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Name: In re Aragon
Case #: D058040
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/09/2011
Subsequent History: Rev. granted 9/14/11 (S194673)

Despite an inmate’s non use of alcohol and drugs while in prison and his participation in abuse treatment programs, some evidence existed in the record before the Board to provide sufficient support for the Board’s denial of parole. Petitioner was convicted of a gang related second degree murder he committed while under the influence of drugs, and was sentenced to prison for 15 years to life. At his 2009 parole suitability hearing, the Board of Parole (Board) found he posed a threat to public safety and denied parole. In part, the Board based its decision on its belief that petitioner had yet to address a substance abuse problem related to his criminality. The court upheld the Board’s decision, noting that some evidence existed in the record to support the finding. Although it was important that there was no evidence that petitioner had used alcohol or drugs in prison, this factor is not necessarily determinative of whether he would remain sober on release. It was also acknowledged that petitioner had participated in substance abuse programs, but the record revealed that the participation was intermittent and that there was some evidence that he had not internalized the therapeutic lessons of the program. In view of same, the Board reasonably could have been concerned that petitioner had not achieved “insight” into his substance abuse problems and how to deal with them. Because the murder was causally related to petitioner’s serious drug problem, the appellate court found that there was the requisite “some” evidence to support the Board’s denial of parole. The court also found that the Board’s burden of proof was by a preponderance of the evidence rather than by a clear and convincing burden, as argued by appellant. (Evid. Code, sec. 115; In re Twinn (2010) 190 Cal.App.4th 447.) Finally, the court found that scheduling of the next parole hearing three years hence, in accord with Marsy’s Law, did not violate the prohibition against ex post facto application of laws. (In re Russo (2011) 194 Cal. App. 4th 144.)