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Name: In re Criscione
Case #: H032680
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/17/2009

A denial of parole meets the requirements of due process only if there is a rational nexus between the relevant statutory factors found by the Board of Parole Hearings or the Governor and a finding that the inmate would present a current danger to the public if released. Criscione, age 68 at the time of the 2007 parole hearing, was denied parole with the board basing its decision on the committing offense, a 2005 psychological report, what it found to be marginal parole plans, and Criscione’s failure to appreciate what led to the offense. The superior court granted Criscione’s habeas writ, rejecting the board’s findings, and the warden appealed. Referring to In re Lawrence (2008) 44 Cal.4th 1181 & In re Shaputis (2008) 44 Cal.4th 1241, the appellate court noted that in exercising its discretion, the board “must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation.” (Lawrence, supra, at p. 1219.) Although the committing offense is one of the factors to be considered, where the prisoner has served the suggested base term for the crime, as was the situation here, the offense alone rarely will serve to deny parole. Disagreeing with the board, the appellate court, like the superior court, found Criscione’s release plans to be realistic. The court also observed that the psychological evaluation relied on by the board was not particularly pertinent to Criscione’s parole as it made no recommendation regarding parole. The board also did not take into account Criscione’s age or the fact that if he did have any other criminal activity [there was a self-admitted but non-prosecuted incident], it occurred more than half a century ago and there was no apparent connection between it and Criscione’s potential for dangerousness. Despite the questionable parole denial, because the board made its decision prior to Lawrence and Shaputis, the matter was remanded with direction to the board to conduct a new hearing based on the criteria of these two cases.