In re Denham
150 Cal. Rptr. 3d 177
Cal. Ct. App.2012Background
- Denham was convicted in 1983 for first degree murder, attempted murder, two robberies, and two kidnappings with arming enhancements; currently serving 31 years to life with a 2003 minimum parole date.
- Board denied parole at a 2010 hearing based on gravity of offense, escalating criminal conduct, unstable social history, and lack of insight into causative factors.
- Governor previously denied parole in 2009, citing Denham’s minimized self-accountability and lack of insight.
- Denham challenged Board’s current-dangerousness finding and Marsy’s Law ex post facto application at a writ petition and review proceeding.
- California Court of Appeal granted relief, remanding for a new parole hearing, holding the Board’s reliance on lack of insight unsupported by the record.
- Court observed the need for an individualized inquiry under Penal Code 3041 and Cal. Code Regs. tit. 15, § 2402; mandated deferential “some evidence” review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is some evidence of current dangerousness. | Denham argues record lacks evidence of current risk. | Board found Denham’s lack of insight and past conduct predictive of danger. | Yes, some evidence supports current dangerousness. |
| Whether the Board properly considered Denham’s insight and culpability. | Denham had credible admissions and responsibility; Board misread credibility. | Board permissibly assessed insight under regulations. | Board failed to provide adequate support for lack of insight; remand required. |
| Whether Marsy’s Law deferral violates ex post facto principles as applied to pre-law inmates. | Application of Marsy’s Law to schedule an extended deferral is punitive ex post facto. | Marsy’s Law requires you to defer only when appropriate; state law controls. | Renders issue moot on remand; ex post facto challenge is not resolved here. |
| Whether the Board’s reliance on an “escalating pattern of criminal conduct” was proper. | Escalation facts are immutable and do not alone prove current danger. | Escalation considered as part of total suitability factors. | Board cannot rely on escalation without articulating how it forecasts current danger. |
| Whether denial of parole was supported by a proper balancing of Regs. §2402 factors. | Record shows stable social history and good behavior since 1987; insufficient basis for denial. | Other factors (gravity, attitude, lack of insight) justify denial. | Remand to conduct new hearing with proper analysis of §2402 factors. |
Key Cases Cited
- In re Shaputis, 53 Cal.4th 192 (Cal. 2011) (guides assessing an inmate’s insight and its regulatory relevance)
- In re Lawrence, 44 Cal.4th 1181 (Cal. 2008) (limits use of egregious offense to predict current dangerousness)
- In re Sanchez, 209 Cal.App.4th 962 (Cal. Ct. App. 2012) (assesses credibility and responsibility in linking offense to dangerousness)
- In re Ryner, 196 Cal.App.4th 533 (Cal. Ct. App. 2011) (relies on evidence and avoids hunches in parole decisions)
- In re Rodriguez, 199 Cal.App.4th 1158 (Cal. Ct. App. 2011) (ex post facto Marsy’s Law challenges on review by appellate courts)