In re Armstrong

Filed 6/2/08 In re Armstrong CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re HOWARD ARMSTRONG
on
Habeas Corpus.
D051629
(San Diego County
Super. Ct. No. HC18110)
Appeal from an order of the Superior Court of San Diego County, George W.
Clarke, Judge. Affirmed.
Howard Armstrong was sentenced in 1988 to 17 years to life in prison after a jury
found him guilty of second degree murder with a firearm. Armstrong, now 53 years old,
has remained in prison for nearly 20 years. After several unsuccessful parole hearings,
the Board of Prison Terms (BPT), now the Board of Parole Hearings, found him suitable
for parole at his 2006 suitability hearing when it concluded Armstrong did not pose an
unreasonable risk of danger to society if released. However, Governor Arnold
Schwarzenegger reversed the BPT's decision, finding Armstrong posed an unreasonable
risk of danger to society if released. Armstrong successfully petitioned the trial court for
a writ of habeas corpus in the trial court. Ben Curry, acting warden of the Correctional

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Training Facility (Warden), appeals the trial court's order granting Armstrong's petition
for a writ of habeas corpus, arguing Governor Schwarzenegger's decision was supported
by some evidence and therefore must affirmed.
I
FACTS
A. The Commitment Offense
In 1986 Armstrong was a drug dealer. The victim, Mr. Sanders, was one of
Armstrong's customers. On multiple occasions, Sanders had defaulted on his drug debts
to Armstrong and Armstrong reacted by pointing a gun at Sanders's head as a threat. On
one occasion, Armstrong pointed an unloaded gun at Sanders's head, pulled the trigger,
and said "I'm going to kill you like this."
On October 24, 1986, Armstrong went to Sanders's apartment with a loaded gun.
Sanders's body was discovered that morning with a near-contact gunshot wound to the
forehead. Armstrong admitted he fired the lethal shot. One witness told police the
witness had spoken with Armstrong after the shooting and Armstrong admitted he had
gone over to the apartment to "take care of [Sanders]" and had done so. Another witness
told police Armstrong stated he had "some trouble" with Sanders and went to his
apartment to "rough [Sanders] up but [he] got cocky" and "I lost my temper and I hurt
him pretty good."
Armstrong claimed the shooting was an accident. He went to Sanders's apartment
and found a note attached to the front door demanding Sanders pay a debt owed to others.
In Armstrong's version of the events, he entered the apartment with his gun drawn, found

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it had been ransacked, and located Sanders. An argument ensued, and Sanders jumped
up as though to attack Armstrong. In response, Armstrong swiped his gun hand at
Sanders to fend him off. The gun fired once and killed Sanders.
Armstrong was 31 years old at the time of the murder. A jury convicted him of
second degree murder, with a true finding on the use of a firearm allegation, and he was
sentenced to a prison term of 17 years to life.
B. Armstrong's Performance in Prison
Armstrong remained entirely discipline free during his incarceration. In addition
to his unblemished discipline record, he furthered his vocational training through
numerous programs, became involved in the Alcoholics Anonymous and Narcotics
Anonymous programs, and consistently received laudatory reviews from prison staff.
His numerous psychological reports during the past few years have been favorable and
stated his potential for violence was no greater than that of the average citizen in the
community.
C. Other Suitability Factors
Armstrong had marketable skills, realistic parole plans, and available support from
his family and his stable marriage. Armstrong had no prior criminal record. At the time
of the murder, Armstrong was undergoing significant stress in his life, including the loss
of his job and the break-up of a long-term relationship associated with his drug use.

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II
HISTORY OF PROCEEDINGS
A. The Prior BPT Proceedings
Armstrong's minimum eligible parole date was in 1998. Although Armstrong
apparently had several hearings before the BPT during the next eight years, the BPT
found him unsuitable for parole at each of the prior hearings.
However, at his 2006 parole hearing, the BPT concluded Armstrong was suitable
for parole. The BPT considered Armstrong's testimony at the hearing, as well as the
written reports. The BPT relied on his realistic parole plans and marketable skills, his
demonstrated commitment to sobriety, his remorse and insight into his behavior, and his
maturation and conduct during the previous 18 years to find he did not pose an
unreasonable risk of danger to society if released on parole.
In November 2006 Governor Arnold Schwarzenegger reversed the BPT's decision
because he found Armstrong did pose an unreasonable risk of danger to society if
released. The reason given for this finding was that the crime was especially aggravated
because it involved some premeditation.1 Governor Schwarzenegger found the "gravity
1 The Governor's decision also mentions that Armstrong had not yet secured a job
offer, and finding a way to financially support himself would be essential to Armstrong's
success on parole. Additionally, the Governor stated that "[a]lthough Mr. Armstrong
says he is remorseful and accepts responsibility for his actions, he maintains that the
shooting was an accident." However, the Governor's decision did not find that
Armstrong's lack of a job made his release dangerous to the community, and he did not
find that Armstrong in fact did not have remorse for his actions that made him a danger to
the community. We therefore confine our review to the evidence of unsuitability credited
by the Governor and do not consider unsuitability factors apparently discounted by the

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of the murder perpetrated by Mr. Armstrong presently outweighs the positive factors
[and] I believe [Armstrong's] release would pose an unreasonable risk of danger to
society at this time."
The Habeas Proceedings
Armstrong petitioned the San Diego County Superior Court for a writ of habeas
corpus, alleging Governor Schwarzenegger's reversal of the BPT's decision violated his
due process and equal protection rights because the governor's unsuitability
determination was not supported by the evidence, was arbitrary and capricious, and was
incorrectly based solely on the offense. The trial court issued an order to show cause, and
specifically invited the Governor in his return to articulate " 'why [Armstrong's]
underlying crime continues to make him an unreasonable risk to public safety.' " The
trial court, concluding that neither the original decision nor the return to the order to show
cause answered this inquiry, found the Governor's decision was not supported by some
evidence. Accordingly, the trial court vacated the Governor's decision and reinstated the
BPT's determination granting Armstrong's parole.
Warden appeals the trial court's order, arguing the Governor's decision was
supported by some evidence. We conclude the Governor's decision reversing the BPT's
order violated due process because the Governor's finding that Armstrong posed an
unreasonable danger if released was contrary to the only reliable evidence of his current
dangerousness.
Governor. (In re Elkins (2006) 144 Cal.App.4th 475, 493 (Elkins); In re DeLuna (2005)
126 Cal.App.4th 585, 593-594.)

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III
LEGAL STANDARDS
A. The Parole Decision
The decision whether to grant parole is a subjective determination (In re
Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a
number of factors, some objective, identified in Penal Code section 3041 and the BPT's
regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) The Governor's decision to
affirm, modify, or reverse the decision of the BPT is based on the same factors that guide
the BPT's decision (Cal Const., art. V, § 8(b)), and is based on "materials provided by the
parole authority." (§ 3041.2, subd. (a).) "Although these provisions contemplate that the
Governor will undertake an independent, de novo review of the prisoner's suitability for
parole, the Governor's review is limited to the same considerations that inform the
Board's decision." (Rosenkrantz, at pp. 660-661.)
In making the suitability determination, the BPT and the Governor must consider
"[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b); hereafter,
reference to section 2042 refers to the regulations), including the nature of the
commitment offense and behavior before, during, and after the crime; the prisoner's
social history; mental state; criminal record; attitude toward the crime; and parole plans.
(§ 2402, subd. (b).) The circumstances that tend to show unsuitability for parole include
that the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel

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manner;2 (2) possesses a previous record of violence; (3) has an unstable social history;
(4) has previously sexually assaulted another individual in a sadistic manner; (5) has a
lengthy history of severe mental problems related to the offense; and (6) has engaged in
serious misconduct while in prison. (§ 2402, subd. (c).) A factor that alone might not
establish unsuitability for parole may still contribute to a finding of unsuitability. (Id. at
subd. (b).)
Circumstances tending to show suitability for parole include that the inmate: (1)
does not possess a record of violent crime committed while a juvenile; (2) has a stable
social history; (3) has shown signs of remorse; (4) committed the crime as the result of
significant stress in his life, especially if the stress had built over a long period of time;
(5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any
significant history of violent crime; (7) is of an age that reduces the probability of
recidivism; (8) has made realistic plans for release or has developed marketable skills that
can be put to use on release; and (9) has engaged in institutional activities that show an
enhanced ability to function within the law on release. (§ 2402, subd. (d).)
These criteria are "general guidelines," illustrative rather than exclusive, and "the
importance attached to [any] circumstance [or combination of circumstances in a
2 Factors that support the finding the crime was committed "in an especially
heinous, atrocious or cruel manner" (§ 2402, subd. (c)(1)), 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.

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particular case] is left to the judgment of the [BPT]." (Rosenkrantz, supra, 29 Cal.4th at
p. 679; § 2402, subds. (c), (d).) Thus, the endeavor is "to predict by subjective analysis
whether the inmate will be able to live in society without committing additional antisocial
acts." (Rosenkrantz, at p. 655.) Because parole unsuitability factors need be found by
only a preponderance of the evidence, the Governor may consider facts other than those
found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.)
B. Standard for Judicial Review of Parole Decisions
Rosenkrantz
In Rosenkrantz, the California Supreme Court addressed the standard the court
must apply when reviewing parole decisions by the executive branch. The court first
held that "the judicial branch is authorized to review the factual basis of a decision of the
[BPT] denying parole in order to ensure that the decision comports with the requirements
of due process of law, but that in conducting such a review, the court may inquire only
whether some evidence in the record before the [BPT] supports the decision to deny
parole, based on the factors specified by statute and regulation." (Rosenkrantz, supra, 29
Cal.4th at p. 658.) Rosenkrantz further held "courts properly can review a Governor's
decisions whether to affirm, modify, or reverse parole decisions by the [BPT] to
determine whether they comply with due process of law, and that such review properly
can include a determination of whether the factual basis of such a decision is supported
by some evidence in the record that was before the [BPT]." (Id. at p. 667.)
The some evidence standard is extremely deferential and requires "[o]nly a
modicum of evidence." (Rosenkrantz, supra, 29 Cal.4th at p. 677.) A court may not

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vacate an administrative decision subject to the some evidence review simply because it
disagrees with the assessment of the Governor. (Id. at p. 679.) The decision must be
"devoid of a factual basis" to be overturned. (Id. at p. 658.) Because judicial review of a
parole denial is to ensure a decision is not arbitrary and capricious, thereby depriving the
prisoner of due process of law, "the court may inquire only whether some evidence in the
record before the [BPT] supports the decision to deny parole, based upon the factors
specified by statute and regulation." (Id. at pp. 657-658.)
The discretion over parole suitability determinations, although broad, is not
absolute. (In re Scott (2004) 119 Cal.App.4th 871, 884.) Rosenkrantz explained "that
the judicial branch is authorized to review the factual basis of a decision of the [BPT]
denying parole in order to ensure that the decision comports with the requirements of due
process of law, but that in conducting such a review, the court may inquire only whether
some evidence in the record before the [BPT] 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 [BPT] to vacate its decision denying parole and thereafter to proceed in
accordance with due process of law." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) Thus,
the extremely deferential standard, although vesting in the Governor the power to resolve
evidentiary conflicts and assign the weight to be given to the evidence (id. at p. 677), is
not the equivalent of judicial abdication, because the court must be satisfied the evidence
substantiates the ultimate conclusion that the prisoner's release currently poses an

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unreasonable risk of danger to the public. (In re Lee (2006) 143 Cal.App.4th 1400, 1408
(Lee).) It violates a prisoner's right to due process for the Governor to attach significance
to evidence that forewarns no danger to the public or relies on an unsupported
conclusion. (See, e.g., In re DeLuna, supra, 126 Cal.App.4th at p. 597 [BPT concluded,
contrary to psychological evaluations, that inmate needed therapy, and faulted inmate
facing deportation for failing to learn English]; In re Scott (2005) 133 Cal.App.4th 573,
597-603 (Scott) [Governor misconceived inmate's history of violent crime and nature of
the commitment offense]; Lee, at pp. 1411-1414 [Governor overstated seriousness of
commitment offense and improperly faulted inmate for late acceptance of
responsibility].)
The Scott/Lee Application of Rosenkrantz
In Scott and Lee, the courts sought to reconcile Rosenkrantz's deferential some
evidence standard with the Supreme Court's commensurate recognition that two other
principles must also guide appellate review of a parole decision: the inmate has a liberty
interest in the hope for parole and the central inquiry under the statutory scheme must
remain focused on whether the inmate would currently pose a danger to society if
released on parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 654-655, 683.) In Scott and
Lee, the courts sought to apply Rosenkrantz's standards where the sole reason3 for
3 Although both Scott and Lee examined decisions by the Governor that cited one
factor in addition to the circumstances of the offense, those courts found no evidentiary
support for the added reason. (Scott, supra, 133 Cal.App.4th at p. 603; Lee, supra, 143
Cal.App.4th at p. 1414.)

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denying parole was that the circumstances of the offense involved conduct above the
minimum necessary to commit the offense.4
In Scott, the court cautioned that, where the sole basis for denying parole is that
the gravity of the offense showed the inmate posed a current danger if released, the test to
be applied "must be properly understood" to encompass a recognition that "[t]he
commitment offense is one of only two factors indicative of unsuitability a prisoner
cannot change (the other being his 'Previous Record of Violence'). Reliance on such an
immutable factor 'without regard to or consideration of subsequent circumstances' may
be unfair [citation], and 'runs contrary to the rehabilitative goals espoused by the prison
system and could result in a due process violation.' [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. Yet, the predictive value of the commitment offense
4 Rosenkrantz, explaining why the nature of the offense must "involve particularly
egregious acts beyond the minimum necessary to sustain a conviction for second degree
murder," stated that, "In some circumstances, 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. Denial of parole
under these circumstances would be inconsistent with the statutory requirement that a
parole date normally shall be set 'in a manner that will provide uniform terms for offenses
of similar gravity and magnitude in respect to their threat to the public. . . .' [Citation.]
'The [BPT's] authority to make an exception [to the requirement of setting a parole date]
based on the gravity of a life term inmate's current or past offenses should not operate so
as to swallow the rule that parole is 'normally' to be granted. . . . [¶] 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.' [Quoting In re Ramirez (2001) 94
Cal.App.4th 549, 570.]" (Rosenkrantz, supra, 29 Cal.4th at p. 683, italics added; accord,
In re Dannenberg (2005) 34 Cal.4th 1061, 1094-1095.)

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may be very questionable after a long period of time. [Citation.] Thus, denial of release
solely on the basis of the gravity of the commitment offense warrants especially close
scrutiny" on appeal. (Scott, supra, 133 Cal.App.4th at pp. 594-595, italics added, fns.
omitted.)
The Lee court, also seeking to apply Rosenkrantz's test, noted evidence that a
commitment offense involved conduct above the minimum necessary to commit the
offense is not the end of the inquiry because such evidence "does not necessarily equate
to some evidence the [inmate's] release [on parole] unreasonably endangers public
safety." (Lee, supra, 143 Cal.App.4th at p. 1409, fn. omitted.) Lee also echoed Scott's
sentiments when Lee confirmed that the lengthy passage of time in its case made the
"crimes have little, if any, predictive value for future criminality." (Id. at p. 1412.)5
Other courts have agreed the appropriate inquiry focuses not on whether a reason
given by the Governor finds evidentiary support, but instead on whether the evidence
supports the conclusion of dangerousness. (See In re Tripp (2007) 150 Cal.App.4th 306,
313 [" 'Only a modicum of evidence is required.' . . . On the other hand, the evidence
must substantiate the ultimate conclusion that the prisoner's release currently poses an
5 The federal courts have also recognized the diminishing value of the
circumstances of the offense as it recedes into history. Although it is true that "the
circumstances of the crime and motivation for it may indicate a petitioner's instability,
cruelty, impulsiveness, violent tendencies and the like . . . , after fifteen or so years in the
caldron of prison life, not exactly an ideal therapeutic environment to say the least, and
after repeated demonstrations that despite the recognized hardships of prison, this
petitioner does not possess those attributes, the predictive ability of the circumstances of
the crime is near zero." (Irons v. Warden (E.D. Cal. 2005) 358 F.Supp.2d 936, 947, fn.2,
revd. Irons v. Carey (9th Cir. 2007) 505 F.3d 846.)

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unreasonable risk of danger to the public. [Citations.] It violates a prisoner's right to due
process when the Board or Governor attaches significance to evidence that forewarns no
danger to the public or relies on an unsupported conclusion."]; In re Barker (2007) 151
Cal.App.4th 346, 366 [same].) Additionally, other courts have declined to uphold a
denial of parole when the sole cited basis for finding current dangerousness was the
commitment offense where such offense was of increasingly ancient vintage and was
unaccompanied by more recent manifestations of continued antisocial tendencies. As
articulated by the court in Elkins, supra, 144 Cal.App.4th at pp. 498-499, "[t]he
commitment offense . . . is an unsuitability factor that is immutable and whose predictive
value 'may be very questionable after a long period of time [citation].' [Citing Scott,
supra, 133 Cal.App.4th at p. 595.] We have also noted, as has our Supreme Court, strong
legal and scientific support that 'predictions of future dangerousness are exceedingly
unreliable,' even where the passage of time is not a factor and the assessment is made by
an expert. [Citation.] Reliance on an immutable factor, without regard to or
consideration of subsequent circumstances, may be unfair, run contrary to the
rehabilitative goals espoused by the prison system, and result in a due process violation.
[Citation.]"6
6 Additionally, Elkins recognized that, where the gravity of the crime becomes the
central focus of the suitability hearing, the inmate is given a Hobson's choice, because
" '[a] parole hearing [also] does not ordinarily provide a prisoner a very good opportunity
to show his offense was not committed "in an especially heinous, atrocious or cruel
manner," even if such evidence exists and the prisoner is willing to run the risk his effort
to make such a showing will be seen as unwillingness to accept responsibility and
therefore evidence of unsuitability.' [Quoting Scott, supra, 133 Cal.App.4th at pp. 600-
601, fn. 13]." (Elkins, supra, 144 Cal.App.4th at p. 499.)

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Singler
The court in In re Singler (2008) 161 Cal.App.4th 281 (Singler)) examined
Rosenkrantz's deferential standard of judicial review considering the construction
articulated by the Scott/Lee/Elkins line of cases and distilled a slightly modified test for
judicial review of a denial of parole in those limited cases where the sole articulated
ground for denying parole was the facts of the offense. Singler first noted that, when it
originally considered the inmate's writ petition challenging the BPT's denial of parole, it
summarily denied the writ petition because it interpreted Rosenkrantz's deferential
standard of review as conferring on the BPT "great, indeed almost unlimited, discretion"
to predict future dangerousness (Singler, at p. 285), and under this strict interpretation of
Rosenkrantz, the Singler court originally believed it was constrained to affirm the denial
of parole if there was any evidence the commitment offense involved any conduct
beyond the minimum necessary to sustain a conviction for second degree murder.
(Singler, at pp. 285-286.) However, Singler then noted the Supreme Court subsequently
granted Singler's petition for review and transferred the matter back to the Singler court
with directions to vacate the denial of the petition "and to order the Board to show cause
why it 'did not abuse its discretion and violate due process in finding [the inmate]
unsuitable for parole . . . and why [the inmate] remains a danger to public safety,' "
followed immediately by citations to the specific pages of the Scott, Lee, and Elkins
cases construing Rosenkrantz in the manner discussed above. (Singler, at p. 286.)
The Singler court, noting its original disposition was reached based on a strict
construction of Rosenkrantz's "great deference" standard, stated that "[i]t appears,

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however, that in granting review and transferring the matter back to us for
reconsideration in light of additional authorities, the California Supreme Court believes
we construed the standard of review articulated in Rosenkrantz too narrowly and were too
deferential to the Board's finding. We reach this conclusion because of the specific
citations to authority included in the Supreme Court's order, i.e., authorities interpreting
Rosenkrantz in a manner that appears to give courts greater leeway in reviewing the
Board's finding that an inmate remains a danger to public safety" (Singler, supra, 161
Cal.App.4th at p. 299), and that "[t]he Supreme Court's order . . . indicates to us the
Supreme Court has endorsed subsequent Court of Appeal decisions that give courts
greater leeway in reviewing the Board's determination . . . ." (Id. at p. 287.)
Singler's review of the analysis contained in the passages in Scott, Lee, and Elkins
cited in the Supreme Court's remand order led Singler to conclude these cases applied a
"judicial gloss" on Rosenkrantz and created a slightly modified approach to judicial
review of parole denials based solely on the commitment offense. (Singler, supra, 161
Cal.App.4th at pp. 300-301.) Singler concluded, "[a]s we now understand the test
apparently embraced by the California Supreme Court, a court may overturn the Board's
denial of parole based solely on the nature of the commitment offense if (1) a significant
period of time has passed since the crime, (2) there is uncontroverted evidence of the
inmate's rehabilitation, and (3) the crime was not committed in such an especially
heinous, atrocious, or cruel manner so as to undermine the evidence that the inmate's
rehabilitative efforts demonstrate he no longer would be a danger to society if released on
parole." (Id. at p. 301.)

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Applying this analysis to the facts presented in Singler, the court concluded a
significant amount of time (nearly 25 years) had passed, the other suitability factors
(including an unblemished disciplinary record in prison) uniformly favored parole, and
the facts of the crime (although above the minimum necessary to sustain a conviction for
second degree murder) were not so " 'especially heinous, atrocious or cruel' [citation] as
to undermine the evidence that his rehabilitative efforts demonstrated he no longer would
be a danger to public safety if released on parole." (Singler, supra, 161 Cal.App.4th at
p. 301.) Accordingly, the Singler court ruled the circumstances of the commitment
offense did not provide evidence supporting denial of parole.
Conclusion
We agree that the discretion conferred on the Governor is broad but not absolute,
and the Scott/Lee/Elkins construction of Rosenkrantz gives substance to the role of the
judiciary to ensure due process is satisfied by closely reviewing the factual basis of a
decision finding the inmate's release currently poses an unreasonable risk of danger to the
public based solely on the facts of a decades-old offense. Accordingly, where a
significant period of time has passed since the crime, and there is uncontroverted
evidence of the inmate's rehabilitation, we will closely scrutinize the facts of the offense
to determine whether it was committed in such an especially heinous, atrocious, or cruel
manner that it would undermine the evidence that the inmate's rehabilitative efforts while
incarcerated demonstrate he or she no longer would be a danger to society if released on
parole.

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IV
ANALYSIS
The evidence on the "suitability" factors all favored the grant of parole to
Armstrong. He did not have a record of violent crime, either as a juvenile or as an adult.
He had a relatively stable social history, and committed the crime as the result of
significant stress in his life. He has made realistic plans for release and has marketable
skills that can be used on release. He has shown signs of remorse and accepted his
culpability for the murder. His age reduces the probability of recidivism, and his
unblemished 20-year record while incarcerated shows his capacity to function within the
law on release. (§ 2402, subd. (d).) The BPT concluded the evidence on these
considerations uniformly militated in favor of parole, and the Governor's decision
essentially left unchallenged the BPT's findings on these factors.
The Governor's only articulated ground for finding Armstrong posed an
unreasonable risk of danger to society was that the crime was especially aggravated
because it involved some premeditation. However, a significant period of time (nearly 20
years) had passed between the crime and the parole hearing. The evidence is also
uncontroverted that, during this 20 year hiatus, Armstrong committed no other violent
offense, either before being incarcerated or during his nearly 19 years of incarceration.
Indeed, during his time in prison, he did not commit a single infraction of prison rules
that might have suggested any lingering inability to conform his behavior to the
requirements of society. Instead, there is uncontroverted evidence of Armstrong's

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rehabilitative efforts while incarcerated, including his longstanding commitment to
sobriety to obviate a principal causative factor in his single violent episode.
We therefore must assess whether, despite the significant passage of time marked
by a consistent and uninterrupted pattern of conduct demonstrating Armstrong no longer
poses a danger to society, there is evidence suggesting Armstrong nevertheless remains a
danger to society. We must decide whether the evidence cited by the Governor shows the
crime was committed in such an especially heinous, atrocious, or cruel manner that the
Governor could conclude, despite two decades of untarnished behavior, Armstrong "will
be [un]able to live in society without committing additional antisocial acts."
(Rosenkrantz, supra, 29 Cal.4th at p. 655.)
The trial court and the BPT concluded, and we agree, that given the lengthy
passage of time and the gains made by Armstrong in prison, his 1986 crime does not
provide some evidence to support the conclusion he remains a danger today. The only
basis articulated in the Governor's decision for concluding the crime showed Armstrong
remains dangerous was that there was evidence Armstrong "premeditated on some level
to kill" the victim. Although the Governor is correct that premeditation goes "beyond the
minimum elements necessary to sustain a second-degree murder conviction,"
premeditation is not the equivalent of conduct by Armstrong during the crime that
depicted an especially heinous, atrocious, or cruel personality.7 Evidence of particularly
7 The types of actions by an inmate that might permit the Governor to conclude the
criminal conduct was especially depraved are absent here. There were not multiple
victims. Armstrong did not abuse, defile, or mutilate the victim during or after the
offense, and there was no other conduct demonstrating an exceptionally callous disregard

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heinous conduct could suggest a psychopathy so indelible that it might remain unabated,
even after the passage of a 20-year period marked by blameless conduct, and pose a
danger to society were the inmate released on parole. In contrast, although premeditation
can elevate the legal consequences of Armstrong's conduct by making him liable for first
degree murder, it is largely irrelevant to assessing an inmate's current dangerousness
because even an inmate convicted of first degree murder cannot be denied parole absent
some other evidence to support a finding he or she retains antisocial impulses that would
endanger society. (See, e.g., In re Barker, supra, 151 Cal.App.4th at pp. 370-378 [inmate
convicted of first degree murder entitled to parole where circumstances did not involve
particularly egregious conduct and no other evidence inmate posed an unreasonable risk
to public safety]; Elkins, supra, 144 Cal.App.4th at pp. 495-503 [same].)
Moreover, it appears Armstrong is rapidly approaching, and may have already
passed, the minimum eligible parole date (MEPD) even had he been convicted of first
degree murder. As recognized by Justice Moreno in his concurrence in Rosenkrantz, " 'In
some circumstances, 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.' . . . [¶] Although I agree that evidence
of premeditation and deliberation supports the conclusion that petitioner's crime was
for human suffering. Although Armstrong's motive for the crime did not justify the
murder, the impetus for the crime--an addict seeking payment from a recalcitrant buyer--
cannot be characterized as inexplicable or trivial. Finally, there was no evidence
Armstrong acted in a dispassionate, cold or calculated manner when he killed the victim.

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particularly egregious for a second degree murder, it is another matter whether any
evidence would support the same conclusion for a first degree murder. Other than felony
murders, first degree murders by definition involve premeditation and deliberation. . . .
Furthermore, petitioner's offense did not appear to partake of any of those characteristics
that make an offense particularly egregious under the Board of Prison Terms' parole
eligibility matrix for first degree murders . . . [¶] The significance of the above
observations is this: there will come a point, which already may have arrived, when
petitioner would have become eligible for parole if he had been convicted of first degree
murder. Once petitioner reaches that point, it is appropriate to consider whether his
offense would still be considered especially egregious for a first degree murder in order
to promote the parole statute's goal of proportionality between the length of sentence and
the seriousness of the offense. [Citation.] Under this circumstance, the justification for
denying his parole would become less clear, even under the deferential 'some evidence'
standard." (Rosenkrantz, supra, 29 Cal.4th at pp. 689-690, conc. opn. of Moreno, J.)
Because Armstrong might be nearing or may already have surpassed the MEPD
had his conviction had been for first degree murder, his continued incarceration "based
upon the nature of the offense alone might rise to the level of a due process violation"
(Rosenkrantz, supra, 29 Cal.4th at pp. 689-690, conc. opn. of Moreno, J.) because there is
no evidence his offense would qualify as an aggravated form of first degree murder.
Because premeditation during a commitment offense does not alone suffice to warrant
denial of parole when the inmate is otherwise eligible for parole and there is a complete
absence of any other evidence warranting a finding of current dangerousness, we

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conclude the trial court correctly held the Governor's decision was not supported by some
evidence.
DISPOSITION
The judgment of the trial court is affirmed, and the Governor's decision reversing
the 2006 BPT decision finding Armstrong suitable for parole and setting a parole date is
vacated. The stay issued by this court on October 31, 2007, is hereby vacated. As in
Elkins, supra, 144 Cal.App.4th at page 503, the BPT is ordered to release Armstrong
forthwith pursuant to the conditions set forth in the 2006 decision by the BPT. Because
Armstrong's release would have been final well over one year ago, and in the interests of
justice, this opinion shall be final as to this court immediately. (Cal. Rules of Court, rule
8.264(b)(3).)
McDONALD, Acting P. J.
I CONCUR:
McINTYRE, J.

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O'Rourke, J., dissenting.
I respectfully dissent. I would reverse the trial court's order granting Armstrong's
petition for habeas corpus because Governor Schwarzenegger's decision – in particular,
the Governor's finding that Armstrong's offense was premeditated and went beyond the
minimum elements necessary to sustain a second-degree murder conviction – has some
evidentiary support. Thus, under the extremely deferential review standards set forth in
In re Dannenberg (2005) 34 Cal.4th 1061 and In re Rosenkrantz (2002) 29 Cal.4th 616,
the trial court was required to deny Armstrong's petition.
The majority concedes the record here contains evidence that the manner in which
Armstrong committed his crime meets that standard. They reason, however, that
premeditation is not the equivalent of conduct by Armstrong during the crime that
depicted an especially heinous, atrocious, or cruel personality. (Maj. opn., ante, at pp.
18-19.) They also maintain that the record contains no evidence that Armstrong acted in
a dispassionate, cold or calculated manner when he killed his victim. (Id. at pp. 18-19,
fn. 7.)
In my view, the latter characterization of the record is incorrect. Notably,
Armstrong declined to discuss the facts of the commitment offense at his parole hearing
and the Board of Parole Hearings (Board) advised him it accepted the findings of this
court as true. The record considered by the Governor shows that Armstrong, a drug
dealer who had previously pointed an unloaded gun at the victim's head and threatened to
kill him over drug debts ("I'm going to kill you like this"), took a loaded gun into the
victim's residence and shot him in the head; the victim's death was caused by a "near-

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contact gunshot wound to the left forehead, one-half inch above the medial border of the
left eyebrow and three-quarter inch to the left of the midline." Thus, the victim was shot
near the middle of his forehead at extremely close range, and the type and manner of
injury permit the Governor to characterize the incident as a dispassionate, cold, and
calculated "execution-style" killing. This, combined with Armstrong's prior multiple
threats to the victim, and a witness statement in a probation officer's report that
Armstrong stated he had gone to the victim's apartment to "take care of him" and that he
woke the victim and "took care of him," shows that Armstrong's crime was committed "in
an especially heinous, atrocious or cruel manner." (Cal. Code Regs., tit. 15, § 2402,
subd. (c)(1)(B).) Armstrong's crime reflects "exceptional callousness and cruelty" to the
victim (Dannenberg, supra, 34 Cal.4th at p. 1098), and it constitutes "some evidence" to
support the Board's unsuitability determination under the limited and extremely
deferential review standard. (Rosenkrantz, supra, 29 Cal.4th at pp. 652, 665, 677;
Dannenberg, at p. 1084.) This element alone is sufficient to support the Governor's
reasoning. (Rosenkrantz, at p. 682; Dannenberg, at p. 1094.)
Further, I do not accept the majority's reasoning, which is based on several
appellate decisions (e.g., In re Singler (2008) 161 Cal.App.4th 281; In re Tripp (2007)
150 Cal.App.4th 306; In re Elkins (2006) 144 Cal.App.4th 475; In re Lee (2006) 143
Cal.App.4th 1400; In re Scott (2005) 133 Cal.App.4th 573), that depart from the judicial
review standards expressed in Rosenkrantz and Dannenberg. In my view, these decisions
impermissibly permit a reviewing court to balance and weigh the parole suitability and
unsuitability factors, contrary to the standards established by the California Supreme

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Court. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) As Rosenkrantz explains, "[i]t is
irrelevant that a court might determine that evidence in the record tending to establish
suitability for parole far outweighs evidence demonstrating unsuitability for parole."
(Ibid.)
Because the Governor's decision has a factual basis in the record, I would reverse
the trial court's order granting Armstrong's petition.
________________________
O'ROURKE, J.

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