In re Shippman (185 Cal. App. 4th 446, 2010)

Opinion

JENKINS, J.

This matter involves a petition for writ of habeas corpus. Inmate Robert Shippman, serving an indeterminate life sentence for the second degree murder of his wife, challenges as contrary to the evidence a decision by the Board of Parole Hearings that he remains an unreasonable risk to public safety and, thus, unsuitable for parole. For reasons we will explain, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Commitment Offense.

On April 23, 1993, Shippman (petitioner) fatally shot his third wife, Juli, and then immediately turned the gun on himself, inflicting serious but nonfatal wounds. At this time, petitioner, age 55, and Juli, age 28, were separated. Juli wanted out of the marriage and was having an extramarital affair with a local police officer, her second such affair during the couple’s two-year marriage. Petitioner was taking Valium to alleviate the stress and anguish he suffered from the breakdown of his marriage.

About a month before the murder, petitioner had arranged to take Juli to breakfast in Calistoga so they could discuss their marital problems. However, petitioner refused to stop in Calistoga as planned, and instead drove Juli on to Ukiah, where he forced her to talk to him for about four hours. Juli later obtained a restraining order against him.

Nonetheless, according to petitioner, on the day of her murder, Juli agreed to come to his house to pick up her mail, which he said would be left on the porch. Petitioner also stated that Juli then agreed to go for a ride in his truck, during which time he intended to convince her to end her extramarital affair. The estranged couple stopped near Howell Mountain Road, where they talked for about 10 or 15 minutes, at which time Juli told petitioner she was leaving to call her lover. Petitioner, angered by Juli’s statement, retrieved a rifle he kept in his truck for hunting trips, and shot her three times, twice in the chest and once in the back of the head. He then shot himself three times, twice in the chest and once in the head.

Later that morning, petitioner’s friend, who had been staying at petitioner’s house, found Juli’s vehicle parked on a nearby street, still running and with her purse inside.

According to statements made by Juli’s brother to police shortly after her murder, petitioner and Juli had been having marital difficulties for months and she was “terrified” to be alone with him. Further, petitioner had recently forced Juli to go with him to Ukiah, where he had been “extremely violent towards her.” Consistent with these statements, a probation report submitted in the case noted “a number of police reports at the department relating to the events surrounding [the couple’s] separation and of the problems they were having.”

In September 1993, petitioner pleaded guilty to second degree murder, with an enhancement for use of a firearm, and was sentenced to an indeterminate term of 15 years to life in prison, plus four additional years for the enhancement. Petitioner’s minimum parole eligibility date was scheduled for August 15, 2005.

II. Petitioner’s Personal Background.

Petitioner was raised on a chicken farm in central California by his mother and father with 10 older siblings. Petitioner’s parents remained married, and provided well for their large family. His father worked as a rancher and then, upon his retirement, became a local pastor. Petitioner recalls a happy, stable childhood, with no issues of emotional or physical abuse, substance abuse, disciplinary problems or medical problems of any kind. Petitioner had no juvenile record or criminal record aside from his commitment offense.

Petitioner graduated from high school and attended one year of college before meeting and marrying his first wife and leaving school to gain employment. Petitioner divorced his first wife, with whom he has one daughter, after seven years of marriage when she became pregnant by one of his best friends. Petitioner denies any history of physical or emotional abuse in his first marriage, but admits hitting his first wife’s lover in the head with a baseball bat, “putting] him in the hospital.”

Two years after divorcing his first wife, petitioner married his second wife, with whom he shares a daughter and stepson. As with his first marriage, petitioner denies any history of physical abuse or emotional abuse in his second marriage, but admits “there was one [incident] with my [second] wife,” which stemmed from the couple’s disagreement over how best to handle their son’s drug abuse. Petitioner’s second marriage ended after 22 years, when he had an extramarital affair with Juli, his eventual third wife and the victim in this case.

Prior to his incarceration, petitioner was continuously employed as a plumbing contractor and owner of a plumbing company, and as the owner of a gas station. He had no problems with alcohol or drug abuse or history of mental problems.

III. Petitioner’s Incarceration.

While serving his indeterminate sentence, petitioner has completed certificates in vocational plumbing and carpentry, and obtained skills in vocational electricity. In addition, he has worked as a plumber, and voluntarily taught basic plumbing and electricity skills to other inmates. His work reports have all been satisfactory or above average.

Petitioner has had no disciplinary problems while incarcerated, and has participated in one 44-week anger management course and one 14-week self-help course entitled “Awareness and Empathy for Survivors of Crime.” He has also become a self-described born-again Christian, taught Bible study, and coached softball.

Petitioner has undergone at least two psychological evaluations during his incarceration. The results of both were favorable and supportive of his release. For example, a 2004 evaluation concluded that, “based upon his years of incarceration, the maturity he has gained over those years, his deep sense of sorrow and remorse about the commitment offense, his ever-deepening awareness of spiritual truths, and the fact that he has learned that he must not take things into his own hands when disaster strikes, he actually poses less of a threat to society than the average citizen.”

The most recent evaluation, prepared in 2008 in connection with this latest effort at parole, describes petitioner, now age 70, as being at a “very low” risk for future violence. The 2008 evaluation further notes that petitioner has “programm[ed] in an excellent fashion” during his incarceration and “shows no indications of psychopathy.” When asked to describe his strengths, petitioner identified his faith in God; when asked about his weaknesses, he identified “too many sweets.”

IV. Petitioner’s Parole Hearings and Board Decisions.

In September 2004, petitioner participated in his first parole hearing, after which a panel of hearing officers from the Board of Parole Hearings (the Board) denied parole for four years, finding him unsuitable for release.

On October 22, 2008, petitioner’s second parole hearing (known as the “first subsequent parole hearing”) was held. At this hearing, the presiding commissioner questioned petitioner at length regarding his suitability for parole, touching on, among other topics, Juli’s murder, his social history, including his three failed marriages; his accomplishments during incarceration; and his future plans. In addition, the district attorney questioned petitioner in greater detail regarding “control issues” he experienced in his relationships with Juli and his other wives, and any efforts he has made while incarcerated to address this antisocial behavior.

Following this hearing, the Board decided petitioner remained unsuitable for parole because he continued to pose an unreasonable risk of danger to public safety. The Board based its decision on the following grounds: (1) the commitment offense was particularly aggravated in nature; (2) petitioner lacks insight into what caused him to commit the offense and to otherwise engage in controlling behavior; (3) he has an unstable social history; and (4) his parole plans are “marginal.” Of particular concern to the Board was petitioner’s apparent ignorance of the factors that “trigger” his irrational need to control others, the behavior that led him to commit murder. The Board expressed optimism, however, regarding petitioner’s exemplary disciplinary record while incarcerated and his lack of a juvenile or other criminal record, and encouraged him to participate in additional self-help programs to better prepare him for release. Accordingly, the Board denied parole for three additional years.

On April 1, 2009, petitioner filed a petition for writ of habeas corpus in superior court. On May 4, 2009, the superior court denied his petition, finding the Board’s denial of parole adequately supported by the evidence in the record. Petitioner then filed for habeas corpus relief in this court.

We issued an order to show cause and appointed counsel for petitioner, after concluding based on the factual allegations in his petition that he may be entitled to habeas corpus relief. (See People v. Duvall (1995) 9 Cal.4th 464, 474-475 [37 Cal.Rptr.2d 259, 886 P.2d 1252].) In compliance with this order, the prosecution filed a timely return, and petitioner thereafter filed a traverse responding to the issues raised therein. With this factual and procedural background, we now turn to the relevant law.

DISCUSSION

The sole issue before us is whether petitioner is entitled to habeas corpus relief from the Board’s finding that he was unsuitable for parole. The relevant legal principles, most of which have been codified, are as follows.

I. The Legal Framework: Suitability for Parole.

Under Penal Code section 3041, the governing statute, the Board is normally required, one year before an inmate’s minimum eligible parole release date, to set a parole release date “in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public . . . .” (Pen. Code, § 3041, subd. (a).) Specifically, the Board must set a parole release date unless it determines that public safety requires a lengthier period of incarceration for the inmate given the gravity of the commitment offense. (Pen. Code, § 3041, subd. (b); see also In re Shaputis (2008) 44 Cal.4th 1241, 1257-1258 [82 Cal.Rptr.3d 213, 190 P.3d 573].)

Consistent with section 3041, the governing regulations require the Board to determine whether an inmate is suitable for parole after considering “[a]ll relevant, reliable information available to the panel . . . .” (Cal. Code Regs., tit. 15, § 2402, subd. (b).) “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.” (Id., § 2402, subd. (a).)

Factors set forth under the governing regulations that demonstrate an inmate’s suitability for parole include: (1) lack of juvenile record; (2) stable social history; (3) signs of remorse; (4) motivation for the crime (e.g., whether the inmate committed the crime as the result of significant stress in his life); (5) experience of battered woman syndrome; (6) lack of criminal history; (7) present age; (8) plans for release; and (9) institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) Factors demonstrating an inmate’s unsuitability for parole include: (1) the nature of the commitment offense; (2) previous record of violence; (3) unstable social history; (4) commission of sadistic sexual offenses; (5) psychological factors (e.g., whether the inmate has a lengthy history of severe mental problems related to the offense); and (6) institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)

In considering these factors, “the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) The Board must keep in mind, however, that “ ‘parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ ([In re] Rosenkrantz [(2002) 29 Cal.4th 616,] 654 [128 Cal.Rptr.2d 104, 59 P.3d 174] ....)” (In re Shaputis, supra, 44 Cal.4th at p. 1258.)

II. The Standard Governing Review of Board Parole Decisions.

On appeal, only limited grounds exist for overturning a Board’s decision regarding a particular inmate’s suitability for parole. Specifically, if there is “some evidence” supporting the Board’s decision, we will not disturb it on appeal. (In re Lawrence (2008) 44 Cal.4th 1181, 1212 [82 Cal.Rptr.3d 169, 190 P.3d 535]; In re Shaputis, supra, 44 Cal.4th at p. 1254.) However, “because the paramount consideration for . . . the Board ... is whether the inmate currently poses a threat to public safety, and because the inmate’s due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor,” to support the Board’s decision. (In re Shaputis, supra, 44 Cal.4th at p. 1254.) “It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.” (In re Lawrence, supra, 44 Cal.4th at p. 1212; see also In re Lee (2006) 143 Cal.App.4th 1400, 1409 [49 Cal.Rptr.3d 931] [“[s]ome evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee’s release unreasonably endangers public safety”].)

In applying this standard, the reviewing court must affirm the Board’s reading of the evidence so long as it is reasonable and based upon due consideration of the relevant legal factors. (In re Shaputis, supra, 44 Cal.4th at p. 1258; In re Singler (2008) 169 Cal.App.4th 1227, 1238 [87 Cal.Rptr.3d 319].) However, while this standard is “highly deferential,” requiring just a “modicum of evidence,” it “certainly is not toothless.” (In re Lawrence, supra, 44 Cal.4th at pp. 1204-1205, 1210.) “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.” (In re Rosenkrantz, supra, 29 Cal.4th 616, 658.)

III. The Board’s Decision and the Supporting Evidentiary Record.

Here, the Board found petitioner not suitable for parole after determining that he remained a threat to public safety. In making this determination, the Board relied upon the following: (1) the aggravated nature of his commitment offense; (2) his lack of insight into the offense’s causative factors; (3) his unstable social history (and, in particular, a pattern of “control issues” he had with respect to his romantic partners); and (4) his marginal parole plans. Thus, applying the legal principles set forth above, we must decide whether “some evidence” supports the Board’s reliance on these factors to deny petitioner parole. (In re Shaputis, supra, 44 Cal.4th at p. 1255.)

A. The Commitment Offense.

Under the governing regulations, when deciding whether an inmate is suitable for parole, the Board may consider whether the inmate committed the underlying offense in an especially heinous, atrocious or cruel manner. In particular, the Board may consider whether the offense had multiple victims, whether it was carried out in a dispassionate and calculated manner, whether the inmate acted with exceptionally callous disregard for human suffering, and whether the inmate’s motive was inexplicable or very trivial. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)

However, as the California Supreme Court has clarified, the Board “may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board . . . .” (In re Lawrence, supra, 44 Cal.4th at p. 1221.) “This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. ([In re] Rosenkrantz, supra, 29 Cal.4th at p. 682 . . . .)” (Ibid.; see also In re Shaputis, supra, 44 Cal.4th at p. 1255.)

Here, the Board found petitioner’s commitment offense particularly grave because it was “done in a dispassionate and somewhat calculated manner” and “in a manner which demonstrated exceptional callous disregard for human suffering.” The Board also found that petitioner did not act in the heat of the moment upon discovering Juli’s extramarital affair. Rather, petitioner knew Juli wanted a divorce and was seeing someone else when he used a “false pretense” to lure her into his vehicle, in which he carried a rifle. Petitioner thereafter “pulled the trigger three times just to kill the victim.”

Petitioner claims the Board’s reliance on his commitment offense to deny parole was improper, arguing that the fact that he “shot and killed his unfaithful spouse” does not prove he remains a risk to public safety.

Petitioner is no doubt correct that the circumstances of the commitment offense and other immutable aspects of an inmate’s history are relevant to the inmate’s suitability for parole only to the extent they prove his or her current dangerousness. (In re Rosenkrantz, supra, 29 Cal.4th at p. 682; In re Lawrence, supra, 44 Cal.4th at p. 1221.) He is likewise correct that, as a general matter, an inmate’s commission of an offense “while under the stress of an emotional love triangle” will not, without more, render the inmate unsuitable for parole. (In re Lawrence, supra, 44 Cal.4th at pp. 1225-1226; see also In re Singler, supra, 169 Cal.App.4th at pp. 1235-1236; In re Scott (2004) 119 Cal.App.4th 871, 890, fn. 9 [15 Cal.Rptr.3d 32].) However, we disagree with petitioner’s suggestion that, in this case, the Board relied upon the circumstances of his commitment offense when denying parole without giving due consideration to other relevant legal factors, including, as petitioner points out, his rehabilitation efforts, advanced age, stable employment history, favorable psychological evaluations and lack of a juvenile record or other criminal record. Rather, the record reflects that the Board was well aware of its legal duty under In re Lawrence, supra, 44 Cal.4th 1181, to articulate a “rational nexus” between the circumstances of petitioner’s offense and his current dangerousness. Indeed, the Board stated as much on the record. Whether the Board did so successfully—in other words, whether its proposed nexus between the commitment offense and petitioner’s current dangerousness was sufficient to meet the “some evidence” standard—requires a closer look at the record, which we will now undertake. (In re Lawrence, supra, 44 Cal.4th at p. 1221.)

B. Petitioner’s Unstable Social History and Lack of Insight.

In seeking to articulate a rational nexus between petitioner’s commitment offense and his current dangerousness, the Board relied primarily on two factors—petitioner’s unstable social history with respect to his relationships with women, and his lack of insight into the factors that caused the offense (to wit, his need to control his relationships with these women). “An ‘[u]nstable [sjocial [hjistory,’ which is defined as ‘a history of unstable or tumultuous relationships with others,’ is one circumstance tending to show unsuitability. ([Cal. Code Regs., tit. 15,] § 2402, subd. (c)(3).)” (In re Roderick (2007) 154 Cal.App.4th 242, 267 [65 Cal.Rptr.3d 16].) As petitioner and Acting Presiding Justice Poliak, dissenting, correctly note, an inmate’s unstable social history, like his commitment offense, is an “immutable” fact, and thus insufficient by itself to prove unsuitability. However, where, as here, social history is considered in conjunction with other suitability factors, such as the inmate’s failure to gain insight into his or her antisocial behavior, it may indeed support a Board’s decision to deny parole. (In re Shaputis, supra, 44 Cal.4th at pp. 1255, 1260-1261.)

Here, the Board found that, while petitioner recognized having “control issues” in his relationships with women, he could not offer a satisfactory explanation as to why. Petitioner told the Board that his controlling behavior may stem from growing up with a controlling father, but offered no further insight. The Board thus remained concerned that, without a deeper understanding of what triggers his extreme and sometimes violent controlling behavior, petitioner would return to it upon his release, particularly if he became romantically involved with other women. As the Board noted, petitioner had a healthy physique and youthful appearance for his age, and “could go back out there and do the same thing, without knowing the reasons as to why [he] committed this crime.”

Our review of the record confirms that petitioner acknowledged having “control issues” with his previous romantic partners. Specifically, when the Board asked petitioner why he murdered Juli, he responded, “I always thought I could control things, and with the others, perhaps I did, but with Juli I couldn’t.” Petitioner then explained that, when Juli fell in love with someone else, “that hurt and it turned to jealousy, and jealousy is part of control, which is terrible.” Ultimately, petitioner acknowledged that “my trying to control her was wrong. I’ve taken classes to prove that, and that was a terrible, terrible situation.” “[Y]ou can get over those [issues] by realizing that that is wrong, control issues over anybody. You can’t control another person’s love or affection.”

Petitioner claims this testimony shows he has addressed his past problems with trying to control the women in his life. We acknowledge much of his testimony appears quite reflective and forthcoming with respect to these problems. However, in determining whether “some evidence” supports the Board’s contrary decision, we must consider not only self-selected portions of petitioner’s testimony, but the record as a whole. As the Board noted, and contrary to our dissenting colleague’s opinion, there is indeed other evidence in this record sufficient to at least raise an inference that petitioner remains dangerous because he has not yet gained insight into or taken full responsibility for his irrational need to control the love and affection of others. Our role on appeal is simply to identify this evidence, not to reweigh it. (In re Criscione (2009) 180 Cal.App.4th 1446, 1458 [103 Cal.Rptr.3d 549].)

For example, petitioner acknowledged that he “always thought [he] could control things . . . with the others,” but then responded, “No,” when asked whether control was “a factor in your prior relationships.” Petitioner also denied any incidents of “physical abuse or emotional abuse” in his other marriages, yet, when probed, ultimately admitted to “one incident” involving his second wife, stemming from the couple’s disagreement over how best to handle their son’s drug problem. Further, the record suggests the existence of other such incidents of abuse. For example, petitioner admitted beating his first wife’s lover to the point of hospitalization with a baseball bat after learning about the extramarital affair. While this violence was not aimed directly at petitioner’s first wife, it undoubtedly evidences what our dissenting colleague has labeled petitioner’s “chronic problem with close emotional relationships with women.”

Petitioner’s testimony regarding his relationship with Juli casts further doubt on his denial of having emotionally or physically abused his former wives, and thus, by inference, on his denial that he would, if released, revert to such behavior in other romantic relationships. In particular, when asked to explain why he and Juli separated, petitioner admitted only that “[s]he wanted out of the marriage would be my guess.” He also denied, as with his other wives, any incidents of violence in his marriage with Juli with the exception of her murder. However, as the district attorney noted, a probation report written in connection with Juli’s murder noted there “were a number of police reports at the department relating to the events surrounding [petitioner’s and Juli’s] separation and of the problems they were having.” This report also noted that Juli’s brother told police shortly after her murder that she “was terrified of going to [petitioner’s] house by herself,” and that petitioner had recently forced her to go to Ukiah with him, during which time he was “acting extremely violent towards her.”

This trip to Ukiah preceded Juli’s successful application for a restraining order against petitioner in the weeks before her murder. Yet when asked why Juli had obtained this order, appellant claimed he did not “know how to answer that.” Petitioner also denied forcibly taking Juli to Ukiah, claiming, “I did not take her forcibly. I know the incident you’re talking about, when we went and we were going to go out for breakfast, and we were going to go to Calistoga. But you’re right, instead of me stopping in Calistoga, I kept going [to Ukiah].” Yet when asked whether Juli voluntarily went beyond Calistoga with him, petitioner responded: “Probably not.” Petitioner then reluctantly agreed that he “forcibly took her, because she didn’t want to go that far with [him],” which “could have been” why she got the restraining order. He also reluctantly agreed that “[Juli] was . . . afraid [of me],” yet continued to deny her purported statements to police that he sexually abused her and threatened to shoot her during the Ukiah trip. Finally, when asked why he shot Juli three separate times leading to her death, petitioner responded; “I don’t know the answer to that, sir.”

This record, we conclude, when considered as a whole, provided the Board with a reasonable basis for finding that petitioner lacked insight into why he has engaged in violence as a means to attempt to control his romantic partners—the behavior apparent in his unstable relationships with his former wives, as well as in Juli’s murder. Specifically, the evidence supports inferences by the Board that (1) petitioner has a serious problem with wanting to maintain control over the women in his life; (2) this problem has repeatedly manifested itself in the form of emotional or physical abuse directed toward these women; (3) petitioner is not yet willing to take full responsibility for this pattern of abusive conduct; and (4) petitioner’s failure to take full responsibility for his abusive conduct indicates a lack of insight into the root causes of his crime.

Further, while the record reflects that petitioner has indeed taken steps while incarcerated to address this antisocial behavior, by participating in one anger management course and one victim empathy program, the Board also had a reasonable basis for finding that these steps were simply a “building block,” which would need to be expanded upon before petitioner can develop the necessary skills to prevent further violence. Indeed, had petitioner already developed these skills, we believe that, when testifying before the Board, he would not have repeatedly denied or minimized the incidents in his past in which his controlling nature toward women resulted in emotional or physical violence. At the very least, petitioner’s repeated denials or downplaying of the facts in this regard support an inference that he remains a threat to public safety.

In reaching these conclusions, we acknowledge the two recent psychological evaluations of petitioner that were supportive of his release. The record reflects, however, that the Board discounted the probative value of those evaluations based upon petitioner’s failure to “open up” to the clinicians regarding the true nature and extent of his controlling behavior. Having reviewed the record, we believe the Board’s decision in this regard was permissible.

Specifically, we note that, when asked by the district attorney whether, during those evaluations, he mentioned his past problems with attempting to control his romantic partners, petitioner responded: “I believe we discussed it at one of these.” Yet the evaluations themselves do not reflect any substantive discussion of the issue, at least not to the extent the circumstances require given the link between petitioner’s controlling behavior and his violence towards women (including Juli).

For example, the 2004 evaluation describes Juli’s murder as an “impulsive” act “related to his serious marital problems, deep emotional anguish, and beclouded thinking due to the Valium he was taking to help control these turbulent emotions.” Further, the 2004 evaluation concludes “there are no risk factors” that would cause him to engage in further violence. However, it fails to mention several notable events leading up to Juli’s murder that clearly exhibit petitioner’s dangerously controlling behavior toward women, including his kidnapping of Juli and her subsequent decision to obtain a restraining order against him. It also fails to discuss petitioner’s previous marriages beyond mentioning that they ended in divorce.

The 2008 evaluation, in turn, notes that petitioner had only three relationships with women in his life (apparently each of his marriages), and that his “relationships have been unstable.” The 2008 evaluation describes his offense as “an impulsive act of violence that appeared to be out of an act of passion,” but, unlike the 2004 evaluation, recognizes that, “[s]hould the inmate act in passion or violence in the future, it would increase his violence risk.” Nonetheless, the 2008 evaluation joins the 2004 evaluation in its failure to analyze the one aspect of petitioner’s personality that is suspected to have contributed to his failed relationships and his commission of murder—his irrational need to control romantic partners. Indeed, as the Board noted, in the 2008 evaluation’s section entitled “Insight/Self Assessment,” petitioner identifies only one “weakness”—“too many sweets.”

We acknowledge that “expressions of insight and remorse will vary from prisoner to prisoner and . . . there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior.” (In re Shaputis, supra, 44 Cal.4th at p. 1260, fn. 18.) Here, however, we do not believe the Board’s finding that petitioner lacked insight stemmed from any failure on his part to adequately articulate why he committed the offense or what he has since learned from it. Rather, the Board’s finding stemmed from petitioner’s obvious reluctance at the hearing to take full responsibility for his repeated attempts to control women through abusive means, which, despite his contrary testimony, did not begin and end with Juli’s murder. (Cf. In re Roderick, supra, 154 Cal.App.4th at pp. 270-271 [reversing a denial of parole where, despite “his inability to articulate a more insightful explanation,” the inmate expressed genuine remorse for the crime and acknowledged after several years of claiming self-defense that it was intentional].)

The circumstances of this case distinguish it from those cases relied upon by petitioner in seeking relief from the Board’s decision. For example, in one case cited by petitioner, In re Singler, supra, 169 Cal.App.4th 1227, the Board did not dispute that all the suitability factors, with the exception of the commitment offense, were favorable to the inmate, including his otherwise stable social history. In addition, it was undisputed that, “since day one,” the inmate had engaged in extensive efforts to learn anger and impulse control through his participation in numerous self-help programs and his embracing Buddhism, and that those efforts had been successful. (Id. at pp. 1240-1241.) In another of petitioner’s cases, In re Lawrence, supra, 44 Cal.4th 1181, “the Governor alluded to other possible grounds for denying petitioner’s parole, [yet] expressly relied only upon the nature of petitioner’s commitment offense to justify petitioner’s continued confinement.” (Id. at p. 1222, italics added.) Here, contrary to these cases, the Board relied upon several factors indicative of petitioner’s unsuitability for parole, including his lack of insight into the causative factors of his offense and his long history of unstable and abusive relationships with women, not just his commitment offense. Moreover, while it is indeed true petitioner has engaged in some efforts to curb his antisocial behavior, contrary to In re Singler, supra, 169 Cal.App.4th 1227, the extent to which petitioner has succeeded at those efforts remains an open question. Thus, because in this case the Board has provided reasonable grounds for denying parole that extend beyond the circumstances of the commitment offense, petitioner’s authority provides no basis for overturning its decision. (See In re Lawrence, supra, 44 Cal.4th at p. 1214 [“Because the parole decision represents a prospective view—essentially a prediction concerning the future—and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision.”].)

Finally, we add that the circumstances of this case likewise distinguish it from a recent decision by our colleagues in the Court of Appeal, First District, Division Two, In re Calderon (2010) 184 Cal.App.4th 670 [109 Cal.Rptr.3d 229] (In re Calderon). There, the appellate court ordered the Governor to vacate his decision reversing the grant of parole, and reinstated the Board’s grant of parole, after concluding there was no evidence supporting the factor relied upon most heavily by the Governor in finding the inmate currently dangerous—his purported lack of insight into the effects of his substance abuse. (Id. at pp. 688-689.) Rather, the appellate court found that all the evidence was to the contrary. In particular, the appellate court noted there was no evidence that the inmate denied having had a drug or alcohol problem, that he denied having had a problem for some period of his incarceration, or that his former desire for drugs or alcohol might still be a motivating force. (Id. at pp. 692-693.) Further, the court noted that “[o]ver a very long period of time, [the inmate] has actively and productively participated in virtually every substance abuse and other self-help program made available to him . . . .” (Id. at p. 693.)

In this case, to the contrary, there is indeed evidence, already discussed at length, that petitioner unjustifiably refused to take full responsibility for his past problems with attempting to control women through abusive means, which behavior is closely associated with both his commitment offense and unstable social history. Further, the evidence does not reflect that petitioner has fully committed himself to intensive rehabilitative efforts designed to address this behavior. As such, In re Calderon does not support reversal of the Board’s decision in this case.

C. Marginal Parole Plans.

Finally, we briefly mention the Board’s finding that petitioner’s parole plans were “marginal,” and thus further evidence of his unsuitability for parole. Under the California parole scheme, an inmate’s plans for release are relevant in deciding whether he or she is suitable for release. (Cal. Code Regs., tit. 15, § 2402, subds. (b), (c).) According to petitioner, however, his parole plans were adequate, and provided no evidence of his current degree of dangerousness.

According to the Board, its finding with respect to petitioner’s parole plans was based upon evidence that he had only known the family offering him room and board upon his release for three and a half years, and that he remained unsure of how much money he had saved or would receive from Social Security. Petitioner does not dispute this evidence. As such, the Board’s finding was not arbitrary or capricious, but rather was properly grounded in the record. Whether tins court would have assigned more or less significance to this evidence is beside the point. Under the applicable standard of review, we need only conduct “such review as is necessary to determine whether there is any evidence in the record supporting the denial.” (In re Van Houten (2004) 116 Cal.App.4th 339, 347-348 [10 Cal.Rptr.3d 406]; see In re Shaputis, supra, 44 Cal.4th at p. 1261; In re Rosenkrantz, supra, 29 Cal.4th at p. 677 [“It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole.”].) Here, we have already made such a determination with respect to the evidence in the record relating to petitioner’s lack of insight and unstable social history. And, for all the reasons set forth above, we indeed believe this evidence is sufficient to support the Board’s determination that petitioner’s release would unreasonably endanger public safety. Accordingly, petitioner’s request for habeas corpus relief must be denied.

DISPOSITION

The petition for writ of habeas corpus is denied.

In the record, petitioner’s name is sometimes spelled “Shippman,” and other times is spelled “Shipman.” We adopt the former spelling, “Shippman,” which is the one used in the petition for writ of habeas corpus.

The dissent takes us to task for “impflying],” without record support, “that Shippman acknowledged abusing his second wife.” (Dis. opn., post, at p. 486.) Recalling that we must affirm the Board’s interpretation of the evidence “so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors” (In re Shaputis, supra, 44 Cal.4th at p. 1258), we stand by our conclusion that petitioner’s testimony that there was “one incident where [emotional or physical abuse] happened” “with my [second] wife” amounts to just that—an acknowledgement that petitioner abused his second wife.

The dissent refers to language in In re Roderick, supra, 154 Cal.App.4th at page 265, that “it would be inappropriate for courts to salvage the Board’s inadequate findings by inferring factors that might have been relied upon,” and that, “[a]t minimum, the Board is responsible for articulating the grounds for its findings and for citing to evidence supporting those grounds” (italics omitted). (See also In re Lewis (2009) 172 Cal.App.4th 13, 29 [91 Cal.Rptr.3d 72]; In re Moses (2010) 182 Cal.App.4th 1279, 1310-1311, fn. 13 [106 Cal.Rptr.3d 608]; In re DeLuna (2005) 126 Cal.App.4th 585, 593-594 [24 Cal.Rptr.3d 643].) Here, however, the Board did articulate its reasons for denying parole, which included, among other reasons, petitioner’s lack of insight into the offense’s causative factors and his unstable social history. The Board also cited to evidence, which we have already discussed at length, supporting those reasons. To the extent the dissent suggests this court lacks authority to consider evidence in the record supporting the Board’s reasons for denying parole, but not expressly mentioned in the Board’s written decision, we respectfully disagree.

SIGGINS, J., Concurring.

I join fully in the opinion written by my colleague Justice Jenkins, but write separately to comment upon additional facts that support the reason cited by the Board of Parole Hearings (the Board) for finding Robert Shippman unsuitable for parole. As Justice Jenkins states, our task is to review the record of a petitioner’s parole suitability hearing to ascertain if a decision to deny parole is supported by some evidence that the petitioner will pose an unreasonable threat to public safety if he or she is released. (In re Lawrence (2008) 44 Cal.4th 1181, 1221 [82 Cal.Rptr.3d 169, 190 P.3d 535]; In re Shaputis (2008) 44 Cal.4th 1241, 1255 [82 Cal.Rptr.3d 213, 190 P.3d 573].) We are to view the reasons relied upon by the Board to deny parole and determine if a nexus exists between those reasons and danger to the public. (In re Lawrence, supra, at pp. 1210-1211.) In this case, I fully agree with Justice Jenkins that the Board was correct to conclude that Shippman’s lack of insight into the circumstances of his commitment offense and his troubled relationships with women demonstrate that he is not ready for release. But that is not all that troubles me about this petitioner’s record.

Facts in the record, but not mentioned or relied upon during petitioner’s hearing, provoke my concern that Shippman is not being candid about, and has not reconciled himself with, the events leading up to his wife’s murder. Shippman says that he unexpectedly killed his wife when he lost control of his emotions one morning while the two of them went for a ride to discuss their relationship. However, what is hard to reconcile with his version of these events are the facts that his murdered wife’s car was discovered in front of Shippman’s house with her purse inside it and the engine running. These facts logically create an inference that Shippman forced his wife to go for a drive, rather than suggest that she went voluntarily.

The silent record on these facts is troubling, and the unaddressed inference of abduction is too pregnant for me to ignore. We are not precluded from considering these facts because they were not discussed at the parole hearing. Neither Lawrence nor Shaputis require that we ignore unexplained circumstances of Shippman’s offense when those circumstances support a ground for unsuitability found by the Board. The questions these facts raise are too significant, and yield a certain commonsense apprehension over Shippman’s readiness for parole.

The dissent criticizes my consideration of these circumstances of the crime because they were not recited in the Board’s decision. But such a restriction on our review of the record seems, to me, an odd contortion of our deferential standard of review. To the extent reported cases of the Court of Appeal may be read to impose such a restriction, I disagree. (Dis. opn., post, at pp. 488-489, citing In re Moses (2010) 182 Cal.App.4th 1279 [106 Cal.Rptr.3d 608]; In re Lewis (2009) 172 Cal.App.4th 13 [91 Cal.Rptr.3d 72]; In re Roderick (2007) 154 Cal.App.4th 242 [65 Cal.Rptr.3d 16]; In re DeLuna (2005) 126 Cal.App.4th 585 [24 Cal.Rptr.3d 643].) Under our standard of review, it seems to me entirely appropriate to draw inferences from the facts in the record that support the Board’s reasons for finding a prisoner unsuitable for parole whether or not they are explicitly discussed in the narrative of the Board’s decision.

Nor is a due process concern that may arise from our consideration of facts in the record supporting the Board’s decision as “obvious” as the dissent says. As recognized by our Supreme Court in Lawrence and by the United States Supreme Court in decisions reviewing state parole processes, determining whether a prisoner is suitable for parole depends not simply on objective factfinding, but also on purely subjective evaluations and on predictions of future behavior by those entrusted with the decision. (See Connecticut Board of Pardons v. Dumschat (1981) 452 U.S. 458, 464 [69 L.Ed.2d 158, 101 S.Ct. 2460]; Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 8 [60 L.Ed.2d 668, 99 S.Ct. 2100]; In re Lawrence, supra, 44 Cal.4th at p. 1214.) Our state recognizes that prisoners have an expectancy they will be released to parole unless the Board finds them unsuitable. (In re Rosenkrantz (2002) 29 Cal.4th 616, 654 [128 Cal.Rptr.2d 104, 59 P.3d 174].) But the conclusion that due process requires that every fact supporting a decision by the Board to deny parole be recited in the Board’s decision is not so obvious to me, and turns on an analysis that balances the governmental and private interests affected by the Board’s decision. (See People v. Ramirez (1979) 25 Cal.3d 260 [158 Cal.Rptr. 316, 599 P.2d 622].) Overly restrictive views of the record that do not consider facts that support a decision finding a prisoner unsuitable for parole accord appropriate deference neither to the executives charged with making those predictive decisions, nor to their concern for public safety.

For me, this case more closely resembles Shaputis than it does Lawrence. When we review the denial of suitability for parole, Lawrence instructs us that “the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude.” (In re Lawrence, supra, 44 Cal.4th at p. 1221.) It is precisely because of Shippman’s dissembling responses to the Board’s questions concerning his propensity to control his romantic partners and his history of violence that I conclude the unexplained circumstances of his commitment offense also support the Board’s decision. (See In re Shaputis, supra, 44 Cal.4th at p. 1260.) I make no conclusion that Shippman abducted his wife, but these unexplained facts support the Board’s decision to defer Shippman’s further parole consideration for three years.

It is also not entirely clear that the Board ignored these facts even though they are not mentioned. In its decision announced at the end of Shippman’s hearing, the Commissioner said: “The committing offense is particularly disturbing, as previously discussed, because of the way it was done. The fact that you convinced the victim to come over to pick up her mail and then, through the course of conversation, you got her to your pickup, where a weapon was there, and took her for a ride to discuss things, and when she indicated that she had to call the individual that she was in fact having the affair with, you took her life by firing three rounds—not one but three rounds.”

Absent this state-created expectancy, parole decisions do not implicate due process concerns. “Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations. [Citations.] This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release.” (Greenholtz v. Nebraska Penal Inmates, supra, 442 U.S. at p. 7.)

Such a restrictive review of the record also seems to place the burden of proof in these cases on the Board rather than on the petitioner challenging the Board’s decision. "While our standard of review is prescribed by Lawrence and Shaputis, the allocation of the burden to demonstrate error remains unclear.

POLLAK, Acting P. J., Dissenting.

I respectfully disagree with the opinions of my colleagues. The lead opinion upholds the decision of the Board of Parole Hearings (the Board) to deny petitioner Robert Shippman parole based not on the conclusion that there is some evidence to support the Board’s findings, but on findings of its own that are not reasonably drawn from the record before us. In what follows I shall first set forth more fully certain background matters that appear in the present record, minimizing the repetition of facts that are adequately described in the lead opinion, then address the reasons for which the Board’s analysis fails to withstand scrutiny, and finally address the purported evidence upon which the lead opinion relies to find “some evidence” that Shippman would pose an unreasonable risk to society if granted parole.

I.

Shippman was bom in 1938, the youngest of 11 children, and was raised in an intact family. His father was a chicken rancher who became pastor of a local church. Shippman’s early life was stable. He graduated from high school and attended one year of college. When he married his first wife in 1957, he dropped out of school to find work. The couple divorced in 1964, when his wife became pregnant by and ran off with Shippman’s best friend. When his wife’s paramour came to his house after he learned of the affair, Shippman beat him with a baseball bat. Shippman remarried in 1966. This marriage lasted 22 years, but ended when Shippman had an affair with Juli, whom he ultimately married.

Shippman married Juli in 1991, when he was 53 and she was 26. He murdered her in April 1993. During the marriage, Juli had an affair with one man and later with a second, whom she was seeing at the time of the murder. About one month before the murder, Juli had agreed to drive with Shippman to Calistoga to discuss their relationship; over Juli’s protests, Shippman drove her all the way to Ukiah, presumably prompting Juli to obtain a restraining order against Shippman.

On the day of the murder, following a separation of several weeks, Shippman called Juli and asked her to pick up her mail. When she arrived at his house, Shippman convinced her to go for a ride with him. Shippman, who claims to have “loved Juli with every fiber of [his] heart,” wanted to persuade her to terminate the affair she was having. They drove to a remote area. After they had been speaking for 10 to 15 minutes, Juli stated that she had to call the man she was dating. Shippman retrieved his rifle from his vehicle and shot her three times, once in the back of the head. Shippman initially claimed that he had first shot himself, attempting to gain Juli’s sympathy, and then shot her as she approached him. At his parole hearing he acknowledged that he shot Juli first, then shot himself three times—twice in the chest and once in the head.

Other than the commitment offense, Shippman denies being violent towards any of his wives. He does, however, admit to a serious disagreement with his second wife, occasioned by his stepson’s involvement with drugs. The wife wanted to “give him over” to state custody and Shippman refused, believing that they would be better able to help the child. They apparently retained custody of the boy who, at the time of the parole hearing, had in Shippman’s estimation “turned out very well” and was working as a pilot.

Before his incarceration Shippman had worked as a plumber for nearly 30 years. For several years he owned his own plumbing business. He also owned a gas station for 13 years. He had no prior criminal or juvenile record.

In prison Shippman has worked as a plumber and his job performance has consistently been rated as satisfactory or above average. He has also earned vocational certificates in basic home repair, maintenance and building maintenance and safety, and carpentry. He instructs other inmates in plumbing and other trade skills.

In 2003 Shippman completed a 44-week anger management course, a 14-week awareness and empathy for survivors of crime course, and the “Impact” program. Shippman felt the anger management course was “a great course,” but his efforts to repeat the course were stymied because his housing assignment changed three times after his previous parole hearing.

Since being incarcerated Shippman has been discipline free. The Board recognized this achievement: Deputy Commissioner Turner commented, “I applaud you for that; that’s difficult to do, to stay disciplinary-free in the institutional setting, so you’re doing some things right.” Shippman regularly coaches softball and teaches Bible classes, as well as instructs in the trades.

When paroled, Shippman intends to live with a couple from Yuba City, whom he met through his church activities some three and a half years before the parole hearing, who visit him regularly and have offered to provide him with housing. He claims to have savings, which his daughter monitors for him. Because of his age, 70 at the time of the hearing, and his steady preincarceration work history, he apparently will qualify for Social Security benefits, although he has not documented his entitlement to these benefits. Shippman has also received letters of support from his sister, brother and daughter.

Shippman’s most recent psychological evaluation, conducted in 2008, references his July 2004 psychological evaluation. The 2004 psychological report discusses petitioner’s commitment offense, in part, as follows: “The pressure of the realization that his young and beautiful wife was unfaithful to him, and that he was about to lose her, was more than he could handle. He began using prescribed Valium, which he had used for two weeks, as well as on the day of the commitment offense. He stated that his thinking wasn’t really clear due to the medications. He went on and explained that Juli was his ‘princess.’ He didn’t want to lose her. He knew that he was losing her. At that point, he stated that, T should have stepped back and looked at my actions. What I did was devastating to Juli’s family, and also has been devastating to my own family.’ Inmate Shippman describes his actions as ‘stupid, irrational, impulsive,[’] without any thinking of what he was doing, [¶] In summation, it does appear that this act was the result of a man whose thinking was beclouded by Valium. He was overcome with emotional anguish and the feeling of losing his wife, and who was experiencing an enormous personal attack on his self-worth. As a result, he impulsively shot his wife, and then immediately turned the murder weapon on himself, shooting himself three times, twice in the chest, and once a glancing blow in the head. It was evident that he was trying to end his life at the same time. He probably would have if it had not been for the accidental discovery of the crime immediately after it happened by someone who just happened to pass by the remote location, [¶] Inmate Shippman’s degree of remorse and sorrow is deep and sincere. He fully realizes the seriousness of his actions, and the penalty that he must pay. As a result, he has no bitterness at all towards his prison incarceration and sentence. He repeated that he deserves every bit of the punishment that he is receiving and might receive in the future.”

In assessing Shippman’s potential for future dangerousness, the 2004 evaluator opined that he “poses a very low risk for any aggression or violent behavior.” The evaluator characterized him as “passive, conforming, patient [and] thoughtful.” If released, the psychologist concluded Shippman would pose an “extremely low” potential for violence. “In fact, based upon his years of incarceration, the maturity he has gained over those years, his deep sense of sorrow and remorse about the commitment offense, his ever-deepening awareness of spiritual truths, and the fact that he has learned that he must not take things into his own hands when disaster strikes, he actually poses less of a threat to society than the average citizen.” (Italics added.) The psychologist then stated: “In this case, there are no risk factors for this inmate that would cause this man to act out in a violent manner. His behavior in the commitment offense was related to his serious marital problems, deep emotional anguish, and beclouded thinking due to the Valium he was taking to help control these turbulent emotions. At this point in his life, he has matured a great deal. He has learned to handle stressful situations far differently than he dared at the time of the offense, and he has a totally different perspective towards life.” Finally, the evaluator suggested that Shippman had “a deep understanding of the principles of anger management” and concluded that he had no further need to engage in further anger management training, psychotherapy or psychological evaluation.

The psychological evaluation conducted for the 2008 hearing is equally positive. The evaluation indicates that Shippman has been “programming in an excellent fashion.” The report states that Shippman has no psychiatric diagnosis. The only current medical diagnosis that is noted is “GERD” (gastroesophageal reflux disease). He is assessed on a scale of global functioning (i.e., how well one adapts to life’s problems), measured from zero to 100, as 95—or functioning in the superior range. After reviewing his results on various standardized assessment guides indicating potential for future violence and recidivism—all of which indicate that his risk ranges from low to very low—the psychologist concluded that Shippman poses a “very low” overall risk for future violence. The psychologist indicated that if Shippman “act[ed] in passion or violence in the future, it would increase his violence risk,” but concluded that there is “no reason to believe that he will commit this impulsive act. . . .” The report concludes, “At this time there is significant evidence that the inmate has the skills and insight necessary for decreasing his violence risk.”

II.

Before coming to this court, Shippman filed a petition for habeas corpus in the Napa County Superior Court, which denied his petition. In holding that the Board’s decision was supported by some evidence, the superior court pointed out that the Board had cited the gravity of the commitment offense, marginal parole plans, and unstable social history, and correctly recognized that that the Board relied “most heavily” on Shippman’s “lack of insight into the causative factors of the crime.” In my view the record contains no evidence to support any of these findings, much less that Shippman will pose an unreasonable risk to public safety if granted parole.

A parole denial by the Board must be upheld if there is “some evidence” supporting the conclusion that the petitioner’s release would pose an unreasonable risk to public safety. (In re Lawrence (2008) 44 Cal.4th 1181, 1208-1210 [82 Cal.Rptr.3d 169, 190 P.3d 535]; In re Shaputis (2008) 44 Cal.4th 1241, 1254 [82 Cal.Rptr.3d 213, 190 P.3d 573].) The court’s review is “unquestionably deferential, but certainly is not toothless, and ‘due consideration’ of the specified factors [establishing parole unsuitability] requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.” (In re Lawrence, supra, at p. 1210.) With this standard in mind, there is in my opinion no evidence to support any of the factors relied on by the Board to deny parole.

Commitment Offense

The Board found that the crime was committed in a “dispassionate” and “calculated manner,” evidencing “exceptional callous disregard for human suffering.” The Board noted that the victim came t