (PREP), which offered a clerical job as well as a place to stay.   Promise Keepers, a Christian men's organization, also offered Mr. Jones a place to stay.   An organization either called or located on Delancey Street also offered Mr. Jones a place.   Mr. Jones's preferred option was to stay with his mother, who had moved back to Los Angeles to be able to support him on parole.   Mr. Jones planned to take courses to learn to operate heavy equipment, including trucks, upon parole.

The 2008 psychological evaluation placed Mr. Jones at low risk for future violence.   The report found that since the last parole hearing, Mr. Jones had continued to program in a stable and positive manner and had expressed prosocial behaviors and attitudes.

In granting Mr. Jones parole in 2009, the Board concluded that Mr. Jones would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison.   The Board found the life offense “troubling and disturbing” but found that Mr. Jones had made a decision to change, had done serious reflection, participated in self-help programs, changed over time, and gained insight into and accepted responsibility for the crimes and therefore had the ability to prevent himself from committing crimes in the future.

On June 10, 2009, the Governor reversed the Board's decision, as is discussed in more detail below.   Mr. Jones filed a petition for writ of habeas corpus in the superior court.   The court found that the Governor's decision that Mr. Jones would pose an unreasonable risk of danger to public safety if released on parole was not supported by some evidence.   The court reinstated the decision of the Board granting parole.

Discussion

Appellant contends that some evidence supports the Governor's decision to deny parole, and so the decision of the superior court reversing the Governor must be reversed.   We do not agree.

The trial court's findings were based solely upon documentary evidence.   Accordingly, we independently review the record.  (In re Rosenkrantz (2002) 29 Cal.4th 616, 677.)

In determining whether to release a life inmate to the public, the parole authority considers “[a]ll relevant, reliable information available” and any “information which bears on the prisoner's suitability for release.”   (Cal.Code Regs., tit. 15, § 2402,

subd. (b).) “[T]he Governor has discretion to be ‘more stringent or cautious' [than the Board] in determining whether a [prisoner] poses an unreasonable risk to public safety.”  (In re Lawrence (2008) 44 Cal.4th 1181, 1204.)

“[W]hen a court reviews a decision of the Board or the Governor [denying parole], 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.  [Citations.]”  (In re Lawrence, supra, 44 Cal.4th at p. 1212.)  “This standard is unquestionably deferential, but certainly is not toothless.”  (Id. at p. 1210.)

The Governor summarized his decision to deny parole as follows:  “The gravity of the crime supports my decision, but I am particularly troubled by the information that Jones has not gained sufficient insight into the circumstances of his offense or accepted full responsibility for his actions, by the concerns raised in his 2008 mental health evaluation, and by his minimal recent efforts to enhance his ability to function within the law.   This evidence indicates to me that Jones still poses an unreasonable risk of recidivism and violence and that his release from prison at this time would pose an unreasonable risk to public safety.”

1. Gravity of the life offense

The Governor found that the life crime, the robbery and murder of Mr. Ortiz, “was especially atrocious.   The victim was unarmed and outnumbered by Jones and his friends.   Yet, they robbed the victim and Jones shot him at close range.   Jones' actions demonstrated an exceptionally callous disregard for human life and suffering.   Moreover, his motive for the crime – he told the 2009 Board that his crime partner encouraged him to shoot the victim during the robbery –was exceedingly trivial in relation to the magnitude of the crime he committed.”

There is no evidence to support the Governor's finding that the murder showed an exceptionally callous disregard for human life and suffering.   An offense shows an exceptionally callous disregard for life and suffering when it is more aggravated or violent than ordinarily seen, such as those involving severe trauma, “where ‘[d]eath resulted from severe trauma inflicted with deadly intensity;  e.g., beating, clubbing, stabbing, strangulation, suffocation, burning, multiple wounds inflicted with a weapon not resulting in immediate death or actions calculated to induce terror in the victim.’ ”  (See In re Scott (2004) 119 Cal.App.4th 871, 892.)   Mr. Jones shot Mr. Ortiz once, which is the minimum number of gunshots required for murder.   The fact that the victim was unarmed and outnumbered does not make the offense more aggravated or violent than ordinarily seen.

In order for motive to be a negative factor in assessing parole suitability, “the motive must be materially less significant (or more ‘trivial’) than those which conventionally drive people to commit the offense in question.”  (In re Scott, supra, 119 Cal.App.4th at p. 893.)   The Governor found that Mr. Jones shot Mr. Ortiz because his crime partner encouraged him to do so, and this finding is not in dispute.   The record shows that Mr. Jones's crime partner was a gang member, and that Mr. Jones committed the crime in this case to gain acceptance from other gang members.   This motive for the murder could be characterized as trivial, although not uncommon.

The Governor may base a reversal of parole upon the circumstances of the offense only if the facts are probative of the “ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety.”  (In re Lawrence, supra, 44 Cal.4th at p. 1221.)   Where, as here, the life prisoner has served substantially more than his suggested base term, the circumstances of the life offense will rarely support a finding of unsuitability for parole.   (In re Lawrence, supra, 44 Cal.4th at p. 1211.)

The Governor's finding that the crime was aggravated “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 of the statutory determination of a continuing threat to public safety.”  (In re Lawrence, supra, 44 Cal.4th at p. 1214.)

The Governor found that Mr. Jones had two juvenile adjudications prior to the life crime, and this finding is not in dispute.   One adjudication was for burglary, the other presumably for robbery since it involved grabbing a gold chain from a girl's neck.   There is some relevance to these adjudications, as Mr. Jones acknowledges that he became involved in a gang while incarcerated, and the life crime was committed to gain acceptance from other gang members.   However, Mr. Jones stated that he renounced all gang membership in 1988 and there is no evidence in the record of gang involvement since that time.   Thus, Mr. Jones's juvenile record does not provide some evidence of current dangerousness.

The Governor also found that Mr. Jones had a conviction for battery on a peace officer in 1986, was disciplined three other times and received counseling 17 times for rules violations.   This finding is not in dispute.   Mr. Jones's early behavior in prison was not good.   He last was disciplined in 1991, however, and thus was discipline free for the last 18 years.   He was last counseled in 1999, and thus had gone 10 years without any behavior problems at all by the time of the parole hearing.   Mr. Jones explained that he had a change in attitude in the late 1980's, when he was put in solitary and began working to change his behavior after that.   His record shows that he succeeded, and thus his misbehavior in prison does not provide evidence of current dangerousness.

2. Lack of insight

The Governor found that Mr. Jones gave inconsistent explanations of the life offense that “indicate that he is either lying or that he does not fully understand the circumstances leading to the crime.   This is concerning because Mr. Jones cannot ensure that he will not commit similar crimes in the future if he does not fully understand and accept responsibility for his prior criminal conduct.”   The Governor concluded that Mr. Jones lacked insight into why he murdered Mr. Ortiz.

An inmate's failure to gain insight into his crime despite years of rehabilitative programming may indicate a current risk of danger.  (See In re Shaputis (2008) 44 Cal.4th 1241, 1260.)

There is no evidence to support the Governor's claim that Mr. Jones was lying or did not fully understand the circumstances leading to his crime or that Mr. Jones did not accept responsibility for his prior criminal conduct.

The Governor described Mr. Jones's inconsistent statements as follows:  “For over 20 years, Jones maintained that the gun accidentally fired as the victim came toward him.   He then changed his story in 2004, claiming that he shot the victim, without intending to kill him, because Brown was yelling, ‘Shoot him, shoot him.’   Jones maintained this version of events until his 2009 parole suitability hearing.   At that hearing, Jones initially stated that he intended to shoot the victim.”   The Governor then claimed that Mr. Jones changed his story later in the 2009 parole hearing.

The Governor is correct that until 2004, Mr. Jones stated that the shooting itself was an accident.   In 2004, Mr. Jones admitted that he intended to shoot Mr. Ortiz.   Mr. Jones explained that he was in denial until then.   The prior statements are not some evidence of current dangerousness in light of Mr. Jones's acceptance of responsibility in 2004.  (In re Vasquez (2009) 170 Cal.App.4th 370, 385–386, disapproved on other grounds by In re Prather (2010) 50 Cal.4th 238.)

There is no evidence to support the Governor's finding that Mr. Jones changed his account of events during the 2009 parole hearing.   The Governor gives the following account of the change at the parole hearing:  “However, later in the hearing, he stated, ‘I never intended to shoot him.   Mark Brown encouraged –was encouraging me to shoot him.   Mark Brown was saying, shoot him, shoot him, shoot him.   And I shot him.’   When the Deputy District Attorney asked him if he was again claiming that the shooting was an accident, Jones responded, ‘Any time you shoot a gun and you don't know what you're doing, yes, it's an accident.’ ”

When considered in context, neither statement at the 2009 hearing was a change in his account of the story.   In both exchanges, Mr. Jones clearly stated that he intended to fire the shot that killed Mr. Ortiz.

a. Urging by crime partner

The full exchange referring to Mark Brown is as follows:

Deputy Commissioner Bachlor:  “When [the] Commissioner was talking to you about your crime early on in the hearing here, I understood that your intent was just to rob the victim initially.”

Mr. Jones:  “Yes.”

Deputy Commissioner Bachlor:  “That's what I heard.   And then your intent was just to shoot the victim, but not kill him.   Help me with that.   What was the intent?   I mean, if the intent was just to rob the victim, why did the victim end up being shot?”

Mr. Jones:  “I didn't intend to shoot him.   Let me clear up – let me get that clear.   I never intended to shoot him.   Mark Brown encouraged—- was encouraging me to shoot him.   Mark Brown was saying, shoot him, shoot him, shoot him.   And I shot him.”

In context and in response to the commissioner's questions, Mr. Jones is simply explaining how the encounter changed from a robbery to a shooting.   Mr. Jones stated that he did not initially intend to shoot Mr. Ortiz, but once the robbery was underway and Brown said to shoot Mr. Ortiz, Mr. Jones shot him.   This is in no way a change from Mr. Jones's 2004 statement or his earlier statements in the 2009 hearing.

Mr. Jones's account of events leading up to the shooting has been consistent over time.   Beginning with his initial probation report, Mr. Jones has repeatedly stated that he initially intended only to rob Mr. Ortiz, that Brown yelled at him to shoot and that Mr. Ortiz moved toward him.   There is nothing to directly contradict these facts in the record.  (See In re Scott (2005) 133 Cal.App.4th 573, 600 [there must be evidence in the record that contradicts the petitioner's version in order to dismiss it].)   Since 2004, Mr. Jones has acknowledged that he did intend to shoot the victim.

b. Accident

The full exchange referring to an accident is as follows:

Mr. Jones:  “In 2002, I was still in denial that the gun went off accidentally.”

Deputy District Attorney Smith:  “In 2004, you now admit that the gun went off?”

Mr. Jones:  “No. In 2004, I admitted that I shot Mr. Ortiz.”

Deputy District Attorney Smith:  “And did you shoot him intentionally?”

Mr. Jones:  “I shot him intentionally, yes.”

Deputy District Attorney Smith:  “Okay. But did you earlier tell Commissioner Bachlor that it was an accident?”

Mr. Jones:  “Any time you shoot a gun and you don't know what you're doing, yes, it's an accident.”

There does not appear to have been an earlier statement at the parole hearing by Mr. Jones claiming that the shooting was an accident.   The deputy district attorney may have been referring to Mr. Jones's statements that he did not intend to kill Mr. Ortiz, but that he was not familiar with guns and so killed rather than injured the victim.   This has been Mr. Jones's consistent position since 2004.¹

Clearly, in context, the accident references are not an attempt to repudiate his statement that he shot Mr. Ortiz intentionally or to shirk responsibility for the killing.   Mr. Jones clearly acknowledged that using a firearm was a very dangerous activity.   Mr. Jones stated:  “I say, any time you take a gun out, you have the potential to kill someone.”

Mr. Jones has now taken responsibility for the offense and admits that he intentionally shot Mr. Ortiz.   The above-described version of events given by Mr. Jones at the parole hearing is not delusional, dishonest or irrational.   Thus, it is not some evidence of a lack of insight.  (See In re Palermo (2009) 171 Cal.App.4th 1096, 1112, disapproved on other grounds by In re Prather, supra, 50 Cal.4th 238.)   The Governor's conclusion that Mr. Jones lacks insight into the life crime is based on statements taken out of context which are contradicted by the full context of the statements.   Thus, the Governor's conclusion is not supported by some evidence.  (In re Lawrence, supra, 44 Cal.4th at pp. 1222–1223.)

3. 2008 mental health evaluation

The Governor stated that “Jones' 2008 mental health evaluator raised an additional concern.   Though the evaluator rated him in the ‘low’ range for psychopathy, the evaluator stated that ‘[t]he items, which contributed to Mr. Jones's total score on [the psychopathy] instrument[,] included glibness/superficial charm, grandiose sense of self worth, lack of remorse or guilt, early behavorial problems, lack of realistic long-term goals, irresponsibility, juvenile delinquency, and criminal versatility.’   The fact that the evaluator still raises concerns about Jones' lack of remorse, his failure to set realistic goals, and his irresponsibility suggests that Jones is not yet ready to function within society's rules.”

There is no evidence to support the Governor's finding that lack of remorse, a failure to set realistic goals and irresponsibility are still concerns.   The quote relied on by the Governor is part of an explanation of the PCL–R assessment.   The Governor ignores the fact that the section states:  “It should be noted that the items on this instrument are scored within the lifetime context of the individual, rather than more recent behavior, alone.”  (Emphasis in original.)   There is nothing in the report to suggest that Mr. Jones currently lacks remorse, has not set realistic goals or is irresponsible.   To the contrary, the report unequivocally shows that Mr. Jones has expressed remorse, has realistic goals and is responsible, as does the full record of the hearing.   Further, after taking into account the above-quoted items, the evaluator concluded that Mr. Jones falls within the low range of psychopathy under the PCL–R and on other risk assessments.   The evaluator concluded his report by commenting that Mr. Jones has “continued to program in a stable and positive manner․  Additionally, he expressed prosocial behaviors and attitudes.”   Thus, the report's references to lack of remorse, lack of realistic long-term goals and irresponsibility does not constitute some evidence of current dangerousness.  (See In re Lawrence, supra, 44 Cal.4th at pp.   1222–1223 [Governor's conclusion based on statements taken out of context are not supported by some evidence if full context of statements contradicts conclusion].)

4. Efforts to “enhance” his ability to function within the law

The Governor stated:  “Given Jones' apparent lack of insight into why he murdered Ortiz, I also have serious concerns about his limited involvement in self-help therapy, education, and vocational programs since 1999.”   The Governor concluded that Mr. Jones's “minimal efforts to enhance his ability to function within the law indicates that he may not have the knowledge and skills necessary to help him avoid violence in the future and succeed upon release from prison.”

There is no evidence to support the Governor's conclusion that Mr. Jones made only minimal efforts to enhance his ability to function within the law or that Mr. Jones may not have the knowledge and skills necessary to help him avoid violence or succeed.

It is not disputed that Mr. Jones engaged in substantial self-help, educational and vocational programs during the 1990's.   It is also not disputed that Mr. Jones did not participate in therapy or formal educational or vocational training after 1999.   There is, however, no evidence that Mr. Jones had any need for such participation.

In the 10 years between 1999 and the parole hearing, Mr. Jones did not have any disciplinary problems at all in prison.   Thus, there is no evidence in the record to indicate that Mr. Jones needed to “enhance” his ability to function within the law.

Mr. Jones worked in the PIA metal fabrication program from 1999 to the time of the parole hearing.   He worked his way up at that job and became the lead man.   The prospects for employment in that field were good upon parole.   Thus, there is nothing in the record to show that Mr. Jones did not have the vocational skills necessary to succeed upon parole or that he needed further training in that area.

Rather than needing to participate in programs after 1999, Mr. Jones was in a position to begin leading such programs and helping others.   From 1999 to the time of the parole hearing, Mr. Jones participated in the YAAP program designed to help at-risk youth understand the consequences of their actions, make good choices and avoid breaking the law.   At the time of the parole hearing, he was vice chairman of the program.   He also sought to help other prisoners by sharing his spiritual beliefs.   As far as vocational training goes, by the time of the parole hearing, Mr. Jones was training others to work in the PIA metal fabrication program.

The Governor's unsubstantiated finding that Mr. Jones needs further self-help programming does not support his finding that Mr. Jones is unsuitable for parole.  (In re Gaul (2009) 170 Cal.App.4th 20, 38–39;  In re Roderick (2007) 154 Cal.App.4th 242, 274.)

5. Remedy

In appellant's brief, the Attorney General contends that if this Court finds that the Governor's decision was not supported by any evidence, the matter should be remanded to the Governor to proceed in accordance with due process.   At oral argument, the Attorney General withdrew its request that the matter be remanded to the Governor.   The Attorney General stated that the matter should be remanded to the Parole Board for normal processing.

Division 7 of this District Court of Appeal, the First District Court of Appeal and the Fourth District Court of Appeal have all held that the matter need not be remanded to the Governor when there is no evidence to support the Governor's reversal of the Parole Board's decision to grant parole.  (In re McDonald (2010) 189 Cal.App.4th 1008;  In re Gomez (2010) 190 Cal.App.4th 1291;  In re Kler (2010) 188 Cal.App.4th 1399.)

In light of the Attorney General's position and the above-quoted authorities, we do not remand this matter to the Governor.   We do not agree with the trial court that

Mr. Jones should be released by the courts, however.   We remand the matter to the Parole Board and direct the Board to proceed in accordance with its usual procedures for release of an inmate on parole unless within 30 days of the finality of this decision the Board determines in good faith that cause for rescission of parole may exist and initiates appropriate proceedings to determine that question.  (See In re Powell (1988) 45 Cal.3d 894, 904;  In re Johnson (1995) 35 Cal.App.4th 160, 169;  In re Caswell (2001) 92 Cal.App.4th 1017, 1029 [all concerning process on remand to Board].)

Disposition

The trial court's order's finding that the Governor's decision is not supported by some evidence is affirmed.   The trial court's order releasing Mr. Jones is reversed and the matter is remanded to the Parole Board to proceed in accordance with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

I concur:

I respectfully dissent.

First, the Governor could find the inmate lacks insight into the malicious killing of the unarmed victim.   The probation report, which was cited to by the Board of Parole Hearings (the board) panel, states:  “On June 23, 1984, at approximately 11:30 p.m., the victim, Thomas Ortiz, age 26, was standing on the southeast corner of Adams Boulevard and Kenwood Avenue in Los Angeles.   With the victim were two of his friends.  [¶] Five persons, three males and two females, approached the victim and his fiends and encircled them.   Defendant, who was one of the five persons, produced a handgun and demanded the victim's money.   When the victim failed to produce any money, defendant grabbed a gold chain from the victim's neck, and then fired one shot, striking the victim in the chest.   Defendant fled the scene.”   A young boy was present during the shooting.   According to the inmate, a gang member, Mark Brown, was present.   The inmate testified:  “Mark Brown encouraged—was encouraging me to shoot him.   Mark Brown was saying, shoot him, shoot him, shoot him.   And I shot him.”

But the inmate adamantly denied intending to shoot the victim who was struck at close range in the chest:  “I didn't intend to shoot him.   Let me clear up—- let me get that clear.   I never intended to shoot him.”   The inmate claimed the killing was unintentional and gave this explanation for unintentionally shooting Mr. Ortiz in the chest, “Shooting somebody—- you can shoot somebody without trying to kill them.”   The inmate's claim at the hearing was consistent with his assertion in January 1985 that the shooting was an accident.   The inmate also testified the shooting resulted from Mr. Brown's encouragement.   When asked why he committed the killing, the inmate explained in a report prepared for the January 13, 2009 hearing:  “I didn't have a father figure.   The people that I was around, I thought were my friends ․ I wanted them to like me․”

Such palpable minimization (Mr. Ortiz was accidentally shot in the chest because the inmate had no father figure) and avoidance of personal responsibility for the malicious killing could be relied upon by the Governor to set aside the board's parole decision.  (In re Shaputis, supra, 44 Cal.4th at p. 1261, fn.   20 [“In the present case, the Governor's decision is supported by some evidence—not merely because the crime was particularly egregious, but because petitioner's failure to take full responsibility for past violence, and his lack of insight into his behavior, establish that the circumstances of petitioner's crime and violent background continue to be probative to the issue of his current dangerousness”];  In re Lawrence, supra, 44 Cal.4th at p. 1228 [“In some cases, such as those in which the inmate ․ has shown a lack of insight ․, the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerous even decades after commission of the offense.  [¶] ․ [W]here the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration”].)

Second, the psychological evaluation constitutes some evidence to support the Governor's decision.   Overall, the psychologist's report contained many favorable aspects and included the assessment the inmate presented a low risk of violent recidivism.   But the report also referred to:  the inmate's “glibness/superficial charm, grandiose sense of self worth, lack of remorse or guilt, early behavioral problems, lack of realistic long-term goals, irresponsibility, juvenile delinquency, and criminal versatility”;  the need for the inmate to improve his insight into his personality style and the causative factors leading up to the killing;  the absence of any job plans if paroled;  and the fact the inmate had previously been diagnosed as possessing an “Antisocial Personality” in the past.   The psychologist's views were corroborated by the inmate's claim the killing was an accident and criminal record which consisted of:  stealing a chain from a 16–year old girl;  injuring a victim during a fight;  and stealing jewelry.   Further, the inmate had no specific job offers and had not participated in therapy or self-help programs since 1999 other than the Youth Adult Awareness Program.   The Governor was entitled to rely on the negative aspects of the psychological report to set aside the board's parole decision.  (In re Shaputis, supra, 44 Cal.4th at pp. 1250, fn. 10, 1260;  Cal.Code Regs., tit. 15, § 2402, subd. (b).)

Third, in conjunction with the forgoing factors, the Governor could rely on the cruel and callous manner for the killing, which involved elements beyond second degree murder, and the trivial reason for taking Mr. Ortiz's life.   (Cal.Code Regs., tit. 15, § 2402, subd. (c)(1)(D)-(E).)   Although an argument can be made standing alone, the gang-related robbery homicide was insufficient to warrant a denial of parole;  in conjunction with the other matters digested in this opinion, some evidence supports the Governor's decision.  (In re Dannenberg (2005) 34 Cal.4th 1061, 1095;  In re Rosenkrantz, supra, 29 Cal.4th at p. 683.)   This is particularly true given the fact, while incarcerated, the inmate sustained another felony conviction for assaulting a correctional officer.   Thus, I would reverse the order granting the habeas corpus petition.

FOOTNOTES

FN1. Earlier in the hearing, Commissioner Gillingham had asked Jones:  “But in the past, you've indicated that the murder was an accident, correct?”   Jones agreed.   The commissioner asked:  “And was it?”   Jones clearly replied:  “No, the murder was not an accident.”   The commissioner clarified:  “And most recently then, you said that you didn't intend to kill him?”   Jones agreed.   The commissioner stated:  “Your intention was not to kill him.”   Jones agreed.   The commissioner asked:  “It was to shoot him?”   Jones replied:  “It was just to shoot him.”   Commissioner Gillingham asked:  “[H]ow can you separate the two?   Shooting and killing?”   Jones replied:  “[Y]ou can shoot somebody without trying to kill them.   I believe – I'm not an expert at that.”   Jones also stated:  “I say, any time you take a gun out, you have the potential to kill someone.”.  FN1. Earlier in the hearing, Commissioner Gillingham had asked Jones:  “But in the past, you've indicated that the murder was an accident, correct?”   Jones agreed.   The commissioner asked:  “And was it?”   Jones clearly replied:  “No, the murder was not an accident.”   The commissioner clarified:  “And most recently then, you said that you didn't intend to kill him?”   Jones agreed.   The commissioner stated:  “Your intention was not to kill him.”   Jones agreed.   The commissioner asked:  “It was to shoot him?”   Jones replied:  “It was just to shoot him.”   Commissioner Gillingham asked:  “[H]ow can you separate the two?   Shooting and killing?”   Jones replied:  “[Y]ou can shoot somebody without trying to kill them.   I believe – I'm not an expert at that.”   Jones also stated:  “I say, any time you take a gun out, you have the potential to kill someone.”

MOSK, J. TURNER, P.J.