Filed 1/26/09 In re Rockers CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re JAMES ROCKERS G039828

on Habeas Corpus. (Super. Ct. No. M11161)

OPINION

Original proceedings; petition for a writ of habeas corpus to challenge an

order of the Superior Court of Orange County, Kazuharu Makino, Judge. Petition
granted.
William L. Schmidt for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R, Gillette, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill,
Supervising Deputy Attorney General, and Gregory J. Marcot, Deputy Attorney General,
for Respondent.
 The Board of Parole Hearings1 may deny an inmate parole if the inmate
poses an unreasonable risk of danger to society if released from prison. In 2003, the
Board concluded James Rockers was suitable for parole, but Governor Gray Davis
reversed that decision.2 In 2006, the Board concluded Rockers was not suitable for
parole. Nothing changed between 2003 and 2006, other than Rockers continued to be
what all described as a model prisoner. Rockers filed a petition for writ of habeas corpus
alleging the Board’s 2006 decision he was unsuitable for parole was erroneous. The
issue before us is whether there was some evidence Rockers poses a current threat to
public safety. We conclude there is not, and we grant the petition.
FACTS
Crime and Court Proceedings
In 1981, Rockers, a truck driver, complained to his employer the rental
truck he was driving needed repairs. Sometime later, Rockers was driving from Vermont
to Canada with his fiancée when he lost control of the truck and it skidded off the side of
the road. The truck overturned, killing his fiancée and leaving Rockers in the hospital for
weeks. Rockers, who was severely depressed, eventually moved to California to start a
new life. After arriving in California, Rockers began using cocaine, developed a
significant habit, and eventually packaged cocaine for his neighbor, who sold cocaine.
In February 1984, Rockers used cocaine and went to his neighbor’s house,
taking with him a military-style knife to open the sliding glass door if it was locked.
Sometime later, the neighbor was found dead with what was later determined to be

1
In July 2005, the Board of Parole Hearings replaced the Board of Prison
Terms. (Pen. Code, § 5075, subd. (a).) Because both entities have performed the same
duties, we refer to both as “the Board.”
2
On our own motion, having received no opposition, we take judicial notice
of the record in case No. G034717, Rockers’ 2004 petition for writ of habeas corpus,
which this court summarily denied without comment. (Evid. Code, §§ 452, subd. (d),
459, subd. (a).)

2
94 stab wounds. Rockers could not remember any details of the crime and could not
explain why he would attack his neighbor, although there were reports Rockers owed him
$2,000 for a botched drug deal. The following year, Rockers pled guilty to second degree
murder, and the trial court sentenced him to 15 years to life in prison with the possibility
of parole. His minimum parole eligibility date was January 1, 1993.
2003 Parole Suitability Hearing and Related Proceedings
At Rockers’ fifth parole hearing in April 2003, the Board concluded
Rockers “[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 explained Rockers
had a stable social history, had no juvenile record, and had no criminal history of violent
crime. It stated he had participated in educational and vocational programs. It also said
he participated in the Pastoral Care Services program for approximately 10 years, the
Victim Offender Learning Together program for about eight years, and Narcotics
Anonymous/Alcoholics Anonymous (NA/AA) for four years, beginning in 1999.3
The Board opined Rockers committed the crime because of significant
stress in his life. It also said he had a reduced probability of recidivism because of
maturation, growth, and greater understanding. The Board explained Rockers had
realistic parole plans, which included family support and job offers. The Board opined
Rockers had “maintained positive institutional behavior, which indicates significant
improvement in self-control.” It stated Rockers had only two prison rules violations, the

3
At the hearing, Presiding Commissioner Sharon Lawin noted Rockers
began attending AA meetings in 1994, and asked him why he did not continue. He said
the inmates who attended the meetings were using drugs and the program seemed like a
“scam.” He explained that after the sponsors were changed and the program improved,
he began attending again.
Rockers stated he smoked marijuana in high school one time, did not like it,
and never tried it again. He also said he never used cocaine until he came to California.
Rockers admitted he was arrested for driving under the influence of alcohol sometime in
1974. Rockers stated he had been clean and sober for 18 years.

3
most recent being 12 years ago. The Board also said Rockers showed remorse and
understands the nature and magnitude of the crime. The Board relied on two
psychological evaluations, one in 2003 and the other in 1999, where Dr. Raymond
Crawford recommended release. Crawford noted Rockers had no history of aggressive
behavior prior to the offense and the offense was attributable to depression, isolation, and
“high drug intoxication.” Crawford opined there is no reason to believe Rockers would
resort to violence in the absence of substance abuse, and he resolved the guilt, anger, and
frustration over his fiancée’s death.
Four months later, the Board’s Decision Review Unit approved release.
The following month, Governor Gray Davis reversed the Board’s decision. The County
of Solano Superior Court denied Rockers’ petition for writ of habeas corpus.
2006 Parole Suitability Hearing and Related Proceedings
At Rockers’ sixth parole hearing in June 2006, Presiding Commissioner
Philip Inglee read into the record the circumstances of the offense. Rockers stated he
began attending NA/AA meetings in 1999 and intended to go for the rest of his life.
When questioned why he did not attend meetings before 1999, Rockers explained when
he began to go there were inmates who attended the meetings and continued to use drugs,
and he thought it was a “joke.” He also stated, “maybe [19]99 is when [he] finally said
yes, I do have a problem.” When Rockers was asked whether he knew “the 12 steps,” he
responded, “I read them. I – my memory doesn’t – I’m not great at remembering things.
Memorizing. So I just keep the list with me at all times. And I go through them every
week. We – every month we do another [s]tep in the – in the class and we just talk
amongst ourselves about past histories and problems and support each other. And we go
over the [s]teps . . . every month we do another [s]tep.” When asked whether he knew
the fourth step, Rockers replied, “feel sincere – a moral inventory[,]” and he explained
how he had accomplished that. When asked what the eighth and ninth steps were,
Rockers responded the eighth step is to “make amends.” After his attorney interrupted

4
him, Rockers said, “talk to my,” and his attorney interrupted again. After Rockers said
the ninth step was “[t]he list[,]” he explained: “I’ve listed my family and all friends that I
had. I’ve also listed the victim, John Barry’s, family. I’ve never had contact with them.
If they would be willing to talk I would love to sit down and talk with them explain
myself to them if – if they would be willing. Step 9. My family, I’ve sat down with all
my family members and just recently my family – I have a 12-year-old nephew that never
knew what was going on. They explained to him finally what was going on and they
brought him to visit me and – and we went inside and I – I told him everything and he
still gave me a hug and said you’re my uncle, I love you.” When asked about the tenth
step, he initially said he could not remember, but then stated, “Personal inventory. It’s a
daily basis. Every day you wake and you ask yourself are you the person you want to
be.” When asked why he did not remember the 12 steps, he stated he was not good at
memorizing things, but that he knew generally what they are.4
When asked whether he had difficulty getting into an anger management
program, Rockers responded the prison did not offer such a program. Rockers admitted

4
Although they are not in the record, the AA Web site,
http://www.aa.org/en_pdfs/smf-121_en.pdf (as of Jan. 23, 2009), lists the 12 steps as
follows: “1. We admitted we were powerless over alcohol—that our lives had become
Unmanageable. [¶] 2. Came to believe that a Power greater than ourselves could restore
us to sanity. [¶] 3. Made a decision to turn our will and our lives over to the care of God
as we understood Him. [¶] 4. Made a searching and fearless moral inventory of
ourselves. [¶] 5. Admitted to God, to ourselves, and to another human being the exact
nature of our wrongs. [¶] 6. Were entirely ready to have God remove all these defects of
character. [¶] 7. Humbly asked Him to remove our shortcomings. [¶] 8. Made a list of all
persons we had harmed, and became willing to make amends to them all. [¶] 9. Made
direct amends to such people wherever possible, except when to do so would injure them
or others. [¶] 10. Continued to take personal inventory and when we were wrong
promptly admitted it. [¶] 11. Sought through prayer and meditation to improve our
conscious contact with God, as we understood Him, praying only for knowledge of His
will for us and the power to carry that out. [¶] 12. Having had a spiritual awakening as the
result of these Steps, we tried to carry this message to alcoholics, and to practice these
principles in all our affairs.” (Italics added.)

5
he had not checked out any library books on the topic of anger management. After
Rockers’ attorney indicated none of his psychological evaluations ever mentioned he had
an anger management issue or should seek out such a program, Commissioner Susan
Fisher stated, “I didn’t find anger management. I was actually looking for anger
management but didn’t find it.” Inglee suggested Rockers go to the prison library and
check out books concerning anger management.
The Board found Rockers “not suitable for parole and [he] would still pose
an unreasonable risk of danger to society or a threat to public safety if released from
prison.” It noted Rockers had a stable social history and did not have a criminal record.
The Board stated Rockers participated in self-help and vocational programs, developed
three marketable skills, and had an excellent discipline record. The Board noted Dr.
Robert Sargent’s 2006 psychiatric report indicated Rockers “‘represents a low risk for
future violence in the community[]’” and “‘all indications are that [he] will make a
positive contribution in the community if paroled.’” It stated Rockers had viable
residential parole plans in California and Massachusetts, and viable parole employment
plans in Massachusetts, but not in California. The Board also said Rockers continued to
participate in the Pastoral Care Services program, the Victim Offender Learning Together
program, the Men’s Advisory Council, and NA/AA.
The Board explained Rockers’ positive behavior did not outweigh the
factors of unsuitability. The Board explained it relied on “many factors” in denying
parole, but the primary reason was the “gravity and the nature of the crime[.]” It also
said Rockers participated in self-help programs, but “one of the self-help programs that
he has not participated in and is possible that he was never asked to do in the past,
however, we believe is important, that is anger management.” The Board also noted the
district attorney’s and sheriff’s offices opposed release. One of the Board’s
commissioners also stated it was unclear how seriously Rockers had taken his substance

6
abuse problem when he could not recite the 12 “[s]teps at least in a slightly manner [sic]
that [he] did today.”
In October 2007, the trial court denied Rockers’ petition for writ of habeas
corpus.5 In its order denying the petition, the court stated, “there [was] no evidence in the
record to support the Board’s finding . . . [Rockers] needs therapy to address anger
management issues and must show a greater commitment to his drug rehabilitation.” The
court explained the Board’s finding Rockers needed to address anger management issues
was refuted by other evidence in the record, including the absence of any violent conduct
in prison for 22 years and Sargent’s 2006 evaluation where he opined Rockers “displays
no symptoms of anger or negative attitudes.” The court also stated the Board’s finding
Rockers needed to show a greater commitment to drug rehabilitation was refuted by other
evidence in the record, including his attendance at NA/AA meetings for seven years and
the fact he had been clean and sober for 22 years. The court added, “[Rockers’] mere
inability to recite from memory some of the 12 steps commonly used in NA/AA during
the hearing does not reliably establish a need for increased commitment to drug
rehabilitation.” However, the court concluded the Board’s decision was supported by
“some evidence,” namely, “the circumstances of the commitment offense[]” and law
enforcements’ opposition to parole. Rockers filed the petition before us, and after issuing
an order to show cause, the Attorney General filed a return, and Rockers a traverse.
DISCUSSION
Legal Principles Governing Parole Suitability
Penal Code section 3041, subdivision (b), states, “The panel or the board,
sitting en banc, shall set a release date unless it determines that the gravity of the current
convicted offense or offenses, or the timing and gravity of current or past convicted

5
In its order denying the petition, the trial court noted the Board also found
Rockers unsuitable for parole on July 24, 2007. The Board’s Web site indicates Rockers
has another parole suitability hearing on Tuesday, January 27, 2009, at 1:30 p.m.

7
offense or offenses, is such that consideration of the public safety requires a more lengthy
period of incarceration for this individual, and that a parole date, therefore, cannot be
fixed at this meeting.” Title 15 California Administrative Code, section 2401 provides in
relevant part: “A parole date shall be denied if the prisoner is found unsuitable for parole
under [s]ection 2402(c).”6
Section 2402(a) states: “The panel shall first determine whether the life
prisoner is suitable for release on parole. Regardless of the length of time served, a life
prisoner shall be found unsuitable for and denied parole if in the judgment of the panel
the prisoner will pose an unreasonable risk of danger to society if released from prison.”
(Italics added.) In making it determination, section 2402(b) authorizes the panel to
consider “[a]ll relevant, reliable information[,]” including “the circumstances of the
prisoner’s social history; past and present mental state; past criminal history, including
involvement in other criminal misconduct which is reliably documented; the base and
other commitment offenses, including behavior before, during and after the crime; past
and present attitude toward the crime; any conditions of treatment or control, including
the use of special conditions under which the prisoner may safely be released to the
community; and any other information which bears on the prisoner’s suitability for
release.” Relevant, reliable information includes sheriff and district attorney
recommendations. (Pen. Code, § 3046, subd. (c).)
Section 2402(c) and (d) list circumstances tending to show unsuitability and
suitability, respectively. Both subdivisions state “the importance attached to any
circumstance or combination of circumstances in a particular case is left to the judgment
of the panel.” (Italics added.) In determining whether the Board properly denies an
inmate parole, we must determine “whether ‘some evidence supports the conclusion that

6
We will refer to title 15 California Administrative Code, section 2402 as
“section 2402.”

8
the inmate is unsuitable for parole because he . . . currently is dangerous.”
(In re Lawrence (2008) 44 Cal.4th 1181, 1191 (Lawrence).) With these principles in
mind, we will now discuss each of the suitability and unsuitability factors.
Suitability
Section 2402(d) states: “Circumstances tending to indicate suitability
include: (1) No Juvenile Record. The prisoner does not have a record of assaulting
others as a juvenile or committing crimes with a potential of personal harm to victims. [¶]
(2) Stable Social History. The prisoner has experienced reasonably stable relationships
with others. [¶] (3) Signs of Remorse. The prisoner performed acts which tend to
indicate the presence of remorse, such as attempting to repair the damage, seeking help
for or relieving suffering of the victim, or indicating that he understands the nature and
magnitude of the offense. [¶] (4) Motivation for Crime. The prisoner committed his
crime as the result of significant stress in his life, especially if the stress has built over a
long period of time. [¶] (5) Battered Woman Syndrome. At the time of the commission
of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section
2000(b), and it appears the criminal behavior was the result of that victimization. [¶]
(6) Lack of Criminal History. The prisoner lacks any significant history of violent crime.
[¶] (7) Age. The prisoner’s present age reduces the probability of recidivism. [¶]
(8) Understanding and Plans for Future. The prisoner has made realistic plans for release
or has developed marketable skills that can be put to use upon release. [¶] (9) Institutional
Behavior. Institutional activities indicate an enhanced ability to function within the law
upon release.” We will address each of these factors in turn.
The Board stated that other than Rockers’ 1974 driving under the influence
conviction, he had no prior juvenile or adult history of violent crime, or any crime. It
explained that Rockers “had a stable social history” until he started using drugs and
perpetrated the commitment offense.

9
 In Rockers’ first psychological examination in February 1987, Dr. Douglas
Farr stated, “[Rockers] shows extreme remorse about the victim and what this has done to
his family.” Rockers’ remorse was repeated in Crawford’s April 1999 report where he
opined, “He accepts guilt because of the evidence and expresses remorse for the victim
who he felt was a friend.” In a May 2004 counselor’s life prisoner evaluation report, the
counselor wrote, “Rockers accepts full responsibility for the death of his friend and feels
guilt and remorse for the life he has taken.” This was repeated in a May 2006 life
prisoner evaluation report. In Sargent’s May 2006 psychological assessment report, he
wrote, “[Rockers] takes responsibility for his actions[.]”
In Crawford’s April 1999 report when assessing Rockers’ dangerousness,
he stated, “Negative factors appear related to drug use which is considered central to the
offense. . . . The crime is considered to have been related to fairly well defined elements
which included his depressed and unsettled state of mind, self-imposed isolation over
several months during which he ingested cocaine on a daily basis, and a state of high
drug intoxication. [Rockers] has resolved his conflicts over the death of his fiancée he
felt both guilty of her death . . . .” In Sargent’s May 2006 psychological assessment
report he wrote, “The life crime appears an aberration.” Sargent added, “He veered
off-course for a relatively short period of time, and the outcome was tragic for the victim
and for [Rockers].”
Although our review of the record indicates there was no evidence
concerning whether Rockers’ age would reduce the probability of recidivism, we note he
was almost 50 years old at the time of the 2006 hearing, and the evidence demonstrated
he had been clean and sober for 22 years. Additionally, the record supports the
conclusion Rockers had been very active in NA/AA since 1999. We conclude his age
and commitment to NA/AA support the conclusion he has a reduced probability of
recidivism.

10
 The Board noted Rockers had “developed three marketable skills that can
be put to use upon release.” It explained he had “viable residential plans[]” in Orange
County and Massachusetts, where all his family resided, and he had “excellent
employment plans in . . . Massachusetts[,]” but no “specific employment plans in Orange
County.” However, the Board noted Rockers’ family promised to support him while in
Orange County until he finds employment or transfers parole to Massachusetts, and
repeated he has three marketable skills.
The Board opined Rockers “has programmed well since his incarceration.”
It explained he had upgraded himself vocationally and participated in self-help programs.
The Board also stated Rockers “has an excellent discipline record[;]” he had two rules
violations, the most recent being 15 years old. It commended Rockers on his excellent
work skills, including laudatory supervisor reports, and his participation in educational
courses, the Pastoral Care Services program and the Men’s Advisory Council. The Board
also praised him for his ability to get along with other inmates. Therefore, with the
exception of the inapplicable suitability factor No. 5, battered woman’s syndrome, there
was evidence supporting all the suitability factors.
Unsuitability
Section 2402(c) provides: “Circumstances tending to indicate unsuitability
include: (1) Commitment Offense. The prisoner committed the offense in an especially
heinous, atrocious or cruel manner. The factors to be considered include: (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 which demonstrates an
exceptionally callous disregard for human suffering. (E) The motive for the crime is
inexplicable or very trivial in relation to the offense. [¶] (2) Previous Record of Violence.
The prisoner on previous occasions inflicted or attempted to inflict serious injury on a

11
victim, particularly if the prisoner demonstrated serious assaultive behavior at an early
age. [¶] (3) Unstable Social History. The prisoner has a history of unstable or tumultuous
relationships with others. [¶] (4) Sadistic Sexual Offenses. The prisoner has previously
sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the
victim. [¶] (5) Psychological Factors. The prisoner has a lengthy history of severe mental
problems related to the offense. [¶] (6) Institutional Behavior. The prisoner has engaged
in serious misconduct in prison or jail.”
There was absolutely no evidence of a previous record of violence, unstable
social history, sadistic sexual offenses, mental problems of any kind, or serious
misconduct in prison. The only evidence the Board cited in denying Rockers parole was
the commitment offense, the sheriff’s and district attorney’s opposition to parole,
deficient commitment to substance abuse treatment, and failure to engage in anger
management counseling. We will address each of these in turn.
Substance Abuse Treatment
The Board was apparently concerned with Rockers’ dedication to his
substance abuse treatment. There is absolutely no evidence he took his treatment lightly,
or was unaware of his past problem with substance abuse. To the contrary, the record
supports the finding Rockers was very aware of his substance abuse problems, and he
was dedicated to maintaining his sobriety. The record supports the conclusion Rockers
began attending NA/AA meetings in 1994 for a short period, stopped, and then returned
to the program in 1999. He explained his absence as not wanting to associate with
hypocrites who went to meetings and used drugs, and the possible realization in 1999 he
had a substance abuse problem. It is not surprising a recovering drug addict did not want
to associate with inmates who continued to use drugs, and it is no secret the primary step
to recovery is the admission the addict has a problem.
By the time of his sixth parole suitability hearing in 2006, he had been
attending meetings for seven years, and he had remained drug free for 22 years, despite

12
the fact inmates had access to illegal narcotics. Rockers states he planned to attend
NA/AA meetings for the rest of his life, and he had investigated where he could attend
meetings if paroled. Although Rockers could not recite verbatim the fourth, eighth,
ninth, and tenth steps, he paraphrased them and explained how he was addressing the
steps. He also explained how he had difficulty memorizing things. All of the reports in
the record before us indicate Rockers had been attending meetings since 1999. And,
dating back to at least 1999, the reports indicate Rockers realized he had a substance
abuse problem, and he was addressing those issues. In April 1999, Crawford wrote,
“[Rockers] recognizes his problem with drug abuse and has no further interest in using
drugs.” In May 2006, Sargent wrote, “[Rockers] is clear about substance abuse requiring
attention on an ongoing basis. His participation in NA/AA and many positive activities
in prison have resulted in a sound foundation of coping skills.” Based on the evidence
before us, we conclude Rockers was dedicated to his substance abuse program and
recovery.
Anger Management Treatment
Similarly, there was no evidence Rockers had an anger management
problem that required his participation in anger management courses, or required him to
go to the prison library and check out books on anger management. We have reviewed
the entire record and find no psychiatrist, psychologist, or counselor report
recommending Rockers enroll in an anger management program, attend anger
management courses, or create and implement his own anger management program.
Indeed, a commissioner went looking for such evidence of an anger issue and came up
empty handed. The fact the commissioner could not find any such recommendations is
not surprising as Rockers has not engaged in any violent conduct while he has been in
prison for the previous 22 years. And, Inglee acknowledged no one had ever
recommended anger management treatment.

13
 The common theme of the reports was Rockers was depressed because of
the death of his fiancée, he self-medicated, and he committed a tragic crime. Rockers
addressed his substance abuse program, and participated in other prison programs to aid
other inmates, including the Pastoral Care Services program, the Victim Offender
Learning Together program, and the Men’s Advisory Council.
As early as 1987, the reports indicate Rockers had a positive attitude and
controlled his emotions. In Rockers’ first psychological examination in 1987, Farr
opined, “There was no evidence of any anger, suspiciousness[,] or psychotic symptoms
such as paranoia or hallucinations.” In May 1996, Crawford said, “[t]here [were] no
psychiatric reasons to defer parole at this time.” Finally, in 2006, Sargent stated:
“[Rockers] currently has an absence of negative attitudes. He does not present as angry,
self-involved, or intolerant, but as positive and energetic.” Sargent added, “[Rockers]
does not have any pattern of poor impulse control.” Based on the record before us, there
was no evidence Rockers had an anger management problem, any of his psychiatrists,
psychologists, or counselor’s recommended anger management treatment, or that he
should have engaged in such treatment and failed to do so. Therefore, because there was
no evidence Rockers failed to dedicate himself to substance abuse treatment, or failed to
participate in required anger management treatment, any reliance on those to deny
Rockers parole was erroneous.
Commitment Offense
That leaves us with only evidence of the commitment offense and law
enforcement opposition to Rockers’ release on parole. We must determine whether those
factors support the conclusion Rockers currently poses an unreasonable risk to public
safety. Based on the California Supreme Court’s decisions in Lawrence, supra,
44 Cal.4th 1181, and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), we conclude it
does not.

14
 With regard to the Board’s reliance upon the circumstances of the crime as
evidence that an inmate remains a current threat to public safety, “the relevant inquiry is
whether the circumstances of the commitment offense, when considered in light of other
facts in the record, are such that they continue to be predictive of current dangerousness
many years after commission of the offense. This inquiry is, by necessity and by
statutory mandate, an individualized one, and cannot be undertaken simply by examining
the circumstances of the crime in isolation, without consideration of the passage of time
or the attendant changes in the inmate’s psychological or mental attitude. [Citations.]”
(Lawrence, supra, 44 Cal.4th at p. 1221.)
Thus, “the Board or the Governor may base a denial-of-parole decision
upon the circumstances of the offense, or upon other immutable facts such as an inmate’s
criminal history, but some evidence will support such reliance only if those facts support
the ultimate conclusion that an inmate continues to pose an unreasonable risk to public
safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely
whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but
whether the identified facts are probative to the central issue of current dangerousness
when considered in light of the full record before the Board or the Governor.” (Lawrence
supra, 44 Cal.4th at p. 1221.) The determination whether an inmate poses and current
danger is not dependent upon whether circumstances of the offense exhibit viciousness
above the minimum elements required for conviction for that offense. (Ibid.)
“[A]lthough the Board and the Governor may rely upon the aggravated
circumstances of the commitment offense as a basis for a decision denying parole, the
aggravated nature of the crime does not in and of itself provide some evidence of current
dangerousness to the public unless the record also establishes that something in the
prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental
state, indicates that the implications regarding the prisoner’s dangerousness that derive

15
from his or her commission of the commitment offense remain probative to the statutory
determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at
p. 1214.) According to the Court, this standard of review, although deferential, operates
to ensure the Board’s decision comports with the requirements of due process. (Id. at
pp. 1211-1212.) The facts in Lawrence are also illustrative here.
In Lawrence, petitioner murdered the wife of her lover in 1971, shooting
her and repeatedly stabbing her with a potato peeler. (Lawrence, supra, 44 Cal.4th at
pp. 1192-1193.) Petitioner remained a fugitive until 1982 when she voluntarily
surrendered to the police. (Ibid.) After a jury found her guilty of first degree murder, the
trial court sentenced her to life imprisonment with the possibility of parole. (Id. at
pp. 1194-1195.) Early psychological evaluations were negative, but beginning in 1993,
the evaluations uniformly concluded she no longer represented a significant danger to
society. (Id. at pp. 1194-1195.) While in prison she was free of serious discipline,
participated in a wide variety of self-help and vocational programs, and earned bachelor’s
and master’s degrees. (Ibid.) Beginning in 1994, the Board found petitioner suitable for
parole four times. On each occasion the Governor rejected the Board’s decision. (Id. at
pp. 1196-1197.) The court concluded, although the crime petitioner committed was
egregious, there was no evidence to support a determination she then posed a threat to
public safety in view of her “extraordinary rehabilitative efforts specifically tailored to
address the circumstances that led to her criminality, her insight into her past criminal
behavior, her expressions of remorse, her realistic parole plans, the support of her family,
and numerous institutional reports justifying parole, as well as the favorable discretionary
decisions of the Board[.]” (Id. at p. 1226.) “[M]ere recitation of the circumstances of the
commitment offense, absent articulation of a rational nexus between those facts and
current dangerousness, fails to provide the required ‘modicum of evidence’ of
unsuitability.” (Id. at p. 1227.)

16
 Here, the commitment offense does not provide some evidence of current
dangerousness to the public because Rocker’s pre- or post-incarceration history, and his
current demeanor and mental state, indicate he is not a continuing threat to public safety.
Focusing on the commitment offense, there were not multiple victims and it was not an
execution-style murder. Although there were reports Rockers owed his neighbor money
over a failed drug deal, this was not established at trial as Rockers pled guilty to second
degree murder. And, the commitment offense was not particularly heinous, atrocious, or
cruel. True, Rockers stabbed his neighbor 94 times, but the evidence demonstrated it was
a spontaneous attack of a friend. (In re Barker (2007) 151 Cal.App.4th 346, 377-378
[commitment offense not particularly aggravated where petitioner and accomplice
planned to kill the accomplice’s parents for money, and after accomplice shot parents,
petitioner killed the accomplice’s 76-year-old grandfather by striking him on the head
with a chisel several times and then shooting him twice in the head]; In re Elkins (2006)
144 Cal.App.4th 475, 502-503 [crime not particularly aggravated where petitioner, a drug
dealer, owed victim money; after drinking alcoholic beverages and consuming cocaine,
petitioner planned to rob the victim of money and drugs; petitioner killed victim by
repeatedly beating him over the head with a baseball bat while he was sleeping; after the
murder, petitioner dumped the body in a remote area, burglarized victim’s storage area
and his girlfriend’s house, and left the state].) He could not remember the details of the
attack and could not explain why he attacked his friend.
As we explain more fully above, Rockers’ pre- and post-incarceration
history support the conclusion he does not pose an unreasonable risk to public safety.
Rockers’ pre-offense history indicates he does not pose an unreasonable risk to public
safety: he had no history of violent crime, he had a stable social history, and he had no
history of substance abuse. The evidence demonstrated Rockers was under significant
stress in his life, as he felt responsible for the recent death of his fiancée, which led to
severe cocaine addiction.

17
 His post-incarceration history is even more illustrative of his suitability for
parole. Rockers admitted responsibility for the crime and has shown remorse dating back
to his first psychological evaluation in 1987. He had remained free of disciple violations
for 22 years (with the exception of two minor violations, the most recent being in 1991),
and had not used drugs for the same period of time, recognizing the importance of
substance abuse treatment. He attended NA/AA meetings, and stated he intends to do so
for the rest of his life. Rockers demonstrated his commitment to rehabilitation through
his long-standing commitment to various prison programs, the most significant being the
Pastoral Care Services program where he cares for dying inmates. He would “change[e]
their diapers, help[] them eat, [and] help[] them shower. When they’re . . . expected to
die within 24 to 48 hours[,] [he] would sit there and hold their hands or read the Bible to
them if they requested that[] [s]o they wouldn’t die alone.” In prison, he developed three
marketable skills, and developed both vocational and residential parole plans. Rockers
has a strong and loving family that has promised to support him emotionally, and
financially until he gets settled.
Additionally, although each panel of the Board is entitled to weigh and the
applicable suitability and unsuitability factors as it sees fit (§ 2402(c), (d)), in 2003, the
Board concluded Rockers was suitable for parole. And his subsequent psychological
evaluations concluded he was a “low degree of risk.”
In a May 2004 counselor’s life prisoner evaluation report, a counselor
wrote “[c]onsidering the commitment offense, no prior criminal record, [Rockers’] age,
prison adjustment[,] and disciplinary history, this writer believes [Rockers] would pose a
low degree of risk if released from prison at this time.” (Italics added.)
In Sargent’s May 2006 psychological assessment, he wrote “[Rockers]
currently has an absence of negative attitudes. He does not present as angry,
self-involved, or intolerant, but as positive and energetic. He is eager to work, learn, and

18
help others. He presents as a hard-working and self-motivated individual. He is
recognized around the prison as being a model prisoner who does the right thing and
helps others.” Sargent noted, “[Rockers] has maintained excellent control over his
impulses his entire time incarcerated. He does not have any pattern of poor impulse
control. The life crime appears an aberration.” Sargent concluded: “Overall, . . .
Rockers, compared to other inmates, appears to fall into a category that represents a low
risk of future violence in the community. [¶] . . . [¶] [Rockers’] thinking is not distorted,
and he is not prone to delusion, erratic behavior, or mood swings. . . . He has a long
pattern of acting responsibly, and his background is generally one of stability. His age is
another factor which is in his favor for continued healthy functioning. He veered
off-course for a relatively short period of time, and the outcome was tragic for the victim
and for [Rockers]. He is clear about substance abuse requiring attention on an ongoing
basis. His participation in NA/AA and many positive activities in prison have resulted in
a sound foundation of coping skills. [¶] [Rockers] has done very well in understanding
his motivations and behaviors. This growth appears to be a solid foundation from which
he can make a healthy transition to the community. Again, all indications are that he will
make positive contributions to the community if paroled.”
Contrary to the Board’s conclusion, the person described in these
evaluations, and most, if not all of the evaluations dating back to 1987 strikes us as
someone who recognizes the horrible mistake he made and has worked hard to make
amends for that mistake and become a better person. The Board’s blind adherence to the
static circumstances of the 22-year-old crime to the exclusion of all the positive
rehabilitative evidence was arbitrary and capricious. (Lawrence, supra, 44 Cal.4th at
p. 1206.)

19
 This case is different from Shaputis, supra, 44 Cal.4th at pages 1245-1246,
where the California Supreme Court reversed the Court of Appeal’s decision reversing
Governor Arnold Schwarzenegger’s reversal of the Board’s decision granting parole. In
that case, there was evidence Shaputis remained dangerous because the commitment
offense was intentional and premeditated, he had a long history of violent and brutal
conduct towards the victim, his children, and former wife, and he had not gained insight
or understanding into his violent conduct or commission of the commitment offense.
(Id. at pp. 1259-1260.) Needless to say, none of those facts are present here.
Because we have concluded the commitment offense is not probative of the
central issue of current dangerousness when considered in light of the full record before
the Board, neither do we think the sheriff’s or district attorney’s opposition to parole
based on the circumstances of the commitment offense support the denial of parole.
(In re Weider (2006) 145 Cal.App.4th 570, 590 [law enforcement opposition to parole
“cannot add weight where there is no evidence of unsuitability to place in the
balance[]”].) Therefore, based on the entire record before the Board at Rockers’ 2006
parole suitability hearing, we conclude the record is devoid of any evidence to support
the conclusion his release would constitute a current threat to public safety.
DISPOSITION
The petition for writ of habeas corpus is granted because the evidence
presented at the 2006 parole suitability hearing does not support the Board’s conclusion
Rockers was unsuitable for parole at that time. The Board is directed to find Rockers
suitable for parole at its January 27, 2009, parole suitability hearing, or in the event this
hearing is rescheduled, at his next scheduled parole suitability hearing, unless previously
undiscovered and material evidence of his conduct and/or change in his mental state
subsequent to the 2006 parole suitability hearing is introduced and is sufficient to support
a finding he currently poses an unreasonable risk of danger to society if released on
parole. In the interests of justice and to prevent frustration of the relief granted, this

20
decision shall be final as to this court immediately. (Cal. Rules of Court, rule
8.387(b)(3)(A).) We order a copy of the opinion transmitted forthwith to Board of Parole
Hearings (Attention: BPH Desk), at the California Medical Facility of the California
Department of Corrections and Rehabilitation.

O’LEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

21