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Name: In re McDonald
Case #: B219424
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 11/02/2010

Denial of involvement in the commitment offense alone is an insufficient basis for denial of parole. Petitioner was convicted of second degree murder in 1999. He was tried as an adult, even though the offense occurred when he was sixteen years old. The conviction was based primarily on the testimony of other juveniles. Petitioner had no prior criminal record or history of school misconduct. He had no problems with alcohol or drugs, and during his prison term he had been a model prisoner. His release plans were realistic and positive. The board found petitioner suitable for parole in 2006 and 2007, but each time the Governor reversed on the basis of the commitment offense and petitioner’s lack of insight and remorse. Throughout, petitioner had denied committing the offenses. In 2009, the board again found petitioner suitable for parole but the Governor reversed again, finding the aggravated nature of the crime and petitioner’s lack of insight based on his claim of limited responsibility suggested petitioner posed an unreasonable public safety risk. The appellate court upheld the trial court’s grant of petitioner’s habeas, noting that there was no nexus between the commitment offense and petitioner’s level of dangerousness. Further, pursuant to Penal Code section 5011, subdivision (b), a finding of dangerousness can not be predicated on petitioner’s admission of guilt. Although an inmate’s lack of remorse or insight into the offense can be considered in an assessment as to whether he poses a safety risk, when considered in the context of petitioner’s denial of commission of the offense, it alone is an insufficient basis for a finding that he continues to represent a safety threat. The court found that, contrary to the People’s position, it was not necessary to remand the matter to permit the Governor to reconsider the record. The Constitution provides for a single review by the Governor of a determination by the board and does not authorize repeated reviews of that single determination. Petitioner, who had since been released on parole, was allowed to remain free from custody.