In re Wimberly CA4/1

Filed 10/22/15 In re Wimberly 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D067596
In re KENT WIMBERLY

on Habeas Corpus.
(Super. Ct. No. HC19909)

Original proceeding on a petition for a writ of habeas corpus following the

Governor's reversal of a grant of parole. Relief granted.

Charles F.A. Carbone for Petitioner.

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

General, Phillip J. Lindsay and Linnea D. Piazza, Deputy Attorneys General, for Plaintiff

and Respondent.

Kent Wimberly has been incarcerated over 35 years on a 25-year-to-life sentence

for first degree murder. After an unsuccessful parole hearing in 2009, the Board of

Parole Hearings (Board) found him suitable for parole at a 2012 parole hearing.

Governor Edmund G. Brown Jr., however, reversed the Board's decision, finding

Wimberly did not sufficiently address the factors that led him to commit his life crime.
 Most recently, at a parole hearing on March 12, 2014, the Board granted

Wimberly parole. Nevertheless, the Governor again reversed the Board's decision

because of the "shocking" nature of the life crime and Wimberly's lack of insight into the

causative factors of the life crime. Wimberly filed a petition for a writ of habeas corpus

with the superior court, which denied the requested relief. He then filed the present

petition for writ of habeas corpus with this court, contending that the Governor's decision

is not supported by some evidence, and the Governor did not adequately consider the

factors of Wimberly's youth, as required by Penal Code1 section 3051, because he

committed the life crime when he was 17 years old. We conclude the record does not

contain "some evidence" to support the Governor's ultimate conclusion that Wimberly

was unsuitable for parole because he currently poses an unreasonable risk to public

safety. Accordingly, we grant Wimberly habeas relief and order reinstatement of the

Board's parole release order.

FACTUAL AND PROCEDURAL BACKGROUND

Although the Governor reversed the Board's decision to grant Wimberly parole, he

lauded Wimberly for earning his associate of arts degree and completing vocational

programs as well as participating in self-help classes. In addition, while Wimberly has

been incarcerated for over 35 years, he has not been disciplined in prison for serious

misconduct since 1988. Also, neither the Board nor the Governor took issue with

Wimberly's postparole plans, and it is clear from the record that he has multiple housing

1 Statutory references are to the Penal Code unless otherwise specified.
2
options and employment opportunities upon his release. As such, we do not discuss in

detail any of these facts. Instead, because the central issues here are the nature of the life

crime and whether some evidence exists that Wimberly lacks insight into his commitment

offense, we focus on these two issues.

The Commitment Offense2

Because Wimberly pled guilty to two counts of first degree murder, we take the

facts of his commitment offense from the San Diego County Probation Officer's Report

dated April 16, 1980 as summarized in the record:

"[O]n September 3, 1979, at approximately 8:40 PM a neighbor heard commotion

coming from the residence of victims Leon Lauterbach and his girlfriend Gloria

Liebrenz. Leon's son Eric lived with them and Eric had recently graduated [from high

school] with his friends Kent Wimberly and Kay Moore. At approximately 10:55 PM

another neighbor was walking his dog when he discovered the body of a woman in front

of the Lauterbach home. When police arrived they discovered the body of Leon

Lauterbach inside the home. Both victims had multiple stab wounds. Mr. Lauterbach

died from a hemorrhage in his chest and Ms. Liebrenz died from a hemorrhage of a

severed artery in her abdomen. The subsequent investigation revealed that Eric

Lauterbach had made plans with his friend Kent Wimberly to murder his father and his

2 Wimberly pled guilty to two counts of first degree murder. The court sentenced
Wimberly to prison for two concurrent terms of 25 years to life. Throughout the record,
the Board, the Governor, the doctors who evaluated Wimberly, and the parties refer to
Wimberly's life crime in the singular although both murders are thoroughly discussed.
For the sake of consistency, we refer to life crime in the singular as well in this opinion
although we are aware and discuss the fact that Wimberly murdered two individuals.
3
father's girlfriend. Mr. Wimberly . . . entered a plea to two counts of first-degree

murder." He was 17 years old when he committed the murders.

Evidence and Discussion of Insight in the Record

Risk Assessments of Wimberly

Three comprehensive risk assessments of Wimberly were part of the materials

considered by the Board and the Governor in the instant matter. The first was prepared

by J. Larmer, Psy.D., after meeting with Wimberly on March 28, 2012. In the

assessment, Larmer noted: "While it is clear that Mr. Wimberly demonstrated

characteristics or traits of Personality Disorder in his youth, there is no evidence to

conclude that he has demonstrated such traits or features in many years. His relationships

with others appear to be long standing and positive in nature, he does not demonstrate

manipulative or antisocial attitudes or behaviors, he has consistently abided by the rules

of the institution for many years, and by all accounts he gets along well with others, is

respectful, hard working and avoids interpersonal problems."

Larmer also noted: "Wimberly has spent a great deal of time and emotional

energy examining the crime, his motivation and the underlying factors which contributed

to his decisions and behaviors. Over the years of incarceration he has engaged in

individual and group therapy as well as self-help groups aimed at assisting him in

understanding the personality factors and situational factors which contributed to the

crime. He demonstrates a significant amount of insight into the casual factors of the life

crime." Larmer additionally observed, Wimberly "expresses credible remorse for the

crime and empathy for the victims and their families."

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 R. Stotland, Ph.D., prepared the second assessment after meeting with Wimberly

on July 19, 2013. Stotland concluded that Wimberly "showed generally fair to good

insight" into his life crimes.

The most recent assessment was prepared by Richard Hayward, Ph.D., after

meeting with Wimberly on January 24, 2014. Hayward concluded that Wimberly

represents a low risk for violence and is a nonelevated risk for violence relative to life

term inmates and other parolees. Hayward also determined that "Wimberly has

developed understanding of the primary factors that contributed to his commitment

offense."

Hayward's analysis emphasized the immaturity of Wimberly's thinking at the time

of the life offenses: "He decided to murder Mr. Lauterbach and Ms. Liebrenz with a

desperate hope that Eric would be pleased and their friendship would continue. . . . [H]is

thinking was immature at the time because he had no resources that would allow him to

communicate his thoughts and feelings and help him understand his emotional turmoil

and find assistance. He now expresses appreciation of his overwhelming adolescent

emotional problems and he explains that he is horrified that he made the decision to

commit two murders. He has developed the communication skills he was lacking in

adolescence and he now feels comfortable expressing his feelings and communicating

with supportive friends and family members. He feels accepted as a gay man and he has

developed a supportive network of Christian friends. He associates primarily with pro-

social individuals and he expresses a genuine commitment to follow the guidelines of his

Christian faith. He has expressed understanding that his rage at the time of the murders

5
was a reaction to his deep feelings of hurt as a misunderstood adolescent with no

connection to anyone except Eric."

Hayward also wrote about Wimberly's maturation while incarcerated: "Wimberly

has matured substantially while incarcerated and he has developed understanding of the

maturity of his thinking and behavior at age 17. He is now able to appreciate the

extensive pain he caused to Mr. Lauterbach and Ms. Liebrenz and to their families.

. . . He has developed a substantial sense of responsibility."

Parole Hearing in 2012

At a parole hearing on September 20, 2012, the Board determined that "Wimberly

does not pose an unreasonable risk of danger to society or a threat to public safety, and is

therefore eligible for parole at this time." In reaching this decision, the Board noted that

Wimberly had admitted to committing the life crime and took full responsibility for his

actions. Further, the Board read from Larmer's assessment of Wimberly, emphasizing

Larmer's opinion that Wimberly was a low risk to reoffend if released and demonstrated a

significant amount of insight into the causative factors of his life crime.

The Governor reversed the Board's decision. In doing so, the Governor stated he

was concerned by the "heinous and appalling" nature of Wimberly's life crime. Also, the

Governor stated that he was "not convinced that Mr. Wimberly has sufficiently addressed

the factors that led to the murders or the compulsion to kill that he described to the Board

in 2012."

6
 Present Parole Hearing

At Wimberly's most recent parole hearing, the Board asked Wimberly why he

murdered two people. In response, Wimberly stated that "it's been an ongoing process

for me to learn about all these different factors that have contributed to why I did what I

did." He then identified several factors that caused him to kill the victims.

Wimberly was molested when he was young. He was physically, emotionally, and

socially immature at 17 years old. He lacked adequate communication skills. He had

similar problems to other children, but he was unable to talk to anyone about those

problems. He was very self-absorbed and self-focused. Wimberly believed other people

were being judgmental and critical of him. He thus did not take responsibility for his

feelings, but instead, blamed others for his bad attitude.

Wimberly also admitted that he had a "total lack of empathy" at age 17. He linked

this shortcoming with his immaturity. He explained that he had a "desperate, desperate

need" to connect to a male figure. Wimberly stated that this need was fueled by his

father being away at certain critical times as well as his same sex attraction. He had

difficulty making friends and could not express his sexuality. He became "panicky over

it."

Wimberly felt alone, unable to talk to anyone, which caused him to experience

hopelessness. His father was homophobic. Wimberly became "very suicidal" at 17 years

7
old and did not see a "normal" future for himself because he was homosexual.3 He

became lost and very angry. He was bullied at school and became angry at the bullies.

He turned to his parents for help, but he perceived his parents as being critical and

judgmental.4 His father told him to grow up and be a man while his mother babied him.

He recalled being eight years old and his parents took him to the doctor to figure

out why he was still wetting the bed and sucking his thumb. He stated he felt humiliated

and his "animosity and hatred" started building toward his parents. As he got older, his

rage toward his parents grew and he wanted to find a way to move out.

Wimberly highlighted additional insight he gained after his 2012 parole hearing:

"[G]oing through this process of discovery and answering the
question why, the newer insight that I've had, even since the last
hearing, even since the Governor's denial when he said that there
seemed to be something missing there, and I believe there has been,
is that I wasn't just angry at my parents, but that I had projected my
anger toward my parents on to Eric's parents. And that part of me
wanted to be like Eric, but another part of me wanted Eric to be like
me. And when I saw Eric, I saw myself. And when I saw his
situation, I saw my situation. And when I saw his difficulties with
his parents, I saw my difficulties. And when I saw his desire to kill

3 Wimberly further explained his feelings of isolation and thoughts of suicide to
Hayward. He discussed that he was longing for a connection to a male figure when he
met Eric Lauterbach. He finally felt the connection he believed he was missing. He
wanted to be Eric's best friend, and pined for his acceptance and approval. Wimberly
identified with Eric's anger toward his own parents. When Eric talked about killing his
father, Wimberly was happy to be his sounding board. Eric's emotional vulnerability
generated the intimacy Wimberly craved. Wimberly and Eric went camping together and
had a sexual encounter, which had a profound impact on Wimberly. He wanted more
contact with Eric, but Eric rejected him. Wimberly felt hopeless, isolated, and became
suicidal.

4 Because of his father's homophobia, Wimberly did not believe he could talk to his
father about his feelings of same sex attraction that he was experiencing as a teenager.
8
 his parents, I saw my desire to kill my parents. Even though those
feelings were not acknowledged in my mind at that time, I see that
now. And I've not wanted to admit that because as horrific as the
crime is, to me it's a whole nother [sic] of - - it's a whole nother [sic]
level of horrificness [sic] to say that the driving force of killing Leon
and Gloria, what enabled me to have such violence, what enabled me
to continue with the crime and not stop when there were multiple
opportunities to stop, to have that lack of empathy and caring for
them, was that at some level that I didn't understand at the time, was
killing my own parents."

Wimberly also responded to his attorney's question about his reaction to the

Governor's reversal of the Board's decision in 2012. Among other comments, Wimberly

stated that the Governor "was right" and that he needed to obtain "more clarification" to

"come up with some additional thoughts and explanations about how [his] relationship

with [his] parents had a huge impact on the crime that [he] committed."

The Board again found that Wimberly did not pose an unreasonable risk of danger

to society or threat to public safety and was eligible for parole. In reaching this decision,

the Board stressed that it was applying section 3051 and gave "great weight" to

Wimberly's "diminished capacity" as a juvenile because he committed his life crimes

when he was 17 years old. The Board also pointed out that it reflected on the "hallmark

features of youth as well as the subsequent growth and maturity that the offender

develops during his incarceration."

In addition, the Board noted Eric Lauterbach became a negative influence on

Wimberly when he solicited Wimberly's help to kill his father. The Board determined

that Eric's influence as well as other outside pressure impacted Wimberly because of

9
Wimberly's immaturity and "underdeveloped sense of responsibility that sometimes

results in impetuousness and ill-considered actions and decision."

The Board was satisfied that Wimberly accepted responsibility for his life crime

(many years ago) and developed some empathy and remorse. Also, the Board

emphasized Wimberly's lack of a criminal history (except for the life crime), self-help

programming, model behavior while incarcerated, strong relationship with his parents,

and solid parole plans supported its decision.

The Board found that Wimberly was a low risk to violently reoffend. In terms of

insight, the Board stated:

"But of particular note is that on - - for 2-1/2 pages, from pages 8
through 11 of 15, the doctor details the factors of insight that led to
the life crime. Which I think is very significant because that is an
issue that certainly the Governor was concerned about, that the
District Attorney has voiced concern about, and this Panel was very
concerned about as well. But clearly the doctor has noted not only
the significant insight that you have developed into the causative
factors of the life crime, but as your attorney pointed out, you did
detail at least 23 different causative factors, and you talked about
them in detail during the hearing. So we don't have any reservations
in that regard today."

The Governor's Reversal

Like after the 2012 parole hearing, the Governor again reversed the Board's

decision to grant Wimberly parole after his most recent parole hearing. The Governor

noted all the positive steps Wimberly took while incarcerated (obtaining AA degree,

completing vocational classes, participating in self-help classes) and gave "great weight

to Mr. Wimberly's diminished culpability, the juvenile characteristics that made him

susceptible to commit this crime, and his subsequent growth and maturity." Although the

10
Governor commended Wimberly for "taking positive steps," he concluded that

Wimberly's positive characteristics were outweighed by negative factors that demonstrate

that Wimberly is unsuitable for parole.

The Governor stressed the "shocking" nature of Wimberly's life crime. He noted

that Wimberly "brutally murdered" the victims in their home after they invited him

inside. Further, the Governor stated that Wimberly's method of killing (stabbing)

demonstrates "a cruel and callous disregard for human suffering."

The Governor also found Wimberly exhibited a lack of insight. The Governor

observed:

"I reversed Mr. Wimberly's grant of parole in 2013, because I was
troubled by Mr. Wimberly's explanation for this vicious crime. I
continue to have the same concern today. Mr. Wimberly told the
psychologist in 2014 that Mr. Lauterbach began to avoid him after
the two had a sexual encounter, and he 'offered to help with the
murder so [he] could get in with Eric again.' Mr. Wimberly went on
to say '[t]he reality of it was not hitting me. I felt I needed to be part
of this to cement my relationship with Eric' and that Mr. Lauterbach
would be 'indebted to me forever and couldn't kick me to the curb.'
The fact that Mr. Wimberly murdered two people in cold blood to
'cement' his relationship with his friend remains disturbing and is not
adequately explained. Mr. Wimberly has not fully addressed the
factors that led him to believe that stabbing two individuals to death
was necessary to mend his relationship with his friend. I encourage
Mr. Wimberly to continue participating in self-help classes, and seek
mental health services, to help gain a better understanding of the
reasons he resorted to murder solely for the purpose of maintaining a
friendship, however intense."

For these reasons, the Governor found "the evidence shows that [Wimberly]

currently poses an unreasonable danger to society if released from prison."

11
 DISCUSSION

I

THE GOVERNOR'S REVERSAL IS NOT BASED ON SOME EVIDENCE

A. The Parole Suitability Framework

As this court recognized in In re Vasquez (2009) 170 Cal.App.4th 370 (Vasquez),

"[t]he granting of parole is an essential part of our criminal justice system and is intended

to assist those convicted of crime to integrate into society as constructive individuals as

soon as possible and alleviate the cost of maintaining them in custodial facilities.

[Citations.] Release on parole is said to be the rule, rather than the exception [citations]

and the Board is required to set a release date unless it determines that 'the gravity of the

current convicted offense . . . is such that consideration of the public safety requires a

more lengthy period of incarceration . . . .' " (Id. at pp. 379-380; italics omitted.)

Because Wimberly committed his life crime while he was 17 years old, the Board

applied section 3051 in considering Wimberly's eligibility for parole. (§ 3051,

subd. (a)(1).) That section requires the state to provide a juvenile offender with a

meaningful opportunity to obtain release within his or her expected lifetime. (§ 3051,

subd. (b)(1)-(3).) In addition, when considering an individual for parole, section 3051

directs the Board or Governor to release the individual on parole as provided in section

3041, except that the Board and/or Governor also is to "give great weight to the

diminished culpability of juveniles as compared to adults, the hallmark features of youth,

and any subsequent growth and increased maturity of the prisoner in accordance with

relevant case law." (§ 4801, subd. (c); see § 3051, subd. (d).) Accordingly, although

12
section 3051 provides additional factors for the Board and/or Governor to consider, it

does not otherwise alter the suitability factors that inform a parole decision.

The decision whether to grant parole is an inherently subjective determination (In

re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that is guided by a number of

factors, some objective, identified in section 3041 and the Board's regulations. (Cal.

Code Regs., tit. 15, §§ 2281, 2402.) In making the suitability determination, the Board

must consider "[a]ll relevant, reliable information," such as the nature of the commitment

offense including behavior before, during, and after the crime; the prisoner's social

history; mental state; criminal record; attitude towards the crime; and parole plans. (Cal.

Code Regs., tit. 15, § 2402, subd. (b).) The circumstances that tend to show unsuitability

for parole include that the inmate: (1) committed the offense in a particularly heinous,

atrocious or cruel manner;5 (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. (Cal. Code Regs.,

tit. 15, § 2402, subd. (c).) A factor that alone might not establish unsuitability for parole

5 Factors that support the finding the crime was committed "in an especially
heinous, atrocious or cruel manner" (Cal. Code Regs., tit. 15, § 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 which
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. (Ibid.)
13
may still contribute to a finding of unsuitability. (Cal. Code Regs., tit. 15, § 2402,

subd. (b).)

Circumstances tending to show suitability for parole include that the inmate:

(1) does not possess a record of violent crime committed while a juvenile; (2) has a stable

social history; (3) has shown signs of remorse; (4) committed the crime as the result of

significant stress in his life, especially if the stress had built over a long period of time;

(5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any

significant history of violent crime; (7) is of an age that reduces the probability of

recidivism; (8) has made realistic plans for release or has developed marketable skills that

can be put to use upon release; and (9) has engaged in institutional activities that indicate

an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15,

§ 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 [Board or Governor].' " (Rosenkrantz, supra, 29

Cal.4th at p. 654; § 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, supra, 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.

(Id. at p. 679.) Nonetheless, the Governor's decision, like the Board's decision, must

comport with due process. (Id. at p. 660.)

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 B. Judicial Review

In Rosenkrantz, the California Supreme Court addressed the standard for a court to

apply when reviewing a parole decision by the executive branch. The court held that "the

judicial branch is authorized to review the factual basis of a decision of the Board

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 Board supports the decision to deny parole, based

on the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at

p. 658.) Rosenkrantz further held that the same standards of review are applicable when

a court reviews a Governor's decision reversing the Board. (Id. at pp. 658-667.)

In conducting this independent review of the Governor's decision, "[i]t is

irrelevant that a court might determine that evidence in the record tending to establish

suitability for parole far outweighs evidence demonstrating unsuitability for parole."

(Rosenkrantz, supra, 29 Cal.4th 616, 677.) Although a court must ensure that the

Governor considered the same factors the Board considered, "the court's review is limited

to ascertaining whether there is some evidence in the record that supports the Governor's

decision." (Ibid.)

In In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), our Supreme Court

reaffirmed its analysis in Rosenkrantz, supra, 29 Cal.4th 616, that the Governor's

decision of parole suitability is subject to the "some evidence" standard of review.

(Lawrence, supra, at p. 1205.) However, in doing so it recognized that Rosenkrantz's

characterization of that standard as extremely deferential and requiring "[o]nly a

15
modicum of evidence" (Rosenkrantz, supra, at p. 677), had generated confusion and

disagreement among the lower courts "regarding the precise contours of the 'some

evidence' standard." (Lawrence, supra, at p. 1206.) The court in Lawrence, recognizing

that the legislative scheme contemplates "an assessment of an inmate's current

dangerousness" (id. at p. 1205; original italics), clarified 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 Board 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; original italics.)

As to this standard, the court in Lawrence further explained that although it was

"unquestionably deferential, [it was] 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, supra, 44

Cal.4th at p. 1210, italics added.) Because consideration of public safety is the primary

statutory issue to be determined in deciding whether an inmate should be granted parole

(§ 3041, subd. (b); Lawrence, supra, at p. 1205), "[t]his inquiry is, by necessity and by

statutory mandate, an individualized one," and requires a court to consider the

circumstances surrounding the commitment offense, along with the other facts in the

record, to determine whether an inmate poses a current danger to public safety. (In re

Shaputis (2008) 44 Cal.4th 1241, 1254-1255 (Shaputis I).)

16
 Regarding such consideration, "although the Board and the Governor may rely

upon the aggravated circumstances of the commitment offense as a basis for a decision

denying parole, the aggravated nature of the crime does not in and of itself provide some

evidence of current dangerousness to the public unless the record also establishes that

something in the prisoner's pre- or postincarceration history, or his or her current

demeanor and mental state, indicates that the implications regarding the prisoner's

dangerousness that derive from his or her commission of the commitment offense remain

probative of the statutory determination of a continuing threat to public safety."

(Lawrence, supra, 44 Cal.4th at p. 1214; original italics.)

The current petition for habeas relief is an original proceeding that requires we

independently review the record to determine whether there is some evidence to support

the Governor's decision in reversing the Board's grant of parole for Wimberly. (In re

Scott (2004) 119 Cal.App.4th 871, 884.) In other words, "we independently review the

record [citation] to determine 'whether the identified facts [by the Governor] are

probative to the central issue of current dangerousness when considered in light of the

full record before [him].' " (Vasquez, supra, 170 Cal.App.4th at pp. 382-383.)

C. Analysis

The Governor's decision in reversing the Board's grant of parole was based on two

related factors, the circumstances of the commitment offense, which the Governor found

to be "shocking," and Wimberly's lack of insight into why he committed that offense.

Specifically, the Governor referred to evidence suggesting the killing demonstrated "a

cruel and callous disregard for human suffering."

17
 The Governor described Wimberly's life crime as "shocking," "brutal[]," "cruel,"

and "callous." While we do not ascribe any talismanic qualities to the Governor's use of

these words, the law is clear that a factor showing an inmate is unsuitable for parole is the

Governor finding the life offense was committed "in an especially heinous, atrocious or

cruel manner." (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1); Rosenkrantz, supra, 29

Cal.4th at p. 654.) However, this factor alone does not support the Governor's reversal of

the Board's decision to grant parole.

The commitment offense predates incarceration and is immutable. In Lawrence,

supra, 44 Cal.4th 1181, the court explained that parole for murderers is the rule, not the

exception, and therefore, the immutable aggravated circumstances of an offense alone

rarely will provide a valid basis to deny parole after an inmate has served the suggested

base term and when there is strong evidence of rehabilitation and no other evidence of

current dangerousness. (Id. at pp. 1211, 1218-1219.) Under such circumstances, the

aggravated nature of the offense realistically loses probative value to show current

dangerousness unless there is other, more recent evidence reasonably indicating that the

offense still has some tendency to show that the inmate poses a risk of harm to others.

(Id. at pp. 1214, 1219.)

Here, the Governor did not articulate how the life offense indicates that Wimberly

would be a current danger to the public if paroled. Certainly the circumstances of

Wimberly's commitment offense are despicable and fully justify Wimberly's guilty plea

and sentence for first degree murder. These circumstances alone, however, are not "some

evidence" supporting the Governor's denial of parole. The inquiry into current

18
dangerousness "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." (Lawrence, supra, 44 Cal.4th at

p. 1221.) We find nothing in the record showing the Governor's reasoning establishing a

rational nexus between the life offense and the determination of current dangerousness.

(Id. at p. 1210.)

The Attorney General does not argue that the circumstances of Wimberly's life

crime validate the Governor's reversal standing alone. Instead, the Attorney General

focuses her argument on the Governor's finding that Wimberly lacks insight into his

behavior causing him to commit his offense and maintains that it provides the "rational

nexus" for concluding that Wimberly would be a danger to society if released. In

addition, the Attorney General insists Wimberly's insufficient insight makes the

circumstances of his life crime probative to his current risk of danger to society if

paroled. We reject these contentions.

A prisoner's insight into his offenses and his understanding of the nature,

magnitude and causes of his crime are important parole suitability factors. (In re

Rodriguez (2011) 193 Cal.App.4th 85, 97.) Further, a "petitioner's current attitude

toward the crime constitute[s] [a] factor[] indicating unsuitability for parole."

(Shaputis I, supra, 44 Cal.4th at p. 1246.) A conclusion that a petitioner remains

dangerous and is unsuitable for parole can be supported by evidence that, among other

things, the petitioner "is unable to gain insight into his antisocial behavior despite years

of therapy and rehabilitative 'programming.' " (Id. at p. 1260.) However, expressions of

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insight and remorse will vary from inmate to inmate and there are no special words for an

inmate to articulate to communicate he or she has committed to ending a previous pattern

of violent or antisocial behavior. (Id. at p. 1260, fn. 18.)

"Evidence of lack of insight is indicative of a current dangerousness only if it

shows a material deficiency in an inmate's understanding and acceptance of responsibility

for the crime. To put it another way, the finding that an inmate lacks insight must be

based on a factually identifiable deficiency in perception and understanding, a deficiency

that involves an aspect of the criminal conduct or its causes that are significant, and the

deficiency by itself or together with the commitment offense has some rational tendency

to show that the inmate currently poses an unreasonable risk of danger." (In re Ryner,

(2011) 196 Cal.App.4th 533, 548-549; italics & fn. omitted.)

Although case law is clear the Governor can consider a petitioner's lack of insight

of the life offense, it is obscure regarding the proper role of this nonstatutory factor for

assessing suitability for parole.

More recently, the Supreme Court discussed the "lack of insight" on the part of

inmates and how the Governor or parole authorities may use lack of insight in parole

decisions. (In re Shaputis (2011) 53 Cal.4th 192 (Shaputis II).) In that case, the court

reaffirmed the requirement of judicial deference to executive branch decisions regarding

paroles. The court noted parole authorities can use "insight" as a basis of a parole denial

and that judicial review is limited to determining whether there is a modicum of evidence

to support the executive decision. (Id. at pp. 212-213.) The court also noted that in the

wake of its decisions in Lawrence, supra, 44 Cal.4th 1181 and Shaputis I, supra, 44

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Cal.4th 1241—which "reoriented the focus of parole suitability review, making it clear

that the inmate's current dangerousness is the crucial determination"—parole authorities

were giving greater attention to lack of insight as a basis for this determination. (Shaputis

II, supra, at p. 217; italics omitted.) Although "[c]onsideration of an inmate's degree of

insight is well within the scope of the parole regulations" (id. at p. 218) that direct the

Board to consider such factors as past and present attitude towards the crime, the

presence of remorse and whether the inmate understands the nature and magnitude of the

offense, " 'lack of insight, like any other parole unsuitability factor, supports a denial of

parole only if it is rationally indicative of the inmate's current dangerousness.' " (Id. at

p. 226 (conc. opn. of Liu, J.).)

Shaputis II, supra, 53 Cal.4th 192, however, does not require us to defer, absent

any review, to the Governor's decision based on lack of insight. Instead, the "some

evidence" standard requires us to uphold the Governor's interpretation of the evidence "if

it is reasonable, in the sense, that it is not arbitrary, and reflects due consideration of the

relevant factors." (Id. at p. 212.)

We acknowledge that is not our role to reweigh the evidence presented at the

parole hearing or considered by the Governor. (See In re Shigemura (2012) 210

Cal.App.4th 440, 457.) However, we observe that a mountainous amount of evidence of

insight exists in the record.

Wimberly articulated to the Board and psychologists who assessed the factors that

led him to murder Lauterbach and Liebrenz. Wimberly was an immature, vulnerable 17

year old, struggling with his sexuality, and isolated from his parents and peers. He was

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molested as a child, bullied at school, and frightened by his father's homophobia. He

suffered from feelings of guilt, shame, humiliation, low self-esteem, hopelessness, and

thoughts of suicide. He felt victimized and blamed others for his problems.

Eric Lauterbach was Wimberly's only friend and Wimberly became attracted to

him. Wimberly agreed to help Eric kill his father and his father's girlfriend in a

desperate, irrational, and immature attempt to win Eric's affection and tie him and Eric

together forever. Wimberly used talk of the killings to become closer to Eric and gain his

trust. He did not think about the consequences of the plan, and he did not appreciate the

reality of killing two people. Motivated by his imprudent desire to please Eric and earn

his favor, fueled by anger and rage built up over his childhood, and reflecting his deep

inner turmoil and personality problems, Wimberly went forward with the murders by

himself. And, by his most recent parole hearing, after spending over 35 years

incarcerated, Wimberly finally realized and conveyed that he equated killing the victims

to killing his own parents.

In addition, the three doctors who assessed Wimberly found that he had insight

into his crime. In fact, the most recent assessor (Hayward) went into great detail

regarding Wimberly's significant insight. Also, the Board emphasized the insight

Wimberly had gained into the causative factors of his life crime and indicated that it did

not have any reservations about Wimberly's insight.

Yet, despite the wealth of evidence in the record regarding Wimberly's insight, we

are surprised how little the Governor addressed this evidence. Only adding to our

astonishment, we note the Attorney General eschews any real discussion of this evidence.

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We find these omissions a fundamental shortcoming in both the Governor's reversal and

the Attorney General's arguments before us.

Here, the Attorney General maintains that the Governor's conclusion that

Wimberly lacks insight is explained because "Wimberly's superficial desire to 'cement

[his] relationship' with Eric does not adequately explain why he would kill two people 'in

cold blood' with the type of violence and depravity Wimberly demonstrated when he

stabbed both victims 14 times each." In essence, both the Governor and the Attorney

General either ignore or simply gloss over the other explanations Wimberly offers

regarding why he committed his life crime and reduce his insight into a single

motivational factor: Wimberly killed his two victims only to improve his relationship

with Eric. Such a conclusion is not supported on the record before us.

In addition, we find it telling that the Attorney General attempts to justify the

Governor's finding of a lack of insight by focusing on the brutal nature of the life crime

and the facts surrounding the murders at the time they were committed. Indeed, much of

the evidentiary support on which the Attorney General relies is found in Wimberly's

statement to the police, the events surrounding and leading to the life crime, and

Wimberly's testimony at the 2012 parole hearing. And when the Attorney General does

cite to Hayward's assessment of Wimberly, she ignores almost two and one-half pages of

analysis regarding Hayward's conclusion that Wimberly has significant insight into the

causative factors of his life crime.

In addition, in lieu of addressing Wimberly's explanation of his insight, the

Attorney General argues that Wimberly's testimony at the most recent parole hearing

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contradicts his testimony at previous hearings. For example, the Attorney General points

out that in a 2009 parole hearing, Wimberly told the Board that he had been bullied his

whole life and it was his "desire to get back at those bullies that manifested itself on that

night, that enabled [him] to actually do the violence." Wimberly also discussed the

impact of the bullies during his most recent parole hearing. He noted his problem during

his teenage years with "internalized anger" and that "[w]hen [he] was bullied at school,"

he had "anger . . . toward the bullies." During his most recent parole hearing, this

internalized anger that was fueled by the bullies was part of his explanation for why he

committed the murders. Thus, we do not find that his testimony in the most recent

hearing was inconsistent with his prior testimony in the 2009 hearing. Instead, it appears

that Wimberly's comments became more insightful and developed.

The Attorney General also identifies as inconsistent Wimberly's response during

his parole hearing in 2012 to the question, "Did you hate your father?" Wimberly

responded, "No, no, but I there was just those family dynamic issues, I think, that were

going on." But Wimberly continues to explain that he believed that Eric's situation with

his father was worse than his own. In addition, Wimberly explained that everything his

parents did was out of love and concern, but that he put the wrong twist on it.

In the most recent parole hearing, Wimberly stated that he engaged in further

insight since the 2012 parole hearing and explained that he was angry at his parents and

projected that anger onto Eric's father and girlfriend. Although the Attorney General

implies that Wimberly's most recent testimony about his parents contradicts the testimony

he provided in 2012, the Attorney General offers no reasoning to support her position.

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Indeed, Wimberly's testimony seems entirely consistent and indicative of someone who

has grappled with trying to understand why he committed such a heinous crime.

Also, it is apparent that the Attorney General, in defending the Governor's

reversal, does not consider the entire record before us. For example, the Attorney

General contends that Wimberly has not adequately explained or addressed why

murdering the victims was "necessary" to "cement" his relationship with Eric,

particularly if the thought of killing them was "just a fantasy." During the 2012 parole

hearing, Wimberly referred to talking to Eric about killing his father and girlfriend like

being in "fantasy land" and that "reality [was] not clicking." But Wimberly continued

during that hearing to explain about his sexual encounter with Eric, Eric rejecting him

after that encounter, and Wimberly doing whatever he could do to revive his relationship

with Eric. He also explained how the thoughts of killing became an actual plan. Further,

Wimberly explained that he had difficulty understanding the consequences of such a

plan: "It never occurred to me that they were human beings and that their life had value,

and that I was about to take their lives." And he clarified that "[i]t was fantasy land"

because of his mindset that he "brought [from] childhood in hating my own life, and

really blaming everybody else and everybody around me. And that just brought me to the

place where I didn't care about anybody else's life either, you know."6 The Attorney

General appears to overlook Wimberly's explanation in 2012 regarding how the fantasy

of discussing killing Lauterbach and Liebrenz became a reality.

6 Wimberly offered a similar explanation to Hayward.
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 The Attorney General also attempts to justify the Governor's reversal on the

grounds that Wimberly's desire to "cement [his] relationship" by killing two people was

"superficial." But as Wimberly points out, reasons that may seem superficial and

inadequate do not necessarily mean that his insight is lacking. Instead, it appears that the

Governor is most troubled by Wimberly's explanation for killing two innocent people or

simply does not understand why Wimberly did it. However, as Wimberly explains,

"There is no adequate explanation for murdering two innocent people." (Original italics.)

Or perhaps the Governor is concerned that Wimberly lacks sufficient insight. To

this end, the Governor frames Wimberly's reason "he resorted to murder solely for the

purpose of maintaining a friendship, however intense." In other words, the Governor

completely ignores or discounts the multitude of factors Wimberly discusses regarding

why he committed his life crime, and instead, looks at Wimberly's desire to continue his

friendship with Eric as the only explanation for the murders. There is no explanation in

the Governor's reversal or the Attorney General's return why the rest of Wimberly's

explanation was rejected. Moreover, we find nothing in the record to support this

extremely limited view of the evidence of insight. "Of course, personal insight has long

been recognized as a worthy goal. However, we have to question whether anyone can

ever fully comprehend the myriad circumstances, feelings, and current and historical

forces that motivate conduct, let alone past misconduct. Additionally, we question

whether anyone can ever adequately articulate the complexity and consequences of past

misconduct and atone for it to the satisfaction of everyone. Indeed, the California

Supreme Court has recognized that 'expressions of insight and remorse will vary from

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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.' [Citation.] More importantly, in our

view, one always remains vulnerable to a charge that he or she lacks sufficient insight

into some aspect of past misconduct even after meaningful self-reflection and expressions

of remorse. Moreover, we consider the very concept of 'insight' to be inherently vague

and find that whether a person has or lacks insight is often in the eye of the beholder.

Hence, although a 'lack of insight' may describe some failure to acknowledge and accept

an undeniable fact about one's conduct, it can also be shorthand for subjective

perceptions based on intuition or undefined criteria that are impossible to refute.

[Citation.] However, it is settled that the [Governor] may not base [his] findings on

hunches, speculation, or intuition. [Citations.]" (In re Ryner, supra, 196 Cal.App.4th at

p. 548.)

We find that the evidence in the record before us does not support the Governor's

finding that Wimberly lacks insight into the causative factors of his life crime. "Where,

as here, undisputed evidence shows that the inmate has acknowledged the material

aspects of his or her conduct and offense, shown an understanding of its causes, and

demonstrated remorse, the Governor's mere refusal to accept such evidence is not itself a

rational or sufficient basis upon which to conclude that the inmate lacks insight, let alone

that he or she currently remains dangerous." (In re Ryner, supra, 196 Cal.App.4th at

p. 549.)

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 In sum, we have searched the record and have determined that the Governor's

decision to reverse the Board's finding that Wimberly is suitable for parole is not

supported by the requisite "some evidence" that Wimberly currently presents an

unreasonable risk of danger to the public if released on parole. Because we reach this

conclusion, we do not address Wimberly's additional argument that the Governor's

finding on insight ignores section 3051's factors.

DISPOSITION

The Governor's decision to reverse the Board's 2014 order granting Wimberly

parole is vacated, and the Board's parole release order is reinstated. In the interests of

justice, this opinion is made final as to this court seven days from the date of filing. (Cal.

Rules of Court, rule 8.387(b)(3)(A).)

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

McINTYRE, J.

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