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Name: In re Powell
Case #: A127641
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 10/07/2010

There was not “some evidence” to support the parole board’s conclusion that petitioner currently posed a danger to society if released from prison. Petitioner found his girlfriend in bed with another man, and he killed them both. In 1982, he was convicted of two counts of second degree murder and the use of a deadly weapon. In 2009, the parole board denied parole concluding the crimes were especially heinous, petitioner’s history was unstable in that he used to abuse drugs and alcohol and had an incident of domestic violence with the victim, he lacked full insight, did not accept responsibility, and did not have an adequate post-release plan. Petitioner filed a petition for writ of habeas corpus, which the superior court denied. The Court of Appeal reversed, finding these reasons did not withstand scrutiny under the standard of In re Lawrence (2008) 44 Cal.4th 1181, which requires “‘some evidence’ support the conclusion that the inmate would currently pose a danger to society if released.” The commitment offenses and petitioner’s prior history were too remote to remain valid indicators of present conduct since petitioner had no violent conduct in the past 29 years. Further, lack of insight and acceptance of responsibility are not even among the suitability factors listed in the regulations, although the former can be probative to the extent it is rationally indicative of current dangerousness, and the latter is closely related to the factor of showing remorse. In this case, petitioner had accepted full responsibility and the alleged claim of lack of insight was not supported by record. As to post-release plans, the board itself characterized them as “well thought out.” Because there was not some evidence to support the board’s conclusion, the court remanded for reconsideration with all the available evidence, as that is the remedy consistent with In re Prather (2010) 50 Cal.4th 238.