Thursday, January 12, 2012

In re Shaputis (II) 12/29/11 - Difficult case for LIFERs

Case Name: In re Shaputis (II) , CalSup , Case #: S188655
Opinion Date: 12/29/2011 , DAR #: 18585

Although the case is not very favorable to the Lifers there is a very good concurring opinion from Justice Liu, J. that almost sounds like a dissent, thus, giving golden nuggets of advice. See the short extract below:

CONCUR BY: Werdegar; Chin; Liu

The emphasis on judicial deference is part of the court's effort to summarize the principles governing judicial review of parole decisions. 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, [*60] 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 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 decision-making 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

Case Holding:

The Court of Appeal erred in re-weighing the evidence relied upon by the executive branch when it found petitioner unsuitable for parole.

Petitioner was convicted of the second degree murder of his wife in 1987 and sentenced to 15 years to life, plus two years for a gun use. The Governor's reversal of petitioner's 2006 grant of parole was reversed by the Court of Appeal.

On review the Supreme Court found the question in determining suitability for parole is whether the inmate currently poses a public safety threat. This issue is directed to the executive branch -- first to the BPH and then to the Governor, who may review the entire record in evaluating the inmate's progress during incarceration.

The inmate's insight into the life crime is a relevant factor in determining current dangerousness. An inmate's decision not to participate in the parole hearing or psychological evaluations prepared for the hearing may not be held against him, but such lack of involvement does not limit the BPH or the Governor in their evaluation of the evidence.

A court reviewing a parole determination must employ the highly deferential "some evidence" standard, which requires it to uphold the executive branch's decision as long as there is a "modicum of evidence" to support the parole suitability finding. The question whether the inmate is currently dangerous is reserved to the executive branch. The reviewing court is not authorized to reweigh the evidence -- it must uphold the parole suitability finding if "there is a rational nexus between the evidence and the ultimate determination of current dangerousness." Reversed.