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Tangi v. Salazar

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


December 15, 2009

WILLIAM TANGI, PETITIONER,
v.
JOHN F. SALAZAR, WARDEN, RESPONDENT.

The opinion of the court was delivered by: John F. Walter United States District Judge

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the court has reviewed the petition, all the records and files herein, the report and recommendation of the United States Magistrate Judge, and petitioner's objections to the report and recommendation.

In his objections, petitioner contends, among other things, that the magistrate judge erred in relying on petitioner's refusal to admit his role in his crime as evidence supporting the state courts' decisions. Citing California Penal Code section 5011,*fn1 petitioner asserts that California law prohibits consideration of his refusal to accept responsibility. (Objections at 10).

This assertion lacks merit for two reasons. First, as indicated in the magistrate judge's report and recommendation, there was additional evidence in the record to support the state courts' decision to uphold the denial of parole. (Report and Recommendation at 7-8 (citing seriousness of petitioner's crime and petitioner's post-incarceration criminal act as "some evidence" supporting the Board's decision)).

Second, California courts have made clear that consideration of a prisoner's refusal to accept responsibility for the prisoner's crime is not incompatible with California Penal Code section 5011. See In re Lazor, 172 Cal. App. 4th 1185, 1202 n.13 (2009) ("Consideration of whether an inmate accepts responsibility for commitment offense does not conflict with [Penal Code] section 5011, subdivision (b)"). Indeed, "[a]n inmate's lack of insight into, or minimizing of responsibility for, previous criminality, despite professing some responsibility, is a relevant consideration." Id. at 1202; see also Cal. Code Regs., tit. 15, § 2402, subd. (b) ("All relevant, reliable information available to the panel," including the prisoner's "past and present attitude toward the crime," "shall be considered in determining suitability for parole"). Accordingly, consideration of petitioner's refusal to accept responsibility was a valid consideration and, moreover, constituted "some evidence" upon which to deny him parole. The court, therefore, concurs with and adopts the findings, conclusions, and recommendations of the magistrate judge.

IT IS ORDERED that judgment be entered denying the petition for writ of habeas corpus and dismissing this action with prejudice.


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