In Re Roderick

65 Cal. Rptr. 3d 16, 154 Cal. App. 4th 242

• Court: California Court of Appeal
• Decided: September 12, 2007
• Docket: A113370
• Status: Published

Opinions

Opinion

RIVERA, J.

The Attorney General appeals from a superior court order granting a petition for writ of habeas corpus filed by Alfred William Roderick, who is now 75 years old. The superior court determined that the factors relied upon by the panel of hearing officers representing the Board of Parole Hearings in denying Roderick parole were not supported by some evidence.¹ The court granted Roderick’s petition and referred the matter back to the Board for further review consistent with the court’s ruling. The Attorney General urges us to reverse the court’s decision, arguing that there is some evidence in the record to support each of the factors upon which the Panel relied in denying Roderick parole. We affirm.

I. FACTUAL BACKGROUND

A. The Commitment Offense

On April 11, 1986, Roderick was convicted of one count of second degree murder with the use of a deadly weapon and sentenced to 16 years to life in prison. The murder occurred when Roderick stabbed another man, Michael Obie, outside of a saloon in Eureka. According to police reports, as summarized in the probation officer’s report, Roderick and Obie began arguing inside the bar and Roderick challenged him to go outside and fight. Roderick reportedly punched Obie as they were going out the door, and then hit him again as Obie exited the saloon.² The altercation continued outside and a few seconds later “it was reported that [Obie] had been stabbed.”

The record before us also discloses the following additional facts; Obie began harassing Roderick inside the bar when he ascertained that Roderick was the father of a security guard at Safeway who had arrested Obie’s aunt for shoplifting. During the fight that took place outside the saloon, Obie pulled a hunting knife, the two struggled over the knife, and, ultimately, Roderick gained control of the knife and stabbed Obie in the chest. Roderick was drunk at the time of the crime. Obie was on parole for first degree murder.

B. History of Parole Hearings

1. 1994

Roderick’s minimum eligible parole date was August 28, 1995. Accordingly, his initial parole hearing took place in 1994. In the life prisoner evaluation report prepared for that hearing, Roderick’s behavior in prison is described as “marginal,” with an “average” relationship with staff and other inmates. The report also sets forth a disciplinary history which indicates he had a CDC 115³ for possessing marijuana in 1993, and that he was stabbed during an altercation with his cellmate in 1989. Roderick was assessed to pose a “moderate” threat to the public if released. A psychiatric evaluation prepared in 1994 states that Roderick “demonstrates little self-understanding about the causative factors regarding [the commitment] offense or his previous offenses.” Roderick was diagnosed with “[a]lcohol intoxication” and an “[a]ntisocial personality disorder,” which “reflects a lifestyle of repetitive crime compounded by substance abuse.” The report states that “[i]n a less controlled setting, he would be less dangerous if he maintains his sobriety, but that can not be predicted nor guaranteed.” No psychiatric treatment was indicated.

The Panel found Roderick would pose an unreasonable risk of danger to society if released, and denied parole, articulating the following reasons: (1) The commitment offense “was carried out in a manner which exhibits a callous disregard for the life and suffering of another”; (2) Roderick failed to develop a marketable skill; (3) Roderick failed to demonstrate evidence of positive change; he received a recent CDC 115 for possession of a controlled substance; and (4) the psychological report was “not totally supportive of release.” One commissioner commented that Roderick appeared to have a “very nonchalant, indifferent attitude about [his] whole situation, about [his] life history and the crime.” Another commissioner stated: “I’m really puzzled by the solution as to what [Roderick] can ... do to keep [himself] out of prison, which I don’t think [he] really cares much about in or out of prison.” Roderick responded that, for sure, that’s one thing he would be doing.

2. 1997

Roderick’s next parole hearing occurred in 1997. The life prisoner evaluation report added nothing new from the previous report except to state that Roderick’s degree of threat (moderate) was “based upon the consumption of alcohol in the instant [commitment] offense.” The psychological evaluation, however, reflected a fundamental shift in attitude. In describing the crime Roderick “expressed his regret” and “wished he had handled [the situation] somehow differently.” It reports that Roderick is attending Alcoholics Anonymous (AA) and that he is “ ‘done with drinking forever.’ ” Roderick is described as having normal intellectual functioning with good insight and judgment. Although still diagnosed with antisocial personality disorder, it is described as “improved.” The report concludes that Roderick is showing improvement in his behavior and, if released, should be able to maintain the gains he has made, especially if he continues to abstain from alcohol. According to the report, his level of dangerousness “is likely to be less now than for the average inmate.”

The Panel again found Roderick to pose an unreasonable risk to the public if released, based upon the following stated reasons: The commitment offense was callous; he had an unstable social history, including a history of predatory offenses; he had failed at previous grants of probation and parole and had prior prison terms; he had not upgraded educationally or vocationally; he had not participated sufficiently in self-help and therapy; and he was diagnosed with an antisocial personality disorder, “but he’s improved.” Commending Roderick for his excellent disciplinary record and for recent gains, the Panel noted the need for additional participation in AA and other self-help and therapy programming, for upgrading his vocational skills or education, and for remaining disciplinary free.

3. 1999

Roderick was given another hearing in 1999. Salient in the life prisoner evaluation report prepared for that hearing is information concerning Roderick’s criminal history—some 28 convictions over a period of 28 years, ranging from negligent driving to armed robbery. Roughly half of the convictions relate to Vehicle Code violations, public drunkenness or contempt; the remaining crimes are primarily theft related, including petty and grand theft, forgery, burglary and armed robbery. Roderick’s previous violent offenses occurred in 1959 (assault with a deadly weapon), and in 1970 (armed robbery). The report also notes that Roderick had another CDC 115 (work performance/obey orders) which he incurred when first incarcerated in 1986. In other respects the evaluation is, in essence, the same as the previous evaluations and assesses Roderick to be a “moderate degree of threat to the public if released.” His psychological evaluation, however, reflects steady gains. According to the report, Roderick now understands that at the time of the crime he should not have been drinking, that had he been sober he could have made a better decision, and that the decision he made was irresponsible. The report states that Roderick is “very remorseful” for causing the victim’s family grief, as well as for taking this time from his own family. The psychologist concludes, “after 14 years of incarceration, and 67 years of age, [I believe this inmate] has developed his maturity to such an extent that he would be an excellent candidate at this time for parole, [f] . . . HD . . . If released to the community this inmate poses no more danger than the average citizen.”

The Panel again denied parole, listing the following reasons to support its conclusion that Roderick posed an unreasonable risk of danger: The commitment offense was carried out in an especially cruel and callous manner and the motive for the crime was trivial in relation to the offense; Roderick had a record of violence and assaultive behavior and an escalating pattern of criminal conduct, had failed previous grants of probation and parole, and therefore could not be counted upon to avoid criminality; Roderick had failed to develop a marketable skill, failed to upgrade educationally and vocationally, and had not sufficiently participated in beneficial self-help or therapy programs; and Roderick had a serious CDC 115 in 1993 for possession of marijuana. The Panel took note of the psychological evaluation which “states that [Roderick’s] insight into his commitment offense is minimal [but] goes on to say some very positive things about [Roderick].”⁴ The Panel commended Roderick for his excellent work evaluations, and his participation in AA and in the life skills program. It found, however, that Roderick “needs continued therapy in order to face, discuss, understand and cope with stress in a nondestructive manner.” The Panel recommended that Roderick “remain disciplinary-free, upgrade vocationally and educationally and participate in continued self-help and therapies programs as they become available.”

4. 2001

Roderick’s next hearing was in 2001. The life prisoner evaluation report—if there was one—is absent from the record. No new psychological report was prepared for this hearing; under a new protocol, the Panel was to rely on the 1999 evaluation. The Panel again declined to set a date for parole on the ground Roderick would pose an unreasonable risk of danger to public safety. This was based upon the following factors: The commitment offense was carried out in an especially cruel manner; Roderick had an extensive prior history of criminality, had served prior prison terms and thus had failed to profit from previous attempts to correct his criminality; Roderick had a problem with alcohol and “at some point” used marijuana as well; Roderick had not sufficiently participated in beneficial self-help programs; and Roderick’s “counselor[]” believed he would pose a “moderate degree of threat to the public if released at this time.” The Panel found, again, that Roderick “needs continued therapy in order to face, discuss, understand, and cope with stress in a nondestructive manner.”

On the other hand, Roderick was commended for increasing his TABE score,⁵ for receiving above average and exceptional work reviews, for participating in AA “for a number of years now,” and for participating in a class on the subject of sexually transmitted diseases. The Panel gave Roderick his first one-year denial (a new hearing in one year instead of two) and recommended that he remain disciplinary free—to come back “completely clean”—and continue to participate in available self-help, meaning not just AA but anything else that was offered. Significantly, the following exchange then took place: “[Roderick]: I wrote a letter to this place over here and they wrote me a letter back saying they had no self-help (indiscernible), self-help (indiscernible) opening right now. [f] [Commissioner]: Okay. Well, we’re just telling you—[f] [Roderick]: Yeah, I know that. [][] [Commissioner]:—that if available—[][] [Roderick]: I’m trying to do that. [][] [Commissioner]:—if anything—[][] [Roderick]: Right, [f] [Commissioner]:—comes up. We know that programming is limited. We know that. [][] [Roderick]: Okay. [][] [Commissioner]: We understand that. That’s why we’re recommending you continue in AA and anything else that’s available to you. [][] [Roderick]: Okay.”

Additionally, another commissioner made this comment: “Mr. Roderick, you’re in—In my opinion and our opinion, you’re on the right track. [][]... [|] And you’re to be commended for having turned a number of comers, in our opinion. Continue on that right .track.”

The Panel’s decision no longer included the recommendation which had been included in every previous denial that Roderick—then almost 70 years old—upgrade vocationally and educationally.

5. 2002

For the 2002 hearing, the life prisoner evaluation report updated the 1999 report and added a summary of Roderick’s work assignments and performance reviews, and of Roderick’s therapy and self-help activities. One significant change was that Roderick’s threat assessment was reduced to a “moderate to minimal degree of risk to the community if released.” Pursuant to the new protocol, no new psychological evaluation was prepared for this hearing.

Although Roderick was not given a release date, the Panel again commended him for his progress. In denying parole, the Panel relied on essentially the same reasons as those given for his 2001 denial, and stated, again, that he needed “continued self-help and/or therapy programming in order to face, discuss, understand and cope . . . with stress in a non-destmctive manner.” On a positive note, the Panel observed that the most recent psychological evaluation (from 1999) stated that Roderick “was no more a danger than the average citizen,” that Roderick’s parole plans included offers of both a job and a home, that Roderick had no “115s” since 1993, that Roderick had satisfactory to above-average work reports, and that Roderick had participated in AA, in Project CHANGE, in life skills, and in a class on sexually transmitted diseases. “Next year,” one commissioner stated, “we recommend, Mr. Roderick, that you remain disciplinary-free, that you continue to participate in any self-help and/or therapy programming that might become available to you, and that you cooperate with clinicians in the completion of a new clinical evaluation. When you come [back] to [the] Board, your psychological] evaluation] will be four years old and we don’t want that to be held against you at the next Board appearance so we ask for a new psych eval to be completed. I don’t think there will be any problems there. We just want to make sure that you have a fresh one on file. . . . [f].. . [1] I want to wish you good luck. You’ve done some pretty good time here. I’m a little disappointed that you hadn’t completed a vocation in this term or your prior terms, but you’re to the age now where you’re probably not going to really need to use that on the outside and probably would just be taking up space for somebody that would really need to learn a vocational skill. But just continue mainly in self-help areas and continue your positive programming. And I think that you’re coming around the comer, moving in the right direction. And you’ve got some more time to do.”

6. 2003

The record contains no transcript of the Panel’s decision in 2003. The record does, however, contain a psychological evaluation for the “November 2003 Lifer Calendar.” The evaluation reports that Roderick “freely admitted to a former problem with alcohol and has dealt with this issue through membership and attendance at Alcoholics Anonymous meetings.” The report goes on to state that Roderick spoke “openly about the circumstances of the instant offense, and his comments reflect a new sense of insight into his incarceration.” According to the report, Roderick “is fully remorseful, and aware of the effect of his actions on the victim’s family.” The report agrees with the 1999 assessment that Roderick “would pose no more danger than the average citizen” and concludes that he has “an extremely low probability of recidivism.”

There is also a life prisoner evaluation report for the “November 2003 Calendar.” In that report, Roderick’s threat assessment was reduced again, as the report concluded Roderick would pose “a minimal degree of risk to the community if released on parole at this time.”

Apparently, a hearing was held in December of 2003, because in the life prisoner evaluation report prepared for the December 2004 calendar the following was noted: “On 12/18/03 Roderick attended Subsequent parole consideration hearing #6, [Board] denied parole for 1 year and made the following recommendations: (1) Remain disciplinary-free, (2) Participate in self-help programs and requested a new psychological evaluation.”

7. 2005

The next hearing—resulting in the parole denial we review here—was held in May 2005. As requested by the Panel, an updated psychological evaluation was prepared in April 2005. Primarily, it states there is no new information to add to the 1999 report. The psychologist does note that Roderick “attended all of the self help groups available in the prison such as Anger Management and Alcoholics Anonymous,” and that his release plans provide a “supportive environment, [in which] inmate Roderick’s prognosis for success is excellent.” There are no diagnosed mental or personality disorders, and Roderick is assigned a GAF rating of 90 to 95.⁶ The report states that “[i]f released to the community inmate Roderick poses no more danger than the average citizen. [][]... The only significant risk factor to violence would be inmate Roderick[’s] using alcohol or drugs (which he stopped in 1991). He will be living in a very supportive benevolent environment and he is thoroughly convinced of alcohol’s terrible effects. It is very unlikely he would be violent.” The report concludes, “[g]iven everything inmate Roderick has learned, his age [73 years] and the fact that he has experienced a ‘slowing down’ during the last year, due to aging, he would make an excellent candidate for parole.”

A life prisoner evaluation report was prepared for the “December 2004 Calendar,” and we assume it was used for the May 2005 hearing. The report does not differ materially from the 2003 report (assessing Roderick as posing a “minimal” risk of reoffending), and states that the Panel had denied parole for one year in December 2003, that the Panel recommended Roderick remain disciplinary free and continue to participate in self-help programs, and that, in fact, Roderick remained disciplinary free and continued to participate in AA.

At the hearing, the Panel reviewed the circumstances of the commitment crime, relying on the probation report which summarized police reports. Roderick gave his account of the incident. Although the two accounts differed with respect to who initiated the physical fight, it is uncontradicted that the victim Obie began harassing Roderick inside the saloon, that it was Obie who pulled the knife during the fight outside the bar, that Roderick was drunk when the crime took place, and that Roderick was unaware he had inflicted a fatal wound at the time it occurred. Under questioning by Roderick’s attorney, it was brought out that the victim was a larger and much younger man than Roderick.⁷

The Panel then reviewed Roderick’s extensive criminal record and asked him about it. Roderick acknowledged it, and stated he had “no excuse for it.” The Panel also reviewed his family history: that his parents had been divorced before he was bom, that Roderick was raised by his grandmother, that he did not see his mother until he was 16, that he did not have a relationship with his father, that he completed school through the 11th grade, that he was married for 20 years, that he has two daughters, that he is still close to his ex-wife, that he is in close contact with his daughters, that he has nine grandchildren and a great-grandchild on the way, and that prior to this incarceration he worked mostly as a “high climber.”⁸ When asked why, given that he had a family and a job, he had engaged in criminal behavior, he responded: “Stupid is all I can tell you.” When a Panel member commented that Roderick just “[didjn’t seem to know why [he was] doing it,” Roderick admitted, “It don’t make sense, I’ll agree with you,” but he admitted that he was drinking too much during that time and was an alcoholic. Roderick denied any drag habit.

The Panel then reviewed Roderick’s parole plans. If released, Roderick would live with his daughter and son-in-law in Eureka. He would work with his son-in-law, who was a contract logger, and would also be receiving $850 per month income from Social Security. These plans were supported by a letter from Roderick’s daughter describing where he would live and the loving environment the family would provide. Roderick also planned to attend AA meetings in Eureka.

The Panel also reviewed matters relating to Roderick’s incarceration, noting a custody level of “Medium A.”⁹ The Panel recited that, as of August 2004, Roderick was assigned to the yard crew and had received an “exceptional” performance rating. Further, “[t]here was no psychiatric treatment and no negative discipline.”

The Panel then asked what Roderick had been doing since August 2004. Roderick explained he had been reassigned from the yard crew to the canteen, but complained the inmates had been “locked up all the time over there” and had “only been out a few days this year.” He stated he had attended AA “every time they got a chance to go” but that he had gone only about four times because “[w]e’re locked up all the time over there.” Roderick stated he had been in AA for 12 years. When asked what the eighth and ninth steps of the “12 steps” were, Roderick had difficulty responding, explaining that he was nervous. When prompted that it “deals with making amends” Roderick responded, “Yeah, making amends. Wait a minute. I’ll tell you in a second here. I’m a little bit nervous. I can’t think. I’ll tell you in just a minute. I know them all.” When asked what he had done to make amends he stated that his daughter had written a letter to the victim’s family, and that he [Roderick] had spoken with the victim’s sister, who was in jail when Roderick was there, and “she didn’t say much about it. She just said she knew how [Obie] was. That’s all she had to say.” When asked to recite the fourth step Roderick responded, “Continue to take personal inventory, where wrong promptly admit it.” When asked if Roderick had taken a “moral inventory” of himself, he replied, “I’ve been in 20 years. I’ve been thinking about this everyday, you know. And I just wish it didn’t have [sic\ happened and sorry that it happened. I can’t change what happened but I can change myself.”

Roderick’s lack of vocational training was also discussed. Roderick explained that he had not acquired a vocation in prison due to his age. “A lot of places if you’re over 50 they don’t want to get you to class—get into a place. Then at 60, they won’t. They don’t want a guy taking a trade [at] that age.” The commissioners remarked on the various jobs Roderick had undertaken in prison, commented on the fact that he had not gotten his GED (high school general equivalency diploma), and noted that he nevertheless scored 12.9 on the TABE.¹⁰ When asked how he had achieved such a high score Roderick explained he did not know but he “read[s] all the time.”

The Panel asked Roderick what he had learned in the Project CHANGE program in 2003. He responded that he learned he had a drinking problem (and stated he knew that already) and he learned that if you do something “you should be accountable for what you do[, a]nd treat other people how you’d like to be treated yourself.” Beyond this explanation Roderick had difficulty articulating lessons learned from the program, but stated he “took all the tests.” It was also noted that Roderick had taken a class on sexually transmitted diseases.

Roderick’s disciplinary actions in prison were reviewed; it was noted there had been none since 1993. When asked why he had not participated in more self-help groups he replied that “[t]hey don’t have nothing over there,” that “[w]e’re locked up all the time,” that he did participate in anger management, and that he did not get involved in other programs before Project CHANGE because he was “getting up at two in the morning working the kitchen and—go[ing back] to sleep in the afternoon. So, I’d get up at two in the morning. I’m tired, I can’t go nowheres. I had that job for seven years.”

When asked if he posed a threat to the public, Roderick replied he was “no threat to nobody.” The Panel then asked “what makes you a different man today than the man that came into prison,” and Roderick responded: “Well, I’ve been in 20 years and I want to live ... the rest of my life I can outside. And I’m not going to do nothing to jeopardize that. [f] ... [ft] ... I got grandkids. I’ve never been around them, never did see them. And I haven’t seen my kids either, [ft] . . . [ft] I’m a different guy. I’m a different guy than I was 20 years ago. I can tell you that, [ft] . . . [ft] I’ve been thinking about all this for 20 years for one thing. All that I’ve done and I’m not proud of myself.”

The Panel then reviewed the very favorable 2005 psychological evaluation, including the conclusion that Roderick “does not present a threat to society any more than the average citizen.” Additionally, the Panel quoted from the 2003 evaluation, including the observation that Roderick’s comments “ ‘reflect a new sense of insight into his incarceration,’ ’’ that he is “ ‘fully remorseful and aware of the effect of his actions on the victim’s family,’ ” and that due to his advanced age and low risk factors he is appropriate for release consideration.

One of the Panel members then asked Roderick what it was, apart from the fact he had “this family out there,” that would make the commissioner feel comfortable that if released he would not commit another crime. Roderick responded that he is “not into committing more crimes. That’s all in the past for me. Then my age. I’m going up to my daughter’s place. It’s out of town. . . . The Police Department and The District Attorney’s Office wouldn’t even know I’m in the county, as a matter of fact. And I’m not going to live forever. And I want to enjoy my grandkids if I can. And I’m not going to do anything to make them think worse of me than what I’ve already done to them.”

Then came what appeared to be a critical exchange: “[Commissioner]: . . . [Another] Commissioner asked you questions at the beginning of the hearing and repeatedly [sic] your exact words were, stupid is all I can tell you. Well, that’s not good enough. [ft] . . . [ft] That’s not good enough because the issue is whether or not we can give you the keys to the door and release you into the community. If you don’t know the answer to the question, how in the world can we let you out because you might do the same thing all over again. So, the answers to the questions are extremely important. And you sit[] there telling us repeatedly [sic], stupid is all I can tell you. [ft| [Roderick]: Well, I just can’t believe that someone would think a guy my age would go out there and do them crimes that I’d done 30 years ago. [f] [Commissioner]: Older people kill people all the time. [|] [Roderick]: It might [have] happened. But I can say that I can’t believe that someone could think that a guy my age would go out there and commit them crimes I’d done there 30 years ago, 40 years ago. . . . [f] [Commissioner]: Have you given any real thought to that type of question? [f] [Roderick]: Well, I thought a lot—I’ve been thinking about it for 20 years. And I can say, I can’t imagine somebody thinking that a guy my age would go out and do something like I did there 30, 40 years ago. [f] [Commissioner]: Do you see how important the issue I presented you with earlier of how weak you’ve been in getting involved in self-help and group programs because you know what, if you’d partook in those programs in the past, you might be able to answer those questions today. But you were sleeping because you were tired from working, [f] [Roderick]: If I was sleeping, what? [][] [Commissioner]: You were tired from working and you were sleeping when you could have been going to those programs, fit] [Roderick]: Well, I don’t know what to tell you other than I’m not into doing crimes some more. . . . [f] [Commissioner]: Okay, [f] [Roderick]: I’m not going out there—These things 30 and 40 years ago, I can’t change it and I’m not going to be doing it again. I can’t imagine that you’d think I would go out there and do that again, [f] [Commissioner]: Thank you, sir, I’ll return to the Chair.”¹¹

The assistant district attorney was then permitted to speak. He argued that Roderick had “no real remorse,” that he still “[did] not understand that his killing of Michael Obie was wrong,” and that his rendition of the events was inconsistent with the injuries, the witnesses’ statements and the jury’s verdict. He argued that Roderick had a “long criminal history” and that his release would pose an unreasonable risk of danger to the community.

Defense counsel argued in favor of Roderick’s release, citing the positive “Board report,”¹² Roderick’s completion of various self-help programs, his consistent attendance at AA meetings, his lack of any recent CDC 115’s, his supportive psychological evaluations over the last several years (concluding that Roderick is appropriate for release and that “the prognosis for community living is excellent”), his GAF rating of between 90 and 95, and his anticipated stable income and solid residential plans. She went on to make this point: “Perhaps it is that Mr. Roderick does not articulate his feel[ing]s and thoughts fully under the stress of the hearing. But it is important to know that he does consistently receive above-average work reports and even excellent ones.[¹³] And so, this is a man who shows up every day, doesn’t get into trouble, and even with the limited self-help programming that is formal, he has managed to avoid problems in a big way since he’s been in prison.”

After a recess, the Panel returned and announced its decision. The Panel denied Roderick’s request for parole, finding that he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Panel based its decision, first, on “the commitment offense” and, specifically, on the fact that once Obie started harassing Roderick “there are a lot of other choices [Roderick] could have made .... [He] could have just left. [He] could have just gone home. [He] could have called the police. But that wasn’t the choice that [he] made.” Next, the Panel cited Roderick’s extensive criminal history from 1952 to 1980, and his failure to “profit from society’s previous attempts -to correct his criminality. Those attempts included county jail, a prior prison term, and probation.” Third, the Panel relied upon Roderick’s “unstable social history [which] is certainly related to that criminal history but also to the abuse of alcohol.” The Panel also stated that Roderick had “programmed in a very limited manner,” that he had “failed to upgrade either vocationally or educationally,” and that he had “not yet sufficiently participated in beneficial self-help.”

On the positive side, the Panel remarked upon the fact that Roderick had only one “128(a) counseling Chrono and that was back in 1991,” that he had only three serious CDC 115’s, the last one in 1993, that the psychological evaluation was “largely favorable and supportive,” and that he had good parole plans with a lot of family support and an opportunity for work.

Ultimately, however, the Panel found, again, that “the prisoner needs to participate in self-help in order to understand and cope with stress in a non-destructive manner,”¹⁴ and concluded that, “[i]n view of the prisoner’s history and his lack of program participation there’s no indication that he would behave differently if paroled.”

In closing the Panel stated: “Mr. Roderick, we simply recommend that you continue to remain disciplinary-free. You really need to do some self-help, sir. And if you’re not going to do it in a program through the institution, then you can do it on your own by reading some books. But you can’t expect us to feel comfortable sending you back out with law-abiding citizens with your history and this crime if you don’t know why you led the life you did.”

C. Petition for Writ of Habeas Corpus

On July 29, 2005, Roderick filed a petition for writ of habeas corpus requesting that the superior court reverse the Panel’s decision. On October 28, 2005, the trial court held an evidentiary hearing in which Roderick was examined regarding his participation in various programs while in prison.

Roderick explained that he was frequently unable to attend AA meetings because he would finish dinner after 8:00 p.m., after which time no inmates were allowed to leave their cells. Otherwise, he attended all AA meetings available. He also briefly described the life skills and Project CHANGE programs.

On November 3, 2005, the superior court issued a ruling granting Roderick’s petition, finding that the factors relied upon by the Panel in denying parole were not supported by some evidence in the record.

The Attorney General then filed a motion for reconsideration, arguing that the court should vacate its November 3, 2005, ruling since the court failed to serve the warden and the Board with the order to show cause. The court granted this motion, the Attorney General filed a return to the writ, and Roderick filed a traverse. On March 21, 2006, the superior court entered an order reaffirming the November 3, 2005, ruling granting Roderick’s petition for writ of habeas corpus. The Attorney General timely filed this appeal.¹⁵

II. DISCUSSION

A. Statutory and Regulatory Scheme

The Board’s parole decisions are governed by Penal Code section 3041 and Board regulations (Cal. Code Regs., tit. 15,¹⁶ § 2230 et seq.). Pursuant to statute, the Board “shall normally set a parole release date” one year prior to the inmate’s minimum eligible parole release date, and shall set the date “in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public ....” (Pen. Code, § 3041, subd. (a).) Subdivision (b) of Penal Code section 3041 provides a release date must be set “unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.” “Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.” (Rosenkrantz, supra, 29 Cal.4th at p. 654; see also In re Smith (2003) 114 Cal.App.4th 343, 366 [7 Cal.Rptr.3d 655] (Smith) [“parole is the rule, rather than the exception”].)

Section 2402 sets forth various factors to be considered by the Board to carry out the mandates of the statute. These regulations are designed to guide the Board’s assessment of whether the prisoner poses “an unreasonable risk of danger to society if released from prison,” and thus whether he or she is suitable for parole. (§ 2402, subd. (a).)¹⁷ This regulation also lists several circumstances tending to show unsuitability¹⁸ and suitability¹⁹ for parole.

B. Standard of Review

In Rosenkrantz, our Supreme Court set forth the appropriate standard of review. “[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision’s consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner’s petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law.” (Rosenkrantz, supra, 29 Cal.4th at p. 658.)

This standard “does not require a review of the entire record, but only requires such review as is necessary to determine whether there is any evidence in the record supporting the denial.” (In re Van Houten (2004) 116 Cal.App.4th 339, 347-348 [10 Cal.Rptr.3d 406].) Once there is “some evidence” to support the section 2402 factors relied upon by the Board, “the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board] .... It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) However, “the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary and capricious.” (Ibid.) Thus, it is not enough that there is some evidence to support the factors cited for denial; that evidence must also rationally support the core determination required by the statute before parole can be denied, i.e., that a prisoner’s release will unreasonably endanger public safety. (In re Lee (2006) 143 Cal.App.4th 1400, 1408 [49 Cal.Rptr.3d 931] (Lee); In re Scott (2005) 133 Cal.App.4th 573, 595 [34 Cal.Rptr.3d 905] (Scott II).) “Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee’s release unreasonably endangers public safety.” (Lee, supra, 143 Cal.App.4th at p. 1408.)

The dissent rejects the standard articulated in Lee and applied in In re Elkins (2006) 144 Cal.App.4th 475, 502 [50 Cal.Rptr.3d 503], In re Tripp (2007) 150 [58 Cal.Rptr.3d 64], and Barker, supra, 151 Cal.App.4th at page 366. The dissent’s proposed standard of review would require judicial affirmance of every Board decision if even a single unsuitability factor is found, regardless of whether that factor would rationally support a conclusion, based on individualized consideration, that the inmate would pose an unreasonable risk of danger. (Dis. opn., post, at pp. 311-312.) If this were the standard, the courts would indeed be relegated to the status of potted plants. (Scott I, supra, 119 Cal.App.4th at p. 898.)

The only ground for a parole denial is found in Penal Code section 3041, subdivision (b), which provides that a release date shall be set “unless [the Board] determines that. . . consideration of the public safety requires a more lengthy period of incarceration.” Interpreting that standard, our high court has required that the Board’s decisions not be arbitrary or capricious (Rosenkrantz, supra, 29 Cal.4th at p. 677), and that the Board’s decisions be made “on relevant grounds” and supported by the evidence (Dannenberg, supra, 34 Cal.4th at p. 1071, italics added). We read those directives as mandating that the Board, in its decisions, must articulate reasons that are grounded in evidence and rationally related to the statutory basis for denial. The dissent’s proposed standard, we think, goes beyond even the deferential “some evidence” standard and would annul any meaningful judicial review. Were we required to engage in the kind of prodigious efforts undertaken by our dissenting colleague to shore up the Board’s decisions denying parole, affirmance would be guaranteed in every case.

C. Factors Relied upon by the Panel in Denying Roderick Parole

1. Roderick’s Commitment Offense

Section 2402, subdivision (c)(1) provides that a commitment offense carried out “in an especially heinous, atrocious or cruel manner” tends to indicate unsuitability for parole. In determining whether the offense was committed in such a manner, the Board should consider whether “(A) Multiple victims were attacked, injured or killed in the same or separate incidents, [f] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder, [f] (C) The victim was abused, defiled or mutilated during or after the offense, [f] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. [][] (E) The motive for the crime is inexplicable or very trivial in relation to the offense.” (Ibid.)

While the Panel relied upon the commitment offense in denying parole, it failed to cite any of the factors under section 2402, subdivision (c)(1) in its decision. The Panel simply stated its conclusion that Roderick was “not yet suitable for parole” and that “the information that we considered certainly included the commitment offense.” Although the Panel then recited the facts of the offense, it made no findings on any of the factors identified in its regulations for determining whether a defendant committed his offense “in an especially heinous, atrocious or cruel manner.” (§ 2402, subd. (c)(1).) The trial court, thus, found that there was no basis for the Panel’s ostensible finding that the offense was particularly egregious. “No basis [was] set forth. This court was the trial court, and is very familiar with the case. No evidence was presented at trial, and none has been set forth in the transcript before the [Panel], to make the finding.”²⁰

The Attorney General nonetheless argues that the offense met the section 2402, subdivision (c)(1) standard because the record supports a finding that the motive for the murder was trivial. The dissent likewise gives an assist to the Panel by implying findings concerning the commitment offense not articulated in its decision. (Dis. opn., post, at pp. 284-286, 293-294.) Given the extraordinarily deferential standard of review we already apply to the Board’s decisions, it would be inappropriate for courts to salvage the Board’s inadequate findings by inferring factors that might have been relied upon. At minimum, the Board is responsible for articulating the grounds for its findings and for citing to evidence supporting those grounds. “[T]he Board must apply detailed standards when evaluating whether an individual inmate is unsuitable for parole on public safety grounds. [Citations.] When the Board bases unsuitability on the circumstances of the commitment offense, it must cite ‘some evidence’ of aggravating facts beyond the minimum elements of that offense. [Citation].” (Dannenberg, supra, 34 Cal.4th at p. 1096, fn. 16.) Accordingly, “[w]e must confine our review to the stated factors found by the Board, and all the evidence presented at the parole hearing which is relevant to those findings, not to findings that the Attorney General . . . suggests the Board might have made.” (DeLuna, supra, 126 Cal.App.4th at pp. 593-594.)

But even if the Panel had determined that the crime was particularly egregious because the motive for the murder was “very trivial in relation to the offense” (§ 2402, subd. (c)(1)(E)), the evidence would not support such a finding.

Here, the facts contained in the record reflect that the victim began harassing Roderick in a saloon. Roderick was intoxicated and started a physical fight, punching the victim twice. In the course of the altercation, the victim pulled a hunting knife, and Roderick wrestled it away and stabbed him. There is evidence that the victim had also been drinking, and that Roderick did not realize he had effected a mortal wound. Without trivializing this tragic loss of life, the scenario appears to be nothing more than a drunken midnight brawl outside of a saloon that escalated—with the appearance of a knife—to mortal combat. The motive for the killing was not inexplicable or trivial in its context. As in Scott I, supra, 119 Cal.App.4th at page 894, in this case there is no evidence to support a finding that the motive for the murder was less significant than in other second degree murder cases.

The dissent takes issue with Scott 7’s “comparative analysis” approach to determining the relative triviality of motive in second degree homicide cases, and agrees with the Scott I dissent that motive must merely be tested against the crime to determine its triviality. (Dis. opn., post, at pp. 286-288.) Under this view, few—if any—motives would not be trivial relative to the kind of findings that are required to convict on first or second degree murder. (Barker, supra, 151 Cal.App.4th at p. 374 [“[g]iven the high value our society places upon life, there is no motive for unlawfully taking the life of another human being that could not reasonably be deemed ‘trivial’ ”].) But we need not resolve this issue because Scott I is not central to, nor even necessary to, our conclusion that the killing here was not particularly egregious. The core test for determining whether a crime is carried out in a particularly heinous, atrocious or cruel manner is whether the crime involves actions that are more aggravated or violent than the minimum necessary to sustain a conviction for that offense. (Rosenkrantz, supra, 29 Cal.4th at p. 683.) We cannot conclude, and the Panel has not stated, that this crime involves actions more aggravated or violent than the minimum necessary to sustain a conviction for second degree murder.

The Attorney General also contends that Roderick’s failure to avoid the murder when he had the opportunity to do so would support a finding under section 2402, subdivision (c)(1) that the crime was particularly egregious. In its decision, the Panel stated “[a]nd there are a lot of other choices that you could have made, Mr. Roderick. You could have just left. You could have just gone home. You could have called the police. But that wasn’t the choice that you made.”

That a prisoner could have avoided his or her commitment offense is not one of the section 2402, subdivision (c)(1) factors to be considered by the Board in determining whether the offense was committed in an “especially heinous, atrocious or cruel manner.” (See Rosenkrantz, supra, 29 Cal.4th at p. 658 [“the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation”].) We observe, however, that in Smith the court upheld the Governor’s determination that the defendant’s murder of his wife was “aggravated” based on a constellation of factors that included use of a gun; vulnerability of the victim; planning, sophistication and professionalism; premeditation; a special relationship of trust with the victim; and an ongoing pattern of physical and mental abuse; as well as the fact that the defendant “had an opportunity to stop his crime but instead continued.” (Smith, supra, 114 Cal.App.4th at pp. 349, 368.) In our view, Smith is not useful precedent.

To begin with, we are not convinced that, as a general principle, a lost opportunity to stop a crime would ever tend to prove the heinousness, cruelty or atrociousness of a crime. The mere fact that “there are a lot of other choices” a person could have made—as distinguished, for example, from evidence of premeditation or stalking (see, e.g., Rosenkrantz, supra, 29 Cal.4th at p. 678; DeLuna, supra, 126 Cal.App.4th at p. 593)—does not rationally support a finding that a crime was committed in an especially heinous, atrocious or cruel manner. To state that a defendant “could have just left” or “could have just gone home” says nothing more than the defendant could have chosen not to pick the fight or mortally wound his victim; these facts do not describe the manner in which the murder was committed. But even if they did, Smith held only that continuing with a crime after having an opportunity to stop taken together with the other enumerated factors constituted evidence to support a finding that the offense was aggravated. (Smith, supra, 114 Cal.App.4th at p. 368.) Here, no other similar circumstances exist.

In sum, there is no evidence that Roderick’s commitment offense was carried out in “an especially heinous, atrocious or cruel manner” as set forth in section 2402, subdivision (c)(1).

2. Roderick’s Social History

Under section 2402, subdivision (b), the Board is directed to consider the “circumstances of the prisoner’s social history” in determining his or her suitability for parole. An “[u]nstable [s]ocial [h]istory,” which is defined as “a history of unstable or tumultuous relationships with others,” is one circumstance tending to show unsuitability. (§ 2402, subd. (c)(3).) In its decision, the Panel’s only reference to social history is a generalized statement that Roderick’s “unstable social history is certainly related to [his] criminal history but also to the abuse of alcohol.” But the Panel cited no facts or circumstances to support its premise that Roderick had an unstable social history (as distinguished from his criminal history) and we see no evidence that would bear it out.

The Attorney General cites as “some evidence” of Roderick’s unstable social history the facts that Roderick (1) was raised by his paternal grandmother and dropped out of school after the 11th grade; (2) had no contact with his estranged mother until he was 16, even though she lived within 40 miles of him; and (3) continued to engage in criminal activity during his 20-year marriage. The dissent also cites the first two enumerated factors as some evidence of an unstable social history. (Dis. opn., post, at pp. 293-294.) We cannot agree that these factors constitute an “[u]nstable [s]ocial [hjistory,” nor do they provide any evidence of unstable or tumultuous relationships with others.

The record shows an absence of any relationship with his natural parents, not any unstable or tumultuous relationships. That he was raised by his grandmother and failed to complete his final year of high school is also not evidence of a history of problematic relationships or instability. Indeed, it was during this period that Roderick seems to have had his most stable social history, because his chronic criminal behavior did not commence until he turned 20.²¹

With respect to his adult years, Roderick’s “history shows a long term marriage, producing two children with whom he has a good relationship.” While Roderick committed crimes and experienced problems with alcohol during his marriage, there is no evidence that this affected his relationship with either his wife or his children.²² (See DeLuna, supra, 126 Cal.App.4th at p. 595 [finding no evidence that the prisoner’s alcohol problem contributed to unstable relationships].) To the contrary, Roderick’s 1999 psychological evaluation indicates that he has maintained stable relationships with his family. “Letters in [Roderick’s] Central file from his ex-wife express[] an interest in his coming to live with her upon parole so this inmate still has a very good relationship with his family.” Roderick also stays in close touch with his two daughters; at the hearing he readily indicated the age range of his nine grandchildren, and volunteered the fact that his oldest granddaughter was about to have a baby. Even the Panel noted that Roderick has “a lot of family support” and that his “daughter’s letter was very supportive in offering a home and also an opportunity for work.”

Additionally, there is no evidence to support a finding that Roderick had difficult relationships with other prisoners and prison staff. The record supports a contrary conclusion. Dr. Hewchuk noted that Roderick “has continued to be a model prisoner . . . [and] has maintained full institutional compliance.” And Dr. Steward reported that Roderick “has had a near exceptional record given the number of years in prison. He has only been found guilty of [three CDC 115’s], has attended numerous self help programs and takes his problem with drinking seriously.” Roderick’s work reports were, for the most part, above average or exceptional. There were no unsatisfactory ratings, and he has received only one negative “counseling Chrono.”²³

The dissent points to Roderick’s alcohol abuse and criminal history as some evidence of an unstable social history. (Dis. opn., post, at pp. 293-295.) We read the regulations as distinguishing between criminal history and social history (§ 2402, subd. (b)) with the latter being defined in terms of social relationships (§ 2402, subd. (c)(3)) as distinguished from criminal activity. The two factors are thus distinct and should not be conflated. Similarly, while there is ample evidence that Roderick’s alcoholism contributed to his criminal activities, there is no evidence that it resulted in any unstable or tumultuous relationships or to any “[u]nstable [s]ocial [h]istory” apart from his criminal history. (See DeLuna, supra, 126 Cal.App.4th at p. 595.) Nor is there any evidence that Roderick is at risk of returning to alcohol abuse if he were released, after more than 20 years of sobriety and more than 12 years of active participation in AA. (See Smith, supra, 114 Cal.App.4th at p. 372 [if defendant’s past use of drugs established his unsuitability for parole, “then the [Board] could deny parole for the rest of [the defendant’s] life based on this immutable factor, without regard to or consideration of subsequent circumstances and evidence indicating that he has no current desire for drugs and that there is little current likelihood of drug relapse . . ,”].)²⁴

In sum, we see no evidence in the record upon which the Panel could have relied in finding that Roderick has an unstable social history or problematic, tumultuous relationships pursuant to section 2402, subdivision (c)(3). On the contrary, the evidence indicates that Roderick has actually “experienced reasonably stable relationships with others,” a factor tending to show suitability for .parole. (§ 2402, subd. (d)(2).)

3. Roderick’s Past and Present Attitude Toward His Commitment Offense

Under section 2402, subdivision (b), the Board must consider the prisoner’s “past and present attitude toward the [commitment] crime” in determining suitability for parole. In denying parole, the Panel stated that Roderick “needs to participate in self-help ... in order to understand the underlying factors that led not only to this commitment offense, but also to his entire criminal history, and also to develop insight into the impact of his criminal behavior and in particular, the impact of this crime where a man lost his life.” According to the Attorney General, the Panel relied on Roderick’s testimony at the hearing in making its finding on this factor, including his reply “[s]tupid is all I can tell you” when asked for an explanation of his extensive criminal history.

We see no evidence to support a conclusion that Roderick lacked insight into the impact of his criminal behavior or his commitment crime. In Roderick’s 2003 evaluation, Dr. Hewchuk stated that “Roderick talked openly about the circumstances of the instant offense, and his comments reflect a new sense of insight into his incarceration. He is fully remorseful, and aware of the effect of his actions on the victim’s family.” In 1999, Dr. Carswell stated that “[t]his inmate is very remorseful for causing the victim’s family grief, and he is as sorry for taking this time away from his own family.” While in the early stages of his incarceration Roderick denied any criminal act and insisted the stabbing was in self-defense, over the years, after participating in AA and other programs, he was able to acknowledge his responsibility and express his regret and then remorse for his actions. We can find no evidence that Roderick currently does not understand the impact of his crime.

The dissent concludes Roderick’s attitude toward the crime was “poor,” characterizing Roderick’s statement regarding his role in the crime as merely a passive or defensive one (“the victim was fatally injured during a struggle over the knife”). (Dis. opn., post, at p. 297.) In fact, Roderick admitted at the hearing that he intentionally stabbed Obie; he stated that he thought about stabbing him in the leg or the butt, but decided against it and, instead, stabbed him in the chest. He asserted no claim of self-defense in describing the crime. This is in contrast to Roderick’s early claims, in 1989, 1992 and 1994, that the killing was in self-defense and that he had been “ ‘railroaded.’ ” Since that time, however, and over the course of his incarceration, as has been discussed, Roderick came to accept responsibility and express remorse for the crime.

The Attorney General and the dissent cite the district attorney’s argument that Roderick had shown no remorse and his argument that Roderick believed the murder “was the right thing to do.” (See dis. opn., post, at p. 297.) But the record does not support the district attorney’s arguments and the Attorney General cites no evidence in corroboration.²⁵

Expanding upon the section 2402, subdivision (b) factors, the Panel also questioned Roderick concerning why he led a life of crime. Roderick acknowledged his extensive criminal record, admitted he had no excuse for it, seemed to appreciate its connection to his alcoholism, and described his criminal behavior as “[s]tupid.” The Panel felt this was insufficient to demonstrate that he understood the “underlying factors that led not only to [his] commitment offense, but also to his entire criminal history” and concluded, “you can’t expect us to feel comfortable sending you back out with law-abiding citizens with your history and this crime if you don’t know why you led the life you did.” That the Panel members were dissatisfied with Roderick’s responses was manifest. The question before us, however, is whether it is arbitrary and capricious for the Panel to rely on those responses to support a denial of parole.

Certainly, Roderick’s responses were unsophisticated and lacked analytical depth. But is his inability to articulate a more insightful explanation as to why he committed multiple crimes some evidence that Roderick poses a danger to public safety? The record does not support that conclusion.²⁶ The evidence does show that Roderick has a limited capacity either'to understand or to explain the mechanisms that led to his criminality. But this limitation is a known quantity and has been factored into his risk assessment. Roderick’s 1999 evaluation observes that Roderick “had a difficult time understanding the complexity of substance abuse,” and demonstrated “minimal” insight into his commitment offense. But Dr. Carswell went on to explain that Roderick’s “place of development within the structure of the offense is appropriate” because, in talking about the crime, Roderick stated that “he shall never drink again and should not have been drinking at the time[,] . . . had he not been drinking, he could have made a better decision, and that the decision he did make was not a responsible one.” Despite this rather rudimentary level of insight, the report concluded that Roderick, at 67 years of age, after 14 years of incarceration “has developed his maturity to such an extent that he would be an excellent candidate at this time for parole”; and that “[i]f released to the community [he would] pose no more danger than the average citizen.” Building on the 1999 report, the 2003 evaluation also concluded Roderick would “be able to integrate back into the community with few problems,” and “would pose no more danger than the average citizen .... with an extremely low probability of recidivism.” Without commenting on Roderick’s level of insight, the 2005 evaluation reaches the same conclusion. These reports are in stark contrast to Roderick’s early evaluations (1989-1994) which reflect “little self-understanding” and a failure to accept responsibility for his commitment crime or his prior criminal history. The watershed year appears to be 1997, where it is reported that Roderick expressed his regret for the crime and “wished he had handled it somehow differently.”

Roderick provided a less than incisive explanation for his chronic criminality, but his responses also reflected acceptance of his alcoholism, acknowledgement of responsibility for his crimes, remorse, and shame. Ignoring the unanimous clinical evidence to the contrary presented by trained experts— since 1999 all psychological reports conclude he would pose no more danger to society than the average citizen—the Panel’s arbitrary pronouncement that Roderick’s limited insight poses an unreasonable risk to public safety cannot be considered some evidence to support a denial of parole. (Biggs, supra, 334 F.3d at p. 915 [denial of parole must be based on some evidence, and the evidence “ ‘must have some indicia of reliability’ ”].)²⁷

4. Roderick’s Institutional Behavior

“[A prisoner’s] postcommitment institutional behavior is relevant to his suitability for parole.” (DeLuna, supra, 126 Cal.App.4th at p. 595; see § 2402, subd. (d)(9).) As to this factor, the Panel made the following findings: “Mr. Roderick has programmed in a very limited manner. He’s failed to upgrade either vocationally or educationally and has not yet sufficiently participated in beneficial self-help.” The Panel concluded that Roderick needed to participate in more self-help “in order to understand and cope with stress in a non-destructive manner.” The Panel’s “finding]” that Roderick is in need of additional “programm[ing]” as well as vocational and educational “upgrade[s],” is without support in the record, and there is not a scintilla of evidence that would support the conclusion that these findings demonstrate Roderick’s release would constitute an unreasonable risk to public safety.

a. Roderick’s “[LJimited” Programming

At the time of the hearing Roderick had participated in AA for more than 12 years, had completed a life skills group program that met one hour each week for 10 weeks, had completed an anger management course, had completed a course on sexually transmitted diseases, and had also completed a 44-week program called Project CHANGE. His work performance during incarceration ranged from “satisfactory” to “exceptional,” with his most recent supervisor report reflecting an “exceptional performance rating.” There are no recommendations in any of Roderick’s recent institutional evaluations indicating a need for additional therapy or self-help. For example, in 2005, Dr. Steward related that Roderick “has attended all of the self help groups available in the prison such as Anger Management and Alcoholics Anonymous.” In 2003, Dr. Hewchuk noted that since Roderick’s last psychological evaluation in 1999, “he has continued to be a model prisoner within the facility,” and that Roderick “freely admitted to a former problem with alcohol, and has dealt with this issue through membership and attendance at Alcoholics Anonymous meetings.”

In short, there is no evidence to support the Panel’s determination that Roderick’s programming was in any way “limited” or deficient. The Panel did not describe—and we cannot find in the record—any evidence that Roderick was in need of specific programs or that there were programs available to him that he failed or refused to attend. Rather, the evidence indicates only that Roderick was unable to attend programs because of his work schedule, because of his meal schedule, because of lockdowns, or because no programs were available. Although the dissent denigrates these as convenient excuses (dis. opn., post, at p. 303), there is not a shred of evidence controverting the legitimacy of Roderick’s explanations. Indeed, in the past the Panel has acknowledged a dearth of available programming.

The Panel also expressed concern that Roderick had not gained enough insight from the classes he had taken. As we have already explained, Roderick’s inability to gain or articulate a better understanding of his behavior is a known factor that, according to all reports, does not negatively affect his suitability for parole. Additionally, we must consider the circumstances under which Roderick was responding. It was clear he was quite nervous. Moreover, we can discern even on the cold record that the questioning by one Panel member, plainly irritated at Roderick’s inability to give the kind of answers he expected to hear, became quite antagonistic. He even criticized Roderick for not attending programs available in the afternoons because he was sleeping, despite the fact that Roderick’s job in the canteen required him to begin work at 2:00 a.m. It could not have been surprising that at this point Roderick’s responses were more defensive than introspective.²⁸

On this record, the Panel’s conclusion that “there’s no indication that [Roderick] would behave differently if paroled” in view of his “lack of program participation” is unsubstantiated speculation. And the Panel’s recital of the stock phrase that Roderick still needs more self-help in order to learn how “to understand and cope with stress in a non-destructive manner” is utterly specious. Since at least 1993 Roderick has coped with the many stresses of prison life in a nondestructive manner. No evidence supports the Panel’s unadorned opinion that if released to live with his family, Roderick will become unable to cope with stress in a nondestructive manner. (See Irons v. Warden of California State Prison-Solano (E.D.Cal. 2005) 358 F.Supp.2d 936, 948 (Irons I) [Board’s lay opinion that inmate needs more therapy to “understand and cope with stress in a non-destructive manner” was without medical or other evidentiary support, and “appears to be simply [a reason] repeated often in order to add another factor to the non-suitability conclusion”].)²⁹

b. Roderick’s Failure to Upgrade Vocationally and Educationally

In denying parole, the Panel also found that Roderick had “failed to upgrade either vocationally or educationally” while in prison. While this firifling as a general matter would be “other information which bears on the prisoner’s suitability for release” under section 2402, subdivision (b), in Roderick’s case, the additional training simply is not relevant to his parole suitability. Given Roderick’s advanced age, his eligibility to receive Social Security payments, and his plans to live in his daughter’s household and work with his son-in-law, there is no evidence indicating that further vocational or educational training would make him more suitable for parole. Indeed, the Panel itself concluded in 2002 that upgrading his vocational skills was no longer a concern. In its November 2002 decision denying him parole, a commissioner of the Panel stated: “I’m a little disappointed that you hadn’t completed a vocation in this term or your prior terms, but you’re to the age now where you’re probably not going to really need to use that on the outside and probably would just be taking up space for somebody that would really need to learn a vocational skill.” Having told Roderick in 2002 that vocational training was unnecessary at his age to attain parole, it would be arbitrary and irrational for the Panel now to withhold parole based on his failure to engage in further vocational training.

In any case, additional training or education would not have improved Roderick’s chances for economic success upon release. Roderick stated that he planned to work with his son-in-law who is employed as a contract logger. Because Roderick worked in the logging industry before his incarceration, any vocational or educational training in prison would not have further prepared him for this type of employment. Paraphrasing the court in DeLuna, “we do not perceive any connection between [training] . . . and the [Panel’s] conclusion that ‘[Roderick] would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.’ Nothing in the record indicates that [Roderick’s] criminality or ability to support himself was affected by any limitation of his vocational . . . skills.” (DeLuna, supra, 126 Cal.App.4th at p. 597.)³⁰

5. Roderick’s Past Criminal History

A prisoner’s “past criminal history, including involvement in other criminal misconduct which is reliably documented” is relevant in determining his or her suitability for parole. (§ 2402, subd. (b).) Also, a “[previous [r]ecord of [violence” is a circumstance tending to show unsuitability for parole. (§ 2402, subd. (c)(2).) In denying Roderick parole, the Panel found that he “has an extensive criminal history starting in 1952 . . . related to traffic violations, Vehicle Code violations, pretty much continuously, almost without a break until this crime in 1980.”

The record does reflect Roderick’s long criminal history over 28 years, including two prior violent crimes. Thus, the Panel’s finding that Roderick has an extensive criminal history is most certainly supported by the evidence. The question, however, is whether, on this individualized record, the criminal history constitutes some evidence to support the Panel’s conclusion that Roderick poses an unreasonable risk of danger to the public safety. “If one or more of the factors [relied upon by the board] lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result ‘satisfies the requirements of due process of law’ because the factors for which there is some evidence ‘constitute a sufficient basis supporting the . . . discretionary decision to deny parole.’ ” (DeLuna, supra, 126 Cal.App.4th at p. 598, quoting Rosenkrantz, supra, 29 Cal.4th at p. 677.) “We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion.” (DeLuna, supra, 126 Cal.App.4th at p. 598.) “On the other hand, the ‘decision cannot stand’ when findings on important factors lack evidentiary support and it is not clear that the Board would have reached the same conclusion based on the supported factors.” (Ibid.)

The relevant question then is whether the Panel would have denied Roderick parole based only on his past criminal history. In Rosenkrantz our high court stated that “ ‘[t]he Board’s authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate’s . . . past offenses should not operate so as to swallow the rule that parole is “normally” to be granted. Otherwise, the Board’s case-by-case rulings would destroy the proportionality contemplated by Penal Code section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole, 25 years to life, and 15 years to life for various degrees and kinds of murder. [Citation.]’ ’’ (Rosenkrantz, supra, 29 Cal.4th at p. 683.) “[T]he parole board’s sole supportable reliance on the gravity of the offense and conduct prior to imprisonment to justify denial of parole can be initially justified as fulfilling the requirements set forth by state law. Over time, however, should [the inmate] continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of [the commitment] offense and prior conduct would raise serious questions involving his liberty interest in parole. [|]... A continued reliance in the future on an unchanging factor, . . . conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation.” (Biggs, supra, 334 F.3d at pp. 916-917.)

The dissent construes Sass v. California Bd. of Prison Terms (9th Cir. 2006) 461 F.3d 1123 as having abrogated the principle announced in Biggs, citing to Robles v. Solis (N.D.Cal., Oct. 12, 2006, No. C04-2529CRB) 2006 U.S.Dist. Lexis 77086, 2006 WL 2934086. (Dis. opn., post, at p. 308.)³¹ We do not agree. As recently explained, “Sass did not dispute the principle that, other things being equal, a criminal act committed 50 years ago is less probative of a prisoner’s current dangerousness than one committed 10 years ago.” (McCullough v. Kane (ND.Cal. June 1, 2007, No. C05-2207MHP) 2007 U.S.Dist. Lexis 43674, 2007 WL 1593227 at p. *8.) Thus, “the message of [Biggs, Sass, and Irons II] is that the [Board] and Governor can look at immutable events, such as the nature of the conviction offense and preconviction criminality, to predict that the prisoner is not currently suitable for parole even after the initial denial (Sass), but the weight to be attributed to those immutable events should decrease over time as a predictor of future dangerousness as the years pass and the prisoner demonstrates favorable behavior (Biggs and Irons). . . . Not only does the passage of time in prison count for something, exemplary behavior and rehabilitation in prison count for something according to Biggs and Irons. Superintendent v. Hill’s standard [(Superintendent v. Hill (1985) 472 U.S. 445 [86 L.Ed.2d 356, 105 S.Ct. 2768])] might be quite low, but it does require that the decision not be arbitrary.” (Id. at pp. *7, *8.) Applying this standard, the court in McCullough concluded the Governor had violated the inmate’s due process rights by denying parole 21 years into a 15-year-to-life sentence based only upon the commitment offense and past criminality, in the face of an exceptional prison record. (Id. at p. *9.)

In this case Roderick has a long criminal history fueled by his alcohol abuse. However, since he has been incarcerated, Roderick has exhibited exemplary behavior, with few serious disciplinary violations (none since 1993), and excellent work reports. He has attended AA meetings since at least 1992, and all of the evidence in the record indicates that Roderick’s alcoholism is, and will remain, in remission. Roderick has maintained close ties with his family, has no diagnosed mental or personality disorders, and has expressed shame and remorse for his criminal history. For more than six years prior to his most recent parole denial, Roderick has been assessed as posing no more danger to the public than the average citizen, particularly given his advanced age. Against the immutability of Roderick’s past criminal history and its diminishing predictive value for future conduct, these factors must be considered. (Scott II, supra, 133 Cal.App.4th at pp. 594—595 [reliance on an immutable factor without regard to subsequent circumstance may be a due process violation].) Therefore, it is not at all evident the Panel would have found Roderick unsuitable for parole based solely on this factor.

6. Conclusion

Of the five section 2402, subdivision (b) factors relied upon by the Panel in denying Roderick parole, only one—Roderick’s past criminal history—constitutes some evidence to conclude that Roderick would pose an unreasonable risk of danger if released. As of 2005, Roderick had served 20 years of a 16-year-to-life sentence, the last 12 of those years with a perfect disciplinary record. Roderick does have a lengthy rap sheet, but subsequent circumstances have indisputably shown that Roderick has become “a competent and responsible person who has done quite well while incarcerated.” And, “[g]iven everything inmate Roderick has learned, his age and the fact that he has experienced a ‘slowing down’ during the last year, due to aging, he would make an excellent candidate for parole.” The Board must therefore consider whether the immutable factor of his past criminal history, in light of the record as a whole and this decision, is a sufficient basis upon which to conclude that Roderick would pose an unreasonable risk of danger to the public if he were released.

III. DISPOSITION

The order is affirmed. The Board is ordered to vacate the denial of parole and to conduct a new parole suitability hearing for Roderick consistent with this opinion. The hearing shall be held no later than November 14, 2007.

Ruvolo, P. J., concurred.

1 We will refer to Roderick’s panel of hearing officers as the Panel and the Board of Parole Hearings (formerly the Board of Prison Terms (see Gov. Code, § 12838.4; Pen. Code, § 5075)) as the Board.

2 Roderick has consistently maintained that it was Obie who started the fight as they left the bar.

3 A “CDC 115” refers to a rules violation report which documents misconduct that is “believed to be a violation of law or [that] is not minor in nature.” (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)

4 The psychological evaluation does state that Roderick’s insight into the commitment offense is “minimal”; this statement is qualified, however, by the additional assessment that “his place of development within the structure of the offense is appropriate.” The psychological evaluation then goes on to describe Roderick’s understanding that his drinking is part of the problem, and that his behavior was irresponsible. Additionally, he is no longer diagnosed as having a personality disorder.

5 The TABE (tests of adult basic education) score reflects an inmate’s educational achievement level. (Frequently Asked Questions about TABE: Tests of Adult Basic Education (2000) p. 2 <http://www.lacnyc.org/resources/adult/assess/tabefaq.pdf> [as of Aug. 17, 2007] (TABE FAQ’s); see, post, p. 257, fn. 10.)

6 “GAF’ refers to global assessment of functioning. This is a clinician’s judgment of the individual’s overall level of functioning and ability to carry out activities of daily living, and is useful in planning treatment and in predicting outcomes. The GAF scale is a 100-point scale that measures a subject’s overall level of psychological, social, and occupational functioning on a hypothetical continuum. A score of 91 to 100 means “Superior functioning in a wide range of activities, life’s problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms.” (<http://psyweb.com/Mdisord/DSM_IV/jsp/Axis_V.jsp> [as of Aug. 17, 2007].)

7 The dissent states Roderick inflicted “multiple knife wounds,” implying Roderick stabbed the victim multiple times. (Dis. opn., post, at pp. 290, 293.) The record, however, indicates that the victim, when found, was bleeding from “chest wounds” which is consistent with Roderick’s statement that in the course of the altercation he “cut” the victim on the chest, and later stabbed him.

8 Roderick worked in the logging industry, specializing in topping redwoods.

9 This is the least restrictive level of custody for a life-term prisoner. (Cal. Code Regs., tit. 15, § 3377.2, subds. (a)(16), (b)(3)(C).)

10 The TABE score is expressed in a number reflecting grade level. (TABE FAQ’s, supra, p. 2; see, ante, p. 252, fn. 5.) Thus, Roderick tested above the 12th grade level.

11 The chair thereafter noted for the record that Roderick’s commitment crime had not occurred 30 or 40 years ago but only 20 years earlier.

12 This appears to make reference to the positive December 2004 life prisoner evaluation report, discussed above.

13 In fact, Roderick received “above average” or “exceptional" ratings for his work during the following periods: March 1987, December 1990, April 1991 to April 1992, December 1992, May 1993, May 1994 through July 2000, December 2000, February 2001 to October 2001, and August 2003 to August 2004.

14 This stock phrase was used to deny parole to Roderick four times. Apparently it is also used genetically across the state. (See, e.g., In re Dannenberg (2005) 34 Cal.4th 1061, 1074-1075 [23 Cal.Rptr.3d 417, 104 P.3d 783] (Dannenberg); In re Rosenkrantz (2002) 29 Cal.4th 616, 633 [128 Cal.Rptr.2d 104, 59 P.3d 174] (Rosenkrantz); In re Barker (2007) 151 Cal.App.4th 346, 360 [59 Cal.Rptr.3d 746] (Barker); In re Weider (2006) 145 Cal.App.4th 570, 582 [52 Cal.Rptr.3d 147]; In re Burns (2006) 136 Cal.App.4th 1318, 1324 [40 Cal.Rptr.3d 1]; In re DeLuna (2005) 126 Cal.App.4th 585, 596 [24 Cal.Rptr.3d 643] (DeLuna); In re Scott (2004) 119 Cal.App.4th 871, 883 [15 Cal.Rptr.3d 32] (Scott I); In re Morrall (2002) 102 Cal.App.4th 280, 303 [125 Cal.Rptr.2d 391]; In re Ramirez (2001) 94 Cal.App.4th 549, 558 [114 Cal.Rptr.2d 381], disapproved on another ground in Dannenberg, supra, 34 Cal.4th at pp. 1084-1085, 1100; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 913 (Biggs):) A Westlaw search turned up an additional 25 unpublished federal district court cases in which this reason was applied to deny parole.

15 Shortly after the trial court’s decision was issued, Roderick had his eighth parole hearing; parole was again denied. We grant petitioner’s request for judicial notice of the transcript of that hearing.

16 Unless otherwise indicated, section references are to title 15 of the California Code of Regulations.

17 These factors include “the circumstances of the prisoner’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner’s suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (§ 2402, subd. (b).)

18 Unsuitability factors are: (1) a commitment offense done in an “especially heinous, atrocious or cruel manner”; (2) a “[pjrevious [r]ecord of [violence”; (3) “a history of unstable or tumultuous relationships with others”; (4) “[sjadistic [s]exual [ojffenses”; (5) “a lengthy history of severe mental problems related to the offense”; and (6) “[t]he prisoner has engaged in serious misconduct in prison or jail.” (§ 2402, subd. (c)(l)-(6).) This subdivision further provides that “the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (§ 2402, subd. (c).)

19 Suitability factors are: (1) the absence of a juvenile record; (2) “reasonably stable relationships with others”; (3) signs of remorse; (4) a crime committed “as the result of significant stress in [the prisoner’s] life”; (5) battered woman syndrome; (6) the lack of “any significant history of violent crime”; (7) “[t]he prisoner’s present age reduces the probability of recidivism”; (8) “[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release”; and (9) the prisoner’s “[[Institutional activities indicate an enhanced ability to function within the law upon release.” (§ 2402, subd. (d)(1)—(9).)

20 In reaching our decision we do not consider the trial court’s reference to its familiarity with the facts as revealed during the trial. We review only the record before the Panel. (Rosenkrantz, supra, 29 Cal.4th at p. 658.)

21 In 1994 Roderick told the clinical psychologist that he had been incarcerated in the “Youth Authority” at the age of 14. Assuming this to be accurate, it appears to be an isolated incident, as there is no record of any juvenile arrests in his file.

22 It can be argued that the regulation is premised upon the assumption that the stability of relationships helps to prevent crime, and in Roderick’s case the premise did not hold. Whether or not that is the intent of the regulation, there is still no evidence to support a finding of unstable relationships.

23 A “Custodial Counseling Chrono” (CDC Form 128-A) documents minor misconduct and the counseling provided for it. (§ 3312, subd. (a)(2).)

24 The Panel also failed to consider that Roderick’s parole could be conditioned upon regular attendance at AA meetings and random testing to further ensure public safety. (§ 2402, subd. (b).)

25 The Attorney General also cites to the district attorney’s argument that Roderick’s version of the crime was inconsistent with “the victim’s injuries, the statements of the witnesses and the verdict of the jury.” Again, the Attorney General cites no evidence that demonstrates these alleged discrepancies.

26 In so stating, we do not mean to undervalue the inmate’s demeanor at his parole hearing. Just like trial judges, parole hearing commissioners are in the best position to evaluate both the credibility and the attitude of the inmate in the course of the hearing, and we must defer to those judgments. Here, however, the Panel members did not disbelieve Roderick, nor did they take him to task for displaying a defiant or indifferent attitude—something they are known to comment upon when it occurs. (See, e.g., ante, at pp. 249-250.) It was only the content of Roderick’s responses that did not satisfy the Panel.

27 The dissent maintains we must defer to the Board’s subjective analysis of an inmate’s suitability for parole because the hearing officers conduct thousands of hearings each year and, thus, have the opportunity to “evaluate[] participation in, and successful completion of, programs for a great number of prisoners.” (Dis. opn., post, at p. 312.) Further, having listened to a multitude of inmates, the hearing officers can assess an inmate’s attitude toward the Board, and toward his criminal history, his commitment crime, and his programs. (Ibid.) But experience does not necessarily translate into expertise. Indeed, together with the dissent we have spent more than 80 pages trying to divine what evidence the Panel relied on in denying Roderick parole. The Panel’s inability to state with clarity, in a nonconclusory manner, that which is central to its role in California’s parole system indicates that such subjective analyses do not suffice. What is required is an objective analysis predicated upon evidence and adequately articulated. Further, given the statistically small number of life-term inmates actually released, it is not possible to draw credible conclusions either about the “success[]” of institutional programs or the insightfulness of the Board’s subjective analyses over time. For example, as of December 31, 2002, there were nearly 10,000 inmates serving time for second degree murder; during 2003, 13 were released. (Cal. Dept. of Corrections & Rehabilitation, Prisoners & Parolees, 2003 (2005) table 9, p. 33 <http://www.cdcr.ca.gov/ReportsResearch/OffenderInfoServices/Annual/CalPris/CALPRISd2003.pdf> [as of Aug. 17, 2007]; Cal. Dept. of Corrections & Rehabilitation, Recidivism Rates (Recidivism Rates), 2003 (Apr. 26, 2007) 1st table, p. 1 <http://www.cdcr.ca.gov/ReportsResearch/OffenderInfoServices/Annual/RECID3/Recid3d2003.pdf> [as of Aug. 17, 2007].) In each of the preceding three years, four inmates serving sentences for murder were released. (Recidivism Rates, 2002 (Mar. 22, 2006) 1st table, p. 1 <http://www.cdcr.ca.gov/ReportsResearch/OffenderInfoServices/Annual/RECID3/Recid3d2002.pdf> [as of Aug. 17, 2007]; see reports at this online address for years 2001 (Recid3d2001) and 2000 (Recid3d2000).)

28 The same two Panel members (plus a third) presided over Roderick’s 2006 parole hearing. That Panel denied parole for two years to the then 74-year-old Roderick despite continued exemplary prison behavior.

29 Irons I was reversed in Irons v. Carey (9th Cir. 2007) 479 F.3d 658, 663-665 (Irons II). The Ninth Circuit, however, expressly agreed with the district court’s finding that the Board’s determination that Irons needed more therapy was unsupported by any evidence. (Ibid.; see also, ante, at pp. 260-261, fn. 14.)

30 The dissent makes the point that Roderick also never obtained a GED while incarcerated. (Dis. opn., post, at p. 300.) We question the relevance of that concern, given Roderick’s age and his TABE score of 12.9. (See, ante, at p. 257 & fn. 10.)

31 “Opinions of the United States District Court that have not been published in the Federal Supplement are properly cited by this court as persuasive, although not precedential, authority.” (Schlessinger v. Holland America (2004) 120 Cal.App.4th 552, 559, fn. 4 [16 Cal.Rptr.3d 5].)