In Re Shippman

SIGGINS, J., Concurring.

I join fully in the opinion written by my colleague Justice Jenkins, but write separately to comment upon additional facts that support the reason cited by the Board of Parole Hearings (the Board) for finding Robert Shippman unsuitable for parole. As Justice Jenkins states, our task is to review the record of a petitioner’s parole suitability *465hearing to ascertain if a decision to deny parole is supported by some evidence that the petitioner will pose an unreasonable threat to public safety if he or she is released. (In re Lawrence (2008) 44 Cal.4th 1181, 1221 [82 Cal.Rptr.3d 169, 190 P.3d 535]; In re Shaputis (2008) 44 Cal.4th 1241, 1255 [82 Cal.Rptr.3d 213, 190 P.3d 573].) We are to view the reasons relied upon by the Board to deny parole and determine if a nexus exists between those reasons and danger to the public. (In re Lawrence, supra, at pp. 1210-1211.) In this case, I fully agree with Justice Jenkins that the Board was correct to conclude that Shippman’s lack of insight into the circumstances of his commitment offense and his troubled relationships with women demonstrate that he is not ready for release. But that is not all that troubles me about this petitioner’s record.

Facts in the record, but not mentioned or relied upon during petitioner’s hearing, provoke my concern that Shippman is not being candid about, and has not reconciled himself with, the events leading up to his wife’s murder. Shippman says that he unexpectedly killed his wife when he lost control of his emotions one morning while the two of them went for a ride to discuss their relationship. However, what is hard to reconcile with his version of these events are the facts that his murdered wife’s car was discovered in front of Shippman’s house with her purse inside it and the engine running. These facts logically create an inference that Shippman forced his wife to go for a drive, rather than suggest that she went voluntarily.1

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

The dissent criticizes my consideration of these circumstances of the crime because they were not recited in the Board’s decision. But such a restriction on our review of the record seems, to me, an odd contortion of our deferential standard of review. To the extent reported cases of the Court of Appeal may *466be read to impose such a restriction, I disagree. (Dis. opn., post, at pp. 488-489, citing In re Moses (2010) 182 Cal.App.4th 1279 [106 Cal.Rptr.3d 608]; In re Lewis (2009) 172 Cal.App.4th 13 [91 Cal.Rptr.3d 72]; In re Roderick (2007) 154 Cal.App.4th 242 [65 Cal.Rptr.3d 16]; In re DeLuna (2005) 126 Cal.App.4th 585 [24 Cal.Rptr.3d 643].) Under our standard of review, it seems to me entirely appropriate to draw inferences from the facts in the record that support the Board’s reasons for finding a prisoner unsuitable for parole whether or not they are explicitly discussed in the narrative of the Board’s decision.

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

For me, this case more closely resembles Shaputis than it does Lawrence. When we review the denial of suitability for parole, Lawrence instructs us *467that “the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude.” (In re Lawrence, supra, 44 Cal.4th at p. 1221.) It is precisely because of Shippman’s dissembling responses to the Board’s questions concerning his propensity to control his romantic partners and his history of violence that I conclude the unexplained circumstances of his commitment offense also support the Board’s decision. (See In re Shaputis, supra, 44 Cal.4th at p. 1260.) I make no conclusion that Shippman abducted his wife, but these unexplained facts support the Board’s decision to defer Shippman’s further parole consideration for three years.

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

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

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