Filed 10/23/13 In re Rodriguez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


                                                                     H038623
In re RUDY SANTOS RODRIGUEZ,                                        (Santa Clara County
                                                                     Super. Ct. No. 137206)
         on Habeas Corpus.



         Rudy Santos Rodriguez has been incarcerated since 1989 for first degree murder.
In 2011, the Board of Parole Hearings (the Board) concluded that he was unsuitable for
parole because he would pose an unreasonable risk of danger or a threat to public safety
if released from prison. Rodriguez challenged that decision in the superior court, which
granted his petition for a writ of habeas corpus and ordered the Board to conduct a new
hearing.
         The Warden urges us to reverse the superior court’s order because “some
evidence” supported the Board’s decision. We agree with the Warden’s contention. We
reverse the superior court’s order.


                                                   I. Background
                                                  A. The Murder
         Around 5:20 a.m. on October 23, 1989, San Jose police officers responding to
reports of a fight in progress found 50-year-old Sarwan Sall suffering from stab wounds
on Asbury Street. The officers found a serrated steak knife nearby. Sall was pronounced
dead at the hospital. The coroner’s report concluded that he died of stab wounds to the
abdomen and chest.
         A woman who lived in the area told investigators that two men rang her doorbell
around 5:15 a.m. and tried to enter her house. They left when she told them through the
door that she was dialing 911. Another area resident reported that a man pounded on her
door around 5:15 a.m. but left when she refused to open it.
         A witness placed Rodriguez’s codefendant, 19-year-old Thomas Talamantes, in
the area at the time of the murder. Apprehended the same day, Talamantes told
investigators that he and 16-year-old Rodriguez had been drinking beer with friends since
5:00 p.m. the previous evening and had jointly decided to “ ‘mug somebody.’ ” They
armed themselves with kitchen knives and began knocking on doors, but their potential
victims refused to open them. Sall happened by on his way to work, and Rodriguez
confronted him as he was crossing the street. Sall fought back, and Rodriguez told
Talamantes to stab him. Sall fell, and Rodriguez grabbed his wallet. Talamantes and
Rodriguez split the $89 they found inside.
         Rodriguez told police he “stabbed [Sall] several times” and dropped his knife after
taking Sall’s wallet. He and Talamantes split the money, drank some beer, and went to
sleep.
         Arrested and charged as an adult, Rodriguez pleaded guilty to first degree murder
(Pen. Code, § 187),1 second degree robbery (§ 211, former § 212.5, subd. (b)), conspiracy
to commit residential robbery (former § 182.1, § 211, former § 212.5, subd. (a)), and two
counts of attempted residential robbery (§ 664, § 211, former § 212.5, subd. (a)).
Rodriguez also admitted allegations that he personally used a deadly or dangerous
weapon (former § 12022, subd. (d)) in the commission of the murder and the robbery.
He was sentenced to 26 years to life and initially committed to the California Youth

1
         Subsequent statutory references are to the Penal Code unless otherwise specified.

                                              2
Authority (CYA). Expelled for participating in a melee when he was 18, he was
transferred to California’s Department of Corrections and Rehabilitation (CDCR).


                                B. Rodriguez’s Prior History
       Born in San Jose, Rodriguez is the oldest of three children. His parents split when
he was three, and his mother married his stepfather a few years later. Rodriguez
described his early childhood as very positive, with “a lot of love and support -- a lot of
encouragement.” He was very involved in sports and reported getting good grades.
       When Rodriguez was 10, his two closest friends unexpectedly ended their
friendship with him, “and from that point forward, he struggled with a negative self-
image.” He rebelled against his parents, experimented with drugs and alcohol, and, at 12
or 13, began associating with the East Side San Jose gang and engaging in gang-related
vandalism, fights, and drug use. He cut classes, and his grades plummeted. His parents
moved the family to Turlock in an unsuccessful attempt to get him out of the gang
environment.
       Rodriguez’s weekend use of alcohol and drugs progressed to daily usage, and
during his heaviest period of use, he was drinking 10 to 15 beers an evening. He
fluctuated between cocaine and PCP, using at least a quarter to a half gram of cocaine
every day for weeks at a time, then switching to PCP while continuing his use of alcohol
and marijuana. He experienced depression and anxiety as a result of his drug use and
spent a lot of time trying to obtain drugs.
       Rodriguez’s juvenile history includes arrests for vandalism, theft, possession of
marijuana, possession of marijuana for sale, escape from custody, minor in possession of
alcohol, receipt of stolen property, being under the influence of PCP, and burglary. He
spent time in juvenile hall and at a boys’ camp. He was placed in the Sunflower House
residential drug treatment program in Watsonville as a juvenile ward of the court in 1989,
but soon ran away. He committed the murder a month later.
                                              3
                              C. Postincarceration Record
       Rodriguez earned his G.E.D. in 1993 and completed a few Coastline Community
College courses before the program was discontinued. He earned vocational certificates
in graphic communications and landscape maintenance. He received certificates in
professional financial planning and landscape design from Ashworth College. He has
also participated in vocational courses in silkscreen, auto mechanics, graphic arts, and
bakery.
       Rodriguez has worked in the prison’s main kitchen, on the yard crew, in digital
mapping, and as a porter, with job performance ratings ranging from satisfactory to
exceptional. He spends his free time reading, exercising, developing a curriculum for at-
risk youth with his cousin, and practicing his Native American spiritual beliefs.
       Rodriguez married in 2008. He telephones his wife daily, and she visits him every
weekend. He speaks with his mother daily, and she too visits every weekend. Rodriguez
talks to his stepfather several times a week and maintains contact with his sisters through
telephone calls and monthly visits.
       Rodriguez joined the Northern Hispanics prison gang when he entered prison, and
much of his negative behavior occurred in the context of his gang involvement. He has
received 19 CDC form 115 serious rules violations since 1992, many involving violence.2
His most recent “115” was for possession of controlled medication in 2005. Rodriguez’s
other serious rules violations were for attempted staff assault (1992), manufacturing
alcohol (1993, and two in 1996), participant in stabbing assault (1993), physical assault
(1993), inciting (1993), physical altercation (1993), flooding tier (1993), force and
violence (1995), mutual combat (1995, 1996, 1997, and 2000), possession of slashing
2
       “In prison argot, [CDC 128-A] ‘counseling chronos’ document ‘minor
misconduct,’ not discipline . . . . [Citation.]” (In re Smith (2003) 109 Cal.App.4th 489,
505.) A “CDC 115” rules violation report documents serious misconduct that is believed
to be a violation of law or otherwise not minor in nature. (In re Gray (2007) 151
Cal.App.4th 379, 389.)

                                             4
weapon (1996), horseplay (1997), misuse of incoming mail (2000), and refusing a
compatible cellmate (2000).
       Rodriguez has also received four CDC form 128-A counseling chronos, most
recently in 2010 for attempting to introduce contraband items into a state prison.3
       Rodriguez decided to leave the gang when he saw what his participation was
doing to his family, and he completed the debriefing process in 2001. He participated in
Narcotics Anonymous (NA) in juvenile hall, and he attended NA in prison from 2005 to
2010. He participated in Criminals and Gang Members Anonymous (CGA) in 2005 until
the program was discontinued, and he resumed his participation when it was reinstated in
2008. He attended Alcoholics Anonymous (AA) in 2007 and 2008.
       Rodriguez completed Self-Esteem for Adults, Success After Prison, and Making
Anger Work for You in 1999. He completed anger management programs in 2005, 2006,
2007, and 2010, Coping Skills for Life programs in 2006 and 2007, and Advanced Stress
Management programs in 2006 and 2008. In 2008, he completed Family Issues, A Better
Way, Man I Need a Job, Stress and Anger Management, Life Without a Crutch, and Art
Therapy. In 2009, he participated in Good Intentions/Bad Choices, Creative Conflict
Resolution, and Personal Financial Management. He participated in the Lifer’s Support
Group in 2009 and 2010, and a CDCR-128B “informational chrono” in his file
commends his presentation of multiple workshops for group members. He is currently
involved in CGA, NA, and Houses of Healing, and he continues to volunteer with the
Juvenile Diversion Program.




3
       Rodriguez’s other minor rules violations were for unauthorized clothing (1993),
unauthorized window coverings (1993), and unauthorized light coverings/breach of
safety/security (1996).

                                             5
                                D. Psychological Evaluation
       Dr. Jacqueline Caoile conducted Rodriguez’s initial psychological evaluation in
2011. Rodriguez told her that getting arrested “saved the community” and “saved my life
because it woke me up.” His view of life had changed, he reported. Before, he was
“careless, reckless, selfish, [and] irresponsible[, with] a limited view of the world.” He
“no longer thinks like a criminal or an addict” and has acquired the “ ‘tools’ to manage his
internal issues.”
       Dr. Caoile diagnosed Rodriguez with polysubstance dependence with
physiological dependence in a controlled environment; major depressive episode, single
episode, in full remission; and antisocial personality disorder. Noting that research has
shown that with age, persons struggling with antisocial personality disorder tend to
engage less frequently in the criminal or violent behaviors associated with the disorder,
Dr. Caoile wrote that Rodriguez had demonstrated “notable improvements in his attitude
and behavior as evidenced by his involvement in prosocial and conventional activities.”
While it appeared likely Rodriguez would continue on that positive path, the diagnosis
would be “retained until he is able to demonstrate pro-social behaviors in a non-
controlled environment.”
       Rodriguez told Dr. Caoile that he was “dishonest when he told authorities that he
stabbed the victim.” He told her that Talamantes stabbed Sall. “However,” she noted,
“he also stated, ‘I know I’m the one that told him to do it.’ ” “ ‘I feel like it’s my fault - I
motivated him to do it. It was my decision - I told him to stab him.’ ” Rodriguez told
Dr. Caoile that he believed his sentence was “fair.” He expressed remorse, “indicat[ing]
how scared and terrified the victim must have been” and “identify[ing] all the people he
harmed with his behavior,” including Sall’s family, those who witnessed the crime, the
women he traumatized by trying to rob them, the community, and his own family.
Dr. Caoile wrote that these “expressions of remorse and empathy appeared quite genuine
and thoughtful.”
                                                6
       Rodriguez told Dr. Caoile that the life crime was motivated by his need to get
money to buy drugs. She found him “quite insightful about the causal factors for the
commitment offense. He identified the significance of his drug and alcohol problem,
which was rooted in low self-esteem and an inability to manage negative emotions. He
also discussed his lack of maturity and inability to seek assistance for his problems, as
well as poor impulse control.” “It should be noted,” Dr. Caoile added, “that remorse and
insight are abstract concepts and thus, any opinions offered by this evaluator are
subjective in nature and should be interpreted with this caveat in mind.”
       Rodriguez told Dr. Caoile he would avoid trouble in the community by working,
going to school, spending time with his wife and family, and surrounding himself with
positive people. He presented “remarkably comprehensive and verifiable parole plans,”
which “considered and addressed all the necessary areas in transitioning to the
community.” Dr. Caoile called it “a positive sign” that Rodriguez planned to reside in a
transitional living home at first to assist with his adjustment to free society. She noted
that he will also benefit from “a great deal of family support” in the community.
       Dr. Caoile used three assessment guides, the Psychopathy Checklist-Revised
(PCL-R), the Historical-Clinical-Risk Management-20 (HCR-20), and the Level of
Service/Case Management Inventory (LS/CMI), to assess Rodriguez’s violence potential
in the free community. His PCL-R score placed him in the low range for psychopathy
compared to other male offenders. She noted “a history of irresponsibility and
impulsivity in which [Rodriguez] did not consider the possible consequences of his
actions.” He exhibited “a need for exciting or stimulating activity as evidenced by his
participation in criminal and gang activity (including prison gang activity),” and he also
had “a history of poor behavioral control.” “In spite of his current expression of remorse
and empathy,” Dr. Caoile concluded, Rodriguez “failed to show adequate remorse and/or
failed to appreciate the seriousness of his actions for several years following the life
crime. Furthermore, his criminal history (including his behavior during the
                                              7
[commitment] offense) suggests a lack of empathy or regard for the welfare of others.”
On the positive side, however, it did not appear that deceit or pathological lying
characterized Rodriguez’s interactions with others, and he “appear[ed] capable of
experiencing a normal range and depth of emotion,” accepted “full responsibility for his
history,” and expressed “genuine remorse . . . .” He had also shown “notable
improvement” in impulse and behavioral control and demonstrated an ability to establish
and accomplish long term goals.
       Rodriguez’s overall score on the HCR-20 placed him in the low risk category for
violent recidivism. Historical factors included “an early and serious history of substance
abuse” and “early maladjustment” in school and in the community. He was also
diagnosed with antisocial personality disorder, and he incurred “serious supervision
failures within the institutional setting.” On the positive side, Rodriguez was able to
maintain a long-term relationship, had shown a willingness to seek and maintain
institutional employment, and did not exhibit “especially strong psychopathic traits . . . or
a major mental illness.”
       Clinical factors were all positive. Dr. Caoile noted that Rodriguez had “verbalized
insight into his criminal and substance abuse history,” attended self-help groups, and
engaged in vocational and educational upgrading. He had “recently” shown good
impulse and behavioral control, and in spite of his participation in the prison mental
health program, “all reports indicate[d] that he is both emotionally and behaviorally
stable.” Risk factors included the stress of reintegrating into society, particularly given
his young age when incarcerated. Dr. Caoile wrote that Rodriguez’s lack of experience
living independently in the community as an adult could make him vulnerable to
destabilizing factors such as antisocial peers and drugs and alcohol.
       Rodriguez’s overall score on the LS/CMI, which focuses on the risk of general
rather than violent recidivism, placed him in the medium risk category. The “strong
association” between past and future criminal behavior increased his risk of recidivism.
                                              8
Dr. Caoile cited his numerous arrests before he turned 16, his institutional misconduct,
and his supervision failures. “He exhibited an early and diverse pattern of antisocial
behavior, and has been diagnosed with [antisocial personality disorder].” In addition,
Rodriguez was “undoubtedly exposed to some negative acquaintances within the
institutional setting, and does not have a sufficient base of anticriminal friends or
acquaintances outside of prison.”
       A number of factors decreased Rodriguez’s risk of recidivism. His educational
and vocational achievements and his institutional employment record indicated a
prosocial and conventional lifestyle, and he was using his free time productively by
participating in organized, positive activities like CGA. He expressed strong satisfaction
with his marriage and had maintained positive, supportive contact with his parents and
various family members. Although a cousin had gone to prison, that cousin had “turned
his life around,” and there was no evidence of current criminal attitudes or behavior in
Rodriguez’s family.
       Overall, Dr. Caoile assessed Rodriguez’s risk of violence in the free community as
“relatively Low/Moderate.” She wrote that while he “essentially maintained his previous
way of life” during the early years of his incarceration, he had shown “considerable
progress and maturation” as time went on, rejecting antisocial peer influences and
upgrading educationally and vocationally. His risk of violent recidivism would likely
increase “if he resumed his associations with negative/antisocial peers and returned to
drug and alcohol abuse,” or if he found himself without a job or income sufficient to meet
his needs and did not have adequate social support. He could decrease his risk by
remaining involved with substance abuse treatment programs and by utilizing the support
of family and prosocial influences in the community.




                                              9
                         E. May 2011 Parole Consideration Hearing
       Rodriguez’s minimum eligible parole date was August 2, 2010. This was his
initial parole consideration hearing. He was 37 years old. As was his right, he informed
the Board that he would not discuss the facts of the commitment offense. (§ 5011,
subd. (b).)
       The facts of the commitment offense as stated in the probation report were read
into the record, and Rodriguez’s version as told to Dr. Caoile was incorporated by
reference.
       The Board reviewed Rodriguez’s social history, his juvenile arrest record, and his
parole plans. It discussed his postincarceration record, his educational and vocational
upgrading, his prison work assignments, and his self-help programming. Noting his
“extensive” work on anger management, emotional management, and advanced stress
issues, the panel asked about his victim awareness programming. Rodriguez described
the book Trust After Trauma, his victim awareness work in the Lifers’ Support Group,
and his volunteer work with youth groups, noting that he had “learned a lot about how
crime impacts victims from just listening to these kids and understanding what their
families go through . . . .” He highlighted his participation since 2007 in the Juvenile
Diversion Program and called the Board’s attention to a laudatory chrono praising his
contributions to that program.
       The Board reviewed Dr. Caoile’s comprehensive risk assessment. It questioned
Rodriguez about his serious rules violations, noting that “even though the last one was
2005,” many involved fighting, “either mutual combat or just generally fighting, the last
one being December 20th, 2000.” Rodriguez said his violent behavior was “a direct
result of [his] decision to be a gang member.” He attributed the remaining violations to
irresponsibility and defiance, telling the Board he was “young” and “just trying to fit in.”
Asked why he pleaded not guilty to violations he was presently acknowledging,


                                             10
Rodriguez responded, “I used to plead not guilty to everything.” “If I got one today and I
actually committed the offense, I would plead guilty.”
       Asked about his 2005 violation for possession of controlled medication, Rodriguez
explained that he was prescribed Benadryl at his prior facility for chronic itching and was
routinely given “bags of it, like 90 at a time . . . . And then they would change and give
them to me one at a time through the window, and then they would give me bags of them
again.” Rodriguez saved the pills in a multivitamin bottle that he brought to his current
facility. This was a serious rules violation since he did not have a current prescription for
Benadryl and was taking a different medication for the chronic itching. He told the
Board he did not realize “at the time” that he was doing anything wrong, although
“[t]oday, I do.”
       The Board also discussed Rodriguez’s minor rules violations, including one in
2010 for attempting to introduce contraband, “eagle heads and lobster clasps or
something,” into a state prison. Rodriguez explained that he ordered craft materials from
a catalog, and when they arrived, “the officer took the position that it was
contraband . . . . That’s true.” Although the items were eventually returned to him,
Rodriguez was written up because it burdens staff to process unauthorized items.
       The Board questioned Rodriguez about his gang participation and his decision to
leave the gang. He explained that “the turning point” came when he obtained copies of
his police reports. “[I]t was like reading it for the very first time,” he said, “and I saw
what I did, and it’s like man, you know, I just need to start making different choices for
myself. I’m causing a lot of harm to a lot of people, and it’s something that I didn’t want
to do any more.”
       The San Jose Police Department and the district attorney opposed granting
Rodriguez parole. “Now, it does seem that he kind of turned the corner in 2005, and
maybe he turned the corner in 2001 or 2002 when he began disassociating himself from
the prison gangs,” the district attorney told the Board, “but those things . . . are too recent
                                              11
for you to be deciding that he’s not a threat to the community if you release him.” That
Rodriguez began NA/AA and Gangs Anonymous in 2005 was “too recent . . . to conclude
that [those programs have] resolved the problems that he’s got.” The district attorney
noted that Rodriguez was “an inmate with a classification score of 125 who is apparently
Level IV. He needs to get his classification score down so that he can have access to
more beneficial programs, and he needs to demonstrate a longer period of disciplinary-
free behavior in prison and better behavior in prison.”
       Rodriguez’s counsel acknowledged that during his first 10 or 11 years in prison,
Rodriguez “did everything possibl[e] you could do wrong.” His last serious rules
violation was in 2005, however, and having an excess amount of Benadryl was not “the
kind of discipline issue that would cause someone to be currently dangerous.”
Rodriguez’s low moderate risk of violent recidivism was “far below unreasonable,”
counsel argued. He reminded the panel that it was required to consider as a mitigating
factor that Rodriguez was a juvenile when he committed the life crime. Rodriguez had
been rehabilitated, counsel asserted. “He’s earned the right to go home, but if you don’t
believe that, there’d be no justification for anything worse than a three-year denial here.”
       The Board found Rodriguez unsuitable for parole and issued a three-year denial.
As the “first consideration that does weigh against suitability,” the Board cited
Rodriguez’s institutional misconduct, noting “the extent and magnitude and seriousness”
of his rules violations. The Board emphasized that his most recent counseling chrono
was linked to a controlled substance, and controlled substances were a “significant
factor” in the commitment offense. The Board noted that the 98 Benadryl pills had been
put into a vitamin bottle, “indicating a possible intent to deceive.” The psychological
evaluation, which was “not totally supportive of release,” was also of concern, the Board
told Rodriguez, even taking into account that its conclusions were “somewhat mitigated
by . . . historical references.”


                                             12
       The Board praised Rodriguez’s parole plans and his focus, encouraged him to
continue with self-help, and advised him not to get any more counseling chronos and
“[c]ertainly, no more 115s.” “The good news,” the Board told him, “is that you probably
will be getting out of prison if you stay on the present course . . . .”


                              II. Superior Court Proceedings
       Rodriguez challenged the Board’s decision in the superior court, which granted his
habeas corpus petition and ordered the Board to conduct a new hearing within 100 days.
The court first faulted the Board for focusing on static factors, “the commitment offense,
prior juvenile criminality, and social instability,” to support its finding of current
dangerousness. Noting that Rodriguez was a minor when he committed the life crime,
the court also faulted the Board for giving “this central and defining fact no consideration
whatsoever.” This error, the court wrote, “infect[ed] the entirety of [the Board’s]
decision and compel[led] the conclusion that [Rodriguez] did not receive individualized
due process.” Finally, the court concluded that Rodriguez’s 2005 rules violation for
hoarding Benadryl was “too distant, and the nexus . . . too speculative, to support a
finding of dangerousness in 2011.”
       The Warden filed a timely notice of appeal and petitioned for a writ of
supersedeas. This court granted the petition and stayed the superior court’s order pending
resolution of this appeal.


                                       III. Discussion
                                   A. Standard of Review
       Our standard of review is well established. “[T]he 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 . . . in conducting
such a review, the court may inquire only whether some evidence in the record before the
                                               13
Board supports the decision to deny parole, based upon the factors specified by statute
and regulation. If the decision’s consideration of the specified factors is not supported by
some evidence in the record and thus is devoid of a factual basis, the court should grant
the prisoner’s petition for writ of habeas corpus and should order the Board to vacate its
decision denying parole and thereafter to proceed in accordance with due process of law.”
(In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz).)
       The general standard for a parole unsuitability decision is that “a life prisoner shall
be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner
will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code
Regs., tit. 15, §§ 2402, subd. (a), 2281, subd. (a) (Regs.).)4 Factors tending to establish
unsuitability for parole are that the prisoner (1) committed the offense in an especially
heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has
an unstable social history; (4) previously has 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 in prison or jail. (Regs., § 2402,
subd. (c).) An offense is considered “especially heinous, atrocious or cruel” if it “was
carried out in a manner which demonstrates an exceptionally callous disregard for human
suffering” or “[t]he motive for the crime is inexplicable or very trivial in relation to the
offense.” (Regs., § 2402, subd. (c)(1).)
       Factors tending to establish suitability for parole are that the prisoner: (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 has 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

4
       Subsequent references to “Regs.” will be to this title.

                                               14
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. (Regs., § 2402, subd. (d).)
       “[T]he underlying circumstances of the commitment offense alone rarely will
provide a valid basis for denying parole when there is strong evidence of rehabilitation
and no other evidence of current dangerousness.” (In re Lawrence (2008) 44 Cal.4th
1181, 1211.) The nature of the commitment offense “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 to the statutory determination of a continuing threat to public safety.” (Id. at
p. 1214.) “[W]hen there is affirmative evidence, based upon the prisoner’s subsequent
behavior and current mental state, that the prisoner, if released, would not currently be
dangerous, his or her past offense may no longer realistically constitute a reliable or
accurate indicator of the prisoner’s current dangerousness.” (Id. at p. 1219.) Where, on
the other hand, there is a history of domestic abuse and, “despite years of therapy and
rehabilitative ‘programming,’ ” the prisoner has been demonstrably “unable to gain
insight into his antisocial behavior,” the Board may properly conclude that the prisoner
“remains dangerous and is unsuitable for parole.” (In re Shaputis (2008) 44 Cal.4th
1241, 1259-1260 (Shaputis I); In re Shaputis (2011) 53 Cal.4th 192, 214 (Shaputis II)
[“[T]he same evidence that we found sufficient in Shaputis I was sufficient here to meet
the ‘some evidence’ standard, given the lack of a reliable record of his current
psychological state.”].)
       In Shaputis II, the California Supreme Court “reaffirm[ed] the deferential
character of the ‘some evidence’ standard for reviewing parole suitability
determinations.” (Shaputis II, supra, 53 Cal.4th at p. 198.) That standard “is meant to
                                             15
serve the interests of due process by guarding against arbitrary or capricious parole
decisions, without overriding or controlling the exercise of executive discretion.” (Id. at
p. 199.) “The reviewing court does not ask whether the inmate is currently dangerous.
That question is reserved for the executive branch.” (Id. at p. 221.) “The court is not
empowered to reweigh the evidence.” (Ibid.) “[I]t is not for the reviewing court to
decide which evidence in the record is convincing.” (Id. at p. 211.) “The ‘some
evidence’ standard does not permit a reviewing court to reject the Board’s reasonable
evaluation of the evidence and impose its own judgment.” (Id. at p. 199.) The reviewing
court considers only “whether there is a rational nexus between the evidence and the
ultimate determination of current dangerousness.” (Id. at p. 221.)


                                    B. “Some Evidence”
       The Warden contends that “some evidence” supported the Board’s decision, which
must for that reason be upheld. We agree.
       “Under the ‘some evidence’ standard of review, the parole authority’s
interpretation of the evidence must be upheld if it is reasonable, in the sense that it is not
arbitrary, and reflects due consideration of the relevant factors.” (Shaputis II, supra, 53
Cal.4th at p. 212.) “The courts’ function is . . . limited to ensuring that the Board’s
[decision] is based on a modicum of evidence, not mere guesswork.” (Id. at p. 219.) The
standard is satisfied here.
       The transcript of Rodriguez’s parole consideration hearing reflects that the Board
considered his social history, his juvenile record, his institutional record, and his parole
plans. The Board also considered the egregiousness of the life crime, Rodriguez’s
serious abuse of alcohol and drugs, and the role that his addiction played in the life crime.
Its decision thus reflected due consideration of the relevant statutory and regulatory
factors. (See Regs., § 2402.)


                                              16
       Quoting the superior court’s order, Rodriguez argues that the Board “failed to give
any consideration [to Rodriguez’s] age at the time of his offense and its impact on the
question of insight.” The record belies this assertion. The Board was plainly aware that
Rodriguez was 16 when he committed the life crime, and it expressly noted that fact in its
decision. It did so, moreover, in the context of listing the factors it considered in
reaching its decision, telling Rodriguez that “[t]he Panel considered your behavior before
the offense. . . . We considered the prior criminality, all of it obviously being as a
juvenile . . . . [T]he Panel noted the issue of substance abuse . . . . You were 16 years of
age. . . . We went to the past and present mental state, past and present attitude toward
the crime.” (Italics added.) We reject Rodriguez’s contention that Board violated his due
process rights by failing to consider that he was a juvenile when he committed the
murder.
       Rodriguez argues that there was “no nexus between [his] 2005 possession of
Benadryl and the finding he would be a risk to the public if released.” We disagree.
       By his own account, Rodriguez began experimenting with alcohol and drugs at 10
and seriously abusing them at 12. He had several substance-related arrests as a juvenile
and was eventually sent to Sunflower House, from which he absconded. He
acknowledged that his substance abuse “affected every area of his life,” telling Dr. Caoile
that he spent his days “drinking, using drugs, sleeping until noon, and staying out until 6
in the morning.” He described his lifestyle before his arrest as “[t]errible, addicted to
drugs . . . .” He admitted that he “used approximately half a gram of cocaine and drank at
least 20 beers over the course of the 14 to 15 hours leading up to the life crime.” He told
Dr. Caoile that “if I hadn’t been an addict, I wouldn’t have done the things I did . . .
wouldn’t have robbed the man. My addiction motivated all my criminal behavior.”
Dr. Caoile concluded that Rodriguez’s risk of violence in the free community “would
likely increase if he . . . returned to drug and alcohol abuse.”


                                              17
       Against this background, we cannot conclude that the Board’s concern about
Rodriguez’s hoarding of 98 Benadryl pills was “arbitrary.” (Shaputis II, supra, 53
Cal.4th at p. 212; In re Montgomery (2012) 208 Cal.App.4th 149, 163 (Montgomery).)
The superior court erred in concluding otherwise. The court was “not empowered to
reweigh the evidence.” (Shaputis II, at p. 221.) It was not the superior court’s role to
determine that Rodriguez’s then six-year-old rules violation was “too distant” or that the
nexus between that violation and his current dangerousness was “too speculative.” “The
‘some evidence’ standard does not permit a reviewing court to reject the Board’s
reasonable evaluation of the evidence and impose its own judgment.” (Shaputis II, at
p. 199.) Here, the Board could reasonably have concluded that Rodriguez put the
hoarded pills in the vitamin bottle to conceal them for later use, either to get high or to
trade with other inmates.
       Rodriguez contends that the PCL-R, HCR-20, and LS/CMI test results and his
“past history” of lawbreaking provide “no support” for the Board’s conclusion that he is
currently dangerous. Immutable historical factors are only probative of current
dangerousness, he argues, if other evidence supports the conclusion that an inmate
remains a continuing threat to public safety. “In this case,” he asserts, “there is no such
current evidence.” We cannot agree.
       Rodriguez’s argument overlooks his 2010 counseling chrono for attempting to
introduce contraband items into a state prison. He cannot dispute that the violation
constituted “current evidence.” He acknowledged that the materials he ordered were
contraband. The Board could reasonably have concluded that the 2010 counseling
chrono showed that Rodriguez was unwilling to abide by rules that he found
inconvenient. (See In re Reed (2009) 171 Cal.App.4th 1071, 1082 (Reed) [parole denial
based on life prisoner’s recent receipt of a single counseling chrono].)
       We do not find Rodriguez’s effort to distinguish Reed persuasive. He argues that
in Reed, unlike here, the inmate had been expressly warned to “ ‘remain disciplinary free,
                                              18
not even a 128.’ ” (Reed, supra, 171 Cal. App.4th at p. 1084.) But the warning Reed
received was only one of three reasons the Reed court cited as supporting its decision.
The court also noted that “the incident was not stale,” nor was it “an isolated incident;
instead, it was part of an extensive history of institutional misconduct, including 11 CDC
115’s and 19 CDC 128-A’s.” (Id. at. p. 1085.) Those reasons are applicable here.
Rodriguez’s 2010 rules violation was certainly not stale, and it was part of a much larger
history of institutional misconduct.


                                       IV. Disposition
       The superior court’s July 5, 2012 order is reversed, and the court is directed to
enter a new order denying Rodriguez’s habeas corpus petition.



                                           ___________________________
                                           Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Grover, J.



                                             19
