In re Durant CA4/1

Filed 5/26/15 In re Durant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

D066703
In re DAVID DURANT

on
(Super. Ct. No. HCN1301)
Habeas Corpus.

APPEAL from an order of the Superior Court of San Diego County, Harry M.

Elias, Judge. Reversed.

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

General, Phillip J. Lindsay and Gregory J. Marcot, Deputy Attorneys General, for

Appellant.

Michael Satris, under appointment by the Court of Appeal, for Respondent.
 INTRODUCTION

In 1983, Durant pled guilty to second degree murder of his girlfriend's three-year-

old daughter, Stephanie, after he brutally beat her with a closed fist for wetting the bed.

(Pen. Code, § 187.)1 The court sentenced him to an indeterminate term of 15 years to life

in prison. He first became eligible for parole in November 1991.

In 2012, at his ninth parole consideration hearing, the Board of Parole Hearings

(Board) found Durant suitable for parole. However, the Governor exercised his

constitutional and statutory authority to review the Board's parole grant and reversed the

Board's decision. Durant filed a petition for writ of habeas corpus with the trial court

challenging the Governor's decision. The trial court issued an order granting habeas

relief, finding the Governor's reversal was arbitrary and was not supported by some

evidence.

The acting warden of the prison where Durant is incarcerated appeals the order

contending some evidence supports the Governor's decision that Durant is unsuitable for

parole. We agree and, consequently, reverse the trial court's order granting habeas relief.

BACKGROUND

Commitment Offense2

In the early morning hours of March 1, 1983, Durant was awake after an argument

with his girlfriend. He awoke Stephanie about 2:00 a.m. to take her to the bathroom

1 Further statutory references are also to the Penal Code unless otherwise stated.

2 The summary of the commitment offense is taken primarily from the 1983 police
report and probation report.
2
because she had a habit of wetting the bed. However, she had already wet the bed. He

got clean clothes and laid Stephanie on the living room floor to change her. When she

began whining, he spanked her.3 When she began crying, he began hitting her. As she

cried, he "lost it" and started punching her. Durant initially stated he did not remember

how many times he hit Stephanie or where on her body he struck her. Later, however, he

admitted hitting Stephanie at least 10 times. He hit her in the stomach with his fist and an

open hand.

When Stephanie awakened her mother later that morning, Stephanie's lip was cut

and there was blood in her vomit. Durant's girlfriend claimed she checked Stephanie that

day and the next, but denied seeing any bruises other than a black eye. Durant told a

psychiatrist Stephanie's stomach seemed tight when he touched it.

On the evening of March 2, 1983, almost two days after the beating, Durant's

girlfriend called the San Diego Hotline asking where someone could go to get

anonymous medical treatment and hung up when she learned there was no such place.

Five minutes later, Durant called the hotline also asking about anonymous medical help

for a sick child who had been throwing up for two days and who had a swollen stomach.

When the operator said the child should go to the hospital because her appendix might

have ruptured, he asked, "What if it's child abuse?" Durant then gave his name and

promised to take Stephanie to the hospital.

3 When the investigating detective asked Durant why Stephanie would cry when he
got her up to the bathroom, he replied, "Well sometimes I'm one way and sometimes I'm
another. I guess she was scared."
3
 When Durant and his girlfriend brought Stephanie to the emergency room,

Stephanie's stomach was distended and she was in a lot of pain. She had a cut on her

chin and a swollen lip. She also had a black left eye and purple bruising to her right ear.

Her lip was swollen. While being treated, whenever Stephanie heard a male voice, she

would say, "Oh, oh, daddy's here." When a nurse touched Stephanie, she cried, "Don't hit

me!" After the nurse assured her they would not hurt her, Stephanie commented,

"Mommy and Daddy hit me but they are always sorry."

During emergency surgery, Stephanie was found to have two perforations of her

intestines caused by a blow to the stomach with a fist or foot. She also had an old

perforation indicating a prior similar injury. There were multiple areas of chronically

scarred tissue with micro-abscesses in the abdominal cavity. Because of the most recent

intestinal perforation, fecal material from her bowel had spilled into and contaminated the

entire abdominal cavity leading to fecal peritonitis. A large portion of her intestine was

removed. However, Stephanie died a few hours later.

In addition to the abdominal injuries, an autopsy showed Stephanie had numerous

bruises covering her entire head, chest, back, buttocks and legs. These injuries were

inflicted within 48 hours of her hospitalization. Additionally, she previously suffered

four broken ribs. Medical experts concluded all of the injuries were deliberately inflicted

and were so severe an adult of average strength would have had to use almost all of his or

her force to cause such damage.

When a police detective contacted Durant at the hospital, he was "visibly shaken

and upset." When asked how many times he had struck Stephanie other than a simple

4
spanking, he said, "More than enough times." He stated he would hit her for wetting the

bed and admitted he had been going " 'overboard' with physical discipline for about the

last year and a half." He used to spank her, but then started hitting her all over her body.

He also admitted hitting her in the stomach with his fist three to six months before the

incident.

Witness Accounts of Abuse

One of Stephanie's sisters reported Durant hit Stephanie and Stephanie's two

sisters with a belt and a wire coat hanger. The sister also said Durant gave her a black

eye when he kicked her in the eye. She reported Durant gave her mother a black eye

when she tried to intervene when Durant was hitting Stephanie.

Neighbors reported seeing the children with bruises, especially Stephanie, who

was described as always having bruises. One neighbor reported seeing Stephanie with a

blood-red eye in October 1981 and a bruised chin and ear. Stephanie and her sisters told

the neighbor Stephanie got the injuries from Durant beating her. The neighbor also

recalled seeing Stephanie's mother with a black eye and the girls told the neighbor Durant

hit their mother when she tried to stop him from hitting Stephanie. The same neighbor

recalled Stephanie had a bowel problem eight months before her death.

Stephanie's grandfather reported he knew Durant was beating Stephanie for about

a year or a year and a half before her death. He recalled once seeing a large bruise on the

left side of Stephanie's jaw and it looked like the jaw was crooked. He also noticed

bruises on her buttocks and legs. Another time, Stephanie's right eye was blood red.

5
When the grandfather's wife questioned Stephanie's mother about why she did not do

anything about the beatings, Stephanie's mother said she was afraid of Durant.

Durant's Versions of Events

A

In a 1983 declaration, apparently submitted for sentencing, Durant stated he was

watching television in the early morning of March 1, 1983, when Stephanie began to cry.

He discovered she had wet her bed and she was upset. Durant stated he "began to feel a

loss of my thought process." He felt himself losing control. He started to spank

Stephanie "and then things became like a dream. I hit her with my fist." He admitted

striking her numerous times, but did not recall exactly how many times. He changed her

wet clothes and put her back to bed.

He stated he did not see her again until the evening of March 2, 1983, when his

girlfriend said Stephanie was still sick. Stephanie vomited when he tried to give her

soup. He realized she was hurt and it was his fault. They made two phone calls for

medical advice and took her to the emergency room as directed.

Durant stated, "the only child I have had trouble using control with was

Stephanie." He stated he was depressed, bored and had a hard time finding work and

"Stephanie was the focus of all my frustrations and anger." He stated he never wanted to

hurt her and "always felt sick after I hit her." He stated he was prepared to go to jail and

requested counseling.

6
 B

In a 1990 psychiatric evaluation, Durant stated he was drinking heavily and

watching television when Stephanie came out of her room whimpering with "messed

pants." "He told her to come to him and he spanked her, thinking that she was old

enough to go to the bathroom if she needed to." He admitted he had struck her a number

of times before. He stated he went fishing the next day and came home to find his

girlfriend upset about Stephanie's status. He stated they then called the crisis center for

confidential medical care. At a 1995 parole hearing, Durant denied he had beaten the

other children.

C

In 2009, Durant described the events of the crime relatively consistently with the

official version of events, but the psychologist noted several differences. Durant said

about 20 hours elapsed between when the incident of abuse occurred and when he sought

medical help, whereas the official version indicated two days passed. Durant also said he

abused Stephanie for only four months whereas he previously told police the abuse

occurred over 18 months. Finally, Durant denied physical abuse of Stephanie's mother.

He denied giving her a black eye, but acknowledged pushing her.

At the 2009 parole hearing, Durant declined to discuss the specifics of the crime.

He did admit for the first time, however, to being abusive to all the children and their

mother. He did not believe he hit Stephanie's sisters with a closed fist, but he "spanked

them too hard" and slapped their faces. He also admitted to being emotionally and

verbally abusive.

7
 D

In the 2012 subsequent risk assessment, Durant was questioned about the

discrepancies between his version of events and those of the official record. Durant

stated once he came home and saw Stephanie was severely hurt and complaining of her

stomach hurting, it took him 20 to 24 hours (rather than two days) to seek help. He took

her to the hospital one hour after calling the medical hotline for anonymous medical help.

Durant also changed his position regarding the length of time he abused Stephanie saying

he abused her for at least a year, noting his view about what constituted physical abuse

has changed. "He now views his pattern of spanking in the initial months as abuse and he

acknowledges that the spanking intensified in severity up until her death." Durant

remained steadfast in his denial of ever giving Stephanie's mother a black eye.

Pre-Conviction History, Post-Conviction History, and Parole Plans

Durant grew up in Escondido, California in an intact family. His father drank

heavily and was physically abusive to Durant and his brother. Durant's father would hit

or slap him, make him stand at attention and kick him in the shins or would have him

touch his toes for long periods of time. The father would also kick Durant in the groin as

he was bent over.

Durant left home at the age of 16 and moved in with his girlfriend who was 25 and

had three daughters from a previous relationship, including Stephanie. Durant and his

girlfriend had two sons together.

Durant had no prior juvenile or adult criminal record other than the incident for

which he is currently incarcerated. Durant's conduct in prison has been largely

8
exemplary. He obtained his GED in 1985 and has taken some college courses. He has a

number of positive chronos4 reflecting his programming. Durant has been free of any

serious discipline since 1996 when he took a battery out of a smoke detector that went off

while his wife was cooking during a visit. He had a few custodial counseling chronos,

the last being in 1999 for excessive contact during a visit.

Psychological Evaluations

A

A psychiatric evaluation of Durant in 1983 described Durant as representing "a

tragic but classical syndrome of a young man who was moderately to severely abused as

a youngster and grew up anxious and depressed." Because of his own childhood,

Durant's "repertoire for dealing with children is very limited" and even though he vowed

he would never abuse his own children he was "incapable of dealing adaptively" with

Stephanie. He "perceived her lack of bladder control as a challenge to his authority."

The psychiatrist recommended Durant be provided structured treatment for the length of

his incarceration. The psychiatrist noted Durant's criminality involved his inability to

deal with his impulses toward his own children and he would only act out again toward

children "if he were in intimate contact with them in a family situation."

4 "A 'chrono' is an institutional documentation of information about inmates and
inmate behavior." (In re Stoneroad (2013) 215 Cal.App.4th 596, 606, fn. 4.)

9
 B

In 1986, Durant had his initial psychiatric evaluation for the Board of Prison

Terms. The psychiatrist noted Durant's understanding of the crime was still limited.

Beyond being aware that abused children often turn into abusive parents, Durant still

could not "believe entirely what he did" and believed he would be "extremely unlikely to

do this in the future." The psychiatrist noted Durant seemed to have grown up in the

prior three years and felt Durant's programming was satisfactory. However, he thought

Durant should actively seek Alcoholics Anonymous and self-understanding groups "since

the pattern within his family of a juncture of alcoholism and physical violence is very

well established."

C

A 1990 psychiatric evaluation concluded Durant had "just begun to explore the

reasons behind the crime." He was diagnosed with intermittent explosive disorder as

well as alcohol and cannabis dependence and passive aggressive personality disorder.

After completing all available psychological programs, the psychiatrist recommended

"one-to-one therapy to tease out all of the various reasons behind his committing this

crime so that he can develop the necessary restraints that he needs to live around children

in the future."

D

A 1994 psychiatric evaluation noted Durant had completed a considerable amount

of group psychotherapy and was ready for individual therapy "to assure that he has

explored and mastered all the causative factors pertaining to his offense." The

10
psychiatrist recommended he continue in his present rehabilitation program and, at the

end of his individual therapy, Durant should be referred for an extensive evaluation

program to evaluate his dangerousness. Similarly, in 1995, a psychiatrist noted Durant

had ample opportunity to investigate his behavior and to think about ways to gain more

control, but recommended individual therapy.

E

By 1998, an evaluating psychiatrist thought Durant's explosive disorder was

resolved since he had been in no fights during his incarceration. The psychiatrist found

no mental health disorder requiring treatment, but stated abstinence, monitoring and

attendance at self-help groups such as Alcoholics Anonymous should be mandatory

conditions of parole.

F

According to a 2006 psychological evaluation, Durant exhibited no depressive or

psychotic symptoms and did not need mental health treatment. In response to the

Board's inquiry about the extent to which Durant had "explored the commitment offense

and come to terms with the underlying causes," the psychiatrist noted Durant never

attempted to excuse his crime by referring to his own physical abuse or drug use. "This

posture and assumption of personal responsibility is 'worth its weight in gold' and

indicates a psychological state of mind that obviates the need for any psychotherapy."

G

In the 2009 comprehensive risk assessment, the evaluating psychologist noted

Durant took responsibility for Stephanie's fatal injuries, but the psychologist expressed

11
concern about inconsistencies between his version of events and the official version and

his apparent minimization of his abusiveness. He developed relatively good insight into

the motivations behind the crime by linking his abuse of the children to his own abuse by

his father. Durant stated he abused Stephanie more severely than the other children

"because he 'identified with' her and 'related her to [him]self.' " He also recognized the

contributing role alcohol played in the crime because it lowered his inhibitions and he

"became 'more emotional as opposed to cognitive.' "

Durant knew Stephanie's sisters sent letters opposing his release. He felt " 'part of

them is still stuck in 1983' " and he "would like them to be free . . . have some measure of

healing . . . go on in their lives and prosper." Although Durant had contact with

Stephanie's mother early in his incarceration, he no longer wanted contact with her

because he " 'associates her with this atrocity,' and 'she contributed to [his]

delinquency.' "

Although the psychologist assessed Durant's risk for future violence or recidivism

as low, she expressed concern about his minimization: "This may suggest that Mr.

Durant has not yet taken full responsibility for the extent and severity of his actions.

Continued minimization and denial may prevent Mr. Durant from recognizing the

warning signs of aggression in his relationships in the future."

H

In 2012, the evaluating psychologist's subsequent risk assessment noted Durant's

good behavior, positive work and vocational training while incarcerated. It noted

Durant's insight into the causative factors leading up to the commission of the life crime

12
appeared to have improved over the years. However, it also noted Durant's oldest son has

had no contact with Durant since the son turned 18 because the son feels Durant has

minimized the extent of the abuse inflicted on Stephanie over the years.

Durant explained he was 16 when he met Stephanie's mother, who was eight years

older than he was. She had three daughters of her own. Initially, their relationship was

"exciting" and "fun," but "reality quickly set in with parental and financial

responsibilities, which were exacerbated by the fact that he had lost a job." He used

alcohol and marijuana to "drown [his] inadequacies" and "used to 'cover up' his feelings

of hurt, anger and unresolved issues with his father." Alcohol and marijuana "removed

his sense of morality (behavioral disinhibition)."

Durant stated Stephanie endured the brunt of his anger because he "overly

identified her as being similar to himself in the sense that they were both third in line in

birth order." Stating he now understands beating with a belt or coat hanger constitutes

abuse, Durant acknowledged he abused Stephanie's two sisters, but not to the same extent

as Stephanie. He also acknowledged they were victimized emotionally because he raised

his voice.

The supplemental assessment noted Durant had remained on a steady course since

his assessment in 2009 and expanded his relapse prevention plan. It commended Durant

for his exemplary prison record and for making "positive strides in all possible

realms . . . all of which serve as continued factors of mitigation reducing his risk of

violent recidivism."

13
 The assessment stated, "[w]hile there are no concerns about the presence of new

risk factors that would elevate or aggravate his overall risk to violently re-offend, Mr.

Durant would likely benefit from continued exploration into the reasons for his discrepant

reports of important facts related to [the] life crime. [His] recent revisions in his version

of events to more closely replicate those in the official record may be an attempt to

placate the Board if questions were to arise (declined to talk about the specifics of the

crime in the last hearing dated 9/9/09)." The assessment went on to say he appears to

have a good understanding of the causative factors of how the abuse began and how it

was maintained. However, it also stated, "Mr. Durant should take a more explorative

look into the cycle of abuse which typically begins with verbal abuse and threats,

followed by a period of remorse and normalcy and then a buildup of tension and

frustration that in this case led to serious incidents of emotional and physical abuse of

three children; one who ultimately died. An understanding of such will decrease the

likelihood that he will act similarly in the future when faced with the personal and

relational stressors."

Objections to Parole by District Attorney and Victim's Family5

Stephanie's sisters previously wrote letters in opposition to Durant's parole,

although they were not referenced in the 2012 hearing. Durant sent letters of apology

5 The district attorney's and the family's opinions are not evidence of unsuitability
for parole, but may influence the weight the Board or the Governor gives to the evidence.
(In re Vicks (2013) 56 Cal.4th 274, 308-309 (Vicks); In re Dannenberg (2009) 173
Cal.App.4th 237, 255, fn. 5; In re Weider (2006) 145 Cal.App.4th 570, 590.)

14
through the Office of Victim and Survivor Rights and Services to Stephanie's sisters and

his former girlfriend in the weeks before the 2012 hearing.

The deputy district attorney objected to Durant's parole arguing he was unsuitable

for parole based not only on the cruel and callous manner of the crime, which caused the

three-year-old victim to suffer a long and agonizing death, but also because Durant had

not sufficiently demonstrated insight and remorse. Additionally, the deputy district

attorney argued Durant had not "sufficiently participated in beneficial and appropriately

directed self-help or therapy." Finally, the deputy district attorney argued the

discrepancies in Durant's various accounts of the crime showed he was minimizing the

duration of abuse as well as the scope of abuse of the other family members.

Board's Decision

In August 2012 the Board concluded Durant was suitable for parole and would not

pose an unreasonable risk of danger to society or threat to public safety if released from

prison. Although recognizing the despicable nature of the crime, the Board concluded

Durant had changed and he had established circumstances of suitability for parole. The

Board imposed several conditions for parole: (1) no use or possession of alcohol; (2)

submission to anti-narcotic testing; (3) participation in a substance abuse program; (4)

report to the parole outpatient clinic for evaluation; (5) and no unsupervised contact with

children under the age of 12.

Governor's Reversal

In January 2013 the Governor reversed the Board's grant of parole. Although the

Governor acknowledged Durant made efforts to improve himself while incarcerated and

15
commended him for taking positive steps, the Governor determined those efforts were

outweighed by negative factors indicating Durant remains unsuitable for parole.

Citing In re Lawrence (2008) 44 Cal.4th 1181, 1214 (Lawrence), the Governor

noted the circumstance of the crime "can provide evidence of current dangerousness

when the record also establishes that something in the inmate's pre- or post-incarceration

history, or the inmate's current demeanor and mental state, indicate that the circumstances

of the crime remain probative of current dangerousness." The Governor noted the

appalling nature of the crime against three-year-old Stephanie and the fact this was not a

one-time occurrence, but was the culmination of years of brutal abuse of Stephanie as

well as her mother and two sisters. The Governor concluded the evidence showed a

callous disregard for their suffering.

In addition, the Governor expressed his concern Durant "has not fully realized or

resolved his reasons for brutally beating Stephanie for two years and ultimately

murdering her" even though Durant has recently gained a better understanding of his

actions. The Governor noted Durant minimized aspects of the crime and his physical

abuse in 2009 and continued to do so in 2012, even though his version of the events now

more closely mirrored the official record. The Governor also expressed concern about

lack of insight regarding the abuse that led up to Stephanie's death. The Governor

observed in the years leading up to the final incident, "Stephanie was not just 'spanked'—

she was violently attacked, repeatedly beaten with a closed fist, given a black eye and

bruised face as a one or two-year-old, and had four ribs broken and a perforated intestine

in the months before the murder. The injuries that led to Stephanie's death required Mr.

16
Durant to expend almost all of his strength and energy to inflict such damage." The

Governor found Durant had not convincingly explained "how it is he could lash out so

violently against a toddler, and continue doing so for the next two years." The Governor

found the explanation for singling Stephanie out for abuse because they were both "third

in line in the birth order" to make little sense. The Governor also expressed concern

Durant denied giving the mother a black eye despite corroboration by witnesses.

The Governor agreed with the psychologist's recommendation in 2012 "that

Durant 'take a more explorative look into the cycle of abuse which typically begins with

verbal abuse and threats, followed by a period of remorse and normalcy and then a

buildup of tension and frustration that in this case led to serious incidents of emotional

and physical abuse of three children; one of who ultimately died. An understanding of

such will decrease the likelihood that he will act similarly in the future when faced with

the personal and relational stressors.' " Observing Durant had not taken domestic

violence or parenting classes, the Governor encouraged him to explore the causes of his

explosive rage and violence against his former girlfriend and daughters and to "develop

the coping skills necessary to handle familial stresses in the community."

Considering all relevant evidence in the record as a whole, the Governor found

Durant currently poses a danger to society if released from prison. As a result, the

Governor reversed the Board's decision to grant Durant parole.

Trial Court's Grant of Petition for Writ of Habeas Corpus

Durant challenged the Governor's decision by filing a petition for writ of habeas

corpus with the superior court. The trial court granted Durant's petition for habeas relief

17
finding, based on its review of the record, the Governor's decision Durant is unsuitable

for parole "was based on guesses and irrational speculation rather than rational inferences

based on the facts presented." In response to the Governor's decision Durant is "currently

dangerous because he has 'not fully realized or resolved his reasons for brutally beating

Stephanie for two years and ultimately murdering her,' " the court stated the Governor's

decision did not include "a factually identifiable deficiency in perception and

understanding, much less one that tends to show that Durant currently poses an

unreasonable risk of danger." The court also took issue with the Governor's statement,

" 'Mr. Durant does not convincingly explain how it is he could lash out so violently

against a toddler.' " Instead, the court concluded Durant had "repeatedly explained how

he came to that point in a way that was convincing to numerous psychological evaluators

and [the Board]."

DISCUSSION

I

Guiding Legal Principles and Standard of Review

"[T]he fundamental consideration in parole decisions is public safety." (In re

Lawrence, supra, 44 Cal.4th at p. 1205.) The decision whether to grant parole is an

inherently subjective determination. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655

(Rosenkrantz).) The Board and the Governor must consider "[a]ll relevant, reliable

information available" (Cal. Code Regs., tit. 15, § 2402, subd. (b)) and the decision is

guided by the factors identified in section 3041 and the Board's regulations. Among

these factors are the nature of the commitment offense, including the inmate's behavior

18
before, during, and after the crime, as well as the inmate's social history, mental state,

criminal record, attitude towards the crime, and parole plans. (Cal. Code Regs.,

tit. 15, §§ 2281, subd. (b), 2402, subd. (b).)

Circumstances tending to show suitability for parole include the inmate: (1) lacks

a juvenile history of violent or potentially violent behavior; (2) has a history of

reasonably stable social relationships; (3) has demonstrated remorse and an

understanding of the nature and magnitude of the offense; (4) lacks a significant history

of violent crime; (5) has a reduced recidivism risk because of age; (6) has realistic parole

plans; and (7) has participated in institutional activities demonstrating an enhanced ability

to function if paroled. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) Conversely,

circumstances tending to show unsuitability for parole include the inmate: (1) committed

the offense in a particularly heinous, atrocious, or cruel manner; (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. (Id., § 2402, subd. (c).)

These circumstances provide general guidelines. The importance attached to any

circumstance or combination of circumstances in a given case is left to the Board's or the

Governor's sound judgment. (Rosenkrantz, supra, 29 Cal.4th at p. 654.) "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

19
p. 1212.) Consequently, a factor that might not by itself establish an inmate's

unsuitability for parole may still contribute to a finding of unsuitability. (Cal. Code

Regs., tit. 15, § 2402, subd. (b).)

When the Board finds an inmate convicted of murder suitable for parole, the

Governor may conduct an independent review of the entire record to determine whether

the inmate currently poses a threat to public safety. (Cal. Const., art. V, § 8, subd. (b);

§ 3041.2; In re Shaputis (2011) 53 Cal.4th 192, 215, 220-221 (Shaputis II).) The

"Governor has discretion to be 'more stringent or cautious' in determining whether a

defendant poses an unreasonable risk to public safety." (In re Lawrence, supra, 44

Cal.4th at p. 1204.)

We independently review the record from a superior court order granting relief on

a petition for habeas corpus based on documentary evidence. (In re Lazor (2009) 172

Cal.App.4th 1185, 1192.) However, our power to review the Governor's decision is

limited. As long as the Governor's decision reflects due consideration of the specified

factors as applied to the individual inmate in accordance with applicable legal standards,

our review is restricted to ascertaining whether there is some evidence in the record to

support the Governor's decision the inmate poses a current threat to public safety.

(Lawrence, supra, 44 Cal.4th at p. 1212; Rosenkrantz, supra, 29 Cal.4th at p. 677.)

The " 'some evidence' standard is more deferential than substantial evidence

review, and may be satisfied by a lesser evidentiary showing." (Shaputis II, supra, 53

Cal.4th at p. 210.) "Some evidence" in this context means only a modicum of evidence.

"Resolution of any conflicts in the evidence and the weight to be given the evidence are

20
matters within the authority of [the Board or] the Governor. . . . [T]he precise manner in

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

within the discretion of [the Board or] the Governor." "As long as the . . . decision

reflects due consideration of the specified factors as applied to the individual prisoner in

accordance with applicable legal standards, the court's review is limited to ascertaining

whether there is some evidence in the record that supports the . . . decision.' " (Ibid.)

"Only when the evidence reflecting the inmate's present risk to public safety leads

to but one conclusion may a court overturn a contrary decision by the Board or the

Governor. In that circumstance the denial of parole is arbitrary and capricious, and

amounts to a denial of due process." (Shaputis II, supra, 53 Cal.4th at p. 211.)

II

The Governor's Decision is Supported by Some Evidence

Here, the trial court improperly reweighed the evidence rather than reviewing the

record to determine if a modicum of evidence supported the Governor's decision. "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." (In

re Shaputis (2008) 44 Cal.4th 1241, 1260 (Shaputis I).)

The Governor in this case considered the evidence in the record and concluded

Durant is unsuitable for parole because he remains a danger to society if released from

prison. The Governor based his decision partially on the appalling nature of the

commitment offense.

21
 The circumstances of the commitment offense are an appropriate consideration in

determining parole suitability. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).) Among

the signs of an especially heinous commitment offense are: "[t]he victim was abused,

defiled or mutilated during or after the offense"; "[t]he offense was carried out in a

manner which demonstrates an exceptionally callous disregard for human suffering"; and

"[t]he motive for the crime is inexplicable or very trivial in relation to the offense." (Cal.

Code Regs., tit. 15, § 2402, subd. (c)(1)(C)-(E).) Each of these signs is present in this

case.

The Governor cited a medical expert's opinion it would have required an adult of

average strength to use of all his force to inflict the intestinal perforation and extensive

bruising found on Stephanie's body at the time of her death. Stephanie "suffered and

vomited for two days before she was taken to the hospital." The Governor found it

senseless a three-year-old girl "would suffer this violence because she wet the bed."

The Governor also observed this was not a one-time occurrence. Durant admitted

going "overboard" with physical punishment of Stephanie for 18 months. Durant

admitted striking her before in the stomach. This is supported by the record. According

to the medical expert, Stephanie had evidence of prior rib fractures and a prior bowel

perforation. She would have been obviously severely ill and would have suffered severe

abdominal pain, distension and vomiting on the prior occasion. If she had been treated

then, she would have stood a better chance of surviving the final instance of abuse.

Durant beat all three sisters with a belt or a wire coat hanger any time they would

wet their pants. The girlfriend reported Durant hit her at least four times. Neighbors

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reported often seeing bruises on the children and the girlfriend. One neighbor saw

Stephanie with a blood-red eye, bruised chin and bruised ear almost a year and a half

before Stephanie's death. At the same time, the girlfriend had a black eye. The girls told

the neighbor their mother got the black eye from Durant when she tried to stop him from

beating Stephanie.

Based on the record, the Governor concluded "Durant's repeated violence and

abuse against Stephanie, [the girlfriend], and the other girls, culminating in the brutal

murder of Stephanie, demonstrates a callous disregard for their suffering." We, therefore,

have no difficulty concluding there is at least a modicum of evidence to support the

Governor's characterization of the circumstances of the commitment offense as appalling

or heinous.

In addition to the nature of the crime, the Governor determined Durant still lacked

insight. "While it appears that Mr. Durant has recently gained a better understanding of

his actions, I am concerned that Mr. Durant has not fully realized or resolved his reasons

for brutally beating Stephanie for two years and ultimately murdering her."

An inmate's acceptance of responsibility and development of insight are also

appropriate considerations in determining parole suitability. (Cal. Code Regs., tit. 15,

§ 2402, subd. (d)(3); Shaputis I, supra, 44 Cal.4th at p. 1246.) An inmate's lack of

insight into and understanding of the behavior underlying the commitment offense can

support a conclusion the inmate is currently dangerous. (Shaputis I, at p. 1260.)

Expressions of remorse and demonstration of insight will vary from inmate to

inmate and there are no special words for an inmate to articulate in order to communicate

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he or she has committed to ending a previous pattern of violent or antisocial behavior.

(Shaputis I, supra, 44 Cal.4th at p. 1260, fn. 18.) However, the Supreme Court has

recognized "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.)

Although Durant acknowledged responsibility and has articulated remorse for his

crime, his version of events and his characterization of abuse have changed over time.

The Governor noted, "Durant minimized aspects of his crime and his physical abuse" of

Stephanie's mother and the three daughters in 2009. Durant described becoming

physically abusive only four months before the final beating of Stephanie and stated he

abused Stephanie more because he "identified with her" as the third child. He denied

giving the mother a black eye and only acknowledged "pushing her."

The Governor recognized Durant admitted in the 2012 supplemental assessment

he abused Stephanie for "at least a year" and recognized hitting the girls with a belt or a

wire coat hanger constituted abuse.6 Durant related he was physically abused by an

alcoholic father and "practiced what he learned." He admitted using alcohol and

marijuana to "drown out his inadequacies" and used anger to " 'cover up' his feelings of

hurt, anger, and unresolved issues with his father." As a result, he stated he found

himself hitting Stephanie too hard. He recognized "his pattern of spanking Stephanie in

6 In 2009, Durant admitted he abused the other girls, but said only he spanked them
too hard, slapped them in the face, and was verbally abusive.
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the initial months as abuse" and acknowledged "that the 'spanking intensified in severity

up until her death.' "

However, the Governor found Durant's 2012 explanations still minimized the

abuse. The Governor observed, "Stephanie was not just 'spanked'—she was violently

attacked, repeatedly beaten with a closed fist, given a black eye and bruised face as a one

or two-year-old, and had four ribs broken and a perforated intestine in the months before

the murder. The injuries that led to Stephanie's death required Mr. Durant to expend

almost all of his strength and energy to inflict such damage." These observations are

amply supported by the record in this case.

The Governor found Durant had not convincingly explained, "how it is he could

lash out so violently against a toddler, and continue doing so for the next two years."

Additionally, the Governor found the explanation for singling Stephanie out for abuse

because they were both "third in line in the birth order" to make little sense. The

Governor also expressed concern Durant continued to deny giving the mother a black eye

despite corroboration by witnesses.

The trial court improperly discounted the Governor's conclusion about Durant's

lack of insight saying Durant "repeatedly explained how he came to that point in a way

that was convincing to numerous psychological evaluators and [the Board]." Based on

our independent review, we conclude this is an overstatement of the psychological

evaluations. Furthermore, it is not for the reviewing court "to decide which evidence in

the record is convincing." (Shaputis II, supra, 53 Cal.4th at p. 211.) That determination

is for the executive.

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 There is more than a modicum of evidence in the record to support the Governor's

conclusion. The 2012 evaluator noted Durant's "recent revisions in his version of events

to more closely replicate those in the official record may be an attempt to placate the

Board if questions were to arise."7 Additionally, although the 2012 evaluator

acknowledged Durant "appear[ed] to have a good understanding into the causative

factors" related to the abuse, the evaluator did not state she was convinced. Indeed, she

recommended "Durant should take a more explorative look into the cycle of abuse which

typically begins with verbal abuse and threats, followed by a period of remorse and

normalcy and then a buildup of tension and frustration that in this case led to serious

incidents of emotional and physical abuse of three children; one who ultimately died. An

understanding of such will decrease the likelihood that he will act similarly in the future

when faced with the personal and relational stressors." (Italics added.)

The Governor agreed with the 2012 evaluator's recommendation Durant develop

further insight, which provides 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.) Observing Durant had not taken domestic violence or parenting

classes, the Governor encouraged him to explore the causes of his explosive rage and

violence against his former girlfriend and daughters and to "develop the coping skills

necessary to handle familial stresses in the community."

7 "It is true that often the most recent evidence as to the inmate's level of insight will
be particularly probative on the question of the inmate's present dangerousness, but that is
not necessarily the case. If the newest evidence is unreliable or insubstantial, the parole
authority is not bound to accept it." (Shaputis II, supra, 53 Cal.4th at p. 211.)
26
 Durant contends no domestic violence programming was made available to him so

he engaged in other self-help programming during his incarceration and read a couple of

books related to parenting and/or domestic violence. Durant provided, as late

submissions to the Board for the 2012 hearing, a few undated book reports generally

touching on the topics of alcoholism, parenting and personal insight. Durant does not

point to evidence in the record showing domestic violence or parenting programming was

never available to him throughout his nearly 30 years in prison. The weight the Governor

gave to the programming Durant has participated in is within the Governor's discretion.

(Shaputis II, supra, 53 Cal.4th at p. 218.) It was reasonable for the Governor to conclude

Durant's minimal self-study in the areas specifically connected to the crime in the weeks

leading up to his latest parole hearing were insufficient to prevent further violence. (In re

Shippman (2010) 185 Cal.App.4th 446, 461 [reasonable for Board to conclude

participation in minimal self-help programs were " 'building block[s],' which would need

to be expanded upon before [inmate] can develop the necessary skills to prevent further

violence]; In re Van Houten (2004) 116 Cal.App.4th 339, 356 [need for further

psychological treatment or programming is a factor to consider in evaluating

dangerousness].)

Based on our independent review of the record, we conclude there is at least a

modicum of evidence to support the Governor's conclusion Durant remains unsuitable for

parole.

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 III

Individualized Consideration of Parole Suitability Circumstances

Durant contends the Governor failed to give him individual consideration of the

circumstances bearing on parole suitability and, therefore, denied him due process. We

are not persuaded.

"While the Governor is required to engage in ' "an individualized consideration of

the specified criteria" ' (Lawrence, supra, 44 Cal.4th at p. 1205), it has never been held

that the Governor's decision must address individually each factor in section 2042 of title

15 of the California Code of Regulations." (In re LeBlanc (2014) 226 Cal.App.4th 452,

458.) Further, the Governor is not required to describe the "exact or relative weight given

any particular circumstance." (In re Stevenson (2013) 213 Cal.App.4th 841, 862.) The

Governor's decision states he considered the evidence in the record relevant to whether

Durant is currently dangerous. We have no reason to doubt his statement. (In re

Butler (2014) 231 Cal.App.4th 1521, 1535.)

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 DISPOSITION

The order granting habeas corpus relief is reversed and the trial court is directed to

enter a new order denying such relief. Upon finality of this decision, the stay issued on

October 1, 2014, is dissolved.

MCCONNELL, P. J.

WE CONCUR:

NARES, J.

O'ROURKE, J.

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