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Name: In re Denham
Case #: A133492
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 12/05/2012

A denial of parole must be based on a modicum of evidence that the inmate constitutes a current threat to public safety and incorrect factual contentions and guesswork by the Board will not support its denial. In 1983, petitioner was convicted of first degree murder, attempted murder, robbery, and kidnaping. According to the record, petitioner was with several other men who attacked the two victims, killing one of them and injuring the other. At a fourth parole hearing in 2010, the Board found that petitioner posed a current risk of danger to society if released on parole because he lacked insight into the commitment offense. Habeas relief was granted and the matter was remanded for a new parole hearing. The nature of the commitment offense in an assessment of an inmate’s risk to society is relevant only if there is some evidence that the inmate lacks insight into the life crime. Here, the conclusion of the Board that petitioner minimized his involvement and failed to take responsibility for the life crime was not supported by the evidence. Instead, petitioner’s characterization of his involvement as being peripheral appeared to be more accurate. The Board’s finding of an escalating pattern of criminal behavior and unstable social history as predictors of current threat to public safety also were not supported by the evidence.