Filed 7/29/10 In re Miranda CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re ROBERT MIRANDA,
A126233
On Habeas Corpus.
In November 1981, petitioner Robert Miranda, then 26 years old, stabbed David
Larsen repeatedly in the neck, took his wallet, and fled the scene, leaving Larsen to die
on a sidewalk. Miranda was arrested approximately three and a half years later, when his
sister, Diane Zelms, reported to police that Miranda told her that, while under the
influence of PCP, he and an accomplice had followed Larsen out of a bar intending to rob
him, and that, Miranda, had killed Larsen. Miranda pled guilty to second degree murder
and admitted to using a deadly weapon, and was sentenced to 16 years to life.
In August 2008, the Board of Parole Hearings (Board) granted Miranda parole for
the second time and, in January 2009, for the second time, Governor Arnold
Schwarzenegger reversed its decision. The Governor concluded Miranda’s release posed
an unreasonable risk of danger to society because of the “especially atrocious” nature of
his commitment offense, and because, based in significant part on the opinion of
psychological evaluator Kimberly Smith, Miranda lacked “full insight” into the
circumstances of the murder.
The Governor’s reversal of the Board’s decision must be vacated because there is
not “some evidence” that Miranda’s release poses a current unreasonable risk of danger
to society. The Governor’s reversal, and Smith’s opinion, relied heavily on a misreading
1
of Zelms’s report of what Miranda told her. The Governor and Smith conflated Zelms’s
account from one of a premeditated robbery that led to a murder into one of a
premeditated murder. Zelms did not report that Miranda told her he had committed a
premeditated murder; indeed, she testified at a 1985 preliminary hearing that Miranda
told her he had stabbed Larsen “in self-defense, or something to that effect.”
Furthermore, the Governor did not take into account the totality of the circumstances in
his analyses, nor articulate a rational nexus between his reasons for reversal and
Miranda’s current dangerousness. As a result, the Governor’s reversal did not meet the
standard necessary for the denial of parole discussed by our Supreme Court in In re
Lawrence (2008) 44 Cal.4th 1181, 1210 (Lawrence). We conclude that there is no
evidence in the record to support the Governor’s reversal and that further consideration
by the Governor cannot fill that void.
Therefore, we hold that the Governor’s reversal of the Board’s decision to grant
parole violated Miranda’s due process rights. We grant Miranda’s petition, order the
Governor to vacate his decision, and reinstate the Board’s August 2008 grant of parole.
BACKGROUND
Miranda was born in San Francisco on October 12, 1955, and was raised mostly
by his mother in impoverished circumstances. He dropped out of school after 10th or
11th grade, worked for seven years as a rigger, and also worked as a short order cook,
bartender, and construction laborer. He was unemployed at the time of the commitment
offense.
Miranda’s juvenile record includes one guilty plea for underage possession of
alcohol. His adult record includes misdemeanor convictions for assault with a deadly
weapon and vandalism of less than $1,000, giving false information to a peace officer,
resisting arrest, petty theft, and receiving stolen property.
Miranda’s Second Degree Murder of Larsen
Miranda murdered Larsen in November, 1981, on a street in San Francisco,
California. Police did not arrest him until March 1985, when his sister, Diane Zelms,
reported that Miranda told her he had followed Larsen out of a bar planning to rob him,
2
stabbed him, took his wallet, and fled. Zelms also testified at a preliminary hearing
regarding what Miranda told her.
Since 2002, Miranda has consistently maintained that he and Larsen began
fighting on the street over a drug transaction gone awry, and that he stabbed Larsen, took
Larsen’s wallet, and fled in a car driven by his accomplice in the drug transaction, Cliff
Green. Green’s 1985 statements to police and testimony at a preliminary hearing are
mostly consistent with Miranda’s account.
In his review, the Governor relied on the view that the evidence indicated Miranda
followed Larsen out of a bar intending to kill him. Therefore, in order to evaluate the
Governor’s decision, we must review both versions of the commitment offense in some
detail.
The Robbery-Murder Version of the Crime
At the 2008 Board hearing, the presiding commissioner incorporated by reference
a 1985 probation department report, in which a probation officer summarized a San
Francisco police inspector’s declaration statements about what Zelms said Miranda told
her about the crime. The probation officer wrote:
“According to the declaration of Inspector Erdelatz, on February 14, 1985, he was
informed by the sister of defendant Robert Miranda, Diane [Zelms],[1] that approximately
a month previously her brother [Miranda] had informed her that he had in fact killed the
above-listed victim. Miranda reportedly stated to his sister that he ‘and . . . Cliff Green
were in the Algiers bar on Mission Street when (they) observed a man at the bar who
displayed a lot of cash money in his wallet; that [Miranda] and [Green] followed the man
when he left the Algiers bar; that the man walked and [Miranda] and [Green] had decided
to rob the man; that when the man arrived at the vicinity near a warehouse with no
windows, [Miranda] and [Green] stopped the car . . . .’ According to [Zelms], Miranda
1
The probation department report identifies Miranda’s sister as “Diane
Puschendorf.” Diane Zelms clarified in her preliminary hearing testimony that her last
name was “Zelms” and that “Puschendorf” was the last name of her partner, to whom she
was not officially married.
3
told her that he then approached the victim and attacked him with a knife, ‘stabbing him
in the neck several times . . .’ and that he then ‘took the victim’s wallet, containing
$2,000.00 . . . .’ ”
At the 2008 Board hearing, the presiding commissioner read a summary of this
“robbery-murder” version of the commitment offense that was consistent with the 1985
probation department report’s summary of Zelms’s statements to Erdelatz.
Zelms also testified at a 1985 preliminary hearing about what Miranda told her in
1985.2 Miranda said he and his friend Green had been in the Algiers bar on Mission
Street drinking and that Miranda was high on PCP at the time, when a man came in who
flashed around a lot of money. Miranda said that he and Green “had seen the wallet full
of money. And that’s when they decided that they were going to follow the guy and rob
him.” Zelms further testified that Miranda, or “Bobby,” told her that he and Green
“proceeded to follow the guy in the car. Got out of the car, Bobby—Bobby got out of the
car. [¶] The guy had a knife on him.” She continued, “And Bobby also had a knife.
And Bobby stabbed the guy—he told me he stabbed him in the neck.”
Furthermore, at the preliminary hearing, in cross-examination testimony that
neither party points out to this court, Zelms, when asked exactly what Miranda told her,
said, “That they wanted his money—that they were going to take his money—they saw
the money; they wanted it; they were going to take it.” She further testified that Miranda
told her he and Green followed Larsen in Green’s car, and that Miranda “jumped out of
the car and stabbed the guy in the neck.” She was then asked, “And then what
happened?” Zelms replied:
2
Miranda submitted a partial transcript of this hearing as an exhibit to his
petition, to which the People do not object. Furthermore, a 2006 life prisoner evaluation
report specifically referred to Green’s testimony contained in the preliminary hearing
transcript. In the absence of any objection, and in light of this reference in the record, we
presume this transcript has been available to the Board and the Governor for review, and
consider it as part of the record.
4
“Well, [Miranda] said the guy had a knife, so he says, I—he said it was selfdefense, or something to that effect.
“And I said—I go, ‘Well, you were robbing the guy, you know’—
“And he says, ‘Well, I was high on PCP, you know.’ ”
Zelms also testified that Miranda told her “he took the wallet.”
The 1985 probation department report also states that Erdelatz interviewed an
acquaintance of Miranda, John Ray, who stated that “approximately two months
previously while visiting Miranda, Miranda told him that he and a friend followed a man
into an alley at night and stabbed the man in the neck.”
The Drug Deal-Murder Version of the Crime
Miranda has contended since 2002 that he killed Larsen during a drug deal gone
awry. Specifically, he has said that he, Green, and Larsen were going together to a place
where Miranda would arrange the sale of marijuana to Larsen. Along the way, outside of
Green’s presence, Miranda and Larsen argued and fought on the street. Miranda stabbed
Larsen, took his wallet, and fled. Miranda affirmed this was his recollection at the 2008
Board hearing, during which the presiding commissioner summarized Miranda’s account
in relevant part as follows:
“[M]et [Larsen] at the Algiers Bar, where he approached me and asked me if I
could get him a pound of marijuana. At that time there was no robbery intended at all. It
was supposed to be a drug deal, as was my usual habit. In the process of putting together
a drug deal I called [Green] and asked him if he could get a pound of weed. He told me
. . . that he could get it and he would be over shortly. Upon [Green’s] arrival, Larsen and
I left the bar and crossed the street and approached [Green’s] car. Larsen got in the front
seat and I got in the back seat and made introductions. A few blocks up the street, at
Seneca and Mission, there was a biker bar. [Green] stopped to go inside the bar for a
pack of cigarettes. Larsen at this time had a change of mind. He got out of the car and
was walking away. I, like an idiot, got out of the car and approached him and explained
that my friend had come all the way from his house at 11:30 p.m. to complete this deal
and there were other people involved. I told him he needed to at least check out the weed
5
to see whether or not he wanted it. He got loud and said he was leaving. At that time I
grabbed him by his arm and told him he had to at least check it out. He then swung his
duffel bag at me and we started fighting in the middle of the street. The next thing I
knew I had my knife, as I always carried in my case on my side, in my hand and I was
swinging and punching him with it. Larsen fell to the ground and I reached down and
took his wallet. At this point I jumped into the car and [Green] drove the car away. I had
no idea the man was dead or was going to die.”
The 1985 probation department report contains Erdelatz’s account of his prison
interview of Green. The account did not refer to a drug transaction, but stated in relevant
part that “Miranda in fact walked out of the Algiers bar on Mission Street late at night
and got into Green’s automobile. Green further indicated that he commenced to drive,
and Miranda directed him to ‘pull over.’ Green reports that he stopped the car and
Miranda got out of the car with the aforementioned victim on Mission and Seneca Streets
and walked a short distance while Green ‘directed his attention elsewhere.’ According to
Green, in a few minutes, Miranda returned to the car alone with blood on his person.”
(Italics added.) Thus, Green’s account indicated that Miranda, Green, and Larsen
traveled together, not that Miranda and Green were following Larsen.
At the 1985 preliminary hearing, Green, who testified that he was in prison for a
bank robbery and had pled guilty to a violation of Penal Code section 32 (for concealing
or aiding a principal in a felony after the felony is committed) regarding Larsen’s
homicide, testified consistent with Erdelatz’s summary. Green also testified that Miranda
had called him and told him “to come over to the bar, because this guy wanted to get
some weed. And I would get some gas money, and maybe some weed out of it. And
maybe some money.” Green parked in a gas station across from the bar, and Miranda
brought Larsen out to the car. Miranda told Green he was to “[g]ive him a ride to get
some weed,” and Miranda and Larsen got into the car. Larsen was carrying a “duffel bag
type thing.”
6
Miranda’s Previous Statements About the Commitment Offense
Life prisoner evaluation reports in 2002, 2003, 2005, and 2006 contained in the
record each repeated, or referred to, a statement of the commitment offense by Miranda
that was virtually identical to that read by the presiding commissioner at the 2008 Board
hearing.3 A 2005 psychosocial evaluation report indicated Miranda provided a similar
description.
The record includes summaries between 1985 and 1997 of different statements by
Miranda about the circumstances surrounding the commitment offense. A 1985
institution staff recommendation summary stated that Miranda recalled stabbing Larsen
in self-defense after Green attacked Larsen during a drug deal.
A 1991 psychiatric evaluation stated that Miranda did not recall stabbing Larsen to
death and thought that his smoking PCP shortly before the crime while intoxicated
contributed to the crime. He recalled fighting with Larsen in the course of a drug deal,
pulling out his knife, and his crime partner handing him money.
A 1994 psychological evaluation stated that Miranda remembered drinking a lot,
that he and Larsen fought after Larsen changed his mind about buying marijuana
that he, Miranda, “took out his knife and in no time was covered in blood,” and that his
crime partner took Larsen’s wallet.
A 1997 psychological evaluation stated that Miranda said “that he had been
drinking and smoking PCP at the time. However, [Miranda said] that the murder was not
premeditated but rather occurred in the altercation he had with the victim in his attempt to
rob him.”
Miranda’s Sentence
In 1985, Miranda pled guilty to second degree murder, and admitted the related
weapon enhancement allegation. He was sentenced to a total of 16 years to life for the
murder and weapon enhancement.
3
A 2001 psychosocial evaluation stated that Miranda “owned up and accepted
responsibility,” but did not contain his description of the crime.
7
Miranda’s Postconviction History
Miranda had several infractions during his first decade in prison. As stated in the
Governor’s January 21, 2009 indeterminate sentence parole release review, “[b]etween
1989 and 1994, Miranda was disciplined five times for violating prison rules, including
discipline for being disrespectful to staff and possessing marijuana. He was counseled
twice for other misconduct.”4 The Governor stated that Miranda did not have a record of
infractions since the mid-1990s. Miranda has acknowledged he received a 1998
disciplinary notice for a minor matter, the covering of a cell window.
Miranda has participated in many work activities and self-help prison programs.
In his review of the Board’s decision, the Governor summarized these as follows:
“He earned a General Equivalency Diploma, and he became certified as an
optician. He completed vocational training and silkscreening and customer service. He
also received vocational training in janitorial work, and he participated in a computer
technician program. Miranda held skilled institutional jobs as a plumber, optician,
optical apprentice, laundry folder, canteen assistant, dorm porter, construction day
laborer, groundskeeper, stock clerk, program clerk, and correctional counselor clerk. In
addition, he participated in a wide array of self-help and therapy, including Anger
Management, Breaking Barriers, Creative Conflict Resolution, Emmaus Correspondence
Bible Studies, Parenting Program, Purpose Driven Life Workshop, Stress Management,
Men’s Violence Prevention, Offender Employment Continuums, PLATO classes, and
Victims/Offenders Learning Together. He has participated in extracurricular activities
including Men’s Advisory Counsel and several religious activities, and he made
seemingly solid efforts to address this history of substance-abuse by participating in
Alcoholics Anonymous, Narcotics Anonymous, Framework for Recovery, and a
4
At the 2008 Board hearing, a deputy commissioner referred to a “6/15/99”
“115” infraction “for stimulants and sedatives,” which Miranda said involved marijuana.
This 1999 date appears to be in error. The record contains only a “CDC 115 Disciplinary
List” that refers to a “6/15/90” violation involving “stimulants and sedatives,” for
“possession of suspected marijuana.”
8
religious-based 12-step program. Moreover, Miranda received favorable evaluations in
recent years from correctional and mental-health professionals.”
As of 2008, Miranda was assigned to work at an optics lens lab and had
consistently received above-average to exceptional reviews. He told his psychological
evaluator that he had worked in the lab since 2002, had completed his national
certification, and was working on continuing education credits to maintain his license,
apparently as an optician.
Miranda told the 2008 Board that he began Alcoholics Anonymous (AA)
“therapy” in 1996. A commissioner indicated that the first “chrono” in Miranda’s file
regarding AA was from that same year, and that the record indicated Miranda had been
involved on and off with AA for a “substantial amount of time.”
The record also indicates that Miranda has become a committed Christian.
According to the 2008 psychological evaluation, he had “successfully completed ‘40
Days of Purpose’ which is described as a ‘spiritual growth campaign.’ . . . He also
received a Certificate of Completion for Blending of the Four Gospels on 07/21/07 with
an average test score of 95. [¶] Miranda reported that in his leisure time he enjoys
studying theology. He stated he is currently enrolled in a Full Gospel Restoration Bible
Course with Harvest church. He stated the course is an accredited course and he can
become a pastor when he completes the program. He stated that he spends much of his
time in Bible study.” At the 2008 Board hearing, a deputy commissioner noted that
Miranda’s file contained a “pretty long chrono” from July 2005 by a chaplain, which in
the commissioner’s experience was unusual; the chaplain “basically said on that day or
that time frame you turned your life over to God and you received Jesus, and he
documented it and put it in your C-File that you’d become a committed Christian.”
Prior Parole Decisions
Miranda has been eligible for parole since 1995. The Board denied him parole
based in whole or in part on the gravity of the commitment offense in 1994, 1995, 1998,
2001, 2002, and 2004.
9
In 2005, the Board found Miranda was suitable for parole, but the Governor
reversed the Board’s decision because Miranda maintained “that the murder and robbery
were not planned,” a version of events that was “much different from what he confessed
to his sister prior to his arrest, and because he had committed a heinous second degree
murder regardless of which version was accurate.”
In 2006, the Board found Miranda unsuitable for parole based on “the heinous and
brutal life crime which was carried out in an especially callous manner.”
The 2008 Psychological Evaluation
As we have discussed, in 2008 Clinical and Forensic Psychologist Kimberly Smith
conducted a psychological evaluation of Miranda, then 52 years old, for the Board.
Smith reported on Miranda’s recognition of his history of substance abuse; his remorse
about the commitment offense; his overall risk of violence; his plans if released; and his
insights into the commitment offense.
Smith reported that Miranda “admitted to an extensive history of drug and alcohol
use, and identified PCP as his drug of preference. He said that his drug and alcohol use
was ‘partly’ why he was currently incarcerated,” that “he did not believe drugs were to
‘blame’ for his actions ‘because it just really releases who you really are,’ ” and that he
had not used drugs since he had been caught using marijuana in prison in 1990.
Smith found that Miranda demonstrated a significant maladaptive pattern of
alcohol and PCP use, and met the criteria for alcohol dependence. She stated that his
“drug and alcohol use appeared to have been a significant factor in the commitment
offense” because it impaired his judgment and impulse control. She also found that
Miranda had made “significant gains” regarding his alcohol and drug use, and concluded
that, “should he continue his AA/NA participation (along with a sponsor) and self-help
groups as well as refrain from peers who use or frequent places where drugs and alcohol
are present[,]” he had an “average ability to refrain from drugs and alcohol use when
released.” She thought he had adequate insights for substance relapse prevention.
10
Smith reported that Miranda expressed regret and remorse about the commitment
offense. He was able to put himself in his victim’s place and imagine how the victim’s
family would feel if he were the victim.
According to Smith, Miranda intended to avoid further criminal activity by staying
grounded in Christian faith, and would also continue participating in AA and Narcotics
Anonymous (NA) because his substance abuse was a “disease.” If released, Miranda said
he would stay at the Modesto Gospel Mission, which had a structured re-entry program
with AA and NA programs. He intended to find a job in a lens lab, and hoped to
participate in a prison ministry.
Based on Miranda’s scoring on two risk assessment measurement tools,5 a
thorough review of his record, and her forensic clinical interview, Smith concluded that
Miranda appeared “to have made significant maturational gains during his incarceration”
and appeared “to understand the underlying factors associated with his past choice to be
involved with alcohol and drugs.” She concluded that he represented “a low risk of
violence.”
Smith also summarized previous psychological evaluations, which indicated that
Miranda had a “ ‘slightly below average’ ” violence potential (1994), had a “below
average violence potential” (1995), had “progressed well throughout incarceration”
(1997), was “genuine in his religious transformation,” “no longer a threat to the public”
(2001), and was a “low risk” (2005).
Smith concluded that Miranda “demonstrated insight into the underlying factors
associated with his decisions and actions at the time of the murder” and “seems
committed to avoiding causing . . . harm in the future.” However, she also concluded that
he had not “fully explored the offense” and lacked a “full grasp” of all of “the causative
factors.”
5
In the course of discussing one of the risk assessment measurement tools, Smith
refers incorrectly to the scoring of a “Mr. Saunders,” which appears to be a typographical
error.
11
Smith’s conclusion that Miranda could further explore the offense was based on
her summary of the 1985 probation department report. She made two important factual
errors in her summary, although neither Miranda nor the Attorney General specifically
address them. First, she assumed that the probation department report indicated that
Zelms reported that Miranda told her he had followed Larsen planning to kill him. She
concluded that Miranda’s “version of events seems to be an attempt to lessen his
culpability given in the official version he followed the victim, stabbed and killed him
and took his money. He reportedly observed the man to display a large amount of cash
suggesting that the crime was premeditated and did not occur in the heat of the moment
as Miranda described (e.g. ‘the next thing I know I stabbed him’).”
Second, Smith omitted from her summary that Erdelatz reported that Green said
Miranda and the victim got out of Green’s car at Mission and Seneca Streets. Instead, she
wrote that Miranda left the bar with Green, travelled in Green’s car, and directed Green
to pull over, at which point “Miranda got out of the car and walked a short distance while
[Green] ‘directed his attention elsewhere.’ ” As a result of her omission, Smith’s
summary suggested incorrectly that both Zelms’s and Green’s statements to Erdelatz
were consistent with the view that Miranda committed a premeditated murder.
Smith opined that Miranda had not “fully explored the commitment offense”
because “[h]is current version conflicts with the version in the probation officer’s report
and his current version is essentially a drug deal gone awry.” Smith also stated, “It may
or may not be a deliberate attempt to present the crime as less heinous as he may need to
view the offense this way in order to explain the events to himself. Although Miranda
appears to have made some progress in this area it is my opinion that he has not fully
explored the commitment offense and come to terms with the underlying causes.” She
recommended that Miranda be required to engage in, and could benefit from, further
therapy programs, “such as individual therapy related to exploring the underlying causes
of the commitment offense.”
12
The 2008 Board Hearing
At the August 2008 Board hearing, Miranda, standing by his drug deal-murder
account, took full responsibility for his actions. Much of what he said during the hearing
repeated, or was consistent with, his statements to Smith in the psychological evaluation.
He told the Board that he had used PCP daily for 11 years, and that his arrest “rescued”
him from that substance abuse. He said he had written letters of remorse to the victim’s
sisters after the 2006 hearing. He stated that he had just completed a “Prevention in
Relapse” program, and that he understood “repentance means sorrowful enough to stop
whatever you’re doing, you know. So it goes beyond just being sorry. . . . [R]epentance
means a complete change of mind.”
Miranda told the Board he had many letters of support, including one from his
sister Zelms, who testified against him in 1985. In her letter, Zelms described him as a
changed and remorseful man whom she would welcome into her home. Miranda also
had a letter of support from the Modesto Gospel Mission, a self-described “addiction
recovery resource” and a “means of transition back to society,” that stated the Mission
had accepted him into their “New Life Program” upon release. Miranda indicated he
wanted to participate in the program. He also discussed letters from a print tech lab and a
restaurant that included employment offers.
The Board reviewed Smith’s psychological evaluation with Miranda. Miranda
stated that “[s]he’s pretty accurate as far as what she’s wrote. That’s the way the hearing
went.” With regard to her comments about his insight, or lack thereof, Miranda stated, “I
was under the influence of PCP at the time, and PCP does alter the way of thinking and
memory, thought process and all that, and sometimes I wonder, you know, because I’ve
had flashbacks, I’ve had blackouts on the drug before.” He also said, “the way I may
perceive things and the way things may have really truly happened, sometimes I question
myself.” He added this was “because of the drug,” and “maybe it’d be good for me to see
a psychiatrist in that area to where it would help me to be able to pull out something that I
might be missing.”
13
Miranda urged the Board to understand that he had had an “inner change” of heart,
was “a different man than the one that did the crime,” and that the “guy that did that
crime, I wouldn’t want him out there, either. He was definitely a danger to society.” He
said he “felt so ashamed” for what he had done, had no doubt that he would not do such
things again, and wanted only “to go out and to help others from making the same
mistake, and to be a productive citizen.”
The People asked that parole be denied. They pointed to Miranda’s inconsistent
statements about, and his minimization of, the crime.
The Board’s Decision
The Board found Miranda suitable for parole. Although it was disturbed by the
commitment offense, it found Miranda no longer posed a risk of danger to society
because of his positive adjustment and the considerations that he showed. It reviewed his
extensive participation in self-help programs, AA, and NA, his stable social history and
support from family and friends, his embrace of Christianity, and his acceptance at the
Modesto Gospel mission. The Board believed that he showed signs of remorse and had
taken responsibility for the offense.
The Board assessed the term of Miranda’s base offense as 240 months, which it
reduced by application of conduct credits. It noted this was an aggravated term because
Miranda had formed a special relationship of confidence and trust with the victim in the
course of doing a drug deal together.
The Board also set as special conditions of parole, that Miranda not use alcoholic
beverages; submit to alcohol, anti-narcotic, and THC testing; participate in substance
abuse programming, such as AA; and attend parole outpatient clinics when directed to do
so by his parole officer.
The Governor’s Reversal
In January 2009, the Governor reversed the Board’s decision. The Governor
stated that the “especially atrocious” nature of the commitment offense and Miranda’s
lack of “full insight” into its circumstances indicated Miranda would present a current
unreasonable risk of danger to society if released.
14
Miranda’s Writ Petitions
In February 2009, Miranda filed a petition for writ of habeas corpus in the
Superior Court for the City and County of San Francisco. The court denied the petition
because it found some evidence supported the Governor’s conclusions.
Miranda filed his petition with this court in September 2009. We issued an order
to show cause in February 2010, and subsequently a return and traverse were filed.
Miranda also indicates in his papers that he has a pending habeas action in federal
court regarding the Governor’s 2005 reversal, and the record indicates that a federal
magistrate has recommended that the writ be granted.
DISCUSSION
Miranda argues that the Governor deprived him of due process of law in his
reversal of the Board’s decision because the Governor’s stated reasons for his finding of
unsuitability are not supported by some evidence. He asks this court to issue a writ of
habeas corpus vacating the Governor’s reversal and reinstating the Board’s suitability
finding.
I. The Governing Law
Our state and federal Constitutions prohibit the state from depriving any person of
life, liberty, or property without due process of law. (U.S. Const. Amend. XIV, § 1, Cal.
Const., art. I, § 7.) In Lawrence, supra, 44 Cal.4th 1181, the Supreme Court provided a
comprehensive summary of our laws regarding parole. The court made clear that the
Board and the Governor exercise great discretion in their parole determinations, but that
this exercise is not unbounded. The Supreme Court stated:
“The applicable statutes provide that the Board is the administrative agency within
the executive branch that generally is authorized to grant parole and set release dates.
([Pen. Code,] §§ 3040, 5075 et seq.) The Board’s parole decisions are governed by
section 3041 and title 15, section 2281 of the California Code of Regulations (Regs.,
§ 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
15
magnitude in respect to their threat to the public . . . .’ ([Pen. Code,] § 3041, subd. (a),
italics added.) Subdivision (b) of section 3041 provides that 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.’ ” (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, fn. omitted.)
As the Supreme Court explained in Lawrence, title 15, section 2402 of the
California Code of Regulations (Regs., § 2402), is virtually identical to title 15, section
2281 of the California Code of Regulations (Regs., § 2281), the parole suitability
regulation followed in Lawrence. (Lawrence, supra, 44 Cal.4th at p. 1201, fn. 5) The
only difference is that Regs, section 2402, provides parole consideration criteria and
guidelines for murders committed on or after November 8, 1978. (Lawrence, at p. 1201,
fn. 5.) Regs., section 2402 controls here because Miranda murdered Larsen in 1981.
Regs., section 2402 sets forth the factors to be considered by the Board in carrying
out the mandate of Penal Code section 3041. The regulation is designed to guide the
Board’s assessment of whether the inmate poses “an unreasonable risk of danger to
society if released from prison,” and thus whether he or she is suitable for parole. (Regs.,
§ 2402, subd. (a).) The regulation also lists several circumstances relating to unsuitability
for parole and the mitigating circumstances of the crime. (Regs., § 2402, subds. (c), (d).)
Finally, the regulation explains that the foregoing circumstances “are set forth as general
guidelines; the importance attached to any circumstance or combination of circumstances
in a particular case is left to the judgment of the panel.” (Regs., § 2402, subds. (c), (d);
see Lawrence, supra, 44 Cal.4th at pp. 1201-1203 [summarizing Regs., § 2281].)
The factors listed in Regs., section 2402 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
16
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.” (Regs.,
§ 2402, subd. (b); see Lawrence, supra, 44 Cal.4th at p. 1202, fn. 6 [summarizing Regs.,
§ 2281, subd. (b)].)
Unsuitability factors stated in Regs., section 2402, subdivision (c), are: (1) a
commitment offense carried out in an “especially heinous, atrocious or cruel manner”; (2)
a “Previous Record of Violence”; (3) “a history of unstable or tumultuous relationships
with others”; (4) “Sadistic Sexual Offenses”; (5) “a lengthy history of severe mental
problems related to the offense”; and (6) “serious misconduct in prison or jail.” (Regs.,
§ 2402, subd. (c)(1)–(6); see Lawrence, supra, 44 Cal.4th at p. 1203, fn. 7 [summarizing
Regs., § 2281, subd. (c)].)
Suitability factors stated in Regs., section 2402, subdivision (d), 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 inmate’s “[i]nstitutional activities indicate an
enhanced ability to function within the law upon release.” (Regs., § 2402, subd. (d)(1)–
(9); see Lawrence, supra, 44 Cal.4th at p. 1203, fn. 8 [summarizing Regs., § 2281, subd.
(d)].)
The Governor may conduct a de novo review of the Board’s decisions on the basis
of these same factors that the Board is required to consider. (Lawrence, supra, 44 Cal.4th
at p. 1203, fn. 9, Cal. Const., art. V, § 8, subd. (b), Pen. Code, § 3041.2.) In In re
Rosenkrantz (2002) 29 Cal.4th 616, our Supreme Court indicated that under our
deferential standard of review, “[a]s long as the Governor’s decision reflects due
consideration of the specified factors as applied to the individual prisoner in accordance
17
with applicable legal standards, the court’s review is limited to ascertaining whether there
is some evidence in the record that supports the Governor’s decision.” (Id. at p. 677.)
In Lawrence, the Supreme Court clarified that a decision to deny parole must be
based upon “some evidence” of current dangerousness. (Lawrence, supra, 29 Cal.4th at
p. 1212.) As the court explained in a companion case it issued on the same day as
Lawrence, In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), it determined in Lawrence
that, “because the aggravated nature of a commitment offense does not, in every case,
provide relevant evidence that an inmate remains dangerous, and a focus upon the
egregiousness of the commitment offense to the exclusion of other relevant evidence has
proved in practice to obscure the core statutory emphasis upon current dangerousness
. . . . [¶] Accordingly, ‘. . . the relevant inquiry is whether the circumstances of the
commitment offense, when considered in light of other facts in the record, are such that
they continue to be predictive of current dangerousness many years after commission of
the offense. This inquiry is, by necessity and by statutory mandate, an individualized one,
and cannot be undertaken simply by examining the circumstances of the crime in
isolation, without consideration of the passage of time or the attendant changes in the
inmate’s psychological or mental attitude.’ ” (Shaputis, at pp. 1254-1255, italics added.)
Thus, the Lawrence court explained, in reviewing parole determinations by the
Governor, “[o]ur deferential standard of review requires us to credit the Governor’s
findings if they are supported by a modicum of evidence. [Citation.] This does not
mean, however, that evidence suggesting a commitment offense was ‘especially heinous’
or ‘particularly egregious’ will eternally provide adequate support for a decision that an
inmate is unsuitable for parole. . . . [T]he Legislature specifically contemplated both that
the Board ‘shall normally’ grant a parole date, and that the passage of time and the
related changes in a prisoner’s mental attitude and demeanor are probative of the
determination of current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1226.)
In other words, as we have previously held, the exceedingly deferential nature of
the “some evidence” standard does not convert us “into a potted plant.” (In re Scott
(2004) 119 Cal.App.4th 871, 898 (Scott I), quoted in Lawrence, supra, 44 Cal.4th at
18
p. 1212.) We must ensure that the denial of parole is based on “some evidence” of
current dangerousness. “[S]uch evidence ‘ “must have some indicia of reliability.” ’ ”
(Scott I, at p. 899.) “[T]he ‘some evidence’ test may be understood as meaning that
suitability determinations must have some rational basis in fact.” (In re Scott (2005) 133
Cal.App.4th 573, 590, fn. 6 (Scott II).)
In short, as Justice Moreno stated neatly in his concurring opinion in Lawrence:
“a parole date shall normally be granted except when some evidence of current
dangerousness, after considering the totality of the circumstances, justifies denial of
parole.” (Lawrence, supra, 44 Cal.4th at p. 1230 (conc. opn. of Moreno, J.), italics
added.)6
II. The Governor’s Reasons for Reversal
A. The Nature and Circumstances of the Murder
The Governor wrote that the commitment offense “was especially atrocious
because [Miranda’s] actions—following the victim, brutally stabbing him multiple times,
including in the neck, and then leaving him to die—demonstrated an exceptionally
callous disregard for Larsen’s life and suffering. Moreover, Miranda had opportunities to
avoid the murder but instead chose to continue.”7
The Governor’s reliance on the nature and circumstances of the commitment
offense to reverse the Board’s decision was improper for two reasons. First, the
Governor’s characterization is not supported by the evidence. Second, he did not, and
6
Justice Moreno’s concurrence is particularly notable because Lawrence was
determined by a four-to-three vote.
7
Factors supporting a finding that the inmate committed the offense in an
especially heinous, atrocious, or cruel manner include the following: (A) multiple
victims were attacked, injured, or killed in the same or separate incidents; (B) the offense
was carried out in a dispassionate and calculated manner, such as an execution-style
murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D)
the offense was carried out in a manner that demonstrates an exceptionally callous
disregard for human suffering; and (E) the motive for the crime is inexplicable or very
trivial in relation to the offense. (Regs., § 2402, subd. (c)(1); see Lawrence, supra, 44
Cal.4th at p. 1202, fn. 7 [summarizing Regs., § 2281, subd. (c)(1)].)
19
cannot, articulate a rational nexus between these circumstances and the current
unreasonable risk of danger to society posed by Miranda’s release.
1. The Governor’s Characterization of the Murder
We recognize that “[w]hen the Governor reverses a board’s grant of parole, he sits
as the trier of fact and may draw reasonable inferences from the evidence.” (In re Smith
(2009) 171 Cal.App.4th 1631, 1639.) However, “[t]he commitment offense is one of
only two factors indicative of unsuitability a prisoner cannot change (the other being his
prior record of violence), and reliance on such an immutable factor may therefore be
unfair and contrary to the rehabilitative goals of our penal system and the requirements of
due process.” [Citation.] ‘The commitment offense can negate suitability only if
circumstances of the crime reliably established by evidence in the record rationally
indicate that the offender will present an unreasonable public safety risk if released from
prison,’ keeping in mind that ‘the predictive value of the commitment offense may be
very questionable after a long period of time.’ ” (In re Calderon (2010) 184 Cal.App.4th
670, 686.)
The Attorney General argues that the Governor is entitled to believe the robberymurder account of the commitment offense that is based on the account of Zelms, and on
Smith’s psychological evaluation. However, there is no evidence in either to support the
Governor’s characterization of the commitment offense as “especially atrocious” for four
reasons.
a. There is No Evidence of Premeditated Murder
First, the Governor assumed, as did Smith in her 2008 psychological evaluation,
that the evidence indicates Miranda followed Larsen planning to kill him. The
Governor’s review indicated he held this assumption, although he did not expressly state
it in his description of the offense. He directly relied on Smith’s evaluation of Miranda’s
lack of full insight in his review, which was expressly based on the view that the 1985
probation department report indicated Miranda committed a premeditated murder.
Accordingly, the Attorney General cites In re Ross (2009) 170 Cal.App.4th 1490, as
support for the Governor’s conclusion that the commitment offense was especially
20
atrocious. In Ross, in which the court agreed with the Governor that the murder was
“especially . . . atrocious” in light of the evidence in the record that the murderers lured
an intoxicated victim to an isolated area in order to beat him into unconsciousness, steal
his money, dump his body, and leave him to die. (Id. at pp. 1506-1507.)
In fact, there is no evidence that Miranda followed Larsen intending to kill him
contained in Zelms’s account, or, for that matter, in the accounts given by Green and
Ray, either as summarized in the probation department report or given in testimony at the
preliminary hearing. Zelms’s account to Erdelatz, which was relied upon heavily by
Smith, and, according to the Attorney General, by the Governor, does not state that
Miranda told her he followed Larsen planning to kill him. It states only that Miranda told
Zelms that he and Green, as they followed Larsen, “had decided to rob the man.” (Italics
added.) It then states that Miranda approached Larsen, attacked him with a knife,
stabbing him several times, and took his wallet, which also does not establish
premeditated murder. Furthermore, Zelms testified at the preliminary hearing that
Miranda told her Larsen had a knife, and that he stabbed Larsen in “self-defense, or
something to that effect.” (Italics added.) Thus, Zelms indicated that Miranda told her he
planned to rob Larsen, but she did not indicate that he told her he followed Larsen
intending to kill him.
Similarly, the 1985 accounts of Green and Ray did not indicate that Miranda
followed Larsen intending to kill him. Green’s account to Erdelatz indicated that Larsen
rode with Miranda and Green in Green’s car (“Miranda got out of the car with the
aforementioned victim”) Green testified at the preliminary hearing that the three were
going together to complete a drug deal. Erdelatz’s one-sentence summary of Ray’s
account indicated Ray’s understanding from Miranda that he and Green followed Larsen
into an alley and stabbed the victim in the neck, but stated nothing about any pre-formed
plan to kill him.
The Governor ignored significant parts of this evidence in characterizing
Miranda’s crime as “especially atrocious,” particularly with regard to Zelms’s account.
The probation department report states only that she told Erdelatz that Miranda said he
21
and Green followed Larsen out of the bar with an intent to rob him, and subsequently
stabbed him. Zelms’s preliminary hearing testimony indicates Miranda said he stabbed a
knife-wielding Larsen “in self-defense, or something to that effect.” “The Governor
cannot simply ignore the undisputed evidence” regarding a suitability factor. (In re
Moses (2010) 182 Cal.App.4th 1279, 1308 (Moses). In determining a prisoner’s
suitability for parole, all relevant, reliable information available should be considered
regarding the prisoner’s “behavior before, during and after the crime.” (Regs., § 2402,
subd. (b).) The Governor, having relied on Zelms’s account of what Miranda told her,
should have considered her account as stated, and in its entirety.8
Instead, the Governor assumed the evidence indicates that Miranda followed
Larsen intending to kill him, apparently based on a misreading of the probation
department report summary, either by the Governor, Smith, or both. The summaries
upon summaries contained in the record have apparently led to the Governor and Smith
conflating accounts of a planned robbery or drug deal and unplanned stabbing into the
crime of premeditated murder. The Ninth Circuit has observed the dangers of such
summaries in discussing a counsel’s paraphrasing of witness testimony: “Language can
be subtle, ambiguous and malleable. . . . [¶] ‘[A]s the childhood game of “telephone”
well demonstrates, words change significantly in the course of their re-telling by third
parties.’ ” (Planned Parenthood v. Amer. Coalition of Life (9th Cir. 2002) 290 F.3d
1058, 1115.) The court concluded that “[t]he record . . . provides concrete examples of
various ways in which summaries can distort the import of the actual testimony and
thereby impair the truth-ascertaining process.” (Ibid.) Likewise, here the summaries of
summaries of Zelms’s account have distorted what is actually stated in the record. Thus,
we conclude that this is yet another in a lengthy list of cases in which gubernatorial
8
As we have stated in footnote 2, ante, the record is such that we presume this
preliminary hearing transcript was available to the Board and the Governor for review.
Even if it was not available, however, the probation department report’s summary of
Zelms’s account to Erdelatz does not support the Governor’s characterization of the
crime as “especially atrocious” for the reasons stated herein.
22
reversals of a Board grant of parole have been “found to be based upon
mischaracterizations of the record and set aside.” (See In re Calderon, supra, 184
Cal.App.4th at p. 694, and the cases cited therein.)
In short, the Governor based his evaluation of the nature and circumstances of
Miranda’s crime (as well as of Miranda’s purported lack of insight) on a partial review
and a misreading of the evidence, particularly regarding Zelms’s account of what
Miranda told her. Put simply, there is no evidence that Miranda planned to stab Larsen
before he confronted him.
b. Miranda was Convicted of Second Degree Murder
Miranda’s criminal liability for second degree murder further undermines any
assumption that he followed Larsen planning to kill him. (Moses, supra, 182 Cal.App.4th
at p. 1302.) “ ‘Second degree murder is defined as the unlawful killing of a human being
with malice aforethought, but without the additional elements—i.e., willfulness,
premeditation, and deliberation—that would support a conviction of first degree
murder.’ ” (In re Vasquez (2009) 170 Cal.App.4th 370, 383.) No one has contended that
Miranda was charged with first degree murder. Furthermore, although Miranda pled,
rather than being found, guilty to second degree murder, the prosecution would have had
to agree that the facts supported Miranda’s plea. The Governor ignored this procedural
history by treating the conviction offense as being in effect murder in the first degree. It
was not.
c. The Governor Cannot Rely on the Opportunity to Avoid the Crime
The Governor stated as evidence that the murder was especially atrocious that
“Miranda had opportunities to avoid the murder but instead chose to continue.” The
Governor did not explain the evidence supporting this conclusion. Regardless, as
Miranda points out, “ ‘ “where no circumstances of the offense reasonably could be
considered more aggravated or violent than the minimum necessary to sustain a
conviction for that offense” ’ [citation], the Governor could not rely on the fact that
[defendant] might have avoided killing to show his killing to be especially brutal.” (In re
Elkins (2006) 144 Cal.App.4th 475, 497.)
23
d. The Facts Indicate the Murder Was Not “Especially Atrocious”
We also conclude that the remaining facts pointed out by the Governor—
Miranda’s repeated stabbing of Larsen and his fleeing from the scene without regard for
Larsen’s life—are not evidence that his second degree murder was “especially atrocious.”
“All second degree murders, by definition, involve callousness or an indifference to the
feelings and suffering of others.” (In re Vasquez, supra, 170 Cal.App.4th at p. 383.)
“The measure of atrociousness is not general notions of common decency or social
norms, for by that yardstick all murders are atrocious. [Citation.] . . . Rather, the inquiry
is whether among murders the one committed by [the inmate] was particularly heinous,
atrocious or cruel.” (In re Lee (2006) 143 Cal.App.4th 1400, 1410.) The evidence that
supports the robbery-murder version adopted by the Governor is that Miranda followed
Larsen in order to rob him and, upon confronting Larsen, stabbed him repeatedly, took
his wallet, and fled the scene.
It is, unfortunately, common for robbers to use weapons, for murderers to inflict
multiple wounds on their victims, and for both to fight and flee. “Victims of such
homicides are invariably threatened with a gun or some other deadly weapon and
regularly instructed to turn over money, and the motive for the crime is frequently related
to financial gain.” (In re Calderon, supra, 184 Cal.App.4th at p. 686.) This murder,
while atrocious, was not “especially atrocious” as compared to other second degree
murders. (See In re Vasquez, supra, 170 Cal.App.4th at p. 384 [finding the hitting and
kicking of the unconscious shooting victim, who had been fighting with the murderer,
was not an act done with exceptionally callous disregard for human suffering and life];
Moses, supra, 182 Cal.App.4th at p. 1303 [in which we found no evidence that a
murderer who fled the scene after shooting the victim in his home in the presence of the
victim’s 13-year-old-daughter acted in callous disregard for human suffering and life]; In
re Barker (2007) 151 Cal.App.4th 346, 353, 373 [defendant’s hitting one victim in the
head repeatedly with a chisel and shooting him twice in the head was not “exceptionally
callous”].)
24
2. The Lack of a Rational Nexus
The Governor also did not articulate a rational nexus between the commitment
offense and his finding that Miranda’s release would pose a current unreasonable risk of
danger to society. This is a critical failure under Lawrence, supra, 44 Cal.4th 1181.
The Governor referred to immutable factors only in his discussion of the nature
and circumstances of the offense. However, “the paramount consideration for both the
Board and the Governor under the governing statutes is whether the inmate currently
poses a threat to public safety and thus may not be released on parole.” (Lawrence,
supra, 44 Cal.4th at p. 1210.) Thus, as the Lawrence court explained “ ‘due
consideration’ of the specified factors requires more than rote recitation of the relevant
factors with no reasoning establishing a rational nexus between those factors and the
necessary basis for the ultimate decision—the determination of current dangerousness.
‘It is well established that a policy of rejecting parole solely upon the basis of the type of
offense, without individualized treatment and due consideration, deprives an inmate of
due process of law.’ ” (Ibid., italics added.)
The Governor made no effort to articulate a rational nexus between the nature and
circumstances of the murder and Miranda’s present dangerousness, more than two
decades after the fact. Lawrence and Shaputis make clear that “ ‘the relevant inquiry for
a reviewing court is not merely whether an inmate’s crime was especially callous, or
shockingly vicious or lethal, but whether the identified facts are probative to the central
issue of current dangerousness when considered in light of the full record before the
Board or the Governor.’ ” (Shaputis, supra, 44 Cal.4th at p. 1255, quoting Lawrence,
supra, 44 Cal.4th at p. 1221.)
Furthermore, Lawrence makes clear that, assuming Miranda’s crime involved
aggravated circumstances, this “does not in and of itself provide some evidence of
current dangerousness to the public unless the record also establishes that something in
the prisoner’s pre- or postincarceration history, or his or her current demeanor and mental
state, indicates that the implications regarding the prisoner’s dangerousness that derive
from his or her commission of the commitment offense remain probative of the statutory
25
determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at
p. 1214.) As we have previously held, otherwise such a statement simply “could be
repeated . . . until [petitioner] dies or is rendered helpless by the infirmities of sickness or
age.” (Scott II, supra, 133 Cal.App.4th at p. 595, fn. 8, followed in Moses, supra, 182
Cal.App.4th at p. 1305.) The Governor’s reliance on the purported gravity of Miranda’s
crime to establish current dangerousness without further explanation is, therefore,
insufficient.
We also conclude that the gravity of Miranda’s crime is not some evidence of
current dangerousness under the circumstances of this case. The Supreme Court
instructed in Lawrence, supra, 44 Cal.4th 1181, that “[w]hen . . . all of the information in
a postconviction record supports the determination that the inmate is rehabilitated and no
longer poses a danger to public safety, and the Governor has neither disputed the
petitioner’s rehabilitative gains nor, importantly, related the commitment offense to
current circumstances or suggested that any further rehabilitation might change the
ultimate decision that petitioner remains a danger, mere recitation of the circumstances of
the commitment offense, absent articulation of a rational nexus between these facts and
current dangerousness, fails to provide the required ‘modicum of evidence’ of
unsuitability.” (Id. at pp. 1226-1227.) As the Governor’s own summary in his review
indicated, Miranda has worked extensively in prison to address issues underlying his
commission of the commitment offense. The Governor did not dispute Miranda’s gains
in his decision. Instead, he recited them in rote fashion, then ignored them in his analysis
of Miranda’s current dangerousness.
For example, the Governor acknowledged Miranda’s substance abuse at the time
of the commitment offense, but did not account for Miranda’s many years of commitment
to substance abuse recovery programs like AA, his recognition of his need to continue
this commitment to combat what he recognizes as a “disease,” his commitment to
Christianity, his denunciation of his actions as a young man, or his repeated expressions
of remorse regarding, and insights into, the circumstances that led to the commitment
offense. The Governor’s failure to consider the numerous suitability factors in his
26
analysis of current dangerousness is plainly insufficient pursuant to Lawrence. (Moses,
supra, 182 Cal.App.4th 1306.)
In short, the Governor’s apparent assumption that Miranda’s murder of Larsen was
premeditated is not based on any evidence. There is no evidence that this murder, as
tragic as it was, was “especially atrocious.” Furthermore, the Governor did not relate any
of the circumstances of the crime—even as inaccurately portrayed—to current
circumstances, nor did he suggest that further rehabilitation might change his ultimate
decision that Miranda remains a danger. In light of the evidence of Miranda’s years of
rehabilitative efforts, nothing indicates that the actual circumstances of the crime remain
probative to the statutory determination of a continuing threat to public safety.
(Lawrence, supra, 44 Cal.4th at p. 1214.) Under these circumstances, we conclude the
gravity of the crime is not “some evidence” of current dangerousness.
B. The Governor’s Reliance on Miranda’s Purported Lack of “Full Insight”
The Governor based his reversal of the Board largely on his “concern” that
“Miranda still lacks full insight into the circumstances of the offense.” The Governor
based his concern on Miranda’s different versions of the crime in the past, and Smith’s
2008 conclusion that Miranda had not fully explored the commitment offense and its
underlying causes. Neither is a proper basis for the Governor’s reversal of the Board.
As the Attorney General points out, our Supreme Court made clear in Shaputis,
supra, 44 Cal.4th 1241, that an inmate’s failure to gain insight into his antisocial behavior
despite years of therapy and rehabilitative programming, when considered with evidence
of the inmate’s history of violence and recent psychological reports reflecting that the
inmate’s character remains unchanged, can provide “some evidence” for the conclusion
that the inmate remains dangerous and is unsuitable for parole. (Id. at p. 1260.) This
holding, however, does not permit the Governor to rely on lack of “full insight” here.
There is undisputed evidence that Miranda has repeatedly expressed insights and
remorse, and has given a consistent account of the offense since 2002. Furthermore,
Smith based her opinion that Miranda had not fully explored his offense on a factually
inaccurate summary of the evidence.
27
1. The Governor Ignored the Evidence of Miranda’s Insight and Remorse
The Governor’s analysis is insufficient because he ignored the evidence that
Miranda has repeatedly acknowledged that he killed Larsen, expressed remorse for doing
so, and acted on his insights.
As we stated in In re Elkins, supra, 144 Cal.App.4th 475, “acceptance of
responsibility works in favor of release ‘[n]o matter how longstanding or recent it is,’ so
long as the inmate ‘genuinely accepts responsibility . . . .’ ” (Id. at p. 495 [finding there
was “no rational support for the astounding conclusion” that the petitioner’s decade-long
acceptance of responsibility did not even weigh in favor of his parole].) Smith concluded
that Miranda “demonstrated insight into the underlying factors associated with his
decisions and actions at the time of the murder” and “seems committed to avoiding
causing . . . harm in the future.” She also reported that he expressed regret and remorse
about the commitment offense. Miranda made further statements at the 2008 Board
hearing indicating his remorse and his taking responsibility to change his conduct. These
include his denunciations of his actions as a young man, his commitment to the Christian
faith, and his acknowledgement of his substance abuse history, and his long-standing and
continued commitment to participating in substance abuse recovery programs.
Again, the Governor cannot simply ignore undisputed evidence regarding a
suitability factor. (Moses, supra, 182 Cal.App.4th at p. 1308.) As we made clear in
Moses, “[w]hile the Governor is not required to specify in detail every pertinent fact that
he considered (In re Elkins, supra, 144 Cal.App.4th at p. 492, fn. 4), he is obligated to
consider the totality of the circumstances involved, including all suitability factors, which
include ‘signs of remorse’ and institutional activities that indicated ‘an enhanced ability
to function within the law upon release.’ (Regs., § 2402, subd. (d)(3), (9); see Lawrence,
supra, 44 Cal.4th at p. 1230 (conc. opn. of Moreno, J.); Scott I, supra, 119 Cal.App.4th at
p. 898 [‘evidence of circumstances tending to show suitability for release was ignored
. . .’ by the Board]; Scott II, supra, 133 Cal.App.4th at p. 590 [holding that, based on
Rosenkrantz, supra, 29 Cal.4th at p. 677, the Governor’s decision must reflect an
28
individualized consideration of the specified criteria and cannot be arbitrary and
capricious].)” (Moses, at p. 1308.) 9
The Governor’s failure to even consider this evidence is particularly troubling
because his concern was not that Miranda lacked insight into the circumstances of the
commitment offense, but that Miranda lacked full insight. There is no requirement that a
prisoner eligible for parole have such full insight. The Attorney General correctly points
out that “[a]n inmate’s lack of insight into, or minimizing of responsibility for, previous
criminality, despite professing some responsibility, is a relevant consideration” regarding
suitability for parole. (In re Lazor (2009) 172 Cal.App.4th 1185, 1202.) However, the
Governor, like the Board, “must consider all relevant factors when evaluating an inmate’s
suitability for parole,” including the inmate’s showing signs of remorse and an
understanding of the nature and magnitude of the offense. (Id. at p. 1201.) Furthermore,
“ ‘the mere existence of facts suggesting the crime involved some level of premeditation
does not necessarily constitute evidence that releasing [defendant] on parole would
unreasonably endanger public safety.’ ” (Moses, supra, 182 Cal.App.4th at p. 1310,
quoting In re Vasquez, supra, 170 Cal.App.4th at p. 384.) Miranda’s remorse and
acceptance of responsibility, his exemplary disciplinary and work record in prison, and
the positive psychological evaluations, including by Smith, render insignificant the
discrepancies cited by the Governor. In light of the totality of circumstances, these
discrepancies are not “some evidence” of present dangerousness, even if the Governor
and Smith were correct that Miranda has failed to agree that he acted with premeditation
to kill Larsen. (Moses, at p. 1310, citing Lawrence, supra, 44 Cal.4th at pp. 1226-1227.)
We turn now to a discussion of the specific discrepancies cited by the Governor,
and the additional reasons why they are not “some evidence” of current dangerousness.
9
Miranda also argues that the Governor, while he referred to Miranda’s age, did
not give any indication that he considered Miranda’s advancing years, although another
specified suitability factor is “[t]he prisoner’s present age reduces the probability of
recidivism.” (Regs., § 2402, subd. (d)(7).)
29
2. Discrepancies Between Miranda’s Present and Past Versions of the Crime
The Governor based his concern about Miranda’s lack of full insight in part on the
discrepancies between Miranda’s present version of the commitment offense (as a drug
deal gone awry) and Miranda’s previous statements about the offense between 1985 and
1997. These previous versions are insignificant in light of Miranda’s consistent
recollection of events since 2002.
Specifically, the Governor noted that in the “Institution Staff Recommendation
Summary” (which the record indicates was prepared in 1985), Miranda claimed he
stabbed Larsen out of self-defense. Also, the Governor, reviewing Miranda’s statements
to his mental health evaluators over the years, noted that in 1991, Miranda did not recall
stabbing Larsen or taking his wallet; in 1994 said after he fought with the victim, he ran
to the car, where his crime partner showed up a minute later waving the victim’s wallet
full of money; and in 1997, said the murder was not premeditated, but occurred in an
altercation he had with Larsen as he tried to rob him. However, the Governor stated that
Miranda told his 2008 evaluator, and other evaluators, “that Larsen approached him at a
bar about purchasing marijuana, that he agreed to set up the drug purchase, and that his
crime partner gave Miranda and Larsen a ride to another location. At that point,
according to Miranda, the victim backed out of the deal. Miranda claims that they started
fighting and ‘the next thing [he] knew [he] stabbed [him].’ Then he grabbed his wallet
like a ‘crazy fool.’ ”
The Governor ignored that Miranda essentially has given the same account of the
commitment offense consistently since at least 2002. The Governor stated only that
Miranda gave this account in 2008, as well as to “other evaluators.” Instead, the
Governor emphasized the summaries of accounts by Miranda in documents from 1985 to
1997. As Miranda points out, this approach is similar to that discussed in In re Lee,
supra, 143 Cal.App.4th 1400. Lee had pled guilty to second degree murder and
attempted premeditated murder. (Id. at p. 1404.) The Board granted him parole, but the
Governor reversed this decision, based in part on the “perceived tardiness of Lee’s
acceptance of responsibility for his crimes.” (Id. at pp. 1405, 1408, 1413-1414.) Lee
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initially claimed someone else must have killed the murder victim and, after pleading
guilty to second degree murder, claimed for years that he was not responsible for her
death because it was accidental rather than intentional, a fact that was not disputed. (Id.
at p. 1414.) Nonetheless, at his last parole hearing, “his acceptance of responsibility for
his crimes was complete.” (Ibid.) The court found that the Governor could not rely on
this tardiness because, “[s]o long as Lee genuinely accepts responsibility, it does not
matter how long-standing or recent it is.” (Ibid.)
Similarly, our Supreme Court rejected a reliance on “stale psychological
assessments” in Lawrence. It stated that “the passage of time is highly probative to the
determination before us, and reliance upon outdated psychological reports—clearly
contradicted by petitioner’s successful participation in years of intensive therapy, a long
series of reports declaring petitioner to be free of psychological problems and no longer a
threat to public safety, and petitioner’s own insight into her participation in this crime—
does not supply some evidence justifying the Governor’s conclusion that petitioner
continues to pose a threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1224.)
Miranda ultimately has accepted responsibility for murdering Larsen and taking
his wallet. Starting in 2002, he repeatedly stated that he alone fought with Larsen,
stabbed him repeatedly, and took his wallet. While stating that he ingested a mixture of
PCP, marijuana, and alcohol on the day of the murder, he told the Board that he did not
believe drugs were to blame for his actions. He also conceded to the Board that his
recollections might be faulty because of his ingestion of PCP, and that it might be helpful
for him to see a psychiatrist to help him see if he was “missing” something about his
actions in committing the crime.
In short, the Governor did not challenge the sincerity of Miranda’s remorse or
acceptance of responsibility, and ignored Miranda’s consistent recollections of the crime
since 2002 and his acknowledgment that PCP use may have affected his memory. Under
these circumstances, the discrepancies in summaries of Miranda’s accounts of the crime
pointed out by the Governor are not “some evidence” of present dangerousness.
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3. The Governor’s Reliance on Smith’s Factually Flawed Opinion
The Governor also reversed the Board’s decision because of his concern Miranda
lacked “full insight” into the commitment offense, relying on Smith’s opinion that
Miranda’s version of events seemed “to be an attempt to lessen his culpability.” This
also was not a proper basis for reversal. Smith’s opinion is not “some evidence” of
current dangerousness because it is based on Smith’s materially flawed summary of the
commitment offense.
The Governor stated: “An evaluation by Miranda’s 2008 mental-health evaluator
provides further information indicating that Miranda still lacks full insight into his
responsibility for the murder and the circumstances that led to the murder. The evaluator
noted that, ‘His version of events seems to be an attempt to lessen his culpability . . . .’
The evaluator concluded that ‘he has not fully explored the commitment offense and
come to terms with the underlying causes’ and that while Miranda has ‘insight into some
of the causative factors to his commitment offense,’ he ‘does not appear to have a full
grasp.’ ”
The Governor should not have relied on Smith’s opinion. As we have discussed,
she made two critical factual errors about the contents of the 1985 probation department
report.
First, Smith mistakenly asserted that the report indicated Zelms told Erdelatz that
Miranda said he had followed Larsen in order to murder him and take his money. The
report actually indicated only that Miranda said he had planned to rob Larsen. Based on
her mistaken assumption, Smith wrote that this “official version” “suggest[ed] that the
crime was premeditated and did not occur in the heat of the moment as Miranda
described (e.g. ‘the next thing I know I stabbed him’).” She then concluded that
Miranda’s version of the crime showed a lack of “full insight” and seemed to be an
attempt “to lessen his culpability.”
Second, Smith mistakenly summarized the probation department report’s account
of what Green told Erdelatz. She wrote that, after instructing Green to pull over, Miranda
got out of Green’s car, when the actual account was that Miranda and the victim got out.
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As a result, Smith incorrectly assumed that the report contained one “official version” of
the crime—that of a premeditated murder. In fact, the report recited two different
versions of the crime, they being Zelms’s report of a premeditated robbery that led to a
murder, and Green’s account, which suggested he, Larsen, and Miranda were engaged in
some sort of dealings together just before the murder. Neither version supports Smith’s
assumption that the “official version” indicated that Miranda engaged in premeditated
murder, rather than a robbery that turned deadly.
Based on her factual errors, Smith opined that Miranda lacked full insight into the
commitment offense, essentially because he had not acknowledged that he engaged in a
premeditated murder, when there was no evidence of such premeditation and his
conviction was for second degree murder. Therefore, the Governor erred by relying on
Smith’s opinion to assert that Miranda posed a current danger. (Lawrence, supra, 44
Cal.4th at p. 1212 [denial of parole must be based upon “some evidence” of current
dangerousness]; see also People v. Eckley (2004) 123 Cal.App.4th 1072, 1079-1081
[vacating a sentence and denial of probation based on inaccurate documents, including a
factually flawed psychological evaluation, and noting that a court’s reliance on such
documents “can constitute a denial of due process”].)
It may be argued that Smith’s opinion was based in some part on Miranda’s
insistence that he murdered Larsen in the course of a drug deal, rather than a robbery, the
only real discrepancy between Miranda’s and Zelms’s accounts. However, Smith
focused not on the nature of Miranda’s purpose in confronting Larsen, but on the
purportedly “premeditated nature” of the murder itself; the robbery assumed secondary
importance in her summary.
Furthermore, to the extent Smith might have relied on the discrepancy between the
robbery-murder and drug deal-murder accounts, the Governor did not articulate any
rational nexus between this discrepancy and Miranda’s current dangerousness. We
conclude that no rational nexus exists. We do not see a meaningful difference between
the two versions in prognosticating Miranda’s current dangerousness to society. Each
poses dangers to society, and obviously involves dangerous circumstances and the
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employment of deadly weapons. As Miranda points out, his version of the crime is not
exculpatory; to the contrary, he has repeatedly acknowledged that he stabbed Larsen,
took his wallet, and fled, in the course of selling illegal drugs. Any discrepancy between
the two versions is hardly significant in light of Miranda’s taking responsibility for
murdering Larsen, his expressions of remorse, and his extensive rehabilitation efforts, as
well as Smith’s conclusions that he posed a low risk of violence to the community if
released, “demonstrated insight into the underlying factors associated with his decisions
and actions at the time of the murder,” and “seem[ed] committed to avoiding causing . . .
harm in the future.” (See In re Palermo (2009) 171 Cal.App.4th 1096, 1110-1111
[holding that the petitioner’s insistence that he accidentally, rather than intentionally, shot
the victim, was not delusional under the circumstances, and did not support a finding of
present dangerousness in light of his remorse, taking responsibility, rehabilitation efforts,
and psychological evaluation]; Moses, supra, 182 Cal.App.4th at p. 1310 [relying on
Palermo to conclude that the discrepancies between the petitioner’s recollection of events
and facts in the record were “insignificant”].)
The Governor, to the extent he relied on Zelms’s account in evaluating Miranda’s
lack of “full insight” into the commitment offense, failed to consider her entire account.
The probation department report states only that Zelms told Erdelatz that Miranda said:
he and Green followed Larsen out of the bar with an intent to rob him; and her
preliminary hearing testimony indicated Miranda said he stabbed a knife-wielding Larsen
“in self-defense, or something to that effect.” The Governor cannot simply ignore this
undisputed evidence. (Moses, supra, 182 Cal.App.4th at p. 1308.)
To summarize, the Governor’s two reasons for reversal of the Board’s grant of
parole are not supported by the evidence, the Governor did not consider the totality of the
circumstances, and the Governor did not articulate any rational nexus between his
reasons and Miranda’s purported current dangerousness. None of the Governor’s reasons
are based on evidence of current dangerousness, which is particularly apparent in light of
Miranda’s taking responsibility for murdering Larsen, his expressions of remorse, his
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extensive rehabilitative efforts in prison, his exemplary disciplinary and work history in
prison, his significant family support, and his realistic work prospects.
As we stated in Moses, supra, 182 Cal.App.4th 1279, “[w]e remain mindful of our
deferential standard of review. Nonetheless, Lawrence makes clear that our ‘judicial
review must be sufficiently robust to reveal and remedy any evident deprivation of
constitutional rights. If simply pointing to the existence of an unsuitability factor and
then acknowledging the existence of suitability factors were sufficient to establish that a
parole decision was not arbitrary, and that it was supported by ‘some evidence,’ a
reviewing court would be forced to affirm any denial-of-parole decision linked to the
mere existence of certain facts in the record, even if those facts have no bearing on the
paramount statutory inquiry. Such a standard, because it would leave potentially
arbitrary decisions of the Board or the Governor intact, would be incompatible with our
recognition that an inmate’s right to due process “cannot exist in any practical sense
without a remedy against its abrogation.” [Citations.] [¶] . . . [¶] Accordingly, when a
court reviews a decision of the Board or the Governor, the relevant inquiry is whether
some evidence supports the decision of the Board or the Governor that the inmate
constitutes a current threat to public safety, and not merely whether some evidence
confirms the existence of certain factual findings.’ (Lawrence, supra, 44 Cal.4th at
pp. 1211-1212.)” (Moses, supra, 182 Cal.App.4th at pp. 1312-1313.) In accordance with
this instruction, we conclude that the Governor’s decision violated Miranda’s due process
rights and that his petition should be granted. In light of our conclusion, we do not
address the various other arguments made by Miranda in support of his petition.
D. Remedy
Miranda argues that, should we grant his petition, we should vacate the
Governor’s reversal and reinstate the Board’s finding that he is suitable for parole. The
People do not address the question directly. As we discussed in Moses, remand to the
Governor is inappropriate when there is not “some” evidence in the record to support the
Governor’s contentions of current dangerousness, and we conclude that “ ‘further
consideration by the Governor will not change that fact.’ ” (Moses, supra, 182
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Cal.App.4th at p. 1313.) That is the case here. Therefore, Miranda is entitled to
reinstatement of the Board’s August 2008 grant of parole without remand to the
Governor for his further consideration of it. (Ibid.)
DISPOSITION
The petition for writ of habeas corpus is granted. The Governor is hereby ordered
to vacate his decision of January 22, 2009, which reversed the Board’s August 2008 grant
of parole. The Board’s August 2008 grant of parole is reinstated.10 In the interests of
justice, this opinion is made final as to this court seven days from the date of filing. (Cal.
Rules of Court, rule 8.387(b)(3)(A).)
_________________________
Lambden, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
10
Of course, the Board retains its power to rescind that parole on an appropriate
record based on events occurring after its 2008 suitability determination. (Moses, supra,
182 Cal.App.4th at p. 1313; In re Powell (1988) 45 Cal.3d 894, 901-902; Pen. Code,
§§ 3041.5, 3041.7; Cal. Code Regs., tit. 15, § 2450.)
36