In re Staben

1
Filed 11/6/07 In re Staben CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re
LEE STABEN,
On Habeas Corpus.
E041712
(Super.Ct.No. RIC454914)
OPINION
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Petition granted.
Marc Elliott Grossman and Richard Pfeiffer for Petitioner.
Edmund G. Brown, Jr., Attorney General, and Amanda Lloyd, Deputy Attorney
General, for Respondent.
In this matter petitioner Lee Staben challenges a decision by the Board of Parole
Hearings (Board) finding him unsuitable for parole.1 We resolve the case on the
1 Following a hearing before the Board on December 20, 2002, petitioner was
found suitable for parole. However, this was reversed by the Governor under the
authority granted by Penal Code section 3041.2. The instant petition involves the
Board’s decision following a hearing held on August 8, 2005.

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simple basis that no evidence supports the Board’s stated reasons for this finding.
Accordingly, we will direct the Board to vacate its decision and conduct a new parole
hearing for petitioner, following the guidance provided in this opinion. (Pen. Code, §
3041, subd. (b).)2
FACTS OF THE OFFENSE
In 1991, petitioner was convicted of two counts of second degree murder (§ 187),
and the jury also found true a “personal use” enhancement under section 12022.5. He
received concurrent terms of 15 years to life for the murders and a three-year
enhancement for the firearm use.3 With one significant exception, which we will discuss
below, the circumstances surrounding the killing are not in dispute. We take our primary
recitation of facts from that given by the Board, which in turn derived from a correctional
counselor’s report, which is not itself part of the record. Elements added by petitioner at
the hearing are so noted.
In May 1990, petitioner and his girlfriend had moved into a residence that was to
be shared with Wayne Goodhue and his girlfriend, Donya Boyd. According to petitioner,
Goodhue was twice his age (43 years of age as against petitioner’s 19). Goodhue,
however, did not pay his portion of the rent, and after an argument with petitioner,
2 All subsequent statutory references are to the Penal Code.
3 This represented the low, or mitigated, term for the enhancement. (§ 12022.5,
subd. (a).)

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Goodhue and Boyd moved out.4 Petitioner was evidently concerned, because on July 12,
1990, he contacted the Riverside County Sheriff’s Department concerning the argument
and apparently stated that Goodhue had threatened him with a stick or club.5 He also told
the Board that Goodhue had threatened to harm him or his family after that altercation.
He also borrowed a shotgun from his brother-in-law.
Goodhue and Boyd moved into a small trailer. On July 15, 1990, petitioner and
his girlfriend were away from home on a “family outing.” When they returned, they
found that their home had been burglarized and vandalized; petitioner testified that
“unmentionables” had been done to the house. Among the items stolen was a television
set.
Petitioner suspected Goodhue and drove angrily to Goodhue’s trailer with the
shotgun. It was well after dark, but before 10:30 p.m. Petitioner’s testimony was (and
has consistently been) that he banged on the door of the trailer and shouted but received
no response. When he saw what he believed to be his stolen television set against a
window, he pulled the extruding cord until it crashed to the floor. He still heard nothing.
4 At the previous hearing, petitioner explained that the older Goodhue was named
on the lease because petitioner had no credit history. Petitioner gave his share of the rent
money to Goodhue, but Goodhue never gave it to the landlord.
5 At the hearing, petitioner described the weapon as a pickaxe handle. Our
opinion on appeal (People v. Staben (Mar. 10, 1993, E010375) [nonpub. opn.]) also
contains the details corroborating petitioner’s anxiety. Petitioner seemed frightened of
Goodhue after the argument; he changed the locks, boarded up and covered the windows,
and would not let his girlfriend go outside.

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Petitioner then went to his truck and drove off, but almost immediately returned to
the trailer and fired one blast from his shotgun through a window.6 He told the Board
that his intention was simply to cause damage to Goodhue’s home in retaliation for the
damage he believed Goodhue had caused to his home, and to warn Goodhue not to trifle
with him. Tragically, however, both Goodhue and Donya Boyd were in the trailer; Boyd
was fatally wounded and her eight-month fetus also died. Goodhue suffered minor
injuries.
According to petitioner’s version, he was unaware that Goodhue and Boyd were in
the trailer. The only “evidence” to the contrary was a statement by a neighbor, Carrie
McClearan, who had recognized petitioner and heard him yelling obscenities and
profanities at the trailer.7 According to the deputy district attorney who attended the
parole hearing, Ms. McClearan’s statement also indicated that she believed that petitioner
was “getting some response” to his shouts. This statement is not in the record before us,
although it may have been presented to the Board.
It is, however, reasonably clear that there was no testimony at trial that suggested
that petitioner knew that the trailer was occupied.8 The deputy district attorney who
6 The window was boarded up on the inside, so petitioner could not have seen into
the trailer. However, he also stated that he did not realize it was boarded up.
7 Petitioner did not deny the use of vulgar language.
8 Our opinion indicates that eyewitness testimony was provided by a neighbor
named Robin Farrington, but there is no reference to Ms. McClearan. Farrington testified
only that petitioner appeared to be “listening” at the windows. Evidence tending to show
[footnote continued on next page]

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prosecuted petitioner, E. Michael Soccio, in 1993 wrote a letter, which wound up in
petitioner’s file.9 While acknowledging that petitioner’s actions were “inappropriate and
deadly,” Soccio expressed the belief that “he did not know he would injure anyone when
he fired his shotgun . . . there was no evidence to indicate that he probably did not know
that anyone was in there.”10 Soccio at that time recommended leniency and confirmed
this position in a later letter submitted in approximately 2000.11
FACTORS PERTINENT TO PETITIONER
At the time of the killings, petitioner was 19 years old and had no prior criminal or
[footnote continued from previous page]
that petitioner was aware that someone was inside the trailer would have been extremely
relevant and critical to the prosecution’s attempt to prove first degree murder.
9 The letter was addressed to “Mr. Zarate” at a post office box in Calipatria. The
letter states that Soccio was “writing to provide you with information regarding my
impression of Mr. Staben,” but it is not clear who Zarate is or was.
10 Goodhue apparently also did not testify. The probation report indicates that he
could not be located at the time the report was prepared.
11 Although a detailed legal analysis is unnecessary, if he were to be retried today,
petitioner would be entitled to instructions on manslaughter. It appears that such
instructions were refused at the time because it was believed that intent to kill was an
element of voluntary manslaughter; we now know that this is not the case. (See e.g.,
People v. Lasko (2000) 23 Cal.4th 101, 110.) On appeal, we commented that because the
prosecutor obtained instructions on first degree murder, it was reasonable to suppose that
there was sufficient evidence of intent to support voluntary manslaughter. However, we
found any error harmless because the evidence of “heat of passion” was inadequate.
Absent the “intent” issue, the trial court might well have instructed on manslaughter; and
trial counsel’s conversations with a number of the jurors strongly suggests that the jury
might well have been eager for the opportunity to convict of a lesser charge. As it was,
the only options were acquittal or a murder conviction.

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juvenile record. After graduating from high school, he became employed in a cabinet
shop but was terminated for taking excess time off after the birth of his son.12 He then
began to support himself trading motor vehicles, at which time he became acquainted
with Goodhue. He had no history of substance abuse although he had experimented with
marijuana and alcohol while in high school.
While incarcerated, petitioner has been virtually discipline free. In 1993 he
received a “115” for pilferage.13 On the other side, he has consistently received good
work reports; particularly, a laudatory “chrono” for his accomplishments in vocational
welding, which he hopes to pursue on release. The most recent document in the file,
covering an unspecified period beginning sometime in 2004, notes that he had acquired
two new certificates (plumber and electrician) and had received numerous “laudatory
chronos” relating to his “positive, respectful attitude, cooperation with staff and excellent
work performance.” He also received a total of 10 favorable reports relating to work
performance. At the hearing, the Board quoted briefly from several of his supervisors,
who consistently used terms such as “self-motivated,” “hard worker,” “positive attitude,”
“non-aggressive,” and “mature and calm.”
Petitioner has also participated in a number of “self-help” programs, primarily
religiously oriented. Among his support letters submitted to the Board were two
12 His son was borne by his then girlfriend, to whom he later had a brief marriage.
13 The 2002 panel evidently examined the record in detail and learned that it
involved the theft of cans of soda from the canteen; the prison authorities could not
determine who was responsible, but gave “115’s” to everyone working in the canteen.

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commending him for his efforts to reach at-risk youth as part of Convicts Reaching Out
to People (CROP). He also participated regularly—three to four times a week—in
“church programs.”
If released, petitioner intended to live with his parents in Orange County, joined
by his wife.14 He had offers of employment in both plumbing and welding; he indicated
that although he considers welding to be his primary trade, he would be inclined to accept
the plumbing job because he viewed the employer as better-established.15 He had letters
of support from his sister-in-law, aunts, stepdaughter, niece, and cousins. One cousin
represented that petitioner “comes from a large family of productive and responsible
members of society. He has a huge support network waiting for him.”
THE HEARING
After the presentation of general information, the Board read into the record
portions of a letter from the district attorney’s office in Riverside County opposing
petitioner’s release on parole. The only stated reason was “evidence of premeditation and
deliberation.” The Board referred to the Governor’s denial letter of 2002, which
expressed concern that petitioner’s record did not exhibit substantial self-help efforts
between 2002 and 2005; petitioner’s response was that he had for some time been
compelled to choose, time wise, between AA/NA and his church meetings, and that he
14 After his marriage to the mother of his child dissolved, petitioner married his
current wife in 2001.
15 He had an additional job offer from a cousin in Washington who operates a sign
graphics business. However, this out-of-state offer was deemed secondary.

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had felt that the latter better served his needs. Nevertheless, and despite a letter from the
prison pastor, the Board expressed concern that there was no specific “proof” of his
participation.16
The Board also referred to the Governor’s concerns that petitioner needed “anger
management.” Petitioner responded that he had participated in a Hands of Peace
program, which the Board noted was “some time ago.” Petitioner then explained that no
such program was currently available to him, and cogently pointed out, that in over 15
years of incarceration, he had not been cited for a single violent or impulsive act. The
Board then asked if he read any books on such topics, and petitioner answered that he
read several self-help books each year. When asked, he was able to name the last two
books he had read.17 The Board then suggested that he should prepare “book reports” in
the future.
The Board then reviewed petitioner’s 2001 psychological report—the most recent
available. Salient points noted were the absence of any significant drug or alcohol
history; no mental disorder; and his lack of the typical “risk factors” such as gang
affiliation, substance abuse, lack of support, and chronic aggression. However, the Board
also noted that the report listed petitioner’s insight as “fair” and that no opinion was
16 It did note a certificate of completion for a religiously-based correspondence
course in 2005 and petitioner’s participation in Feed the Children, also in that year.
There was also corroborating evidence of his participation in the CROP program.
17 Harris, I’m O.K, You’re O.K. (1969) and Warren, The Purpose-Driven Life
(2002).

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given as to petitioner’s risk of violence in society.18 Petitioner commented that he had
requested a current evaluation but that this had been refused because only the Board
could order this, which it had not done. Interestingly, at petitioner’s 2002 hearing, the
Board quoted from a 1998 evaluation, which did specifically state that “[petitioner’s]
potential for violence within the community, as well as the free community, are
considered to be less than average at this time and to remain so in the future.” There was
no reference to such an evaluation at the current hearing.
After reading a letter from Donya Boyd’s sister opposing parole, the Board
allowed a representative from the district attorney to question petitioner about the
statement by Carrie McClearan; petitioner continued to deny the accuracy of any
suggestion that he heard responses. The district attorney also suggested that shooting into
the trailer was somehow inconsistent with an intent to do vandalism. He also insinuated
that petitioner might have intended his shot to ignite a propane tank at the front of the
trailer; petitioner denied knowing that a tank was there.
Finally, the Board asked petitioner to explain what insights he had acquired that
would prevent him from offending again. Petitioner attempted to express how his
responsibility for Donya Boyd’s death had motivated him to “become a better
person . . . to take a good honest look at myself. I think that the only way that I could
make amends for what I did is by . . . developing changes in myself, mentally, physically,
spiritually, educationally, vocationally.” Told that he was not answering the question,
18 The evaluator considered him a low risk in a controlled setting.

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petitioner indicated that he was reluctant to “throw[ ] the religious card out there,” but
asserted that his spiritual experiences had resulted in positive changes. Earlier in the
hearing, when asked about his feelings about the crime, petitioner had stated, “I feel
horrible about it . . . Donya was my friend . . . her death has been a motivation for me to
better myself and to change my life, not because of what your expectations might be of
me, but because of being able to look at myself in the mirror . . . it disturbs me as much
today as it did then. And I don’t think I’ll ever get beyond that.”
In a final statement, the district attorney continued to assert that petitioner
“probably did know that there was somebody inside that trailer sleeping,”19 referring
again to the McClearan report.
In finding petitioner unsuitable for parole, the Board relied “primarily” upon the
“gravity of the offense,” which it found to be “especially calculated” and “especially
cruel and callous.” It also expressed the view that petitioner had not “sufficiently
participated in beneficial and self-help programs, specifically in the area of anger
management and other self-help programs that would focus on the development of insight
and remorse.” It found that the most recent psychological report “does not appear to be
totally supportive of release” and was critical of parole plans. It ruled that no further
hearing would be held for two years.
19 The prosecutor’s attempt to paint a picture of a sleeping victim is unpersuasive.
Not only had petitioner spent 10-20 minutes banging on the door and yelling; he had also
pushed a television set onto the floor.

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DISCUSSION
Although petitioner devotes a substantial amount of his brief to arguments
generally criticizing the continued use of an invariable factor such as the nature of the
crime to deny parole, we need not address the significant legal issues he raises. We find
that, even under the deferential review we give to parole decisions, there is no evidence
supporting a finding of unsuitability under the applicable criteria.
As is true for most decisions involving the confinement of inmates, a decision
granting or refusing parole must be upheld if it is supported by “some evidence” and as
long as the Board considers all relevant circumstances and factors. (In re Rosenkrantz
(2002) 29 Cal.4th 616, 626; see also Superintendent v. Hill (1985) 472 U.S. 445, 455-
456.) “Consideration of public safety” is the primary statutory issue to be determined by
the Board in determining whether to set a parole date. (§ 3041, subd. (b).) However, the
Legislature also instructs the Board to follow guidelines set out in the Code of
Regulations.20
20 The “suitability/unsuitability” factors are set out in California Code of
Regulations, title 15, section 2402. Several of the “unsuitability” factors relate to the
commitment offense and the ultimate finding that it was “especially heinous, atrocious, or
cruel”; multiple victims; commission of the offense in a dispassionate and calculated
manner; abuse, defilement, or mutilation of the victim; commission of the offense in a
manner demonstrating “exceptionally” callous disregard for human suffering; and
triviality of motive. Others relate to the inmate: previous record of violence; unstable
social history; sexual sadism; mental problems; and institutional misconduct. On the
“suitability” side, the regulation lists lack of juvenile record, stable social history,
remorse, significant stress as a motivation, battered woman syndrome, lack of criminal
history, current age, plans for the future, and institutional behavior.

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Although our review is deferential, as the court aptly commented in In re Scott
(2004) 119 Cal.App.4th 871, 898, this “does not convert a court reviewing the denial of
parole into a potted plant.” Not only must there be “some evidence” supporting the
decision; that evidence must have “‘“some indicia of reliability.”’” (Id. at p. 899, quoting
Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 915.) Thus, we proceed to examine the
factors of unsuitability upon which the Board relied.
Among the various factors specified in the governing regulations (see fn. 20), the
Board may properly rely solely on the aggravated nature of the offense. (In re
Dannenberg (2005) 34 Cal.4th 1061, 1071.) However, “a life term offense . . . must be
particularly egregious to justify the denial of a parole date.” (In re Ramirez (2001) 94
Cal.App.4th 549, 570 (Ramirez) [disapproved on another ground by In re Dannenberg,
supra, 34 Cal.4th 1061, 1082-1083, 1100].) The offense must reflect circumstances that
“reasonably could be considered more aggravated or violent than the minimum necessary
to sustain a conviction for that offense.” (In re Rosenkrantz, supra, 29 Cal.4th at p. 683.)
As the court pointed out in Ramirez, section 3041, subdivision (a), provides that on its
initial review conducted one year before a life inmate’s minimum eligible parole release
date, a panel “shall normally set a parole release date.” (Italics added.) All life crimes,
and especially all murders, are grave and highly reprehensible offenses. But, unless the
panel is required to specify some unusually cruel, violent, or depraved circumstances,
reliance on the “gravity of the offense” alone would “swallow” the “normally” rule, and
would also destroy the proportionality structure enacted by the Legislature in imposing
terms of (for example) straight life (aggravated kidnapping, § 209), 15 to life (most

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second degree murders, § 190, subd. (a)), and 25 to life (noncapital first degree murders
and some second degree murders; § 190, subds. (a) & (b).)
Second degree murder is a killing committed with malice, express or implied, but
without the mental state of willful, deliberate premeditation. (§§ 188, 189.) Malice is
implied if “no considerable provocation appears” (§ 188; cf. § 192, subd. (a)—voluntary
manslaughter) or the circumstances of the killing “show an abandoned and malignant
heart.”21 (§ 188.) The latter, in turn, requires “‘“an intentional act, the natural
consequences of which are dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another and who acts with
conscious disregard for life.”’ [Citation.]” (People v. Robertson (2004) 34 Cal.4th 156,
164.)
Petitioner was convicted of two counts of second degree murder. Was it
“especially heinous, atrocious, or cruel?” The record indicates that it was not.
First, in our view, the fact that two lives were taken does not, in the unique
circumstances of this case, bring this case under the “multiple victims” guideline or make
this an unusually atrocious killing. While we by no means intend to minimize the death
of a fetus, petitioner, as we explain below, can have had no knowledge that his shot was
21 In this case, the jury was instructed on theories of express malice or implied
malice arising from the commission of an act inherently dangerous to human life.
(People v. Staben, supra, E010375.) The jury was not instructed on second degree felony
murder based on shooting at an occupied residence (§ 246) because the trial court
believed that that offense “merged” in the killing. (See People v. Ireland (1969) 70
Cal.2d 522.) This view was later proved to be erroneous. (See People v. Hansen (1994)
9 Cal.4th 300, 316.)

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likely to take a single life, let alone two. The fact that Donya Boyd not only suffered
fatal injuries, but that those injuries also proved fatal to her child, is tragic, but it does not
increase petitioner’s moral culpability.
Next, the Board found the offense to be both “calculated” and “cruel and callous.”
According to section 2402, subdivision (c) of title 15 of the California Code of
Regulations, this is an appropriate factor to consider in evaluating the gravity of the
specific offense. As we suggested above, “[t]he measure of atrociousness is not general
notions of common decency or social norms, for by that yardstick all murders are
atrocious.” (In re Lee (2006) 143 Cal.App.4th 1400, 1409.) Similarly, “‘all second
degree murders by definition involve callousness-i.e., lack of emotion or sympathy,
emotional insensitivity, indifference to the feelings and sufferings of others.’ [Citation.]”
(In re Scott, supra, 119 Cal.App.4th at p. 891.) As for the supposed factor of
“calculation,” it is true that petitioner armed himself before going to Goodhue’s trailer.
However, this would be equally true of many second degree murders. The guidelines
make clear that far more is necessary to make a killing “calculated” by giving as an
example an “execution-style murder.” Nor was the killing especially cruel or callous.
There is no evidence that petitioner intended to, was aware that he did, or even did inflict
cruelly extreme pain, and none that he was indifferent to the victims’ sufferings. He did
not taunt the victims, gloat over their distress, or refuse to allow others to help them. (Cf.
People v. Misa (2006) 140 Cal.App.4th 837, 842-843 [a torture case under § 206].)
Viewed under the appropriate guidelines, petitioner’s crime simply does not qualify as

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unusually calculated, cruel, or callous. He blindly fired a single shot into the trailer and
left.22 That is all.
Nor is there any evidence that would support a positive finding based on any other
circumstance set out in the guidelines as tending to show that the offense was
exceptionally bad. The victims were not “abused, defiled, or mutilated”; petitioner’s
motive—to protect himself and his family—was not “inexplicable or very trivial.”
Finally, we have explained above why the “multiple victims” element is inadequate in
this case to elevate the offense to a level justifying denial of parole.
Although we have not ourselves compiled statistics, and are unaware of any such
compilation, our review of published cases and the regular stream of petitions for habeas
corpus complaining about parole denial makes it clear that the Board almost always relies
on the “exceptional” nature of the offense as a basis—often the only basis—for denying
parole. And we are not the first court to criticize an overly broad reliance on this factor.
In In re Scott, supra, 119 Cal.App.4th 871, the victim was not only having an
affair with defendant’s wife, but was also supplying her with drugs. The victim had also
threatened defendant with a gun. On the night of the killing, defendant’s wife indicated
she wished to reconcile with him but then left. Defendant went to the victim’s home,
believing that his wife was there. Indeed, she and the victim were “hugging
affectionately” on the lawn, and defendant drew a pistol, told the victim he was going to
22 The shooting occurred at about 10:30 p.m.—an hour when the victims would
not necessarily have been home.

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kill him, and did so.23 Rejecting the Board’s findings, the Court of Appeal held that the
crime was not committed in a “dispassionate and calculated” manner (citing the
emotional stress Scott was under); his motive—not just jealousy, but concern that the
victim was supplying his wife with drugs—was not trivial; and it did not involve the kind
of “gratuitous cruelty” (cf. In re Van Houten (2004) 116 Cal.App.4th 339, 351) or
massive trauma that would show “exceptional” callousness. (In re Scott, supra, 119
Cal.App.4th at pp. 889-895.)
The defendant in In re Lee, supra, 143 Cal.App.4th 1400 was a middle-aged
businessman who was facing financial difficulties because one of the victims was not
making payments for a business he had purchased from defendant. Heated exchanges
had ensued; and defendant finally decided that if the intended victim continued to refuse
to pay, defendant would kill him and himself. At the fatal meeting, the victim refused
and defendant fired several shots. The intended victim survived but his wife, tragically,
was killed. Defendant was convicted of second degree murder and first degree attempted
murder. Rejecting the Governor’s characterization, the court held that Lee’s crimes were
not “more atrocious than whenever one human being kills another. . . .” (Id. at p. 1409.)
Rather, it found that the crimes were “more commonplace than egregious.”24 (Ibid.)
23 Scott was originally convicted of first degree felony murder; but when he
moved for a new trial, the prosecutor offered to stipulate to the relief sought if Scott
would enter a plea of guilty to second degree murder, which he did. The jury’s verdicts
also rejected first degree murder based on premeditation.
24 In re Lee also contains a useful summary of cases in which a killing was found
to be exceptionally atrocious. One is In re Van Houten, supra, 116 Cal.App.4th 339,
[footnote continued on next page]

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More recently, in In re Elkins (2006) 144 Cal.App.4th 475 (Elkins), the defendant
was heavily indebted to his drug dealer, who had introduced him to cocaine. While
intoxicated, he decided to rob the dealer as he slept. To make sure the victim did not
wake, he struck him with a baseball bat. When the victim nevertheless roused, defendant
hit him several more times. He then disposed of the body and robbed the victim’s storage
facility. Agreeing that repeatedly bludgeoning a robbery victim would establish an
exceptionally callous robbery, the court explained that where the intent was to quiet the
victim to facilitate the robbery, the fact that repeated blows were necessary did not make
the murder unusually heinous. Also agreeing that the robbery was “calculated,” the court
found no evidence that the killing was anything but “an afterthought, if thought about at
all.” (Id. at p. 497.)25 Finally, in In re Weider (2006) 145 Cal.App.4th 570, the court
applied a “not unusually heinous” analysis to reverse a finding of unsuitability
[footnote continued from previous page]
which involved the notorious Charles Manson murders. In In re Dannenberg, supra, 34
Cal.4th 1061, defendant, during a domestic argument, beat his wife with a pipe and then
drowned her in the bathtub. The defendant in In re Burns (2006) 136 Cal.App.4th 1318
lured his victim to an isolated spot and shot her, then went to watch football with his
roommate. When the victim was found around two hours later, she was still alive and
moaning, and appeared to have been trying to move; thus, defendant simply left her to
suffer and die.
25 Elkins may implicitly concede that defendant’s actions after the murder—
dumping the body and then stealing from the victim’s storage unit and the residence of
his girlfriend—might make the offense unusually callous; to the extent that they do so,
Elkins held that after 26 years and “exemplary rehabilitative gains,” these factors simply
did not retain any predictive value as to the defendant’s future dangerousness. We might
well conclude similarly in this case if required to reach the point, but as petitioner’s
offense was in no way exceptional, as we have explained, we do not need to consider
when, or whether, the gravity of an offense alone ceases to justify a denial of parole.

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where the killing occurred during a scuffle between the distraught defendant and the
current boyfriend of his estranged wife.
In light of these cases—and as contrasted with those represented by the citations in
footnote 25—we have no hesitation in finding that nothing in petitioner’s offense was
“exceptionally atrocious, heinous, or cruel.” Hence, the Board could not rely on this
factor in denying parole.
The other grounds cited by the Board are even less substantial. As described
above, petitioner has excellent parole plans with firm job offers, and there was no
evidence to refute the showing that he has a “huge support system” waiting for him
comprised primarily of “his large family of productive and responsible members of
society.” The Board’s only criticism was that his plans involved Orange County rather
than Riverside County, his last legal residence. But while it is true that an inmate’s last
county of legal residence is the presumptive county for parole, the Board has authority to
approve parole to any county. (§ 3003, subds. (a), (b).) Under subdivision (b), parole to
another county is appropriate if the inmate has a “(3) . . . verified . . . work offer” and
“(4) . . . family in another county with whom the inmate has maintained strong ties and
whose support would increase the chance that the inmate’s parole would be successfully
completed.” That is exactly this case, and the Board’s reluctance to accept this option
appears to have been completely arbitrary.26
26 Parole to a different county is also appropriate where the inmate’s last county of
legal residence presents negative issues, such as public hostility (the statute says
“concern”) or danger to the victim, the parolee, a witness, or anyone else. (§ 3003, subd.
[footnote continued on next page]

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19
The Board also criticized petitioner for not participating in an “anger
management” program. Leaving aside the fact that no such program has been available
to him, there is absolutely no evidence that going through such a program would reduce
his dangerousness.27 Although it is, of course, true that the life offense was committed in
anger—as petitioner admits—it was also prompted by unique stresses and even fear.
Nothing in petitioner’s pre-offense history suggests that he had difficulty managing his
temper, and the descriptions of him while incarcerated consistently refute the need for
further treatment in this respect: Petitioner is “non-aggressive” and “mature and calm.”
It is also to be noted that petitioner’s psychiatric reports have consistently concluded that
he has no mental health issues requiring treatment or supervision.
The Board also mentioned that petitioner had not demonstrated sufficient “insight
or remorse” and that the most recent psychological report was “not totally favorable.”
On the first point, if this kind of “quantity” analysis were permitted to stand, no decision
could ever be challenged. How much remorse is “enough?” By any standard, we think
the Board’s concerns were unjustified.
Petitioner has never denied responsibility for the crime. In his 2001 psychological
evaluation his remorse is described as “appear[ing] genuine.” Although it is difficult to
[footnote continued from previous page]
(b)(1), (2).) Nothing in the record suggests that Orange County would be inappropriate
under these standards.
27 Recall that petitioner did participate in a program called “Hands of Peace,”
which apparently encourages nonviolent methods of conflict resolution; the Board simply
[footnote continued on next page]

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analyze a cold record, his statements at the hearing read as sincere expressions of regret
and resolve to make “amends” by changing himself as a human being to ensure that
nothing similar would ever happen again. The fact that an inmate may not express
himself in the precise terms desired by the Board (which can never be known to the
inmate) cannot be a basis for a finding of unsuitability.
As for petitioner’s “insight,” the 1998 psychiatric evaluation considered his insight
to be “good.” The “downgrade” to “fair” in the 2001 report does not justify a finding of
unsuitability, especially where it is unexplained. The fact is that petitioner has always
shown ample insight into his particular offense. He was angry and frightened and wanted
to teach Goodhue a lesson. This is not a situation, for example, in which an inmate has
failed to make progress in understanding the social, economic, and psychological factors
that led him into a life of gang violence. Petitioner was a law-abiding young family man
who reacted foolishly and criminally to a perceived threat, and there is no indication that
he does not understand this.
Finally, we deal with the Board’s concerns over the most recent psychiatric report.
It is true that the evaluator does not expressly state an opinion on petitioner’s level of risk
outside prison.28 However, the Board overlooked the evaluator’s comment that
petitioner’s “[p]rognosis for community living appears to be good.” As we noted above,
[footnote continued from previous page]
commented that this was “some time ago.” However, nothing in petitioner’s prison
record supports a concern that any lessons learned in “Hands of Peace” did not “take.”
[footnote continued on next page]

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the 1998 evaluation did expressly rate petitioner as a less than average risk “in the free
community,” and the evaluator also commented that this was likely to hold true in the
future. Leaving aside the issue of whether the Board can fairly rely on an incomplete
psychiatric report when it has failed to authorize the preparation of a new one, there is
simply no basis in the record to suppose that petitioner’s level of risk has increased or
that his “prognosis” has deteriorated. Again, where the clear tenor of an evaluation is
favorable, it is unfair to penalize an inmate because the evaluator did not express his
views in the precise language desired by the Board. We stress that the reports are
consistent to the effect that petitioner has no mental health issues whatsoever that require
treatment or supervision.
As a last point, the Board noted that the district attorney of the county in which
petitioner was tried opposed release. The prosecutor is entitled by statute to represent the
interests of the People at a parole hearing and the Board is entitled to consider his
comments. (§§ 3041.7, 3042, 3046, subd. (c).) However, where the district attorney is
represented by a deputy with no personal knowledge of the case, and where the actual
prosecuting attorney has recommended leniency, the formal opposition by the office is
entitled to little weight. Somewhat similarly, although the Board could properly consider
[footnote continued from previous page]
28 The evaluator did consider him at a low risk of dangerousness “[w]ithin a
controlled setting.”

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the opposition of the victim’s family members (§ 3043, subd. (e)), where that opposition
was not based on any facts unique to this case or outside the trial record, it could not have
substantial weight.
In summary, we find that the Board’s finding of unsuitability was unsupported by
even a modicum of evidence. None of the factors of unsuitability can properly be applied
to petitioner, and all of the applicable factors of suitability bear in his favor.29 First, it
should be noted that the panel completely ignored the mitigating factor that the offense
was committed under circumstances of unusual stress. (Cal. Code Regs., tit. 15, § 2402,
subd. (d)(4).) Petitioner had been threatened by Goodhue and believed that his home had
been burglarized and vandalized by the latter; even before that incident, he had expressed
concerns over his and his family’s safety. Recall that he was himself the father of a
young child. Significantly, this stress was not related to pressures that are endemic to
modern life, such as economic or relationship issues; rather, it involved a perceived
serious threat to the safety of petitioner and his family of the type unlikely to be
repeated.30 The Board clearly erred in failing to consider this evidence of a positive
factor. Furthermore, petitioner had no previous criminal history; his social history
(insofar as he had developed one at age 19) was reasonably stable; he is now middle-
29 Battered Woman’s Syndrome is obviously inapplicable.
30 Where an offense is committed in part due to stress experienced by the actor,
the fact that the stress—or at least a similar trigger—is unlikely to recur is a valid
consideration in evaluating the inmate’s degree of dangerousness and suitability for
parole. (In re Scott (2005) 133 Cal.App.4th 573, 601.)

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aged; his institutional behavior has been excellent; and he has solid plans for success in
the community. The Board’s decision was unsupported by the record.
The only remaining question is that of remedy.
DISPOSITION
Petitioner requests that we reinstate the 2002 finding of suitability and direct the
Board to calculate his release date pursuant to the term then set. But that decision was
reversed by the Governor and is not now before us; absent any authority supporting our
power to take such action, we decline to do so.
As a rule, courts must not only “refrain from reweighing the evidence, [but]
should [also] be reluctant to direct a particular result.” (Ramirez, supra, 94 Cal.App.4th
at p. 572.) If the Board’s findings are not supported by the required “modicum” of
evidence, a writ of habeas corpus should issue directing the Board to vacate its decision
and thereafter “to proceed in accordance with due process of law.” (In re Rosenkrantz,
supra, 29 Cal.4th at p. 658.)31
We may, however, direct the Board with respect to the conclusions that must be
drawn from certain evidence where its contrary decision was arbitrary and unreasonable.
(In re Scott, supra, 119 Cal.App.4th at p. 899 [Board directed to consider psychological
reports as favoring petitioner’s application for parole].) Accordingly, albeit with some
31 The procedure is different when the court is reviewing a decision of the
Governor reversing the Board’s grant of parole. In that case, the Governor’s decision
may be vacated, with the effect of reinstating the Board’s decision. (In re Lee, supra, 143
Cal.App.4th at pp. 1414-1415.)

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reluctance, we will remand the matter to the Board with directions to conduct a new
hearing as soon as practicable upon the finality of this opinion, to evaluate the
proportional gravity of petitioner’s offense in accordance with the views expressed in this
opinion; to consider the psychological reports of record as supporting release unless
contradicted by information or opinions contained in a new report (see Ramirez, supra,
94 Cal.App.4th at p. 972); to consider petitioner’s parole plans of record as satisfactory;
to consider the factor of unusual stress; and otherwise to proceed in accordance with due
process of law. The Board is further directed to schedule such a hearing within 30 days
of the finality of this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
I concur:
/s/ Gaut
Acting P.J.

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1
Miller, J., Concurring and Dissenting.
I agree with the majority’s determination that the Board improperly found
petitioner was unsuited for failing to participate in self help and anger-management
programs. As the majority noted, petitioner cannot be faulted for failing to participate in
a program that did not exist.
I also agree with the majority’s observation that the Board cannot find that the
most recent psychiatric report “was not totally supportive of his release” when it failed to
even authorize that a new report be prepared.
However, I respectfully disagree with the majority’s finding that the petitioner’s
commission of the offense was not especially grave, calculated, cruel or callous.
The Board is the administrative agency within the executive branch that has
jurisdiction to fix the length of sentence a prisoner must serve, to grant parole, and to set
release dates. (In re Rosenkrantz (2002) 29 Cal.4th 616, 653, 665, 667 (Rosenkrantz); In
re Schoengarth (1967) 66 Cal.2d 295, 302; In re Dannenberg (2005) 34 Cal.4th 1061,
1078.) Parole applicants have a procedural due process right to be free from an arbitrary
decision and to have their applications “‘“duly considered.”’” (Rosenkrantz, supra, 29
Cal.4th at p. 655.) In reviewing those applications, the Board must make its parole
decisions on some factual basis: it must resolve any conflicts in the evidence and assign
the weight to be given that evidence. Denying a prisoner a release date without “‘some
evidence’” would be arbitrary and capricious, thus requiring reversal so as to preserve a
prisoner’s due process rights. (Id. at p. 657.)

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2
To remedy any abrogation of procedural due process rights, a prisoner may seek
judicial review of the Board’s decision by way of a petition for writ of habeas corpus.
(Rosenkrantz, supra, 29 Cal.4th at p. 664; In re Strum (1974) 11 Cal.3d 258, 259-270;
Superintendent v. Hill (1985) 472 U.S. 445, 451, 455.) The standard of review of a
Board’s decision denying parole is the “some evidence” standard. (Rosenkrantz, supra,
29 Cal.4th at p. 658.) That is, a reviewing court’s inquiry is limited to determining
whether there is “some evidence” in the record before the Board that supported its
decision to deny parole, based upon the factors specified by statute and regulation. If the
Board’s consideration of the specified factors is not supported by “some evidence” in the
record, it is devoid of a factual basis, and hence the petition for writ of habeas corpus
should be granted. (Ibid.)
It is true, as the majority laudably noted, that reviewing courts do not become
“potted plants,” torpidly reviewing parole denials. However, our only role is to
assiduously apply the correct standard of review—to decide if there is some evidence.
“[T]he ‘some evidence’ standard is extremely deferential.” (Rosenkrantz, supra, 29
Cal.4th at p. 665, 679.) We may neither reweigh facts nor substitute our discretion for
the Board’s.
“The powers of state government are legislative, executive, and judicial. Persons
charged with the exercise of one power may not exercise either of the others except as
permitted by this Constitution.” (Cal. Const., art. III, § 3.) The constitutional mandate is
to protect one branch against overreaching from another branch. (Rosenkrantz, supra, 29
Cal.4th at p. 662.) This separation of powers doctrine prevents one branch from

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materially impairing the functions so as to completely divest the other branch from
power. (Ibid.)
It is a judicial function to try criminal cases. Once a verdict is rendered, the trial
judge exercises his discretion in selecting a sentence within a range delineated by the
Legislature. It is an executive function to execute the sentence imposed by the judiciary.
For indeterminate life sentences, it is the function of the Board, an executive agency, to
determine the length of the life sentence by balancing the safety of the public against the
inmate’s liberty interest.
An appellate court’s function is to insure the Board has conducted its review of the
prisoner’s parole with “due consideration.” The court’s sole task to guarantee the
prisoner has received procedural due process—that is, to make certain that the Board
properly denied his parole request based on “some evidence.”
In this instance, I believe the Board correctly denied petitioner’s request for parole
based on “some evidence” that the underlying offense was calculated, cruel and callous.
Petitioner and Goodhue had some “bad blood” between them as a result of a
landlord/tenant dispute: Goodhue was angry that petitioner moved his belongings out of
the residence. During that altercation, Goodhue said he was going to kill petitioner; he
picked up a pickax, slammed it into the ground so the head of the axe came off, and then
used the ax handle to swing at petitioner.
As a result of the clash, petitioner felt the need for protection, so he borrowed a
shotgun.

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4
Four or five days later, petitioner returned home on a Sunday from a weekend
away and discovered his home had been burglarized. Petitioner suspected Goodhue was
responsible for the break-in. He took the shotgun and five shells and loaded the weapon.
At 10 o’clock at night, he drove to Goodhue’s and Boyd’s home and parked his truck in
front of their trailer. Some time later he drove his truck away, but after either making a
U-turn or driving around the block,1 petitioner returned and again parked in front of their
trailer. He exited the vehicle with the shotgun, walked towards the front of the trailer and
stood next to a window as if he were listening or looking inside. He took a step toward
the corner of the trailer and shot into the trailer from approximately 20 feet away.
Goodhue and Boyd were inside the trailer. Goodhue suffered three shotgun pellets
in his back. Boyd, who was eight months pregnant, sustained shotgun wounds to her
back. Boyd died as a result of her wounds one hour later. Physicians performed an
emergency caesarian section to deliver the fetus, but the fetus had died from a lack of
oxygen following Boyd’s death.
Ten o’clock p.m. on a Sunday night is a time when people are commonly at home.
Firing into an inhabited dwelling from 20 feet away is a cruel and callous act that shows a
disregard for human life. Although petitioner may not have been certain that Boyd and
Goodhue were within, firing into their home from close range resulted in a high
probability of injuring someone.
1 There was a discrepancy between the defendant’s and a prosecution witness’s
testimony.

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5
Petitioner testified that he fired the shot because he wanted to make a statement
that “he had been there, he was upset with Goodhue, and he wanted Goodhue to know he
had protection.”
If petitioner needed a shotgun for protection because he was so afraid of Goodhue,
petitioner would never have driven to Goodhue’s trailer in the first place. Petitioner’s
actions show he was calculating: he loaded the shotgun with a shell, drove in a truck
with the loaded shotgun to the trailer, fired the gun into the trailer at night when it was
more likely people would be in the trailer, and when it was dark enough so his actions
would be undetected.
Petitioner had an opportunity to cease his criminal activity when he drove away
from the trailer the first time. Returning to the trailer and then shooting into the dwelling
further demonstrates petitioner actions were calculating.
Petitioner fired into Goodhue’s trailer because he was angry that Goodhue
burglarized his home in retaliation for the previous landlord/tenant dispute. Petitioner
testified that he reported the burglary to the sheriff’s department, but neglected to inform
them of Goodhue’s threat to kill him. Instead of allowing the wheels of justice to resolve
the burglary and the threats, petitioner took the law into his own hands by going to
Goodhue’s home and shooting into it to “prove to Goodhue he had protection.”
Petitioner’s action of recklessly firing into the trailer was cruel and callous. “The nature
of the prisoner’s offense, alone, can constitute a sufficient basis for denying parole.”
(Rosenkrantz, supra, 29 Cal.4th at p. 682; see also In re Ramirez (2001) 94 Cal.App.4th

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6
549, 569.) The parole authority “properly may weigh heavily the degree of violence used
and the amount of viciousness shown by a defendant.” (Rosenkrantz, at p. 683.)
The majority opinion accurately recites petitioner’s exemplary record as support
for its finding he is a strong candidate for release on parole. However, we are not
authorized to reweigh the various factors for parole suitability. It is irrelevant that a court
might determine that evidence in the record demonstrates the suitability factors outweigh
unsuitability factors. Our review is limited to whether the Board accorded procedural due
process to the petitioner by citing some evidence in support of its finding. (Rosenkrantz,
supra, 29 Cal.4th at p. 677.) I believe the Board has comported with due process as there
is some evidence in the record to support its finding that the offense was calculated,
cruel, and callous. It is violative of the separation of powers doctrine for the judicial
branch to divest the executive branch (the Board) of its power to deny parole by
impliedly stating it gave improper weight to facts and reached the wrong conclusion.
/s/ Miller
J.

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