Supreme Court of California Justia
Citation 53 Cal. 4th 192, 265 P.3d 253, 134 Cal. Rptr. 3d 86

In re Shaputis

Filed 12/29/11



IN THE SUPREME COURT OF CALIFORNIA



In re RICHARD SHAPUTIS

S188655

on Habeas Corpus.

Ct.App. 4/1 D056825

San Diego County

Super. Ct. No. HC18007



Here we reaffirm the deferential character of the ―some evidence‖ standard

for reviewing parole suitability determinations. Whether to grant parole to an

inmate serving an indeterminate sentence is a decision vested in the executive

branch, under our state Constitution and statutes. The scope of judicial review is

limited. The ―some evidence‖ standard, which we articulated in In re Rosenkrantz

(2002) 29 Cal.4th 616 (Rosenkrantz) and refined in In re Lawrence (2008) 44

Cal.4th 1181 (Lawrence), is meant to serve the interests of due process by

guarding against arbitrary or capricious parole decisions, without overriding or

controlling the exercise of executive discretion. (Rosenkrantz, at pp. 664-665;

Lawrence, at p. 1212.)

This is our second grant of review to consider whether a majority of

Division One of the Fourth District Court of Appeal properly applied the ―some

evidence‖ standard to a decision denying parole for petitioner Richard Shaputis.

Previously, we decided the majority had correctly asked whether the evidence

supported a finding that petitioner posed a current threat to public safety, but

improperly substituted its own conclusion for that of the Governor. (In re

Shaputis (2008) 44 Cal.4th 1241, 1255 (Shaputis I).) We held that some evidence

1


supported the Governor‘s decision that paroling petitioner would pose an

unreasonable risk of danger to society due to (1) the gravity of the offense, which

was a culmination of years of domestic abuse inflicted by petitioner on his wife

and family, and (2) petitioner‘s lack of insight and failure to accept responsibility

for his actions. (Id. at pp. 1258-1261.)

We now conclude that the Court of Appeal majority has again invaded the

province of the parole authority, in this case the Board of Parole Hearings.1 After

our decision in Shaputis I, petitioner refused to be interviewed by the psychologist

appointed by the California Department of Corrections and Rehabilitation (CDCR)

to perform a comprehensive risk assessment for the Board‘s consideration.

Instead he hired his own psychologist, who submitted a report. Petitioner also

refused to testify at his parole hearing. He chose to submit a written statement

prepared with the assistance of counsel. The Court of Appeal majority gave

credence to these sources of information, and faulted the Board for relying on

earlier psychological evaluations and statements by petitioner. However, it is not

for the courts to reweigh the evidence before the Board, and an inmate who

restricts the Board‘s access to current information is in no position to complain

about the Board‘s reliance on other relevant evidence. The ―some evidence‖

standard does not permit a reviewing court to reject the Board‘s reasonable

evaluation of the evidence and impose its own judgment.

We also take this occasion to offer some general guidance to the Courts of

Appeal on inmates‘ lack of insight as a parole unsuitability factor. As noted by the


1

Hereafter, we use ―Board‖ to refer both to the Board of Parole Hearings and

its predecessor, the Board of Prison Terms, which reviewed petitioner‘s suitability
for parole in hearings held before July 2005. (See Shaputis I, supra, 44 Cal.4th at
p. 1245, fn. 1.)

2

majority below, lack of insight has played an increasingly prominent part in parole

decisions and the ensuing habeas corpus proceedings.

I. BACKGROUND

A. Procedural History

Petitioner was convicted of a second degree murder committed in 1987, and

was sentenced to a term of 15 years to life in prison with a two-year enhancement

for firearm use. His minimum eligible parole date was in 1998. The Board found

him unsuitable for parole at hearings held in 1997, 2002, and 2004. After the third

denial, petitioner sought a writ of habeas corpus, which was denied by the trial

court. Petitioner took his application to the Fourth District Court of Appeal, which

granted him relief in a split decision. The Board was ordered to vacate its denial

of parole, conduct a new hearing, and refrain from relying on the same findings it

made in 2004 unless there was new or different evidence.

Constrained by these directions from the court, the Board found petitioner

suitable for parole at a hearing in March 2006, though the presiding commissioner

stated that she continued to believe he was unsuitable for the reasons stated in the

Board‘s 2004 decision. In August 2006, Governor Arnold Schwarzenegger

reversed the Board‘s decision. Petitioner again sought a writ of habeas corpus

from the trial court, lost, proceeded to the Court of Appeal, and succeeded in

persuading a majority of that court to grant him relief.

We granted review, and considered the matter in conjunction with

Lawrence, supra, 44 Cal.4th 1181. In Lawrence, we held that the ―some

evidence‖ standard of review applicable to parole suitability determinations

applies not simply to the factors relied on for denial, but to the ultimate decision

on whether the inmate‘s release will unreasonably endanger public safety. (Id. at

p. 1209; see also id., p. 1235 (dis. opn. of Chin, J.) [agreeing with the majority on

this point].) In Shaputis I, we decided that even though the Court of Appeal

3

majority had properly framed its inquiry, it had failed to defer to the Governor‘s

determination that petitioner remained dangerous, which was supported by some

evidence. (Shaputis I, supra, 44 Cal.4th at p. 1255.) Accordingly, we reversed the

Court of Appeal‘s judgment. (Id. at pp. 1259-1261.)

Petitioner appeared for another parole hearing in 2009. The Board denied

parole, basing its decision on the circumstances of the offense as well as

petitioner‘s failure to gain insight into his behavior and take responsibility for his

crime. Petitioner unsuccessfully petitioned the trial court for a writ of habeas

corpus. For the third time, however, a majority of the Court of Appeal granted

him relief. We granted the Attorney General‘s petition for review.

B. The Commitment Offense

Petitioner was 50 years old when he murdered his wife.2 On January 24,

1987, his neighbor heard a gunshot between 8:30 and 9:00 p.m. At 9:58 p.m.,

petitioner called 911. He was screaming and the call was cut off. Petitioner called

back immediately and told the dispatcher that he and his wife had had ―a little

fight‖ and he shot her. She was dying and needed help. Petitioner said he had not

known the gun was loaded. The dispatcher kept him on the telephone until police

officers arrived at his house, then directed him to go outside with his hands in the

air. The police arrested petitioner, entered the house, and found his wife Erma

dead on the living room floor, with a cocked revolver lying nearby. An open box

of ammunition rested on a table.


2

We draw primarily on the statement of facts in the unpublished opinion

affirming petitioner‘s conviction, filed May 21, 1991, which the Board
incorporated by reference at the 2009 parole hearing below. As noted in that
opinion, petitioner had been retried after his first conviction of second degree
murder was reversed by the Court of Appeal due to improperly admitted evidence.

4

The cause of death was a single gunshot wound to the neck, inflicted at

close range. It was likely that petitioner was sitting and Erma was in the process

of standing up or bending forward when he shot her. She had probably died

within a second or two. Her body lay face up and was cold to the touch. Blood

had partially dried on her face, neck, and head. Postmortem lividity, caused by

pooling of the blood, had developed on the lower parts of her right leg and arm.

The murder weapon could not be fired unless the hammer was manually

cocked before the trigger was pulled. A ―transfer bar‖ prevented accidental

discharge by making the gun impossible to fire unless the trigger was pulled and

held back.3 The gun was in excellent working condition. Another handgun and

three rifles were in the house. All the other guns were unloaded. Both petitioner

and Erma had been drinking. Her blood-alcohol level was .22 percent. Petitioner

was not tested initially because the officers did not think he was intoxicated. At

3:00 a.m., his blood-alcohol level was .14 percent. Petitioner presented evidence

that the level could have been .24 percent at 10:00 p.m.

Petitioner made a number of spontaneous statements while being guarded at

the police station, among them: ―I dialed 911.‖ ―I had the gun. It went off. And

then went off again.‖ ―I don‘t know why it went off.‖ ―She was my baby.‖ ―She

said dial 911.‖ At trial, two of petitioner‘s daughters testified about past incidents

of domestic violence between the spouses, including a prior shooting incident.


3

In each of the three opinions granting habeas corpus relief to petitioner, the

Court of Appeal majority noted that these safety features of the gun were recited in
CDCR reports, but stated that the factual basis for the information was unclear.
To the contrary, the opinion affirming petitioner‘s conviction makes it plain that
this evidence was presented at trial.

5

Erma‘s parents testified that when he was upset with Erma, petitioner would

sometimes threaten to send her ―home in a box.‖ They thought he was joking.

C. Petitioner’s History of Domestic Violence

Information about petitioner‘s long history of domestic violence was

developed in the probation report and the CDCR reports prepared in connection

with the parole hearings. Petitioner‘s first wife had divorced him after suffering

severe physical abuse. On one occasion, he jumped on her stomach when she was

pregnant, causing her to miscarry. Petitioner also abused his four daughters,

sometimes holding a knife to their throats when he thought they had misbehaved.

He singled out one daughter in particular, because she was the weakest

emotionally. His daughter Annette said petitioner was a different person behind

closed doors than he was when others were present.

One daughter remained in petitioner‘s custody following the divorce, and

lived in his home until 1978. Petitioner and Erma were married in 1964. His

daughter saw petitioner beat Erma on several occasions, and noticed large bruises

on her body. Around 1972, he beat Erma so badly that she needed plastic surgery.

In 1978 his daughter, then 16, accused petitioner of raping her twice when he was

intoxicated. He was charged with rape by threat and with incest, but pleaded no

contest to reduced misdemeanor charges. Between 1981 and 1986, a friend

noticed bruises on Erma every four to six months. Erma told her that petitioner

flew into rages and beat her. Around 1985, Erma complained that he had cracked

her ribs. About 18 months before the murder, petitioner shot at Erma.

Petitioner‘s criminal record before the murder encompassed more than the

conviction arising from the molestation of his daughter. He was arrested in 1966

for check fraud, although this charge was later dismissed. In 1975, he was

convicted of failing to pay child support. In 1978, he was arrested for pandering,

convicted of an unspecified offense, and sentenced to 30 days of work furlough.

6

In 1979, he failed to register as a sex offender as required by his molestation

conviction. He was arrested at least once for driving while intoxicated.

D. Petitioner’s Statements About the Offense

Petitioner has made various statements about Erma‘s murder during his

years in custody. At his parole hearing in 1997, he claimed he had shot Erma by

accident; they did not fight before the shooting; she had handed him the gun for

his own protection; he did not know the gun was loaded; and he had not aimed at

her. When petitioner was interviewed for a CDCR report before his 2004 parole

hearing, he declined the opportunity to amend this version of the offense. A 2004

Board report quotes petitioner as saying that after he and his wife had a few

drinks, Erma told him there had been a prowler in the neighborhood and wanted

him to look at one of his guns to see if she could use it. ―She sat the gun on my

lap in a leather case. I took it out and the shells that were in the box fell out. I

picked up the gun and pointed at the fireplace. I said, ‗bang,‘ and pulled the

trigger at the same time. The gun went off. I saw my wife on the floor. I did not

see her before that. I ran around the house screaming and then called 911 after I

found the phone.‖

When interviewed by a psychologist in 2004, petitioner explained that he

and his wife were both drunk, and she was upset about a purchase of ―some

carnival glass‖ that evidently was broken during shipment. After the subject of the

prowler came up, ―she gave me the gun and it was loaded, but I didn‘t know that.

I pulled out the gun. This part nobody wants to believe. I pointed the gun and

pulled the trigger just when she bent over and it went into her neck and killed her.

I didn‘t want to kill her. It was an accident.‖ Asked whether there was an

argument, petitioner replied: ―No, we talked about the carnival glass. I don‘t

remember the whole thing. I do remember shooting my wife, then called 911.

The worst thing about the crime was drinking. I shouldn‘t have had a firearm.

7

The argument was stupid. It was the most stupid thing I‘ve ever done in my life. I

still miss her. We were good friends and loved each other.‖

In 2009, petitioner‘s privately retained psychologist described his recitation

of the offense as ―essentially consistent‖ with the versions she saw in prior reports.

She wrote that petitioner ―has long since achieved compelling insights into the

causes that resulted in his need to remain in an unhappy long term marriage and

the reasons for his inability to leave the marriage. ‗I know why I could not leave

the marriage and the alcoholism exacerbated my fears. I was scared of being

alone and felt I had no other choice but to continue on with Erma. I take

responsibility for her being shot. I was drunk and had no sense of what happened

when the gun was dropped in my lap. I am not that person and haven‘t been for

many years.‘ ‖

E. Petitioner’s Relationships with Others

Regarding the molestation of his daughter, in 2001 petitioner admitted he

had touched her inappropriately but denied that intercourse occurred. In 2005,

however, he denied the allegation entirely, claiming he had wandered into his

daughter‘s room by mistake. A 2006 psychological report observed that petitioner

found her accusations ―inexplicable.‖ Petitioner had a flat affect when discussing

the allegations, which could be a sign of the schizoid tendencies noted in some

previous evaluations. When questioned by the Board at his 2006 parole hearing

about whether he had a problem in the way he treated women, petitioner replied,

―Well, no I don‘t. I don‘t know how to say that I don‘t have a problem now. I

didn‘t have a — I guess I had a problem then but I don‘t know how to put it into

pictures or words. I just— it was one of those things I didn‘t quite understand, I

guess. Not having a thorough idea of how stupid I was being, how dumb I was

being.‖ Petitioner‘s counsel advised him not to answer when he was asked to

8

explain his understanding of why he had committed the murder and how he was

―different today.‖

The 2004 psychological evaluation stated that the ―atypical, detached,

almost schizoid quality to some of petitioner‘s earlier relationships‖ was

suggestive of early trauma that petitioner chose not to discuss. The report further

noted that petitioner had a ―reduced‖ ability to achieve self-awareness and develop

relationships with others. Petitioner‘s mother had deserted the family when he

was nine, and he was left to care for his six younger siblings during his father‘s

extended absences from the home. The probation report and a 1997 CDCR report

stated that petitioner‘s father had physically abused him. He denied this in 2004,

but the 2009 report prepared by his psychologist related petitioner‘s description of

his father as physically abusive.

At his 2006 parole hearing, it emerged that petitioner had no contact with

his siblings, daughters, or first wife. In 2005 he had married a second cousin, who

was herself a recovering alcoholic. The psychologist who prepared an evaluation

in 2005 confirmed the earlier finding that there was a ―schizoid quality‖ to

petitioner‘s ―interpersonal relationships,‖ and noted that he seemed to have

―limited . . . insight‖ into his antisocial behavior and the association between his

alcohol abuse and his history of domestic violence. The report stated that ―there

appears to be little potential benefit at this point in his development to attempt to

modify this [character-based] structure.‖ The psychologist was concerned about

petitioner‘s plan to reside with his new wife, given his history of domestic

violence, but nevertheless concluded that the risk he would resume this pattern

was probably low if he abstained from alcohol. The report recommended random

alcohol testing, a mandatory relapse prevention program, and a community-based

domestic violence program as conditions of parole.

9

Indeed, all the CDCR psychological reports, from 1997 until 2009, found

that petitioner would probably pose a low risk of threat to the public if released on

parole, so long as he refrained from using alcohol. His behavior in prison has

been uniformly exemplary. He has completed numerous rehabilitation programs.

He has repeatedly been commended by prison staff for his work, conduct, and

reform efforts. Petitioner had a stable employment history before he murdered his

wife. He worked for San Diego Gas & Electric Company as an electrician and

fabricator for seven years, owned his own welding business, and for the 13 years

preceding the murder was employed by Bechtel Corporation as a supervisor.

F. The 2009 Hearing

At the latest hearing in August 2009, petitioner was 72 years old. It was

noted that he had a comfortable private income from a union pension, Social

Security, and some savings. He planned to live with his wife in a retirement

community. Petitioner suffers from high blood pressure and has had three heart

attacks, the most recent in 2003. He was recovering from shoulder surgery at the

time of the hearing.

As noted, petitioner had declined to be interviewed by the psychologist

appointed by CDCR to evaluate him in advance of the hearing, Dr. Nameeta

Sahni.4 Dr. Sahni prepared a report based on her review of the existing materials


4

Petitioner refers us to a letter in the record from counsel for the Board,

dated October 2008, to Donald Miller, whose role is not apparent from the record.
The letter responds to a request from Miller that Dr. Jasmine Tehrani perform a
psychological evaluation for petitioner‘s next parole hearing. Counsel informed
Miller that a psychological evaluation had been done by Dr. Gary Hitchcock on
April 30, 2008, and that Dr. Tehrani was of the opinion that there was ―no clinical
need‖ for a new evaluation of petitioner.


Dr. Sahni, who met with petitioner in April 2009, noted that she had

reviewed an evaluation by Dr. Hitchcock, which she parenthetically described as


(footnote continued on next page)



10

in petitioner‘s record, but emphasized that her inability to interview petitioner

limited her evaluation of his current condition. At the hearing, petitioner declined

to speak about the murder or his social history. The only newly developed

evidence before the Board came from a May 2009 report by petitioner‘s privately

retained psychologist, and the written statement petitioner prepared with the

assistance of counsel.

Petitioner‘s retained psychologist, Dr. Barbara Stark, reviewed petitioner‘s

file, interviewed him for five and a half hours, and gave him a number of

psychological tests. All the results were in the normal or average range. Dr. Stark

believed the emotional and physical abuse petitioner suffered as a child had

deprived him of a chance to develop ―critical coping abilities,‖ but that in the last

several years he had undergone significant and positive behavioral, emotional, and

cognitive changes. Dr. Stark‘s report noted that petitioner had never been treated

for mental problems in prison, that he had a history of severe alcohol dependence

but had completed treatment programs in prison, and that his behavior in custody

had been excellent. The report took issue with the Board‘s previous finding that

petitioner had a history of unstable and tumultuous relationships. According to

Dr. Stark, ―the sum of his relationships‖ was ―the relationship with his wife and



(footnote continued from previous page)

―a refusal, dated less than a year ago, on 6/23/08 [sic].‖ Dr. Sahni reported that
petitioner was initially confused as to whether she was his retained psychologist.
Ultimately, he was unwilling to participate in an interview without consulting his
attorney. Dr. Sahni told petitioner that if he declined the interview her report
would be based on his records, and that another interview would not be scheduled
for him. Petitioner ―stated that he understood and wished the undersigned
evaluator a nice day.‖

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misconduct with his daughter while under the influence,‖ which ―does not meet

the level of a history of ‗unstable tumultuous relationships.‘ ‖

After asserting that petitioner‘s account of the murder had been consistent

over the years, Dr. Stark stated: ―It is clear from reviewing the legal

documentation that there are inconsistencies in the judicial proceedings and he has

continued to accept responsibility for the offense. This has been misinterpreted as

a lack of insight and remorse when he stated his version of the index offense as it

occurred.‖ She also reported that petitioner said he ―has been quoted many times

incorrectly when the relationship with his wife was discussed. It is clear that there

were inconsistencies in the investigation regarding the logistics regarding the

firing of the gun during the index offense.‖

The report discussed petitioner‘s insight at length, opining that his behavior

had been caused by unmet emotional needs and his dependence on alcohol. ―He

gives these as no excuses and those behaviors no longer exist in his present day

life. He related his past behavior was a need to make himself feel good and he

behaved in a self-centered manner to obtain those feelings that resulted in a

tragedy that took his wife‘s life. He spoke about his early need to be accepted and

ended up in a death of his wife.‖ Dr. Stark attributed the following statements to

petitioner: ―In the past I never knew what they meant by insight and no one asked

about my feelings as a child how they made me fearful and dependent and not ever

wanting to be poor.‖ ―I can see how my never having been connected to others

severely impaired my judgment. I never even thought at the time of the

consequences of my drinking and my wife‘s drinking and our continuous

arguments. I really had no understanding, as unbelievable as that may seem.

Since that time I‘ve done a lot of intensive groups regarding how my low self

esteem, horrible substance abuse caused my detachment. I‘m astonished at the

time of the offense at my lack of any thoughts that this situation was out of hand.‖

12

Asked specifically about the crime, petitioner said: ―I am aware of what I did

every day. There were so many warning signs I chose to ignore. It was stupid and

at the time I had no sense my actions in my home environment would lead to my

wife‘s death.‖ Dr. Stark concluded that petitioner posed a low risk of recidivism,

and should be released on parole.

In the written declaration petitioner prepared with counsel, he explained

that he had not previously addressed the matter of ―insight‖ because he

misunderstood it and had been questioned about it ―only superficially.‖ The

substance of the statement is as follows:

―4. Because of a fading memory, probably due to my age and illnesses, I

do not have a vivid recollection of all of my previous conduct, but I do remember

that I abused my wife and at least one of my daughters. I also recall my drinking

habits and severe addiction to alcohol.

―5. I do recognize the destructive effects of my drinking and how it terribly

impaired my judgment. Over time and with treatment I have come to know that I

would not have committed such horrific acts but for alcohol, but I blame myself

and low morality, not alcohol, for my crime and former misconduct. Most

alcoholics, those with decent character and morality, do not commit such acts.

―6. In my treatment and soul searching over the years I have addressed and

dealt with this issue of morality, and with the requirement of lifelong sobriety. On

the former subject, I was self-centered and did not respect the needs of my wife

and children. Although that was compounded and exacerbated by drinking, the

basic flaw was in my own character.

―7. Although I have come to understand these issues, when I look back at

the way I answered questions asked by the Board and the Board‘s psychologists, I

focused almost entirely on my present and future sobriety, and failed to adequately

explain how deeply regretful I feel about my past. . . . I am making this written

13

statement because it is now more difficult, due to my memory and illnesses, to

immediately understand and reply spontaneously to questions, particularly about

my past. My shame about my horrible conduct and how it impacted the victims

has also played a role.

―8. I want the Board, and everyone, to know that I will [sic] and can never

again engage in such terrible conduct. How repulsive it is to me now serves as a

powerful deterrent. I have learned to recognize and deal with stress in a socially

acceptable manner (in this very stressful environment) and am committed to

sobriety for life. . . . Because I am not mentally the same person as before, I think

entirely differently, respond to stress differently, and have no use for alcohol, and

because I will always feel deep sorrow for my victims and know that I am

completely responsible for the offense and my previous conduct, I could never

again engage in such behavior.‖

The Board‘s decision to deny parole was based on the commitment offense,

the long history of domestic abuse that led up to it, and defendant‘s failure to

accept responsibility or gain insight into the reasons for the abuse and the murder.

The Board recounted the history of petitioner‘s domestic violence, and rejected

Dr. Stark‘s opinion that he had no history of tumultuous relationships. He had

repeatedly abused both Erma and his first wife, and molested his youngest

daughter, who remained in his care after his first wife left with the three older

children. He had admitted only to fondling his daughter, and blamed the rest of

his behavior on alcohol. The Board was skeptical that petitioner had accepted

responsibility for his actions, pointing out that the expressions of remorse in his

written statement and in Dr. Stark‘s report were the first to appear in the record.

The Board questioned petitioner‘s credibility, observing that he had made

inconsistent statements about whether his father had been abusive. The Board

14

found that petitioner had perpetuated a pattern of domestic violence, and failed to

perceive the underlying causes of that violence.

The Board further pointed out that petitioner had never provided a coherent

explanation of how Erma came to be shot, maintaining his claim that the killing

was accidental in the face of strong evidence to the contrary. It discredited his

explanation that he had misunderstood what was meant by ―insight,‖ noting that

this is a commonly understood term. The Board referred to a statement in

petitioner‘s 2004 psychological evaluation, to the effect that he had yet to accept

responsibility for the murder and relied on denial and rationalization to handle

stress, defenses that were firmly entrenched and unlikely to change.

G. The Habeas Corpus Proceedings

The trial court denied petitioner‘s habeas corpus petition, observing that he

had hampered his cause by refusing to speak to the Board, although he was not

required to do so. The court found the record ―replete with . . . reasons‖ for

denying parole, based on the evidence before the Board. The Court of Appeal

majority, on the other hand, concluded there was ―no evidence to support a finding

that [petitioner] would currently pose an unreasonable risk of danger to society

were he released on parole.‖ The majority accepted petitioner‘s written statement

and Dr. Stark‘s psychological evaluation as the only current evidence of

petitioner‘s dangerousness, and faulted the Board for its reliance on outdated

information. The dissenting opinion commented that the majority simply

disagreed with the weight the Board had given to the evidence before it, whereas

the deferential standard of review in parole cases requires the court to credit the

Board‘s findings when they are supported by a modicum of evidence.

15

II. DISCUSSION

This case turns on the application of the ―some evidence‖ standard of

review.5 We discuss first the handling of that standard by the Court of Appeal

majority below. Next, we consider petitioner‘s arguments that the Board‘s

reliance on his lack of insight deprived him of due process. We proceed to some

general observations on an inmate‘s degree of insight as a factor in parole

suitability determinations, and conclude with a brief summary of the principles

governing judicial review of those determinations.

A. The Majority’s Application of the “Some Evidence” Standard

As we have explained, in Lawrence we ―resolved a conflict among the

appellate courts regarding the proper scope of the deferential ‗some evidence‘

standard of review we set forth in Rosenkrantz, supra, 29 Cal.4th 616 . . . . We

clarified that in evaluating a parole-suitability determination by either the Board or

the Governor, a reviewing court focuses upon ‗some evidence‘ supporting the core

statutory determination that a prisoner remains a current threat to public safety —

not merely ‗some evidence‘ supporting the Board‘s or the Governor‘s

characterization of facts contained in the record. Specifically, we explained that,

because the paramount consideration for both the Board and the Governor under

the governing statutes is whether the inmate currently poses a threat to public

safety, and because the inmate‘s due process interest in parole mandates a

meaningful review of a decision denying parole, the proper articulation of the

standard of review is whether there exists ‗some evidence‘ demonstrating that an


5

The body of statutes and regulations that generally govern the Board‘s

parole considerations is set out in Lawrence, supra, 44 Cal.4th at pages 1201-
1203, and Shaputis I, supra, 44 Cal.4th at pages 1256-1258. (See also In re
Prather
(2010) 50 Cal.4th 238, 249-251.)

16

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

suggesting the existence of a statutory factor of unsuitability. (Lawrence, supra,

44 Cal.4th at p. 1191.)‖ (In re Prather, supra, 50 Cal.4th at pp. 251-252.)6

Here, the Court of Appeal majority appears to have misconstrued the ―some

evidence‖ standard by stating that the factors relied upon to find an inmate

unsuitable for parole must be ―demonstrably shown by evidence in the record.‖

To the extent the adverb ―demonstrably‖ suggests a reviewing court is free to

determine whether the evidence establishes the existence of a particular factor, or

that anything other than ―some evidence‖ is required to support a finding by the

Board or the Governor, this formulation was erroneous. We have never used such

terminology in connection with review of parole decisions. In another context we

have adopted a ―demonstrable reality‖ standard, governing review of the grounds

for removing a sitting juror. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)

There we made it plain that such a standard is less deferential than the substantial

evidence standard, and requires a greater evidentiary showing.7 Conversely,

review under the ―some evidence‖ standard is more deferential than substantial

6

In Prather, we considered the appropriate remedy in cases where a

reviewing court concludes that the Board‘s denial of parole is not supported by
― ‗some evidence.‘ ‖ (In re Prather, supra, 50 Cal.4th at p. 243.)
7

―A substantial evidence inquiry examines the record in the light most

favorable to the judgment and upholds it if the record contains reasonable, credible
evidence of solid value upon which a reasonable trier of fact could have relied in
reaching the conclusion in question. . . . [¶] The demonstrable reality test entails a
more comprehensive and less deferential review. It requires a showing that the
court as trier of fact did rely on evidence that, in light of the entire record, supports
its conclusion that bias was established. It is important to make clear that a
reviewing court does not reweigh the evidence under either test. Under the
demonstrable reality standard, however, the reviewing court must be confident that
the trial court‘s conclusion is manifestly supported by evidence on which the court
actually relied.‖ (People v. Barnwell, supra, 41 Cal.4th at pp. 1052-1053.)

17

evidence review, and may be satisfied by a lesser evidentiary showing.

(Rosenkrantz, supra, 29 Cal.4th at pp. 656, 665.)

It is settled that under the ―some evidence‖ standard, ―[o]nly a modicum of

evidence is required. Resolution of any conflicts in the evidence and the weight to

be given the evidence are matters within the authority of [the Board or] the

Governor. . . . [T]he precise manner in which the specified factors relevant to

parole suitability are considered and balanced lies within the discretion of [the

Board or] the Governor . . . . It is irrelevant that a court might determine that

evidence in the record tending to establish suitability for parole far outweighs

evidence demonstrating unsuitability for parole. As long as the . . . 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.‖ (Rosenkrantz, supra, 29 Cal.4th at p. 677; see also Lawrence,

supra, 44 Cal.4th at p. 1204; Shaputis I, supra, 44 Cal.4th at pp. 1260–1261.)

The majority below lost sight of these cardinal considerations. It reasoned

that the only evidence of petitioner‘s risk to public safety pertained to his

dangerousness in the past, including the evidence we found sufficient to support

the denial of parole in Shaputis I, supra, 44 Cal.4th at pages 1259-1260. It

declared that this evidence had ―evaporated considering the only current evidence

as to his insight into and remorse for his conduct.‖ The majority noted that in

Lawrence, supra, 44 Cal.4th at pages 1223-1224, In re Gaul (2009) 170

Cal.App.4th 20, 38-39 (Gaul), and In re Aguilar (2008) 168 Cal.App.4th 1479,

1490 (Aguilar), the Board‘s reliance on outdated psychological evaluations had

been deemed insufficient to supply ―some evidence‖ of the inmate‘s threat to

public safety.

18

This analysis is incompatible with the ―some evidence‖ standard, and

misapplies the holdings of Lawrence, Gaul, and Aguilar. While the evidence

supporting a parole unsuitability finding must be probative of the inmate‘s current

dangerousness, it is not for the reviewing court to decide which evidence in the

record is convincing. (Lawrence, supra, 44 Cal.4th at pp. 1204, 1212.) Only

when the evidence reflecting the inmate‘s present risk to public safety leads to but

one conclusion may a court overturn a contrary decision by the Board or the

Governor. In that circumstance the denial of parole is arbitrary and capricious,

and amounts to a denial of due process. (Id. at pp. 1204-1205.) It is true that often

the most recent evidence as to the inmate‘s level of insight will be particularly

probative on the question of the inmate‘s present dangerousness, but that is not

necessarily the case. If the newest evidence is unreliable or insubstantial, the

parole authority is not bound to accept it. Usually the record that develops over

successive parole hearings has components of the same kind: CDCR reports,

psychological evaluations, and the inmate‘s statements at the hearings. In such

cases, the Board or the Governor may not arbitrarily dismiss more recent evidence

in favor of older records when assessing the inmate‘s current dangerousness. That

is what Lawrence, Gaul, and Aguilar stand for. (Lawrence, at pp. 1223-1224;

Gaul, supra, 170 Cal.App.4th at pp. 38-39; Aguilar, supra, 168 Cal.App.4th at p.

1490.)

This is not such a case. Petitioner decided to limit the evidence available to

the Board, by refusing to participate in an evaluation by a CDCR psychologist and

declining to speak to the Board on any matter of substance at his parole hearing.

The Board was unable to ask petitioner about the offense. It was also unable to

question him about his psychologist‘s report, the statement he prepared with

counsel, or his current state of mind. An inmate cannot make evidence in the

record ―evaporate[ ],‖ as the Court of Appeal majority curiously phrased it, by

19

pursuing such a strategy. Competent evidence does not evaporate. Its context

may change in light of subsequent developments, but it does not disappear. The

inmate is free to limit his participation in the process, but that choice cannot

restrict the scope of the Board‘s review of the evidence.

Here, the Board noted that petitioner had the right not to participate in the

hearing, but that as a consequence it was required to base its determination on

other evidence in the record. The parole regulations specify that ―[a] prisoner may

refuse to discuss the facts of the crime in which instance a decision shall be made

based on the other information available and the refusal shall not be held against

the prisoner.‖ (Cal. Code Regs., tit. 15, § 2236, italics added.)8 The Board‘s

consideration of ―other information‖ is not limited to recent information the

inmate has chosen to present. Nor does the Board hold a refusal to discuss the

crime against the inmate when it weighs the credibility of such information against

other evidence in the record. In determining whether an inmate may safely be

paroled, it is legitimate for the Board to take into account that the record

pertaining to the inmate‘s current state of mind is incomplete, and to rely on other

sources of information. An inmate who refuses to interact with the Board at a

parole hearing deprives the Board of a critical means of evaluating the risk to

public safety that a grant of parole would entail. In such a case, the Board must

take the record as it finds it.

Under the ―some evidence‖ standard of review, the parole authority‘s

interpretation of the evidence must be upheld if it is reasonable, in the sense that it

is not arbitrary, and reflects due consideration of the relevant factors. (Shaputis I,


8

Further references are to the parole Regulations found in title 15 of the

California Code of Regulations.

20

supra, 44 Cal.4th at p. 1258; see Lawrence, supra, 44 Cal.4th at pp. 1204-1205.)

Here, there is no claim that the Board neglected to consider any relevant factor.

Nor was it arbitrary for the Board to doubt the credibility of the documentary

evidence submitted by petitioner. The majority‘s attempts below to construe this

evidence favorably to petitioner reflect a fundamental failure to accord the Board‘s

decision the deference that the ―some evidence‖ standard was designed to provide.

(Rosenkrantz, supra, 29 Cal.4th at pp. 664-665.)

With regard to Dr. Stark‘s report, the Court of Appeal majority accepted

her conclusion that petitioner had no ―history of ‗unstable tumultuous

relationships,‘ ‖ because ―the sum of his relationships‖ was ―the relationship with

his wife and misconduct with his daughter while under the influence of alcohol.‖ 9

The majority also accepted Dr. Stark‘s conclusions that petitioner‘s account of the

crime, and his previous failure to demonstrate insight and remorse to the Board‘s

satisfaction, were attributable to inconsistencies in the investigative and judicial

proceedings that followed Erma‘s murder. However, as the Board noted, Dr.

Stark‘s assessment failed to acknowledge petitioner‘s substantial history of

abusing his first wife and his other three daughters. Furthermore, Dr. Stark failed

to identify any particular ―inconsistencies‖ except in regard to ―the logistics

regarding the firing of the gun during the index offense.‖

There is nothing inconsistent in the record on that point. The evidence at

petitioner‘s trial established that the revolver had safety features preventing an

accidental firing. The hammer had to be manually cocked, and the trigger firmly

pulled. In any event, petitioner has never claimed that he did not mean to pull the


9

A ―history of unstable or tumultuous relationships with others‖ is a parole

unsuitability factor. (Regs., § 2402, subd. (c)(3).)

21

trigger. He has claimed that he thought the gun was unloaded, without explaining

the open box of ammunition nearby. He has insisted he did not know his wife was

in the way, without explaining how he could have overlooked her presence only a

foot or two away.

The ―some evidence‖ standard requires only a modicum of support for the

Board‘s rejection of Dr. Stark‘s conclusions. This record amply provides such

support. In addition to the points noted above, we observe that on the question of

petitioner‘s understanding of the crime, Dr. Stark concluded: ―He has developed

over the years a consistent reality based view of his extremely destructive choices

due to unmet needs and being substance dependent. . . . He related his past

behavior was a need to make himself feel good and he behaved in a self-centered

manner to obtain those feelings that resulted in a tragedy that took his wife‘s life.

He spoke about his early need to be accepted and ended up in a death of his wife.‖

It would be an understatement to say that Dr. Stark‘s report leaves an analytical

gap between petitioner‘s self-centered behavior and early emotional needs, on the

one hand, and his shooting of Erma at close range, on the other.

The majority below also found that the written statement petitioner

submitted to the Board provided ―affirmative evidence that he had grown to

understand how his underlying character flaws, exacerbated by his alcohol abuse,

had produced his criminal conduct.‖ This generous reading of the statement

would have satisfied the ―some evidence‖ standard if the Board had found

petitioner suitable for parole. It fails to comport with the standard of review,

however, given the Board‘s finding of unsuitability.

In his written statement, petitioner did not discuss the murder at all.

Indeed, nowhere in the record is there a coherent account by petitioner of the

shooting and how or why it happened. Nowhere is his claim of accident

reconciled with the evidence found at the scene. Nowhere does he plausibly

22

explain why he waited at least an hour after the shooting before calling for help.10

Petitioner‘s statement also failed to address the charge that he had molested his

daughter, acknowledging only that he had ―abused . . . at least one of my

daughters.‖ In the statement, petitioner discussed his alcoholism, his ―low

morality,‖ his deep regret, and his determination not to ―again engage in such

terrible conduct.‖ However, the Board was left with no indication that petitioner

understood why he shot his wife, what he had done in the incidents of molestation,

or how his behavior affected his other daughters. A general recognition of moral

deficiency and alcohol abuse is insufficient to explain an entrenched pattern of

domestic abuse, child molestation, and a point-blank shooting. Indeed, the

statement petitioner prepared with the assistance of counsel is so vague about the

nature of his violent conduct that it might reasonably be deemed evasive.

Thus, just as the Board had grounds to doubt the reliability of Dr. Stark‘s

psychological report, it was also reasonable for the Board to be unpersuaded by

petitioner‘s written statement when it considered whether he had gained the

insight that was found to be lacking in the Shaputis I proceedings. (Shaputis I,

supra, 44 Cal.4th 1241.) Indeed, the same evidence that we found sufficient in

Shaputis I was sufficient here to meet the ―some evidence‖ standard, given the

lack of a reliable record of his current psychological state. When there is a

reasonable basis to conclude that the most recent evidence of an inmate‘s current


10

The only evidence reflecting an attempt to account for this delay is a police

report, read into the record at the hearing by the district attorney. When
confronted by a detective about the delay, petitioner ―stated that he ran around the
house after the gun went off, trying to find the telephone.‖ The district attorney
noted that petitioner had lived in his house for 23 years. When the detective asked
why he had not gone to the neighbor‘s to report the incident, petitioner ―stated he
couldn‘t find the front door.‖

23

dangerousness is less trustworthy than other evidence, a reviewing court must

defer to the parole authority‘s evaluation of the record.

As noted in Rosencrantz, the ― ‗some evidence‘ standard is extremely

deferential,‖ and cannot be equated with the substantial evidence standard of

review. (Rosenkrantz, supra, 29 Cal.4th at p. 665.) Nevertheless, it may be stated

in terms parallel to that more familiar standard: When reviewing a parole

unsuitability determination by the Board or the Governor, a court must consider

the whole record in the light most favorable to the determination before it, to

determine whether it discloses some evidence — a modicum of evidence —

supporting the determination that the inmate would pose a danger to the public if

released on parole. (Cf. Jackson v. Virginia (1979) 443 U.S. 307, 318–320;

People v. Johnson (1980) 26 Cal.3d 557, 578.) The court may not, as the Court of

Appeal majority did here, substitute its own credibility determination for that of

the parole authority. (Cf. Jackson, supra, at pp. 318-319; Johnson, supra, at p.

576.) Any relevant evidence that supports the parole authority‘s determination is

sufficient to satisfy the ―some evidence‖ standard. (See Jackson, supra, at p.

320.)11


11

Our concurring colleague suggests that ―some evidence‖ review is

restricted to evidence actually relied upon by the Board or the Governor. (Conc.
opn. of Liu, J., post, at pp. 4-5.) However, nothing in the requirement that a parole
denial be accompanied by a ―statement of [] reasons‖ demands that the parole
authority comprehensively martial the evidentiary support for its reasons. (In re
Sturm
(1974) 11 Cal.3d 258, 272.) It is axiomatic that appellate review for
sufficiency of the evidence extends to the entire record, and is not limited to facts
mentioned in a trial court‘s statement of decision, for instance. (See In re
Marriage of Schmir
(2005) 134 Cal.App.4th 43, 49-50; Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 8:48, p. 8-
22.)


(footnote continued on next page)



24

We urge the Courts of Appeal to bear in mind that while the ―some

evidence‖ standard ―certainly is not toothless‖ (Lawrence, supra, 44 Cal.4th at p.

1210), and ―must be sufficiently robust to reveal and remedy any evident

deprivation of constitutional rights‖ (id. at p. 1211), it must not operate so as to

―impermissibly shift the ultimate discretionary decision of parole suitability from

the executive branch to the judicial branch‖ (id. at p. 1212). Under the framework

established by legislation and initiative measure, the Board is given initial

responsibility to determine whether a life prisoner may safely be paroled. (Pen.

Code, § 3040.) The Governor is granted de novo review of the Board‘s decision,

and is free to make his or her own determination, based on the same factors the

Board must consider. (Cal. Const., art. V, § 8, subd. (b).)

Although, as we made clear in Lawrence, the ultimate conclusion on parole

suitability is subject to judicial review, that review is limited, and narrower in

scope than appellate review of a lower court‘s judgment. The ―some evidence‖

standard is intended to guard against arbitrary parole decisions, without



(footnote continued from previous page)



It is of course a matter of routine to review the evidence referenced in the

parole authority‘s decision. Because the ―some evidence‖ standard is easily
satisfied, that is usually sufficient for the reviewing court‘s purpose. But we have
never limited the scope of review to the evidence specified by the parole authority.
Indeed, this court has relied on evidence omitted from the decision below to
conclude that findings were not supported by ―some evidence.‖ (See Lawrence,
supra, 44 Cal.4th at pp. 1222-1226; Rosenkrantz, supra, 29 Cal.4th at pp. 680-
681.) It would be a perversion of the deferential ―some evidence‖ standard if a
reviewing court were permitted go beyond the evidence mentioned by the parole
authority to conclude that a finding lacks evidentiary support, but forbidden from
doing so to confirm that a finding is supported by the record.


25

encroaching on the broad authority granted to the Board and the Governor.

(Lawrence, supra, 44 Cal.4th at pp. 1204-1205, 1212; Rosenkrantz, supra, 29

Cal.4th at pp. 664-665.) When, as in this case, the parole authority declines to

give credence to certain evidence, a reviewing court may not interfere unless that

determination lacks any rational basis and is merely arbitrary.

B. Petitioner’s Due Process Claims

Petitioner contends the Board‘s denial of parole based on his lack of insight

deprived him of due process because (1) even if he had denied guilt altogether, he

could not be found unsuitable for parole on that basis; (2) ―an aging inmate‘s

honest but deteriorating recollection of past events is at best immutable,‖ and

therefore ―parole would be interminably denied on that basis, converting a

sentence for second degree murder to life without the possibility of parole‖; and

(3) the Board‘s reasoning would require petitioner to fabricate facts he does not

recall in order to obtain parole. These claims have no merit.

Penal Code section 5011, subdivision (b) states: ―The Board of Prison

Terms shall not require, when setting parole dates, an admission of guilt to any

crime for which an inmate was committed.‖ Petitioner does not deny his guilt, so

this provision has no application here. It may be that when a denial of guilt is the

only evidence of an inmate‘s lack of insight, and the denial is plausible, parole

may not be denied on that basis. (See In re Jackson (2011) 193 Cal.App.4th 1376,

1389-1391, discussing cases.) That question is not before us. We note, however,

that an implausible denial of guilt may support a finding of current dangerousness,

without in any sense requiring the inmate to admit guilt as a condition of parole.

In such a case it is not the failure to admit guilt that reflects a lack of insight, but

the fact that the denial is factually unsupported or otherwise lacking in credibility.

Here, petitioner‘s lack of insight was established by a variety of factors:

the 2004 and 2005 psychological reports discussed in Shaputis I, supra, 44 Cal.4th

26

at pages 1250-1252; his own statements about the shooting, which failed to

account for the facts at the scene or to provide any rational explanation of the

killing; his inability to acknowledge or explain his daughter‘s charge that he had

raped her; and his demonstrated failure to come to terms with his long history of

domestic violence in any but the most general terms.

Petitioner‘s contention that his inability to recall the circumstances of the

crime is an immutable factor, and that he would be required to engage in

fabrication to show insight, finds no support in the record. He did not claim in his

written statement that he could not remember the crime. He merely said, ―I do not

have a vivid recollection of all of my previous conduct.‖ His retained

psychologist did not detect any deficit in his memory. To the contrary, Dr. Stark

reported that when she interviewed petitioner ―[h]is thinking was rational, logical

and coherent. . . . He presented as average to above average in functioning. . . .

His memory was intact. Both remote and recent memories were intact. . . . There

were no signs of a thought disorder. His judgment and insight appeared to be

within normal limits. In general his presentation was sincere and straightforward.‖

(Italics added.) Thus, it does not appear that petitioner‘s memory presented any

obstacle to his ability to demonstrate that he had gained insight into his criminal

behavior.

We note as well that, as in Shaputis I, the Board‘s decision was not based

solely on petitioner‘s lack of insight, but also on the nature of the murder and

petitioner‘s long history of domestic violence. (Shaputis I, supra, 44 Cal.4th at pp.

1259-1260.) Petitioner finds himself incarcerated because of his criminal conduct.

That conduct, as well as his level of insight and acceptance of responsibility,

remains a crucial aspect of the determination whether he may safely be paroled.

27

C. The Insight Factor

We turn now to broader concerns about the use of an inmate‘s degree of

insight into his or her criminal behavior as a factor in parole suitability

determinations. The majority below noted that before we decided Lawrence and

Shaputis I, most parole denials by the Board and the Governor were based on the

gravity of the commitment offense. (See Lawrence, supra, 44 Cal.4th at p. 1206.)

After Lawrence, which held that the circumstances of the offense justify a denial

of parole only if they support the ultimate conclusion that the inmate continues to

pose an unreasonable risk to public safety (id. at p. 1221), and Shaputis I, which

held that petitioner‘s failure to gain insight into his antisocial behavior was a

factor supporting denial of parole (Shaputis I, supra, 44 Cal.4th at p. 1260), a great

many parole denials have focused on the inmate‘s lack of insight. Other Courts of

Appeal have noted this development. (See, e.g., In re Rodriguez (2011) 193

Cal.App.4th 85, 97; In re Gomez (2010) 190 Cal.App.4th 1291, 1308; In re Powell

(2010) 188 Cal.App.4th 1530, 1539.)

Here, the Court of Appeal majority commented that the increased reliance

on lack of insight as a factor ―is likely attributable to the belief of parole

authorities‖ that it ―is more likely than any other factor to induce the courts to

affirm the denial of parole.‖ That assertion is inappropriate. While it is not

unusual for courts to ―struggle[] to strike an appropriate balance between

deference to the Board and the Governor and meaningful review of parole

decisions‖ (Lawrence, supra, 44 Cal.4th at p. 1206), speculation regarding ulterior

motives on the part of the parole authorities has no proper place in a judicial

opinion. Moreover, it is not unusual for administrative determinations to follow

the standards set out in controlling judicial opinions. The Lawrence and Shaputis I

decisions reoriented the focus of parole suitability review, making it clear that the

inmate‘s current dangerousness is the crucial determination. We discouraged

28

narrow reliance on the circumstances of the commitment offense, untethered to

considerations of the inmate‘s present risk to public safety, including the inmate‘s

current state of mind. (Lawrence, supra, 44 Cal.4th at pp. 1219-1221; Shaputis I,

supra, 44 Cal.4th at pp. 1259-1260.) In the wake of those opinions, it is not

surprising that the parole authorities have given greater attention to the inmate‘s

degree of insight.

It is the job of a reviewing court to proceed case by case, examining each

record and applying the deferential ―some evidence‖ standard to the parole

determination before it. Of course judges are not blind to recurring features of the

cases that come before them. They may properly be skeptical of stated reasons

that appear to be unsupported by the record. Yet considerations of judicial

restraint and comity between the executive and judicial branches counsel against

including mere suspicions in the court‘s opinion. (But see Rosenkrantz, supra, 29

Cal.4th at p. 684 [admissible evidence that a parole decision was made in

accordance with a blanket policy may properly be considered in determining

whether due process was satisfied].)

The majority below also reasoned that ―lack of insight‖ is not among the

factors in the regulations governing unsuitability for parole, that it is a more

subjective consideration than the regulatory factors, and that ―a statement that an

inmate ‗lacks insight‘ appears to be stating a conclusion drawn from other

evidence rather than being evidence itself.‖ These observations are off the mark.

Consideration of an inmate‘s degree of insight is well within the scope of the

parole regulations. The regulations do not use the term ―insight,‖ but they direct

the Board to consider the inmate‘s ―past and present attitude toward the crime‖

(Regs., § 2402, subd. (b)) and ―the presence of remorse,‖ expressly including

indications that the inmate ―understands the nature and magnitude of the offense‖

29

(Regs., § 2402, subd. (d)(3)). These factors fit comfortably within the descriptive

category of ―insight.‖

In Lawrence, we observed that ―changes in a prisoner‘s maturity,

understanding, and mental state‖ are ―highly probative . . . of current

dangerousness.‖ (Lawrence, supra, 44 Cal.4th at p. 1220.) In Shaputis I, we held

that this petitioner‘s failure to ―gain insight or understanding into either his violent

conduct or his commission of the commitment offense‖ supported a denial of

parole. (Shaputis I, supra, 44 Cal.4th at p. 1260.) Thus, we have 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.

(Lawrence, at p. 1227; see also Shaputis I, at p. 1261, fn. 20.)

We note that the regulatory suitability and unsuitability factors are not

intended to function as comprehensive objective standards. The regulations state

that the factors ―are set forth as general guidelines; the importance attached to any

circumstance or combination of circumstances in a particular case is left to the

judgment of the panel.‖ (Regs., § 2402, subds. (c) & (d).) The parole authority is

required to consider ―all relevant, reliable information‖ that ―bears on the

prisoner‘s suitability for release.‖ (Regs., § 2402, subd. (b).) Accordingly, the

inmate‘s insight into not just the commitment offense, but also his or her other

antisocial behavior, is a proper consideration.

As for the Court of Appeal majority‘s comments that insight is a

particularly subjective factor, amounting to a conclusion drawn from other

evidence, we note that a finding on insight is no more subjective or conclusory

than a finding on the inmate‘s ―past and present mental state.‖ (Regs., § 2402,

subd. (b).) Furthermore, it has long been recognized that a parole suitability

decision is an ―attempt to predict by subjective analysis whether the inmate will be

30

able to live in society without committing additional antisocial acts.‖

(Rosenkrantz, supra, 29 Cal.4th at p. 655; see In re Sturm (1974) 11 Cal.3d 258,

266.) Past criminal conduct and current attitudes toward that conduct may both be

significant predictors of an inmate‘s future behavior should parole be granted.

(Lawrence, supra, 44 Cal.4th at p. 1213; Shaputis I, supra, 44 Cal.4th at pp.

1259-1260.)

It bears emphasis that while ―subjective analysis‖ is an inherent aspect of

the parole suitability determination, it plays a proper role only in the parole

authority’s determination. (Rosenkrantz, supra, 29 Cal.4th at p. 655.) The courts‘

function is one of objective review, limited to ensuring that the Board‘s or

Governor‘s analysis of the public safety risk entailed in a grant of parole is based

on a modicum of evidence, not mere guesswork. (Lawrence, supra, 44 Cal.4th at

p. 1213.) It is the parole authority‘s duty to conduct an individualized inquiry into

the inmate‘s suitability for parole.12 (Lawrence, at p. 1219.) The courts consider

only whether some evidence supports the ultimate conclusion that the inmate

poses an unreasonable risk to public safety if released. (Id. at p. 1221.)

The majority below correctly observed 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. (Lawrence, supra, 44 Cal.4th at

p. 1210.) However, it is noteworthy that lack of insight pertains to the inmate‘s

current state of mind, unlike the circumstances of the commitment offense, the

12

As we have noted, the insight factor calls for particularly individualized

consideration: ―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.‖ (Shaputis I, supra, 44 Cal.4th at p.
1260, fn. 18.)

31

factor primarily at issue in Lawrence. (See Lawrence, at p. 1191.) Thus, insight

bears more immediately on the ultimate question of the present risk to public

safety posed by the inmate‘s release. Moreover, insight, unlike the circumstances

of the offense, may change over time. (See Lawrence, at pp. 1218-1220.)

Therefore, the most recent evidence of the inmate‘s degree of insight will usually

bear most closely on the parole determination, although as discussed in part II.A.,

ante, this is not necessarily so. This case is an example of the Board‘s proper

reliance on older evidence in the record, and of the disadvantages that may follow

from an inmate‘s decision not to testify at a parole hearing or otherwise cooperate

in the development of current information regarding his or her mental state.

Petitioner, in his brief before this court, goes a good deal further than the

majority opinion below, and contends that lack of insight plays no proper role in

determining suitability for parole. Citing a number of reports in psychological,

psychiatric, and criminological journals, he claims that experts disagree on the

meaning of a subject‘s insight, that judgments of insight reached without

―empirically validated measures‖ have no value in predicting recidivism, and that

―major studies‖ have found no relationship between insight into past behavior and

future violence. Thus, petitioner asserts that lack of insight can never be deemed

―some evidence‖ that an inmate poses an unreasonable risk to public safety. These

arguments fail.

In the first place, it is not a judicial function to weigh conflicting views in

the social or psychological sciences for the purpose of developing rules binding on

the executive branch. Petitioner‘s arguments on the efficacy of insight as a

predictor of future violence would be more appropriately presented to the

Legislature, or to the Board in its rulemaking capacity. (See Pen. Code, §§ 3041,

subd. (a) & 3052.) As discussed above, the current parole regulations firmly

32

support consideration of an inmate‘s insight into his or her criminal behavior as a

relevant factor.

These considerations aside, it is difficult to imagine that the Board and the

Governor should be required to ignore the inmate‘s understanding of the crime and

the reasons it occurred, or the inmate‘s insight into other aspects of his or her

personal history relating to future criminality. Rational people, in considering the

likely behavior of others, or their own future choices, naturally consider past

similar circumstances and the reasons for actions taken in those circumstances.

Petitioner‘s argument that the inmate‘s insight should play no role in parole

suitability determinations flies in the face of reason.

D. Summary of Principles Governing Review of Parole Decisions

We are well aware that the Court of Appeal below was not alone in its

confusion about the proper scope of review. Uncertainty is reflected in numerous

Court of Appeal decisions reviewing parole suitability determinations.

Accordingly, we briefly summarize the relevant considerations:

1. The essential question in deciding whether to grant parole is whether the

inmate currently poses a threat to public safety.

2. That question is posed first to the Board and then to the Governor, who

draw their 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.

3. The inmate has a right to decline to participate in psychological

evaluation and in the hearing itself. That decision may not be held against the

inmate. Equally, however, it may not limit the Board or the Governor in their

evaluation of all the evidence.

4. Judicial review is conducted under the highly deferential ―some

evidence‖ standard. The executive decision of the Board or the Governor is

33

upheld unless it is arbitrary or procedurally flawed. The court reviews the entire

record to determine whether a modicum of evidence supports the parole suitability

decision.

5. The reviewing court does not ask whether the inmate is currently

dangerous. That question is reserved for the executive branch. Rather, the court

considers whether there is a rational nexus between the evidence and the ultimate

determination of current dangerousness. The court is not empowered to reweigh

the evidence.

III. DISPOSITION

We reverse the judgment of the Court of Appeal.

CORRIGAN, J.

WE CONCUR:


CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.



34










CONCURRING OPINION BY WERDEGAR, J.




I concur in the majority opinion, with the exception of footnote 11 on pages

24-25. Because the issue addressed there is not before the court, and the

majority‘s comments are unnecessary to the resolution of the case, I would await a

future case specifically posing that issue.

WERDEGAR, J.

1










CONCURRING OPINION BY CHIN, J.




I dissented in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence). I

believed then, and still believe, the majority opinion in that case was ill-

considered. Lawrence is largely responsible for the confusion in the Courts of

Appeal that today‘s opinion seeks to ameliorate. However, my view in Lawrence

did not prevail, and I now accept the majority view. For this reason, I concur

entirely in this case.

CHIN, J.

1










CONCURRING OPINION BY LIU, J.

As today‘s opinion explains, the Court of Appeal was incorrect to conclude

that earlier evidence of lack of insight had ―evaporated‖ in light of more recent

psychological reports, particularly when petitioner declined to be interviewed by

the psychologist appointed by California Department of Corrections and

Rehabilitation (CDCR) and to speak to the Board of Parole Hearings (Board)

about his commitment offense or his social history. ―[A]n inmate who restricts the

Board‘s access to current information is in no position to complain about the

Board‘s reliance on other relevant evidence.‖ (Maj. opn., ante, at p. 2.)

The court‘s opinion today goes beyond this holding in an effort to clarify

the ―some evidence‖ standard of review and to provide guidance regarding lack of

insight as a suitability factor. The court‘s commentary on both issues prompts me

to offer some additional remarks.

I. PAROLE DECISIONS AND THE “SOME EVIDENCE” STANDARD

In light of the Court of Appeal‘s overreaching in this case, today‘s decision

correctly emphasizes that judicial review of Board decisions is deferential:

―While the evidence supporting a parole unsuitability finding must be probative of

the inmate‘s current dangerousness, it is not for the reviewing court to decide

which evidence in the record is convincing.‖ (Maj. opn., ante, at p. 19 [citing In

re Lawrence (2008) 44 Cal.4th 1181, 1204, 1212 (Lawrence)].) As we observed

in Lawrence, ― ‗[r]esolution of any conflicts in the evidence and the weight to be

1

given the evidence are within the authority of the Board.‘ ‖ (Lawrence, 44 Cal.4th

at p. 1204, quoting In re Rosenkrantz, 29 Cal.4th 616, 656.) More broadly, we

have explained that judicial review of parole decisions under the ―some evidence‖

standard must be highly deferential so that it does not ―impermissibly shift the

ultimate discretionary decision of parole suitability from the executive branch to

the judicial branch.‖ (44 Cal.4th at p. 1212.)

The emphasis on judicial deference is part of the court‘s effort to

summarize the principles governing judicial review of parole decisions. (Maj.

opn, ante, at pp. 32-33.) Because today‘s opinion focuses on the obligations of

reviewing courts, I think it useful and complementary to summarize a few

principles governing the Board‘s obligations as well.

As we have repeatedly said, the parole statute and regulations put the onus

on the Board to justify denial of parole: ― ‗[T]he governing statute provides that

the Board must grant parole unless it determines that public safety requires a

lengthier period of incarceration for the individual because of the gravity of the

offense underlying the conviction. (Pen. Code, § 3041, subd. (b).) And as set

forth in the governing regulations, the Board must set a parole date for a prisoner

unless it finds, in the exercise of its judgment after considering the circumstances

enumerated in section 2402 of the regulations, that the prisoner is unsuitable for

parole. Accordingly, parole applicants in this state have 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.‘ (Rosenkrantz, supra, 29 Cal.4th at p. 654, italics added; see also In

re Smith (2003) 114 Cal.App.4th 343, 366 [‗parole is the rule, rather than the

exception‘].)‖ (Lawrence, 44 Cal.4th at p. 1204.)

In light of this basic statutory obligation to grant parole unless public safety

is at risk, we have held that the Board, as a matter of due process, has a duty to

2

provide ―a definitive written statement of its reasons for denying parole.‖ (In re

Sturm (1974) 11 Cal.3d 258, 272.) The requirement of a definitive written

statement of reasons serves two functions. First, it serves to ―adequately inform

the inmate‖ of the reasons for the denial (ibid.) so that the inmate is given a fair

opportunity to make the life changes necessary to be considered suitable for parole

in the future. Second, the requirement fulfills the ―mandate that a basis for

administrative action must be set forth with sufficient clarity as to be

understandable‖ so as ―to afford an adequate basis for judicial review.‖ (Ibid.)

Although the Board is not required to ―comprehensively martial the evidentiary

support for its reasons‖ (maj. opn, ante, at p. 24, fn. 11), it is required to point to

evidence in the record that supports its reasoning. Otherwise, the statement of

reasons would be conclusory and would fail to concretely inform the prisoner and

the reviewing court of the Board‘s decisionmaking process.

The Board‘s obligation to provide a definitive written statement of reasons

for denying parole shapes the nature of judicial review. As we said in Lawrence,

the task of reviewing courts is to ―determine whether the facts relied upon by the

Board or the Governor support the ultimate decision that the inmate remains a

threat to public safety‖ (Lawrence, supra, 44 Cal.4th at p. 1213) and specifically

to determine whether the Board‘s or the Governor‘s decision includes ―reasoning

establishing a rational nexus‖ between identified unsuitability factors and current

dangerousness (id. at p. 1210). In other words, the focus of judicial review is on

the rationality of the Board‘s or the Governor‘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.

Today‘s opinion says that ―[t]he court reviews the entire record to

determine whether a modicum of evidence supports the parole suitability decision‖

(maj. opn., ante, at p. 33) and that ―[o]nly when the evidence reflecting the

3

inmate‘s present risk to public safety leads to but one conclusion [i.e.,

nondangerousness] may a court overturn a contrary decision by the Board or the

Governor‖ (id. at p. 19). (See also id. at p. 24 [―a court must consider the whole

record in the light most favorable to the determination before it, to determine

whether it discloses some evidence‖ supporting the denial of parole].) Although

these statements properly underscore the deferential nature of judicial review, I do

not understand today‘s opinion to contravene the principle that the reviewing

court‘s primary focus is on the ―facts‖ and ―reasoning‖ relied on by the Board

(Lawrence, supra, 44 Cal.4th at pp. 1210, 1213). If that were not the case, at least

three problems would arise.

First, judicial review would not serve to enforce the Board‘s obligation to

provide ―a definitive written statement of its reasons for denying parole.‖ (Sturm,

supra, 11 Cal.3d at p. 272.) Second, judicial review would run the risk of

―impermissibly shift[ing] the ultimate discretionary decision of parole suitability

from the executive branch to the judicial branch.‖ (Lawrence, supra, 44 Cal.4th at

p. 1212.) Third, judicial review would not serve to ―ensure that the Board and the

Governor have complied with the statutory mandate and have acted within their

constitutional authority.‖ (Id. at p. 1213.) For how can a court determine whether

a parole ―decision reflects due consideration of the specified factors as applied to

the individual prisoner in accordance with applicable legal standards‖

(Rosenkrantz, supra, 29 Cal.4th at p. 677) unless judicial review focuses on the

Board‘s or the Governor‘s actual decisionmaking?

Given these concerns, it is no surprise that our consistent practice has been

to examine the evidence and reasoning on which the Board or the Governor

actually relied. (See, e.g., Lawrence, supra, 44 Cal.4th at pp. 1221-1227; In re

Shaputis (2008) 44 Cal.4th 1241, 1258-1260 (Shaputis I); In re Dannenberg

(2005) 34 Cal.4th 1061, 1095; Rosenkrantz, supra, 29 Cal.4th at pp. 678-683.) In

4

undertaking that inquiry, we have been mindful of the deference owed to the

Board‘s and the Governor‘s authority. And, as explained in part II below, we have

considered the entire record for the purpose of determining whether the evidence

on which the Board or the Governor relied rationally supports a finding of current

dangerousness in the context of all other evidence that the Board or the Governor

is obligated to consider. But reviewing courts have not upheld the parole

authority‘s decision based on evidence substantially different from that on which

the authority actually relied.

While the court is correct that ―some evidence‖ review is more deferential

than the substantial evidence standard used to review criminal jury verdicts (maj.

opn, ante, at p. 24.), it is also a more focused form of judicial review. Unlike the

Board, a jury is not required to give ―a definitive written statement of its reasons‖

(Sturm, supra, 11 Cal.3d at p. 272) for a verdict, and the reasons for protecting the

sanctity and secrecy of jury deliberations (see, e.g., People v. Cleveland (2001) 25

Cal.4th 466, 475) have no applicability to the Board. Given these differences,

appellate review of jury verdicts properly examines what evidence and inferences

a rational factfinder could have relied on, while judicial review of parole decisions

properly examines what evidence and inferences the Board did rely on. At the

same time, a jury verdict must be supported by evidence substantial enough to

support a finding of guilt beyond a reasonable doubt, while a parole denial need

only be supported by some evidence that is rationally indicative of current

dangerousness.

Further, although appellate review of trial court decisions for sufficiency of

the evidence ―extends to the entire record, and is not limited to facts mentioned in

[the] statement of decision‖ (maj. opn., ante, at p. 24, fn.11), that is because what

matters to an appellate court is the lower court‘s judgment, i.e., whether its

ultimate determination regarding guilt or liability was correct. Judicial review in

5

the parole context examines the rationality of the parole authority‘s decision, an

inquiry that properly focuses on the authority‘s reasoning, including the evidence

cited by the authority in support of its reasoning.

II. LACK OF INSIGHT

As mentioned above, an important dimension of the rationality required of

parole decisions is that the Board or the Governor must offer ―reasoning

establishing a rational nexus‖ between identified unsuitability factors and current

dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1210.) We applied that

requirement in Lawrence to hold that the Governor may rely on the circumstances

of the commitment offense to establish parole unsuitability ―if, and only if, those

circumstances are probative of the determination that a prisoner remains a danger

to the public.‖ (Id. at p. 1212.) We explained that according talismanic

significance to the circumstances of the commitment offense or any other

unsuitability factor would be ―inconsistent with the statutory mandate that the

Board and the Governor consider all relevant statutory factors when evaluating an

inmate‘s suitability for parole.‖ (Id. at pp. 1191, 1212 [―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.‖].) In Lawrence, we

invalidated the Governor‘s decision to deny parole because his reliance on the

circumstances of the commitment offense to establish unsuitability lacked any

―articulation of a rational nexus between those facts and current dangerousness‖ in

light of the inmate‘s rehabilitative gains. (Id. at p. 1227.)

Today‘s decision acknowledges 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.‖ (Maj. opn., ante, at p. 30, citing Lawrence,

44 Cal.4th at p. 1210.) We do not hold today—nor did we hold in Shaputis I,

6

where we first recognized lack of insight as an unsuitability factor (44 Cal.4th at p.

1255)—that some evidence of lack of insight into past criminal behavior

necessarily means there is some evidence of current dangerousness. There are

good reasons to resist such a holding.

First, as the court acknowledges, older evidence of lack of insight may be

eclipsed by more recent evidence: ―Usually the record that develops over

successive parole hearings has components of the same kind: CDCR reports,

psychological evaluations, and the inmate‘s statements at the hearings. In such

cases, the Board or the Governor may not arbitrarily dismiss more recent evidence

in favor of older records when assessing the inmate‘s current dangerousness.‖

(Maj. opn., ante, at p. 30.) In Lawrence, for example, we rejected the Governor‘s

suggestion that the petitioner continued to pose a danger due to serious psychiatric

problems, concluding that the Governor‘s position was based on earlier,

superseded psychological evaluations. (Lawrence, supra, 44 Cal.4th at pp. 1223-

1224.) Courts may properly intervene when the Board or the Governor rely on

outdated evidence of lack of insight in denying parole. (See In re Gomez (2010)

190 Cal.App.4th 1291, 1308-1309; In re Twinn (2010) 190 Cal.App.4th 447, 468-

469.)

Second, even recent evidence of lack of insight does not necessarily mean

there is some evidence the inmate is currently dangerous. This 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. But even in cases not involving incapacity, our Courts of Appeal have

recognized that lack of insight is not invariably linked to current dangerousness.

The term ―lack of insight‖ in the parole context appears to refer broadly to

inmates with one of two types of deficiencies: (1) to inmates who deny

committing the crime for which they were convicted or deny the official version of

7

the crime; and (2) to inmates who admit their crime but are regarded as having an

insufficient understanding of the causes of their criminal conduct.

In the first category, some courts have reversed parole denials that were

based solely on the inmate‘s denial of culpability for the offense. In In re Palermo

(2009) 171 Cal.App.4th 1096, for example, the inmate maintained that he

accidentally shot his former girlfriend, not knowing the gun was loaded, and was

only guilty of manslaughter. The state argued that the killing was intentional, and

he was convicted of second degree murder. The court, in reversing the Board‘s

denial, noted his record as a model prisoner and the fact that he was consistently

remorseful for the shooting, even though he continued to maintain it was

accidental. The court also observed that under Penal Code section 5011,

subdivision (b), ―[t]he Board is precluded from conditioning a prisoner‘s parole on

an admission of guilt.‖ The court reasoned that ―defendant‘s version of the

shooting of the victim was not physically impossible and did not strain credulity

such that his denial of an intentional killing was delusional, dishonest, or

irrational. And, unlike . . . in . . . Shaputis [I] . . . , defendant accepted ‗full

responsibility‘ for his crime and expressed complete remorse . . . . Under these

circumstances, his continuing insistence that the killing was the unintentional

result of his foolish conduct (a claim which is not necessarily inconsistent with the

evidence) does not support the Board‘s finding that he remains a danger to public

safety.‖ (Palermo, supra, 171 Cal.App.4th at p. 1112; see also In re Jackson

(2011) 193 Cal.App.4th 1376, 1391; In re McDonald (2010) 189 Cal.App.4th

1008, 1023.)

In other cases, courts have reversed parole denials that were based on an

inmate‘s insufficient understanding of the causes of his or her criminal conduct.

In In re Roderick (2007) 154 Cal.App.4th 242 (Roderick), for example, the inmate

was convicted of second degree murder and had an extensive criminal history,

8

partly related to his alcoholism. (Id. at pp. 248-251.) His record of rehabilitation

was impressive, and a long string of psychological reports concluded that he posed

no more danger to the public than the average person. (Id. at p. 271.) Yet the

reports also found that he lacked any in-depth understanding of the causes of his

criminal activity other than recognizing its connection to alcoholism and

describing such activity as ―stupid.‖ (Ibid.) While acknowledging that the

inmate‘s responses ―were unsophisticated and lacked analytical depth,‖ the court

posed the question ―whether his inability to articulate a more insightful

explanation as to why he committed multiple crimes [is] some evidence that

Roderick poses a danger to public safety?‖ (Ibid.) The court concluded it was

not: ―Roderick provided a less than incisive explanation for his chronic

criminality, but his responses also reflected acceptance of his alcoholism,

acknowledgement of responsibility for his crimes, remorse, and shame. Ignoring

the unanimous clinical evidence to the contrary presented by trained experts —

since 1999 all psychological reports conclude he would pose no more danger to

society than the average citizen — the Panel‘s arbitrary pronouncement that

Roderick‘s limited insight poses an unreasonable risk to public safety cannot be

considered some evidence to support a denial of parole.‖ (Id. at p. 272; see also In

re Ryner (2011) 196 Cal.App.4th 533, 548-549 (Ryner) [no evidence of current

dangerousness in model prisoner notwithstanding comment in the psychological

report that his insight into his criminal behavior was ―weak‖].)

Of course, common sense suggests that lack of insight into past criminal

behavior may be probative of current dangerousness, and the court properly rejects

petitioner‘s argument, ostensibly based on social science research, that no such

link exists. Although the social science literature does not identify lack of insight

per se as one of the predictors of criminal recidivism, the term ―lack of insight‖ as

used by the Board and the Governor may encompass a number of attitudes or

9

behaviors associated with criminal recidivism. For example, lack of remorse or

failure to accept responsibility for past criminal activity may be indicative of an

antisocial, psychopathic personality that is correlated with greater recidivism.

(See Andrews and Bonta, The Psychology of Criminal Conduct (2d ed. 1998) 301-

306.) At the same time, however, the social science literature does not support a

generalization that an inmate‘s lack of insight into the causes of past criminal

activity or failure to admit the official version of the commitment offense is itself a

reliable predictor of future dangerousness. (See id. at pp. 211-248.) The

significance of lack of insight to current dangerousness must be assessed and

articulated by the Board or the Governor case by case.

When the Board undertakes this assessment, its conclusion that a life

prisoner is currently dangerous and therefore should be denied parole ―must be

supported by some evidence, not merely by a hunch or intuition.‖ (Lawrence,

supra, 44 Cal.4th at p. 1213, italics in original.) In cases where psychological

evaluations consistently indicate that an inmate poses a low risk of danger to

society, a contrary conclusion must be based on more than a hunch or mere belief

that he should gain more insight into his past behavior. The Board must point to

evidence from which it is reasonable to infer that the inmate‘s lack of insight

reveals a danger undetected or underestimated in the psychological reports. (See

Roderick, supra, 154 Cal.App.4th at pp. 271-72; cf. Lawrence, 44 Cal.4th at pp.

1226-1227 [invalidating parole denial because Governor failed to articulate how

circumstances of the commitment offense remained probative of current

dangerousness given overwhelming evidence of the inmate‘s rehabilitation].)

Moreover, the Board may not deny parole simply because the prisoner

refuses to admit to the official version of the commitment offense. Such an

automatic denial would squarely violate Penal Code section 5011, subdivision (b).

An inmate‘s refusal to admit his or her crime can support parole denial ―if, and

10

only if, those circumstances are probative of the determination that a prisoner

remains a danger to the public‖ (Lawrence, supra, 44 Cal.4th at p. 1212), and it is

the Board‘s responsibility to provide an ―articulation of a rational nexus between

[the inmate‘s lack of insight] and current dangerousness‖ taking into account all

other evidence concerning parole suitability or unsuitability (id. at p. 1227).

Both this case and Shaputis I demonstrate how the Board may satisfy the

―rational nexus‖ requirement. In Shaputis I, the most current psychological report

prepared in 2005 concluded that petitioner posed a low risk of future violent

behavior if he maintained sobriety. (Shaputis I, supra, 44 Cal.4th at p. 1251.) But

other parts of the report called that conclusion into question: ―Dr. Silverstein was

concerned that petitioner planned to reside with his new wife (with whom he had

not previously resided) and observed that his violence tended to be ‗confined to

his family systems and [it is] difficult to assess how well extinguished his pattern

of domestic violence is[,] given that he has been confined for more than 18 years.‖

(Id. at p. 1252.) As we further observed: ―During the proceedings, the Board

referred to Dr. Silverstein‘s report, noting the report‘s observation that petitioner

found ‗inexplicable‘ his daughters‘ prior allegations of molestation and domestic

violence, that he had a flat affect when discussing these allegations, and that this

circumstance could be a sign of the schizoid tendencies noted in some previous

evaluations. The Board expressed concerns regarding petitioner‘s lack of insight

into his history of domestic violence and his alcoholism, and voiced the attendant

concern that he would present an unreasonable risk of danger to the public and to

his new wife.‖ (Ibid.) In other words, the Board and subsequently the Governor

went behind the report‘s conclusion that petitioner presented a low risk of violence

and found in the body of the report indications that this conclusion understated the

risk of violence he posed if released. We held this conclusion reasonable in light

of petitioner‘s historic pattern of domestic violence that had culminated in his

11

wife‘s murder. (Id. at p. 1260.) This holding came nowhere close to generalizing

that some evidence of lack of insight is necessarily some evidence of current

dangerousness, and our limited holding in the present case likewise offers no

support for such a sweeping conclusion.

Ultimately, lack of insight may be indicative of current dangerousness in

many cases, and today‘s decision may be correct that ―insight bears more

immediately on the ultimate question of the present risk to public safety posed by

the inmate‘s release‖ than the circumstances of the commitment offense. (Maj.

opn., ante, at p. 31.) But there is good reason to require the Board to articulate a

rational nexus between insight and dangerousness in each case, taking into account

all other evidence of suitability or unsuitability. As one Court of Appeal put it,

―one always remains vulnerable to a charge that he or she lacks sufficient insight

into some aspect of past misconduct even after meaningful self-reflection and

expressions of remorse.‖ (Ryner, supra, 196 Cal.App.4th at p. 548.) It is difficult

enough for ordinary law-abiding individuals to fully understand and explain all of

one‘s behaviors and motivations. One can only surmise that achieving such self-

understanding is at least as difficult for individuals who have committed violent

crimes. Precisely because lack of insight is such a readily available diagnosis, its

significance as an indicator of current dangerousness must be rationally articulated

under the individual circumstances of each case — lest ―lack of insight‖ become,

impermissibly, a new talisman with the potential to render almost all life inmates

unsuitable for parole. (See Lawrence, 44 Cal.4th at p. 1212 [emphasizing ―the

statute‘s directive that the Board shall normally set a parole release date ([Pen.

Code,] § 3041, subd. (a))‖], italics in original.)

LIU, J.

12

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Shaputis
__________________________________________________________________________________

Unpublished Opinion
XXX NP opn. filed 11/17/10 – 4th Dist., Div.1
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S188655
Date Filed: December 29, 2011
__________________________________________________________________________________

Court:
Superior
County: San Diego
Judge: Michael T. Smyth

__________________________________________________________________________________

Counsel:

Michael Evan Beckman; Law Office of Marc Elliot Grossman and Marc Elliot Grossman for Petitioner
Richard Shaputis.

Michael Satris; Daniel Broderick, Federal Defender (Eastern District of California) and Monica Knox,
Assistant Federal Defender, as Amici Curiae on behalf of Petitioner Richard Shaputis.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Manuel M. Medeiros, State Solicitor
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Anya M. Binsacca, Julie A. Malone and Charles Chung, Deputy Attorneys General, for Respondents
Warden James D. Hartley and the Board of Parole Hearings.

W. Scott Thorpe; Bonnie M. Dumanis, District Attorney (San Diego) and Richard J. Sachs, Deputy District
Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Respondents Warden
James D. Hartley and the Board of Parole Hearings.







Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael Evan Beckman
3452 Ocean Park Boulevard, Suite 107
Santa Monica, CA 90405
(310) 394-3138

Julie L. Garland
Assistant Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5500


Petition for review after the Court of Appeal granted relief on a petition for writ of habeas corpus. This case presents the following issue: Did the Court of Appeal err in setting aside the denial of parole by the Board of Parole Hearings?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 12/29/201153 Cal. 4th 192, 265 P.3d 253, 134 Cal. Rptr. 3d 86S188655Review - Habeas (criminal)rehearing petition filed

MACIAS (RAYMUNDO) ON H.C. (S189107)
ADAMAR (MICHAEL) ON H.C. (S190226)
LOVELESS (MICHAEL JAY) ON H.C. (S190625)
RUSSO (VINCENT) ON H.C. (S193197)


Parties
1Shaputis, Richard (Petitioner)
P.O. Box 9
Housing 350-1-09 L
Avenal, CA 93204

Represented by Michael Evan Beckman
Attorney at Law
3435 Ocean Park Boulevard, #107 PMB 477
Santa Monica, CA

2Shaputis, Richard (Petitioner)
P.O. Box 9
Housing 350-1-09 L
Avenal, CA 93204

Represented by Marc Elliot Grossman
Law Office of Marc E. Grossman
818 N. Mountain Avenue, Suite 111
Upland, CA

3Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Julie L. Garland
Office of the Attorney General
P.O. Box 85266
San Diego, CA

4Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Charles Chung
Office of the Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA

5Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by District Attorney - Los Angeles County
210 W. Temple Street, 18th Floor
210 W. Temple Street, 18th Floor
Los Angeles, CA

6Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Dane R. Gillette
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

7California District Attorneys Association (Amicus curiae)
Represented by W. Scott Thorpe
California District Attorneys Association
921 Eleventh Street, Suite 300
Sacramento, CA

8Federal Public Defender's Office for the Eastern District of California (Amicus curiae)
Represented by Monica Knox
Office of the Federal Public Defender
801 "I" Street, 3rd Floor
Sacramento, CA

9Law Office of Michael Satris (Amicus curiae)
Represented by Michael Satris
Attorney at Law
P.O. Box 337
Bolinas, CA


Opinion Authors
OpinionJustice Carol A. Corrigan
ConcurJustice Goodwin Liu, Justice Kathryn M. Werdegar, Justice Ming W. Chin

Disposition
Dec 29 2011Opinion: Reversed

Dockets
Dec 3 2010Received premature petition for review
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Charles Chung  
Dec 3 2010Petition for review filed
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Charles Chung   CRC 8.25(b)
Dec 13 2010Record requested
 
Dec 15 2010Received Court of Appeal record
  one doghouse
Jan 24 2011Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including March 3, 2011, or the date upon which review is either granted or denied.
Feb 16 2011Petition for review granted
  Votes: Cantil-Sakauye, C.J., Baxter, Werdegar, Chin, and Corrigan, JJ.
Mar 9 2011Filed:
  Request to Expedite Review and to Permit Parole Board to Comply with Court of Appeals Order Richard Shaputis, Petitioner Marc Elliot Grossman, Retained Counsel
Mar 10 2011Request for extension of time filed
  counsel for respondent requests a 31-day extension of time to April 18, 2011, to file the opening brief on the merits.
Mar 17 2011Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including April 18, 2011.
Apr 13 2011Order filed
  Petitioner's requests to expedite review, permit the parole board to comply with Court of Appeal's order, and entertain an application for bail are denied. The Clerk of the Court will be directed to advise the parties that no further extensions of time for briefing are contemplated.
Apr 19 2011Opening brief on the merits filed
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Dane R. Gillette   (8.25(b))
May 16 2011Answer brief on the merits filed
Petitioner: Shaputis, RichardAttorney: Marc Elliot Grossman  
Jul 6 2011Application to file amicus curiae brief filed
  Law Office of Michael Satris and the Federal Public Defender's Office for the Eastern District of California in support of petitioner.
Jul 6 2011Application to file amicus curiae brief filed
  California District Attorneys Association in support of respondent.
Jul 12 2011Permission to file amicus curiae brief granted
  California District Attorneys Association
Jul 12 2011Amicus curiae brief filed
Amicus curiae: California District Attorneys AssociationAttorney: W. Scott Thorpe   The application of California District Attorneys Association for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 30 days of the filing of the brief.
Jul 12 2011Permission to file amicus curiae brief granted
  The Law Office of Michael Satris and the Federal Public Defender's Office.
Jul 12 2011Amicus curiae brief filed
Amicus curiae: Federal Public Defender's Office for the Eastern District of CaliforniaAttorney: Monica Knox Amicus curiae: Law Office of Michael SatrisAttorney: Michael Satris   The application of the Law Office of Michael Satris and the Federal Public Defender's Office for the Eastern District of California for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within 30 days of the filing of the brief.
Jul 27 2011Response to amicus curiae brief filed
Petitioner: Shaputis, RichardAttorney: Marc Elliot Grossman   to amicus curiae brief filed by California District Attorneys Association.
Aug 25 2011Filed:
  Notice of Reassigment of Counsel Julie L. Garland assigned as counsel of record for respondent.
Sep 7 2011Case ordered on calendar
  to be argued on Monday, October 3, 2011, at 9:00 a.m., in San Francisco
Sep 14 2011Association of attorneys filed
  for Michael Evan Beckman, for purposes of representing Richard Shaputis.
Oct 3 2011Cause argued and submitted
 
Dec 28 2011Notice of forthcoming opinion posted
  To be filed Thursday, December 29, 2011 at 10 a.m.
Dec 29 2011Opinion filed: Judgment reversed
  We reverse the judgment of the Court of Appeal. Majority Opinion by Corrigan, J. -- joined by Cantil-Sakauye, C.J., Kennard, Baxter, and Chin, JJ. Concurring Opinion by Werdegar, J. Concurring Opinion by Chin, J. Concurring Opinion by Liu, J.
Jan 17 2012Rehearing petition filed
Petitioner: Shaputis, RichardAttorney: Marc Elliot Grossman   (8.25(b))

Briefs
Apr 19 2011Opening brief on the merits filed
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Dane R. Gillette  
May 16 2011Answer brief on the merits filed
Petitioner: Shaputis, RichardAttorney: Marc Elliot Grossman  
Jul 12 2011Amicus curiae brief filed
Amicus curiae: California District Attorneys AssociationAttorney: W. Scott Thorpe  
Jul 12 2011Amicus curiae brief filed
Amicus curiae: Federal Public Defender's Office for the Eastern District of CaliforniaAttorney: Monica Knox Amicus curiae: Law Office of Michael SatrisAttorney: Michael Satris  
Jul 27 2011Response to amicus curiae brief filed
Petitioner: Shaputis, RichardAttorney: Marc Elliot Grossman  
Brief Downloads
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Opening Brief on the Merits.pdf (997959 bytes) - Opening Brief on the Merits
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Answer Brief on the Merits.pdf (3285382 bytes) - Answer Brief on the Merits
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Attorney General Petition for Review.pdf (4236606 bytes) - Attorney General's Petition for Review
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 6, 2012
Annotated by Stephanie Thorpe

FACTS:

In 1987, Richard Shaputis was convicted of second-degree murder and sentenced to a term of fifteen years to life in prison with a two-year enhancement for firearm use. Since Shaputis was imprisoned, he has been repeatedly denied parole. See In re Shaputis (Shaputis I), 44 Cal. 4th 1241 (2008). The petitioner’s latest parole hearing took place in August 2009. Shaputis refused to testify at this hearing and declined to be interviewed by the psychologist appointed by the California Department of Corrections and Rehabilitation (CDCR). The only newly developed evidence before the Board of Parole Hearings was a May 2009 report by a psychologist privately hired by Shaputis and a written statement prepared by Shaputis with the assistance of counsel. In making its decision, the Board found older evidence in the record more reliable than the evidence newly submitted by Shaputis. After weighing the evidence, the Board denied parole for Shaputis based upon the nature of his commitment offense and his failure to gain insight into the reasons for his past behavior.

PROCEDURAL HISTORY:

Shaputis filed petition for a writ of habeas corpus. The trial court denied his petition and he subsequently proceeded to the Court of Appeal, which ordered the Board to vacate its decision and conduct a new hearing. The Supreme Court granted the Attorney General’s petition for review.

ISSUES:

Did the Court of Appeal misapply the “some evidence” standard of review when faulting the parole authority for basing its decision upon older evidence in the record rather than the documentary evidence newly submitted by Shaputis? Is an inmate’s degree of insight into his or her criminal behavior a proper consideration in parole hearings?

HOLDING:

The Court reversed the decision of the Court of Appeals. When an inmate decides to limit the evidence available at his or her parole hearing, the reviewing court must defer to the parole authority’s decision not to base its decision on the new evidence presented by the inmate unless there is no rational basis for the parole authority’s decision. The Court also reaffirmed that an inmate’s degree of insight into his or her criminal behavior is an appropriate factor in parole suitability determinations.

ANALYSIS:

The California Constitution and state statutes gives the executive branch the power to decide whether to grant parole to an inmate serving an indeterminate sentence. Courts review such parole decisions under the deferential “some evidence” standard, which requires the reviewing court to defer to the parole authority’s decision when there is any “modicum” of evidence supporting the parole authority’s determination that an inmate poses a current threat to public safety and is thus not suitable for parole.

In this case, Shaputis limited the evidence available to the Board by refusing to testify at his hearing and declining to meet with a CDCR psychologist. Although inmates have the right to limit their interaction with the Board during parole hearings, in such cases the Board must base its decision upon the other information available in the record. At the petitioner’s most recent parole hearing, the Board determined that the psychologist report and written statement submitted by the petitioner were not reliable and based its denial of parole on older evidence in the record.

The Court concluded that the parole authority was not limited to considering the recent information that Shaputis chose to present at his hearing. As long as there is a reasonable basis to conclude that the more recent evidence of an inmate’s current dangerousness is less reliable than other relevant evidence, the reviewing court must defer to the parole authority’s interpretation of the evidence. The Supreme Court found that there were ample reasons in the record to support the parole authority’s decision to disregard the recently submitted evidence. As such, it was inappropriate for the Court of Appeal to conclude that the new psychological report and petitioner’s written statement were the only relevant evidence in the record relating to Shaputis’s parole suitability. Given that there was a rational basis for the Board’s determination, the Court of Appeal should have deferred to the parole authority’s evaluation of the evidence.

One of the factors considered by the Board when denying parole to Shaputis was his lack of insight into his criminal behavior. The Court spends considerable time in the opinion reaffirming that this is an appropriate factor to consider in parole suitability determinations when the parole authority determines that a particular inmate’s lack of insight is indicative of his or her current dangerousness. Although “lack of insight” is not among the factors listed in the regulations governing parole proceedings, the Court emphasizes that an inmate’s lack of insight falls within the scope of the listed regulations. Furthermore, the factors listed in the regulations are only general guidelines. The Court concludes that the lack of insight factor is particularly useful compared to some of the other factors considered in parole hearings because it pertains to the inmate’s current state of mind.

CONCURRING OPINIONS:

- J. Werdegar

Justice Werdegar concurs with the majority, with the exception of footnote 11, because the issue of whether courts should limit the scope of judicial review to the evidence stated in the parole authority’s written statement of reasons for denying parole was not before the court.

- J. Chin

Justice Chin explains that he must concur with this opinion because the majority rejected his dissenting view in the case In re Lawrence, 44 Cal. 4th 1181 (2008).

- J. Liu

Justice Liu complements the majority’s discussion of the obligations of reviewing courts with a discussion of the principles governing the Board’s parole obligations. The parole authority has a statutory obligation to grant parole unless it determines that public safety is at risk. The Board must provide a definitive written statement of its reasons for denying parole. Courts should focus on the reasons and evidence given in this written statement when reviewing the rationality of the parole authority’s determination.

Justice Liu also clarifies that the majority opinion does not hold that some evidence of lack of insight necessarily means that an inmate should be denied parole. The parole authority should only consider this factor when it is reasonable to infer from the evidence that the inmate’s lack of insight supports the conclusion that he poses a danger to society.

KEY CASES:

In re Prather, 50 Cal. 4th 238 (2010)
http://scholar.google.com/scholar_case?case=6403284748424203520&q=29+cal...

In re Gaul, 170 Cal. App. 4th 20 (2009)
http://scholar.google.com/scholar_case?case=13767476466166167916&q=170+c...

In re Aguilar, 168 Cal. App. 4th 1479 (2008)
http://scholar.google.com/scholar_case?case=1367064113769687111&q=168+ca...

In re Shaputis (Shaputis I), 44 Cal. 4th 1241 (2008)
http://scholar.google.com/scholar_case?case=3167198367811191868&q=29+cal...

In re Lawrence, 44 Cal. 4th 1181 (2008)
http://scholar.google.com/scholar_case?case=1278330646557766718&q=29+cal...

In re Rosenkrantz, 29 Cal. 4th 616 (2002)
http://scholar.google.com/scholar_case?case=8910161325736108454&q=29+cal...

People v. Johnson, 26 Cal. 3d 557 (1980)
http://scholar.google.com/scholar_case?case=10159265189883948028&q=26+ca...

Jackson v. Virginia, 443 U.S. 307 (1979)
http://scholar.google.com/scholar_case?case=304542350697975194&q=443+us+...

TAGS:

Shaputis, parole, parole board, parole authority, some evidence standard, habeas corpus, inmate, prisoner, insight, judicial review

Annotation by Stephanie Thorpe