Filed 10/31/14 In re Richardson CA3
                                                 NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                           THIRD APPELLATE DISTRICT
                                                            (Sacramento)
                                                                    ----



In re ERIC TYRONE RICHARDSON,                                                                             C066987

                                                       On Habeas Corpus.                     (Super. Ct. No. 10F0403)




          In 1994, when defendant Eric Tyrone Richardson was 21 years old, he was
convicted in a bench trial of second degree murder and corporal punishment of a child for
the death of his 20-month-old daughter. He was sentenced to state prison for 15 years to
life for the murder (Pen. Code, § 187, subd. (a)), plus four years, to be served
consecutively, for a prior instance of corporal punishment of a child on his daughter.
(Pen. Code, § 273d).
          In September 2009, at a subsequent hearing before the Board of Parole Hearings
(the Board), the Board unanimously found defendant suitable for parole.
          In February 2010, then-Governor Arnold Schwarzenegger (the Governor) reversed
the Board’s decision to grant parole. We discuss the Governor’s reasoning in more detail
post. In summary, the Governor found that: (1) the commitment offense was “especially
atrocious,” (2) defendant “has still failed to obtain insight into the factors that caused his


                                                                     1
murderous conduct,” and (3) defendant’s possible “relapse” into “abuse of marijuana”
“could greatly increase [his] risk for violent recidivism.”
       Defendant filed a petition for writ of habeas corpus in the Sacramento County
Superior Court seeking reversal of the Governor’s decision. The trial court granted the
petition, finding that the Governor’s decision to deny parole was not supported by some
evidence of current dangerousness. (In re Lawrence (2008) 44 Cal.4th 1181, 1212
(Lawrence).) The trial court reversed and vacated the Governor’s decision and reinstated
the Board’s decision finding defendant suitable for parole.
       The People filed a notice of appeal from the trial court’s order. Thereafter, the
People requested a stay of that order by writ of supersedeas. We granted the stay pending
further order of this court.
       The People contend the trial court’s order must be reversed because the nature of
defendant’s commitment offense, his minimization of culpability, his lack of insight into
the offense, and his past marijuana abuse provide “some evidence” to support the
Governor’s decision.
       We reverse.
                  FACTUAL AND PROCEDURAL BACKGROUND
       As the central issue here is whether there is some evidence that defendant lacks
insight into the commitment offense, we recount the various statements defendant made
concerning the commitment offense and his insight in some detail here. We discuss
defendant’s marijuana abuse in the discussion section addressing that issue.
                                   The Commitment Offense
                               According to the Probation Report
       In February 1993, paramedics arrived at defendant’s residence in response to a
911 call. The paramedics found a woman (defendant’s then-girlfriend) performing
mouth-to-mouth resuscitation on the victim, defendant’s 20-month-old daughter.
Defendant was present at the scene.

                                              2
       The paramedics originally received information that the victim had ingested
ammonia, but no ammonia was detected on her breath. The paramedics noted that the
victim’s forehead was bruised, her teeth were clenched, her pupils were unequal, her
abdomen was lacerated, and her legs had older lacerations.
       The victim was taken to a hospital where she remained in a comatose state until
she died three days later. The official cause of the victim’s death was listed as “ ‘multiple
blunt force trauma.’ ” The autopsy revealed multiple pattern injuries to the victim’s head,
chest, abdomen, arms and legs. A subdural hematoma was described as the “main
responsibility” for the victim’s death. The doctor who performed the autopsy opined that
the subdural hematoma may have formed prior to the incident where defendant and the
victim were present in the bathroom.1
       However, the prosecutor who handled the case told the probation officer that the
testimony indicating that the subdural hematoma was slow forming was disputed.
According to the prosecutor, the doctor who had treated the victim prior to her death
opined that the hematoma was a “fast forming injury and most likely occurred just prior
to the paramedics[’] arrival.”
              The Victim’s Injuries as Described in this Court’s Opinion
                               in Defendant’s Appeal2
       In this court’s decision on appeal (People v. Eric Tyrone Richardson (Oct. 25,
1995, C018725 [nonpub. opn.] (Richardson)), trial evidence was summarized, including
evidence concerning the victim’s injuries and defendant’s statements about the offense.




1 In his decision, the Governor wrote: “[t]he doctor who performed the autopsy opined
that the subdural hematoma had been formed prior to the night [the victim] went into the
coma.” (Italics added.)
2 We take judicial notice of the appellate decision (Evid. Code, §§ 452, subd.(d), & 459,
subd. (b)) and explain our reasoning for doing so post.

                                             3
       Regarding the injuries, this court wrote: “Pathologist Robert Anthony performed
an autopsy on [the victim] which revealed she suffered a subdural hematoma and ‘large
intense areas’ of subcutaneous bruising on her back, arms, legs and buttocks, consistent
with the application of a large amount of force. More significantly, [the victim] suffered
retinal and optic nerve hemorrhages, injuries observed normally in children who have
been subjected to severe trauma, such as falling from a multistory building or being
ejected during a car accident. From this, Anthony concluded [the victim] ‘was subjected
to extremely rapid acceleration and deceleration injuries that could be accounted for by
shaking the child extremely violently. In other words, with the maximum force an adult
can use on a child or having that force exerted on the child, then having the child impact
against a surface.’ [¶] Dr. John McCann, an expert in the area of pediatric child abuse
who examined [the victim] shortly after her death and reviewed [the victim’s] autopsy,
concurred with Dr. Anthony.” (Richardson, p. 4.)
                  Defendant’s Prior Statements to an Ex-Girlfriend
                        According to the Probation Report
       Investigation revealed that in October 1992, four months before the incident at
issue, a prior ex-girlfriend had noticed “ ‘red welts’ ” on the victim’s legs. When
confronted about the welts, defendant told the ex-girlfriend that he had whipped the
victim with an electronic cord because “ ‘she don’t listen and come when I call her.’ ”
                   Defendant’s Statements During the Investigation
                         According to the Probation Report
       On the way to the hospital, the paramedics asked defendant how the injuries had
occurred and defendant replied, “I beat her.” He said the injuries had been inflicted on
the previous day. During the ambulance ride to the hospital, defendant told one of the
paramedics that he had beat the victim with a belt.
       Sacramento County Sheriff’s detectives interviewed defendant that night.
Defendant said he was attempting to potty train the victim. He entered the bathroom, saw



                                             4
ammonia on the floor, and “ ‘went into a rage.’ ” He grabbed the victim by the back of
the shirt, picked her up and tried to stand her on her feet. Unable to stand unassisted, the
victim fell and hit the back of her head on the bathroom floor. Defendant again tried to
stand her up, but she could not stand. She was not breathing properly, her eyes were
rolling back, and her eyelids were fluttering. Defendant informed his girlfriend, who
tried to resuscitate the victim, and then called 911.
       When asked about the various bruises and marks on the victim’s body, defendant
said, “ ‘That’s from me whipping her.’ ” He said this whipping occurred after the victim
drank urine from her porta-potty a couple of days prior to the interview. Regarding a
fresh bruise on the side of the victim’s forehead, defendant said, “ ‘she be bumping her
head up against the wall all the time. That bruise ain’t even from me.’ ”
                   Defendant’s Statements During the Investigation
                            from the Appellate Opinion
       Defendant told the ambulance driver that he hit the victim because “she had drank
some urine from her little potty chair.” That same night at the hospital, defendant told a
clinical social worker that the victim was asthmatic and after finding her on the bathroom
floor, he called 911. Defendant later told the social worker that he heard a loud noise in
the bathroom and found the victim on the floor. Thinking she had hit her head on the
wall, defendant lifted her several times, but she kept falling down.
       That same night, defendant told a detective that the victim was in the bathroom on
the potty when he found ammonia on the floor and on her. Going into a rage, defendant
grabbed the victim by the back of the shirt, picked her up and tried to get her to stand.
When he let her go, the victim fell and hit her head on the floor. He tried to pick her up
again, but she could not stand and her eyes were rolling back in her head. When the
detective explained the nature of the victim’s injuries and asked defendant whether he
had shaken her, defendant admitted shaking the victim. (Richardson, pp. 3-4.)




                                              5
                 Defendant’s Statements to the Probation Department
                                  Post-Conviction
        After the trial, defendant told the probation officer who prepared the probation
report that he had been “ ‘severely stressed’ ” several days before the victim was
hospitalized. He said he had whipped the victim because she “ ‘drank pee out of a
potty.’ ” On the day when the victim was taken to the hospital, defendant said he
grabbed the victim twice by the arm in attempts to get her to stand on her feet. The
victim was “ ‘limp’ ” and fell to the ground twice, striking her head on the floor during
one of the falls. He picked her up a third time and the victim felt extremely limp.
Regarding the bruise to the victim’s head, defendant said that injury must have occurred
when she fell limp and hit her head on the floor. He denied striking the victim in the
head.
        Defendant told the probation officer that he thinks about the victim every day.
Her death was not premeditated. Rather, he was under stress and lost control.
                             Defendant’s Statements in the
                          2004 Psychological Evaluation Report
        The clinical psychologist who evaluated defendant in 2004 wrote the following
concerning what defendant told him about the commitment offense:
        “I came into the bathroom. The victim had taken her potty and poured it out on
the floor, she was sitting next to it -- she had it in her hand. At that time, I snatched her
off the floor but she couldn’t stand, her balance was poor. When she sat back down, I
pulled her up again and this time she fell forward and hit her head on the ground (her
forehead). I saw then that something was wrong with her, I attempted to administer CPR
-- the best I could! I called 911 -- my friend Maria helped me by also giving the baby
CPR. I called the ambulance, the ambulance came and went to the hospital. They asked
me what happened in the ambulance and questions into my past physical abuse. I
answered affirmative to the above questions. I was arrested while at the hospital.”



                                               6
       “Feelings: I pretty much faced it -- what I did! I used to have excuses for things
then -- I didn’t take responsibility for my actions -- but on the night that this happened I
did take responsibility. When traumatic things happen -- things that virtually I didn’t see
has become clear. My arrogance -- got me into trouble. I didn’t have the responsibility
for being a parent. I realize that. The thing that hurts me the most, I betrayed my
daughter’s trust to take care of her to protect her I turned out to be the one that hurt her. I
took away her right to live -- life! The thing that will stay with me for the rest of my is
the fact that I betrayed her trust. It wasn’t her that I was angry with -- I was just angry at
life! I was rebellious, running away from authority. I was angry at many things. I took
on a responsibility I was not ready for. The problems with parenting -- I cracked under
the pressure. I was an angry, selfish, bitter person -- my daughter did not deserve this in
any way! The beatings relieved the anger for a short while. I had unreal expectations of
her -- I told her to do something to do and she didn’t do it -- I felt that she was being bad
(not listening) this would justify her being punished. I had been through a lot of learning
trying to figure out who I am, and it started to come together during the last four to five
years! The rebelliousness against authority, I face this. I was feeling my anger and
acting on it! I looked and made a serious moral inventory -- determining what was
lacking and attempting to change. Before I lashed out at diversities [sic], now I prepare
myself in a non-violent way (violence was my only response). I was a coward -- I didn’t
know how to deal under pressure. I want it to be known -- I am not here to put this
program up against the crime I have committed. I am here for the sole reason -- to take
responsibility for my actions and for the crime I have committed.”




                                               7
                             Defendant’s Statements in the
                         2008 Psychological Evaluation Report3
       The psychologist wrote the following concerning what defendant told him about
the commitment offense:
       “When asked to describe the controlling offense, [defendant] stated, ‘I walked into
the the bathroom and she had poured out the Port-A-Potty. I thought she had drank it, I
was real upset, I told her to get up and I pulled her up to her feet and she fell on her head.
I noticed that she was limp and she seemed to be acting kind of strange. I tried to do
CPR and then I called 911, that’s what happened.’
       “When this examiner queried the inmate regarding claims of his past abuse of the
victim, he stated, ‘Yeah, I would get angry and I would spank her, she did not deserve it
though. My perspective was unrealistic; I was way out of line. I was too immature to be
a parent….’
       “When this examiner asked the inmate why he committed the crime, he stated,
‘Well I was an angry person, I did not have the capacity for parenthood, I just totally
failed at it.’ When asked if alcohol or drugs were involved in this crime, he stated, ‘No,
they were not.’ The inmate then spontaneously noted to this examiner that he thinks
about the victim on a daily basis and feels tremendous remorse for what he has done.
When this examiner asked the inmate if he believes that his sentence was fair, he stated,
‘Yes I do.’ When this examiner asked the inmate to discuss why he believes his sentence




3 Although not referenced by the Governor or the parties in this appeal, the record before
us includes a psychological evaluation report written in 2005 by a psychiatrist who wrote
the following regarding what defendant told him about the commitment offense:

  “The inmate acknowledges that he had become abusive with his 20-month-old
daughter. He was not prepared to be a single parent. Up until a month prior to the death
of his daughter he had been living with two friends who were providing much more
childcare and support than he had acknowledged or recognized.”

                                              8
is fair, he stated, ‘I did not get up in the morning and say that I wanted to take her life, but
my behavior was negligent and I think I should stay in jail for as long as the sentence.
But on a personal level I feel like I should do the sentence that I was convicted of.’ ”
(Italics added.)
               Defendant’s Statements During the 2009 Parole Hearing
       At the beginning of the 2009 parole hearing, counsel for defendant indicated that
defendant would not discuss the facts of the commitment offense,4 but was willing to
discuss “insight and remorse.”
       Defendant told the Board that he had been frustrated and angry since age nine
when his grandmother died. Defendant said, “For me, anger was a launching pad that led
to rebellion to authority. When I was controlled by this anger, I literally turned my mind
against established authority. When I say established authority, I mean my mother in the
home, my teachers in the [school], and any other adult that was in my periphery. I
viewed myself as their equals and thus reflected [sic] their tutelage. By doing this, I
rejected the training that would have given me the mental capacity to cope with adversity
in life. I matured physically but not mentally. This rebellious mental attitude caused me
to create my own viewpoint about life, a viewpoint that was totally divorced from reality.
One of my major flaws was my misunderstanding of what it meant to be an adult. In my
mind, an adult was someone who did not have to live by rules, they could do what they
wanted, when they wanted, so I did the things I associated with adulthood, such as
drinking, using marijuana and never answering to anyone. As time went on, my
rebelliousness and anger grew. I isolated myself from those who loved me and set out to




4 “A prisoner may refuse to discuss the facts of the crime in which instance a decision
shall be made based on the other information available and the refusal shall not be held
against the prisoner.” (Cal. Code Regs., tit. 15, § 2236, italics added.) But see footnote
11, post.

                                               9
prove to them all that I didn’t need them. I mention this now in hindsight. At the time it
was happening, I was blind to the gravity of my actions. The more I live by my flawed
viewpoint, the more I took on things in life I had no capacity for. Because of that, I failed
a lot. When I failed, though, I didn’t take responsibility for it. I blamed others. My
failures made me more angry and more determined to prove everything wrong, so to
speak. I had a one-sided war going on with the authority figures in my life. Flawed
thinking and flawed actions perpetuated themselves until I self-destructed. I was
unteachable and recalcitrant and eventually overwhelmed by the life that I had created
with my bad decisions. Teachability and self-examination have been the keys to my road
back from anger. Once I became teachable, I was able to receive the training that I
needed to mature. At that point, it was all about exposing myself to better knowledge.
When I say better knowledge, I mean knowledge that was better than the warped
viewpoint that I had had held. I exposed myself to numerous self-help classes, drug
classes, parenting classes, anger management classes, alternatives to violence classes, and
I read personal self-help book. Exposing myself to these classes gave me the problem-
solving devices that I needed to deal with my anger issues. As my understanding grew,
my anger subsided.”
       “I didn’t have the mental stability to deal with the responsibility of parenthood. I
wasn’t objective. You know, I was emotional about it. I took everything personally. I
put these unrealistic expectations on [the victim], and when she didn’t live up to them, I
took it personal instead of looking at it like she’s a child, you know what I mean, I have
to be the adult, the stable one, the mature one. You know, and I didn’t -- I didn’t have the
sensitivity, the maturity….”
       Defendant did touch on the commitment offense when he was asked to discuss
remorse. He said, “the best way I can describe remorse is I betrayed the trust of someone
who trusted me implicitly, I mean, without waver, she trusted me and instead of training
her and raising her, I abused her and took her life. I mean, I would have to imagine being

                                             10
betrayed by someone that I trusted that much. You know, that’s the only thing I can
relate it to, be betrayed by someone that you trust completely. She was innocent. She
didn’t deserve what I did to her or the way that I treated her.”
       In his closing remarks, defendant said, “I’m guilty of this crime. I’m sorry for
what I’ve done. [The victim] didn’t deserve the way that I treated her.”
                   2004 Psychological Evaluation – Current Dangerousness
       The psychologist opined that defendant’s propensity for violence in society would
be no greater than that of the average person. The psychologist added, “In a less
controlled setting such as return to the community, this inmate can be considered likely to
hold present gains.” In discussing the “low risk factors,” the psychologist wrote,
“Drugs/alcohol did not play any role in the offense, no record of aggression or violence in
prison. The inmate has maintained a long-term presence in NA. Overall adaptation to
prison life has been positive and constructive. The offense was not committed during the
commission of another crime. The offense does not appear to be premeditated. The
inmate acknowledges he committed the offense. He fully acknowledges the
wrongfulness of actions. This inmate appears to take full responsibility for the offense
and does not appear to rationalize or minimize his role. He appeared to fully express
remorse for his actions. When asked, he shared extensive expressions of guilt to remorse.
This inmate appears to take full responsibility for his actions and can empathize at an
emotional level with the harm done to the victim. The inmate is not diagnosis [sic] in
antisocial personality disorder. Criminal mindedness and criminality did not appear to be
the primary elements of this inmate’s offense.” The psychologist added, “This inmate
has demonstrated a good awareness of the circumstances that resulted in his committing
this serious offense with the ability to utilize judgment before acting and examine the
resulting consequences of those decisions.”




                                              11
               2008 Psychological Evaluation – Current Dangerousness
       Defendant scored in the low range for future violence on two risk assessment tools
used by the clinical psychologist who performed the 2008 evaluation. The psychologist
opined that defendant’s overall risk of future violence in the community is in the low
range. As for the extent to which defendant had explored the commitment offense and
come to terms with the underlying causes, the psychologist wrote, “[Defendant] appeared
to grasp the underlying causes for his actions in the controlling offense. He was able to
speak articulately about how his anger, unrealistic expectations and his immaturity were
influential factors that guided his negative thoughts and behaviors. This examiner does
not believe that the inmate placed blame on external or uncontrollable factors. He
appeared to take responsibility for his actions.”
                         The Board’s Decision Granting Parole
       The Board concluded that defendant was suitable for parole and would not pose an
unreasonable risk of danger to society or a threat to the public if released from prison.
The Board acknowledged the “horrible nature of this commitment offense.” It found that
the victim “died as a result of injuries that had been inflicted upon her over a period of
time. It was not a singular event culminating on [the day the victim was taken to the
hospital].”
       The Board noted that defendant had no juvenile record except a theft and he had
no history of violent crime.
       The Board further concluded that defendant had enhanced his ability to function
within the law upon release by: obtaining a GED and AA and continuing to take college
courses; participating in AA and NA, including serving as an executive board member in
AA; participating in victim awareness, domestic violence, Creative Conflict Resolution,
the Alternatives to Violence Project, additional anger management, self-confrontation
and personal development and life management; completing vocational training, such as
auto painting, vocational clerical business tech, and vocational plumbing. Defendant had

                                             12
“maintained positive institutional behavior,” including no CDC 115 reports during his
entire period of incarceration.
       The Board further stated that there is a reduced probability of recidivism “because
of maturation, growth, greater understanding and advanced age” and that defendant had
viable parole plans, including the availability of housing and a job offer, with substantial
transitional funds to provide a financial bridge.
       The Board noted its consideration of the psychological evaluations. It specifically
noted the low risk of future violence. It also noted the psychologist’s observation in the
2004 psychological evaluation that defendant had “demonstrated a good awareness of the
circumstances that resulted in [his] commission of the serious offense and [his] ability to
utilize judgment before acting and examine the resulting consequence of decisions.”
       The Board found that defendant had “shown signs of remorse indicating [he]
understand[s] the nature and magnitude of the offense. You’ve accepted responsibility
for criminal behavior and shown a desire to change towards good citizenship, this
occurring in psychological evaluations and also in the closing comments that were
provided to the Panel today.”
                                  The Governor’s Decision
       The Governor acknowledged positive aspects of defendant’s past and his prison
programming. He noted that defendant had only one prior brush with the law prior to the
commitment offense, a juvenile adjudication for petty theft. The Governor observed that
while defendant was counseled three times for misconduct, the most recent was in 1999
and defendant has remained discipline free. Defendant earned his GED in 1997. He has
since received an Associate of Arts degree, and once received a certificate for being on
the Dean’s List, receiving a grade point average of 3.75. Defendant has also received
training in business-related technologies and completed vocational training in upholstery,
plumbing, and auto painting and detailing. He held institutional positions as a clerk,
typist, and word processor. He has “availed himself of an array of self-help and therapy

                                             13
programs, including Alcoholics Anonymous (AA), Narcotics Anonymous (NA), a special
program within NA, and a four-step, video group participation program: The Foundation
of Recovery, Coming to Believe, Making a Decision, and Getting Honest.” Defendant
“also participated in Self-Confrontation, Personal Development, Life Management,
Anger Management, American Program, Substance Abuse Program, and Bible studies
through Set Free Ministries. Additionally, he graduated from the tier one level of Cross
Roads Bible Institute…. [H]e received some positive evaluations from mental-health and
correctional professionals.”
       Nonetheless, in summarizing his decision to reverse the Board, the Governor
stated, “The gravity of the crime is a factor supporting my decision, but I am particularly
concerned by the evidence that [defendant] lacks complete insight into his life crime. I
am further troubled by the findings of his most recent mental-health evaluator” related to
defendant’s involvement with marijuana. (Italics added.) We discuss the Governor’s
reasoning in detail, post.
                                       DISCUSSION
       The People contend “some evidence” supports the Governor’s decision; thus, the
decision did not violate defendant’s due process rights, and the trial court’s decision
granting a writ of habeas corpus should be reversed. We agree.
                               I. General Principles of Review
       “Whether to grant parole to an inmate serving an indeterminate sentence is a
decision vested in the executive branch, under our state Constitution and statutes. The
scope of judicial review is limited.” (In re Shaputis (2011) 53 Cal.4th 192, 198-199
(Shaputis II).) “[W]hen a court reviews a decision of the Board or the Governor, the
relevant inquiry is whether some evidence supports the decision of the Board or the
Governor that the inmate constitutes a current threat to public safety[.]” (Lawrence,
supra, 44 Cal.4th at p. 1212, first italics added, second italics in original; In re Shaputis
(2008) 44 Cal.4th 1241, 1254-1255 (Shaputis I).) “The ‘some evidence’ standard, is

                                              14
meant to serve the interests of due process by guarding against arbitrary or capricious
parole decisions, without overriding or controlling the exercise of executive discretion.”
(Shaputis II, supra, 53 Cal.4th at p. 199.)
          “[R]eview under the ‘some evidence’ standard is more deferential than substantial
evidence review, and may be satisfied by a lesser evidentiary showing. [Citation.]”
(Shaputis II, supra, 53 Cal.4th at p. 210, original italics.) “[U]nder the ‘some evidence’
standard, ‘[o]nly a modicum of evidence is required. Resolution of any conflicts in the
evidence and the weight to be given the evidence are matters within the authority of [the
Board or] the Governor…. [T]he precise manner in which the specified factors relevant
to parole suitability are considered and balanced lies within the discretion of [the Board
or] the Governor.’ ” (Id., italics added.) “When reviewing a parole unsuitability
determination by [the Board] or [the Governor], a court must consider the whole record
in the light most favorable to the determination before it, to determine whether it
discloses some evidence—a modicum of evidence—supporting the determination that the
inmate would pose a danger to the public if released on parole.” (Id. at p. 193, italics
added.) Our high court has made it clear, “It is irrelevant that a court might determine
that evidence in the record tending to establish suitability for parole far outweighs
evidence demonstrating unsuitability for parole. As long as the…decision reflects due
consideration of the specified factors as applied to the individual prisoner in accordance
with applicable legal standards, the court’s review is limited to ascertaining whether there
is some evidence in the record that supports the…decision. [Citations.]” (Id. at p. 210.)
“Only when the evidence reflecting the inmate’s present risk to public safety leads to but
one conclusion may a court overturn a contrary decision by the Board or the Governor.”
(Ibid.)
          Because the trial court’s findings were based solely upon documentary evidence,
we independently review the record that was before the trial court. (In re Rosenkrantz
(2002) 29 Cal.4th 616, 677 (Rosenkrantz).) However, we are not limited to the evidence

                                              15
actually mentioned by the Board or the Governor in their decision. (Shaputis II, supra,
53 Cal.4th at p. 214, fn. 11; In re LeBlanc (2014) 226 Cal.App.4th 452, 457.)
                    II. Lack of Insight into the Commitment Offense
                   A. Judicial Notice of the Appellate Court Opinion
       Preliminarily, we address an anomaly in this case resulting from the Governor’s
failure to fully identify all of the documents on which he relied for the evidence he set
forth in his written decision. The Governor noted the probation officer’s report and the
2004 and 2008 psychological evaluations as the source of the information upon which he
relied, yet he relied on evidence not in those reports.
       As we will discuss in more detail, the Governor’s conclusion that defendant lacks
insight into the commitment offense is grounded on a discrepancy between the nature and
severity of the injuries sustained by the victim and defendant’s description of the crime in
the reports as well as the variations in the versions of the offense defendant has given
over the years.
       The Governor began his description of the offense in his written decision by
saying, “According to the probation report, when the paramedics arrived at [defendant’s]
home after receiving a 9-1-1 call, [defendant] told them that [the victim] had ingested
ammonia. As the paramedics attempted to rescuscitate [the victim], they did not smell
ammonia on her breath. They observed a bruise on her forehead, her teeth were
clenched, and her pupils were unequal. They also noted lacerations across her abdomen
and on her legs. Aside from the bruising on the back, arms, legs and buttocks consistent
with the application of a large amount of force, [the victim] suffered retinal and optical
nerve hemorrhages as well as injuries normally observed in children who have been
subjected to severe trauma, such as falling from a multi-story building or being ejected
during a car accident. When the paramedics asked [defendant] how the infant received
these injuries, he stated that he beat her.…” (Italics added.)



                                             16
       The problem is that the injuries described in the above italicized text are not in the
probation report as suggested by the Governor in the first sentence of the above quoted
paragraph; nor is it in any other report or document in the record. Nevertheless, the
People rely on that statement in their briefing.
       It seems apparent that the trial court questioned the source of the facts upon which
the Governor relied. The court wrote in its order granting defendant’s petition for habeas
corpus, “Although it is unclear what evidence relating to facts of the commitment offense
the Governor considered, it appears that at a minimum, he relied on the probation report.”
       We were also puzzled by the Governor’s reliance on facts that were not before the
trial court and not part of the record before us. Noting that this court’s opinion in the
underlying criminal appeal had been referenced by both parties at the parole suitability
hearing, but not by either party in the trial court or on appeal here, we examined the
opinion and discovered therein the reference to the nature of the injuries the Governor
had attributed to the probation report.
       The pathologist’s testimony was discussed as part of this court’s determination in
Richardson that the evidence of implied malice was sufficient to support the second
degree murder conviction. In describing that the injuries were consistent with shaking,
the pathologist said, “[the victim] suffered retinal and optic nerve hemorrhages, injuries
observed normally in children who have been subjected to severe trauma, such as falling
from a multistory building or being ejected during a car accident.” The italicized text
closely mirrors the statement made by the Governor he attributed to the probation report.
       The Board considered and heard argument concerning aspects of what this court
said in the Richardson opinion.5 At the beginning of the hearing, the lead commissioner



5 A deputy district attorney who appeared at the parole hearing referenced Richardson.
In arguing that the inmate’s version of what had occurred is inconsistent with the injuries,
the prosecutor said, “[H]e has continued to relate this crime as basically an accident,that

                                             17
stated, “Nothing that happens here today is going to change the findings of the court. The
Panel’s not here to retry your case, but we do accept as true the court’s findings. We’re
here for the sole purpose of determining your suitability for parole. All that being said, in
that you’ve exercised your right not to speak to the commitment offense, I’m going to go
ahead and incorporate by reference the facts of the commitment offense as found in two
different sources, one being the probation officer’s report, the other being the appellate
decision.”6 (Italics added.)
       It appears that the Governor’s reference to the nature of the victim’s injuries,
which he attributed to the probation report, actually came from Richardson. Thus, it
appears that the Governor actually relied upon this court’s opinion in Richardson in
addition to the probation report and the 2004 and 2008 psychological evaluations.
Because the Board had considered and heard argument concerning facts set forth in
Richardson, the Governor was entitled to consider it. (In re Arafiles (1992)
6 Cal.App.4th 1467, 1477-1478.)
       Evidence Code section 452, subdivision (d), provides that judicial notice may be
taken of records of any court of record. We may take judicial notice even if the item to
be noticed was not furnished by a party. (Evid. Code, § 459, subd. (d).) We requested




he basically pulled his daughter up from a seated position on two occasions. She fell
once and hit her head, and yet we know from the facts that you have been able to review
and from the appellate opinion that that is not what occurred, and I have not yet heard
[defendant] take responsibility for that.” (Italics added.) We discuss post additional
references to the facts in Richardson argued by counsel for defendant at the parole
hearing.
6 The commissioner also stated, “I will incorporate your version of the crime found in the
Board report that was prepared for the May 2007 calendar by your correctional
counselor.” This report is not in the record before us. Nor are there any reports prepared
by correctional counselors in the record. And the Governor did not refer to a correctional
counselor’s report in his written decision.

                                             18
supplemental briefing from the parties on the following issues: (1) “Should this Court
take judicial notice of its opinion in People v. Eric Tyrone Richardson (Oct. 25, 1995,
CO18725 [nonpub. opn.]), which was considered by the Board, apparently considered by
the Governor, not provided to the trial court, and which is not part of the record on
appeal?” (2) “If this court takes judicial notice of that opinion, what impact would it have
on the ‘some evidence’ analysis in our review of this habeas corpus case?”
       Defendant contended in his supplemental briefing that we should not take judicial
notice of Richardson because: (1) “the opinion…was not considered in the Governor’s
action at issue”; (2) the facts set forth in the opinion were, as required, “reported in a light
favorable to the prosecution” and that we cannot take notice of the truth of the facts
contained in the opinion; (3) the facts set forth in the opinion are irrelevant “absent a
rational nexus to the [defendant]’s current parole risk”; and (4) the opinion was not “part
of the trial or appellate court records and has not been referenced or noticed by the parties
or the courts.”7 The People assert that we should.8 We agree with the People and take
judicial notice of this court’s own decision in Richardson. Specifically, we take judicial




7 At oral argument, counsel for defendant appeared to concede we could take judicial
notice of our opinion in defendant’s appeal. Nonetheless, we address the arguments
raised in defendant’s supplemental brief.
8 At oral argument, counsel for the People contended that the decision in In re Young
(2012) 204 Cal.App.4th 288 (Young) (a case published after supplemental briefing)
supports notice of the appellate decision here. We do not view Young as providing
authority for the reason we take judicial notice of the appellate opinion here. In a
footnote, the Young court wrote, “Neither party, nor the Board, has referred to our
opinion and we do not know if it was in the record available to the Board. We take
judicial notice of it pursuant to Evidence Code section 452, subdivision (a) to explain this
background, but do not otherwise rely on it herein.” (Id. at p. 293, fn. 1, italics added.)
Because the Young court relied on its appellate opinion for background only, we do not
rely on it here. Instead, we agree that judicial notice should be taken here for the reasons
we discuss post.

                                              19
notice of the facts set forth therein referenced by the Governor in his decision and the
parties during the parole hearing.
       Defendant contends that the Board did not indicate it considered or relied on the
facts in the appellate decision. However, as we have noted, when defendant indicated he
desired not to talk about the commitment offense, the presiding commissioner stated that
the Board was incorporating by reference the facts set forth in both the probation report
and the appellate decision.
       Defendant contended in his supplemental briefing that the Governor relied
exclusively on the facts set forth in the probation report. But as we have shown, key facts
upon which the Governor relied were not in the probation report; those facts were in this
court’s decision in Richardson. Moreover, as we have noted, in determining whether a
decision is supported by some evidence, we are not limited to the evidence actually
mentioned by the Board or the Governor in the decision denying parole. (Shaputis II,
supra, 53 Cal.4th at p. 214, fn. 11; LeBlanc, supra, 226 Cal.App.4th at p. 457.)
Accordingly, we need not be limited to the sources of evidence mentioned by the
Governor here, especially when the Governor expressly relies on facts from a source he
did not mention, and attributes those facts to the wrong source.
       Defendant also contended in his supplemental briefing that it would be
inappropriate to take judicial notice of facts set forth in Richardson because in reviewing
the sufficiency of the evidence, an appellate court views the trial evidence in the light
most favorable to the prosecution. He also asserted that in taking judicial notice, we must
limit our notice to the existence of the opinion and the result reached and cannot take
notice of the truth of facts stated therein. Thus, according to defendant, judicial notice
cannot be used to establish the facts of the underlying commitment offense.
       First, as we have already noted, the Board considered the facts from Richardson.
Second, counsel for defendant implored the Board to consider facts this court set out in
Richardson in arguing that defendant admitted injuring the victim and never claimed she

                                             20
was injured accidentally. Counsel argued, “if you take a look at the appellate opinion
transcripts [sic], at page 2, pages 2 through 4, you have [defendant], when the -- when he
was talking to one of the detectives at the station, the appellate transcripts [sic] recount
this, he says, ‘I beat her.’ He said that in the ambulance, and that’s borne out by the
record, and he also admits to shaking her. That’s borne out by the record, so to say that
[defendant] is relying on the notion that this is an accident and then to sort of hang that on
to this minimization, lack of insight, is not just born out by the record. He admits very
early on that he’s responsible….” Counsel also argued to the Board, “I’d also draw the
Panel’s attention to page 4 of the appellate court’s opinion where you have Dr. McCann
and Dr. Anthony concurring that the injuries could have resulted from the shaken baby
syndrome, which is what [defendant] admitted to detectives early on, and those were the
People’s witnesses. Those weren’t [defendant’s] witnesses, so both of those experts
confirmed that this could have been the result of that incident.” Third, regarding the
contention that the facts set forth in Richardson are facts stated in a light most favorable
for the prosecution, that circumstance is of no consequence if the Board or Governor
considered or relied upon those facts. This is especially true here, where defendant relied
on the truth of those facts in his argument to the Board. Fourth, our review here is
deferential and limited to determining whether there is a modicum of evidence upon
which the Governor relied, regardless of the weight that could be assigned to that
evidence, and in making that determination, we must view the evidence cited by the
Governor in a light most favorable to his decision. (Shaputis II, supra, 53 Cal.4th at
pp. 210, 213-214.) The “ ‘some evidence’ ” standard may be satisfied by a lesser
evidentiary showing than substantial evidence review. (Id. at p. 209.) Moreover, it is not
our role to decide which evidence in the record is convincing. (Id. at p. 211.)
Accordingly, the fact that this court set out facts in its opinion on defendant’s appeal
pursuant to a substantial evidence review makes no difference to the propriety of
factoring those facts into our review here for “some evidence.”

                                              21
       In his supplemental briefing, defendant relied upon this court’s opinion in Gilmore
v. Superior Court (1991) 230 Cal.App.3d 416 in arguing we are limited to taking judicial
notice of the existence of the opinion and the result on appeal and cannot take notice of
the truth of facts set forth therein. In Gilmore, defendant sought a writ of mandate
directing the trial court to grant his summary judgment motion in a wrongful death action
on the ground that defendant killed the decedent in self-defense and that the killing was
justifiable as a matter of law. The defendant requested the trial court to take judicial
notice of an appellate opinion in which the defendant obtained a reversal of his criminal
conviction because the undisputed evidence showed a justifiable homicide as a matter of
law. (Gilmore, supra, 230 Cal.App.3d at p. 418.) This court stated that the existence of
the appellate opinion and result reached can be judicially noticed, but “ordinarily” it
would be error to take judicial notice of the facts therein for the truth of those facts. (See
also Kilroy v. State (2004) 119 Cal.App.4th 140, 145.)
       We do not think the well-settled general rule stated in Gilmore applies here. We
may take judicial notice of the facts in Richardson for the nonhearsay purpose of
ascertaining the basis for the decisions of the Board and the Governor and then consider
that in determining whether the decision of the Governor was supported by “some
evidence.”
       In People v. Woodell (1998) 17 Cal.4th 448, our high court held that for purposes
of determining the nature of prior convictions under the Three Strikes law, a trial court
may rely upon the appellate opinion related to the prior conviction to determine the
nature of the conviction. (Id. at pp. 451, 454.) The trial court admitted the appellate
opinion related to defendant’s out-of-state conviction as proof the defendant had
personally used a deadly weapon. (Ibid.) Our high court held the opinion was admitted
for the non-hearsay purpose of determining whether defendant had been convicted of a
crime based on personal use of a weapon. (Id. at p. 460.)



                                              22
       Similarly, in In re Jimmy Richardson (2011) 196 Cal.App.4th 647,9 this court held
that an appellate opinion related to the defendant’s prior conviction was admissible to
show that the defendant was convicted for personally inflicting great bodily injury.
Citing Woodell, this court stated, “Our unpublished opinion on the appeal from the [prior]
conviction stated it was [defendant] who crashed his vehicle while evading law
enforcement officers. Our opinion stated [defendant], while being pursued by law
enforcement officers, ‘failed to negotiate the turn, crashed through a cinder [block] fence,
and landed on top of a carport awning attached to a mobile home. The awning gave way,
crashed into a car parked beneath it, and damaged another nearby mobile home. Two
occupants of that mobile home were injured by flying debris.’ [Citation.] [¶] That
opinion was admissible evidence on which the trial court [that determined the truth of the
prior conviction allegation] could rely. [Citation.] Our opinion, and not just
[defendant]’s plea, established [defendant] was convicted for personally inflicting the
injuries.” (Id. at pp. 660.) This court further found that the appellate opinion could be
considered on the additional issue of whether the victims were accomplices. This court
stated, “[the appellate opinion on the prior] evasion conviction stated [defendant]’s
victims were occupants of a mobile home that was damaged by [defendant]’s crash. Our
opinion is evidence in the record of conviction that establishes the victims of the 1992
evasion conviction were not accomplices, and therefore the evasion conviction qualifies
as a prior strike.” (Id. at p. 667.)
       Similarly, here, the Board’s decision was based on the facts presented to it from a
number of sources, including this court’s opinion in Richardson. Likewise, it is clear that
the Governor based his decision, in part, on Richardson’s discussion about the nature of
the victim’s injuries.



9 We refer to the defendant’s first name to distinguish this court’s published opinion in
that case from the unpublished opinion in defendant’s appeal.

                                             23
       We note that the probation officer’s report and the psychological evaluation
reports are also filled with hearsay,10 but courts nevertheless customarily look to such
reports when relied upon by the Board or Governor to determine whether some evidence
supports the Board’s unsuitability determination and the Governor’s decision to reverse
the Board’s finding of suitability. Parole proceedings are informal proceedings, not
judicial or formal administrative proceedings. (Rosenkrantz, supra, 29 Cal.4th at p. 664.)
       Defendant argued in his supplemental brief that judicial notice is inappropriate
because the opinion in Richardson is not in the trial or appellate record and “has not been
referenced or noticed by the parties or courts.” Given that defense counsel relied upon
the Richardson opinion in convincing the Board to find defendant suitable for parole,
defendant can hardly claim surprise if that is what he sought to imply in his supplemental
brief. We recognize that the underlying rationale for judicial notice is that the matter
being judicially noticed is not reasonably subject to dispute. (Lockley v. Law Office
(2001) 91 Cal.App.4th 875, 882.) However, having argued certain facts from Richardson
in his successful effort to obtain a finding of parole suitability from the Board, defendant
cannot now be heard to say those facts are subject to dispute. And indeed, defendant has
not made that argument.
       We also recognize that while appellate courts can take judicial notice of items not
presented to the trial court, we generally refrain from doing so. (See Brosterhous v. State
Bar (1995) 12 Cal.4th 315, 325-326 (Brosterhous); People v. Preslie (1977)
70 Cal.App.3d 486, 493 (Preslie).) As the court in Preslie explained, “as a general rule
the court should not take such notice if, upon examination of the entire record, it appears
that the matter has not been presented to and considered by the trial court in the first
instance.” (Preslie, at p. 493.)



10The probation report said that the information concerning the offense came from the
Sheriff’s report, the Coroner’s report and the preliminary hearing transcript.

                                             24
       However, cases discussing the general rule against taking judicial notice typically
involve appeals from adjudications in the trial court where the items to be noticed involve
facts or something else that should have been considered in the trial court in the first
instance. (E.g., Brosterhous, supra, 12 Cal.4th at pp. 325-326 [appellate court denied
request to take judicial notice of the entire record of a prior arbitration proceeding to
support a demurrer grounded on a claim of res judicata]; Preslie, supra, 70 Cal.App.3d at
p. 493 [in reviewing trial court’s denial of suppression motion, the appellate court
properly declined to take judicial notice of the affidavit, search warrant, and return
lodged in the trial court, but not introduced into evidence]; see also 1 Witkin, Cal.
Evidence (5th ed. 2012) Judicial Notice, § 50, p. 157.) Neither situation is presented
here. The trial court’s role was not to decide issues or facts in the first instance, but
rather to review the Governor’s decision. Here, we exercise our discretion to take
judicial notice where our review is of the Governor’s decision, not the trial court’s ruling
on that decision. (See Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967,
975, fn. 5 [appellate court took judicial notice of item not presented in the trial court
because appellate review was de novo and the item was material].)
       Lastly, we note that our Supreme Court has stated that courts “must consider the
whole record in the light most favorable to the determination before it, to determine
whether it discloses some evidence….” (Shaputis II, supra, 53 Cal.4th at p. 214, italics
added.) We believe our high court’s mandate to consider “the whole record” relates to
the record before the Board and the Governor, not the partial record provided to the trial
court or to us by the parties.
       Accordingly, we take judicial notice of this court’s opinion in Richardson because
counsel for defendant argued facts from it to the Board and the decisions of the Board
and the Governor were based, in part, upon the facts set forth in the opinion.




                                              25
                                       B. Analysis
       Our high court has said, “Consideration of an inmate’s degree of insight is well
within the scope of the parole regulations. The regulations do not use the term ‘insight,’
but they direct the Board to consider the inmate’s ‘past and present attitude toward the
crime’ (Regs., § 2402, subd. (b)) and ‘the presence of remorse,’ expressly including
indications that the inmate ‘understands the nature and magnitude of the offense.’ (Regs.,
§ 2402, subd. (d)(3)). These factors fit comfortably within the descriptive category of
‘insight.’ ” (Shaputis II, supra, 53 Cal.4th at p. 218.) “[T]he presence or absence of
insight is a significant factor in determining whether there is a ‘rational nexus’ between
the inmate’s dangerous past behavior and the threat the inmate currently poses to public
safety. [Citations.]” (Id.) “Lack of insight pertains to the inmate’s current state of mind,
unlike the circumstances of the commitment offense…. Thus, insight bears more
immediately on the ultimate question of the present risk to public safety posed by the
inmate’s release.” (Id. at p. 219.) And “the most recent evidence of the inmate’s degree
of insight will usually bear most closely on the parole determination.” (Id. at pp. 219-
220.) However, similar to Shaputis II, this case is an example of the Governor’s “proper
reliance on older evidence in the record, and of the disadvantages that may follow from
an inmate’s decision not to testify at a parole hearing or otherwise cooperate in the
development of current information regarding his…mental state.” (Id. at p. 220.)11



11 Like our high court, we acknowledge that a defendant is not required to provide a
statement about the commitment offense. (Shaputis II, supra, 53 Cal.4th at p. 211.)
However, as our high court has suggested, an inmate who restricts the information
available to the Board and the Governor is in no position to complain about their reliance
on older information. (Id. at p. 198.) The Shaputis II court also observed, “An inmate
who refuses to interact with the Board at a parole hearing deprives the Board of a critical
means of evaluating the risk to public safety that a grant of parole would entail. In such a
case, the Board must take the record as it finds it.” (Id. at p. 212.) It went on to note,
“that nowhere in the record is there a coherent account by [defendant] of the shooting
and how or why it happened. Nowhere is his claim of accident reconciled with the

                                             26
       In elaborating on the crime and his reason for reversing the Board, the Governor
stated, “the second[]degree murder for which [defendant] was convicted was especially
atrocious because [defendant] was in a position of trust regarding his particularly
vulnerable 20-month-old daughter. According to the probation report, [the victim] had
extensive bruises all over her body that indicated her injuries might have been caused on
at least three separate occasions and could have been inflicted intermittently over the
course of the previous several weeks. I agree with the 2009 Board’s conclusion that the
murder ‘by its very nature is just so horrible, the fact that this young child was basically
dependent upon [defendant] for virtually every aspect of her existence, and [defendant]
basically let this child down.’ Indeed, [defendant’s] actions demonstrated an
exceptionally callous disregard for his daughter’s life and suffering.” (Italics added.) “I
am also concerned that, although [defendant] says that he understands the circumstances
that led to the crime and despite all of his participation in therapy and other programs in
prison, he has still failed to obtain insight into the factors that caused his murderous
conduct. During his incarceration, [defendant] offered varying and inconsistent
explanations of the events that resulted in [the victim’s] death.” The Governor then set
forth the various statements defendant made reflected in the probation report and the
2004 and 2008 psychological evaluations. The Governor then wrote, “Though the 2008
mental-health evaluator found that [defendant] appears to have an understanding of the
underlying causes for his actions, he continued to describe the events leading to [the
victim’s] coma and ultimate death as ‘accidental.’ As recently as his 2008 parole
consideration hearing, he continued to imply that her fatal injuries were somehow
provoked due to her ‘lack of balance.’ [Defendant’s] ongoing lack of insight renders the
life crime still relevant to my determination that he continues to pose a current,


evidence found at the scene.” (Id. at p. 213, italics added.) Similarly, as we will discuss,
the record before us does not contain a “coherent account” by defendant in which he
explained the injuries sustained by the victim.

                                              27
unreasonable risk of danger to public safety because he cannot ensure that he will not
commit similar crimes in the future if he does not completely understand and accept full
responsibility for his actions.”
       In Shaputis I, the court found the defendant had failed to gain insight because
“[e]vidence concerning the nature of the weapon, the location of ammunition found at the
crime scene, and [defendant]’s statement that he had a ‘little fight’ with his wife support
the view that he killed his wife intentionally, but…[defendant] still claims the shooting
was an accident. This claim, considered with evidence of [defendant]’s history of
domestic abuse and recent psychological reports reflecting that his character remains
unchanged and that he is unable to gain insight into his antisocial behavior despite years
of therapy and rehabilitative ‘programming,’ all provide some evidence in support of the
Governor’s conclusion that [defendant] remains dangerous and is unsuitable for parole.”
(Shaputis I, supra, 44 Cal.4th at p. 1260, original italics.)
       We recognize that while the word “accidental” appears in quotes in the Governor’s
written decision as if defendant actually used that word, the record reflects that defendant
never used the words “accident” or “accidental.” However, defendant did use the word
“negligent” to describe his actions. Specifically, as we have noted, when asked to
describe why he thought his sentence was fair during the 2008 psychological evaluation,
defendant said, “I did not get up in the morning and say that I wanted to take her life, but
my behavior was negligent and I think I should stay in jail for as long as the sentence.”
(Italics added.) Given defendant’s statement that his behavior was “negligent” and the
overall description of the crime he gave to the psychologists, one could read defendant’s
description of what occurred on the day the victim was taken to the hospital after he
purportedly tried to stand her up in the bathroom as a claim of accident.12



12 The Governor also noted that at the 2004 hearing, “the Board asked [defendant] why
[the victim’s] balance was off, to which he stated that his daughter had been ‘slow in

                                              28
       Defendant emphasizes that neither psychologist thought he lacked insight into the
commitment offense. Rather, their opinions were that defendant had achieved insight.
We do not ignore that evidence. As we have noted, the 2008 psychologist stated, “This
examiner does not believe that the inmate placed blame on external or uncontrollable
factors. He appeared to take responsibility for his actions.” And the 2004 psychologist
stated, “The inmate acknowledges he committed the offense. He fully acknowledges the
wrongfulness of [his] actions. This inmate appears to take full responsibility for the
offense and does not appear to rationalize or minimize his role.… This inmate appears to
take full responsibility for his actions….” However, as we have noted, matters related to
the weight to be given evidence is within the authority of the Governor, not this court.
(Shaputis II, supra, 53 Cal.4th at p. 209.) And it is irrelevant whether we might
determine that evidence in the record tending to establish suitability outweighs evidence
demonstrating parole unsuitability. (Id.)
       We note that the psychologist who performed the 2008 evaluation wrote the
following in describing his own understanding of the commitment offense: “The essence
of the offense involved the inmate grabbing the victim (his 20-month old daughter),
which caused the victim to fall and to suffer a head injury leading to her death.” We also
note that the information about the pathologist’s injury analogy (the victim’s injuries
were like those sustained by a person who has fallen off a multistory building or been
ejected from a car), that the victim’s injuries were the result of shaking, and defendant’s


developing.’ When the presiding commissioner suggested that [the victim’s] poor
balance might have been caused by the abuse and head trauma [defendant] inflicted upon
her, he initially agreed. However, he later explained to his evaluator that her poor
balance was attributable to her mother’s use of crack cocaine when she was pregnant with
[the victim].” The 2004 transcript was not made part of the appellate record by either
party. We assume that defendant would have ensured the transcript was part of the
record here if he thought it would be helpful. In any event, the Governor’s notation of
what defendant said at the 2004 proceedings is not necessary to our conclusion that his
decision is based on “some evidence” of defendant’s current dangerousness.

                                             29
early admission that he shook the victim, does not appear in the probation officer’s
report. Perhaps as a consequence, the psychological examiners -- who relied solely on
the probation officer’s report for the facts underlying the commitment offense -- viewed
the cause of the victim’s death as having occurred in the bathroom on the day she was
taken to the hospital. As a further consequence of the probation report omission, neither
psychologist asked defendant about the description of the injuries provided by the
pathologist or defendant’s admission to the detectives that he shook the victim. Thus,
neither psychologist factored the pathologist’s description of the injuries into their
evaluation of whether defendant was minimizing his conduct. Moreover, despite having
admitted to a detective that he shook the victim, defendant never mentioned that fact to
either of the two psychologists. Thus, defendant has never given a “coherent account” of
how the injuries described by the pathologist were inflicted (see Shaputis II, supra, 53
Cal.4th at p. 213), and from the Governor’s review of the accounts defendant has given,
the Governor understandably concluded that those versions were inconsistent with the
injuries.
       In their original appellate briefing, the People make an additional argument
concerning the injuries. Despite the Board’s finding that the victim “died as a result of
the injuries that had been inflicted upon her over a period of time” and her death was not
the result of a “singular event” and the Governor’s statement that the injuries were
inflicted on multiple occasions, the People on appeal also rely on the prosecutor’s
statement to the probation officer that the attending physician had testified that the
subdural hematoma “was a fast forming injury and most likely occurred just prior to the
paramedics[’] arrival.” The People claim this opinion shows that the victim’s fatal
injuries were not caused by a mere fall to the bathroom floor; instead, the People infer
that defendant had beaten the victim “just prior to the paramedics arriving at the
house….” Thus, according to the People, the Governor could conclude that defendant
lacks insight because he maintained that the victim died “as a result of her falling in the

                                             30
bathroom--despite evidence to the contrary….” (Italics added.) We do not disagree with
this observation, but note that defendant’s decision to not discuss in more detail the
specific conduct that resulted in the victim’s injuries allows the Governor find that
defendant previously abused the victim and the subdural hematoma was slow forming or
conclude that defendant severely beat the victim the day she was taken to the hospital and
her subdural hematoma was fast forming. Either way, the defendant’s previous
explanations to the psychologists omitting a “coherent account” that explains the victim’s
injuries provides “some evidence” of lack of insight. (Shaputis II, supra, 53 Cal.4th at
p. 213.)
       In his briefing and again at oral argument, defendant relies on In re Palermo
(2009) 171 Cal.App.4th 1096, where this court concluded that discrepancies between the
evidence and the defendant’s version of the events did not indicate lack of insight
because the defendant’s version of the events was not physically impossible and did not
strain credulity since his version was not “delusional, dishonest, or irrational.” (Id. at
p. 1112.) As the court in In re Tapia (2012) 207 Cal.App.4th 1104, 1113 observed, “[t]he
rule of In re Palermo has been called into question by the Supreme Court’s decision in In
re Shaputis, supra, 53 Cal.4th at pages 214-215, in which the court held the record must
be viewed in the light most favorable to the Board’s decision, and that when ‘the parole
authority declines to give credence to certain evidence, a reviewing court may not
interfere unless that determination lacks any rational basis and is merely arbitrary.’ ” The
same holds true for decisions made by the Governor, and we cannot say that the
Governor’s determination here lacks a rational basis or is merely arbitrary.
       At oral argument, defendant contended this case is like Young, supra, 204
Cal.App.4th 288. We disagree. Young is distinguishable because in Young, a case in
which the Board denied parole, the Board ignored relevant statutory factors, including
those related to the defendant’s insight (id. at p. 305), and grounded its decision
exclusively on the defendant’s purported lack of insight. (Id.) In fact, the Board found

                                              31
that the defendant lacked “any insights” into why he committed the commitment offense.
(Id. at pp. 310-311, original italics.) Contrary to that finding, the Court of Appeal
observed there was significant evidence in the record which indicated the defendant did
have insight. (Id. at p. 309.) The Court of Appeal concluded, “The Board’s conclusion
that [defendant] did not have any insights into why he committed the crime does not
reflect [the] requisite due consideration and, given that it is not supported by the
evidence, it is arbitrary, meaning that it is not supported by a modicum of evidence that is
rationally indicative of current dangerousness.” (Id. at p. 312.) The Board’s decision
also did not reflect “due consideration of several relevant statutory factors” beyond those
regarding the defendant’s “taking responsibility for the commitment offense,” remorse,
and insight, including the defendant “exemplary prison record, extensive rehabilitative
programming, positive psychological evaluations, concrete parole plans, and significant
support from family and friends.” (Id. at p. 293.) The court of appeal concluded that
“The Board’s analysis does not reflect due consideration of all the relevant suitability
factors and evidence, and rests largely on incorrect factual contentions and guesswork. In
our own review of the entire record, we have not found a modicum of evidence
supporting the Board’s analysis that is rationally indicative of current dangerousness.”
(Id. at p. 300.)
       Here, the record reflects that the Governor did consider the evidence in
defendant’s favor, including that which reflects insight. The evidence on insight is
conflicting. There is evidence defendant does have insight. The Governor has pointed to
and relied upon evidence indicating lack of insight. We will not reweigh the evidence.
“[I]t is not for the reviewing court to decide which evidence in the record is convincing.”
(Shaputis II, supra, 53 Cal.4th at p. 211, original italics.)
       As our high court has made clear, the “some evidence” standard means a
“modicum of evidence” supporting the determination that the inmate would pose a
danger to the public if released on parole. (Shaputis II, supra, 53 Cal.4th at p. 214.) And

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we may reverse the Governor’s decision “[o]nly when the evidence reflecting the
inmate’s present risk to public safety leads to but one conclusion….” (Id. at p. 211,
italics added.) Here, we cannot say that the evidence regarding insight “leads to but one
conclusion.” There is “some evidence” defendant lacks insight as to the commitment
offense and thus presents a current risk to public safety if released. (Id. at p. 219.)
                    III. Lack of Insight into Past Marijuana Abuse
       The People argue that defendant’s “lack of insight into his past substance abuse”
provides some evidence of his current dangerousness when “combined with other
evidence in the record,” specifically, defendant’s “lack of insight into the offense.”
(Italics added.) We agree.
                                      A. Background
                               Probation Report – Drug Use
       The probation report stated that defendant “admitted drinking alcohol on occasion,
denying excessive alcohol use. He admitted smoking marijuana on occasion, but denied
the use of any other type of illegal drugs or narcotics.”
                       2004 Psychological Evaluation – Drug Use
       The psychologist wrote, “The inmate described a pattern of moderate social
alcohol use and some occasional experimentation with marijuana. He began smoking
marijuana occasionally at age 13 and alcohol at age 13 also occasionally. There was no
drug of choice for him and he has not used any drugs or alcohol since 1993. There is no
record of any drug or alcohol abuse since entering prison. The inmate has never
participated in a drug or alcohol treatment program prior to his arrest. Within the CDC
the inmate has participated in both AA and NA, 1994 to 1995 participated in both NA
and AA at Folsom in 1999 participated again in NA and AA at Ironwood and in 2001 to
present has participated in NA at CVSP also he is currently the secretary of Narcotics
Anonymous 2004.” (Italics added.) As to the question of whether defendant has a



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diagnosed substance abuse problem, the psychologist answered that question, “no.” The
psychologist opined that “[d]rugs/alcohol did not play any role in the offense.”
                       2008 Psychological Evaluation – Drug Use
       The psychologist wrote, “records indicate that the inmate has a positive history for
the following substances: Alcohol and marijuana. When this examiner queried the
inmate regarding his past substance use, he reported that he first began to use alcohol
when he was ‘15’ years old. It should be noted that document’s [sic] in his C-File report
that the inmate first began to abuse alcohol when he was ‘13’ years of age.… In regards
to marijuana, the inmate reported that he first began to abuse this substance [when] he
was ‘14’ or ‘15’ years of age. It should be noted that records indicate that the inmate has
previously stated that he began to abuse marijuana when he was ‘13’ years of age. He
reported to this examiner that he started smoking marijuana shortly after he began
smoking cigarettes. He reported that at his heaviest use he would smoke ‘three joints in a
day, but not that much because my mom would have a tight grip on me.’ The inmate
reported that he last abused marijuana in the year of 1993 prior to the controlling
offense.” (Italics added.)
       The psychologist noted an elevated score on one of the scales in one of the
assessment tools he used to determine violence potential – “Lack of insight.” As to this,
the psychologist wrote, “In regards to lack of insight, the inmate displayed a lack of
insight into the nature of his past abuse of marijuana. Records indicate that the inmate
has abused marijuana from at least the age of 14 and consumed approximately three
marijuana cigarettes per day. When [defendant] discussed his marijuana usage with this
examiner, the inmate minimized the substantial nature of this past addiction and
displayed poor insight into the fact that he was addicted to cannabis.” (Italics added.)
       In the section of the report related to “Overall Violence Risk,” the psychologist
wrote, “the inmate displayed poor insight into the substantial nature of his past marijuana
usage. In discussion with this examiner, [defendant] noted that he did not believe that he

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was ever addicted to marijuana. This is concerning in that records clearly document that
the inmate was abusing at least three marijuana cigarettes on a daily basis prior to his
incarceration. It is imperative that the inmate gain more insight into the fact that his past
marijuana usage was substantial and could potentially impact him when placed back into
the community.” The psychologist opined that defendant’s “poor insight into the
substantial nature of his past marijuana usage” was a deficit area that “may increase the
inmate’s risk to violently recidivate.” (Italics added.)
       The psychologist did acknowledge defendant’s efforts in dealing with his
substance abuse problems, writing that “[a]lthough the inmate minimized the importance
of his past cannabis usage, he should be commended for his continual attendance in
Narcotics Anonymous for at least four straight years.”
                         Defendant’s Statements at the Parole Hearing
                                 Regarding Marijuana Use
       Defendant did not deny using marijuana in the past, but stated he was not drunk or
under the influence of marijuana at the time of the commitment offense. When
questioned about the psychologist’s report and how his use of marijuana and alcohol
impacted his state of mind or his view of the world, defendant replied, “Well, I was
already an unstable person, and I think that the use of alcohol and marijuana contributed
to that instability even further. I was already a person who was frustrated with life,
frustrated with the fact that, you know, I made a lot of bad decisions, frustrated that I was
a bad parent. You know, I was frustrated from…the beginning, from the death of my
grandmother is when it all began, and I…just built on that. I withdrew from life. I
created…problems for my mother, and…it contributed to the unstable person that I
already was.”




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                                        B. Analysis
       The Governor relies on the portion of the 2008 psychologist’s discussion of
defendant’s marijuana abuse – specifically that defendant did not believe he was ever
addicted to marijuana.
       The 2008 psychological evaluation stated at the outset, under “Sources of
Information,” that defendant’s “Central File (C-File) and Unit Health Record (UHR)
were reviewed. This review included a full psychological report on [defendant in 2004]
for the Board of Parole Hearings….” However, the psychologist did not identify the
specific records from which he obtained information concerning defendant’s marijuana
use.
       Faced with the same dilemma, the trial court stated, “It appears that the ‘records’
that the [2008 mental health evaluator] relied upon” were “[defendant’s] self-report that
he began to abuse marijuana when he was approximately 13 years old, and that at his
heaviest use, he would smoke three joints a day, but usually not that much because of
parental controls.”
       The trial court’s conclusion is supported by the 2004 mental health evaluation
which, like the 2008 evaluation, was based in part upon defendant’s “C-file and medical
records” but made no mention of any “records” that indicated defendant was using at
least three marijuana cigarettes on a daily basis prior to his incarceration. Rather, as we
have noted, the 2004 evaluation stated that defendant “began smoking marijuana
occasionally at age 13 and [drinking] alcohol at age 13 also occasionally.”
       We also note that when defendant was asked at the parole hearing about the 2008
report reference to his marijuana use, he replied that the “heavy drug use when I was
younger when I first started, you know, around like the seventh grade or something, so
between 13 and 14 years old. That’s when the bulk of that happened, and then it was like
off and on, you know, up until I came to jail.” Consistent with his testimony at the parole



                                             36
hearing, when interviewed by the probation officer years earlier, defendant “admitted
smoking marijuana on occasion.”
       We cannot determine whether the 2008 psychologist rested his conclusions upon
matters that were adequately demonstrated in the records assembled for the evaluation.
While the present record suggests a misinterpretation of statements made by defendant,
“it is not for the reviewing court to decide which evidence in the record is convincing.”
(Shaputis II, supra, 53 Cal.4th at p. 211.) Moreover, the 2008 psychologist’s opinion was
also based on an elevated score on an insight scale in one of the psychological assessment
tools he employed.
       Accordingly, based on the record before us, the 2008 psychologist’s opinion, in
combination with defendant’s lack of insight13 as to the commitment offense, provided
“some evidence” to support the Governor’s conclusion as to defendant’s current
dangerousness.




13 We note that the mere risk of substance abuse relapse can never be entirely eliminated
and cannot itself warrant the denial of parole, because if it did the mere fact that a
defendant was a former substance abuser would forever justify a decision that the
defendant is unsuitable for parole. (In re Stoneroad (2013) 215 Cal.App.4th 596, 625.)

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                                      DISPOSITION
       The trial court’s order granting the writ of habeas corpus is reversed. The trial
court is directed to enter a new order denying writ relief. The Governor’s decision
reversing the decision of the Board is reinstated.



                                                        MURRAY                , J.



       We concur:



             NICHOLSON , Acting P. J.



             BUTZ           , J.




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