In re Morganti , 204 Cal. App. 4th 904 ( 2012 )

Opinion

RICHMAN, J.

—The People appeal from an order granting Christopher Morganti’s petition for a writ of habeas corpus and directing the Board of Parole Hearings (the Board) to hold a new hearing to determine whether to fix a release date for Morganti. Like the trial court, we conclude that, even applying the ultralenient “some evidence” standard, the Board’s decision that Morganti is unsuitable for parole cannot be upheld. Accordingly, we affirm the superior court’s decision granting habeas corpus relief.

FACTS AND PROCEEDINGS BELOW

Preconviction History

Morganti was bom in Healdsburg in 1951 into an intact and religious Ttalian-American family. He suffered no abuse or neglect or other trauma as a child, and has no history of juvenile convictions. He attended parochial schools until he graduated from high school in 1970, when he enrolled in Santa Rosa Junior College. He dropped out of junior college before the end of his first year and obtained employment as a carpenter. During the next five years, while working as a carpenter, he drank beer and smoked marijuana regularly. He gradually became addicted to cocaine, by the late 1970’s was “shooting” cocaine intravenously, and in order to support this habit began selling it.

In 1977 Morganti moved to the State of Washington, where he obtained a contractor’s license and started his own construction company. He got married and had a child, and also adopted his wife’s son. After five years he and his wife divorced, and in 1987 Morganti moved back to Sonoma County to care for his father, who had cancer. During the two years he cared for his father, Morganti’s drug use escalated, and at one point he was injecting or ingesting as much as an ounce of cocaine daily. Following his father’s death, Morganti remarried. The commitment offense took place six weeks later, on November 16, 1991.

The Commitment Offense

Morganti and Ron Turner, an employee of the Le Grande Motel in Cloverdale, were both “heavily involved in drugs.” Morganti supplied Turner with cocaine in return for the free use of motel rooms. In order to hide the transaction from the owner of the motel, Morganti would give Turner his credit card on the understanding Turner would later “pull” the charge slips before they were processed by the credit card company. When Turner failed to do this on one occasion, Morganti received a credit card bill for $763. After receiving several more such bills-—and at a time at which he “had been high every day, up three or four days[,] and then sleep and then up again”—Morganti confronted Turner in his room at the motel. In a rage, he stabbed Turner 26 times with a knife he had brought with him. He then set fire to the room and fled. He was arrested three days later. In June 1993 a jury found Morganti guilty of second degree murder and arson of an inhabited structure, and he was sentenced to state prison for 21 years to life. These are the only violent crimes Morganti has committed.¹

Postconviction History

As noted in the most recent psychological evaluation, Morganti “has functioned without behavioral problems” for almost 20 years, “worked consistently and regularly” while in prison, most recently as the lead man in the butcher shop. “He generally receives above average to superior evaluations for both relationships and performance.” He has also worked on the waste control crew and earned a certificate qualifying him as a lift truck operator. He has applied for a computer repair program but has remained on the waiting list for more than three years. He has consistently participated for many years in Alcoholics Anonymous (AA), Narcotics Anonymous (NA), Overcomers Outreach (a faith-based 12-step program), and numerous other rehabilitative programs, including classes in stress and anger management. However, his desire to participate in such programs has been frustrated by the elimination of some of them and cutbacks in others, due to reductions in the budget of California’s Department of Corrections and Rehabilitation (CDCR).

When Morganti first arrived in prison he “had a few friends in the biker group” whom he met “through my first cellie”; those relationships ended years ago, when he returned to the Catholic faith and became actively involved in church-sponsored programs. Though he previously spent a great deal of his free time engaging in physical activities and exercise, these activities have been “severely limited” by serious medical problems: he has been diagnosed with heart disease, emphysema, hyperlipidemia, hepatitis C, chronic viral illness, and cardiac arrhythmia, and in 2007 he underwent cardiac bypass surgery. He now uses his free time to “walk a few laps with an old friend and we play dominoes and cribbage. I watch the educational videos and we have Bible studies and classes through the church.”

Morganti has plans in the event he is released on parole. He owns his own house, has numerous physically undemanding job offers, was left money by his mother, and, as indicated by numerous letters sent to the Board in his behalf, has a significant amount of support from family members, former neighbors, classmates, teachers, and others in the Healdsburg community with whom he corresponds, several of whom have offered him employment in the event his “medical issues” allow it. The Board also received a letter from a friend who stated her willingness to transport Morganti to and from support group meetings, such as AA and NA, if he needed such assistance.

Psychological Evaluation

On March 24, 2010, shortly before Morganti’s most recent parole hearing, Dr. Michael Pritchard submitted a 14-page comprehensive risk assessment to the Board. Dr. Pritchard stated that Morganti has made a “commitment to abstinence from intoxicating substances,” and participated in AA and NA even though “he believes they are not essential to his sobriety,” and “intends to rely on the support of his church as well as attending NA meetings if he returns to the community.” Because “sobriety in a highly controlled and structured milieu such as prison does not necessarily generalize to the free community,” Dr. Pritchard opined that the “risk of relapse” might be mitigated “by ongoing participation in NA or AA meetings, adherence to said organizations’ guiding principles and/or the maintenance of an A A or NA sponsor in the free community, in addition to having a well-defined relapse prevention plan.”

When asked by Dr. Pritchard to assess himself, Morganti wrote: “I am a good person. I believe in my religion and my family. I believe in my country. I believe in right and wrong. I’ve always made my own way. I took care of myself. Sometimes I let my work overrun my relationships. I have to stay grounded in my church, in my faith. Q] The peer pressure I used to feel, even into my 40s, I don’t care about that any more. I have learned to involve myself with people through my church. I have changed. It is drug use versus religion. I am more secure in myself now. I don’t have to have a lot of friends. I know who I am and what I am. I am a Catholic, an Italian, an American, a pop, and a grandpa; at least I want to be a grandpa if I get a chance.” Dr. Pritchard commended Morganti for speaking “openly and directly,” and observed that his statements are “not inaccurate, although perhaps self-serving.” He also felt Morganti’s revelations about his past use of controlled substances were “a product of thoughtful reflection on his history of substance abuse.”

In assessing the risk of violence presented by Morganti’s release on parole, Dr. Pritchard utilized “a combination of actuarially-derived and structured professional judgment approaches,” specifically the “Psychopathy Check List-Revised” (PCL-R) approach and that prescribed by the “Historical-Clinical-Risk Management-20” (HCR-20). Additionally, for assessment of the general risk for criminal recidivism, Dr. Pritchard employed the “Level of Service/Case Management Inventory” (LS/CMI) protocol. According to him, “[t]hese measures are widely used and are supported by years of research in the risk assessment field. They have been cross-validated with various forensic populations, including United States males in correctional settings. They are scored on the basis of semi-structured interview and information obtained from the record. Estimates of risk [are] presented categorically: Low, Moderate/Medium, or High as compared to the general offender population.”

Dr. Pritchard stated that under the PCL-R Morganti “obtained a total score . . . which placed him in the Low Range of Psychopathy when compared to other North American offenders at approximately the 5th percentile.” Morganti’s overall score as measured by the “HCR-20 was [also] in the Low Range of violent recidivism,” as was his LS/CMI score, which indicated that “he is at the Low Risk/Need Level for recidivism of any kind at approximately the 5th percentile in the population of U.S. male offenses.”

Dr. Pritchard’s overall assessment of Morganti was that “Mr. Morganti presents a LOW RISK for violence in the free community. For all the antisocial behavior demonstrated by his cocaine addiction and penchant for the ‘biker philosophy,’ his record reflects no violence or crimes outside of the life crime. He has functioned responsibly and compliantly while incarcerated. He is currently 59 years old and in relatively poor health. Despite his cavalier attitude about his personal potential for substance use relapse, he nevertheless presents as an overall low risk to reoffend.”

The 2010 Parole Hearing and Decision

During the course of the four-hour hearing that took place on August 2, 2010, the two members of the Board panel briefly acknowledged that Morganti had received positive psychological evaluations;² that his discipline-free conduct in prison was exemplary; and that his parole plans were realistic, as shown by the job offers and other support expressed by many present and former residents of Healdsburg, where he planned to live if released.

Nevertheless, after taking a recess and deliberating, the presiding commissioner announced that Morganti had been found unsuitable for parole, and “[i]t’s a three-year denial” (Pen. Code, § 3041.5, subd. (b)(3), with subsequent statutory references are to the Pen. Code unless otherwise indicated.). Summing up the reasons for this determination, the presiding commissioner stated as follows:³ “You’ve done some good things, but I’ve got to tell you the overlying issues for us were your substance abuse issues, and whether that makes you a current unreasonable risk of dangerousness in society is because it was so involved in the life crime. . . . [W]e did talk a little bit about if you had any kind of understanding of the life crime, and we did talk about how substance abuse was involved in the life crime, which kind of draws the nexus between the life crime and your substance abuse. I get very nervous and uncomfortable when someone tells me they’re going to base a lot of their reasons for staying off drugs on their religion, especially when they had a situation like you went to parochial school or Catholic school. Because it didn’t work then. You had a crisis of faith according to what you told us. And so, that concerned us. So, that gave us a reason for, wow, that’s probably not going to be so successful. So, then we looked at your substance abuse, relapse prevention plan. I thought your relapse prevention plan was okay [but] ... I think you need more understanding into your substance abuse. I think you need to get more involved in your AA and NA programs.” Noting that Morganti had many “positives” in his record, the presiding commissioner closed his comments with the advice to “[g]et more involved in your self-help. That’s our recommendation to you.”

Pursuing this subject, the deputy commissioner acknowledged Morganti had taken many self-help programs in addition to AA and NA, but questioned their efficacy, stating that many were conducted “by video conference, or correspondence classes” or were of short duration. During the hearing, after Morganti had described the self-help, therapy, and vocational programs he was taking or had taken, the deputy commissioner inquired about the length of the programs, the frequency of their meetings, and the opportunity they afforded for class discussions. Morganti told her that one course, Cage Your Rage, lasted eight weeks, that other courses in anger control and stress management were each three-week courses, and that a “faith-based self-improvement course” met once a week for between four and six weeks. Morganti also stated that because of “things with the budget,” the AA and NA programs were then meeting only once a month, and the stress management class used some “distance learning classes” in which class discussions were not possible.

The deputy commissioner appears to have concluded that the programs Morganti was participating in were insufficiently “comprehensive,” observing that “a comprehensive relapse prevention plan would definitely speak to frequency of meetings, and where they’re located, and what have you.” Acknowledging that her concern “is perhaps a catch-22,” because “the programs and what have you have been curtailed” due to budget cuts, the deputy commissioner advised Morganti that “the older we get, the longer learning new habits takes. And so I would encourage you to continue taking classes. We both understand that programs and what have you have been curtailed, and so take whatever you can.”

The Habeas Corpus Proceedings in the Superior Court

On January 3, 2011, Morganti filed a petition for habeas corpus in the Sonoma County Superior Court arguing first, and fundamentally, that “the Board’s decision to deny Morganti parole lacked any supporting evidence and was otherwise arbitrary in violation of federal and state guaranties to due process of law.” Following an order to show cause, the warden filed a lengthy return, and petitioner a response. On June 6, 2011, the trial court (Honorable Virginia Marcoida) filed a detailed and thoughtful nine-page order granting the petition, concluding that the “Board’s finding of lack of insight is not supported by some evidence.”

Finding the Board’s determination that Morganti “lack[ed] insight into his drug use and addiction” was based on its “conclusion that (1) petitioner did not believe programs such as A.A. and N.A. are essential to his recovery, and (2) petitioner did not fully understand the causative factors of his substance abuse,” the court found that “[n]one of these findings are supported by the record.” Rejecting the Board’s conclusion that Morganti was “relying solely on his religion to stay away from drugs” as a “distortion and oversimplification of [his] statements,” the court stated that there was “no evidence that he lacks insight into the substance abuse that led him to commit murder.” Citing portions of his testimony at the parole hearing, the court pointed out that Morganti “acknowledges that his recovery consists of a combination of things, including his religious beliefs and programs such as A.A. and N.A. He affirmed that he intends to participate in A.A. and N.A. upon his release. The mere fact that petitioner may believe that, for him, the most important aspect of his recovery is his faith in religion does not mean that he is discounting or disregarding the importance of A.A. and N.A. programs as an integral part of the recovery process.” The court also noted that Morganti “affirmed that the 12-step program is part of his daily life,” and that the “detailed relapse prevention plan” he presented to the Board “included participation in 12-step programs.”

The court found that the Board’s determination that Morganti “needs to ‘go into some more understanding of the motivation of why you turned to drugs’ ” also was unsupported by some evidence. As the court explained, Morganti “did not simply blame his past drug use on the crowd he was hanging around with. Rather, petitioner acknowledged there were multiple reasons for his addiction to cocaine. He acknowledged that he enjoyed the high and the rush. He acknowledged that he enjoyed the fast lifestyle that bikers, women, and his friends brought into his life. He has taken full responsibility for his drug use, and has fully acknowledged that he can never have as much as one drink again, as the drug use and the alcohol use are interconnected. While it is undoubtedly true that we can all gain better insight into our actions, petitioner’s insight into the motivations of why he turned to drugs is more than adequate and does not show a lack of insight into his drug abuse.”

Then, noting that since 1994 Morganti “has dedicated himself to leading a sober and drug free life,” “participated in all the A.A. and N.A. programs that are available to him in prison” and “also participated in church-based 12-step programs,” the court stated that he “has an exemplary history of rehabilitation and reform in prison; and all evidence points toward continued rehabilitation once released.” “In sum,” the court concluded, “the record provides no rational basis upon which to conclude petitioner is blind to the problem presented by his past drug abuse or has refused to confront the problem, nor reason to believe petitioner is likely to resume abusing substances after more than 16 years of sobriety and active participation in A.A. and N.A. There is no evidence that petitioner will return to drug or alcohol abuse if released on parole. Petitioner’s resolve to put into practice the teachings of A.A. and N.A. and remain drug and alcohol free during periods of time where A.A. and N.A. programs were not available to him in prison provides additional evidence of petitioner’s ability to maintain his gains upon release.”

The court granted Morganti’s petition and remanded the matter to the Board to conduct a new parole hearing.⁴ (See In re Prather (2010) 50 Cal.4th 238, 244 [112 Cal.Rptr.3d 291, 234 P.3d 541] (Prather).)

Respondent Randy Grounds, warden of the Soledad correctional facility where Morganti is confined, filed timely notice of this appeal on June 7, 2011,* *⁵ and the order he challenges is appealable. (§ 1506.)

DISCUSSION

The Law and the Standard of Review

We very recently collected and confirmed the applicable rules that govern here, in In re Young (2012) 204 Cal.App.4th 288.

In re Shaputis (2011) 53 Cal.4th 192 [134 Cal.Rptr.3d 86, 265 P.3d 253] (Shaputis II) “is the most recent of several opinions by our Supreme Court that together explain the framework that exists among our three branches of government regarding parole decisions. (See Prather, supra, 50 Cal.4th 238; In re Lawrence (2008) 44 Cal.4th 1181 [82 Cal.Rptr.3d 169, 190 P.3d 535] (Lawrence); In re Shaputis (2008) 44 Cal.4th 1241 [82 Cal.Rptr.3d 213, 190 P.3d 573] (Shaputis I); In re Dannenberg (2005) 34 Cal.4th 1061 [23 Cal.Rptr.3d 417, 104 P.3d 783] (Dannenberg); In re Rosenkrantz (2002) 29 Cal.4th 616 [128 Cal.Rptr.2d 104, 59 P.3d 174] (Rosenkrantz).) As they explain, the Board’s parole authority is governed by a body of statutes and regulations as mandated by the Legislature, most notably Penal Code section 3041 (section 3041) and title 15, section 2402 of the California Code of Regulations. [Fn. omitted.] (Shaputis II, at p. 209, fn. 5; Prather, at pp. 249-251; Lawrence, at pp. 1201-1203.) [Fn. omitted.]

“Section 3041 mandates that the Board 1 “ ‘normally’ ” ’ set a parole date for an eligible inmate, and ‘ “must” ’ do so unless it determines that an inmate poses a current threat to public safety. (Prather, supra, 50 Cal.4th at p. 249, quoting Lawrence, supra, 44 Cal.4th at p. 1202.) [Fn. omitted.] As a result, parole applicants have a ‘due process liberty interest in parole’ and ‘ “an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.” ’ (Lawrence, supra, 44 Cal.4th at pp. 1191, 1204.) In other words, ‘ “parole is the rule, rather than the exception” ’ (id. at p. 1204, quoting In re Smith (2003) 114 Cal.App.4th 343, 366 [7 Cal.Rptr.3d 655]), and ‘the onus [is] on the Board to justify denial of parole . . .’ (Shaputis II, supra, 53 Cal.4th at p. 222 (cone. opn. of Liu, J.)).

“Accordingly, as we have discussed, the Board must determine, consistent with due process, the ‘essential question’ of ‘whether the inmate currently poses a threat to public safety.’ (Shaputis II, supra, 53 Cal.4th at pp. 209, 220.) The Board answers this question by conducting ‘an individualized inquiry’ into the inmate’s suitability for parole (id. at p. 219), ‘draw-ting] . . . answers from the entire record, including the facts of the offense, the inmate’s progress during incarceration, and the insight he or she has achieved into past behavior.’ (Id. at p. 221, italics added.) It is required to give due consideration to the criteria referred to in section 3041 and, more specifically, in [California Code of] Regulations, [title 15,] section 2402, promulgated by the Board pursuant to legislative mandate. [Fn. omitted.] (Prather, supra, 50 Cal.4th at p. 251 [Board ‘must consider the statutory factors concerning parole suitability set forth in section 3041 as well as the Board regulations’ (italics added)].)

“[California Code of] Regulations[, title 15,] section 2402 contains numerous factors regarding both an inmate’s unsuitability [fn. omitted] and suitability [fn. omitted] for parole that the Board must consider and rely on to assess whether the inmate poses ‘an unreasonable risk of danger to society if released from prison.’ ([Cal. Code] Regs., [tit. 15,] § 2402, subds. (a), (c), (d).) These ‘matrix of factors . . . contemplates that even those who committed aggravated murder may be paroled after serving a sufficiently long term if the Board determines that evidence of post-conviction rehabilitation indicates they no longer pose a threat to public safety.’ (Lawrence, supra, 44 Cal,4th at p. 1211.)

“We review the Board’s decision under a ‘highly deferential “some evidence” standard.’ (Shaputis II, supra, 53 Cal.4th at p. 221.) [Fn. omitted.] The Shaputis II opinion states that the Board’s decision ‘is upheld unless it is arbitrary or procedurally flawed.’ (53 Cal.4th at p. 221.) It does not specifically define what is meant by ‘procedurally flawed.’ Elsewhere, however, it states that ‘[u]nder 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.’ (Id. at p. 212.) [Fn. omitted.]

“More specifically, although ‘ “[t]he precise manner in which the specified factors relevant to parole suitability are considered and balanced” ’ lies with the Board (Shaputis II, supra, 53 Cal.4th at p. 210, quoting Rosenkrantz, supra, 29 Cal.4th at p. 677), its decision ‘ “must reflect an individualized consideration of the specified criteria ....”’ (Lawrence, supra, 44 Cal.4th at p. 1232, quoting Rosenkrantz, at p. 677, italics added.) [Fn. omitted.] ‘It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.’ (Lawrence, at p. 1212, italics added.) The Board ‘must determine whether a particular fact is probative of the central issue of current dangerousness when considered in light of the full record.’ (Prather, supra, 50 Cal.4th at p. 255, italics added.)

“ ‘ “As long as the . . . 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 is some evidence in the record that supports the . . . decision.” ’ (Shaputis II, supra, 53 Cal.4th at p. 210, quoting Rosenkrantz, supra, 29 Cal.4th at p. 677.) We are to ensure that the Board’s ‘analysis of the public safety risk entailed in a grant of parole is based on a modicum of evidence, not mere guesswork.’ {Shaputis II, at p. 219.) We review not only the evidence specified by the Board, but the entire record to determine whether this modicum of evidence exists, [fn. omitted] and look for ‘a rational nexus between the evidence and the ultimate determination of current dangerousness.’ (Shaputis II, at p. 221.) We do not reweigh the evidence. (Ibid.)

“Thus, Shaputis II and the Supreme Court opinions upon which it relies make clear that we are to review the Board’s decision to ensure that it satisfies two due process imperatives that are particularly relevant to this case. We must determine whether the Board’s decision reflects due consideration of all relevant statutory factors and, if it does, whether its analysis is supported by a modicum of evidence in the record, not mere guesswork, that is rationally indicative of current dangerousness.

“If the Board’s consideration of the specified factors is not supported by some evidence in the record, we must grant the petition and order the Board to vacate its petition. (Rosenkrantz, supra, 29 Cal.4th at p. 658.) In such a case, we ‘generally should direct the Board to conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of the court, and should not place improper limitations on the type of evidence the Board is statutorily obligated to consider.’ (Prather, supra, 50 Cal.4th at p. 244.)” (In re Young, supra, 204 Cal.App.4th at p. 304.)

Additionally, because the state cannot deprive any person of liberty without due process of law (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7), “the ‘some evidence’ test may be understood as meaning that suitability determinations must have some rational basis in fact” (In re Scott (2005) 133 Cal.App.4th 573, 590, fn. 6 [34 Cal.Rptr.3d 905]); that is, “the factual basis of a decision by the Board denying parole must be premised upon some evidence relevant to the factors the Board is required to consider.” (In re Rosenkrantz, supra, 29 Cal.4th at p. 663 (Rosenkrantz).) As Justice Liu has recently articulated the proposition, “the focus of judicial review is on the rationality of the Board’s . . . decision—not only the ultimate conclusion of current dangerousness but also the evidence and reasoning on which the Board or Governor actually relied to reach that conclusion.” (Shaputis II, supra, 53 Cal.4th at p. 223 (cone. opn. of Liu, J.).)

There Is Not “Some Evidence” Morganti Would Pose an Unreasonable Risk of Danger to the Public if Released on Parole

The Board’s conclusion that Morganti would pose an unreasonable risk of danger to society if released from prison was based on its finding that “Morganti’s violent commitment offense, viewed in light of his inadequate insight into his drug abuse, indicated that he was too dangerous to release on parole.” According to the Attorney General, the evidence supporting this finding consists of two factors: (1) Morganti’s statements to both the Board and the evaluating psychologist that his faith and Catholic upbringing were sufficient to prevent a relapse into substance abuse, and that programs such as Narcotics Anonymous, “while helpful were not essential to his sobriety,” and (2) his “lack of insight into the causative factors of his substance abuse.”

As we explain, the first factor—which is manufactured by the Board’s mischaracterizations of Morganti’s statements to the Board and to Dr. Pritchard— does not exist. The second factor is highly questionable, but any lack of insight would not provide a basis for the denial of parole in any event, because there is no evidence such a deficiency, either by itself or in conjunction with the commitment offense, has a rational tendency to show that Morganti currently poses an unreasonable risk of danger.

No Evidence Shows Morganti Relies Only on His Religious Faith to Prevent Relapse into Substance Abuse, so That His Faith or the Possible Loss of It Is Not Rationally Indicative He Is Currently Dangerous

Apart from relatively brief periods in 2005 and 2006 (during which he was being treated for heart disease and other chronic and degenerative health problems), Morganti has participated in AA and NA for more than 15 years. Not once did he indicate a desire to stop doing so, not once a belief that the programs were ineffectual. To the contrary, Morganti has repeatedly stated his intention to continue participating in both programs upon release to the community. Indeed, because Morganti is apparently unable to drive, he provided the Board the name of a Healdsburg resident willing to transport him to and from a local AA program. And as he explained at the hearing, he is also corresponding with the New York office of AA for help in obtaining a local sponsor. So far as the record shows, Morganti has never stated a belief that the teachings of the church conflict in any way with those of AA and NA. In fact, he sees his religion and the programs as complementary: in his words, seven of the 12 steps posited by AA and NA “involve a higher power, which to me is Jesus.”

The question whether Morganti considered his “Catholic upbringing” sufficient to prevent a relapse into substance abuse, and might therefore cause him to discontinue participation in AA and NA, arose at the hearing when the presiding commissioner asked to see a copy of Morganti’s “relapse prevention plan.” There, in a portion in which Morganti describes his “evening inventory,” he states: “At the end of my day is my evening prayer. To recite Psalm 51, which I have done for over 15 years now. To check off my 12-Steps on NA and make sure I didn’t violate any principles. Then to give thanks for another drug free day.” A later paragraph in the plan states that, if paroled, “I plan to attend NA meetings in my town, and to participate in those meetings.”

After reading the plan, the presiding commissioner pointed out that in his comprehensive risk assessment Dr. Pritchard indicated that Morganti feels participation in AA, NA, and other self-help groups “are not essential to his sobriety” as “he intends to rely on the support of his church . . . .” The presiding commissioner’s “concern” was that “what you’re saying is that you don’t seem to think you have a problem right now with alcohol, with drugs or alcohol, and you don’t need a program. That’s what I’m hearing you [say], and I want to make sure I’m hearing this right. You say you have your religion to fall back on. You had your religion before, right?” After Morganti informed him that “I lost my religion before I took off down this road,” the presiding commissioner responded by pointing out Morganti had lost his religion “because you didn’t agree with church doctrine”⁶ “[and] then you went down a path of self destruction . . . [s]o, what happens when you have a disagreement with the church doctrine again?” The presiding commissioner also thought it significant that Dr. Pritchard also seemed concerned about Morganti’s statement to him that the major change in his life is that it is now “drug use versus religion.”

Morganti answered by noting that in his written response to Dr. Pritchard’s evaluation (which was before the Board) he admitted he “didn’t explain myself very well in the statement I made ‘it[’]s God vs. Drugs.’ In the Bible a rich man asked Jesus what he must do to enter heaven. lesus told him to sell all that he had and follow Him. The man was sad and walked away because he was very rich. You cannot serve two Gods. In the rich man’s case it was money and it my case, it used to be drugs. With all the tools from AA and NA and Overcomers Outreach, I have learned and applied them to my life since this tragic crime happened. I know in my heart that I have changed significantly. I cannot serve and follow the ways of God and use drugs also.”

It is also important to recall that, unlike the Board, Dr. Pritchard did not suggest Morganti was (or might become) unwilling to participate in AA or NA, or considered them ineffectual, or that he believed the teachings of the Catholic church conflicted with those of AA or NA. Nor did Dr. Pritchard express concern about the possibility Morganti might leave the Catholic Church. Aware that all former substance abusers are exposed to the risk of relapse, and that this possibility is taken into account by the risk assessment tests showing Morganti to be at low risk of recidivism, Dr. Pritchard’s main point was that the inherent risk should be mitigated by ensuring Morganti’s “ongoing participation in NA or AA meetings, adherence to said organizations’ guiding principles and/or the maintenance of an AA or NA sponsor in the free community . . . .” (Italics added.) Dr. Pritchard’s report never even suggests, let alone states, that Morganti’s firm “internal realization of the negative consequences of his addiction” is inadequate; all it suggests is that his resolve should be monitored, as could have been and is often required as a special condition of parole. (Cal. Code Regs., tit. 15, § 2281, subd. (b); see also Pen. Code, §§ 3068-3070.) To the contrary, in his report to the Board Dr. Pritchard quotes from Morganti’s forthright description and assessment of his past drug use, and characterizes it as a “thoughtful reflection on his history of substance abuse,” and the “large” role it played in the commitment offense. In sum, the presiding commissioner’s conclusion that Morganti did not consider his continued participation in AA or NA “essential” and might rely only on “his faith and Catholic upbringing” utterly distorts Dr. Pritchard’s comments.

Moreover, the presiding commissioner’s conclusion inexplicably ignores the evidence—undisputed evidence—establishing Morganti’s involvement in AA and/or NA for more than 17 years, his plan to remain involved in those programs if paroled (which can be enforced as a special condition of parole), and Ms repeated acknowledgment of the complementary relationsMp between those programs and his religious faith. For example, Morganti insisted that “I am not downplaying AA or NA, but a person should know 7 out of 12 steps, and be able to talk about them or refer to his higher power. I truly believe that on December 22, 1994, Jesus Christ opened my eyes. I went back to the Catholic church, of which I was raised and rooted in at an early age. Then I found AA, NA in prison, and both have helped me turn my life around. I honestly believe that Christ opened my eyes and my heart, then he led me to AA, NA, Stress Management and Anger Management, [f] I do my best each day to practice the principles of NA in my daily affairs. At the end of each day I go over my successes and my shortcomings, and try to do better as each day comes. Most importantly, I’m happy with another day without drugs.” (Italics added.)

At a later point, after questioning Morganti about Ms confidence that “the Catholic faith is going to keep you on the right path,” the presiding commissioner asked Morganti, “If you’re depending on the Bible to keep you off substances, do you tMnk that’s enough?” Morganti made clear he was not depending just on the Bible, insisting “it’s a combination of tMngs I use now. I use the NA. I use the AA. I use my Bible. I use my church.” When asked “[a]re you going to get involved in AA or NA if you were to get a date,” Morganti answered unequivocally: “Yes, I am.” Morganti also explained that Ms confidence in Ms ability to remain drug and alcohol free was based not only on the strength of his religious belief, but Ms degenerating health. Reminding the panel that he was then almost 60 years old and infirm, he said, “I’m paying for the substance abuse right now. I mean, I’ve had bypass surgery. I’m fighting with Hepatitis C treatments and stuff. I can relate all of these problems right straight back to drugs, the emphysema and everythmg, so I mean I realize the toll that they’ve taken on my life.”

Morganti stated to Dr. Pritchard that he “go[es] to AA and NA now, but [17 years ago] I made a decision that I was a drug addict and since that day I haven’t done it at all. It was December 22, 1994. That was the last time. The light went on.” Nothing in the record casts doubt on the truth of that statement. The risk a former drug or alcohol abuser will relapse, which can never be entirely elimmated, cannot of itself warrant the deMal of parole, because if it did the mere fact an inmate was a former substance abuser would “eternally provide adequate support for a decision that [he] is unsuitable for parole.” (In re Lawrence, supra, 44 Cal.4th at p. 1226 (Lawrence).) TMs cannot be the case.

The risk an inmate may fall back mto alcohol or drug abuse can justify deMal of parole only where it is greater than that to which a former drug or alcohol abuser is normally exposed. The Board apparently found such a greater risk in this case because it considered Morganti’s religious faith the sole means he would apply to stay drug and alcohol free. And this means of maintaining abstinence was unreliable, the presiding commissioner appears to have reasoned, because Morganti had once lost his faith and might therefore do so again. If so, the Board seems to have felt, Morganti would be left without any other effective means of remaining drug and alcohol free because he believed participation in 12-step programs like AA and NA were either not essential or were effective only when accompanied by religious faith.⁷

The presiding commissioner’s statement that what Morganti was “saying is that you don’t seem to think you have a problem right now with alcohol, with drugs or alcohol, and you don’t need a program” puts words in Morganti’s mouth—words he not only never uttered, but words he repeatedly disclaimed. As the trial court aptly observed, “[t]he mere fact that petitioner may believe that, for him, the most important aspect of his recovery is his faith in religion does not mean that he is discounting or disregarding the importance of A.A. and N.A. programs as an integral part of the recovery process. [Morganti] affirmed that the 12-step program is part of his daily life . ...” In sum, the Board’s conclusion that Morganti relies only on his religion to stay away from drugs is unsupported by any evidence.

As earlier explained, the deputy commissioner appears to have voted to deny Morganti parole for the additional reason that the 12-step and other rehabilitative programs he participated in were all either so short, or met so infrequently, or consisted of correspondence courses, or were conducted by video conference, that none could be deemed “comprehensive.” If the quality of the rehabilitative programs Morganti participated in were deficient, they were the only ones made available to him by the state. So to deny him parole on that basis is, frankly, outrageous.⁸ In 2006, when the Board denied Morganti parole for a period of four years (on the grounds of the gravity of his commitment offense and “lack of insight”), the Board’s parting advice to him was “stay discipline free” and “[g]et self-help and, sir, we recommend that you participate in all types of self-help.” Morganti did what he was told. It availed him nothing.

There Is No Nexus Between Morganti’s Insight into the Causative Factors of His Substance Abuse and the Conclusion He Presents an Unreasonable Risk to Public Safety if Released on Parole

As noted, our Supreme Court has “expressly recognized that the presence or absence of insight is a significant factor in determining whether there is a ‘rational nexus’ between the inmate’s dangerous past behavior and the threat the inmate currently poses to public safety. [Citations.]” (Shaputis II, supra, 53 Cal.4th at p. 218.) The court emphasized, however, “that 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. 219.) Moreover, as has been pointed out, lack of insight is not necessarily indicative of present dangerousness, as is “most obviously the case when an inmate, due to advanced age and infirmity, is no longer capable of being dangerous, no matter how little insight he has into previous criminal behavior.” (Id. at p. 226 (cone. opn. of Liu, J.), italics added.)

Accepting, as we must, that an inmate’s insufficient understanding of the causes of his crime is a factor that may show him unsuitable for parole, it is not enough to establish that the inmate’s insight is deficient in some specific way. “ ‘If simply pointing to the existence of an unsuitability factor and then acknowledging the existence of suitability factors were sufficient to establish that a parole decision was not arbitrary, and that it was supported by “some evidence,” a reviewing court would be forced to affirm any denial-of-parole decision linked to the mere existence of certain facts in the record, even if those facts have no bearing on the paramount statutory inquiry. Such a standard, because it would leave potentially arbitrary decisions of the Board or the Governor intact, would be incompatible with our recognition that an inmate’s right to due process “cannot exist in any practical sense without a remedy against its abrogation.” ’ ([Lawrence, supra, 44 Cal.4th] at p. 1211, quoting Rosenkrantz, supra, 29 Cal.4th at p. 664.) ‘Accordingly, when a court reviews a decision of the Board or the Governor, the relevant inquiry 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.’ (Lawrence, supra, at p. 1212, citing Rosenkrantz, supra, at p. 658.) Stated another way, not only must there be some evidence to support the Board’s factual findings, there must be some connection between the findings and the conclusion that the inmate is currently dangerous.” (In re Criscione (2009) 180 Cal.App.4th 1446, 1458 [103 Cal.Rptr.3d 549]; see In re Ryner (2011) 196 Cal.App.4th 533, 545 [126 Cal.Rptr.3d 380].)

The Attorney General contends that the Board’s conclusion regarding Morganti’s “lack of insight into the causative factors of his substance abuse” is based upon his attribution of past drug dependency solely to “ ‘the crowd I was hanging around with’ ” and his “ ‘lifestyle’ ” at the time, and his “failure to address his temper, or how he became so angry that he could stab his friend 26 times.” As the Attorney General sees it, Morganti’s “lack of sufficient insight into his drug use and its causative factors—as demonstrated by his psychological evaluation and testimony before the Board—constitutes some evidence of current dangerousness.”

Considered in its entirety, we find nothing in the record—not in any of the psychological evaluations, not in Morganti’s statements to the Board, not in his conduct in prison—indicating that Morganti attributes his drug dependency to others or to his “lifestyle.” And nothing in the record indicates that Morganti fails to appreciate the causes of his substance abuse and its relationship to his crime, and his own criminal responsibility. On the contrary, the record indicates that, as Dr. Pritchard put it, Morganti has engaged in “thoughtful reflection” about his substance abuse and its relationship to the homicide he committed. As indeed he did, manifest by Morganti’s consistent statements to the Board since becoming eligible for parole.

Morganti elaborated on the causes of his drug dependency, and its relationship to his crime, on numerous occasions, but did so in greatest detail in his seven-page handwritten “Personal Statement.” There, in candid detail, Morganti acknowledged the “destructive,” “worthless,” and “irrational” life he was living at the time he committed his crime; the extent of his drug and alcohol abuse; the pain others suffered as a result of his criminal act; and the relationship between his drug and alcohol abuse and the homicide. He also acknowledged his lack of awareness “that I was abusing drugs to avoid the pain of being divorced by my wife and separated from my children and then watching my father lose a two-year battle with cancer. [][] After being sentenced to life in prison I had a choice. I could stay at rock bottom, or I could start the long and painful process of facing myself, admitting my fault, understanding my past and building a life worth living.” Morganti went on to explain that his drug use progressed from the teenage use of marijuana and LSD to “a gradual lifestyle change that embraced the motorcycle culture, drugs, alcohol, life in the fast lane. . . . My drug use distorted my thinking, priorities and values to such an extent that I acted irrationally with impulsivity and unpredictability, as I did on November 16, 1991,” the date he murdered Ron Turner. Morganti stated that he cannot explain the murder, because it was “irrational” and “unexplainable,” but that he has come to “understand what caused me to become a murderer. I understand how my drug abuse chipped away at my moral and social foundation. I understand that I am responsible for my violence because I am responsible for myself. I hate who I was then. I hate the man that took Ron’s life, that deprived five children of a father and fourteen grandchildren [of] a grandfather and four great grandchildren [of] a great grandfather. I am sorry for the pain and suffering I inflicted on the community. But I can only despise the man I was then because of the man I have become.”

It seems to us that the Board’s concern was not the absence of Morganti’s insight, but the sufficiency of his appreciation that his substance abuse was a causative factor in the commission of his crime. We think it appropriate to again point out, as have other courts, that it is questionable “whether anyone can ever fully comprehend the myriad circumstances, feelings, and current and historical forces that motivate conduct, let alone past misconduct.” (In re Ryner, supra, 196 Cal.4th at p. 548.) 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. As the California Supreme Court has recognized, “expressions of insight and remorse will vary from 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.” (In re Shaputis I, supra, 44 Cal.4th at p. 1260, fn. 18 (Shaputis I).)

In sum and in short, we question whether the record can fairly be construed as establishing that Morganti lacks “sufficient” insight into the nature of his past substance abuse and the relationship between that abuse and the commitment offense.

Our doubt, however, is beside the point; the decisive inquiry is not whether there is “some evidence” Morganti “lacks insight” into his past criminal conduct or the cause thereof, but whether he constitutes a current threat to public safety. (Lawrence, supra, 44 Cal.4th at p. 1212; Rosenkrantz, supra, 29 Cal.4th at p. 658.) In other words, whether there is any connection between any lack of insight on his part and the conclusion that he is currently dangerous. Even if—as we do not believe—reasonable minds could find “some evidence” in the record that Morganti lacks a satisfactory level of insight of some sort, the record is manifestly bereft of evidence connecting any such deficit to the conclusion he would present a risk to public safety if released on parole. Morganti’s positive institutional behavior, his advanced age, and chronic and degenerative health problems, his lengthy participation in virtually every rehabilitative program available to him, his statements to the psychologists who evaluated him, and his statements to the Board, do not establish any likelihood Morganti would present a risk to public safety if released on parole. They are rationally indicative only of suitability for parole, not unsuitability.

All of the experts who evaluated Morganti felt that he did not pose a security risk. Dr. Petracek opined in 2006 that “[i]f released into the community, he is considered a low risk of re-offending. He is more than likely to maintain his gains if released. He has demonstrated no propensity to violence within the prison setting to date and is unlikely to do so if released into the community.” Dr. Macomber agreed, stating that “[d]rug abuse is no longer a problem in this man’s life” and “[h]e does not pose any risk at all to society.” The same remained true in 2010, when Dr. Pritchard concluded that “Morganti presents a LOW RISK for violence in the free community.” As he pointed out, “[f|or all the antisocial behavior demonstrated by his cocaine addiction and penchant for the ‘biker philosophy,’ his record reflects no violence or crimes outside of the life crime. He has functioned responsibly and compliantly while incarcerated. He is currently 59 years old and in relatively poor health. Despite his cavalier attitude about his personal potential for substance use relapse, he nevertheless presents as an overall low risk to reoffend.”

Finally, all of the forensic protocols currently used to assess the risk an inmate may endanger public safety demonstrate only suitability. In 2006 Morganti scored 1.8 on the Level of Service Inventory—Revised (LSI-R) test, which means that “ ‘if 100 inmates were released on parole, he would do better on parole than 98 percent of them.’ ” Dr. Macomber stated that at that time Morganti presented “ ‘no significant risk factors’ ” and “ ‘poses less risk to society than the average citizen in the community.’ ” The three risk assessment protocols applied to Morganti in 2010—i.e., the PCL-R, HCR-20, and LS/CMI tests—also each found that Morganti presented a “low risk” of endangering public safety if released to free society.

We appreciate that the “some evidence” standard is “extremely deferential” (Rosenkrantz, supra, 29 Cal.4th at p. 665), that our responsibility is to consider the whole record in the light most favorable to the Board’s determination, and that only “a modicum of evidence” is needed to support that determination (id. at p. 677). But a determination that an inmate is currently dangerous because he “lacks insight”—or for any other reason— cannot be predicated merely upon “a hunch or intuition.” (Lawrence, supra, 44 Cal.4th at p. 1213.) Or “guesswork.” (In re Young, supra, 204 Cal.App.4th at p. 308.) A determination for which there is no evidentiary support—indeed, conflicts with virtually all pertinent evidence—is arbitrary and capricious. It is not rational.

In Shaputis I, the Court of Appeal majority concluded that the petitioner’s “many years of sobriety, advanced age, and chronic health problems suggest he never again will consume alcohol, will not relapse into violent conduct, and thus does not remain a risk to public safety.” (Shaputis I, supra, 44 Cal.4th at p. 1260.) The Supreme Court determined that such conclusion “may be reasonable,” but it did not prevent the Governor from reversing the Board’s grant of parole, because the Governor found these factors outweighed by the gravity of the commitment offense combined with the “petitioner’s lack of insight into his long history of violence—factors that suggest petitioner remains a current danger to the public.” (Id. at pp. 1260-1261.) There is no “long history of violence” in this case, as the commitment offense was an isolated incident.

The record fully supports the findings of the trial court that there is no evidence rationally indicating that Morganti is blind to the problem presented by his past drug abuse or unwilling to confront the problem, nor reason to think he is likely to resume abusing substances after nearly two decades of abstinence and active participation in AA and NA. As the trial court also found, Morganti’s “resolve to put into practice the teachings of A.A. and N.A. and remain drug and alcohol free during periods of time where A. A. and N.A. programs were not available to him in prison provides additional evidence of petitioner’s ability to maintain his gains upon release.”

The distressing nature of this case arises not just from the Board’s distortion of the record, but as well from its abject indifference to the considerable evidence Morganti is unlikely to relapse and is suitable for release.⁹ While it is not a basis on which we rely, we cannot help but note both commissioners’ indifference to the undisputed factors rationally indicative that Morganti is not currently dangerous: his age; his numerous medical infirmities; and most significantly, the several risk assessments uniformly indicating he was a “low risk.” At bottom, the Board’s determination of unsuitability rests on little more than the fact that Morganti used drugs 20 years ago and the possibility he might relapse. However, as explained in In re Smith, supra, 114 Cal.App.4th 343, the fact that an inmate “used drugs extensively more than 20 years ago does not by itself represent some evidence that he is currently dangerous.” (Id. at p. 371.) With respect to that proposition, almost everything the Smith court said of the inmate there can be said of Morganti: “There is no evidence that [his] former desire for drugs might still be a motivating force. The record reveals that he has been clean and sober for a substantial period of time relative to the duration of his abuse. There is no evidence that [he] denies he had a drug problem or denied he had a problem for some period of his incarceration. There is no evidence that he refused, failed, or did poorly in drug treatment programs. And there is no evidence that [he] ever used any type of illicit substance during his incarceration. Nor does the record support a reasonable belief that without further drug treatment in prison, [he] might start taking drugs again.” (Ibid.)

Finally, as also pointed out in Smith, “if [an inmate’s] past use of drugs did invariably establish his unsuitability, then the Governor [or the Board] could deny parole for the rest of [the inmate’s] life based on this immutable factor, without regard to or consideration of subsequent circumstances and evidence indicating that he has no current desire for drugs and that there is little current likelihood of drug relapse, let alone a return to violent conduct as a result of it.” (In re Smith, supra, 114 Cal.App.4th at p. 372.)

DISPOSITION

We agree with the trial court that there is not “some evidence” Morganti will pose an unreasonable risk of danger to society if released from prison. We thus affirm the order granting the petition for a writ of habeas corpus.

Lambden, J., concurred.

1 Morganti had three prior convictions: in 1976 he was convicted of reckless driving (Veh. Code, § 23103) and carrying a concealed weapon (Pen. Code, former § 12025), for which he received “3 months summary probation,” and in 1991 he was convicted of reckless driving while eluding a peace officer (Veh. Code, § 2800.2), for which he served 10 days in county jail on a conditional sentence of three years in state prison.

2 Based on materials lodged in this court in connection with the petition, the Board was apparently referring not just to Dr. Pritchard’s evaluation, but also those of the two psychologists who separately evaluated Morganti in 2006 in connection with his first parole hearing that year: Dr. Laura Petracek and Dr. Melvin Macomber. Dr. Petracek felt Morganti was sincerely remorseful for his crime, noted his disciplinary free behavior, and found his past drug use “no longer relevant to a diagnosis of current dangerousness.” With respect to Morganti’s dangerousness, she opined that “[i]f released into the community, he is considered a low risk of re-offending. He is more than likely to maintain his gains if released. He has demonstrated no propensity to violence within the prison setting to date and is unlikely to do so if released into the community.”

Dr. Macomber agreed. Stating that Morganti “does not have any mental or emotional problems,” he assessed Morganti’s then present dangerousness as follows: “[Ijnmate Morganti is an older gentleman who is in poor health. He does not pose any risk at all to society. The Level of Service Inventory-Revised was administered. This is an actuarial measure that assesses criminal history, substance abuse history, social relations, and other factors to determine current risk level on parole. He obtained a score of 1.8 cumulative frequency for prison inmates. This means that if 100 inmates were released on parole, he would do better on parole than 98 percent of them.”

3 The Board is required to “separately state reasons for its decision to grant or deny parole” (§ 3041, subd. (e)(3), italics added), and that “[a]t any hearing, the presiding hearing officer shall state his or her findings and supporting reasons on the record.” (§ 3042, subd. (c), italics added.)

4 In light of the fact that the court ordered a new parole hearing, it denied as moot Morganti’s claim that the Victim’s Bill of Rights Act of 2008, known as “Marsy’s Law,” which amended section 3041.5 by extending the periods of time within which the Board might schedule a new hearing after the denial of parole, violates state and federal ex post facto protections. Because we affirm the judgment, we too have no need to decide this issue, which is currently before the Supreme Court. (In re Aragon (2011) 196 Cal.App.4th 483 [126 Cal.Rptr.3d 286], review granted Sept. 14, 2011, S194673; In re Vicks (2011) 195 Cal.App.4th 475 [125 Cal.Rptr.3d 627], review granted July 20, 2011, S194129; In re Russo (2011) 194 Cal.App.4th 144 [124 Cal.Rptr.3d 444], review granted July 20, 2011, S193197.)

The court also rejected Morganti’s claim that the Board “systematically and arbitrarily denies parole to all parties at or near their MEPD (minimum eligible parole date), and thus is disregarding the statutory framework that makes parole the norm and denial of parole the exception,” determining that this claim “is conclusory and fails to state a prima facie claim for relief.” Morganti renews this argument here. (See Code Civ. Proc., § 906.) We also decline to address this issue, as we consider it moot. We also agree with the trial court that the claim is conclusory, and not adequately developed, and that petitioner fails to identify an appropriate remedy in the event he could establish a right to relief.

5 Shortly after the notice of appeal, the warden asked the superior court to stay its June 6 order granting the petition for habeas corpus pending resolution of this appeal. That request was granted on August 11, 2011. On August 18, 2011, Morganti moved in this court for an order lifting the stay ordered by the superior court. In denying that request on October 17, 2011, we explained that Morganti’s request “is not properly raised by motion, as there is no authority in the Penal Code or elsewhere for such a motion.” Treating the motion instead as a petition for writ of mandate, we denied it because Morganti failed to show that the superior court had abused its discretion in granting the stay.

6 So far as the record shows, Morganti’s only reason for leaving the church was that “when my grandmother passed away and my mother was trying to become Catholic, to convert into Catholicism, and the church at the time wouldn’t let her become a Catholic because she had a previous marriage. And that just turned me.”

7 Because the Board did not state its decision in writing, the only insight we have as to the rationale for finding Morganti currently dangerous is the statements of the two members of the panel at the close of the parole hearing. These statements do not clearly indicate whether the panel or either member found that Morganti regarded AA and NA as ineffective in general or only in his case, due to the strength of his religious faith.

8 Such condemnation of the programs is also “an affront ... to the Department of Corrections.” (In re Ramirez (2001) 94 Cal.App.4th 549, 571 [114 Cal.Rptr.2d 381], disapproved on another ground in In re Dannenberg, supra, 34 Cal.4th at pp. 1086-1087, 1100.)

9 Morganti satisfies almost all of the regulatory criteria indicative of suitability: his juvenile record reflects no history of violent crimes (Cal. Code Regs., tit. 15, § 2402, subd. (d)(1) & (6)); his psychological evaluation indicates no mental health issues, and confirms his maturation, growth of understanding, and insight (Cal. Code Regs., tit. 15, § 2402, subds. (c)(5), (d)(3) & (4)); he has developed marketable skills and made realistic plans for his release (Cal. Code Regs., tit. 15, § 2402, subd. (d)(8)); both his psychological evaluations and his advancing age indicate low probability of recidivism (Cal. Code Regs., tit. 15, § 2402, subd. (d)(7)); his conduct in prison has been discipline free, and while in prison he has participated actively and successfully in self-help and substance abuse programming, educational advancement and vocational training (Cal. Code Regs., tit. 15, § 2402, subd. (d)(9)); and his many letters of support demonstrate that he is capable of sustaining stable relationships (Cal. Code Regs., tit. 15, § 2402, subd. (d)(2)). The only regulatory factor missing is that Morganti did not at the time he committed his crime “suffer]] from Battered Woman Syndrome.” (Cal. Code Regs., tit. 15, § 2402, subd. (d)(5).)