I. FACTS

In 2000, at age 21, Bascomb joined another individual in an armed robbery of a

marijuana dealer at the dealer’s apartment. While Bascomb ransacked the apartment in

search of drugs and valuables, his partner went into the dealer’s bedroom, and, after a

struggle, shot and killed the dealer. Bascomb was convicted of first-degree felony

murder and assault with a deadly weapon. He received a sentence of 25 years to life for

the murder, and a consecutive term of two years for the assault.

On December 24, 2018, former Governor Edmund G. Brown, Jr., commuted

Bascomb’s sentence to 15 years to life, citing his exemplary conduct and rehabilitation in

prison. This made Bascomb immediately eligible for a parole hearing, and one occurred

the next year after Bascomb had served 16 years in custody.

Prior to the hearing, Bascomb underwent a comprehensive risk assessment by a

psychologist, who completed a lengthy report dated April 16, 2019. Bascomb thereafter

provided documents to the Board that included a plan for his release and letters from

rehabilitation centers at which he had obtained bed space. On August 15, 2019, at the

end of a hearing at which he testified, a panel of the Board found him suitable for parole.

The Board relied on the fact that Bascomb was only 21 when he committed the

offense and had been incarcerated for 16 years. As he had grown older, the Board found,

2 “he has shown growth and maturity while in prison.” He had avoided violence, joining a

gang, and using or selling drugs in prison. He had shown rehabilitation because he

participated in programming before “he had really any hope of getting his sentence

commuted.” He had a “stable social history” in prison, “numerous laudatory” reports

from his supervisors, and got along with and assisted others. He had “shown remorse,

accepted full responsibility for his criminal actions.” In the Board’s view, he was “no

longer susceptible to peer pressure” as he had been at the time of his offense. The Board

listed nine rehabilitative prison programs in which he had participated and noted that he

was a “facilitator” for the alternatives to violence program. He had “made realistic plans

for release” and “developed marketable skills.” He had “strong family support” and a

“very solid” support network which the Board found “very compelling” in mitigating his

risk of reoffending.

However, on January 9, 2020, Governor Gavin Newsom reversed the parole grant

pursuant to his authority under Penal Code section 3041.2 and California Constitution

Article V, section 8(b). The Governor relied on two factors. First, the Governor found

that Bascomb “continues to minimize his role” in the crime. Secondly, the Governor

relied on the evaluating psychologist’s report that found Bascomb with personality

disorders that he needs to “meaningfully work[]” on addressing, and it quoted the report

in finding that he had “‘no clear plans’” for addressing his substance abuse upon his

parole. The trial court denied Bascomb’s petition for a writ of habeas corpus challenging

the Governor’s decision. Bascomb then filed a habeas petition with this court.

3

II. DISCUSSION

Under Penal Code section 3041, subdivision (b), the Board “shall grant parole” to

an eligible inmate unless it determines that “consideration of the public safety” requires

continued incarceration of the individual. Regulations require the Board to consider

“[a]ll relevant, reliable information,” including a non-exclusive list of factors that bear on

suitability or unsuitability for parole. (Cal. Code Regs., tit. 15, § 2402, subds. (b)-(d).)

The “core statutory determination” is “whether the inmate poses a current threat to public

safety.” (In re Lawrence (2008) 44 Cal.4th 1181, 1191 (Lawrence).) The Legislature

“explicitly recognized that the inmate’s threat to public safety could be minimized over

time by changes in attitude, acceptance of responsibility, and a commitment to living

within the strictures of the law.” (Id. at p. 1219.)

The Governor has constitutional authority to review the Board’s parole decisions

as to inmates convicted of murder. (Cal. Const., art. V, § 8(b).) The Governor may

affirm, modify, or reverse the Board’s decision “on the basis of the same factors which

the parole authority is required to consider.” (Ibid.) The Governor has discretion to

weigh and balance the appropriate factors in determining whether a defendant poses an

unreasonable risk to public safety. (Lawrence, supra, 44 Cal.4th at p. 1204.) If the

Governor reverses or modifies a Board decision, the Governor must “send a written

statement to the inmate specifying the reasons for his or her decision.” (Pen. Code,

§ 3041.2, subd. (b).)

4 Our review of the Governor’s parole decision is highly deferential and is limited to

determining whether there is “some evidence” in the record that supports the Governor’s

decision. (Lawrence, supra, 44 Cal.4th at p. 1204.) The review is for whether there is

some evidence “that an inmate poses a current threat to public safety, rather than merely

some evidence of the existence of a statutory unsuitability factor.” (In re Shaputis (2008)

44 Cal.4th 1241, 1254.) Despite that we look only for some evidence, we nevertheless

are required to determine whether a parole determination has some “‘basis in fact,’”

because in the absence of at least a “‘“modicum”’” of evidence, a parole determination is

too arbitrary to countenance. (Lawrence, 44 Cal.4th at pp. 1204-1205.) While

exceedingly deferential to the Governor, our review must not be merely procedural in

determining whether the Governor has facially articulated permissible factors, but “must

be sufficiently robust to reveal and remedy any evident deprivation of constitutional

rights.” (Id. at p. 1211.)

This is an unusual case where we cannot find the Governor’s decision supported

by some evidence. The Governor’s reasoning relies on two factors, and we conclude that

neither is supported by evidence.

A. Minimizing Role in the Crime

First, the Governor asserted that Bascomb “continues to minimize his role in this

crime.” This conclusion relies on a mistaken interpretation of a single sentence from

Bascomb’s 2019 assessment. Out of context, that sentence could seem to show that

Bascomb was minimizing his role. In context, that sentence can only be read as Bascomb

5 criticizing himself for committing the crime despite an upbringing that should not have

led him to do so. It cannot rightfully be read as Bascomb minimizing his role.

The sentence that the Governor quotes is “‘I’ve never fired a gun in my life and I

still end up in prison behind [the victim’s] murder!’” Taken in isolation, that statement

could appear to be Bascomb blaming the legal system for his crime. But the context

shows otherwise. That sentence was part of a colloquy in a transcript, and, in the

sentence that followed that one, Bascomb stated that he had become a “bully . . . preying

on the weak,” the beginning of an explanation of blaming himself for turning into a

criminal despite not being raised as one:

“(Q. You shot the victim?) [¶]

“No, ma’am. I never left the living room. I was in the kitchen. [¶]

“(Q. Blue shot him?) [¶]

“Yes, during the struggle and I told the investigator. I’ve never fired a gun in my

life and I still end up in prison behind James’ murder! [¶]

“(Q. Why do you think you did this?) [¶]

“I had become what I hated. I had become a bully, like someone preying on the

weak. And, I didn’t like it. Most of my childhood fights was protecting myself from

people like that.”

Bascomb then described the process where he believed he had become “a

monster” through anger at his parents and rebellion against his upbringing. He expressly

took blame for the robbery, explaining that he thought he could “get away with robbing”

6 the victim and picked him as “the easiest to rob” of drug dealers because other dealers

brandished weapons and had a reputation for violence.

After quoting the colloquy, the psychologist concluded “Mr. Bascomb admits

responsibility for the death of the victim, noting it was his suggestion to rob him.” The

psychologist personally interviewed Bascomb, observing him first-hand, and did not see

Bascomb minimizing his role. Given the context and the viewpoint of the psychologist

who was present, a later reader cannot properly construe the sentence of the colloquy that

the Governor relies upon as providing evidence that Bascomb is minimizing his role in

the crime.

This is even more clear based on evidence outside of the psychological

assessment. When Governor Brown commuted Bascomb’s sentence in 2018, the

commutation stated: “During an interview with a Board of Parole Hearings investigator,

Mr. Bascomb took full responsibility for his crime, [and] expressed sincere remorse . . . .”

Bascomb wrote a letter to the victim’s family, abjectly accepting responsibility and

apologizing. At his parole hearing, Bascomb testified and admitted that he came up with

the idea for the robbery. He took responsibility for the devastation he caused the family.

He answered questions in detail about how he planned the robbery and what happened.

In their ruling, the parole commissioners found that Bascomb “has shown remorse,

accepted full responsibility for his criminal actions.”

7 The People here do not support the Governor’s decision based on the sentence the

Governor quoted. Rather, the People argue that Bascomb minimized his role because at

his parole hearing he purportedly downplayed his role by “repeatedly insisting he only

intended to rob [the victim] because he perceived [the victim] to be an easy target.” In

stating this, Bascomb was not downplaying his role. In the portion of the hearing that the

People cite, Bascomb stated, among other things: “I come up with the idea to rob [the

victim]”; “I was a coldhearted individual”; “I wanted more. I wanted to step up my

prestige in the drug game. I wanted more money, I wanted more drugs.” He also

admitted: “I took my gun for force or fear or if anything got out of line or crazy, then I

would be able to shoot somebody.” It was not minimizing his role in a felony murder for

Bascomb to state that he thought, wrongly, that he and his cohort would be able to rob the

victim without using violence. Notably, when the People’s briefing describes Bascomb’s

personal role in the offenses, it relies significantly on Bascomb’s own testimony at the

hearing and other places in the record where Bascomb himself provided the relevant 1 facts.

There is no evidence supporting the Governor’s finding that Bascomb minimized

his role in the crime. Arguably, this alone requires vacating the Governor’s decision,

where the Governor’s decision did not make clear that he would have reached the same

1 The People also rely on Bascomb’s failure to cooperate by providing information about his cohort. Neither the Board nor the Governor disputed Bascomb’s position that he had no more information about his cohort to offer, and it is not our role to create such a finding to support denial of parole.

8 conclusion in the absence of the factor. (In re Capistran (2003) 107 Cal.App.4th 1299,

1306 [where a Governor’s decision purports to rely on facts “that are not supported by

some evidence, the decision cannot be sustained on the ground that the other aspects of

the Governor’s decision are supported by some evidence”].) In any event, as described in

the following section, the Governor’s second factor is not supported by evidence

connected to Bascomb’s current dangerousness.

B. Managing Personality Disorders and Substance Abuse

The second factor the Governor relied on was Bascomb’s supposed lack of work

or plans to manage the risk from his personality disorders and his history of substance

abuse and alcohol. The Governor tied the current problems from these factors

exclusively to the findings of the psychologist who performed Bascomb’s assessment and

did not mention Bascomb’s later documentary and oral presentation in connection with

his Board hearing.

In the assessment, the psychologist stated that Bascomb met criteria for antisocial

personality disorder and narcissistic personality disorder; as far as the record reveals, this

is the first occasion where Bascomb had such a diagnosis. The psychologist also noted

moderate or mild drug use from before his incarceration, that is, more than 16 years

earlier, albeit recognizing that Bascomb had participated in group treatment programs

while in custody. The Governor’s conclusions as to current danger were based on the

implications of these psychological findings. Noting the psychologist’s diagnosis of

personality disorders, the Governor concluded that until Bascomb “meaningfully works”

9 on addressing his personality traits he remains a recidivism risk. Noting Bascomb’s

history of substance abuse and alcohol, the Governor relied on the psychologist’s

statement that Bascomb had “‘no clear plans for how to manage this factor upon parole to

the community.’”

The psychological assessment, however, came before Bascomb fashioned his

parole plans. As the psychologist noted in the report, Bascomb had then “only recently

learned his sentence had been commuted and [he] was eligible for parole consideration a

decade before he expected, [so] understandably the parole plans Mr. Bascomb presented

today are in the very early stages.” In the months following the evaluation, Bascomb

created plans for dealing with his personality and substance issues.

First, Bascomb obtained a bed for himself at two different rehabilitation programs,

one called the Partnership for Re-Entry Program and one run by the Salvation Army.

These programs involved an array of testing and services which could help address any

personality and drug issues he may face. Secondly, Bascomb handwrote a six page

relapse prevention plan. In the document, he admitted his problems, explained what he

had done to rehabilitate in custody, and listed things he would do and not do after release

from custody, including items that relate to his personality and historical drug problems.

Thirdly, at his parole hearing, he explained his approach. He planned for his wife to be

his “accountability partner” for substance abuse, and he also had a mentor. His wife

wrote a letter explaining her role. Bascomb explained that he had researched his

personality disorders on the internet and in an encyclopedia of psychology, and had

10 listened to the doctor tell him that managing his personality would be the key to his

success.

Having heard Bascomb’s documentary and hearing evidence, the parole

commissioners found that Bascomb had “made realistic plans for release.” They found

his showing “very compelling in terms of [his] success on parole.”

The “core determination” for both the Board and the Governor is “an assessment

of an inmate’s current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1205.) In

determining that Bascomb was suitable for parole, the Board referred to specific parts of

Bascomb’s plans and concluded that they were satisfactory. A contrary conclusion from

the Governor, “absent articulation of a rational nexus between [the] facts and current

dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Id.

at p. 1227; In re Criscione (2009) 180 Cal.App.4th 1446, 1458 [“there must be some

connection between the findings and the conclusion that the inmate is currently

dangerous”].) The Governor articulated findings based exclusively on the psychological

assessment that occurred before Bascomb had developed and presented his plans for

release that included dealing with his personality and substance concerns. Because the

assessment preceded those plans, it alone does not have a rational nexus to a finding of

current dangerousness due to Bascomb’s lack of efforts or unsatisfactory plans.

11 Beyond simply failing to refer to Bascomb’s plans, the Governor found that

Bascomb had “no clear plans” for release. That finding is supported by no evidence.

Bascomb in fact offered detailed plans for release, drafted in the months after the

psychological assessment and presented at his Board hearing. Findings about current

dangerousness—at least as to danger from his personality or substance disorders

mentioned in the assessment—cannot be properly made without considering those

detailed plans. As the assessment appears to have newly diagnosed personality disorders,

Bascomb had not even yet had any opportunity to articulate a way he would address

those. The Governor’s articulated findings affirmatively indicate that he did not base his

conclusion on a consideration of Bascomb’s plans presented to the Board. We cannot

find that the Governor’s articulated findings as to current dangerousness from Bascomb’s

personality and drug proclivities are based on some evidence, because they were not

based on the plans Bascomb offered and on which the Board relied.

We are cognizant of the People’s position here that we should look beyond the

Governor’s articulated findings, as the Governor’s statement that he considered the

evidence in the record should be enough to demonstrate that he has considered the

defendant’s individual situation and made a determination to which deference is required

based even on evidence not cited. That argument might succeed in some situations, as

our review is so deferential. However, the Governor’s written statement in this case—

which erroneously found that Bascomb had no clear plans for release and linked the

findings at issue exclusively to the psychological assessment that preceded his plans—

12 indicates that Bascomb’s detailed plans for release were not part of the evidence

underlying the Governor’s conclusions. In this circumstance, if we try to support the

Governor’s decision by searching for deficiencies in Bascomb’s plans, it appears likely

that we—not the Governor—would be making findings, and they would be ones that we

do not know that he would make.

Finally, we are at a loss to articulate how the Governor could reach the same

conclusions based on Bascomb’s prison record and his parole plans. It is not clear what

further work or plans Bascomb could do as to these matters. Bascomb apparently had no

drug or alcohol problems during 16 years of incarceration, and he participated in

Alcoholics Anonymous and Narcotics Anonymous in prison as well as other 2 rehabilitative programs that included those matters. His release programs had testing,

support, and education to deal with drugs and alcohol. His handwritten relapse

prevention plan listed what “external” and “internal” factors he would avoid, and his wife

stated she would be one of his sponsors. Moreover, Bascomb’s personality disorders

apparently did not interfere with his success during his incarceration; he completed

several prison programs that included anger management and avoiding violence; and his

prison work evaluations stated that he “is an exceptional lead man” and “[h]e is always

doing well with his co-workers and he possesses admirable communication skills when

interacting with staff.” He researched the disorders the psychologist had diagnosed, he

2 Bascomb’s evaluation stated that he “attended meetings regularly and has enhanced the program through his participation.” It stated that he was “a positive influence toward other inmates” and was “very effective” in relating his insights to them.

13 included ways to avoid problems from them in his plans, and he had located programs

that included individual and group counseling. (See In re Ryner (2011) 196 Cal.App.4th

533, 551 [Governor’s reliance on failure to take more anger management courses

insufficient absent evidence that more courses were available or needed].)

For these reasons, we conclude the record lacks the “some evidence” required to

support the Governor’s conclusion that Bascomb was a current threat to public safety

based on inadequate plans or efforts relating to his personality disorders and past

substance and alcohol abuse.

C. Remedy

“‘[W]hen a court determines that a gubernatorial reversal of a parole decision is

unsupported, the remedy is not an order for the inmate’s immediate release; rather, the

court vacates the Governor’s reversal, reinstates the Board’s grant of parole, and directs

the Board to conduct its usual proceedings for a release on parole. This allows the Board

to account for any recent developments reflecting on the inmate’s suitability for parole,

and to rescind its grant if appropriate.’” (In re Sena (2015) 236 Cal.App.4th 1270, 1274.)

We do so here.

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III. DISPOSITION

The habeas petition is granted. The Governor’s January 9, 2020, order reversing

the Board’s August 15, 2019, determination of Bascomb’s suitability for parole is

vacated, and the Board is ordered to conduct further proceedings in accord with this

opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

RAMIREZ

P.J.

MENETREZ

J.

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