In re Brown CA4/1

Filed 9/24/14 In re Brown 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ANTHONY BROWN D065504

on (San Diego County
Super. Ct. No. HC 2006,
Habeas Corpus. CR 142377)

Petition for writ of habeas corpus. Petition denied.

Law Office of Diane T. Letarte and Diane T. Letarte for Petitioner.

Kamala D. Harris, Attorney General, Jennifer A. Neil, Assistant Attorney General,

Sara J. Romano and Brian C. Kinney, Deputy Attorneys General, for Respondent.

In 1994, petitioner Anthony Brown was sentenced to 15 years to life based on his

conviction for second degree murder after he assaulted his then ex-girlfriend and current

wife and caused the death of her unborn fetus. Brown has since been incarcerated and

has largely avoided any disciplinary action during incarceration. At Brown's 2012 parole

suitability hearing, the Board of Prison Hearings (BPH) concluded he was suitable for

parole because there was no evidence supporting a conclusion he would pose an

unreasonable risk of danger to society if released. However, Governor Edmund G.
Brown, Jr., (the Governor) found Brown did pose an unreasonable risk of danger to

society if released and therefore reversed the BPH's decision. Brown petitioned for writ

of habeas corpus challenging the Governor's decision and we issued an order to show

cause.

I

FACTS

A. The Offense

In 1993, Brown became enraged at his then ex-girlfriend, Mia, when he found

evidence she had been talking on the phone with another man. When she tried to leave,

he pushed her to the floor and began kicking her all over, including her abdomen, even

though she was eight and one-half months pregnant. When Mia tried to reach for the

phone, he snatched it away and kicked her again in the stomach and other parts of her

body. During the attack, Brown cursed at her, stating "[t]his is what you get" and also

exclaimed "[f]uck that baby. I don't care if you need to go to the bathroom. After I finish

kicking your ass, you're going to be going to the bathroom on yourself." He eventually

allowed her to leave, but the fetus died as a result of the attack.

B. Brown's Criminal Background

Prior to the offense in question, Brown had an extensive criminal history and his

performance on probation and parole was unsatisfactory.

2
 C. Brown's Performance in CYA and Prison

Brown was convicted in 1994. In prison, he received three "CDC 128A's" and

four "CDC 115's,"1 the last occurring in 2005, none of which involved violence. He has

remained discipline free since 2005. (Ex H, p. 4; Ex. A, pp. 84-85.)

The evidence showed, and the Governor did not question, that Brown's conduct

while in prison had been good and showed a lengthy period of positive rehabilitation.

These included participation in numerous violence awareness and anger management

classes between 1999 and 2012, which taught him how to control his anger through

communication and to "walk away." He has also participated in substance abuse groups

since 2001. The evidence also demonstrated, and again the Governor did not dispute,

that Brown had viable parole plans, including family support systems, job offers, living

arrangements, and relapse prevention programs.

D. Brown's Psychological Evaluations

The psychological evaluation prepared in conjunction with Brown's 2012 parole

hearing (the Stotland Assessment), which served as an update to a 2009 Comprehensive

Risk Assessment of Brown by Dr. Reed (the Reed Assessment), concluded he showed

"generally fair insight." However, after noting Brown "attributes his involvement in the

commitment offense to becoming jealous," the Stotland Assessment cautioned Brown

"does not understand the underlying causes of his inappropriate jealous reaction and

1 "[A] CDC 115 documents misconduct believed to be a violation of law which is
not minor in nature. A form 128 documents incidents of minor misconduct." (In re Gray
(2007) 151 Cal.App.4th 379, 389.)
3
other antisocial behavior" (italics added) and Brown "could benefit from assistance to

better develop insight."

The Reed Assessment apparently reached a slightly different conclusion than the

Stotland Assessment. The Reed Assessment concluded Brown had accepted

responsibility for the death of the fetus, was remorseful, and had "demonstrated good

understanding of the causative factors underlying the commitment offense." However,

the Reed Assessment was apparently based in part on Brown's description of the offense

to Dr. Reed that, although containing an admission of responsibility for the death of the

fetus, minimized Brown's actions and shifted some responsibility to Mia. Brown told

Dr. Reed the events occurred because:

" 'Mia was eight months pregnant . . . and emotions were running
high because I had my [six-month old] son there. [Mia] did not
approve of me having a child by another woman. So, emotions were
running high. [When Mia] sees my son [f]rom that point we argued
. . . and then we started physically fighting.' When asked what he
did then, [Brown] said 'I slapped her on the side of the head and
pushed her and she fell down on her butt. She jumped on my back
and I threw her off. She fell on the bed and that is when she dove on
me. She jumped from the bed onto my back. Then I threw her off
me.' When asked how did she fall, [Brown] said 'She fell on her
stomach.' [¶] . . . He also said he 'never kicked or punched her with
closed fist.' "

Brown also told Dr. Reed this was the one and only time they had physically fought,

although there is some evidence in the record undermining this claim.2

2 The probation officer's report submitted in conjunction with Brown's original
sentencing contained an interview with Brown's mother. She told the probation officer
she was in the house at the time of the attack and could hear (from another room) that
Mia and Brown were on the bed "wrestling and tussling," and the mother said she "knows
4
The 2009 Reed Assessment concluded that, "[i]n light of all of the foregoing, his

clinically estimated risk of violence within the community setting on parole is low as

compared to US adult male offenders." However, a 2005 evaluator (the Castro

Assessment) described Brown's risk of violence as "low to moderate," and expressed

(among other concerns) that Brown "externalized responsibility for his actions."

II

HISTORY OF PROCEEDINGS

A. The BPH Proceedings

The 2009 Hearing

At Brown's 2009 parole suitability hearing,3 the BPH concluded Brown was not suitable

for parole because of the nature of the commitment offense, Brown's unsatisfactory

performance under prior grants of probation and parole, and his extensive and escalating

prior criminal history. The BPH also concluded Brown's "past and present attitude

toward the crime weighs heavily against [suitability because Brown] continues to

minimize his involvement in the murder, [and] does not take full responsibility for his

actions and in part blames others for this crime," noting Brown's version of the events

was that he was fending off blows from Mia and she fell during the scuffle, and that he

did not kick or hit Mia in the stomach. The BPH recognized the Reed Assessment was

the sound of the bed when the two are on it, wrestling around and fighting, because this is
not the first time they had an altercation with each other in the bedroom." (Italics
added.)

3 The People have moved to supplement the record with the transcript of Brown's
2009 hearing before the BPH. We grant the motion.
5
favorable, but the BPH expressed concern "about the [Reed Assessment] because it

doesn't even speak to the [Castro Assessment] and . . . it's unfortunate [Dr. Reed] didn't

go back because the [Castro Assessment] wasn't very positive, and [the Reed

Assessment] doesn't really step up and give us some information as to why he moved in

such a different direction."

The 2012 Hearing

At Brown's 2012 parole suitability hearing, the BPH concluded Brown was

suitable for parole because, although "the record reflects some circumstances tending to

show unsuitability for parole, which were considered by the Panel during deliberations,

these are far outweighed by circumstances tending to show" suitability. Among the

factors cited by the BPH for its determination was that Brown (1) had "a stable social

history before incarceration but, more importantly, while incarcerated," (2) "has shown

signs of remorse and accepted fully his responsibility for the actions [and] [h]is testimony

here today and his discussion with clinicians were the evidence of that," and (3) the Reed

Assessment "found him to be low overall [and] found no identifiable risk factors in the

dynamic domain." Accordingly, the BPH granted Brown parole.

B. The Governor's Decision

The Governor, after reviewing the record, concluded Brown posed an

unreasonable risk if released and reversed the BPH's grant of parole. The Governor

specifically considered the "brutal and reprehensible" nature of the crime. The Governor,

after comparing Brown's version of the events to the Governor's view of the events, also

6
stated Brown continues to whitewash "the extent of the violence he inflicted . . . [and]

significantly minimizes his culpability in the death of his unborn son."

The Governor also stated Brown "has not sufficiently explained the reasons for his

rage and violence." The Governor noted Brown told the BPH he beat Mia "because he

was jealous and selfish," and agreed with the observations of the Stotland Assessment

that Brown " 'does not understand the causes of his inappropriate jealous reaction and

other antisocial behavior.' " The Governor noted that, "[c]onsistent with his deficient

insight, [Brown] has not participated in any self-help programs on the subject of domestic

violence" and observed Brown needed to "comprehensively explore what it was about his

past or personality that allowed [him] to repeatedly beat and kick a very pregnant woman,

so that he can constructively deal with issues that will arise in his future romantic

relationships [and] [u]ntil he does so, I am not prepared to release him on parole."

III

LEGAL STANDARDS

A. The Parole Decision

The decision whether to grant parole is an inherently 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 BPH's

regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) The Governor's decision to

affirm, modify, or reverse the decision of the BPH rests on the same factors that guide the

BPH's decision (Cal Const., art. V, § 8(b)), and is based on "materials provided by the

parole authority." (Pen. Code, § 3041.2, subd. (a).) "Although these provisions

7
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 [BPH's] decision." (Rosenkrantz, at pp. 660-661.)

In making the suitability determination, the BPH and Governor must consider

"[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b); hereafter,

reference to § 2402 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 the inmate: (1)

committed the offense in a particularly heinous, atrocious, or cruel manner4; (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

4 Factors supporting the finding that 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.
8
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 upon release; and (9) has engaged in institutional activities that indicate

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

particular case] is left to the judgment of the Governor." (Rosenkrantz, supra, 29 Cal.4th

at p. 679; § 2402, subds. (c), (d).) Thus, the endeavor is to try "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 only be found by a preponderance of the

evidence, the Governor is free to consider facts apart from those found true by a jury or

judge beyond a reasonable doubt. (Rosenkrantz, supra, 29 Cal.4th at p. 679.) Indeed, the

Governor's power to conduct a de novo review of the BPH's decision permits the

Governor to "sit[] as the trier of fact and . . . draw reasonable inferences from the

evidence" (In re Smith (2009) 171 Cal.App.4th 1631, 1639), and "to resolve conflicts in

the evidence and to decide the weight to be given the evidence" (In re Pugh (2012) 205

Cal.App.4th 260, 265) unconstrained by the BPH's factual and credibility determinations.

(Cf. Rosenkrantz, at p. 679 [Governor "not required by law to credit the same evidence

9
when exercising his constitutional authority in reviewing a parole decision of the

[BPH]"].) "Although 'the Governor's decision must be based upon the same factors that

restrict the [BPH] in rendering its parole decision' [citation], [since] the Governor

undertakes an independent, de novo review of the inmate's suitability for parole

[citation], [he] has discretion to be 'more stringent or cautious' in determining whether a

defendant poses an unreasonable risk to public safety. [Citation.] '[T]he precise manner

in which the specified factors relevant to parole suitability are considered and balanced

lies within the discretion of the Governor. . . .' " (In re Lawrence (2008) 44 Cal.4th 1181,

1204 (Lawrence).)

B. Standard for Judicial Review of Parole Decisions

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

[BPH] denying parole . . . 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 [BPH] supports the decision to deny

parole, based upon the factors specified by statute and regulation." (Rosenkrantz, supra,

29 Cal.4th at p. 658.) Rosenkrantz further held that "courts properly can review a

Governor's decisions whether to affirm, modify, or reverse parole decisions by the [BPH]

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 [BPH]." (Id. at p. 667.)

10
 The "some evidence" standard is "extremely deferential" and requires "[o]nly a

modicum of evidence." (Rosenkrantz, supra, 29 Cal.4th at pp. 679, 677.) A court may

not vacate an administrative decision that is subject to the "some evidence" review

simply because it disagrees with the assessment of the Governor. (Ibid.) 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 that 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 [Governor] supports the decision to deny parole,

based upon the factors specified by statute and regulation." (Id. at p. 658.)

In Lawrence, supra, 44 Cal.4th 1181, the Supreme Court noted its decisions in

Rosenkrantz and In re Dannenburg (2005) 34 Cal.4th 1061, and specifically

Rosenkrantz's characterization of "some evidence" as "extremely deferential" and

requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, 29 Cal.4th at pp. 679,

677), had generated confusion and disagreement among the lower courts "regarding the

precise contours of the 'some evidence' standard." (Lawrence, at p. 1206.) Lawrence

explained that some courts interpreted Rosenkrantz as limiting the judiciary to reviewing

whether "some evidence" exists to support an unsuitability factor cited by the BPH or

Governor, and other courts interpreted Rosenkrantz as requiring the judiciary to instead

review whether "some evidence" exists to support "the core determination required by the

statute before parole can be denied—that an inmate's release will unreasonably endanger

public safety." (Lawrence, at pp. 1207-1209.)

11
 The Lawrence court, recognizing the legislative scheme contemplates "an

assessment of an inmate's current dangerousness" (Lawrence, supra, 44 Cal.4th at

p. 1205), resolved the conflict among the lower courts by clarifying that the analysis

required when reviewing a decision relating to a prisoner's current suitability for parole is

"whether some evidence supports the decision of the [BPH] or the Governor that the

inmate constitutes a current threat to public safety, and not merely whether some

evidence confirms the existence of certain factual findings." (Id. at p. 1212.) Lawrence

clarified that the standard for judicial review, although "unquestionably deferential, [is]

certainly . . . not toothless, and 'due consideration' of the specified factors requires more

than rote recitation of the relevant factors with no reasoning establishing a rational nexus

between those factors and the necessary basis for the ultimate decision—the

determination of current dangerousness." (Lawrence, at p. 1210, italics added.) Indeed,

it is Lawrence's numerous iterations (and variants) of the requirement of a "rational

nexus" between the facts underlying the unsuitability factor and the conclusion of current

dangerousness that appear to form the crux of, and provide the teeth for, the standards

adopted in Lawrence to clarify and illuminate "the precise contours of the 'some

evidence' standard." (Id. at p. 1206.)

After clarifying the applicable standard of review, Lawrence addressed how one

"unsuitability" factor—whether the prisoner's commitment offense was done in a

particularly heinous, atrocious, or cruel manner—can affect the parole suitability

determination, and whether the existence of some evidence supporting the BPH's finding

that the offense was particularly heinous, atrocious, or done in a cruel manner is alone

12
sufficient to deny parole. Lawrence concluded that when there has been a lengthy

passage of time, the Governor may continue to rely on the nature of the commitment

offense as a basis to deny parole only when other facts in the record, including the

prisoner's current demeanor and mental state, provide a rational nexus for concluding an

offense of ancient vintage continues to be predictive of current dangerousness.

(Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221.)

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

(Rosenkrantz, supra, 29 Cal.4th at p. 679), 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 unreasonable risk of danger to the public. (In re

Lee (2006) 143 Cal.App.4th 1400, 1408.) It violates a prisoner's right to due process

when the Governor attaches significance to evidence that forewarns no danger to the

public or relies on an unsupported conclusion. (See, e.g., In re DeLuna (2005) 126

Cal.App.4th 585, 597 [BPH 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) [Governor misconceived inmate's history of

violent crime and nature of the commitment offense]; In re Lee, at pp. 1411-1414

[Governor overstated seriousness of commitment offense and improperly faulted inmate

for late acceptance of responsibility].)

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 IV

ANALYSIS

A. Analysis of Merits

The Governor's decision here did not dispute that the evidence on most of the

relevant suitability factors,5 as well as the evidence on most of the unsuitability factors,

militated in favor of finding Brown suitable for parole. In this evidentiary context, we

must examine whether, notwithstanding the numerous factors supporting parole, there is

some evidence that Brown's current mental attitude provides a rational nexus for

concluding the circumstances of the crime continue to be predictive of current

dangerousness.

The Governor found that, notwithstanding the evidence (from both Brown and the

Reed Assessment) Brown expressed remorse and accepted responsibility, Brown

nevertheless was an unreasonable risk if released on parole because he "fail[s] to come to

grips with the severity and callousness of his actions" and "whitewashes the extent of the

violence he inflicted," and continues to proffer a version of events that minimized his

own culpability while suggesting some fault was attributable to Mia. The Governor also

found Brown had not shown a sufficient understanding about, or insight into, why his

jealousy would cause him to react with such extreme violence toward a particularly

vulnerable woman. Because the Governor's conclusion of Brown's current dangerousness

5 Brown has a family support system, has shown signs of remorse, made realistic
plans for release, engaged in institutional activities that indicate an enhanced ability to
function within the law on release, and does not possess a prior record of violent crime.
(§ 2402, subd. (d).)
14
appears exclusively to have been based on his findings that, as of the 2012 hearing,

Brown had not yet accepted full responsibility for his conduct or attained adequate

insight into his criminal conduct, we must examine these factors,6 determine whether

there is any evidentiary support for these findings, and assess whether those deficiencies

could rationally be indicative of Brown's current dangerousness.

In In re Powell (2010) 188 Cal.App.4th 1530, the court recognized that although

"insight is not listed among the criteria the BPH is to consider in determining whether an

inmate is suitable for parole [citations], since the decision in [Shaputis I], the [BPH] has

routinely invoked lack of insight to justify a finding of unsuitability. [Citation.]

[Shaputis I] articulates the principle that the [BPH] may rely on static factors to support

an unsuitability finding only if there is a rational basis for concluding ' "that an inmate

continues to pose an unreasonable risk to public safety." ' [Quoting Shaputis I, supra, 44

Cal.4th at p. 1255.] In that case, the inmate's history of domestic violence (an immutable

characteristic) was regarded as a valid indicator of current dangerousness in part because

of his inability 'to gain insight into his antisocial behavior.' (Id. at p. 1260.) There was

objective evidence in that case that fully supported such a finding." (In re Powell, at

6 Although both Lawrence and In re Shaputis (2008) 44 Cal.4th 1241, 1260
(Shaputis I) approved consideration of the prisoner's failure adequately to express
remorse for or "insight" into his or her conduct as a basis for concluding the prisoner is
unsuitable for parole, at least one court has expressed discomfort with an approach that
indirectly requires the prisoner to admit guilt even though the statute and applicable
regulations (see Pen. Code, § 5011, subd. (b); Cal Code Regs., tit. 15, § 2236) preclude
the Governor from conditioning a prisoner's parole on an admission of guilt. (See In re
Palermo (2009) 171 Cal.App.4th 1096, 1110-1111, disapproved on other grounds in In re
Prather (2010) 50 Cal.4th 238, 252-253; accord, In re Juarez (2010) 182 Cal.App.4th
1316, 1340-1342.)
15
pp. 1539-1540.) Powell recognized that, like all evidence relied on to find an inmate

unsuitable for release on parole, " ' "[l]ack of insight" is probative of unsuitability only to

the extent that it is both (1) demonstrably shown by the record and (2) rationally

indicative of the inmate's current dangerousness.' " (Id. at p. 1542.)

We must therefore examine whether the record demonstrably shows there was a

"modicum of evidence" from which the Governor could have concluded Brown

"significantly minimizes his culpability" for the death of the fetus, and lacked adequate

insight into or understanding about why his jealousy triggered a reaction involving such

extreme violence toward a very pregnant woman. If there is some evidence supporting

those determinations, we must also evaluate whether (considering Brown's commitment

offense and background) those facts may be rationally indicative of the inmate's current

dangerousness.

We begin by noting the Governor concluded Brown was unsuitable for parole

because the circumstances of Brown's commitment offense, when coupled with his

failure to fully accept responsibility and his insufficient insight into why he committed

such a vicious attack, made Brown an unreasonable risk of danger were he released on

parole. The Governor's first conclusion―that Brown committed the offense in a

particularly brutal and reprehensible manner―has a modicum of evidentiary support: the

evidence that Brown repeatedly kicked a very pregnant woman in the abdomen as

retribution for her perceived infidelity, expressing conscious disregard for the

consequences to her innocent fetus, supports that finding. However, as Lawrence

teaches, when (as here) there has been a lengthy passage of time, the Governor may

16
continue to rely on the nature of the commitment offense as a basis to deny parole only

when there are other facts in the record, such as the prisoner's current demeanor and

mental state, that provide a rational nexus for concluding an offense of ancient vintage

continues to be predictive of current dangerousness. (Lawrence, supra, 44 Cal.4th at

pp. 1211, 1214, 1221.)

In this case, the evidence of "current demeanor and mental state" cited by the

Governor were the Governor's conclusions that (1) Brown had not accepted full

responsibility for his actions because he "whitewashes" his conduct and (2) Brown had

not dealt with the reasons he viciously assaulted Mia because he lacked a sufficient

understanding about, or insight into, why his jealousy would cause him to react with such

extreme violence toward a particularly vulnerable woman. We must examine these

concerns to determine whether the findings are "demonstrably shown by the record" as

well as "rationally indicative of the inmate's current dangerousness." (In re Powell,

supra, 188 Cal.App.4th at p. 1542.)

There is some evidence Brown has not accepted full responsibility for his actions

because there is some evidence he minimizes both his conduct and his responsibility. In

his statements to the clinicians, reflected in both the 2005 Castro Assessment and the

2009 Reed Assessment, Brown denied repeatedly striking and kicking Mia, and claimed

Mia was the instigator of both the argument (because of her jealousy toward his having a

son with another woman) and of the physical altercation, and that she fell when as he

tried to ward her off in reaction to her assault. Similarly, in his testimony before the BPH

in 2009, he stated he pushed and slapped Mia when she grabbed him but denied punching

17
or kicking her. In his testimony before the BPH in 2012, his narrative description of the

offense stated that Mia "threw something at me," an argument ensued, and he slapped her

on the side of the head, pushed her down and kicked her, and walked out of the bedroom.

This cursory description failed to acknowledge the extent to which he repeatedly directed

his punches and kicks at Mia's belly, and a later colloquy provides additional evidence

Brown apparently has continuing difficulty acknowledging the extent of his attack on

Mia,7 which provides a modicum of evidence to support the Governor's factual

determination that Brown continues to minimize both his conduct and his responsibility.

(In re Shaputis (2011) 53 Cal.4th 192, 212 ["[u]nder the 'some evidence' standard of

review, the parole authority's interpretation of the evidence must be upheld if it is

reasonable, in the sense that it is not arbitrary"] (Shaputis II).) Although Brown asserts

the Governor's conclusions regarding minimization are based on a selective reading of

7 At the 2012 BPH hearing, a BPH commissioner asked Brown for his answer to the
Stotland Assessment's observation that Brown attributed his involvement in the
commitment offense to becoming jealous but " 'does not understand the underlying
causes of his inappropriate jealous reaction and other antisocial behavior.' " Brown
responded he got "jealous to the point where someone got--where my child got killed."
However, the BPH commissioner clarified that the question was why Brown experienced
a jealousy reaction so intense that it would allow Brown to engage in such a vicious
assault. Brown responded "when we was pushing back and forth, I didn't know that I
killed . . . my child . . . until later on. But I still shouldn't have got into that type of--."
The BPH commissioner then chided Brown that "it's more than pushing. It's about
kicking and . . . [¶] . . . [¶] . . . hitting . . . . [¶] . . . [¶] Because pushing didn't cause that.
The kicking and hitting did. You and I know that." Brown responded only that, "It's
never, under no circumstances, okay to hit a pregnant woman, punch, kick, push or
engage in any of that." The BPH commissioner then replied, "All right. But you're not
answering what [are] the underlying causes for you to allow to rise to that," and Brown's
response was "I was hurt . . . my emotions got the best of me and I just couldn't control
my emotions."
18
the record, and ignore other passages showing Brown does accept responsibility for his

actions, "comments . . . may be regarded as downplaying and not fully confronting the

gravity of the criminal misconduct . . . and [e]ven if this court might not have drawn that

inference, we cannot say that it was irrational." (In re Stevenson (2013) 213 Cal.App.4th

841, 869.)

There is also some evidence supporting the Governor's conclusion Brown did not

have a sufficient understanding about, or insight into, why his jealousy and selfishness

would cause him to react with such extreme violence toward a particularly vulnerable

woman when "[m]any [people] are jealous and selfish, but do not abuse women." The

Stotland Assessment, while characterizing Brown's insight as "generally fair,"

specifically cautioned that he "does not understand the underlying cause of his

inappropriate jealous reaction and other antisocial behavior" and concluded Brown

"could benefit from assistance to better develop insight." When specifically asked to

respond to why he believed he reacted so violently to Mia's perceived infidelity, Brown's

only response was that he was "hurt [and] my emotions got the best of me and I just

couldn't control my emotions." (See fn. 7, ante.) The Governor could rationally

conclude the Stotland Assessment correctly recognized Brown lacks an adequate

understanding of or insight into his violent behavior (In re Mims (2012) 203 Cal.App.4th

478, 491 [the deferential standard of review precludes this court from "reweighing the

evidence, reconsidering the credibility of the expert opinions considered by the [BPH],

and substituting its own judgment" for the Governor's evaluation of the experts'

opinions]) and the Governor could rationally conclude the fact Brown recognized that he

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lost control of his emotions is not commensurate with an adequate understanding of the

root causes for why extreme violence is Brown's response to a loss of control.8

Because we conclude there is a modicum of evidence for the Governor's factual

determinations, we are left with the question of whether (considering Brown's

commitment offense and background) such facts may be rationally indicative of the

inmate's current dangerousness. Shaputis II states our Supreme Court has "expressly

recognized that the presence or absence of insight is a significant factor in determining

whether there is a 'rational nexus' between the inmate's dangerous past behavior and the

threat the inmate currently poses to public safety." (Shaputis II, supra, 53 Cal.4th at

p. 218.) Similarly, the courts have repeatedly observed that an inmate's minimization of

the gravity of the criminal misconduct that he or she carried out can be a " 'significant

predictor[] of an inmate's future behavior should parole be granted.' " (In re Stevenson,

supra, 213 Cal.App.4th at p. 869; accord, In re Tapia (2012) 207 Cal.App.4th 1104, 1112

["An inmate's downplaying or minimizing aspects of the commitment offense reflects a

8 Brown argues the Governor improperly credited the Stotland Assessment and
ignored the Reed Assessment (to which the Stotland Assessment was merely a
supplement), which found Brown did have a "good understanding of the causative factors
underlying the commitment offense." First, the determination of which evaluation was
more credible is vested in the Governor, and the more recent assessment could rationally
be viewed as more credible, particularly considering Brown's apparent struggle to
articulate why he reacted with extreme violence. Moreover, the Governor could
rationally have viewed the Reed Assessment with skepticism, both because (as observed
by the 2009 BPH panel) the Reed Assessment contained no reference to an earlier
assessment that was not positive (and hence did not explain why it reached a different
conclusion), and because the Reed Assessment may have been founded on a description
of the commitment offense by Brown that falsely portrayed the actual violence he
inflicted.
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denial of responsibility, and is probative of current dangerousness."].) We conclude the

requisite rational nexus exists between the Governor's factual determinations and his

ultimate conclusion that Brown currently poses an unreasonable risk of danger if released

from prison, and we therefore affirm the Governor's decision reversing the BPH and

denying Brown parole.

DISPOSITION

The order to show cause is dismissed and the petition for writ of habeas corpus is

denied.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

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