In re Parker

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Filed 2/28/08 In re Parker CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re LENNIE PARKER,
On Habeas Corpus.
C054210
(Super. Ct. No. SC041511A)
The Attorney General of the State of California appeals
from a superior court order granting a petition for writ of
habeas corpus filed by Lennie Parker. (Pen. Code, § 1506 [an
appeal may be taken by the People from a trial court order
granting a petition for habeas corpus]; undesignated statutory
references are to the Penal Code.) The superior court
determined the evidence did not support the decision of the
Board of Parole Hearings (Board) denying Parker parole (Cal.
Code Regs., tit. 15, § 2402, (regulation 2402)). The court
directed the Board to grant parole. The Attorney General argues
the trial court erred in failing to defer to the Board’s
decision and in ordering the Board to grant parole. We shall
conclude (as did the trial court) that the Board’s stated
reasons for denying parole (gravity of commitment offense, prior

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criminality, and unstable social history) did not provide
evidence that Parker’s release would pose a present risk to
public safety under section 3041. However, we shall conclude
the trial court erred in directing the Board to grant parole
rather than allowing the Board to exercise its discretion in
reconsidering the matter. On remand, the Board retains its
discretion to grant or deny parole.
FACTUAL AND PROCEDURAL BACKGROUND
On January 1, 1987, Parker (who was 24 years old at the
time) participated in the murder of his friend, Robert William
Lang, and left him lying dead or dying in an irrigation ditch in
a remote area. The victim sustained two gunshot wounds, which
did not kill him immediately. He died from shock and hemorrhage
from a gunshot wound to the chest.
The police arrested Parker on August 6, 1987, and he has
been in continuous custody since then.
Parker entered a plea bargain pursuant to which (1) he pled
guilty to second degree murder; (2) he twice testified against
the shooter, Tab Lee (Herky) Bennett (the first trial having
ended in a mistrial); (3) the People dropped other charges
against Parker -- kidnapping, vehicle theft, and robbery; and
(4) the District Attorney and the court would (and did) support
Parker’s release on parole at the earliest possible date.

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In January 1991, the trial court accepted Parker’s guilty
plea to second degree murder and sentenced him to prison for 15
years to life.
Despite the recommendations of the District Attorney and
the superior court, Parker has been denied parole several times.
The subject of this appeal is Parker’s fifth parole hearing
(fourth subsequent hearing), which took place on June 28, 2004.
Evidence adduced at the hearing included the following:
The probation report set forth two versions of the crime --
one by Parker and the other by witness Neil Herr. Herr
testified at the preliminary hearing that he and Bennett met up
with Parker and the victim on the night in question. They all
drank wine and were driving to a party, with Bennett driving
Parker’s Grand Prix. They made a stop at a repair garage, where
Parker and the victim began arguing. The victim walked away.
The other three followed in the car. Parker apologized, and the
victim got back in the car. Bennett drove out into the country,
stopped the car, and told the victim to get out. Herr, who
remained in the car, saw Parker and Bennett “roughing up” the
victim, slapping him and kicking him when he was on the ground.
They then placed the victim in the trunk of the car. Bennett
drove while Parker, who was then holding a shotgun, said the
victim had “snitched off” somebody’s uncle. Bennett stopped the
car near a vineyard and told Herr to stay in the car. Bennett
removed the victim from the trunk and walked him to the top of a

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canal bank. Parker handed Bennett the shotgun. The victim was
told to walk down into the canal. Herr then heard Bennett fire
two shots, 10 to 20 seconds apart. Bennett and Parker then
returned to the car. Bennett placed the shotgun in the trunk.
Parker had the victim’s wallet and car keys. They drove to
Parker’s residence, where Parker got into the victim’s MG and
drove into the countryside. Bennett followed and repeatedly
rammed the MG, which was then dumped.
The probation report also sets forth the differing version
of Parker, who says he and the victim were at a pizza place when
Bennett got into an argument with the victim and slapped the
victim. Parker and the victim remained for a while, drinking
beer and eating pizza, and then left to go to a bar. When they
stopped to buy gas and beer, Bennett and Herr drove up. Bennett
told Parker to meet him at a repair garage, where Bennett and
the victim got into an argument. The victim walked away.
Bennett got into the driver’s seat of Parker’s car, Herr got in
the front passenger seat, Parker got in the back seat, and they
drove to the victim. Parker asked the victim to get in the car,
and he did. Bennett then drove the car to a remote area where
he showed a shotgun, ordered the victim out of the car, shoved
the victim, and made him get into the trunk. Bennett drove to a
canal. Herr asked what was going on. Bennett said he had to
take care of something. At the canal, Bennett ordered the
victim out of the trunk, pointed the shotgun at him, ordered him

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to give up his keys and wallet, which he did. Bennett then
stuck the end of the shotgun in the victim’s mouth, marched him
up the canal embankment, and shot him twice.
Evidence at the parole hearing also showed that, at the
time of the murder on January 1, 1987, Parker abused alcohol,1
had a pattern of anti-social conduct, and was on probation for
misdemeanor driving under the influence (DUI). His criminal
record also showed several misdemeanor convictions for driving
under the influence (DUI) or reckless driving between 1982 and
1985, as well as a 1983 battery conviction, and a 1984
conviction for obstructing a peace officer.
Since 1997, Parker has been classified as Medium A custody
with zero classification points and 19 placement points,
reflecting the lowest security risk. He is housed in the Level
II facility, the lowest allowable level for a term-to-life
inmate, which would not be allowed if his crime involved unusual
violence or an execution-style killing. (Cal. Code Regs., tit.
15, § 3375.2, subd. (a)(7)(A).) In prison, Parker has pursued
work, vocational, and self-help activities. He has been active
for years in recovery programs including AA and NA. Psychiatric
1 The Attorney General says Parker also abused cocaine,
methamphetamine, and marijuana. The cited portion of the record
shows Parker admitted “recreational” use of marijuana and
methamphetamine before the killing and abuse of those drugs
(plus cocaine) after the killing--which he attributed to severe
depression stemming from the killing.

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reports indicate (1) he poses less potential for violence in the
community than other inmates; (2) if released, his potential for
violence would be no more than that of the average citizen; and
(3) he has an excellent prognosis for successful parole
adjustment.
The probation report also contained Parker’s 1989 statement
that he is not one to cause harm to anyone, and “he [Parker] was
a victim of unfortunate circumstances on the evening of the
murder, ‘but I now realized that I was wrong not to go to the
police immediately after it happened.’” Parker attributed his
failure to do so to his fear of Bennett, who had made threats
against Parker and his girlfriend. Parker said he felt
considerable remorse about the incident and felt despair over
the loss of his best friend (the victim).
The probation report’s evaluation stated, “While Mr.
Parker’s involvement in the instant offense appears minimal, his
decision to plead guilty to second degree murder was no doubt
based on his many conflicting statements to the police and their
availability for use at trial by the district attorney as
impeachment. Even though Mr. Parker gave various accounts
including various degrees of culpability, it should be noted
that the district attorney has presented Mr. Parker’s version,
basically as stated [in the probation report] as the truth. Mr.
Parker has consistently expressed remorse for the death of his
friend Robert William Lang and has cooperated in the

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investigation into that death. Attached are letters [2] from the
District Attorney of San Joaquin County, John Phillips,
Prosecuting District Attorney, Charles Convis and sentencing
Superior Court Judge Frank Grande, all of which acknowledge
Mr. Parker’s cooperation and recommend release for Mr. Parker at
his minimum eligible release date.”
The probation report cited as the only aggravating factor
that Parker was on misdemeanor probation when the murder was
committed. The probation report cited several mitigating
factors, i.e., (1) Parker voluntarily provided testimony leading
to the murder conviction of Bennett; (2) Parker played a minor
role in the crime; (3) Parker, with no apparent predisposition
to do so, was induced by others to participate in the crime;
(4) Parker had no prior felony record; (5) Parker voluntarily
acknowledged wrongdoing at an early stage of the proceedings;
and (6) Parker has shown remorse and has voluntarily cooperated
with authorities.
At the parole hearing, Parker made a statement reiterating
his version of the crime, in which he was assertedly an
unwitting bystander who did not know what was going on and whose
primary culpability was in failing to report the crime to
police, a failure which Parker attributed to his fear of the
shooter. Parker said he hid the victim’s car in a barn because
2 Only some of the letters are included in the record on appeal.

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he was frightened. The next day, Parker helped Bennett dump the
victim’s car after Bennett threatened to kill Parker and his
girlfriend.
When asked at the parole hearing about his prior criminal
record, Parker said, “I have a -- a little lengthy record there
due to the fact that I was dating a [police] dispatcher’s
daughter . . . . Every time we would get in an argument she
would call her mom up, and a few things got more blown out of
probation [sic] . . . .” He also said, however, that he was an
alcoholic at the time, and “it’s my fault. I take
responsibility for it.”
Parker got married one year before the June 2004 parole
hearing, to a women he met two years before the marriage,
through correspondence while he was in prison. The wife
supports Parker’s release, and Parker’s brother stands ready to
give him a job when he is paroled.
At the parole hearing, the presiding commissioner noted
that Parker heard the gunshots, had to know that the victim was
at least hurt, yet left the victim there and did not go back to
check on him. The presiding commissioner asked what Parker
would do differently now, to which Parker responded, “Well,
that’s a tough question because Mr. Lang was my friend. At the
time I did not know that he was shot, killed. And when
[Bennett] would have started up the car at [the garage], I would

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have just let him take the car. The car was not worth Billy’s
life.”
At the end of the June 28, 2004, hearing, the panel
deliberated and the presiding commissioner announced the
decision, stating as follows:
“[T]he Panel reviewed all information received from the
public and relied on the following circumstances in concluding
that you’re not yet suitable for parole and would pose an
unreasonable risk of danger to society or a threat to public
safety if released from prison. Obviously, we looked at the
commitment offense, which was a really callous crime. This man,
Mr. Lang, was taken out to an area out in the -- out away from
town and was taken away from the car and was shot twice with a
shotgun, and his body was left there. He -- The autopsy showed
that the cause of death was shock and hemorrhage from the
shotgun wound to the chest area. The inmate -- As you mentioned
here, this was your friend and he was left there to die. He was
essentially abandoned there, and no one went back to check to
see if he was dead, if he was alive, if there was anything that
could have been done to help him. The inmate has an escalating
pattern of criminal conduct. He has failed previous grants of
probation and, in fact, was on probation six times prior to this
commitment offense, and was on probation at the time of this
offense. He also has been in county jail, has an unstable
social history that includes substance abuse and leading to DUIs

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and reckless driving. The prisoner does have good parole plans.
He has support in the community. He has a wife who is willing
to support him financially and help him get on his feet, and
certainly, he has a place to live. He has an offer of a job
from his brother. And we do want to commend you for the work
that you’ve done while you’ve been here. You’ve been involved
in AA. Let me get your paper here that I put aside. I’m going
to note some of the self-help that you’ve done from the report
that you gave us. You’ve done NA and AA, seven years of NA,
eight years of AA. You’ve been involved in Breaking Barriers.
You’ve been involved in Life Plan for Recovery, and your -- you
recently have been able to get back on the AA waiting list.
Apparently you were out of it only because it wasn’t available
for a period of time. You had a work history that includes the
bakery, textiles, landscaping is what you’re currently doing.
You’ve listed your job skills, which are numerous, and you do
have letters of support. And I want to note again for the
record that the District Attorney’s Office is not in opposition
to a finding of suitability, and ask[s] that the inmate be
considered for a parole at the earliest possible date, as was
noted before along with the judge in the case, and also, the
probation officer -- the probation officer’s report. The
prisoner has participated well in self-help programs and
vocational programs and work programs since his incarceration.
However, at this time the positive aspects of his behavior do

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not outweigh the factors of suitability [sic]. The Panel
recommends that you remain disciplinary [sic] free and continue
to upgrade vocationally whenever possible. Also, continue to
participate in self-help, and in particular in the area of
substance abuse, because, obviously, with the history -- with
your history of arrests and convictions, and also the fact that
there was drinking involved the night of the offense, that’s
going to be the thing that’s going to be the most worrisome.
And we also are going to order a new psych report, so I want to
recommend that you cooperate in the completion of that report.
That completes the reading of the decision.”
The presiding commissioner asked if there were any
additional comments, and the deputy commissioner said, “I think
you’re doing very well, Mr. Parker, and I think that -- I think
there is a couple things I would, you know, like to hear from
you. And, also, I think the psych needs to speak to you as to
what’s changed or why you’re not easily influenced by other
people. And this particular crime, reading the mitigating
circumstances, it certainly appears that you were not the
leader, and consequently, over the years that you’ve matured,
you’re your own person. And that’s, in part, demonstrated by
the fact that you got out of [one program] because you felt it
was in your best interests, that you weren’t just going along
with the program. Now, the other things -- another thing that I
was concerned about is, you know, those 12 steps, you need to

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know them frontwards and backwards [sic]. And after all the
time that you’ve been in here [eight years in AA], I was a
little bit disappointed that you didn’t know about a searching
and fearless moral inventory because that’s something you need
to do, quite frankly. [3] So, anyway, that’s all I have. Good
luck to you.”
The presiding commissioner concluded with the following:
“You’re doing a good job, so just keep doing what you’re
doing. It’s -- You know, there are areas that we know are going
to be of concern, not only with -- not only with the
Commissioners, but also with Decision Review and the Governor’s
Office. And that’s one of the reasons that we’re going to be
ordering a new psych report before your next hearing so that any
issues that were raised during our deliberation could also be
addressed by the psych report before your next hearing.”
Parker petitioned this court for a writ of habeas corpus.
We summarily denied the petition on February 9, 2006. Upon
Parker’s petition for review, the California Supreme Court
directed us to vacate our order and issue an order to show
cause, returnable to the superior court, as to why the Board did
not abuse its discretion in denying parole.
3 The transcript of the audiotaped Board hearing shows the deputy
commissioner asked Parker, “What’s the fourth step [of AA’s 12-
step program]? You don’t need to respond unless (inaudible)
think about toward the end of the hearing.”

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After further briefing and reconsideration, the trial court
determined there were no factual disputes requiring an
evidentiary hearing, and on October 19, 2006, issued an order,
finding:
“1. That the Board, in relying on two factors (nature of
the crime and unstable social history [4]) as the basis for a
denial of parole, abused its discretion in finding Petitioner
unsuitable for release on parol[e].
“2. Further, Respondent has failed to adequately establish
that the finding of unsuitability and a denial of a release date
during the June 2004 hearing is supported by the requisite ‘some
evidence.’ Specifically, the court finds no evidence in the
record to support the rational conclusion that Petitioner, if
released on parole would currently present an unreasonable risk
of danger to public safety. [Citations.]
“3. Further, based on the record the court finds it is
unreasonable for the Board not to find Petitioner suitable for
release on parole and set a release date.”
The trial court ordered that (1) the Board decision be
vacated, and (2) a writ issue directing the Board to hold a
hearing for the purpose of preparing a new decision finding
Parker suitable for release on parole.
4 The panel’s citation of unstable social history encompassed two
factors -- the escalating pattern of criminal conduct, and the
substance abuse problem that led to the criminal conduct.

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The Attorney General appeals from the trial court’s order.5
DISCUSSION
I. Applicable Statutes/Regulation
Section 3041, subdivision (b), requires the Board to set a
release date “unless it 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 . . . .”
Section 3041.5, subdivision (b)(2), requires the Board to
provide a statement “setting forth the reason or reasons for
refusal to set a parole date, and suggest activities in which he
or she might participate that will benefit him or her while he
or she is incarcerated.”6 (But see In re Van Houten (2004) 116
Cal.App.4th 339, 360, which, in reviewing the decision of the
Governor rather than the Board, said that the superior court did
not have the authority to require a statement of reasons or
evidence as to why the Board found the negative factors
outweighed the positive factors.)
5 In his respondent’s brief on appeal, Parker argues the issue is
not ripe for appeal for reasons set forth in his separate motion
to dismiss (accusing the Board of defying the trial court’s
order in the subsequent 2007 parole hearing). We denied the
motion to dismiss and need not consider the matter further.
6 The statute requires a written statement. We presume this
requirement was satisfied by the written transcript of the
commissioner’s verbal pronouncement of the decision.

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Regulation 2402 states:
“(a) General. The panel shall first determine whether the
life prisoner is suitable for release on parole. Regardless of
the length of time served, a life prisoner shall be found
unsuitable for and denied parole if in the judgment of the panel
the prisoner will pose an unreasonable risk of danger to society
if released from prison.
“(b) Information Considered. All relevant, reliable
information available to the panel shall be considered in
determining suitability for parole. Such information shall
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.
“(c) Circumstances Tending to Show Unsuitability. The
following circumstances each tend to indicate unsuitability for
release. These circumstances are set forth as general

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guidelines; the importance attached to any circumstance or
combination of circumstances in a particular case is left to the
judgment of the panel. Circumstances tending to indicate
unsuitability include: [¶] (1) Commitment Offense. The
prisoner committed the offense in an especially heinous,
atrocious or cruel manner. The factors to be considered
include: [¶] (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 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. [¶] (2) Previous Record of Violence.
The prisoner on previous occasions inflicted or attempted to
inflict serious injury on a victim, particularly if the prisoner
demonstrated serious assaultive behavior at an early age. [¶]
(3) Unstable Social History. The prisoner has a history of
unstable or tumultuous relationships with others. [¶] (4)
Sadistic Sexual Offenses. The prisoner has previously sexually
assaulted another in a manner calculated to inflict unusual pain
or fear upon the victim. [¶] (5) Psychological Factors. The
prisoner has a lengthy history of severe mental problems related

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to the offense. [¶] (6) Institutional Behavior. The prisoner
has engaged in serious misconduct in prison or jail.
“(d) Circumstances Tending to Show Suitability. The
following circumstances each tend to show that the prisoner is
suitable for release. The 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. Circumstances tending to indicate
suitability include: [¶] (1) No Juvenile Record. The prisoner
does not have a record of assaulting others as a juvenile or
committing crimes with a potential of personal harm to victims.
[¶] (2) Stable Social History. The prisoner has experienced
reasonably stable relationships with others. [¶] (3) Signs of
Remorse. The prisoner performed acts which tend to indicate the
presence of remorse, such as attempting to repair the damage,
seeking help for or relieving suffering of the victim, or
indicating that he understands the nature and magnitude of the
offense. [¶] (4) Motivation for Crime. The prisoner committed
his crime as the result of significant stress in his life,
especially if the stress has built over a long period of time.
[¶] (5) Battered Woman Syndrome. At the time of the commission
of the crime, the prisoner suffered from Battered Woman
Syndrome, as defined in section 2000(b), and it appears the
criminal behavior was the result of that victimization. [¶] (6)
Lack of Criminal History. The prisoner lacks any significant

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history of violent crime. [¶] (7) Age. The prisoner’s present
age reduces the probability of recidivism. [¶] (8)
Understanding and Plans for Future. The prisoner has made
realistic plans for release or has developed marketable skills
that can be put to use upon release. [¶] (9) Institutional
Behavior. Institutional activities indicate an enhanced ability
to function within the law upon release.”7 (Underlining added.)
II. Standard of Review
Where, as here, there was no evidentiary hearing in the
trial court, we independently review the record of the Board
proceedings. (In re Lowe (2005) 130 Cal.App.4th 1405, 1420; In
re Van Houten, supra, 116 Cal.App.4th at pp. 413-414.)
We are cognizant that some of the appellate cases cited in
this opinion involved review of the Governor’s decision to
affirm or reverse a Board decision. Review of the Governor’s
decision adds a layer of complexity due to the constitutional
source of the Governor’s power. (Cal. Const., art. V, § 8,
subd. (b).) Here, no decision by the Governor is at issue.
Nevertheless, the cited cases are useful in the discussion of
the scope of the Board’s powers.
7 Although the state expects prisoners to behave well in prison,
the absence of serious misconduct in prison and participation in
institutional activities that indicated an enhanced ability to
function within the law upon release are factors to be
considered on an individual basis. (In re Rosenkrantz (2002) 29
Cal.4th 616, 682.)

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“[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 . . . 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. [Citations and fn. omitted.]” (In re
Rosenkrantz, supra, 29 Cal.4th 616, 658.)
Rosenkrantz extended to parole decisions under state due
process the principle applied by the United States Supreme Court
to good time credits: “‘Requiring a modicum of evidence to
support a decision [to deny parole] [brackets in Rosenkrantz]
will help to prevent arbitrary deprivations without threatening
institutional interests or imposing undue administrative
burdens. In a variety of contexts, the [United States Supreme]
Court has recognized that a governmental decision resulting in
the loss of an important liberty interest violates due process
if the decision is not supported by any evidence. [Citations.]’
. . . ‘Ascertaining whether this standard is satisfied does not

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require examination of the entire record, independent assessment
of the credibility of witnesses, or weighing of the evidence.
Instead, the relevant question is whether there is any evidence
in the record that could support the conclusion reached
. . . .’” (Rosenkrantz, supra, 29 Cal.4th at pp. 664-665,
citing Superintendent v. Hill (1985) 472 U.S. 445, 455-456 [86
L.Ed.2d 356, 365]; see also Sass v. Cal. Bd. of Prison Terms
(9th Cir. 2006) 461 F.3d 1123, 1128 [extending Hill to parole
decisions].)
The question is whether there must be some evidence of
current dangerousness of the prisoner if released, or merely
some evidence of factors tending to show unsuitability for
release.
The California Supreme Court has suggested, though it has
not held, that there must be “some evidence” tending to prove
the existence of some factor which is relevant to the ultimate
finding the statute requires before parole can be denied--
release of the prisoner on parole would create an unreasonable
risk to public safety. Citing to section 3041, subdivision (b),
Rosenkrantz held, “the governing statute provides that the Board
must grant parole unless it determines that public safety
requires a lengthier period of incarceration for the individual
because of the gravity of the offense underlying the

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conviction.”8 (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
Additionally, In re Dannenberg (2005) 34 Cal.4th 1061, held,
“the Board may decline to [set fixed release dates] in an
individual case if it concludes, on relevant grounds with
support in the evidence, that the grant of a parole date is
premature for reasons of public safety.” (Id. at p. 1071.)
Dannenberg also said, “if the circumstances of a particular
murder persuade the Board that the prisoner . . . is presently
too dangerous to grant a fixed parole release date, the Board
may deny parole without deciding when the inmate will be
released . . . .” (Id. at p. 1080.) The Legislature left a
“‘“consideration of the public safety” as the fundamental
criterion in assessing suitability.’” (Ibid.)
When evaluating whether a commitment offense alone can
support such a finding, Rosenkrantz, supra, 29 Cal.4th 616,
explained, “a denial of parole based upon the nature of the
offense alone might rise to the level of a due process
violation--for example 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.
8 On the other hand, Rosenkrantz, supra, 29 Cal.4th 616, said
that if the Board’s consideration “of the specified factors” was
not supported by some evidence, the court should order the Board
to vacate its decision. (Id. at p. 658.)

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. . . ‘Therefore, a life term offense or any other offenses
underlying an indeterminate sentence must be particularly
egregious to justify the denial of a parole date.’ [Citation.]”
(Id. at p. 683.) The four justice majority in Dannenberg took
the position the Rosenkrantz formulation, including the use of
the phrase “particularly egregious,” conveyed only that the
violence or viciousness of the inmate’s crime must be more than
minimally necessary to convict him of the offense for which he
is confined. (Dannenberg, supra, 34 Cal.4th at p. 1095.)
California courts applying Rosenkrantz have indicated there
must be some evidence of current dangerousness in order to deny
parole. For example, In re Lee (2006) 143 Cal.App.4th 1400,
said: “The test is not whether some evidence supports the
reasons the [Board] cites for denying parole, but whether some
evidence indicates a parolee’s release unreasonably endangers
public safety. (Cal. Code Regs., tit. 15, § 2402, subd. (a)
[parole denied if prisoner ‘will pose an unreasonable risk of
danger to society if released from prison’]; see, e.g., In re
Scott (2005) 133 Cal.App.4th 573, 595 [‘The commitment offense
can negate suitability [for parole] only if circumstances of the
crime . . . rationally indicate that the offender will present
an unreasonable public safety risk if released from prison’];
but see In re Lowe (2005) 130 Cal.App.4th 1405 [suggested ‘some
evidence’ applies to the factors, not dangerousness].) Some

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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 pp. 1408-1409, italics and fn. omitted [appellate
court vacated the Governor’s decision to deny parole and
reinstated the Board’s decision to grant parole to an 82-year-
old prisoner after almost 20 years in prison].) Since Lee
reversed a decision by the Governor rather than the Board, a
question may arise as to whether this test improperly reweighs
the evidence in contravention of the Governor’s constitutional
authority to review the Board’s decision, but such an objection
would not apply to the Board’s authority, which is founded in
statutory rather than constitutional law. The test as described
in Lee was arguably dictum with respect to one of the Governor’s
reasons for denying parole, in that Lee concluded there was no
evidence to support the Governor’s characterization of the crime
as atrocious or especially heinous. (Id. at pp. 1409-1412.)
However, Lee did apply the test to the other factor relied upon
by the Governor, i.e., that the prisoner’s acceptance of
responsibility was too recent. Lee said this reason did not
provide some evidence to deny parole, because, “[t]o deny
parole, the reason must relate to a defendant’s continued
unreasonable risk to public safety. So long as Lee genuinely

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accepts responsibility, it does not matter how longstanding or
recent it is.” (Id. at p. 1414.)
We conclude that, to satisfy California due process
principles, the test is not whether some evidence supports the
Board’s cited reasons for denying parole, but whether some
evidence supports the Board’s determination that the prisoner’s
release would unreasonably endanger public safety (which of
course will necessarily incorporate the need for evidence of
unsuitability factors relied upon by the Board).
As we shall explain in a moment, we conclude the denial of
parole to Parker violates due process under the California
Constitution, and we therefore need not decide whether it also
violates federal due process (a point expressly left undecided
in Rosenkrantz, supra, 29 Cal.4th at p. 658, fn. 12.) We
nevertheless make note of In re Roderick (2007) 154 Cal.App.4th
242, which discussed federal case law in affirming a trial
court’s order directing the Board to vacate its denial of
parole, where only one of five unsuitability factors cited by
the Board constituted some evidence to deny parole, and that one
factor--the prisoner’s past criminal history--had diminishing
predictive value due to its immutable nature, and the appellate
court could not conclude the Board would have denied parole
based on that one factor alone. Roderick said, “‘the parole
board’s sole supportable reliance on the gravity of the offense

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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.’” (Id. at p. 276, citing
Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910.) “‘“[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 . . . 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.]”’”9 (Roderick, supra, 154 Cal.App.4th at p. 276,
9 Regarding this reference to proportionality in Rosenkrantz,
supra, 29 Cal.4th at p. 683, the California Supreme Court later

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citing Rosenkrantz, supra, 29 Cal.4th at p. 683.) A dissenting
justice in Roderick believed Biggs had been abrogated by Sass v.
California Bd. of Prison Terms (9th Cir. 2006) 461 F.3d 1123,
but the Roderick majority disagreed, stating the message of
Biggs, Sass, and other cases, was that the Board “‘can look at
immutable events, such as the nature of the conviction offense
and pre-conviction criminality, to predict that the prisoner is
not currently suitable for parole even after the initial denial
[citation], 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 [citations]. . . . Not only does the passage
of time in prison count for something, exemplary behavior and
rehabilitation in prison count for something . . . . [The
standard for denying parole] might be quite low, but it does
require that the decision not be arbitrary.’” (Roderick, supra,
154 Cal.App.4th at p. 277.)
Roderick, supra, 154 Cal.App.4th 242, held that, of five
factors relied upon by the panel in denying parole, only one --
the prisoner’s past criminal history -- constituted some
evidence to conclude that he would pose an unreasonable risk of
held the Board is not required to engage in a comparative
analysis of the prisoner’s case with other cases. (Dannenberg,
supra, 34 Cal.4th at p. 1098.) We do not and need not engage in
such an analysis.

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danger if released. (Id. at p. 278.) The court could not say
the Board would have denied parole based on that one factor
alone, given his exemplary behavior during 20 years of
incarceration. Accordingly, Roderick ordered the Board to
vacate the denial of parole and to conduct a new parole
suitability hearing, at which the Board must consider whether
denial of parole based upon the immutable factor of past
criminal history would be a denial of due process. (Ibid.)
We agree with Roderick, supra, 154 Cal.App.4th 242. The
test is whether there is some evidence of current dangerousness,
not merely whether there is some evidence of factors tending to
show unsuitability for parole. We disagree with the Attorney
General’s characterization of this result as an impermissible
reweighing of the Board’s decision.
Accordingly, we conclude that, to satisfy due process, the
test is not whether some evidence supports the Board’s finding
of factors tending to show unsuitability for parole, but whether
some evidence supports the Board’s determination that the
prisoner’s release would unreasonably endanger public safety
(which of course will necessarily incorporate the need for
evidence of unsuitability factors relied upon by the Board).
III. Application to This Case
The Attorney General’s appeal contends the trial court
erred in failing to defer to the Board’s decision and in

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concluding the Board may not base its decision on the commitment
offense and pre-conviction misconduct. We shall conclude the
trial court correctly found a due process violation.
First, we disregard the Attorney General’s argument that
this was an “execution-style” killing, a factor which would
support denial of parole. Parker notes this factor was not
established at the parole hearing or relied upon by the Board.
Parker also notes the regulations prohibit housing execution-
style murderers in Level II housing (Cal. Code Regs., tit. 15,
§ 3375.2, subd. (a)(7)(A)), which is where Parker is housed. We
accordingly disregard the Attorney General’s argument about an
execution-style killing.
The parole panel relied on three factors in denying parole:
(1) The callousness of the commitment offense, in which the
victim was shot and left to die of shock and hemorrhage in a
remote area; (2) Parker’s escalating pattern of criminal conduct
before the commitment offense; and (3) Parker’s unstable social
history of substance abuse (which led to the criminal history).
The panel described the alcohol problem as “the most worrisome.”
The parole panel balanced these negative factors against the
factors favoring parole, i.e., family support, a job offer, good
work in prison including AA and vocational programs, and support
from the District Attorney, the judge, and the probation
officer.

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Some evidence supports each of the negative factors cited
by the Board for denying parole. Parker disputes this point,
arguing his passive participation in the killing was not
especially heinous. He also argues the commitment offense
should not be considered as an escalation of criminal history,
and without the murder there was no escalation of his crimes,
which were mostly DUIs. We reject Parker’s view, which
discounts the evidence of his active participation in the crime
and which fails to persuade us that the murder cannot be
considered part of the escalating pattern of criminal behavior.
Parker says the Board was required to accept his version of
events (portraying himself as an unwitting bystander), because
that is the version the prosecutor presented as truth at the two
trials of codefendant Bennett. Parker cites a letter submitted
by the District Attorney’s investigator, stating that Parker’s
testimony in Bennett’s two trials was “honest, forthright and
was corroborated by testimony of other witnesses and physical
evidence.” Parker argues this shows the state has always
accepted Parker’s version of the homicide. However, although
Parker’s credibility as a witness would have been at issue in
Bennett’s trials, Parker’s own level of culpability was not
directly at issue in Bennett’s trials, where the issue was
Bennett’s guilt. Therefore, the Board is not bound by the

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prosecution’s presentation of Parker’s version at Bennett’s
trial.
Parker notes the state’s own Life Prisoner Evaluation
Report found as mitigating factors that Parker was “a passive
participant or played a minor role in the commission of the
crime” and “with no apparent predisposition to do so, was
induced by other’s [sic] to participate in the crime.” However,
both quotations still characterize Parker as a participant in
the killing.
Parker cites In re Scott (2005) 133 Cal.App.4th 573, which
noted the Governor, in reviewing the parole decision, said that
although the prisoner (who was found guilty of first-degree
felony-murder but was allowed to be convicted upon a plea of
guilty to second degree murder in exchange for waiver of his
right to appeal) did not need to recant his self-defense-like
claim to be found suitable for parole, the Governor did not need
to accept Scott’s version of events. (Id. at pp. 580, 599.)
The appellate court said the trouble with the Governor’s
rationale was that there was no evidence in the record
justifying the rejection of Scott’s self-defense-like claim.
(Ibid.)
Here, however, there is evidence supporting rejection of
Parker’s version of events. Thus, the probation report recites
the preliminary hearing testimony of witness Neal Herr, who

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testified Parker argued with the victim; Parker and Bennett both
slapped and kicked the victim before placing him in the trunk of
the car; Parker held the shotgun as they drove to the scene of
the shooting and said the victim “snitched off somebody’s
uncle”; Parker handed the shotgun to Bennett at the killing
site; and Parker returned to the car with the victim’s wallet
and car keys.
Lee, supra, 143 Cal.App.4th at page 1414, said the prisoner
initially tried to justify his shooting of the victims on the
ground one of them had victimized him earlier. By pleading
guilty to second degree murder, he necessarily acknowledged his
guilt. His disclaimer of responsibility in the ensuing years
“makes sense only as his trying to emphasize [the] death was
accidental, not intentional--a distinction the record supports
and the People do not dispute.” (Ibid.) Here, the Board could
take a similar charitable approach to Parker’s disclaimers.
However, in Lee, “by the time of his last parole hearing, [the
prisoner’s] acceptance of responsibility for his crimes was
complete.” (Ibid.) Here, in contrast, at the parole hearing
which is the subject of this appeal, Parker continued to
minimize his participation in the killing to such an extent that
he would not be guilty of murder at all.

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Parker argues we must compare the callousness of this crime
to other crimes documented in case law. We decline to consider
this argument, since we rule in Parker’s favor on other grounds.
Parker argues there is no evidence supporting the Board’s
finding of an “unstable social history,” because regulation
2402, subdivision (c), defines that term as “a history of
unstable or tumultuous relationships ‘with others.’” However,
regulation 2402, subdivision (b), states the listed factors are
not exclusive. Whether Parker’s alcoholism is labeled as an
unstable social history or something else, the result is the
same. Parker cites Thompson v. Davis (9th Cir. 2002) 282 F.3d
780, for the proposition that his alcoholism triggers the
protections of the Americans with Disabilities Act (42 U.S.C.
§ 12132 (ADA)), which prevents discrimination against addicts in
recovery. However, Thompson merely held a trial court erred in
determining the ADA could not apply to parole decisions and
therefore erred in dismissing an action for injunctive relief by
prisoners who claimed the Board had an unwritten policy of
automatically denying parole to prisoners with substance abuse
histories. (Id. at pp. 782-782, 786-787.) Thompson expressly
stated it expressed no opinion on the merits. (Id. at p. 787.)
We conclude the Board was entitled to consider Parker’s
alcoholism as a factor, and Parker fails to show an ADA
violation.

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33
Some evidence supports the specific unsuitability factors
cited by the Board.
However, the fact that there is some evidence supporting
the negative factors does not end the inquiry. As we have
concluded, due process dictates that we go further, because the
commitment offense and prior criminal history are immutable
events that lose their predictive value over time. We shall
conclude the reasons cited by the Board do not provide some
evidence that Parker would pose an unreasonable public safety
risk if released.
Although the commitment offense was callous (leaving the
victim to die from gunshot wounds in a remote area), the passage
of 17 years10 since the crime has diminished the value of this
factor as a predictor of current dangerousness, particularly
10 Parker has been incarcerated since August 1987 for the
commitment offense, but the judgment of his conviction was
entered in 1991. It appears the delay was because his plea
bargain was dependent on his testifying in Bennett’s trial, and
Bennett’s first trial ended in a mistrial. Parker counts the
full 20 years he has been incarcerated for the 1987 murder (17
years as of the date of the parole hearing which is the subject
of this appeal). The Attorney General, without argument or
analysis, counts only from the 1991 date of conviction to the
2004 parole hearing, a calculation of 13 years, which is less
than the 15 year minimum sentence. We believe it is appropriate
to count the full 17 years of incarceration for the commitment
offense as of the date the Board made its decision, since the
abstract of judgment reflects credit for Parker’s preconviction
jail custody.

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34
since (1) the correctional counselor in the 2004 Life Prisoner
Evaluation Report recommended release and assessed Parker as a
low threat to the public; (2) Parker was not the shooter and
apparently participated in the crime due, at least in part, to
his fear of the shooter; and (3) Parker’s exemplary behavior in
prison reflects rehabilitation.
Similarly, the prior criminal history, mostly misdemeanor
DUIs, has lost its predictive value, particularly in light of
the foregoing points plus his exemplary participation in AA and
strong family support upon his release.
The problem for Parker is the concern that he may revert to
his criminal behavior if he succumbs to alcohol upon his release
from prison. Thus, Parker cites the 2000 psychological report
assessing his violence potential as no more than that of the
average citizen, but the report qualified that assessment “as
long as he remains alcohol-free.” Although Parker has
participated in AA for several years, his incarceration has
prevented a test of his resolve to stay away from alcohol. Of
course, this too is an immutable factor which Parker is
powerless to change until he is given an opportunity to live
outside prison. However, even if the alcohol problem provided
some evidence supporting denial of parole, we would still remand
to the Board. Thus, an appellate court may uphold a Board’s
decision if the court finds evidence supporting some but not all

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35
of the factors relied upon by the Board, and the court can
conclude the Board would have reached the same decision based on
the supported factors alone, and the supported factors justify
the determination of current dangerousness. (In re DeLuna
(2005) 126 Cal.App.4th 585, 598.) However, if it is not clear
that the Board would have reached the same decision, the
appropriate remedy is to direct the Board to reconsider the
matter. (Ibid.) Here, it is not clear the Board would have
denied parole based on Parker’s potential for alcohol abuse
alone.
We conclude the record fails to show “some evidence”
supporting the Board’s denial of parole based on the factors
cited by the Board. We reach our conclusion without engaging in
a proportionality review and therefore need not address Parker’s
argument--disputed by the Attorney General--that a comparative
analysis with other cases is required in order to prevent the
regulatory language from being unconstitutionally vague. (But
see, Dannenberg, supra, 34 Cal.4th at pp. 1077-1098, holding the
Board need not engage in a comparative analysis.)
We do, however, see reasons not cited by the Board which
might arguably support a denial of parole, raising the question
whether we can affirm a denial of parole for reasons other than
those cited by the Board. We shall conclude the answer is “no.”

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36
Thus, though not cited by the Board as a factor for denying
parole and though not argued by the Attorney General, Parker
continues to deny his own participation in the murder, despite
having pled guilty to second degree murder. Regulation 2402
lists remorse as a factor tending to show suitability for parole
(regulation 2402, subdivision (d)(3)) but does not expressly
list lack of remorse as a factor tending to show unsuitability
(regulation 2402, subdivision (c)). Nevertheless, the
regulation expressly states the list is not exclusive
(regulation 2402, subdivision (c)), and also expressly lists
“past and present attitude toward the crime” as information to
be considered in determining suitability for parole (regulation
2402, subdivision (b)). On the other hand, “The Board of Prison
Terms shall not require, when setting parole dates, an admission
of guilt to any crime for which an inmate was committed.”
(§ 5011.) There is conflicting evidence in the record as to
whether Parker feels remorse for his role in the killing or
merely feels regret for not calling 911. It appears from
Parker’s statement at the parole hearing that he does not feel
culpable for the killing. Rather, he continues to portray
himself as an unwitting bystander to the murder who had no idea
what was happening until it was too late. He faults himself
only for failing to protect his friend from the shooter and
failing to call 911, and even that self-castigation is tempered

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37
by his explanation that he was afraid of Bennett. We do not
have before us the transcript of the court proceedings in which
the court accepted Parker’s guilty plea to second degree murder,
but it is difficult to believe any trial court would have
accepted a guilty plea to second degree murder had the court
been told the factual basis for the plea was that Parker was an
unwitting bystander who was too afraid of the shooter to stop
him and who failed to call 911 to assist the victim.
An additional reason arguably supporting denial of parole
is that Parker at the parole hearing in 2004 also sought to
minimize his prior criminal history, blaming it on a disgruntled
girlfriend whose mother worked as a police dispatcher.
In short, Parker has refused to accept responsibility for
any of his criminal conduct. Nevertheless, the Board did not
cite this reason in denying parole at the 2004 parole hearing
which is the subject of this appeal.11
In the absence of argument and analysis by the Attorney
General, we decline to affirm denial of parole based on reasons
not cited by the Board. (See § 3041.5, subd. (b)(2) [in denying
parole, Board must give prisoner “a written statement setting
11 The parole panel did cite Parker’s lack of remorse at a
January 2007 hearing, where the panel, pursuant to the trial
court’s order, gave Parker a parole date but declined to find
him suitable for parole. The 2007 hearing is not the subject of
this appeal.

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forth the reason or reasons for refusal to set a parole date,
and suggest activities in which he or she might participate that
will benefit him or her while he or she is incarcerated”; In re
Van Houten, supra, 116 Cal.App.4th at pp. 358, 360 [Board does
not need to state reasons why it found negative factors
outweighed positive factors].)
We conclude there is not “some evidence” of current
dangerousness based on the reasons given by the Board for
denying parole. Accordingly, the Board’s decision violates due
process as guaranteed by our state Constitution, and the trial
court correctly ordered the Board to vacate its decision and
reconsider the matter.
B. Discretion on Remand
We agree with the Attorney General, however, that the trial
court erred in directing the Board to grant parole, rather than
allowing the Board to exercise its discretion.
Thus, if the court concludes the Board’s decision to deny
parole is unsupported by some evidence, “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.
[Citation.]” (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
Parker cites California and federal cases ordering
immediate release of the prisoner, but in the distinguishable

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circumstance where the appellate court was reinstating the
Board’s decision to grant parole after vacating the Governor’s
rejection of the Board’s decision. (E.g., In re Smith (2003)
109 Cal.App.4th 489.) That circumstance is not present in this
case.
Parker also cites McQuillion v. Duncan (9th Cir. 2002) 306
F.3d 895, and McQuillion v. Duncan (9th Cir. 2003) 342 F.3d
1012, which held the Board improperly rescinded its decision to
grant parole. Thus, that case also reinstated the Board’s
decision to grant parole--a circumstance not present in the case
before us.
Here, as we have noted, the record contains evidence which
might support a denial of parole but which the Board did not
cite as reasons for denying parole. We cannot determine from
the 2004 hearing transcript whether the Board considered that
evidence inconsequential, or whether the Board considered that
evidence unnecessary in light of the Board’s view that the
reasons it gave were sufficient.
On remand, we leave it to the Board to exercise its
discretion.
DISPOSITION
The trial court’s order vacating the Board of Parole
Hearings’ decision and directing the Board to reconsider the
matter is affirmed.

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40
The trial court’s order is reversed insofar as it directs
the Board of Parole Hearings to grant parole to Parker.
SIMS , Acting P.J.
We concur:
RAYE , J.
BUTZ , J.

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