Wednesday, February 8, 2017

In re Perez (12/29/16) : Use of inmate's innocence claim Unlawful to Deny Parole

2016 Cal. App. LEXIS 1149
Court of Appeal of California, First Appellate District, Division Two 

BOTTOM LINE: : The Board's questioning of the inmate about the life crime and use of his
claim of innocence to find current dangerousness was unlawful - PERIOD!

SUMMARY: Perez  was convicted of kidnapping for purposes of carjacking. During the Parole Suitability Hearing the evidence showed Perez expressed insight into his behavior at the time of the life crime. He also showed remorse to the extent possible, given his continuing claim of innocence; Despite the explicit constitutional and statutory mandate to do so, the board repeatedly failed to consider the inmate's youth (SB260) at the time of the crime, which, while serious, did not lead to any injuries and occurred some 19 years ago when he was 16 years old; The inmate did not have an extensive history of prison rules violations; He had been an exemplary prisoner for many years.
The court is required to affirm a denial of parole unless the Board decision does not reflect due consideration of all relevant statutory and regulatory factors or is not supported by a modicum of evidence in the record rationally indicative of current dangerousness, not mere guesswork.

Analysis below by: Attorney Dennis Riordan
a Sustaining member of California Attorneys for Criminal Justice (CACJ) and has been a member since 1981.   (THANK YOU -   (Education use and for Defense Attorney)

The Court vacated the Board of Parole Hearings' decision denying parole to Perez,
sixteen years old at the time he suffered convictions for robbery and carjacking, resulting in a life sentence. Rather than blindly deferring to the Board’s exercise of discretion, Division Two took the time and effort to drill down on the reasoning of the Board and to carefully review the hearing
evidence, finding that the reasoning simply was not supported by the evidence. In doing so, the opinion provides a wealth of useful language and reasoning for those representing young offenders in not only parole matters but other procedural contexts as well.

First, the Court deprecated the Board’s reflexive reliance on “lack of insight’ as a basis for denying parole, noting that rationale had effectively replaced the “heinous nature” of the offense as a reason for denial, so as to now constitute the “new talisman” for such denials. The Court then engaged in a detailed exposition of the petitioner’s statements at the hearing as to his understanding of why he had engaged in a pattern of criminality as a teenager, labeling as “baffling” the Board’s “repeated insistence” that Perez “had not explained how he had gravitated to negative influences...” In a stinging rebuke, the Court cited case law to the effect that the Board’s “mere refusal” to accept evidence showing understanding and remorse did not constitute a rational and sufficient basis to find that the inmate lacks insight or is “currently dangerous.” And the Court emphasized that a finding of lack of insight supported only by the inmate’s refusal to admit or discuss the commitment offense violates the
regulations barring reliance on such a refusal as a basis for denying parole. Likewise, to the extent that a negative psychological evaluation also rested on the inmate’s refusal to discuss the commitment offense, the reliance on that report is improper. The Court held: “In the circumstances of this case, the
Board’s veiled reliance on petitioner’s continuing refusal to admit guilt clearly
violated its own regulations and cannot be countenanced.”

Furthermore, the Court refused to rubberstamp the Board’s reliance on another convenient rationale for parole denial: the inmate’s disciplinary record, finding that Perez’s rules violations did not “provide some evidence supporting a conclusion that he poses a threat to public safety,” because his
few violations were greatly outweighed by his many in prison “educational and vocational  accomplishments.” Finally, along with much additional and helpful discussion of parole policy, the Court focused on the Board’s “repeated refusal to consider petitioner’s youth at the time of his life crime, despite the explicit constitutional and statutory mandate to do so.” In so doing, the Court cited to both case law and scientific studies recognizing youth and immaturity as a mitigating factor in the
commission of crime.

The Court fittingly concluded that the Board was determined to find a way to deny petitioner parole, even as the evidence supporting a finding of current danger diminished with each year that went by. Unable to justify petitioner’s continued detention on any lawful ground, the commissioners latched onto his continuing claim of innocence, violated the law, and improperly found him suitable based on his refusal to admit to having committed the crime.