5/12/2010 In re Calderon "INSIGHT" not a factor for SUITABILITY

Court of Appeal First District, Division 2

Case Holding:

Lack of insight is not a factor indicative of unsuitability for parole. The Governor reversed the parole board's decision to grant parole to petitioner, who had committed a murder during the course of a robbery. The Court of Appeal reversed. Besides the gravity of the crime, the Governor found petitioner unsuitable based on continued criminal behavior in prison and his "lack of full insight" into the effects of his prior substance abuse.

The court found the Governor's reasons did not withstand scrutiny under the In re Lawrence (2008) 44 Cal.4th 1181 standards. This crime was no more serious than other second-degree murders. Relevant post-conviction factors do not show current dangerousness since petitioner's brief association with a prison gang ended many years ago. And his alleged "lack of insight" on substance-abuse effects has no basis in the record.

After In re Shaputis (2008) 44 Cal.4th 1241, where the phrase "lack of insight" was mentioned in upholding the Governor's decision on parole ineligibility, it has become the Governor's new mantra. But, it is not even among the factors indicative of unsuitability in the regulations. Lack of insight is probative of unsuitability only to the extent it is supported by the record and rationally indicative of current dangerousness.