Court ordered our client released on parole despite governor’s veto!



79 of 92 DOCUMENTS


In re BERNIE RAYMOND OWENS, on Habeas Corpus.


B167747


COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO


2004 Cal. App. Unpub. LEXIS 2963



April 1, 2004, Filed


NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.


PRIOR HISTORY: Appeal from an order of the Superior Court of Los Angeles County. David S. Wesley, Judge. Los Angeles County Super. Ct. No. BH001973.


DISPOSITION: Affirmed.


COUNSEL: Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Julie L. Garland, Michelle A. Desjardins and Heather L. Bushman, Deputy Attorneys General, for Petitioner the People.


Marilee Marshall, under appointment by the Court of Appeal, for Respondent Bernie Raymond Owens.


JUDGES: ASHMANN-GERST, J. We concur: NOTT, Acting P.J. DOI TODD, J.


OPINION BY: ASHMANN-GERST


OPINION

After former Governor Gray Davis (the Governor) reversed the decision of the Board of Prison Terms (the Board) finding respondent Bernie Raymond Owens (Owens) suitable for release on parole, Owens filed a petition for writ of habeas corpus in the Los Angeles [*2] Superior Court. The superior court granted the writ petition, ordered the Governor to vacate his decision, and reinstated the Board's decision to grant parole. The People appeal from the grant of the writ petition and the superior court's orders on the grounds that the superior court abused its discretion by reweighing the evidence in the record and substituting its judgment for that of the Governor.


FACTUAL AND PROCEDURAL BACKGROUND

According to the record of Owens's subsequent parole consideration hearing 1 of September 26, 2001, Owens began serving a life term on April 29, 1984 for second degree murder with use of a firearm. 2 The appellate opinion 3 of June 6, 1984, states that the murder victim married a woman whom Owens regarded as "mother," who was actually Owens's cousin. The victim moved into the cousin's house. Owens lived in a house directly behind the home of his cousin and the victim. There was considerable friction between Owens and the victim over title to the property and the victim's storage of used items on the property. According to a witness, on the day of the shooting, the victim was returning from the garage with a shovel when Owens accosted him [*3] holding a handgun and announcing his intention to kill the victim. As the victim retreated backwards, Owens fired five rounds into his body and killed him.


1 The Board gave Owens a one-year denial at his prior hearing on March 1, 2000.


2 A jury convicted Owens of first degree murder, but the judge reduced the conviction to second degree murder.


3 The record of the Board hearing indicates that the Board incorporated by reference the statement of facts from the appellate decision.

At appellant's hearing, the Board reviewed a report from Owens's counselor, a psychiatric report and its addendum, and a letter from the Los Angeles Police Department. The Board heard from Owens, the deputy district attorney, and Owens's attorney. The Board concluded that Owens was suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Board set out in detail the factors it employed in reaching this decision.

Pursuant to Penal Code 4 section [*4] 3041.2, the Governor reviewed the Board's decision. 5 A letter from the Office of the Governor, dated February 22, 2002, informed Owens that the Governor had reversed the Board's decision. Attached to the letter was a statement of reasons for the Governor's decision. The letter from the Governor stated that the Governor had considered the same factors considered by the Board.


4 All further statutory references are to the Penal Code unless otherwise indicated.


5 Section 3041.2 provides: "(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority's decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority. [P] (b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision."

 [*5] Owens filed a petition for writ of habeas corpus on July 29, 2002. On August 1, 2002, the superior court issued an order to show cause why the petition should not be granted. The People filed a return on November 5, 2002, and Owens filed a denial. The superior court continued the proceedings several times, finally ruling on the petition on May 13, 2003. The superior court found that the Governor's reasons for denying parole to Owens were not supported by any evidence in the record. The superior court granted the writ petition and ordered reinstatement of the Board's decision to grant parole. The superior court ordered the Governor to vacate his decision. Citing In re Capistran (2003) 107 Cal.App.4th 1299, the superior court stated that the Governor could, in his discretion, issue a new decision pursuant to his authority under Article V, section 8(b) of the California Constitution and section 3041.2.

The People filed a notice of appeal on June 5, 2003. After the superior court denied the People's application for a stay pending appeal, the People filed a petition for writ of supersedeas requesting a stay of the order granting Owens's petition. We granted the stay on [*6] June 11, 2003.

DISCUSSION

I. The Board's Decision

In determining that Owens was suitable for parole and would not pose an unreasonable risk of danger to society, the Board noted that Owens had no juvenile record of assaulting others. He had participated in educational programs, self-help, therapy, vocational programs, and institutional job assignments. The Board stated Owens committed the crime as a result of significant stress in his life and that he lacked significant criminal history. Because of maturation, growth, greater understanding and advanced age,

6 the Board believed Owens had a reduced probability of recidivism. He had realistic parole plans including a job offer, which he did not need because of his eligibility for pension benefits. He had maintained family ties and a positive institutional behavior indicating significant improvement in self-control. He had not one single "115" during his entire incarceration. 7


6 Owens was 70 years old at the time of the September 2001 hearing.


7 "115" refers to a California Department of Corrections form 115 entitled "Rules Violation Report." It documents misconduct "believed to be a violation of law or [that] is not minor in nature." (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)

 [*7] The Board stated Owens showed signs of remorse, witnessed by not only the Board but by the psychologist, which indicated he did understand the nature and the magnitude of the offense and accepted responsibility for his criminal behavior and had a desire to change "towards good citizenship." The Board quoted from the August 1999 psychological evaluation, which stated that Owens's violence potential "'is considered to be significantly below average relative to a Level II inmate population'" and, if released to the community, "his violence potential is considered to be no more than that of the average citizen . . ."

After formal pronouncement of the basis for the Board's decision, Deputy Commissioner Rodriguez told Owens, "I feel you really earned this. I was very impressed the way you handled yourself. You came in prison at a late age, you didn't come with an attitude. You chose to better yourself. . . . You've done something with your life in here. You're not coming in here with excuses. You've shown remorse." Presiding Commissioner Angele agreed with Rodriguez's comments, adding, "We have people who come in before us who receive forty, fifty 115s, and to spend this amount of time [*8] in prison without receiving anything indicates to me that you did not . . . come in here with an attitude. You served your time and you've done what most people should be doing, you earned your way out the door."

II. Governor's Decision

In his decision, the Governor first recounted the facts of Owens's crime, and went on to give his reasons for reversing the Board's grant of parole.

The Governor first stated that Owens committed a grave crime that demonstrated a callous disregard for human life and suffering. His claim of self-defense was unsupported by the record, and Owens continued to shoot even after the victim fell to the ground. The Governor supported this reason with statements from the Los Angeles County District Attorney's Office and the Los Angeles Police Department.

Next, the Governor asserted that Owens does not accept full responsibility for his actions, since he continues to minimize his culpability for his serious crime. The Governor quoted statements made by Owens during his September 2001 hearing. The Governor also cited a 1993 counselor's note to the effect that Mr. Owens "'confabulates to compensate for incidents he does not recall or which did [*9] not occur or about which he is confused or he lies.'"

Finally, the Governor stated that Owens does not show adequate remorse. The Governor quoted again from the 1993 counselor's notes and the September 2001 parole suitability hearing.

Based on the foregoing factors, the Governor believed Owens would pose a danger to public safety if released at this time, as summarized in his closing paragraph: "Mr. Owens committed a grave crime for which he continues to minimize his culpability and fails to show adequate remorse. I believe that Mr. Owens would pose a danger to public safety if released at this time."

III. Superior court Grant of Writ Petition

 In its order granting Owens's writ petition, the superior court stated that the Governor's observations that "Mr. Owens had committed a grave crime 'for which he continues to minimize his culpability and fails to show adequate remorse'" were not supported by any evidence in the record. The superior court then quoted Deputy Commissioner Rodriguez, one of the panelists at the parole hearing, who read into the record a February 2001 report from Owens's counselor, an August 1999 psychiatric report, and an addendum to that report. [*10] Portions of these reports contradicted the Governor's observations.

The superior court noted that two statements relied upon by the Governor in his decision were quoted in an incomplete manner. The first statement was from a 1993 counselor's note. The Governor quoted the portion stating that Owens "'confabulates to compensate for incidents he does not recall or which did not occur or about which he is confused or he lies.'" The superior court stated that the remainder of that statement was, "'However, what can clearly be inferred is that he has been treated for a chronic major mental disorder for at least two decades.'" The superior court believed there was no nexus between the eight-year-old counselor's note and the current assessment of Owens's dangerousness -- which is that he represents no danger to society. The latter assessment appears in the current counselor's report, dated February 2001, which states in pertinent part that, "'considering the commitment offense, minimal prior record and positive prison adjustment, the writer believes that the prisoner would probably pose a low degree of threat to the public at this time if released from prison.'"

The second incomplete quotation [*11] was from a statement made by Owens in his September 2001 parole hearing, and was used by the Governor to show Owens's lack of remorse. When he was asked how he felt about his crime, Owens stated, "'Regrettable. It's ruined my life. I was just beginning to get it together. Another life was involved and taken. I was, had great plans to get my life together and straighten everything out.'" The superior court stated that the Governor did not consider the rest of that statement, which was, "'Retrospectively, I should have moved but retrospect is 20-20, and I can understand that was a devastating event.'" Presiding Commissioner Angele commented that it "Kind of ruined Mrs. McClure's[8 ] life, too," to which Owens replied, "Definitely, and this is regrettable." The superior court added that the "entire parole hearing is replete with expressions of remorse and contrition. To say otherwise is to ignore the plain reading of the record." The superior court stated that the Governor's decision failed to acknowledge that Owens had recently demonstrated remorse for his crimes.


8 Mrs. McClure was the victim's wife and Owens's cousin.

 [*12] The superior court went on to state that the Governor's decision failed to mention Owens's institutional behavior, his excellent prospects for being able to live on his own, and the praise he received from prison staff for his work ethic and positive attitude.

IV. People's Arguments

The People contend that the superior court ignored the plain language of Article V, section 8 of the California Constitution, which vests in the Governor the final authority to affirm, modify, or reverse any decision of the Board regarding parole for a murderer. The People point out that, according to In re Rosenkrantz (2002) 29 Cal.4th 616, 660 (Rosenkrantz), the provisions of Article V, section 8(b) "contemplate that the Governor will undertake an independent, de novo review of the prisoner's suitability for parole." The People argue that the superior court erroneously compared the Governor's assessment of the evidence to the Board's assessment and found due process violations wherever the Governor's assessment varied from the Board's. Thus, according to the People, the superior court erred by using a standard of review contrary to the law, and the order granting [*13] the petition should be reversed on this basis alone.

The People also maintain that the Governor's review of the Board's decision did not violate due process. The People cite Rosenkrantz for the proposition that the superior court must be "extremely deferential" to the Governor's decision when assessing due process allegations. (Rosenkrantz, supra, 29 Cal.4th at p. 665.) Given that Owens's petition failed to show either a failure to give due consideration or a complete lack of evidence in support of the Governor's decision, the superior court was obliged to find the Governor acted within his constitutional authority and that the Governor's decision satisfied due process. (See Rosenkrantz, supra, at pp. 676-677.)

 

V. Relevant Authority

 

 "Article V, section 8(b) [of the California Constitution] provides that 'the Governor may review the [parole] decision [of the Board of Prison Terms] subject to procedures provided by statute.' (Italics added .) This language confers upon a Governor the discretion whether to review a parole decision, but if such discretion is exercised, he or she is constrained by . . . statute. Article [*14] V, section 8(b), further states: 'The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider.' (Italics added.) Thus the Governor's decision must be based upon the same factors that restrict the Board in rendering its parole decision." (Rosenkrantz, supra, 29 Cal.4th at p. 660.)

In determining whether a prisoner sentenced to an indeterminate term is suitable for parole, the Board considers circumstances tending to show unsuitability and circumstances tending to show suitability. (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654.) "Circumstances 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 while in prison." (Id. at pp. 653-654, fn. omitted.)

"Factors that support a [*15] finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner [the first circumstance listed above as tending to establish unsuitability for parole] 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 that 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." (Rosenkrantz, supra, 29 Cal.4th at p. 653, fn. 11.)

"Circumstances 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) [*16] 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." (Rosenkrantz, supra, 29 Cal.4th at p. 654.)

The circumstances tending to establish unsuitability and suitability for parole "'are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.'" (Rosenkrantz, supra, 29 Cal.4th at p. 654.)

VI. Standard of Review

Because the superior court based its decision on documentary evidence alone, we undertake an independent review of the record. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) "The applicable standard of review is extremely deferential to the Governor's decision." (Id. at p. 679.) "The courts properly can review a Governor's decisions whether to affirm, modify, or reverse parole decisions by the Board to determine whether they comply [*17] with due process of law, and . . . such review properly can include a determination of whether the factual basis of such a decision is supported by some evidence in the record that was before the Board." (Id. at p. 667.)


The "some evidence" standard requires only a modicum of evidence. "Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor. As with the discretion exercised by the Board in making its decision, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor, but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the Governor's decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there [*18] is some evidence in the record that supports the Governor's decision." (Rosenkrantz, supra, 29 Cal.4th at p. 677.)

 

VII. Superior Court Properly Granted Petition


A. Superior Court Did Not Abuse Its Discretion

Appellant's first contention is that the superior court abused its discretion and employed an incorrect standard of review by comparing the Governor's assessment of the evidence to the Board's and finding due process violations when the Governor's assessment varied from that of the Board. We conclude the superior court properly employed the "some evidence" standard in reviewing the Governor's decision. It is true that the superior court noted portions of the record that were in conflict with the Governor's comments. Nevertheless, the superior court rested its decision on the basis that the Governor's observations "are not supported by any evidence in the record."


B. Acceptance of Responsibility and Remorse

Addressing the Governor's observation that Owens "does not accept full responsibility for his actions," we note that failure to accept full responsibility for one's crime is not one of the circumstances listed as tending to show [*19] unsuitability for parole, nor is accepting such responsibility one of the circumstances tending to show suitability. (Cal. Code Regs., tit. 15, § 2281, subds. (c), (d).) One of the circumstances tending to show suitability is the presence of signs of remorse, and among the signs of remorse listed is the following: ". . . the prisoner has given indications that he understands the nature and magnitude of the offense." (Cal. Code Regs., tit. 15, § 2281, subds. (c), (d).) Thus, accepting full responsibility for one's actions and showing signs of remorse are actually one factor to be considered.

In support of his assertions, the Governor pointed out that Owens reiterated his claims of self-defense in the September 2001 parole suitability hearing, stating that the victim had assaulted him by hitting him with a board, after which he went towards Owens with a shovel saying "you got your gun, use it or I'm going to make you eat it." Owens also said at the hearing, "I was going towards the rear of my house and he was coming towards me. And I told him to, not to advance, to halt, in defense of myself when he was becoming aggressive, and [*20] I'm the one that backed away towards the back part of the patio, which is at my back. And then there was a series of shots." The Governor stated that Owens's version of the life crime is materially inconsistent with the record, including eyewitness accounts.

With respect to remorse itself, the Governor stated that Owens "seems more concerned with the impact that the crime has had on his own life than with the suffering of the victim or the impact that the crime had on the victim's family." The Governor notes that, when asked how he felt about his crime at the hearing, Owens said, "'Regrettable. It's ruined my life. I was just beginning to get it together. Another life was involved and taken. I was, had great plans to get my life together and straighten everything out.'"

We conclude that there is no evidence to support the Governor's assertions that Owens did not understand the nature and magnitude of his offense and showed no remorse. As noted by the superior court, the Governor incompletely quoted Owens in support of these assertions. Even in the portion quoted by the Governor, however, Owens stated that "another life was involved and taken." The Governor relied on a counselor's [*21] note from 1993 to support his observations, and that report can properly be regarded as superseded by the current counselor's note from 2001. Moreover, the Governor's criticism of Owens's claims at his latest parole hearing that he shot the victim in self-defense amounts to a requirement by the Governor that Owens admit his guilt. The Governor, like the Board, is restricted by statute, and section 5011, subdivision (b) provides that "the Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed." (See Rosenkrantz, supra, 29 Cal.4th at p. 660.)

Although the existence of conflicting evidence does not enter into the determination of whether there is some evidence in support of the Governor's decision (see Rosenkrantz, supra, 29 Cal.4th at p. 677), we note that Owens acknowledged that his crime ruined Mrs. McClure's life and that this was regrettable. The current counselor's note states that Owens "takes responsibility for his actions and expresses extreme remorse for the tragic incident. He does not negate this responsibility in any way but does feel that that day, in the circumstance, [*22] he had no choice and fatefully reacted too severe in the fast paced emotionalism of the moment. He is filled with regret on taking a life and the far reaching effect it had on many people." The Board read from the August 1999 psychiatric report, which stated that Owens "'did demonstrate good empathy towards the victim and acknowledged that this tragedy could have been avoided if he had moved to another environment.'" In Owens's prepared statement before the Board, he stated, "I am deeply remorseful for the tragedy and consequence of my action and am sincerely sorry for the pain and loss I've caused the family."

C. Nature of the Offense

Having concluded that no evidence supports one of the two reasons given by the Governor for his decision, we address the Governor's assertion that the commitment offense justifies denial of parole. The commitment offense is one of six circumstances tending to show unsuitability for parole. (Cal. Code Regs., tit. 15, § 2281, subd. (c).) The Governor's decision states that Owens "committed a grave crime that demonstrated a callous disregard for human life and suffering." This factor is one of five to be considered [*23] in determining whether the commitment offense was committed "in an especially heinous, atrocious, or cruel manner." (Rosenkrantz, supra, 29 Cal.4th at p. 653, fn. 11.) The Governor stated in explanation that Owens's claim of self-defense was unsupported by the record, the victim posed no threat to Owens when Owens opened fire, and Owens continued to shoot even after the victim fell to the ground.

Rosenkrantz stated that "the nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole." (Rosenkrantz, supra, 29 Cal.4th at p. 682; see also In re Ramirez (2001) 94 Cal.App.4th 549, 569 (Ramirez).) According to Rosenkrantz, the parole authority "properly may weigh heavily the degree of violence used and the amount of viciousness shown by a defendant." (Rosenkrantz, supra, at p. 683.) Rosenkrantz added, however, that denying parole because of the nature of the offense alone might rise to the level of a due process violation in some circumstances -- "for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction [*24] for that offense." (Ibid.) Denial of parole under such a circumstance would be inconsistent with the requirement of section 3041, subdivision (a) that a parole date normally shall be set "'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .'" Rosenkrantz agreed with Ramirez that "' a life term offense . . . underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.'" (Rosenkrantz, supra, at p. 683, citing Ramirez, supra, 94 Cal.App.4th at p. 570.)

In the case of petitioner Rosenkrantz, the court determined that the Governor "properly could consider the nature of the offense in denying parole" because the Governor had emphasized certain circumstances of the offense and certain postoffense conduct that involved particularly egregious acts beyond the minimum necessary to sustain a conviction for second degree murder. (Rosenkrantz, supra, 29 Cal.4th at p. 683.) Among the circumstances were that the petitioner brutally murdered his victim after a full week of careful preparation, rehearsal, and execution; that the petitioner [*25] fired ten shots at close range from an assault weapon; and that he fired three or four shots into the victim's head as he lay on the ground. (Id. at p. 678.) The Governor also included certain postoffense behavior in his analysis of the commitment offense. For example, the petitioner remained a fugitive for 24 days after the murder and carried with him a loaded Uzi (the murder weapon). (Id. at p. 671.) He telephoned a deputy sheriff and told him that the victim had "'asked for it'" and was a "'worthless kid.'" (Ibid.) He said he wanted to have fun for a while and then "'go and get chained up.'" The petitioner also posed for photographs with the Uzi. (Id. at p. 672.) The Governor viewed these circumstances as an indication that petitioner continued to affirm his violent act even after it had occurred. (Id. at p. 673.) The Governor also cited the aggravating factors from petitioner's probation report; i.e., that his crime manifested planning, sophistication, or professionalism. (Id. at p. 678.)


The Rosenkrantz court stated that the circumstances of the offense supported a finding that it was carried out in a dispassionate and calculated manner, another of [*26] the five factors to be considered in determining whether the commitment offense was committed "in an especially heinous, atrocious, or cruel manner." (Rosenkrantz, supra, 29 Cal.4th at p. 678; Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).) Rosenkrantz stated that it did not matter if the weight of the evidence conflicted with the Governor's assessment of the circumstances of petitioner's crime, as long as there was some evidence in support of the Governor's assessment. (Rosenkrantz, supra, at p. 679.)

In the instant case, however, there is no evidence that the Governor properly relied on the circumstances of the offense to deny parole. The only fact that approaches the characterization of "egregious" is the shooting of the victim approximately two times after the victim had fallen and was lying on the ground. According to Owens, however, he fired the shots in rapid succession and was not aware of the position of the victim when particular shots were fired. Unlike Rosenkrantz, Owens did not manifest a cavalier attitude toward his crime. Also unlike the petitioner's actions in Rosenkrantz, Owens's preoffense and postoffense [*27] behavior did not evince the callousness of preparation, disparagement of the victim, and pride in his crime. After shooting the victim, Owens went into his home, dressed, placed the weapon in plain sight, and waited on the steps for police. When police officers arrived, Owens told them where to find the gun and gave permission to search the house. Owens's behavior postoffense did not continue to affirm his violent act and hence did not add to his culpability or render his offense egregious. The Governor does no more than recite the facts of Owens's crime and fails to make a case for characterizing the offense as particularly egregious, as he was able to do in the Rosenkrantz case.


D. Reinstatement of Board's Decision Required

Having concluded there is no evidence to support the Governor's decision, we affirm the order of the superior court instructing the Governor to vacate his decision and reinstating the Board's decision to grant parole. We disagree with the superior court's order that the Governor may thereafter exercise his discretion to issue a new decision in accordance with In re Capistran, supra, 107 Cal.App.4th 1299, 1306-1307. We agree with the more recent [*28] decision from this district, In re Smith (2003) 109 Cal.App.4th 489, that a remand to the Governor is not appropriate when this Court has reviewed the materials before the Board and has determined that there is no evidence to support a decision other than the one issued by the Board. (Id. at p. 507.)

 

DISPOSITION

 

 The May 13, 2003, order granting Owens's petition for a writ of habeas corpus and reinstating the Board's decision to grant parole is affirmed, and the stay of the superior court's order is vacated.

ASHMANN-GERST, J.

We concur:

NOTT, Acting P.J.

DOI TODD, J.