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Name: In re Rodriguez
Case #: H035317
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 03/01/2011

“‘Lack of insight’ when it is invoked as a reason to deny parole must be based on an identifiable and material deficiency in the inmate’s understanding and acceptance of responsibility for his or her commitment offense.” The Governor reversed the parole board’s grant of parole based on the gravity of the offense, the petitioner’s inconsistent statements, lack of insight into the offense, and insufficient self-help and therapy sessions. The superior court granted a petition for writ of habeas corpus and reversed the decision. The Attorney General appealed. Applying the deferential standard of review which is accorded to the Governor’s decision, the appellate court affirmed the trial court’s grant of the habeas petition. As the Attorney General conceded, the finding regarding inconsistent statements is not supported by the record because the Governor mistakenly attributed a statement made by the codefendant to appellant. As to the finding of insufficient self-help, petitioner participated in some programs, but was not qualified for other prison programs because of his third-grade education. Significantly, the Governor’s decision does not make the connection as to how the deficiency shows petitioner currently poses a danger to society. Likewise, the Governor failed to articulate how the facts of the commitment offense show current dangerousness. Finally, as to the alleged lack of insight, there arguably is a modicum of evidence in the record to support this finding since there is a statement in one of the doctor’s reports that could support the conclusion. The problem, however, is that this is an isolated statement, and the doctor concludes “future treatment should not be considered mandatory as a prerequisite to parole consideration.” The Governor does not show how his conclusion about lack of insight is a rational indicator of current dangerousness. The court vacated the Governor’s decision and reinstated that of the parole board.