I concur with much, but respectfully dissent from some, of the majority’s opinion.
First of all, I concur with parts V. and VI. of the majority opinion, holding (1) that there was not “some evidence” (In re Rosenkrantz (2002) 29 Cal.4th *900616, 658 [128 Cal.Rptr.2d 104, 59 P.3d 174] (Rosenkrantz)) that petitioner (hereafter Scott) has an unstable social history and (2) that the Board of Prison Terms (Board) failed to consider substantial evidence that Scott was suitable for release from prison. (Maj. opn. at pp. 895-899.)
Where I dissent from the majority is regarding its part IV., in which it holds that “[t]he record contains no evidence supporting” the Board’s finding that Scott’s murder of the victim falls within California Code of Regulations, title 15, section 2402, subdivision (c)(1).1 (Maj. opn., ante, at p. 43.) That regulation provides: “The following circumstances each tend to indicate unsuitability for release. . . . [f] (1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: [f] . . . [1] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. [][]... [f] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. [][] (E) The motive for the crime is inexplicable or very trivial in relation to the offense.” (§ 2402, subd. (c)(1)(B) , (D), (E).)
Especially because of our extremely limited “some evidence” standard of review, I simply disagree with the majority’s conclusion that there is “no evidence” supporting any of this part of the Board’s findings. Before getting into what that evidence is, however, a word is in order about our standard of review.
It is as clear as it could possibly be that our Supreme Court, in enunciating the “some evidence” standard in cases of this sort, intended to restrain trial and appellate courts from becoming regular, everyday appellate bodies to and regarding the Board. Indeed, just a few pages before articulating the “some evidence” standard of review, the Rosenkrantz court noted that in one of its prior decisions it had held that “ ‘[t]he [Board’s] discretion in parole matters has been described as “great” [citation] and “almost unlimited” [citation].’ ” (Rosenkrantz, supra, 29 Cal.4th at p. 655, citing In re Powell (1988) 45 Cal.3d 894, 902 [248 Cal.Rptr. 431, 755 P.2d 881].) It then went on to hold: “[W]e conclude that the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but *901that 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 upon the factors specified by statute and regulation.” (Rosenkrantz, at p. 658.) And still later in its decision, the court defined “some evidence” as follows: “Only a modicum of evidence is required.” (Id. at p. 677.)
Based on that standard of review—and not, as I will later note, on my personal agreement with the outcome of the Board’s deliberations and decision—I simply disagree with the majority’s conclusion that there was no evidence to support the Board’s decision. I think there was, and specifically as regards subparagraphs (B) and (E) of section 2402, subdivision (c)(1), quoted above.2 In my opinion, in this case those circumstances included these facts revealed by the record both before the Board and us:
1. There was apparently testimony at the 1986 jury trial of Scott that, before shooting the victim, Scott had been “hiding in the stairway” of a nearby building watching the victim, Scott’s wife, and Scott’s 13-year old son as they, in turn, were apparently watching Fourth of July fireworks;
2. Scott shot the victim two or three times and did so in front of not only his wife, but their 13-year old son;
3. Scott had, for 10 years prior to the shooting, been carrying the gun he used to kill the victim without a permit;
4. Because of Scott’s wife’s relationship with the victim, and the drug use apparently deriving therefrom, Scott had previously slapped his wife, drawing blood; violated at least one court restraining order regarding contact with her; and had previously rammed a car containing his wife and the victim.
5. As a result of the testimony it heard about the crime, the jury which originally heard the case convicted Scott of first degree murder (apparently based on some sort of felony-murder theory) which, as defined in Penal Code section 187, includes the factor of “malice aforethought.” (Pen. Code, § 187, subd. (a).)
6. After the conviction had been reentered as one for second degree murder, the trial judge who heard the matter exercised his or her discretion to add a two-year gun use enhancement to Scott’s sentence.
*902Specifically as regards these six considerations, I think as least two of them constitute “some evidence” that the “offense was carried out in a dispassionate and calculated manner.” (§ 2402, subd. (c)(1)(B).) Those two are: (1) the conviction was for an offense which, as just noted, requires “malice aforethought” and (2) there was testimony before the jury that Scott was “hiding in the stairway” before the shooting.3
I also think the background of this case satisfies the “some evidence” standard for the “very trivial in relationship to the offense” standard in section 2402, subdivision (c)(1)(E) of the Board’s regulations. The majority stresses, repeatedly, the awful conduct of the victim in seducing Scott’s wife, in inducing her to use drugs and to steal funds therefore from the Scott’s business, etc., etc. Of course, that behavior was despicable and of course Scott was understandably tormented by it and its impact on his entire family. But the offense we are talking about here is murder and I think the Board could reasonably have found that the motive of anger over the victim’s seduction of his wife and getting her hooked on drugs was trivial in relationship to the offense of killing the victim.
The majority, in frankly the least convincing part of its opinion, effectively substitutes its opinion for that of the Board, and does so by the tactic of setting up a patently false premise, to wit: “The reference in Board regulations to motives that are ‘very trivial in relationship to the offense’ therefore requires comparisons; to fit the regulatory description, the motive must be materially less significant (or more ‘trivial’) than those which conventionally drive people to commit the offense in question . . . .” (Maj. opn., ante, at p. 893.) This requirement of comparisons with other second degree murders is, purely and simply, an invention out of the proverbial whole cloth. Not a sentence, not a phrase, not a word in the Board’s regulations suggests that, at the parole-eligibility stage, the motives underlying Penal Code section 187 convictions are, much less should be, subject to any sort of comparison test. But such is what the majority then embarks on—complete with quotations from several abstract academic musings regarding criminal motive. It concludes that the Board erred in finding that “Scott’s motive for killing Bradford is less significant or important than others which account for the commission of second degree murder . . . .” (Maj. opn., ante, at p. 894.)
The majority’s discursive venture into the exquisitely abstruse issue of comparative second degree murder motivations ignores the real issue. The *903only comparison the Board was making, or indeed was entitled to make, was that Scott’s motive for his actions was “trivial” in relationship to the crime which resulted, i.e., the murder of Bradford. I believe there is clearly a “modicum of evidence” (Rosenkrantz, supra, 29 Cal.4th at p. 677) supporting this conclusion. Thus, the Board could well have concluded—as I surely do—that there were an infinite variety of actions short of murder which Scott could have taken to diminish, deflect, defeat or even punish the victim’s despicable conduct short of murder. Some of them are obvious: persistent attempts to induce law enforcement to investigate and prosecute the victim and his drug involvement; private investigations by licensed agents; civil litigation; consulting juvenile authorities (bearing in mind the proximity of all of this to the couple’s children), and on and on. Indeed, even hitting the victim over the head with a baseball bat would have been infinitely preferable—and infinitely more defensible—to Scott’s ultimate action here.
In short, the sort of despicable conduct toward one’s family such as that involved here can justifiably provoke intense anger and, surely, strong action triggered by that anger. But, in my opinion, that tautology does not make it inexplicable or inappropriate for a parole Board to conclude that, on the facts of this case, the motivation for the crime was “trivial” in relationship to murder with “malice aforethought.”
When all is said and done, part IV. (especially parts IV.A. and VI.C.) of the majority’s opinion is nothing more than an elongated treatise on why my colleagues, if they had been on the Board, would have decided Scott’s parole application differently. Well, I suspect I would have, too. But that is not the standard of review with which our Supreme Court has entrusted us. We are supposed to accord the Board “ ‘almost unlimited’ ” discretion and not subject its rulings “ ‘to second-guessing upon review.’ ” (Rosenkrantz, supra, 29 Cal.4th at pp. 655-656, citing In re Powell, supra, 45 Cal.3d at pp. 902, 904.) But “second guessing” is, I submit, precisely what the majority engages in here.
*904I have thus made clear my substantial disagreement with the majority’s part IV. analysis, particularly as it relates to whether there was “some evidence” to support the Board’s conclusions regarding section 2402, subdivision (c)(1)(B) and (E) of the regulations. But, I am also not terribly impressed with how the Board has handled this matter, particularly with regard to the issues dealt with by the majority in parts V. and VI. of its opinion. I very much hope the Board decides matters differently at its next hearing involving Scott, now scheduled for July 20, 2004.
A petition for a rehearing was denied July 22, 2004, and petitioner’s petition for review by the Supreme Court was denied October 13, 2004.
All further unspecified section references are to title 15 of the California Code of Regulations.
Put another way, I do not think there was “some evidence” supporting the Board’s reliance on section 2402, subdivision (c)(1)(D), the subparagraph which states: “The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.”
The majority discounts this factor, apparently not even according it the “modicum of evidence” (Rosenkrantz, supra, 29 Cal.4th at p. 677) label on the completely speculative ground that the jury “obviously rejected or discounted” it. (Maj. opn., ante, at p. 895, fn. 14) In so stating, the majority ignores the fact that this evidence was specifically noted in Scott’s postverdict probation report.