In re WING 1/5/12: 4th District Div 1 strikes back after SHaputis II

FACTS:

In 1995, a jury convicted James Wing of second degree murder and also found he personally used a firearm to commit the offense. The court sentenced him to prison for 15 years to life, plus a four-year enhancement under section 12022.5, subdivision (a). Wing, at age 41, began serving his indeterminate term in 1995 and participated in an initial parole consideration hearing on January 13, 2010. The Board of Parole Hearings (the Board) found Wing unsuitable for a release date and denied him parole, setting a new suitability hearing in three years.

After the trial court denied a request for habeas relief, Wing filed the present petition for writ of habeas corpus. Wing asserts the Board's conclusion is not supported by some evidence that, if paroled, he currently would pose an unreasonable danger to the public. He also contends the application of Marsy's Law to increase his time between parole suitability hearings violates the federal and California Constitutions' ex post facto provisions. We need not discuss the latter contention because we conclude the record does not contain "some evidence" to support the Board's ultimate conclusion that Wing was unsuitable for parole because he currently poses an unreasonable risk to public safety.

Accordingly, we grant Wing habeas relief.


THE BOARD'S DENIAL IS NOT SUPPORTED BY SOME EVIDENCE

In this case, because the court below denied Wing's petition for a writ of habeas corpus, the current petition for habeas relief is an original proceeding that requires we independently review the record to determine whether there is some evidence to support the Board's decision in denying Wing parole. (In re Scott (2004) 119 Cal.App.4th 871, 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 [the Board].' [Citation.]" (Vasquez, supra, 170 Cal.App.4th at pp. 382-383.)


ANALYSIS by the Court

The parties disagree as to the factors the Board relied on in denying Wing parole. The Attorney General argues the Board relied on both the circumstances of the commitment offense and Wing's purported lack of insight. Wing, claims the Board only relied upon his lack of insight of the causative factors of the life offense in denying him parole.

A- CIRCUMSTANCES OF THE LIFE CRIME

The Board clearly referenced the circumstances of the life crime in supporting its decision. "As far as the offense goes, it was a very reckless offense, a murder." The Board then again described in detail the facts of the life offense. We thus conclude the Board was stating, perhaps inartfully, it was relying upon the circumstances of the commitment offense in support of its denial. There would have been no reason to repeat the facts of the life offense in detail otherwise.

Even assuming the Board found that Wing committed the life offense "in an especially heinous, atrocious or cruel manner," this factor does not support the Board's denial on this record. The commitment offense predates incarceration and is immutable. In Lawrence, supra, 44 Cal.4th 1181, the court explained that parole for murderers is the rule, not the exception, and therefore, the immutable aggravated circumstances of an offense alone rarely will provide a valid basis to deny parole after an inmate has served
the suggested base term and when there is strong evidence of rehabilitation and no other
evidence of current dangerousness.

Simply put, the Board's reliance on the circumstances of the life offense must be combined with some other evidence of current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1214.) On the record before us, we have no other indication of Wing's current dangerousness. As such, we conclude the circumstances of the life crime, committed some 15 years prior to the 2010 suitability hearing, without additional evidence, have little probative value regarding Wing's dangerousness to society if released.

B - MINIMIZATION/LACK OF INSIGHT

A prisoner's insight into his offenses and his understanding of the nature, magnitude and causes of his crime are important parole suitability factors. (In re Rodriguez (2011) 193 Cal.App.4th 85, 97.) Further, a "petitioner's current attitude toward the crime constitute[s] [a] factor[] indicating unsuitability for parole." (Shaputis, supra, 44 Cal.4th at p. 1246.) A conclusion that a petitioner remains dangerous and is
unsuitable for parole can be supported by evidence that, among other things, the petitioner "is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative 'programming.' " (Id. at p. 1260.) However, expressions of insight and remorse will vary from inmate to inmate and there are no special words for an inmate to articulate to communicate he or she has committed to ending a previous pattern of violent or antisocial behavior.

The Supreme Court has recently discussed the "lack of insight" on the part of inmates and how the Governor or parole authorities may use lack of insight in parole decisions. (In re Shaputis (Dec. 29, 2011, S188655) ___ Cal.4th ___ [2011 DAR 18585] (Shaputis II).) In that case, the court reaffirmed the requirement of judicial deference to executive branch decisions regarding paroles. The court noted parole authorities can use this factor as a basis of a parole denial and that judicial review is limited to determining
whether there is a modicum of evidence to support the executive decision. The court recognized lack of insight may be an indicator of current dangerousness.

Shaputis II, supra, ___ Cal.4th ___ [2011 DAR 18585] does not require us to defer to the Board's decision based on lack of insight. It is apparent from a review of the record, as noted below, there is no evidence of a current lack of insight on the part of Wing. Indeed, the entire discussion by the Board focused on the events surrounding the commission of the life offense. Those events are relevant to parole review, but nothing in
the Board's analysis supports a finding of current dangerousness based on a lack of insight at the time of the offense.

CONCLUSION

But for the immutable nature of his life crime and the unsupported determination by the Board that he lacks insight, all the applicable regulatory criteria indicate that Wing is suitable for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) Wing has been a model prisoner since 1995. He has addressed the anger that led to his life offense via self-help, vocational and educational programs, and therapy. He has no prior criminal
record or assaultive behavior, has no current mental health issues, and has remained discipline free in prison for over 15 years. The psychological evaluator concluded that Wing is a very good candidate for parole and would unlikely reoffend, finding him to be in the very lowest risk group for violence if released. The Board was satisfied with Wing's parole plans. The evidence at the hearing showed that Wing was credible, remorseful and that he had insight into his crime for which he accepted full responsibility. Given the undisputed evidence of Wing's rehabilitation and the lack of some evidence of current dangerousness to support the Board's decision, we are compelled to conclude under the standards adopted by Lawrence, supra, 44 Cal.4th 1181, and applied in this case, that the Board's decision is not supported by some evidence and therefore violated Wing's due process rights. Accordingly, Wing is entitled to habeas relief. Because the Board's finding of no suitability for parole has no evidentiary support, it cannot stand.

Accordingly, the Board's decision denying parole is vacated and the matter is remanded to the Board for a further hearing in accordance with due process standards as articulated in In re Prather (2010) 50 Cal.4th 238.