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In Re James Mackey

July 31, 2012


(Super. Ct. No. SC045624A)

The opinion of the court was delivered by: Butz , J.

In re Mackey



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Petitioner James Mackey seeks a writ of habeas corpus to overturn his parole denial by the Board of Parole Hearings (the Board). The Board's denial was based on the horrific nature of Mackey's offense coupled with his inadequate insight into it. We uphold the Board's denial decision, finding that it meets the "highly deferential" review standard of "some evidence" to support it. (In re Shaputis (2011) 53 Cal.4th 192, 198, 221 (Shaputis).) Consequently, we deny Mackey's petition. We will proceed straight to our discussion of the Board's decision, incorporating the pertinent facts as we go.*fn1


I. Summary of the Law Governing Review of Parole Decisions

Shaputis summarized the basic legal principles governing review of parole decisions. As relevant here, those principles encompass the following:

"The essential question in deciding whether to grant parole is whether the inmate currently poses a threat to public safety. [¶] . . . That question is posed first to the Board and then to the Governor, who draw their answers from the entire record, including the facts of the offense, the inmate's progress during incarceration, and the insight he or she has achieved into past behavior. [¶] . . . [¶] . . . Judicial review is conducted under the highly deferential 'some evidence' standard. The executive decision of the Board or the Governor is upheld unless it is arbitrary or procedurally flawed. The court reviews the entire record to determine whether a modicum of evidence supports the parole suitability decision. [In this way, a proper balance is struck between an inmate's due process liberty interest and the executive branch's discretion in making parole decisions.] [¶] . . . 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." (Shaputis, supra, 53 Cal.4th at pp. 220-221; see also id. at p. 199.)

Two other principles bear particular mention here. The first is from Shaputis as well, and states that "[o]nly 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"; in that circumstance, the Board's or the Governor's parole denial is arbitrary and capricious, and amounts to a denial of due process. (Shaputis, supra, 53 Cal.4th at p. 211.)

The second principle posits that "[e]vidence of lack of insight is indicative of a current dangerousness only if it shows a material deficiency in an inmate's understanding and acceptance of responsibility for the crime. To put it another way, 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 (Ryner), fn. omitted.)

Finally, suitability factors favoring parole include the lack of a criminal record (other than the commitment offense), a history of stable relationships, an older age, tangible signs of remorse, marketable skills, reasonable plans for the future, and responsible and rehabilitative institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)*fn2

Unsuitability factors disfavoring parole comprise the counterparts to the factors just noted, and the commission of the offense in an especially heinous, atrocious, or cruel manner. (Regs., § 2402, subd. (c).)

With these principles in mind, we turn to the matter at hand.

As noted, the Board denied Mackey parole based on the horrific nature of his offense and his lack of insight into it.

II. The Circumstances of the Offense

During Mackey's parole hearing, the Board relied on the probation officer's report of the offense, which was based largely on Mackey's October 1990 statement to the probation officer, as follows.

To curry favor socially and financially with a wealthy and connected developer named Michael Blatt, Mackey--in early 1989 and then 24 years old--volunteered, in discussions with Blatt, to "find someone to take care of" the victim, Lawrence Carnegie, a real ...

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