In re Shaputis on H.C.

Filed 8/21/07 In re Shaputis CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re RICHARD SHAPUTIS
on
Habeas Corpus.
D049895
(San Diego County
Super. Ct. No. HC18007)
Petition for Writ of Habeas Corpus. Kerry Wells, Judge. Petition granted.
Petitioner Richard Shaputis was sentenced to a prison term of 15 years to life
following his 1987 conviction for second degree murder. Shaputis, now nearly 71 years
old, has been in prison for the past 20 years. Although Shaputis first became eligible for
parole in 1998, the former Board of Prison Terms (now Board of Parole Hearings,
hereafter BPH)--despite Shaputis's exemplary conduct in prison and his unblemished
record of rehabilitative progress--found him unsuitable for parole at hearings conducted
in 1997, in 2002, and finally in 2004. After the 2004 denial of parole by the BPH, this
court granted Shaputis's petition for writ of habeas corpus because we found no evidence
to support the BPH's conclusion that Shaputis would pose an unreasonable risk of danger
to public safety were he released. (In re Shaputis (Dec. 28, 2005) D046356, opn. ordered

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nonpub. May 17, 2006 (Shaputis I).) However, this court did not order the BPH to set a
parole date. Instead, we remanded the matter to the BPH with directions to hold a new
parole suitability hearing and consider whether there was any new evidence, apart from
the evidence available to it at the 2004 hearing, which might support a finding that
Shaputis would pose an unreasonable risk of danger to public safety were he released
from prison. (Id at pp. 19-21.)
The BPH held a new suitability hearing and, operating under the guidelines of
Shaputis I, concluded he was suitable for parole because there was no new evidence
supporting a conclusion he would pose an unreasonable risk of danger to society if
released. However, Governor Arnold Schwarzenegger found Shaputis did pose an
unreasonable risk of danger to society if released and reversed the BPH's decision.
Shaputis filed a petition for writ of habeas corpus in the trial court, which was denied,
and Shaputis now petitions this court for a writ of habeas corpus, challenging the
Governor's decision.
I
FACTS1
A. The Offense
In 1987, a jury convicted Shaputis of the second degree murder of his wife, Erma,
and found true that he used a firearm in connection with the offense. He was sentenced
1 The background recited in sections I and II are derived from Shaputis I.

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to 15 years to life with the possibility of parole, plus a determinate two-year sentence for
the firearm use.
Shaputis and Erma were married for 23 years and their relationship was marked by
domestic violence. Two years earlier, Erma complained that Shaputis had beaten her and
cracked her ribs, and approximately 18 months earlier Shaputis had shot at her when they
had been drinking and arguing. Shaputis apparently beat Erma at least two or three times
per year and had threatened her with a knife. However, none of these alleged events
resulted in criminal charges.
On the night of the murder, Shaputis called 911 around 10:00 p.m. and stated he
had fought with his wife and killed her, but claimed it was an accident.2 When police
arrived at Shaputis's home, he surrendered without incident. When police entered, they
found Erma's body in the living room with a handgun lying nearby. The autopsy report
concluded Erma had been killed sometime between 8:30 p.m. and 12:30 p.m. and death
had been caused by a single gunshot wound to the neck. The shot had been fired from
close range, possibly as close as two feet, and entered the neck between the junction of
the neck and jaw. Death was apparently instantaneous. Shaputis was a heavy drinker
who became violent when intoxicated, and he had been drinking the night of the murder.
2 The gun apparently could not have been fired accidentally because the hammer
must be pulled back manually to a cocked position before pulling the trigger, and there
was a "transfer bar" to prevent accidental discharges. Although this information is
recited in the "Life Prisoner Evaluation Report" (LPER), prepared for the 2004 Parole
hearing by correctional department counselors, the factual basis for the conclusions in the
LPER does not appear in the probation report filed in connection with the 1987
conviction, and the genesis of this information is unclear.

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B. Shaputis's Performance in Prison
Shaputis's record during his incarceration has been impeccable. He has been
discipline free during his entire term, his work record is unblemished, he has fully
participated in all available AA and NA programs since 1991, and he has completed all
applicable therapy programs. For several years, Shaputis has had the lowest
classification score possible for a life-term inmate, and has numerous commendations
from prison staff for his work, conduct and reform efforts.
C. The 1997 and 2002 BPH Proceedings
Shaputis's minimum eligible parole date was in September 1998. At his first
parole hearing in 1997, the LPER prepared by his prison counselor for submission to the
1997 hearing stated his "progress in state prison could best be described as exemplary"
and concluded Shaputis "would probably pose a low degree of threat to the public at this
time, if released from prison." The BPH denied parole, apparently based on an
unsuitability determination, and recommended he remain discipline free and participate
in self-help and therapy groups. At Shaputis's second parole hearing in 2002, the LPER
confirmed Shaputis had remained discipline free and participated in self-help groups, and
again concluded (based on his commitment offense, his prior record, and his prison
adjustment) that he "would probably pose a low degree of threat to the public at this time
if released from prison." The BPH again denied parole, apparently based on an
unsuitability determination, and again recommended he remain discipline free and
participate in self-help and therapy groups.

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II
SHAPUTIS I
A. The 2004 BPH Hearing
Dr. Mura, a forensic psychologist, evaluated Shaputis's psychological condition
and submitted her report to the BPH in connection with the 2004 parole hearing.
Dr. Mura's report stated Shaputis had feasible and appropriate plans for his life if granted
parole, and appeared committed to maintaining his sobriety through continued
involvement with AA. When assessing Shaputis's risk for violence if paroled, Dr. Mura
concluded he presented a low risk for violence absent a relapse into alcoholism.3
The LPER, prepared by Shaputis's prison counselor for submission to the 2004
BPH hearing, again noted his exemplary prison record and that he had "fully adhered" to
the BPH's prior recommendations. The report again concluded, considering the
commitment offense, his prior criminal record, and his adjustment in prison, Shaputis
would "probably pose a low degree of threat to the public at this time if released from
prison."
3 Mura's risk of violence assessment evaluated three elements: Shaputis's history
and background, his clinical presentation, and "management of future risk." Because his
history of violence appeared intertwined with his alcoholism, Mura concluded the risk
based on this history was low as long as he did not relapse into alcoholism. Shaputis's
clinical presentation showed some growth in insight and Mura believed that this factor
presented a low risk for violence as long as he remained sober and involved in activities
that held his interest. Finally, Mura concluded Shaputis's ability to handle future stress in
a nonviolent manner was also largely rooted in his ability to remain sober; Mura believed
that Shaputis's prison record (e.g. his commitment to his AA program and his
demonstrated ability to comply with rules) and his current physical condition (a senior
citizen with chronic health problems that would limit concerns about his acting out in
inappropriate ways) made Shaputis a low risk for future violence.

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The BPH considered the materials presented, including the forensic evaluations,
and concluded Shaputis was not suitable for parole because he posed "an unreasonable
risk of danger to society or a threat to public safety if released from prison." The BPH
cited two findings for this conclusion. First, the BPH found the commitment offense was
"carried out in an especially cruel and/or callous manner" and was "carried out in a
dispassionate and/or calculated manner" because the murder was committed at close
range with a single shot. Second, the BPH found Shaputis had a "history of unstable and
tremulous [sic] relationships with others" and had assaulted his wife.
B. The Habeas Corpus Proceeding
Shaputis petitioned the San Diego County Superior Court for a writ of habeas
corpus alleging the BPH violated his due process rights because its unsuitability
determination was not supported by the evidence and was therefore arbitrary and
capricious. The court denied the writ, concluding the BPH's decision was supported by
some evidence. Shaputis then petitioned this court for a writ of habeas corpus. We
concluded the BPH's decision to deny parole violated due process because its finding that
he posed an unreasonable danger if released was contrary to the only reliable evidence of
his current dangerousness and relied on findings unsupported by any evidence.
Accordingly, we ordered the BPH to vacate its denial of parole and to conduct a new
parole suitability hearing for Shaputis.
However, because this court could not predict whether new evidence might be
available when the BPH conducted the new parole suitability hearing, we recognized we
could not evaluate the BPH's consideration of evidence that had yet to be presented. We

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therefore concluded that, although the BPH was barred from finding Shaputis unsuitable
for parole based on the same findings articulated at the 2004 hearing (absent evidence
new or different from that presented at the 2004 hearing), the BPH could consider
Shaputis's suitability de novo insofar as new or different evidence was presented at the
new hearing.
III
THE CURRENT PROCEEDING
The BPH conducted the most recent parole hearing in March 2006. The only
information not previously available to the BPH was the psychological assessment,
conducted in April 2005 by Dr. Silverstein, which concluded Shaputis "would appear to
be a low risk of future violence if release[d], as long as he maintains sobriety and
involvement in an active relapse prevention program." However, Dr. Silverstein
(echoing Dr. Mura's previous observations) noted Shaputis seemed to have "limited . . .
insight" regarding his alleged antisocial behavior and his history of alcohol abuse was
closely associated with his history of domestic violence. Dr. Silverstein concluded that,
if Shaputis remained sober, his risk for violence was close to that of the "average
unconfined citizen," but if he relapsed "the risk would likely rise considerably and he
would present as an unpredictable risk for future domestic violence." Dr. Silverstein's
"only concern" was that Shaputis planned to move in with his new wife (with whom he
had never lived) and his violence tended to be "confined to his family systems [and it] is
difficult to assess how well extinguished his pattern of domestic violence is given that he
has been confined for more than 18 years. If he abstains from alcohol, the risk is

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probably low." Dr. Silverstein concluded alcohol relapse prevention and domestic
violence treatment programming would "likely adequately manage these risks," and
recommended Shaputis's conditions of parole include random alcohol testing and
mandatory participation in a relapse prevention program and community-based domestic
violence program.
The BPH considered the new evidence and, operating under the constraints of this
court's instructions on remand, reluctantly found Shaputis suitable for parole. The BPH,
although convinced their prior decision finding him unsuitable was correct because they
believed Shaputis still needed "more time to . . . come to grips with the crime and show
that you know the reasons why you committed the crime," concluded this court's opinion
barred them from finding Shaputis unsuitable on the same grounds and evidence
previously considered and therefore found Shaputis suitable for parole. The BPH set his
maximum term (after deducting credits) at 151 months, and because this term lapsed in
November 1999, the BPH granted Shaputis parole subject to the special parole conditions
that Shaputis submit to alcohol testing, participate in a substance abuse program and a
domestic violence program, and ordered Shaputis paroled to San Diego County.
However, in August 2006, Governor Arnold Schwarzenegger reversed the BPH's
decision because he concluded Shaputis posed an unreasonable risk of danger to society
if released. The principal reasons given for this conclusion were (1) the crime was
especially aggravated because it involved some premeditation and (2) Shaputis had not

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fully accepted responsibility for and lacked sufficient insight about his conduct toward
the victim.4
Shaputis petitioned the San Diego County Superior Court for a writ of habeas
corpus, alleging the Governor's decision violated his due process rights because the
unsuitability determination was not supported by the evidence and was therefore arbitrary
and capricious. The court denied the writ. Shaputis then petitioned this court for a writ
of habeas corpus.
IV
LEGAL STANDARDS
A. The Parole Decision
The decision whether to grant parole is an inherently subjective determination (In
re Rosenkrantz (2002) 29 Cal.4th 616, 655 [Rosenkrantz]) that should be guided by a
number of factors, some objective, identified in Penal Code section 3041 and the BPH's
regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) The Governor's decision to
affirm, modify, or reverse the decision of the BPH is governed by the same factors that
4 The Governor's decision also referred to passages from the evaluators' reports
noting Shaputis's low risk for future domestic violence was intertwined with his ability to
remain sober. However, the Governor's decision did not find (much less cite an
evidentiary basis for finding) Shaputis's commitment to sobriety was ephemeral or
contrived, and the Governor did not question the effectiveness of the parole conditions to
monitor and enforce Shaputis's sobriety. Accordingly, we do not construe the decision as
finding Shaputis was a risk to the community based on the Governor's prognostication
that he was likely to regress into alcohol or substance abuse if released on parole. We
instead confine our review to the evidence of unsuitability credited by the Governor and
do not consider unsuitability factors apparently discounted by the Governor. (In re Elkins
(2006) 144 Cal.App.4th 475, 493; In re DeLuna (2005) 126 Cal.App.4th 585, 593-594.)

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guide the BPH's decision (Cal. Const., art. V, § 8(b)), and is based on "materials provided
by the parole authority." (Pen. Code, § 3041.2, subd. (a).) "Although these provisions
contemplate that the Governor will undertake an independent, de novo review of the
prisoner's suitability for parole, the Governor's review is limited to the same
considerations that inform the Board's decision." (Rosenkrantz, at pp. 660-661.)
In making the suitability determination, the BPH and Governor must consider
"[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b); hereafter,
reference to section 2402 refers to the California Code of Regulations), including the
nature of the commitment offense; behavior before, during, and after the crime; the
prisoner's social history; mental state; criminal record; attitude towards the crime; and
parole plans. (§ 2402, subd. (b).) The circumstances that tend to show unsuitability for
parole include that the inmate: (1) committed the offense in a particularly heinous,
atrocious, or cruel manner;5 (2) possesses a previous record of violence; (3) has an
unstable social history; (4) has previously sexually assaulted another individual in a
sadistic manner; (5) has a lengthy history of severe mental problems related to the
offense; and (6) has engaged in serious misconduct while in prison. (§ 2402, subd. (c).)
5 Factors supporting the finding that the crime was committed "in an especially
heinous, atrocious or cruel manner" (§ 2402, subd. (c)(1)), include the following: "(A)
Multiple victims were attacked, injured, or killed in the same or separate incidents[;] [¶]
(B) The offense was carried out in a dispassionate and calculated manner, such as an
execution-style murder[;] [¶] (C) The victim was abused, defiled, or mutilated during or
after the offense[;] [¶] (D) The offense was carried out in a manner that demonstrates an
exceptionally callous disregard for human suffering[; and] [¶] (E) The motive for the
crime is inexplicable or very trivial in relation to the offense."

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A factor that alone might not establish unsuitability for parole may still contribute to a
finding of unsuitability. (Id. at subd. (b).)
Circumstances tending to show suitability for parole include that the inmate: (1)
does not possess a record of violent crime committed while a juvenile; (2) has a stable
social history; (3) has shown signs of remorse; (4) committed the crime as the result of
significant stress in his life, especially if the stress had built over a long period of time;
(5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any
significant history of violent crime; (7) is of an age that reduces the probability of
recidivism; (8) has made realistic plans for release or has developed marketable skills that
can be put to use upon release; and (9) has engaged in institutional activities that suggest
an enhanced ability to function within the law upon release. (§ 2402, subd. (d).)
These criteria are "general guidelines," illustrative rather than exclusive, and "the
importance attached to [any] circumstance [or combination of circumstances in a
particular case] is left to the judgment of the [BPH]." (Rosenkrantz, supra, 29 Cal.4th at
p. 679; § 2402, subds. (c) & (d).) Thus, the endeavor is to try "to predict by subjective
analysis whether the inmate will be able to live in society without committing additional
antisocial acts." (Rosenkrantz, at p. 655.) Because parole unsuitability factors need only
be found by a preponderance of the evidence, the Governor may consider facts apart from
those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.)
B. Standard for Judicial Review of Parole Decisions
In Rosenkrantz, the California Supreme Court addressed the standard the court
must apply when reviewing parole decisions by the executive branch. The court first

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held "the judicial branch is authorized to review the factual basis of a decision of the
[BPH] denying parole in order to ensure that the decision comports with the requirements
of due process of law, but that in conducting such a review, the court may inquire only
whether some evidence in the record before the [BPH] supports the decision to deny
parole, based on the factors specified by statute and regulation." (Rosenkrantz, supra, 29
Cal.4th at p. 658.) Rosenkrantz further held "courts properly can review a Governor's
decisions whether to affirm, modify, or reverse parole decisions by the [BPH] to
determine whether they comply with due process of law, and that such review properly
can include a determination of whether the factual basis of such a decision is supported
by some evidence in the record that was before the [BPH]." (Id. at p. 667.)
The "some evidence" standard is "extremely deferential" and requires "[o]nly a
modicum of evidence." (Rosenkrantz, supra, 29 Cal.4th at pp. 665, 677.) A court may
not vacate the decision simply because it disagrees with the assessment of the BPH or
Governor. (Id. at p. 677.) The decision must be "devoid of a factual basis" to be
overturned. (Id. at p. 658.) Because judicial review of a parole denial is to ensure that a
decision is not arbitrary and capricious, thereby depriving the prisoner of due process of
law, "the court may inquire only whether some evidence in the record before the [BPH]
supports the decision to deny parole, based upon the factors specified by statute and
regulation." (Id. at p. 658.)
The discretion over parole suitability determinations, although broad, is not
absolute. (In re Scott (2004) 119 Cal.App.4th 871, 884.) Rosenkrantz explained "that
the judicial branch is authorized to review the factual basis of a decision of the [BPH]

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denying parole in order to ensure that the decision comports with the requirements of due
process of law, but that in conducting such a review, the court may inquire only whether
some evidence in the record before the [BPH] supports the decision to deny parole, based
upon the factors specified by statute and regulation. If the decision's consideration of the
specified factors is not supported by some evidence in the record and thus is devoid of a
factual basis, the court should grant the prisoner's petition for writ of habeas corpus and
should order the [BPH] to vacate its decision denying parole and thereafter to proceed in
accordance with due process of law." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) Thus,
the "extremely deferential" standard, although vesting in the Governor the power to
resolve evidentiary conflicts and assign the weight to be given to the evidence (id. at
pp. 665, 677), is not the equivalent of judicial abdication; the court must be satisfied the
evidence substantiates the ultimate conclusion that the inmate's release currently poses an
unreasonable risk of danger to the public. (In re Lee (2006) 143 Cal.App.4th 1400,
1408.) It violates an inmate's right to due process when the Governor attaches
significance to evidence that forewarns no danger to the public or relies on an
unsupported conclusion. (See, e.g., In re DeLuna, supra, 126 Cal.App.4th at p. 597
[[BPH] concluded, contrary to psychological evaluations, that inmate needed therapy,
and faulted inmate facing deportation for failing to learn English]; In re Scott (2005) 133
Cal.App.4th 573, 597-603) [Governor misconceived inmate's history of violent crime and
nature of the commitment offense]; In re Lee, at pp. 1411-1414 [Governor overstated
seriousness of commitment offense and improperly faulted inmate for late acceptance of
responsibility].)

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V
EVALUATION
A. The Commitment Offense
The Governor's decision that Shaputis remained an unreasonable risk of danger to
the public appears principally based on his conclusion that Shaputis's offense was
"especially aggravated" because of his premeditation and intent to kill.6
The courts have concluded that the facts of the offense may alone support a
finding of unsuitability for parole, but only when there is conduct above the minimum
necessary to commit the offense. Rosenkrantz, explaining why the nature of the offense
must "involve particularly egregious acts beyond the minimum necessary to sustain a
conviction for second degree murder," stated that, "In some circumstances, a denial of
parole based upon the nature of the offense alone might rise to the level of a due process
violation--for example where no circumstances of the offense reasonably could be
considered more aggravated or violent than the minimum necessary to sustain a
conviction for that offense. Denial of parole under these circumstances would be
inconsistent with the statutory requirement that a parole date normally shall be set 'in a
manner that will provide uniform terms for offenses of similar gravity and magnitude in
respect to their threat to the public. . . .' [Citation.] 'The [BPH's] authority to make an
6 The Governor's decision also referenced Shaputis's domestic violence toward the
victim in the past. However, it appears the Governor's citation to Shaputis's conduct was
the evidentiary background for his conclusion that Shaputis acted with the intent to kill
and with premeditation, and is therefore subsumed within that reason rather than as an
independent reason for his determination that Shaputis remained a current danger to the
community.

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exception [to the requirement of setting a parole date] based on the gravity of a life term
inmate's current or past offenses should not operate so as to swallow the rule that parole
is "normally" to be granted. . . . [¶] Therefore, a life term offense or any other offenses
underlying an indeterminate sentence must be particularly egregious to justify the denial
of a parole date.' [Quoting In re Ramirez (2001) 94 Cal.App.4th 549, 570.]"
(Rosenkrantz, supra, 29 Cal.4th at p. 683, italics added.) Accordingly, the Governor may
not rely on the bare conviction for second degree murder to deny parole absent some
evidence Shaputis engaged in conduct, apart from and beyond the minimum necessary to
convict him of second degree murder (In re Dannenberg (2005) 34 Cal.4th 1061, 1098),
that made the commitment offense especially aggravated for a second degree murder.7
The Governor found Shaputis's offense was a more aggravated offense than the
minimum for second degree murder because "it involved some level of premeditation."8
7 This court ruled in Shaputis I that the BPH's 2004 finding--the commitment
offense was particularly egregious--lacked evidentiary support and barred the BPH from
relying on that basis to deny parole absent new or different evidence. Although this
ruling was binding on the BPH on remand, Rosenkrantz's analysis raises questions on
whether it would be binding on the Governor's review of the BPH's decision on remand.
(Rosenkrantz, supra, 29 Cal.4th at pp. 667-670.) It appears anomalous that the BPH
would be bound by our decision while the Governor, whose review is to be based on
"materials provided by the parole authority" (Pen. Code, § 3041.2, subd. (a)) and is to be
"limited to the same considerations that inform the [BPH's] decision" (Rosenkrantz, at
p. 661), would be free from the constraints imposed on the BPH. We do not reach this
anomaly because we conclude Shaputis is entitled to relief for the reasons stated below.
8 The Governor also seemed to suggest the evidence Shaputis intentionally killed
the victim rendered the offense an aggravated second degree murder. However, the
People make no effort to explain how evidence of intent to kill would provide a
circumstance that "reasonably could be considered more aggravated or violent than the
minimum necessary to sustain a conviction" for second degree murder (Rosenkrantz,

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The conclusion of premeditation, although "inconsistent with the jury's verdict acquitting
[Shaputis] of first degree murder" (Shaputis I, supra, at p. 15), was one the Governor was
free to make (Rosenkrantz, supra, 29 Cal.4th at pp. 678-679) and there is a modicum of
evidence to support this conclusion.9 However, the conclusion that Shaputis's offense
involved conduct beyond the minimum required for conviction for second degree murder
was unaccompanied by any explication of why his conduct 20 years ago convinced the
Governor he would currently present a risk to public safety if granted parole. As the
court explained in In re Lee, supra, 143 Cal.App.4th at pages 1408-1409:
"The Attorney General argues that so long as 'some evidence,' which
may be as little as a 'modicum,' supports the Governor, we must
affirm. [Citations.] We conclude, however, that the . . . . test is not
whether some evidence supports the reasons the Governor cites for
denying parole, but whether some evidence indicates a parolee's
release unreasonably endangers public safety. [§ 2402, subd. (a)]
[parole denied if prisoner 'will pose an unreasonable risk of danger
to society if released from prison']; see, e.g., In re Scott[supra, 133
Cal.App.4th at p. 595] ['The commitment offense can negate
suitability [for parole] only if circumstances of the crime . . .
rationally indicate that the offender will present an unreasonable
public safety risk if released from prison']; [citation].) Some
evidence of the existence of a particular factor does not necessarily
equate to some evidence the parolee's release unreasonably
endangers public safety. [¶] We must therefore view the Governor's
two reasons within the context of the other factors he must consider
to see if some evidence shows Lee continues to pose an
unreasonable risk to public safety. [Citation.] [Fn. omitted.]"
supra, 29 Cal.4th at p. 683), and we do not further consider that finding as a basis for the
Governor's decision.
9 The factual basis for this finding appears to be the presence of an open box of
ammunition near the victim's body, and that Shaputis had told the victim's parents (when
he was agitated with the victim) that he would "send her home in a box," although the
parents thought Shaputis was "only joking" when he made those statements. This
evidence, while gossamer, provides a modicum of evidence to support the finding.

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Other courts have agreed the appropriate inquiry focuses not on whether a reason
given by the Governor finds evidentiary support, but instead on whether the evidence
supports the conclusion of dangerousness. (See In re Tripp (2007) 150 Cal.App.4th 306,
313 [" 'Only a modicum of evidence is required.' . . . On the other hand, the evidence
must substantiate the ultimate conclusion that the prisoner's release currently poses an
unreasonable risk of danger to the public. [Citations.] It violates a prisoner's right to due
process when the [BPH] or Governor attaches significance to evidence that forewarns no
danger to the public or relies on an unsupported conclusion."]; In re Barker (2007) 151
Cal.App.4th 346, 366 [same].)
Measured by this standard, the Governor's reliance on the minimal evidence of
premeditation provides no evidence Shaputis's conduct in connection with the offense 20
years earlier would portend an unreasonable current risk of danger to the community
were he released. He did not commit the offense in a heinous, atrocious, or cruel manner
that might suggest an indelible psychopathy or criminal disposition that remains unabated
after 20 years of incarceration. Even if the crime could be deemed aggravated, the courts
have recognized the predictive value of an offense declines over time (In re Elkins, supra,
144 Cal.App.4th at p. 496), and although it is true, to a certain point, that "the
circumstances of the crime and motivation for it may indicate a petitioner's instability,
cruelty, impulsiveness, violent tendencies and the like[,] after fifteen or so years in the
caldron of prison life, not exactly an ideal therapeutic environment to say the least, and
after repeated demonstrations that despite the recognized hardships of prison, this
petitioner does not possess those attributes, the predictive ability of the circumstances of

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the crime is near zero." (Irons v. Warden (E.D. Ca. 2005) 358 F.Supp.2d 936, 947, fn. 2,
revd. Irons v. Carey (9th Cir. 2007) 479 F.3d 658.)
Furthermore, there is no evidence the crime was attributable to environmental
factors that remain operative in Shaputis's life. Instead, the circumstances of the offense
(together with exemplary behavior exhibited by Shaputis for the last 20 years) suggest
that his high level of intoxication was the critical accelerant for his violent behavior, and
the only evidence before the Governor was that Shaputis had successfully controlled (and
was committed to continued control over) his alcoholism.
Moreover, even if we fully credited the Governor's reliance on premeditation to
elevate Shaputis's crime to an "aggravated" offense, the concurring opinion of Justice
Moreno in Rosenkrantz cautioned that, " 'In some circumstances, a denial of parole based
upon the nature of the offense alone might rise to the level of a due process violation--for
example where no circumstances of the offense reasonably could be considered more
aggravated or violent than the minimum necessary to sustain a conviction for that
offense.' . . . [¶] Although I agree that evidence of premeditation and deliberation
supports the conclusion that petitioner's crime was particularly egregious for a second
degree murder, it is another matter whether any evidence would support the same
conclusion for a first degree murder. Other than felony murders, first degree murders by
definition involve premeditation and deliberation. . . . Furthermore, petitioner's offense
did not appear to partake of any of those characteristics that make an offense particularly
egregious under the [BPH's] parole eligibility matrix for first degree murders . . . . [¶]
The significance of the above observations is this: there will come a point, which already

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may have arrived, when petitioner would have become eligible for parole if he had been
convicted of first degree murder. Once petitioner reaches that point, it is appropriate to
consider whether his offense would still be considered especially egregious for a first
degree murder in order to promote the parole statute's goal of proportionality between the
length of sentence and the seriousness of the offense. [Citation.] Under this
circumstance, the justification for denying his parole would become less clear, even
under the deferential 'some evidence' standard." (Rosenkrantz, supra, 29 Cal.4th at
pp. 689-690, conc. opn. of Moreno, J.) It appears Shaputis, even if his conviction had
been for first degree murder, would have become eligible for parole in December 2006,
and thus his continued incarceration "based upon the nature of the offense alone might
rise to the level of a due process violation" (ibid.), because there is no evidence his
offense would qualify as an aggravated form of first degree murder.
There is nothing in the facts of the crime that makes the offense a particularly
aggravated second degree murder offense that (quoting In re Scott, supra, 133
Cal.App.4th at p. 601) would indicate Shaputis "poses a continuing threat to the public
safety if released. Indeed, the record contains abundant uncontradicted evidence to the
contrary. All of the many psychological evaluations . . . emphasized that he committed
his crime [due to alcohol abuse that is] not likely to recur, and for that reason (as well as
his prior crime-free life) there was a low risk he would commit another violent act if
released. The [LPER] prepared by the Department of Corrections reached the same
conclusion, emphasizing that the fact that [he] committed his crime [due to alcohol abuse
which] indicates he 'would pose a low degree of threat to the public at this time if

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released from prison.' The Governor may believe [Shaputis] would pose an unreasonable
risk of danger to society if now released from prison, but that opinion finds no factual
support whatsoever in the record that was before him."
We conclude, for analogous reasons, the circumstances of the crime do not
provide any evidence to support the conclusion that Shaputis would currently pose an
unreasonable risk to public safety if released on parole.
B. Shaputis's Attitude About the Crime
The Governor is authorized to consider the inmate's "past and present attitude
toward the crime," "signs of remorse," or "any other information" when considering the
inmate's suitability for release. (§ 2402, subds. (b) & (d)(3).) Although the Governor's
decision acknowledged Shaputis's numerous statements suggesting he was remorseful
and accepted "full blame for the shooting," the Governor also cited snippets of various
evaluations suggesting Shaputis had not accepted full responsibility for the crime and
lacked insight into his behavior. The Attorney General argues these findings provide
some evidence for the Governor's conclusion that Shaputis would currently pose an
unreasonable danger if released on parole.
Even assuming the Governor intended to rely on Shaputis's psychological defense
mechanisms for his decision,10 the cited passages do not provide some evidence that he
10 We should confine our review to the evidence of unsuitability credited by the
Governor, and should not consider unsuitability factors apparently rejected by the
Governor (see fn. 5), and the Governor's decision here appears rooted in his finding that
the offense was especially aggravated. However, the Governor's decision also discusses
Shaputis's lack of insight into the offense, although the significance of that discussion is
oblique. That discussion may have been intended to explain why the Governor rejected

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posed an unreasonable risk of danger to the community. Although there is evidence to
support the factual findings, the inquiry is whether there is a modicum of evidence to
support the conclusion Shaputis posed an unreasonable risk of danger in light of those
facts. (In re Lee, supra, 143 Cal.App.4th at p. 1408.) Certainly, the 2004 LPER
(prepared by Shaputis's prison counselor for submission to the 2004 BPH hearing) did
note as a "concern" that Shaputis continued to believe the gun had been pointed at the
fireplace "[e]ven though the evidence in detail shows otherwise" and therefore had not
shown "acceptability for his crime." However, the same counselor nevertheless
concluded that Shaputis's conduct during his (at that time) 17 years of incarceration
demonstrated he would be a low risk of danger if released. Similarly, Dr. Mura's 2004
forensic psychological evaluation noted Shaputis has "yet to accept full responsibility for
the controlling offense and still seems to rely on denial and rationalization to handle
stress." However, the same doctor, after noting this psychological defense mechanism
was operable, also reported (1) Shaputis admitted that "I know what I did was terribly
wrong . . . I know what alcohol can do to a person," (2) stated Shaputis had "within his
limits . . . developed some insight into his functioning," and (3) concluded Shaputis's
demonstrable commitment to maintaining his sobriety (as well as his prison record and
Shaputis's belief (e.g., he had reduced culpability because shooting was unintentional)
and instead found Shaputis was culpable of an intentional killing. If that was the focus of
the Governor's "lack of insight" or "failure to accept responsibility" discussion, Shaputis's
inability to accept his responsibility is not a separate ground for determining he poses an
unreasonable risk, but instead was subsumed within the primary ground of the Governor's
decision. However, because it is arguable the Governor's decision can be construed as
citing Shaputis's lack of insight as a separate ground for deeming him to pose an
unreasonable risk, we separately evaluate whether there is some evidence to support that
conclusion.

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his physical health) rendered him a low risk for violent behavior. Mura, after noting
Shaputis's history of violence was intertwined with his alcoholism, concluded the risk
was low as long as he did not relapse into alcoholism and was involved in activities that
held his interest. Indeed, Mura concluded that, considering Shaputis's prison record (e.g.
his commitment to his AA program and his demonstrated ability to comply with rules)
and current physical condition (a senior citizen with chronic health problems that would
limit concerns about his acting out in inappropriate ways), Shaputis was a low risk for
future violence. (See fn. 3.)
The final person to comment on Shaputis's "limited . . . insight," Dr. Silverstein,
noted his history of alcohol abuse was closely associated with his propensity to engage in
domestic violence. The same doctor concluded that, if Shaputis remained sober, his risk
for violence was close to that of the "average unconfined citizen," and that participation
in an alcohol relapse prevention program and a domestic violence treatment program
would "likely adequately manage these risks."
Although the Governor's decision embraced isolated comments from the experts'
reports, he simultaneously eschewed the unanimous conclusions of the experts that
Shaputis was not a danger to society notwithstanding his psychological defense
mechanisms, and did so without identifying the factual basis for concluding these experts
were both right and wrong. On this record, there is no evidence to support the conclusion
that Shaputis posed an unreasonable risk of danger merely because of his method of
coping with his guilt.

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CONCLUSION AND DISPOSITION
We conclude that considering Shaputis's 20 years of uninterrupted model behavior
in prison, his age of more than 70 years, his second degree murder conviction that did not
involve elements beyond the minimum conduct required for that offense, his recognition
of guilt by calling the police immediately after the incident, his subsequent
acknowledgement of guilt, and the expert opinions of his minimal further risk of
violence, there is no evidence to support a finding that he would currently pose an
unreasonable risk of danger to society were he released on parole.
The Governor's decision reversing the 2006 BPH decision finding Shaputis
suitable for parole and setting a parole date is vacated. As in In re Smith (2003) 109
Cal.App.4th 489, 507 and Elkins, supra, 144 Cal.App.4th at page 503, the BPH is ordered
to release Shaputis forthwith pursuant to the conditions set forth in the March 7, 2006
decision by the BPH. Considering that Shaputis's release would have been final more
than one year ago, and in the interests of justice, this opinion shall be final as to this court
immediately. (Cal. Rules of Court, rule 8.264, subd. (b)(3).)
McDONALD, J.
I CONCUR:
McINTYRE, J.

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BENKE, J., dissent.
In In re Shaputis (Dec. 28, 2005) D046356, opinion ordered nonpublished
May 17, 2006 (Shaputis I), a majority over my dissent held that there was no evidence to
support the reasons advanced for denying petitioner parole. I believed there was far more
than "some" evidence from which the Board of Prison Terms (Board) could conclude
petitioner had yet to understand why he was an alcoholic, why he engaged in serious
domestic violence and why he murdered his wife. I also believed there was ample
evidence the crime was aggravated. Central to my concerns was the belief this court had
gone beyond its proper role as a reviewing authority and had improperly stepped into
evaluation of petitioner's suitability for parole.
In response to our decision, a new parole hearing was held. At the hearing the
parties stated their belief that this court precluded the Board from considering the same
suitability factors used at the previous hearing. In addition, there was strong
disagreement between the parties as to whether this court precluded consideration of the
evidence actually presented at the prior hearing or whether all evidence in existence
before the 2004 hearing was to be excluded from consideration. It is clear our decision
confused all parties concerning the task left to the Board.
In the midst of this confusion, petitioner testified. Presiding Commissioner St.
Julien asked him if he has a problem with the way he treats women. The dialogue
proceeded as follows:
"Presiding Commissioner St. Julien: Do you think you have a problem in the way
you treat women?

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"[Petitioner]: Now?
"Presiding Commissioner St. Julien: Yeah, then and now.
"[Petitioner]: Well, no I don't. I don't know how to say that I don't have a
problem now. I didn't have a -- I guess I had a problem then but I don't know how to put
it into pictures or words. I just -- It was one of those things I didn't quite understand, I
guess. Not having a thorough idea of how stupid I was being, how dumb I was being."
The deputy district attorney asked the commissioners to inquire further of
petitioner as to his current understanding about why he committed the murder and why he
would not commit it today. Petitioner's counsel would not permit him to answer the
question, even though Deputy Commissioner Lushbough stated the question was an
important one to her in terms of how petitioner was "different today."
The latest psychological report, dated April 1, 2005, and prepared by Dr. Charles
Silverstein, was reviewed at the hearing. Deputy Commissioner Lushbough referred to
the report in her inquiries of petitioner. She observed that the doctor's report noted
petitioner found "inexplicable" his daughters' prior allegations of rape, incest and
domestic violence. He noted petitioner had a flat affect when discussing these
allegations. The doctor stated this could be a sign of the schizoid tendencies noted in
some previous evaluations. He concluded "there appears little potential benefit at this
point in his development to attempt to modify this characterological [sic] structure." The
doctor further concluded petitioner's alcohol dependence is in "sustained institutional
remission." (Italics added.) Significantly, his report concludes that while petitioner's risk
of violence in comparison to other inmates is far below average, if he were to relapse into

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3
alcoholism, "the risk would likely rise considerably and he would present as an
unpredictable risk for future domestic violence."
The overarching question before the Board was whether petitioner now has
enough insight into his prior acts of domestic violence and the alcoholism that played a
part in it, such that if released, he would not present an unreasonable risk of danger to the
public in general or the woman he married while he was in prison.
At the end of the hearing, speaking for herself, Presiding Commissioner St. Julien
stated she believed petitioner was unsuitable for parole in 2004 and she believes he is still
unsuitable for parole because he continues to lack understanding as to why he killed his
wife and why he engaged for many years in domestic violence against his family
members. She stated the Board believes he needs more time to think about and come to
grips with the crime and show he understands the reasons why he committed it.
Remarkably, despite its conclusion that if released petitioner still presents an
unreasonable risk of danger to public safety, the Board granted petitioner parole. In
doing so it expressly stated that it was abandoning its better judgment on the issue
because of the limitations placed on it by this court.
We find ourselves in an unfortunate position. By expressly precluding the Board
from considering evidence and findings from prior hearings, we confused it and caused it
to feel bootstrapped into granting parole. More significantly, we caused the Board to
abandon performance of its proper function. These are not insignificant effects. (See In
re Dannenberg (2005) 34 Cal.4th 1061, 1094.)

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4
The Governor has now reversed the Board's ruling but the reversal is technical.
Substantively, he has affirmed the Board's conclusion that if released, petitioner presents
an unreasonable risk of danger to others. In essence he has reversed not the Board, but
this court.
In doing so, the Governor did not feel constrained by the unreasonable and
confusing restrictions our court placed on the Board. He considered the evidence
surrounding the crime and concluded it was "especially aggravated" in that petitioner had
thought about killing his wife and sending her "home in a box." He considered the
serious ongoing violence petitioner exhibited toward his wife, including a beating so
severe she needed plastic surgery. Echoing the concerns of the Board, he also based his
decision on petitioner's failure to accept responsibility for the murder and his inability to
understand the nature of his offense and the reasons for committing the murder.
I agree with the Governor and thus the substantive evaluation of the Board.
As my colleagues themselves note, our role in reviewing the Governor's decision
is crystal clear. To reverse his parole decision, it must be devoid of a factual basis. We
may not overturn a denial of parole unless no evidence supports the decision. If some
evidence supports the decision, we may not contradict the result. (In re Dannenberg,
supra, 34 Cal.4th at p. 1084; In re Rosencrantz (2002) 29 Cal.4th 616, 658.)
My colleagues disregard the evidence supporting the Governor's, and indirectly
the Board's, concerns by explaining why they believe the evidence is, one way or another,
not before us, incorrect or of no value. However, while reasonable minds might differ on
the subject, the record of the March 7, 2006, hearing reveals petitioner has no insight at

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all into why he physically abused and murdered his wife and why his family members
allege other very serious acts of abuse directed at them. Nor does he understand the
interplay between his alcoholism and his abusive and homicidal behavior.
In the face of such evidence, we are compelled to affirm the Governor's decision.
BENKE, Acting P. J.

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