California Penal Code Section 3041

Penal Code section 3041, subdivision (a), provides, "One year prior to the inmate's minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5. . . . The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime." Notwithstanding the breadth of that discretion, however, Penal Code section 3041, which governs the substance and procedure for the Board's parole release decisions, creates a cognizable liberty interest in parole protected by the due process clause of the California Constitution. (Cal. Const., art. I, 7, subd. (a); In re Lawrence, (2008) 44 Cal.4th 1181, 1205 (Lawrence) "the judiciary is empowered to review a decision by the Board or the Governor to ensure that the decision reflects 'an individualized consideration of the specified criteria' and is not 'arbitrary and capricious'".) As the California Supreme Court and Courts of Appeal have repeatedly stated in decisions reviewing denials of parole by the Board or the Governor, the purpose of parole is to help prisoners "reintegrate into society as constructive individuals as soon as they are able," without being confined for the full term of their sentence. (Morrissey v. Brewer (1972) 408 U.S. 471, 477.) Parole release decisions are essentially discretionary; they "entail the Board's attempt to predict by subjective analysis" the inmate's suitability for release on parole. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz).) That prediction requires analysis of individualized factors on a case-by-case basis, and the Board's (and, ultimately, the Governor's) discretion in that regard is "'"almost unlimited."'" (Ibid.) As an inmate's minimum eligible parole release date approaches, Penal Code section 3041, subdivision (b), requires the Board to set a release date "unless it determines . . . that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed." In making its decision the Board must consider all relevant, reliable information. Factors tending to indicate suitability include: (1) the absence of a juvenile record, (2) stable social history, (3) signs of remorse, (4) significant life stress motivated the crime, (5) battered woman syndrome, (6) no significant history of violent crime, (7) inmate's age, (8) realistic plans for the future, and (9) institutional behavior. (Cal. Code Regs., tit. 15; 2402, subd. (d).) Circumstances tending to show unsuitability include: (1) commitment offense was committed "in an especially heinous, atrocious or cruel manner," (2) previous record of violence, (3) unstable social history, (4) sadistic sexual offenses, (5) psychological factors, and (6) serious misconduct while incarcerated. (Cal. Code Regs., tit. 15; 2402, subd. (c).) The regulation specifies the factors to be considered in determining whether the offense was committed in an especially heinous, atrocious or cruel manner as: "(A) Multiple victims were attacked, injured or killed in the same or separate incidents.(B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder.(C) The victim was abused, defiled or mutilated during or after the offense.(D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.(E) The motive for the crime is inexplicable or very trivial in relation to the offense." (Cal. Code Regs., tit. 15; 2402, subd. (c)(1).) In exercising its discretion, the Board "must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation." (Lawrence, supra, 44 Cal.4th at p. 1219.) "It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (Id. at p. 1212.) The Board (or the Governor) can, of course, rely on the aggravated circumstances of the commitment offense as a reason for finding an inmate unsuitable for parole; however, "the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his . . . current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his . . . commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1214.) A prisoner's lack of insight into his or criminal behavior or failure to take responsibility may provide the required nexus between the commitment offense and the prisoner's current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1228 "in some cases, such as those in which the inmate has . . . shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide 'some evidence' of current dangerousness"; In re Shaputis (2008) 44 Cal.4th 1241, 1261, fn. 20 "petitioner's failure to take full responsibility for past violence, and his lack of insight into his behavior, establish that the circumstances of petitioner's crime and violent background continue to be probative to the issue of his current dangerousness"; see In re Rozzo (2009) 172 Cal.App.4th 40, 62, fn. 9 "evidence that demonstrates a prisoner's insight, or lack thereof, into the reasons for his commission of the commitment offense is relevant to a determination of the prisoner's suitability for parole".) Once the Board sets a parole date, the California Constitution empowers the Governor to review the parole decision of an inmate who has been convicted of murder and sentenced to an indeterminate prison term. (Cal. Const., art. V, 8, subd. (b).) The Governor's decision to affirm, modify or reverse the decision of the Board rests on the same factors that guide the Board's decision (ibid.) and must be based on "materials provided by the parole authority." (Pen. Code, 3041.2, subd. (a).) "Although these provisions contemplate that the Governor will undertake an independent, de novo review of the prisoner's suitability for parole, the Governor's review is limited to the same considerations that inform the Board's decision." (Rosenkrantz, supra, 29 Cal.4th at pp. 660-661.)