Filed 8/24/20 (unmodified opinion attached)
Order modifying opinion filed 7/23/20

                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     FIRST APPELLATE DISTRICT

                               DIVISION TWO

                                              A154983
 In re ANDREW DAVE
 SHELTON,                                     (Solano County Super. Ct.
                                               No. FCR334660)
        on Habeas Corpus.
                                              ORDER MODIFYING OPINION
                                              NO CHANGE IN JUDGMENT

THE COURT:
       It is ordered that the opinion filed herein on July 23, 2020,
be modified as follows:
       1. On page 19, at end of the last full paragraph, add as
footnote 8, the following footnote, which will require renumbering
of all subsequent footnotes:
               This statement of how the system is supposed to
               8

       operate, however, may not describe reality. In 2019, 66
       percent of the hearings conducted by the Board resulted in
       a denial of parole, 61 percent of the hearings held for
       indeterminately sentenced youth offenders resulted in a
       denial (as did 77% of those for determinately sentenced
       youth offenders), and 68 percent of hearings held for
       inmates eligible for an elderly parole hearing resulted in
       the denial of parole. (Board of Parole Hearings, 2019
       Report of Significant Events (Feb. 18, 2020) p. 7.)

       2. On page 34, in the last partial paragraph, make a new
paragraph after the sentence ending, “. . . in which it is so


                                         1
eminently present.” The first sentence of the new paragraph is
changed to read:
            According to the California Department of
      Corrections and Rehabilitation (CDCR), 32 percent of the
      prison population in 2017 was mentally ill; and life
      prisoners eligible for parole, like Shelton, are more likely
      than other inmates to be mentally ill.13


      3. On Page 35, at the end the of the sentence above, add as
footnote 13, the following footnote, which will require
renumbering of all subsequent footnotes:
            13 The high percentage should not be surprising.
      According to a 2014 survey, there were approximately 10
      times more identifiable mentally ill persons in state prisons
      in this nation than there were in mental hospitals. Torrey
      et al., The Treatment Advocacy Center, The Treatment of
      Persons with Mental Illness in Prisons and Jails; A State
      Survey (Apr. 8, 2014) p. 101 <http://treatmentadvocacy
      center.org/storage/documents/treatment-
      behind-bars/treatment-behind-bars.pdf> [as of
      Aug. 24, 2020].)

      4. On page 35, and in between the parenthesis ending
“. . . [as of July 23, 2019].)” and the sentence beginning “In a
prison system . . .” add the following:
      Furthermore, “[o]n average, prisoners with mental illness
      receive sentences that are 12 percent longer than prisoners
      convicted of the same crime but without mental health
      diagnoses.” (Id. at p. 2.) Prisoners with mental illness are
      more likely to be deemed unsuitable for release because the
      symptoms of their illness often involve behavior that



                                  2
      violates prison rules. (Id. at p. 4, citing as an example,
      “People v. Nolkemper, Los Angeles Sup. Ct. Case No.
      LA030060-01 (Nov. 3, 2016) [finding petitioner unsuitable
      for release based on prison rule violations directly related
      to petitioner’s mental illness].”) Indeed, having a mental
      illness may itself be weighed as a basis for finding a
      prisoner unsuitable for release on parole, as CDCR
      regulations provide that having “a history of unstable or
      tumultuous relationships with others” is a “circumstance
      tending to show unsuitability” for release. (Regs., § 2281,
      subd. (c)(3); see also, Human Rights Watch, Ill-Equipped:
      U.S. Prisons and Offenders with Mental Illness (Oct. 21,
      2003) <https//:www.hrw.org/report/2003/10/21ill-equipped/
      us-prisons-and-offenders-mental-illness> [as of
      Aug. 24,
      2020].)
      5. On page 36, after the quote: “ ‘overwhelming evidence of
the systematic failure to deliver necessary care to mentally ill
inmates’ in California” delete “the denial of” and add the words
“denying Shelton.” The partial sentence should read:
     “overwhelming evidence of the systematic failure to deliver
     necessary care to mentally ill inmates” in California,
     denying Shelton parole on grounds so obviously related to
     mental illness adds insult to injury.
      6. On page 36, at the end of the sentence above, add the
following, including footnote 14, which will require renumbering
of all subsequent footnotes:



                                 3
      The denial of parole in this case (the seventh in
      the 16 years since Shelton became eligible for
      parole) on the basis of Shelton’s confused
      memory and assertedly illogical and implausible
      explanation seems wholly indifferent to the
      many reasons mentally ill inmates are much
      less able than other prisoners to satisfy the
      demands of the parole process and,
      consequently, serve significantly longer prison
      terms

      than otherwise similarly situated prisoners.14

      7. Add the following as text of footnote 14:
              14 The
                  many ways in which mental illness
      exacerbates the pains of imprisonment have been
      illuminated by University of California Santa Cruz
      Professor Craig Haney, a leading scholar in this area.
      (Haney, “Madness” and Penal Confinement; Some
      Observations on Mental Illness and Prison Pain
      (2017) 19 Punishment & Society 310.)

      8. On page 37, in the second full paragraph, change the
first sentence to read:
              To repeat, “ ‘parole is supposed to be the rule, rather
      than the exception.’ ”


      There is no change in judgment.


Dated: ____________________            ________________________
                                                      KLINE, P.J.




                                   4
Trial Court:                Solano County Superior Court

Trial Judge:                Honorable Daniel Healy

Attorney for Petitioner:    By Appointment of the Court of Appeal
                            Under the First District Appellat Project
                            Shannon Chase

Attorneys for Respondent:   Attorney General of California
                            Xavier Becerra

                            Phillip J. Lindsay
                            Senior Assistant Attorney General

                            Sara J. Romano
                            Supervising Deputy Attorney General

                            Denise A. Yates
                            Deputy Attorney General




                              5
Filed 7/23/20; Opinion following rehearing (unmodified opinion, see 8/24/20 order)

                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     FIRST APPELLATE DISTRICT

                                DIVISION TWO


 In re ANDREW DAVE SHELTON                             A154983
        on Habeas Corpus.
                                                       (Solano County Super. Ct.
                                                        No. FCR334660)

       Andrew Dave Shelton, serving a life sentence for a 1991
second degree murder, petitions for a writ of habeas corpus after
being denied parole in 2016, and again in 2018. He contends the
Board of Parole Hearings (Board) failed to apply controlling legal
principles in finding him unsuitable for parole. As we will
explain, we agree that the relief he seeks—a new parole
suitability hearing—is warranted.
                               BACKGROUND
       In 1993, Shelton was sentenced to a prison term of 19 years
to life after pleading no contest to the second degree murder of
his mother-in-law, Carol Tveisme, and assault with a firearm on
her sister-in-law, Broje Tveisme. His minimum eligible parole
date was February 18, 2004; the parole hearings in 2016 and
2018, were his fifth and sixth. Each of these hearings followed a
prior three-year denial and was advanced to a hearing date
earlier than the three years as a result of the administrative
review process.


                                          1
      After Shelton filed a pro. per. petition for writ of habeas
corpus challenging the parole denials, this court issued an order
to show cause and appointed counsel to represent him. A
supplemental petition was filed on February 19, 2019, followed by
respondent’s return and Shelton’s traverse. While these
proceedings were pending, Shelton appeared for another parole
hearing on November 15, 2019, and was again denied parole. We
denied Shelton’s request to expand the order to show cause but
stated that any effect of the 2019 parole denial would be
addressed in disposing of the issues raised in the current
pleadings. 1
Pre-offense Background
      Shelton entered the military at age 17, after graduating
from high school, and served from 1973 to 1991. The only
instance of violence in his history was a bar fight early in his
military service, which he said he did not instigate but responded
to with violence. He served in active combat in various global
locations, and reported having seen “horrible death, destruction”
including rebels in the Congo “killing children, cutting babies out
of women’s stomachs.” He received a Purple Heart and a Bronze
Service Star, as well as other decorations including the “Army


      1Shelton’s request was framed as an “Alternative Request
To Expand Order To Show Cause To Include November 15, 2019
Parole Denial Or For Finding That This Subsequent Parole
Hearing Failed To Resolve The Issues Before This Court In The
Habeas Proceeding.” Respondent did not seek to oppose this
request. Respondent does argue that the 2019 hearing and
denial moot Shelton’s challenges to the 2016 and 2018 decisions.
We explain our reasons for rejecting this contention, post.


                                  2
Service Ribbon/Oversea Service Ribbon, Professional
Development Ribbon, Army Commendation Medal, Army Good
Conduct Medal, Driver’s Mechanic Badge, and National Defense
Service Medal.”
      In 1990, Shelton suffered a traumatic brain injury when
the tailgate of a five-ton truck was dropped on his head, after
which he reported significant memory difficulties, had problems
with getting lost, and suffered slurred speech. He also suffered
back injuries when a helicopter he was in was shot down, and
according to some of his accounts sustained head injuries in that
crash. 2 He acknowledged abusing alcohol while in the military,
saying he never drank on duty but drank “ ‘hard’ ” on days off.
He was honorably discharged in 1991, with a “100% disability for
psychogenic amnesia.”
      Shelton married in 1980, and had two daughters, but his
wife left him for another man shortly after the birth of the second
child, and then died in an airplane crash. He met Lori, his
second wife, in Hawaii around the time of his discharge from the
military. His daughters, then six months old and nine years old,
were living with his sister in Texas. He and Lori moved to
Fairfield, California and the children came to live with them, as
did Lori’s son. At this time, the army owed Shelton $64,000 in
back pay.


      2 The 2016 risk assessment report noted that in his
interview, Shelton was “convinced” his only head injury in the
military was from a helicopter crash despite records of a 1991
psychological evaluation indicating the head injury resulted from
being hit with the tailgate.


                                 3
      Shelton's marriage to Lori was very brief. He reported that
she had an alcohol problem and left the treatment program he
put her in, and that she would throw things at him, hit him,
threaten him with a bat or knife, and threaten to have him killed.
Shelton denied hitting her, but stated at the 2018 hearing that he
once “spanked” her to get her to stop what she was doing. Lori’s
mother, Carol, “talked ugly” to him, criticized, insulted, and
belittled him.
      Prior to the life offense, Shelton believed Lori and her
family were trying to kill him. In a 1992 interview, he said that
they were trying to kill him to get access to his disability
payments, and that two men had followed him, entered his home
with a gun, and attempted to kidnap his children. Carol had
pointed a gun at him in September 1991, and days before the life
offense, Lori had given him rat poison. 3 The 1993 presentence
report related Shelton saying that six days before the life offense
Lori threatened to have him killed, and the day before the
offense, her friends attempted to kill him. At the 2016 hearing,
Shelton said the men who came to his house were trying to hurt
him, not to kidnap the children. At the 2018 hearing, however,
when asked if he thought someone was trying to kill him, Shelton
said, “No. See, the head injury kind of made me paranoid.”




      3 According to Shelton, Lori put something on his food
while they were eating in a restaurant and he subsequently
swelled up and had to be taken to the hospital. He stated he was
not allergic to anything.


                                  4
The Life Offense
      At the time of the life offense, Shelton was 37 years old and
had no prior criminal record. According to the police report,
Shelton arrived at Carol’s home, where Lori was then living, at
9:00 a.m. on December 11, 1991. After talking with Lori, Shelton
went into Carol’s office to talk with her and shot Carol once in the
head and once in the neck with a .25 caliber semiautomatic
pistol. The coroner subsequently concluded that either of the two
shots could have caused Carol’s death.
      After the shooting, Shelton returned to the living room to
talk to Lori. Lori went into a neighbor’s apartment and locked
the door “against [Shelton’s] attempts to gain entry.” Shelton
shot three times into the door, and Lori jumped out a window and
ran. Shelton went downstairs, grabbed Carol’s sister-in-law
Broje in a headlock, placed the gun to her chest, and dragged her
to the south end of the apartment complex, where she managed
to get away and ran to a neighboring apartment. As she ran,
Shelton pointed the gun at her and counted to three, then put the
gun to his head and pulled the trigger. He was arrested and
taken to the hospital.
      Shelton has always maintained Carol was shot
accidentally. His basic account of the shooting has been
consistent: After drinking several shots of vodka, he borrowed a
gun from his daughter’s babysitter before going to Carol’s
apartment. He and Carol argued about money, then as he was
leaving, he was hit on the head, the gun fell on the floor, she
grabbed it, and in a struggle over control of the gun, it fired



                                  5
accidentally. 4 Details of the events and his motivations, however,
have varied between his various forensic interviews and
statements to the Board, as have details about his life.
      Shelton has repeatedly stated that he borrowed the gun
from his babysitter because of his belief that Lori and Carol
wanted him killed and/or the attempts to kill him. But he told
the psychologist who conducted his 2016 risk assessment
evaluation he did not know why the babysitter gave him a gun
the morning of the offense. At the 2016 hearing, Shelton at one
point said he brought the gun to Carol’s house because he
thought the men who had come to his house would be waiting to
ambush him; at another point said he did not know why the
babysitter gave him the gun; and at yet another point he said the
babysitter told him to take the gun because “those guys might be
there.” At the 2018 hearing, he did not remember having said he
brought the gun because he thought the men who came into his
house were going to be waiting for him; he said the babysitter
gave him the gun after talking to him about Lori and he did not
know why he took it.
      Shelton went to Carol’s on the morning of the offense after
Carol called saying Lori was sick and asking Shelton to come and
take her to the hospital. Although Shelton reported having
stopped drinking after leaving the military, he drank three or
four shots of vodka that morning. When he arrived at Carol’s,

      4 An exception to this consistency appears in a pro. per.
petition to recall sentence dated January 31, 2018, in which
Shelton referred to the life offense as the “impulsive murder of
his mother-in-law.”


                                 6
Lori was not sick. They discussed signing divorce papers and
Shelton giving Lori $25,000 from the $64,000 he had received
from the Army. At the 2018 hearing, however, when asked where
he was going to get the $25,000, Shelton said he was going to
borrow it from his brother-in-law.
      After the discussion with Lori, Shelton and Carol got into
an argument about money. As Shelton attempted to leave, Carol
hit him on the head; in some accounts he said she hit him with a
hammer and in others that he did not know what she hit him
with. He fell, and the gun came out of his sock (as he told the
probation officer in 1993 and psychologist in 2016) or back pocket
(as he said at the 2016 and 2018 hearings). Carol grabbed the
gun and aimed at Shelton; at the 2018 hearings, he said she
“clicked” it, and the presentence report and 2016 risk assessment
report relate him saying she clicked it but the gun did not fire.
He leaped at Carol, causing both of them to fall against the wall,
and the gun accidentally fired during the struggle. Shelton’s
description at the 2016 hearing was that he “rushed her and bent
her hand back”; her hand was on the trigger and in the struggle
the gun fired, hitting her in the neck and side of the head. Asked
about the gun going off accidentally yet hitting the victim twice,
Shelton said, “[y]ou’ve got a ten-round magazine in the . . . stock.
And once you chamber the—chamber slider and a round goes up
in there, if you just barely touch it, it will go off, especially if
you’re pulling the trigger. And it will go off twice. It won’t go off
no more.”




                                    7
      Shelton explained that he fired three shots into the
neighbor’s doorknob in an attempt to get in and explain to Lori
what had happened.
      Regarding the incident with Broje, as related in the
presentence report, Shelton said he saw Broje as he was leaving
and grabbed her in order to explain what had happened. He
denied holding a gun to her, and said that after talking briefly
with her, he shot himself in the head. At the 2016 hearing, he
said that as he was crying and trying to explain what had
happened, he “put [his] hand around” Broje, walked with her to
the “south end” and let her go, and did not point the gun at her or
chase after her. He denied trying to commit suicide when he shot
himself in the head and, confronted with a report of his having
said he shot himself out of despair and guilt, did not remember
having said this. Noting that he “talk[s] with [his] hands a lot,”
Shelton said he was trying to explain to the police what had
happened while holding the gun in his hand, and as he was
demonstrating the struggle and the bullet hitting Carol’s head,
the gun “just went off.” In contrast, the 2016 risk assessment
report related Shelton having said that when he was trying to
explain what happened to the police, he “thought they weren’t
gonna take the word of a black man . . . so I shot myself right
there.”
      According to the 2016 risk assessment report, Shelton
described a different sequence of events than in his other
accounts: After the shooting, he first went to explain what




                                 8
happened to Broje, who was scared and would not talk to him, 5
then went to find Lori and shot at the door knob when she would
not open the door, and then went outside and encountered the
police.
      Although Shelton consistently insisted Carol was shot
accidentally, he took responsibility for her death due to his
having brought the gun that day. At the 2016 hearing, he said it
was his fault “for having the gun.” He said he was not mad when
he went to the apartment to talk to Lori that day, although at
another point, discussing how he would get angry in arguments
with Carol, he said, “[t]he day I went over there, I got mad, I shot
her.” At the 2018 hearing, he said he took “full responsibility” for
Carol’s death even though it was an accident, and recognized that
he “hurt a lot of people.” He told the panel, “She didn’t have no
right to lose her life. She didn’t have no right—I didn’t have no
right to do what I did. I betrayed that family.” He took
responsibility “[f]or everything. That I hurt my daughter’s. I
hurt the community. It’s a good community, a nice community. I
hurt the community. Lori Shelton’s family, the Tveisme treasure
family. . . . They lost their grandmother. The grandkids can’t see
their grandmother. They don’t know who their grandmother was,




      5The report quoted Shelton saying he was “running around
with my head cut off trying to tell [Broje] what happened. She
was south I think, sun rises in the east and sets in west right?
She was in the south. She was smoking in the south, outside.
Told her what happened, she got all scared and wouldn’t talk to
me.”


                                 9
for what I’ve done. And plus the community, the neighbors, and
everybody else. I’d affected a lot of people.”
Institutional Conduct
      During his more than 25 years in prison, Shelton received
five rules violation reports. The most recent was in 2011, for
refusing a rehousing assignment; Shelton maintained he had no
choice but to refuse because the prison intended to move him to a
cell with an inmate who sold drugs and possessed a cellular
phone. Earlier violations were for refusing a rehousing
assignment and delaying a peace officer in 2009, sexual behavior
in 2007, “conduct which could lead to violence” in 2005, and “Out
of Bounds” in 2005. The 2005 and 2007 violations both involved
an inmate named Blake. In 2007, the reporting officer observed
the inmates kissing each other on the lips; Shelton denied the
conduct. In 2005, the reporting officer heard a scream, then
observed Shelton with his arms wrapped around Blake; Shelton
said something like “you have my ring” or “give me back my
ring,” Blake said he did not have it and Shelton threw a punch.
Shelton said he was “just horse-playing” and they were not
fighting, and denied ever having been in a relationship with
Blake.
      During the early years of his incarceration, Shelton
completed vocational training programs in painting and in
refrigeration and air conditioning. He then trained as a hospice
volunteer in 2002 and 2003, and worked as a medical aide for




                                 10
many years. Laudatory “chronos” 6 in 2013 and 2014 “attest[ed]
to his strong work ethic compassion, and desire to learn.” He
completed over 20 “Pastoral Care Services Advanced Trainings”
from 2013 to 2015, and his work supervisor reports in that period
were “mostly exceptional performance ratings.” He was
reassigned in October 2015, after he was reported to have
“administered medical care without permission/supervision”
while assisting an inmate to urinate; it was noted that he
admitted “having feelings for the inmate.” He continued to write
pastoral care essays after being reassigned. He earned
certificates of completion for training in palliative care and
“nursing care of the older adult” in 2015, and was awarded a
diploma as Health Care Aide in March 2016. As of the 2018
hearing, his work assignment was in facilities and he was
continuing to do well and earn certificates in training courses.
      Shelton engaged in Alcoholics Anonymous (AA) throughout
his years in prison and participated in veterans groups and
various other self-help programs, including anger management
and “Alternatives to Violence,” earning numerous certificates of
completion.
      In 2005, Shelton married a woman he was set up with and
had spoken to only a few times. In a 2009 evaluation, Shelton



      6 A “chrono” is an institutional documentation of
information about inmates and inmate behavior. (See Cal. Code
Regs., tit. 15, § 3000 [definition of “General Chrono”]. All further
references to Regulations are to the California Code of
Regulations, tit. 15 [Crime Prevention and Corrections], Div. 2
[Board of Prison Terms], § 2000 et seq.)


                                 11
reported he did not recall this marriage: in 2013, he said the
marriage lasted about a year.
      In 2009, Shelton was placed in the Correctional Clinical
Case Management Services (CCCMS) after he reported having
been raped by 20 inmates and reported or was observed to have
nightmares, difficulty sleeping, a quick startle response, social
withdrawal, agitation, and beliefs that his problems with
urination and constipation were due to the rape. While in
CCCMS he reportedly disclosed two suicide attempts during his
military service—cutting his wrists and overdosing on aspirin.
He subsequently denied these were suicide attempts, saying he
had been misunderstood when he described being injured on
barbed wire while in the field, then taking multiple doses of
aspirin due to the pain. Shelton’s risk assessments reports state
that he was removed from CCCMS in 2010 at his request, with a
notation that depression and insomnia had not been apparent for
six months. At the 2018 hearing, however, the commissioners
stated that records showed he was in the mental health system;
Shelton said he had not seen his psychiatrist in “a while” because
she said he no longer needed to.
Parole Plans
      Shelton was pursuing plans to move into transitional
housing, but also had the option of living at his brother-in-law’s
house; his sister had died by the time of the 2018 hearing, but his
brother-in-law remained ready to offer support. He was entitled
to retirement and full medical benefits from the Department of
Veterans Affairs (VA), as well as social security disability



                                 12
benefits, and would not need to work for compensation, but he
intended to volunteer as a health care aide at the VA or, if that
did not work out, with programs helping the homeless.
Risk Assessment
      Shelton’s most recent “Comprehensive Risk Assessment,”
at the time of both the 2016 and 2018 hearings, from 2016,
concluded he presented a low risk of violence. All but one of his
prior evaluations had similarly assessed him as presenting a low
risk of violence (2003, 2009, 2013); the one exception placed his
risk at low to moderate (2006).
      The psychologist who evaluated Shelton in August 2016,
Dr. McManus, noted Shelton had “provided discrepant
information about his adult life across evaluations” and stated
this was “likely due to confusion and memory loss secondary to
multiple traumatic brain injuries.” Dr. McManus noted that
“[d]isorganization in his thought process and executive
functioning were evident throughout the interview.” Shelton
arrived one hour late due to difficulty finding the interview room,
and admitted he frequently became lost. His speech was mildly
slurred. Both remote memory and working memory appeared
impaired, albeit not uniformly. He appeared to have significant
difficulty remembering events from his military service and
immediately following his discharge and “appeared to engage in
some confabulation (describing events that occurred in his past
even though he was not convinced if the events actually
occurred).” He showed “relative strengths” concerning good
judgment and abstract thinking. Dr. McManus stated that



                                  13
“[d]espite some apparent cognitive difficulties, effective
communication was reached by speaking slowly and clearly,
using simple language, and offering to re-word questions as
needed. Shelton appeared to give his best effort to answer all
questions, and at times appeared frustrated and confused about
having difficulties coming up with an answer. His participation
appeared non-defensive, forthright, and fully cooperative.”
      According to Dr. McManus, despite the discrepancies in
Shelton’s reports regarding his head injury and the events during
and after his military service, “evaluating clinicians (Board
evaluations, military evaluation, multiple evaluations for
competence to stand trial and criminal responsibility) have
consistently concluded Shelton has not been lying/malingering”
but rather that “he was compromised by neurological
problems/confabulation, delusional thinking, or neurotic
amnesia.” In Dr. McManus’s opinion, “neurological problems and
confabulation appear to be the most likely explanation for his
memory problems and the associated additional problems with
his mental status.”
      Dr. McManus diagnosed Shelton with “Alcohol Use
Disorder, In a Controlled Environment” “Major Neurocognitive
Disorder, Mild, without behavioral disturbance,” and
“Posttraumatic Stress Disorder.” 7 He noted that Shelton’s


      7 Shelton had been diagnosed in 1997 with “Psychogenic
Amnesia (suspected), Organic Mental Disorder (rule out) and
Alcohol Abuse”; in 2003 with psychogenic amnesia and alcohol
abuse; in 2006 with “Cognitive Disorder Not Otherwise
Specified—possible amnesia/dementia, and Alcohol Abuse (rule

                                 14
neurocognitive disorder “may be following a progressive course
toward Moderate levels of impairment (his mental status during
the current evaluation appeared markedly more impaired
compared to his status during the 2013 evaluation). This could
lead to the future development of problems with anterograde
memory and executive functioning that could impair his ability to
independently care for himself.” With respect to the alcohol use
disorder, Dr. Manus reported that Shelton demonstrated
“internalization of multiple positive aspects of a substance use
relapse prevention plan” and “a good knowledge of the tenets of
Alcoholics Anonymous,” did not underestimate the possibility he
would be tempted to drink in the community and was aware of
his individualized triggers.
      In assessing Shelton’s risk for violence, Dr. McManus
stated, “it is clear that a major disorder of thinking has been
present since at least 1991. With the exception of the life crime,
this disorder does not appear to have a relationship to violent or
erratic behavior, as he has demonstrated non-violent and stable
behavior during his incarceration.” Dr. McManus stated that
Shelton’s motivations for the life crime remain “unclear due to his
confabulation of events around that time. It is likely his mental
disorder combined with disinhibition due [to] his use of alcohol
that morning contributed to his violent behavior.” It was noted
that the “potential effects of stress” on Shelton’s disorder should


out)”; in 2009 with “Cognitive Disorder Not Otherwise Specified
and Alcohol Abuse (rule out)”; and in 2013 with “Delusional
Disorder, Dementia due to head trauma (provisional), Alcohol
Abuse, Adult Antisocial Behavior.”


                                 15
be “closely monitored/managed during a transition to the
community,” and his history of substance use considered.
      Dr. McManus stated that Shelton was empathic and “has
not presented with persistent antisociality. His total PCL-R
score is far below the mean of North American male inmates and
below the cutoff or threshold commonly used to identify dissocial
or psychopathic personality.” It was “unlikely his neurocognitive
disorder will improve in the future” and “more likely that the
symptoms will worsen with age.” While there had not been a
connection between the disorder and violence in prison, “the
possibility remains for a repeat of the overwhelming confusion,
and fearfulness he experienced the last time he attempted to
reintegrate into the community.” “With regard to insight, it is
unlikely that his disorder will ever allow him to give a coherent
narrative about his motivations at the time of the crime. This
lack of insight does not appear to have led to violent outcomes in
prison but during a transition to the community, his lack of
insight would warrant consideration. However, violence risk
could likely be managed without full insight into the life crime, as
long as he possesses insight into the vulnerabilities that would be
most likely to lead to his use of violence (substance use, mental
disorder, poor stress response, interpersonal needs).”
Dr. McManus noted that while Shelton made statements
accepting full responsibility and acknowledging his fault for
carrying a gun on the day of the life offense, his description of the
events “portrayed himself as a passive victim of a family who
were harassing and attacking him” and he “did not appear to



                                 16
have given much consideration to the pain and fear his victim
must have experienced or to the effects on her family.”
      With respect to elder parolee considerations, Dr. McManus
observed that Shelton’s medical conditions included two viral
illnesses, a history of chronic back and knee pain and permanent
visual impairment, as well as neurological impairment that
might be “of a progressive nature which could eventually include
symptoms of dementia.” “A progressive neurological condition
would likely diminish his physical strength and his capacity to
effectively plan violence. However, his ability to independently
ambulate does not entirely rule out his potential to engage in less
planned/sophisticated violence.” Noting that Shelton had no
significant violent interactions in prison and minimal rules
violations reports, Dr. McManus stated that “[t]hese positive
behavioral patterns were likely influenced by the normal aging
process and the effects of long-term confinement to some degree.”
      Dr. McManus felt Shelton’s key risk factor for violence was
his neurocognitive disorder and therefore the key risk
management target was his ability to understand and manage
his condition in the community. Commenting upon the “problems
with insight, empathy and acceptance of responsibility” discussed
in the evaluation, and lack of understanding of the motivation for
the offense, Dr. McManus stated, “Most likely, we will never be
able to come up with the whole story of what occurred on the day
in question.” He explained that Shelton’s lack of empathy for the
victim could be “a by-product of the confusion he was
experiencing at the time, which appeared to be at the level of



                                17
intensity similar to a delusion” or “due to true hatred and
hostility,” but in either case “it is important to note these insight-
related problems do not appear to be present for him in any other
domains of his life. His few rules violations in prison do not
appear indicative of antisociality though they do show some poor
judgment in regard to his intimate relationships in prison. In
general, he appears to have a pro-social worldview. In sum, his
violence risk appears to have the potential to be effectively
managed by proper monitoring, treatment and management of
his mental disorder in combination with a strong network of
support persons, AA, [VA], and other community programs.”
Dr. McManus concluded Shelton presented a “low” risk for
violence, with “non-elevated risk relative to long-term inmates
and other parolees. Low-risk examinees are expected to commit
violence much less frequently than all other parolees.”
Physical Condition
      Shelton was 61 years old at the time of the 2016 hearing,
62 years old in 2018. He had been designated “Permanently
Mobility Impaired” in 2003, and was also designated
“Permanently Blind/Vision Impaired,” meaning his vision was
“not correctable to acuity of less than 20/200 with corrective
lenses.” At the 2016 hearing, he stated that he had trouble
maintaining his balance when walking and would sway and fall
backward, and he had an ADA worker to help him back to his cell
after the hearing. At the 2018 hearing, he reported that he had
had two back surgeries and a knee replacement, and was taking
60 milligrams of morphine twice daily for pain. He wore “special



                                  18
shoes” and had a restriction against lifting. At his doctor’s
recommendation, he was trying to walk without a cane, and he
was trying to go up and down stairs to regain strength in his legs
and back, which he could manage if he moved slowly.
                           DISCUSSION
      “ ‘Section 3041 mandates that the Board “ ‘ “normally” ’ ”
set a parole date for an eligible inmate, and “ ‘must’ ” do so unless
it determines that an inmate poses a current threat to public
safety. ([In re] Prather [(2010) 50 Cal.4th [238,] 249 [(Prather)],
quoting ([In re] Lawrence [(2008)] 44 Cal.4th [1181], 1202
[(Lawrence)]. [Fn. omitted.] As a result, parole applicants have “a
due process liberty interest in parole” and “ ‘an expectation that
they will be granted parole unless the Board finds, in the exercise
of its discretion, that they are unsuitable for parole in light of the
circumstances specified by statute and by regulation.’ ”
(Lawrence, [at pp.] 1191, 1204.) In other words, “ ‘parole is the
rule, rather than the exception’ ” (id. at p. 1204, quoting
In re Smith (2003) 114 Cal.App.4th 343, 366), and “the onus [is]
on the Board to justify denial of parole . . .” ([In re] Shaputis
[(2011)] 53 Cal.4th [192,] 222 [(Shaputis II)] (conc. opn. of Liu,
J.)).’ ” (In re Morganti (2012) 204 Cal.App.4th 904, 915–916,
quoting In re Young (2012) 204 Cal.App.4th 288, 301 (Young).)
      “ ‘ “We review the Board’s decision under a ‘highly
deferential “some evidence” standard.’ ” ([Young, supra], 204
Cal.App.4th [at p.] 302, quoting [Shaputis II, supra,] 53 Cal.4th
at p. 221.) “[T]he appellate court must uphold the decision of the
Board or the Governor ‘unless it is arbitrary or procedurally



                                  19
flawed,’ and it ‘reviews the entire record to determine whether a
modicum of evidence supports the parole suitability decision.’
(Shaputis II, at p. 221.) ‘The reviewing court does not ask
whether the inmate is currently dangerous. That question is
reserved for the executive branch. Rather, the court considers
whether there is a rational nexus between the evidence and the
ultimate determination of current dangerousness. The court is
not empowered to reweigh the evidence.’ (Ibid.) At the same
time . . . the Board’s decision must ‘ “reflect[ ] due consideration
of the specified factors as applied to the individual prisoner in
accordance with applicable legal standards.” ’ (Shaputis II, at
p. 210, quoting [In re] Rosenkrantz [(2002)] 29 Cal.4th [616,] 677,
and citing Lawrence, supra, 44 Cal.4th at p. 1204, and [In re
Shaputis (2008)] 44 Cal.4th [1241,] 1260–1261 [(Shaputis I)].)”
([In re] Stoneroad (2013) 215 Cal.App.4th 596, 616.) We are
required to affirm a denial of parole “unless the Board decision
does not reflect due consideration of all relevant statutory and
regulatory factors or is not supported by a modicum of evidence
in the record rationally indicative of current dangerousness, not
mere guesswork.” (Ibid.)
      ‘The nexus to current dangerousness is critical. “Lawrence
and Shaputis I ‘clarified that in evaluating a parole-suitability
determination by either the Board or the Governor, a reviewing
court focuses upon “some evidence” supporting the core statutory
determination that a prisoner remains a current threat to public
safety—not merely “some evidence” supporting the Board’s or the
Governor’s characterization of facts contained in the record.’



                                 20
(Prather, [supra, 50 Cal.4th] at pp. 251–252.)” (In re Stoneroad,
supra, 215 Cal.App.4th at p. 615.) “ ‘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.’ (Lawrence, [supra, 44 Cal.4th] at
p. 1212, italics added.) The Board ‘must determine whether a
particular fact is probative of the central issue of current
dangerousness when considered in light of the full record.’
(Prather, . . . at p. 255, italics added.)” (Young, supra, 204
Cal.App.4th at p. 303.) “ ‘[T]he proper articulation of the
standard of review is whether there exists ‘some evidence’
demonstrating that an inmate poses a current threat to public
safety, rather than merely some evidence suggesting the
existence of a statutory factor of unsuitability. (Lawrence, . . . at
p. 1191.)’ ([Prather], at pp. 251–252.)” (Shaputis II, supra, 53
Cal.4th at p. 209.)’ ” (In re Poole (2018) 24 Cal.App.5th 965, 972,
quoting In re Perez (2016) 7 Cal.App.5th 65, 84–85 (Perez).)
      When the Board denied Shelton parole in 2016, it
concluded he posed an unreasonable risk to public safety
primarily because it found his version of the offense “defie[d]
logic” and his continued view of it as accidental “hampered [his]
ability to come to terms with this crime, and to accept
responsibility for it.” Noting Dr. McManus’s statements that
Shelton’s lack of empathy for the victim could be a “by-product of
the confusion he was experiencing at that time, which appeared
to be at the level of intensity similar to a delusion” or “due to true



                                 21
hatred and hostility” toward the family, the presiding
commissioner told Shelton he needed to explore more deeply “to
see if there was hatred and hostility to the point of committing
murder.” Shelton was told he needed to “look at this from a
different angle,” that his professed acceptance of responsibility
did not clarify the motivation for the crime, and that “if you
haven’t come to terms with the actual murder, then you haven’t
zeroed in on what the problem is, so therefore, you haven’t been
able to fix the problem, because you don’t have an understanding
of why it occurred.”
      The panel in 2018 similarly found Shelton continued to
pose an unreasonable risk of danger to society because it found
his explanation of the offense implausible, had trouble believing
Shelton because his accounts varied, and felt Shelton did not
understand the magnitude of the crime and impact of his actions
on his victims. The panel told Shelton there was “really not
much difference” from 2016, when he was denied parole “for
basically a lack of insight and lack of remorse,” and he needed to
look at his offense “honestly.”
      At both hearings, the panels acknowledged that Shelton
was assessed as presenting a low risk of future violence, and
acknowledged his “exemplary programming” and “all the great
laudatory write-ups that you’ve been getting.” Shelton did not
have a violent history: Dr. McManus referred to the life offense
as “the only violent act or crime in his lifespan,” and the few rules
violations he incurred over his 28 years of incarceration did not
involve actual violence, the only one alleging violence having



                                  22
been sustained as conduct “likely to lead to” violence. 8 The
panels did not express concerns with Shelton’s parole plans,
which Dr. McManus described as “specific and feasible.” In short,
the denials were based on the panels’ conclusions that Shelton’s
lack of insight into his criminal conduct left him vulnerable to
repeating that conduct in the future.
      As we explained in Perez, supra, 7 Cal.App.5th 65, the
California Supreme Court made clear in Shaputis II that
“ ‘[c]onsideration 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)).



      8 Dr. McManus’s risk assessment noted that Shelton
reported having been involved in a bar fight early in his military
career.
       At the 2018 hearing, Shelton denied hitting Lori, even
when she hit him, but acknowledged having “spanked her” to
“make her quit” what she was doing. The panel viewed this as
domestic violence that negated Shelton’s claim he was not a
violent man. Shelton’s petition asserts that he testified he “might
spank her on the butt . . . to make her quit hitting him,” and the
commissioner mischaracterized this as “violence used to get his
wife to comply or listen to him.” The record does not indicate
what Lori was doing that he wanted her to “quit.” In responding
to the commissioner’s question whether Lori wanted a divorce,
Shelton had just referred to Lori having hit him in the mouth,
but it is not clear that his comments about spanking her referred
to the same occasion.


                                 23
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. (Lawrence, [supra, 44 Cal.4th] at
p. 1227; see also Shaputis I, [supra, 44 Cal.4th] at p. 1261,
fn. 20.)’ (Shaputis II, at p. 218.) Still, ‘the finding that an inmate
lacks insight must be based on a factually identifiable deficiency
in perception and understanding, a deficiency that involves an
aspect of the criminal conduct or its causes that are significant,
and the deficiency by itself or together with the commitment
offense has some rational tendency to show that the inmate
currently poses an unreasonable risk of danger.’ (In re Ryner
(2011) 196 Cal.App.4th 533, 548–549.) It has been noted that an
inmate’s lack of insight has taken the place of the heinous nature
of the commitment offense as a standard reason to deny parole,
‘so much so that it has been dubbed the “ ‘new talisman’ ” for
denying parole.’ (Id. at p. 547.)” (Perez, supra, 7 Cal.App.5th at
pp. 85–86.)
      The present case is particularly problematic because the
record suggests Shelton’s cognitive condition will never allow him
to achieve and demonstrate the kind of insight the panels have
been demanding. As described by Dr. McManus, Shelton’s
neurocognitive disorder was a significant contributing factor in
his commission of the life offense (“[i]t seems more than
coincidental that his life crime—the only violent act or crime in



                                 24
his lifespan—occurred around a year after his traumatic brain
injury”), and his “key risk factor for violence.” Accordingly,
Shelton’s “ability to understand and manage that condition in the
community appears to be the key risk management target.”
Dr. McManus stated that there were signs Shelton’s condition,
diagnosed as “mild” in 2016, was “following a progressive course
toward Moderate levels of impairment” and his “mental state
during the current evaluation appeared markedly more impaired
compared to his status during the 2013 evaluation. According to
McManus, “it appears unlikely his neurocognitive disorder will
improve in the future; in fact, it is more likely that the symptoms
will worsen with age,” and “[w]ith regard to insight, it is unlikely
that his disorder will ever allow him to give a coherent narrative
about his motivations at the time of the crime.” Dr. McManus
also viewed “neurological problems and confabulation” as “the
most likely explanation for his memory problems and the
associated additional problems with his mental status.”
      Further, Dr. McManus recounted that although there had
always been discrepancies in Shelton’s accounts of his head
injury and life events, “evaluating clinicians (Board evaluations,
military evaluation, multiple evaluations for competence to stand
trial and criminal responsibility) have consistently concluded
[Shelton] has not been lying/malingering. Rather, they have
concluded he was compromised by neurological problems/
confabulation, delusional thinking, or neurotic amnesia.”
      While acknowledging the possibility that “the
overwhelming confusion, and fearfulness he experienced the last



                                 25
time he attempted to reintegrate into the community” could
recur, and that his lack of insight “would warrant consideration”
during a transition to the community, Dr. McManus stated that
the lack of insight had not led to violent outcomes in prison and
“violence risk could likely be managed without full insight into
the life crime, as long as he possesses insight into the
vulnerabilities that would be most likely to lead to his use of
violence (substance abuse, mental disorder, poor stress response,
interpersonal needs).”
      None of the commissioners who participated in Shelton’s
2016 and 2018 parole suitability hearings expressed
disagreement with Dr. McManus’s assessment. But there is no
indication in the record they gave any consideration to the
likelihood that Shelton would never be able to achieve and
articulate the understanding of the offense and its motivations
they required of him. It is clear that Shelton’s confused memory
and differing accounts of various events were viewed by the
commissioners as undermining his credibility. At the 2016
hearing, for example, the presiding commissioner asked whether
Shelton ever looked at the shooting as an intentional act and told
him he needed to be truthful with himself in order to “overcome
the behavior.” When Shelton responded that he had been trying
and had “a real bad memory,” the commissioner said, “Let me tell
you this. If you can remember the children in Congo being killed
and beheaded, then you can remember what happened in this
commitment offense.”




                                 26
      To the extent Dr. McManus’s assessment is correct—and
the panels suggested no reason to question it—Shelton is unlikely
to ever be able to coherently answer the panels’ questions about
his motivations for and understanding of the life offense. In this
sense, the deficient insight upon which the panels based the
denials of parole is effectively an immutable factor precluding
parole. 9
      Our Supreme Court has stated that immutable facts such
as the circumstances of the life offense or criminal history of the
offender may be viewed as “some evidence” to support denial of
parole “only if those facts support the ultimate conclusion that an
inmate continues to pose an unreasonable risk to public safety.”
(Lawrence, supra, 44 Cal.4th at p. 1221.) As applied to deficient
insight, the question is whether the deficiency is “probative to the
central issue of current dangerousness when considered in light
of the full record.” (Ibid.)
      The commissioner’s concern was that Shelton’s lack of
insight left him at risk for future violence if faced with similar
triggering circumstances. While reasonable enough as an
abstract principle, this concern ignores facts specific to this case

      9 Shaputis II, supra, 53 Cal.4th at page 216, rejected a
petitioner’s argument that his inability to recall the
circumstances of the crime was an immutable factor and he
would be required to fabricate in order to show insight. There,
however, there was nothing in the record indicating any problem
with the petitioner’s memory, and the denial of parole was based
on other factors, as well as the petitioner’s lack of insight. (Ibid.)
Here, the record is clear that Shelton suffered traumatic brain
injuries that have impaired his memory and other cognitive
function for decades.


                                  27
that seriously undermine any nexus between the deficiency in
insight and dangerousness.
      To begin with, the constellation of factors at play at the
time of the life offense were so unique that it is difficult to
imagine what similar circumstances might occur at this point in
Shelton’s life. Newly out of the army and suffering from a
relatively recent traumatic brain injury that significantly affected
his thinking, suffering pain from knee and back injuries
sustained earlier in his military career, experiencing migraines
and going blind in one eye, Shelton found himself unable to
obtain medical treatment because of a “many-months long
waitlist” at the VA. At the same time, he was working and going
to school while trying to care for two young children and deal
with a new and tumultuous marriage to a woman with serious
alcohol problems and mother-in-law who he believed
disrespected, insulted, belittled, and criticized him. Almost three
decades later, Shelton has had years to adjust to his disabilities
and their effect on his cognitive and physical condition; his
children are adults; and he is no longer embroiled in tumultuous
romantic or familial relationships. He has learned strategies for
dealing with stress and anger that he did not know at the time of
the life offense and he no longer feels paranoid.
      Pursuant to the Board’s regulations, “[a]ll relevant, reliable
information available to the panel shall be considered in
determining suitability for parole.” (Regs., § 2402, subd. (b).)
One of the “Circumstances Tending to Show Suitability” for
parole is that “[t]he prisoner committed his crime as the result of



                                  28
significant stress in his life, especially if the stress has built over
a long period of time.” (Regs., § 2402, subd. (d)(4).) Accordingly,
the Board “is required to consider whether the prisoner committed
the crime as the result of significant stress in his or her life.”
(In re Scott (2005) 133 Cal.App.4th 573, 596, quoting In re
Rosenkrantz, supra, 29 Cal.4th at p. 679; In re Weider (2006) 145
Cal.App.4th 570, 589–590.)
      Shelton described himself as having been “stressed, very
stressed” and “just about to go crazy” when he committed the life
crime. Dr. McManus stated that the “confusion he was
experiencing at the time . . . appeared to be at the level of
intensity similar to a delusion.”
      Of course, “the importance attached to any circumstance or
combination of circumstances in a particular case is left to the
judgment of the panel.” (Regs., § 2402, subd. (d).) But there is no
indication in the record that the panels gave any consideration to
the potentially mitigating force of the stress under which Shelton
was operating at the time of the life offense. (In re Weider, supra,
145 Cal.App.4th at pp. 589–590 [“Board failed to acknowledge
that the crime was the result of significant stress in [petitioner’s]
life”].) On the contrary, the only sense in which the role of stress
seems to have been considered was as an aggravating factor, with
Shelton’s “poor stress response” viewed as one of the risk factors
he needed to be able to control.
      Additionally, the panels do not appear to have considered
Shelton’s physical condition in evaluating his current risk for
violence. Even aside from his traumatic brain injury, his



                                    29
physical condition has severely deteriorated over the years. He is
designated “Permanently Mobility Impaired” and “Permanently
Blind/Vision Impaired.” He has had knee and back surgeries,
continues to have pain and has difficulty walking without a cane.
        At each of the parole suitability hearings, the panels
discussed Shelton’s physical condition with respect to whether he
needed any accommodations at the hearings. The record reflects
no consideration, however, of how Shelton’s physical disabilities
bore on his potential for future violence. The magnitude of his
disabilities, especially combined with the absence of history of
violence apart from the life offense, logically warranted some
consideration in determining whether Shelton continued to
present a risk of danger to others.
        More significantly, Shelton’s physical condition was one of
the factors to which the panels were required to give “special
consideration” under the Elderly Parole Program. (Pen. Code,
§ 3055.) Section 3055 provides that when considering the release
of an “inmate who is 60 years of age or older and has served a
minimum of 25 years of continuous incarceration,” “the board
shall give special consideration to whether age, time served, and
diminished physical condition, if any, have reduced the elderly
inmate’s risk for future violence.” (Pen. Code, § 3055, subd. (a),
(c).)
        As earlier described, with respect to the elderly parole
considerations, the 2016 risk assessment stated that Shelton’s
neurological impairment “may be of a progressive nature which
could eventually include symptoms of dementia” and therefore



                                  30
“he appears to be experiencing major medical/cognitive issues of
particular relevance to this risk assessment, as a progressive
neurological condition would likely diminish his physical strength
and his capacity to effectively plan violence.” While his impaired
mobility “does not entirely rule out his potential to engage in less
planned/sophisticated violence,” Dr. McManus noted that Shelton
had “demonstrated no motivation to act violently toward others,”
or to "engage in antisocial and rule-breaking behaviors.” and
viewed his “positive behavioral patterns” in prison as “likely
influenced by the normal aging process and the effects of long-
term confinement to some degree.” 10 Dr. McManus described
Shelton as “empathic” and appearing to have “a pro-social world
view.” He assessed Shelton as presenting a low risk of future
violence, “expected to commit violence much less frequently than
all other parolees.”
      The transcripts of the 2016 and 2018 parole suitability
hearings reflect very little attention to the elderly parole
considerations. At the outset of each of the hearings, the
presiding commissioner noted that Shelton was eligible for
consideration under the Elderly Parole Program, 11 and at each of



      10 The only one of Shelton’s prison rule violations that even
came close to violence was the 2005 “conduct which could lead to
violence,” a lesser rule violation sustained after the disciplinary
hearing officer determined the evidence did not substantiate the
alleged “Mutual Combat.”
      11At the 2016 hearing, the commissioner stated only that
Shelton was “being considered under Elderly Parole, that
indicates that you at least are 60 years old and you’ve been in
custody for at least 25 years.” In 2018, there was a reference to

                                 31
the hearings the commissioner recited the statements about the
elderly parole considerations in the 2016 risk assessment. At the
2016 hearing, there was no further reference to the elderly parole
factors either during the hearing or in the panel’s decision. In
2018, the panel mentioned the factors in its decision—but only in
explaining why it was issuing a three-year denial rather than a
longer one, not in connection with its decision on suitability.
      It is apparent from this record that Shelton’s traumatic
brain injury negatively affected his cognitive functioning, both at
the time of the life offense and later, with regard to his ability to
remember and reflect upon his actions. According to the 2016
risk assessment, his condition was deteriorating as he aged. In
addition, his mobility and vision were impaired. Having failed to
address how Shelton’s physical condition related to his risk for
future violence, the panels cannot be viewed as having given
meaningful consideration to the elderly parole factors, much less
the “special consideration” required by Penal Code section 3055.
      As we have said, Shelton’s risk assessments (save one in
2006) have consistently determined he poses a low risk of future
violence. He did not have a violent history before the life offense,
he has not been involved in violence during his prison term, and
his increasing age attenuates a propensity toward violence. The
combination of challenges and pressures that contributed to his
mental state at the time of the life offense were unique; while he
might well face difficulties in transitioning to life in the


Shelton being qualified for “the consideration” under the Elderly
Parole Program.


                                  32
community, it is difficult to imagine how he could face a similar
set of circumstances at this point in his life. From participation
in self-help programming while incarcerated, he has learned
strategies for coping with stress and anger that he was not aware
of earlier in his life. He recognizes alcohol was a factor
contributing to his conduct, has consistently embraced AA during
incarceration and plans to continue doing so if released. He has
realistic plans for parole.
      According to Dr. McManus, it is likely Shelton will never be
able to address the motivations for the life crime coherently, but
as long as he has insight into his risk factors for violence, he
poses a low risk. Of course, while required to consider
psychological assessments of the inmate (Lawrence, supra, 44
Cal.4th at p. 1213), the Board is not required to accept the
opinion and conclusions of the evaluator. (In re Lazor (2009) 172
Cal.App.4th 1185, 1202 [“assessment does not necessarily dictate
the Board’s parole decision].) Still, “ ‘[i]n cases where
psychological evaluations consistently indicate that an inmate
poses a low risk of danger to society, a contrary conclusion must
be based on more than a hunch or mere belief that he should gain
more insight into his past behavior. The Board must point to
evidence from which it is reasonable to infer that the inmate’s
lack of insight reveals a danger undetected or underestimated in
the psychological reports.’ (Shaputis II, supra, 53 Cal.4th at
p. 228 (conc. opn. of Liu J.), citing In re Roderick (2007) 154
Cal.App.4th 242, 271–272.)” (Young, supra, 204 Cal.App.4th at
p. 312.)



                                 33
      The panels did not point to such evidence. The panels
announced their conclusions that Shelton lacked credibility,
insight, empathy, and remorse without addressing how these
conclusions took into account Shelton’s consistently low risk
assessments, Dr. McManus’s opinions that Shelton’s
neurocognitive disorder made it unlikely he would ever be able to
“give a coherent narrative about his motivations at the time of
the crime,” the disorder was progressive and his symptoms likely
to worsen with age, his lack of insight had not led to violence
during his incarceration, and it was likely his risk of violence in
the community could be managed without full insight into the life
offense as long as he had insight into the factors that would be
most likely to lead to violence.
      The Board’s denials of parole to Shelton in 2016, on the
ground his version of his criminal offense “defie[d] logic, and
again in 2018, on the similar ground that his explanation of the
offense was improbable, and he failed to confront the offense
“honestly” inexplicably ignore the confusion and memory loss
Dr. McManus attributed to Shelton’s traumatic brain injury,
posttraumatic stress disorder, and other neurological
impairments he considered “of a progressive nature which could
eventually include symptoms of dementia.” Such indifference to
mental illness is incomprehensible in a system in which it is so
eminently present. According to the Department of Corrections
and Rehabilitation, 32 percent of the prison population in 2017
was mentally ill; and life prisoners like Shelton, whose sentences
are set by the parole board, were found more likely than other



                                   34
inmates to be mentally ill. (Stanford Justice Advocacy Project,
Confronting California’s Continuing Prison Crisis: The
Prevalence And Severity Of Mental Illness Among California
Prisoners On The Rise (2017) p. 1 <https://law.stanford.edu/wp-
content/uploads/2017/05/Stanford-Report-FINAL.pdf> [as of
July 23, 2019].) In a prison system in which the treatment of
mentally ill inmates has been declared unconstitutional by the
United States Supreme Court (Brown v. Plata (2011) 563 U.S.
493, affirming Coleman v. Wilson (E.D. Cal. 1995) 912 F.Supp.
1282), which found “overwhelming evidence of the systematic
failure to deliver necessary care to mentally ill inmates” in
California, the denial of parole on grounds so obviously related to
mental illness adds insult to injury.
      To repeat, “ ‘parole is the rule, rather than the exception.’ ”
(In re Scott (2004) 119 Cal.App.4th 871, 891; In re Smith, supra,
114 Cal.App.4th at p. 366.) “Under the ‘some evidence’ standard
of review, the parole authority’s interpretation of the evidence
must be upheld if it is reasonable, in the sense that it is not
arbitrary, and reflects due consideration of the relevant factors.”
(Shaputis II, supra, 53 Cal.4th at p. 212.) In this case, due
consideration of the relevant factors is lacking.
      Contrary to the position taken by respondent, the fact that
Shelton received a parole suitability hearing in 2019 does not
moot the issues presented by this petition or preclude us from
ordering relief. Respondent’s return argues that Shelton’s
challenge to the 2016 denial of parole is moot because any due
process violation that may have occurred at the 2016 hearing



                                 35
would be redressed by our resolution of the challenge to the 2018
denial. The return further argues that the challenge to the 2018
denial should also be denied as moot because Shelton was
scheduled for another parole suitability hearing on November 15,
2019. That hearing, as indicated above, has now taken place.
          We disagree with respondent. As this case demonstrates,
where an inmate’s subsequent parole hearings are advanced as
Shelton’s last two have been, a new parole hearing may take
place before this court has considered and decided a challenge to
the last one. Were we to dismiss such challenges as moot, the
Board’s decision at a prior hearing would stand even if legally
unsound, leaving the Board to repeat its errors at future
hearings. “It is appropriate for an appellate court to exercise its
discretion to retain and decide an issue that is technically moot
where, as in this case, ‘the issue is “presented in the context of a
controversy so short-lived as to evade normal appellate review”
[citations], or when it is likely to affect the future rights of the
parties [citation].’ (Chantiles v. Lake Forest II Master
Homeowners Assn. (1995) 37 Cal.App.4th 914, 921.) A moot case
may also be retained if, as also appears to be true in this case, the
same controversy between the parties is likely to recur.
(Cucamongans United for Reasonable Expansion v. City of
Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479–480; Dobbins
v. San Diego County Civil Service Com. (1999) 75 Cal.App.4th
125, 128, fn. 3.)” (In re Scott, supra, 119 Cal.App.4th at p. 904,
fn. 1.)




                                  36
      Although we do not rule on the 2019 decision in this case,
the transcript of the 2019 hearing and decision—of which we take
judicial notice (In re Copley (2011) 196 Cal.App.4th 427, 430, fn.
1)—illustrates why the flaws in the 2016 and 2018 proceedings
and decisions require a new hearing despite a subsequent one
having taken place. 12 The panel in 2019, again based its decision
largely on its view that Shelton lacked credibility and insight,
without apparent consideration of the factors we have discussed
in connection with the 2016 and 2018 decisions. Most notably,
the transcript reflects no consideration of the likelihood that
Shelton will never be able to overcome his confused memory and
articulate a clear understanding of his offense, and provides no
indication of how the panel viewed the progressive nature of his
neurocognitive disorder, decline in physical condition, and
present level of disability as affecting the risk he presented. As
the 2019 hearing was conducted without benefit of appellate
review of the 2016 and 2018 hearings, it neither precludes nor
obviates the need for a new parole suitability hearing on remand.
                         DISPOSITION
      The Board’s decisions of December 21, 2016, and June 7,
2018, are hereby vacated. The matter is remanded for a new
parole suitability hearing consistent with due process of law and
this decision. (See Prather, supra, 50 Cal.4th at p. 244.) The
Board shall conduct this hearing within 30 days of the issuance of


       We additionally take judicial notice of the new
      12

comprehensive risk assessment available to the panel in 2019,
which was based on an evaluation August 16, 2019, by Dr. Kalich
and again concluded Shelton posed a low risk for violence.


                                 37
the remittitur in this matter, unless notice of hearing is
requested pursuant to Penal Code section 3043.




                                 38
                                   _________________________
                                   Kline, P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




In re Shelton, on Habeas Corpus (A154983)




                              39
Trial Court:                Solano County Superior Court

Trial Judge:                Honorable Daniel Healy

Attorney for Petitioner:    By Appointment of the Court of Appeal
                            Under the First District Appellat Project
                            Shannon Chase

Attorneys for Respondent:   Attorney General of California
                            Xavier Becerra

                            Phillip J. Lindsay
                            Senior Assistant Attorney General

                            Sara J. Romano
                            Supervising Deputy Attorney General

                            Denise A. Yates
                            Deputy Attorney General




                             40
