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Name: In re Morganti
Case #: A132610
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 03/28/2012

Lack of insight into the relationship between drug abuse and the crime, alone, does not support a finding of parole insuitability; there must be a connection between the lack of insight and current dangerousness. In 1991, petitioner, while heavily involved in drugs, stabbed his friend 26 times, after learning the victim was cheating him by fraudulently billing costs to petitioner’s credit card. He then set fire to the victim’s room and fled. Petitioner was convicted of second degree murder and arson and sentenced to 21 years to life. The record reflects that he subsequently made a positive adjustment; he participated in virtually every available rehabilitative program; he remained drug and alcohol free; he accepted that he had abused drugs; and he returned to his church. He is approaching 60 and has chronic and degenerative health problems. Despite these factors, the Board found him unsuitable for parole, believing petitioner lacked “insight” into his drug abuse. Parole applicants have a due process liberty interest in parole with parole being the rule rather than the exception. The onus is on the Board to justify a denial of parole suitability, taking into consideration factors specified by statute and regulation. Using these factors, the Board must assess whether the inmate poses an unreasonable risk of danger to society if released on parole and there must be a rational nexus between the evidence considered and the finding of current dangerousness. On review, the court must determine if the Board’s decision reflects consideration of the relevant statutory factors and, if it does, if its analysis is supported by a modicum of evidence in the record that is rationally indicative of current dangerousness. Lack of insight supports a denial of parole only if it is rationally indicative of current dangerousness. Here, the court found that even if there was a lack of insight on petitioner’s part, a conclusion it seemed to question, the record was bereft of evidence connecting any such deficit to the conclusion that petitioner is currently dangerous. The matter was remanded with direction to conduct a new parole hearing.