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Name: In re Busch
Case #: D068791
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/21/2016

Governor acted within his authority by reversing Parole Board’s suitability finding based on nature of the crime, prisoner’s implausible explanation for two-year-old child’s injuries, and the fact that prisoner has not honestly addressed issues underlying the death of the child. Busch was convicted of second degree murder for the death of his girlfriend’s two-year-old daughter and sentenced to 15 years to life in prison. After 24 years in prison, the Board found Busch, who was described as a “model inmate,” suitable for parole. However, the Governor exercised his authority to reverse the Board on the basis that Busch’s claim of innocence and his explanation for the girl’s injuries were implausible, and thus he continued to pose an unreasonable danger to society if released. Busch filed a habeas petition arguing that the Governor failed to articulate a rational nexus between the circumstances of the crime and his current risk of dangerousness. Held: Petition denied. The Governor’s decision to reverse the Board’s decision to grant parole is subject to the highly deferential “some evidence” test. The Governor’s decision passes that test. Although Busch has been a model inmate, his crime was horrific (doctors said it appeared as though someone grabbed the girl’s head and slammed it into a hard surface repeatedly) and he denied responsibility by offering an implausible explanation for the girl’s injuries (she fell off the bed and hit her head). Busch’s denial reflects that he lacks insight into what caused him to commit the offense and thus there is a rational nexus between the evidence and the Governor’s determination of current dangerousness.

Governor’s reason for denying parole did not amount to an unlawful insistence that the prisoner admit guilt. Busch also argued that the Governor’s reason for denying parole was unlawful because it was based on his failure to admit guilt. The Court of Appeal disagreed. Although a parole date cannot be contingent on a prisoner admitting guilt, if an inmate goes beyond a simple denial and provides an implausible version of events that is contradicted by the trial record, “[t]his establishes a nexus to current dangerousness because it indicates the inmate is hiding the truth and has not been rehabilitated sufficiently to be safe in society.” (In re Pugh (2012) 205 Cal.App.4th 260, 273.)

The full opinion is available on the court’s website here: