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Name: In re Perez
Case #: A145279
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 12/29/2016

Board of Parole Hearings did not properly conduct petitioner’s parole hearings and the parole denials were not supported by some evidence. Perez filed habeas petitions in 2014 and 2016 after the Board denied him parole for a 1997 carjacking and kidnapping to commit robbery he committed when he was 16 years old. The Board found he posed an unreasonable danger to society if paroled because he lacked insight into the causes of his criminality. Held: Consolidated petition granted and remanded. “The proper articulation of the standard of review is whether there exists ‘some evidence’ demonstrating that an inmate poses a current threat to public safety, rather than merely some evidence suggesting the existence of a statutory factor of unsuitability.” (In re Shaputis (2011) 53 Cal.4th 192, 209.) Here, the Board relied on improper factors. While its denials were couched in terms of Perez’s lack of insight into the causes of his criminality, the court found that the Board was using the “lack of insight” explanation as a mere proxy for Perez’s refusal to admit guilt for the commitment offense. Penal Code section 5011 prohibits the Board from doing that. (See In re Jackson (2011) 193 Cal.App.4th 1376, 1391.) The Board also failed to comply with its own regulations by insisting that Perez discuss the facts of his crime. Section 2236 specifically states that “a prisoner may refuse to discuss the facts of the crime . . . and the refusal shall not be held against the prisoner.” Furthermore, the Board failed to take into account the fact Perez committed the commitment offenses when he was a juvenile despite Penal Code section 4081, subdivision (c)’s command that the Board “shall give great weight to the diminished culpability of juveniles as compared to adults . . . .” On remand, the Board will have 35 days to review the evidence to determine whether there is proper evidence of current dangerousness and set an expedited parole hearing. If there is no evidence, it shall grant parole immediately.

The full opinion is available on the court’s website here: