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Name: In re Palermo
Case #: C058030
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/06/2009

The fundamental consideration in assessing whether a prisoner is suitable for parole is whether some evidence supports an ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. In 1987, 21-years-old petitioner shot and killed his former girlfriend. Petitioner claimed that the shooting was an accident. He believed the weapon was unloaded, began to play “cowboy” and shot and killed her as she was sitting on the toilet in the bathroom of defendant’s apartment. Although petitioner claimed he was guilty only of manslaughter, the jury convicted him of second degree murder. At petitioner’s third parole hearing in 2006, the board found that he was not suitable because of the commitment offense and his disciplinary history. The appellate court, in the majority opinion, disagreed, opining that it was apparent that the nature of the killing was the primary basis for the Board of Parole’s finding of unsuitability. Here, petitioner’s version of the offense was not implausible, a significant period of time had passed since the crime, affirmative evidence was presented regarding petitioner’s pre- and post-conviction conduct, and petitioner’s current mental state was positive, as shown by his rehabilitative efforts psychological evaluations, and his future prospects. Accordingly, the court found there to be no evidence to support the board’s finding that petitioner posed a danger if released on parole and directed the board to hold a new hearing and find petitioner suitable for parole unless new evidence of his conduct and/or change in mental health following the 2006 hearing was introduced and was sufficient to support a finding of unreasonable risk to public safety.