Thursday, December 6, 2012

In re Denham 12/5/12: NEW Parole Hearing ORDERed: Regulation say nothing explicitly about "escalating criminal conduct"

Filed December 5, 2012, First District, Div. Three Cite as A133492

SUMMARY:  The  Court of Appeal did not "buy" the BPH's reasoning given for the denial of Parole and thus ordered a new Parole Hearing. Two major reasons used by the Board was;  1) "escalating pattern of criminal conduct" and 2)unstable social history".

See below for the Rebuttal from the Court specifically on those 2 reasons stated above.
 For Full text see

The Board relied on Denham‟s “escalating pattern of criminal conduct,” which was purportedly evidenced by his preincarceration arrests for which he sustained no criminal convictions, and his 1987 conviction for weapons possession while in prison. The regulations concerning parole suitability say nothing explicitly about escalating criminal conduct. Among the factors tending to show unsuitability for parole is “Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.” (Regs., § 2402, subd. (c)(2).) The regulations do, however, provide that the Board is to consider all relevant, reliable information, including “past criminal history, including involvement in other criminal misconduct which is reliably documented.” (Regs., § 2402, subd. (b).) Thus, the Board was entitled to recognize that Denham‟s criminal conduct escalated from drug and weapons possession to murder. However, where the Board considers that factor to be predictive of current dangerousness, it must articulate why that is the case. (In re Roderick (2007) 154 Cal.App.4th 242, 264.) “ „[I]mmutable facts such as an inmate‟s criminal history‟ . . . do not by themselves demonstrate an inmate „continues to pose an unreasonable risk to public safety.‟ (Lawrence, supra, 44 Cal.4th at p. 1221, original italics.)” (Sanchez, supra, 209 Cal.App.4th at p. 975.) 

The Board also relied on Denham‟s “unstable social history” based on the fact that “he was involved in drug sales prior to incarceration.” However, Denham‟s involvement in selling drugs does not address his social history as that factor is defined in the regulations. An “unstable social history” is defined as a situation where “[t]he prisoner has a history of unstable or tumultuous relationships with others.” (Regs., § 2402, subd. (c)(3).) Conversely, “a stable social history” is defined as a situation where “[t]he prisoner has experienced reasonably stable relationships with others.” (Id., § 2402, subd. (d)(2).) Here, there is no evidence of any tumultuous or particularly unstable relationships. Indeed, when considering the date of Denham‟s next parole hearing, the Board found by clear and convincing evidence that public safety did not require an additional 15-year period of incarceration before his next hearing because of Denham‟s “[s]table social history.” Denham‟s involvement in selling drugs, however, was certainly a factor that the Board could consider in assessing parole suitability. (Regs., § 2402, subd. (b).) But given Denham‟s lack of any substance abuse history since 1986, his long-standing participation in 12-step programs, and his development of prosocial vocational skills, the Board must explain how his preincarceration history as a drug dealer predicts his current dangerousness.

The Board cites no evidence establishing that Denham‟s participation in the crime was anything other than what he described at the 2010 parole hearing.


A New Lifer Parole Suitability hearing was required when the board's denial was based on the defendant's lack of insight into his crime (among others stated above, his history of selling drugs but it did not adequately take into account his acceptance of responsibility for his crime or his longstanding participation in 12-step programs and other parole suitability factors.