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Name: In re Swanigan
Case #: B261904
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 09/01/2015

Board of Parole Hearings (BPH) erred by denying parole to otherwise suitable defendant because he would not admit guilt. In 1981 defendant was convicted of first degree murder after he was identified as the person who shot the owner of a car repair shop. During 10 parole hearings defendant maintained his innocence. At the eleventh, he briefly admitted the killing but shortly thereafter recanted following a recess during which his attorney told him to tell the truth. Defendant’s in-prison conduct was discipline free for a lengthy period and his prior misconduct did not involve violence. His psychological report reflected a low risk of violence and he had parole plans. The BPH denied parole because defendant lacked insight into his offense and lied briefly to them during the hearing. After the superior court denied his writ petition, Swanigan petitioned in the Court of Appeal. Held: Habeas petition granted. When assessing whether a life prisoner poses an unreasonable risk of danger if paroled, BPH must consider all relevant, reliable information, including the failure to gain insight into the life crime. However, BPH may not require an admission of guilt to set a parole date (Pen. Code, § 5011; Cal. Code Regs., tit. 15, § 2236). Here, the information in defendant’s postconviction record supports a finding that he is rehabilitated and no longer poses a danger to society. The BPH did not articulate a rational nexus between the facts of the commitment offense and current dangerousness, relying instead on defendant’s refusal to admit guilt to conclude he lack sufficient insight or remorse. This was error. Even applying a highly deferential standard, i.e., whether “some evidence” supports BPH’s denial of parole, there is no evidence in the record that defendant poses a risk of danger if released.