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

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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.)

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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

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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.

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 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.

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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.

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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.

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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

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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.

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 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)

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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.‖

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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

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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

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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.

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 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.)

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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