I concur in part I of the majority opinion. Consequently, I agree with the following conclusions of the majority opinion:
1. The Board of Parole Hearings (BPH) should have made findings as required by Penal Code section 1170, subdivision (e)(6);1 and
2. In considering whether to recommend the recall of Steven C. Martinez’s sentence, BPH should not have considered factors not found in section 1170; and
*5983. BPH must recommend recall of Martinez’s sentence if he meets the statutory criteria.
I respectfully dissent from part II of the majority opinion. I agree with the warden of Corcoran State Prison and with Superior Court Judge Lloyd G. Connelly that, on this record, defendant does not “pose a threat to public safety.” (§ 1170, subd. (e)(2)(B).)
In construing these provisions of section 1170, we should have in mind the prescient thoughts of Justice Oliver Wendell Holmes who wrote, “The life of the law has not been logic; it has been experience.” (Bartlett, Familiar Quotations (16th ed. 1992) p. 542 (Oliver Wendell Holmes, Jr., from The Common Law, 1881).)
The applicable provisions of section 1170 were adopted by the Legislature in 1997. As the majority acknowledge, “[t]he purpose of [Assembly Bill No. 29 (1997-1998 Reg. Sess.); Stats. 1997, ch. 751, § 1, p. 5070] was not just compassion; it was to save the state money.” (Maj. opn., ante, at p. 590.)
If this was true in 1997, it must be one thousand times more true today, when the state finds itself in an unprecedented budget crisis. We are closing schools and clinics.2 Fees at our state universities have been raised more than 30 percent in a single year.3 As this opinion is written, the state faces a $19.9 billion budget deficit.4
The following evidence is uncontradicted on this record: that in the two years preceding the filing of quadriplegic Steven Martinez’s petition, the state has spent more than $1.25 million on him alone. If he is released, the state will not have to bear Martinez’s medical expenses, because they will be assumed by Martinez’s parents and by his personal physician.
In my view, petitioner Martinez is a poster child for why Assembly Bill No. 29 was enacted in 1997.
The crucial question is whether “[t]he conditions under which the prisoner would be released ... do not pose a threat to public safety.” (§ 1170, subd. (e)(2)(B).) The warden and the medical officer of Corcoran State Prison concluded that, if released, Martinez would not pose a threat to public safety. *599The trial court agreed with them. The majority disagree and find some evidence that Martinez would pose a threat to public safety if released.
In making this determination, I think it important to define the standard by which this test should be applied. The majority say that “BPH must deny the request [for recall of sentence] if it finds that the prisoner could be a threat to public safety . . . .” (Maj. opn., ante, at p. 593.) I take this to mean that BPH must deny the request if it finds any possibility, no matter how remote, that Martinez would be a threat to public safety if released.
I respectfully disagree with this test. The population eligible for recall of sentence under section 1170 consists of convicted felons who have been sentenced to state prison. Nobody in their right mind would ever find that there is no chance whatsoever that a convicted felon—even a quadriplegic— would commit another crime if released. I think that, by the majority’s test, nobody will ever get out of prison. This cannot be what the Legislature intended when it enacted the recall-of-sentence provisions in 1997 to save money.
In deciding what test to apply to the question whether a prisoner would pose a threat to public safety if released, I think we should borrow a page from the private sector. These days, the private sector recognizes that most real world decisions must involve a degree of risk. (See, e.g., McCarthy & Sabnani, Risk Governance Will Be the Talk in Corporate Boardrooms in 2010, S.F. Daily J. (Dec. 28, 2009) pp. 1, 11.) The question is: What degree of risk is acceptable in the circumstances given the cost of preventing the risk? (See generally Renn, Concepts of Risk: A Classification, in Social Theories of Risk (Krimsky & Golding, edits., 1992) pp. 61-64.) It is obvious, I think, that it is possible anyone who has committed a felony may commit a felony in the future. Given the overall purpose of the statute to avoid the needless expenditure of funds, and given the current fiscal crisis faced by the state, I would adopt a standard for continued incarceration that requires the evidence to show a reasonable possibility that a quadriplegic would pose a threat to public safety if released.
By this standard, the record fails to support the petitioner’s continued incarceration.
Thus, in considering whether the record contains evidence that Martinez would be a threat to public safety if released, it is helpful to have a concrete understanding of Martinez’s situation, as set out in the uncontradicted report of S.A. Hepps, M.D., the Chief Medical Officer of Corcoran State Prison:
“Steven Martinez, P-23908 was incarcerated at Centinela State Prison. On February 3rd of 2001 he was attacked and sustained a knife injury to the right posterior neck which rendered him instantly quadriplegic. . . .
*600“Mr. Martinez sustained a laceration of the spinal cord at the C-3 level which caused immediate and complete quadriplegia, which has persisted from the moment of injury. He is only able to move his head to a very minimal degree. He has no motor power whatsoever in his arms or legs. In addition he is incontinent of urine and feces and he has no prior indication of the need to defecate and thus he frequently soils himself. His breathing is compromised by virtue of loss of the muscles of respiration. He originally had a tracheostomy which is now closed.
“Individuals who have this level of cervical spinal cord injury may develop severe contractures of the upper and lower extremities including feet and hands. The muscles atrophy (wither) and the skin loses its subcutaneous fatty padding becoming very thin and easily disrupted. Bone loss is extensive due to lack of movement. Weight loss is also extensive due to loss of muscle and bone mass.
“Martinez requires extraordinary nursing care because of his total inability to care for himself in any way. He requires feeding, frequent position changes (every two hours), wheelchairing, oral hygiene, cleaning of his body and bed clothing on a frequent basis due to his incontinence.
“Martinez’s injury is of devastating magnitude because there is no effective rehabilitation or opportunity for real improvement. He requires care for every single human need. There is no neuro-surgical procedure that can repair the injury which is permanent and stationary. There is no regeneration of the spinal cord and the prognosis in individuals with this injury is dismal. They frequently develop respiratory complications[,] i.e. pneumonia because of poor ability to cough. In addition, they develop kidney infections and renal failure. Decubitus (bedsores) are a constant problem because of pressure on thin, unsupported skin against bony protuberances, even under the best of care and circumstances.
“In conclusion, Martinez has sustained one of the worst injuries that can happen to an individual. Though he has cognitive function, he has no other independent human capability. He is truly a prisoner within his own body and there is no hope for recovery.”
Given Martinez’s utter lack of motor function, it is extremely unlikely that he would commit a crime if released from prison.
In concluding the record contains some evidence that Martinez poses a threat to public safety, the majority rely first on “the vile nature of Martinez’s commitment offenses.” (Maj. opn., ante, at p. 594.) The offenses were ones where, acting alone, Martinez used a car to accomplish a series of sexual *601assaults. However, as a quadriplegic, Martinez is not going to be driving a car nor sexually assaulting anyone if he is released.
The majority next find that Martinez would constitute a threat to public safety, if released, because “Martinez continued his antisocial behavior by verbally abusing and threatening prison nurses.” (Maj. opn., ante, at p. 594.) But these utterances simply reflect the common frustration of a quadriplegic man who is confined to prison and whose most private bodily functions must be monitored by prison nurses. Thus, the Department of Physical Medicine and Rehabilitation at the University of Alabama publishes a brochure that is given to patients who have suffered spinal cord injuries. As pertinent, it reports: “Some people react to their injury with strong feelings of displeasure. You might lash out verbally or want to become physically violent toward others.” (Adjustment to Spinal Cord Injury (2004) University of Alabama Department of Physical Medicine & Rehabilitation <http://www.spinalcord.uab.edu/show.asp?durki=45578> [as of Apr. 6, 2010].)
While it is true that defendant called the prison nurses disrespectful names, I do not agree with the majority that he seriously threatened the nurses with physical harm. Thus, he said to one nurse, “You’re lucky I can’t walk, ... I’d kick your ass.” In my view, this is simply bar talk, tailgate talk. Martinez could not kick at all, let alone kick someone’s ass. Martinez also said, “I don’t have to worry though, someone will get you.” I do not see in this statement, which Martinez was completely unable to fulfill, that Martinez would constitute a threat to public safety if released to his family, who is waiting for him on the outside should the authorities let him out. And we should not overlook the fact that Martinez’s family will take responsibility for his medical care if he is released.
In presently recognizing that, as a quadriplegic, Martinez is virtually unable to accomplish any physical harm himself, the majority posit the possibility that “if released from prison, Martinez could enlist the assistance of someone to harm those who irritate him.” (Maj. opn., ante, at p. 595.)
This is utter speculation. There is nothing in the record to suggest that Martinez would do this. During his commitment offense, he acted entirely alone. There is no evidence of any prison misconduct, at any time by Martinez, accomplished in conjunction with other inmates. So far as the record discloses, he is not a member of a gang. Thus, I do not see how Martinez is more likely than anyone else to “enlist the assistance of someone to harm those who irritate him.” Moreover, if this possibility serves as evidence to justify further incarceration, then no quadriplegic will ever get out, because anyone could always find someone to help commit a crime.
*602Citing three newspaper stories and one case, the majority say, “experience has shown that quadriplegics can commit violent crimes.” (Maj. opn. ante, at p. 596.)
I have two points to make with respect to this argument.
The first is it demonstrates that, with the help of a good Internet search engine, you can prove anything, including that pigs can fly. (See, e.g., Pigs really can fly . . . with the help of a trampoline (Dec. 5, 2009) Telegraph.co.uk <http://www.telegraph.co.uk/news/newstopics/howaboutthat/6728968/ Pigs-really-can-fly. . . .with-the-help-of-a-trampoline.html> [as of Apr. 6, 2010]; When Pigs Fly, They Go 1st Class (Oct. 29, 2000) The Washington Post, p. A04 <http://pqasb.pqarchiver.com/washingtonpost/access/ 62990404. html?FMT=ABS&FMTS=ABS:FT&date=Oct+29%2C+ They+Go+lst+Class> [as of Apr. 6, 2010]; Rowland, Sure Pigs Fly—But is that Art? (Jan. 21, 1995) San Diego Union-Tribune, p. B3 <http:// pqasb .pqarchiver.com/ sandiego/access/1245539581 ,html?dids= 1245539581> [as of Apr. 6, 2010].)
The second point is that the majority’s citation of these quadriplegic crime stories actually supports my argument. Thus the majority’s four accounts are drawn from the entire country and span a period of 38 years—from 1972 to the present. I am sure that if there were more stories of this ilk, the majority would have found them. Four stories in the country in 38 years is dam few. Indeed, the stories are written and reported because the commission of serious crimes by quadriplegics is so rare and bizarre that they are newsworthy. Thus I am willing to take the risk that petitioner Martinez will fire a pistol with a string in his mouth. Indeed, given the hundreds of thousands of dollars that Martinez is costing the state each year, it is a risk that we all must take.
Of course, as I have mentioned, whenever someone has committed a felony, there is some chance that the behavior will be repeated. However, on this record, nothing suggests that there is any reasonable possibility that Martinez would be a threat to others if released. The truth is that he poses a minuscule risk to public safety. Remember: four quadriplegic crimes in the United States in 38 years. At a time when we are closing our public schools and our public clinics, and are raising our tuition at our universities by more than 30 percent in one year, and are facing unheard-of budget deficits, we cannot afford the hundreds of thousands of dollars it is costing the state of California to keep this quadriplegic in prison because he has made not-very-serious threats against his nurses that he is utterly unable to fulfill.
*603Having reviewed the record in its entirety, I think the BPH is keeping Martinez in prison to punish him for his serious commitment offenses and for his disrespectful attitude toward prison nurses. In my view, these are not proper factors upon which to deny a petition under section 1170. Moreover, although Martinez may be released from prison if his petition is granted, he will forever be a prisoner in the quadriplegic body that resulted from his incarceration by the Department of Corrections.
I agree completely with the warden of Corcoran prison and with Superior Court Judge Lloyd G. Connelly. Petitioner Martinez does not pose a sufficient threat to public safety to justify his continued extraordinarily expensive incarceration. I would affirm the judgment of the trial court and order BPH to grant his petition.
Respondent’s petition for review by the Supreme Court was denied July 28, 2010, S182732. George, C. J., did not participate therein.
Undesignated statutory references are to the Penal Code.
Lewis, Board Moves to Trim $55 Million Shortfall in general Fund, Sacramento Bee (Feb. 12, 2009) page Bl; Lambert, Most school districts have geared up for cuts, Sacramento Bee (July 23, 2009) page Al.
Nealon, Cal State price tag jumps—32 Percent, Press-Enterprise (July 22, 2009) page D2.
Yamamura, State Worker Pay Cuts Urged, Sacramento Bee (Jan. 8, 2010) page Al.