Full opinion text
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ROGER T. BENITEZ, District Judge. Petitioner, an inmate at Centinela State Prison, filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”). On September 16, 2010, Magistrate Judge Barbara Major submitted a Report and Recommendation recommending that this Court enter an order: (1) granting the Petition; (2) releasing the Petitioner immediately; and (3) directing that Petitioner’s parole term be reduced and Petitioner receive term credit. Respondent filed an objection to the Report and Recommendation, and Petitioner filed a reply. (Docket Nos. 17,19.) The merits of the Petition are now before this Court. For the reasons set forth below, the Court adopts in part the Report and Recommendation and DENIES the Petition. BACKGROUND In 1977, Petitioner was convicted by a jury of first-degree murder and other felonies and was sentenced to a prison term of seven years to life. This habeas petition does not challenge Petitioner’s conviction, but rather challenges a decision by the Board of Parole Hearings (“Board”) on November 24, 2008 that found Petitioner unsuitable for parole. (Tr. 1; Lodgment 7.) The 2008 hearing was Petitioner’s fifteenth parole hearing and was conducted after the Governor of California reversed a prior grant of parole. Prior to filing the Petition, Petitioner sought habeas relief at all three state court levels, but without success. (Lodgment Nos. 2, 4, 6.) While Petitioner was pursuing his state collateral relief, the Board held another parole hearing. (Lodgment 8.) However, the Board again denied parole. Id. I. COMMITMENT OFFENSE The facts cited herein are largely undisputed and were obtained from the transcript of the 2008 parole hearing and the record in this case: In May 1977, a 33-year old homeless man knocked on Petitioner’s door and asked for a glass of water. Petitioner invited the man inside. Soon thereafter, Petitioner accused the man of pulling a knife on Petitioner’s friend some months earlier. Over the next several hours, Petitioner and other individuals repeatedly beat and kicked the man, stripped him of his clothes, urinated into his open mouth, and forced him to drink urine from a bath. The participants also attempted to hang the man in the bathroom with a belt and smother him with a towel. On at least three separate occasions, the participants told the man they were going to kill him, pointed a gun at his face, and pulled the trigger. However, on each occasion, the gun was empty. These events occurred at various times throughout the evening, interspersed by breaks where the participants drank wine and beer and sniffed paint. The participants then became concerned that the man would turn them into the police. At midnight, the participants carried the man to a vacant lot and placed him under a trailer, where they shot him first in the head, then in the neck, and then in the stomach. The participants returned to the apartment, disposed of the man’s belongings, and cleaned up the blood. An autopsy showed that the victim had been severely beaten prior to his death and that his death was due to a bullet wound behind his left ear. Among other injuries, the victim had six fractured ribs on the left and two on the right, a fractured skull, two broken cheekbones, and a broken nose and jaw. There were also abrasions and lacerations. On December 1, 1977, Petitioner was convicted by a jury of first-degree murder and other felonies. He was sentenced to an indeterminate prison term of seven years to life. At the time of the offense, Petitioner was twenty-three years old. (Lodgment 9.) II. PREVIOUS CRIMINAL HISTORY Petitioner’s prior criminal history includes convictions in March 1974, July 1974, August 1975 and July 1976. (Pet., Ex. G; Lodgment 5, p. 5-6; Lodgment 7, p. 34-36.) In March 1974, Petitioner was convicted of being a minor in possession of alcohol. In July 1974, Petitioner was convicted of prowling. In August 1975, Petitioner was convicted of being under the influence of narcotics and resisting arrest. And, in July 1976, Petitioner was convicted of entering without consent. Each of these offenses resulted in a misdemeanor conviction and a prison sentence or probation. Id. Petitioner emphasizes that these convictions were for non-violent offenses. (Lodgment 5, p. 5-6.) The record shows Petitioner has also been arrested for several other offenses, including burglary, robbery, and theft. (Lodgment 7, p. 34-36,111-12.) III. PRISON RECORD During the first thirteen years of Petitioner’s prison term, Petitioner received three serious rule violations and several misconduct reports. (Lodgment 7, p. 49.) Since then, however, Petitioner’s conduct has been “consist [sic] in positive institutional behavior.” Id. Among other things, while incarcerated, Petitioner earned trade certifications for janitorial services, dry-cleaning, and mill and cabinetry work. (Lodgment 7, p. 50.) He also participated in self-help and therapy programs, including Alcoholics Anonymous, Narcotics Anonymous and Anger Management. Id. Petitioner has received multiple laudatory reports from various institutional staff as well as favorable psychological work and counselor evaluations. (Lodgment 7, 9.) DISCUSSION I. “SOME EVIDENCE” STANDARD The Court may entertain a petition for writ of habeas corpus by a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Ninth Circuit has consistently recognized that a state prisoner possesses a federal liberty interest if parole is denied in the absence of “some evidence” that the prisoner is currently dangerous. Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir.2010); see also Pearson v. Muntz, 606 F.3d 606, 608-09 (9th Cir.2010). In reviewing a habeas petition, the Court must “decide whether the California judicial decision approving the [Board]’s decision rejecting parole was an ‘unreasonable application’ of the California ‘some evidence’ requirement, or was ‘based on an unreasonable determination of the facts in light of the evidence.’ ” Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(1)-(2)); Pearson, 606 F.3d at 608. Contrary to Respondent’s Objection, and as concluded in the Report and Recommendation, this Court is not limited to merely evaluating the parole review procedures utilized by the state to ensure fairness. (Report, p. 6-11.) Id. II. APPLICATION OF STANDARD Where, as here, there is no reasoned decision from the state’s highest court, the Court looks through to the last reasoned decision of the state court denying relief to the petitioner. Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). In this case, the last reasoned state court decision is the San Bernardino County Superior Court’s order dated October 14, 2009, finding that “some evidence” supported the Board’s parole denial. (Lodgment 2; compare with Lodgment 4, 6.) Although the court suggested that Petitioner’s failure to fully accept responsibility for his crime, as well as the nature of Petitioner’s offense and his pre- and post-incarceration history provided “some evidence” supporting the Board’s decision, the court did not clearly explain which of the Board’s findings supported the denial of parole. (Lodgment 2.) Instead, as the Report and Recommendation notes, the court appeared to largely defer to the Board’s judgment. Id. Accordingly, just as the Magistrate Judge did, this Court examines the Board’s reasons for denying parole in order to evaluate the reasonableness of the superior court’s decision. Cooke v. Solis, 606 F.3d 1206, 1214 (9th Cir.2010). Having conducted a de novo review, the Court agrees with the Magistrate Judge’s conclusion that Section 2254(d)(2) applies and rejects Respondent’s arguments to the contrary. However, after reviewing the record, this Court concludes there is “some evidence” of current dangerousness such that habeas relief is not warranted. State parole regulations apply in determining whether an inmate poses an unreasonable risk of danger to public safety. These regulations enumerate factors tending to show suitability for parole, as well as unsuitability for parole. Cal.Code Regs., tit. 15 § 2281(c)-(d). “While the regulatory factors are designed to guide the Board’s decision, the ultimate question of parole suitability remains whether the inmate poses a threat to public safety. There must be some evidence of such a threat, and not merely evidence that supports one or more of the Board’s subsidiary findings.” Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1021 (9th Cir.2010) (quotation marks omitted) (citing Hayward, 603 F.3d at 562). After applying the parole factors, the Board denied parole on the following grounds: (1) Petitioner’s bad attitude and failure to meaningfully participate in rehabilitation programs since 2003; (2) the heinous nature of the commitment offense; (3) Petitioner’s failure to accept full responsibility for the crime or show full insight or remorse; (4) Petitioner’s inadequate parole plans; (5) Petitioner’s unstable social history and pri- or criminal history; and (6) the opposition to release. (Traverse, p. 6; Lodgment 7, p. 109-124.) CaLCode Reg., tit. 15 § 2281(b). First, the Board found that Petitioner exhibited a bad attitude and insistence on doing things his way, as evidenced in part by his failure to meaningfully participate in rehabilitation programs since 2003. (Lodgment 7, p. 115.) At the parole hearing, Petitioner stated he last attended the prison’s rehabilitation programs, in particular Alcoholics Anonymous, in 2003. (Lodgment 7, p. 41 — 42, 57-61.) Petitioner explained that he no longer attends the therapy programs because he (1) has already completed them; (2) is busy with his prison job; and (3) is busy litigating the Governor’s 2004 decision to reverse Petitioner’s 2003 parole grant. Id. Petitioner further stated that, although he no longer attends the programs, he participates in them via self-study. Id. When requested by the Board, however, Petitioner was unable to produce a book report or other documentation evidencing his self-study. (Id., p. 41-43.) The Board found Petitioner’s diminished involvement in the programs troublesome and indicative of potential problems that Petitioner may have in developing relationships, dealing with people, and interacting with others outside of prison. (Lodgment 7, p. 59, 60-61, 115.) This finding is also supported by other evidence in the record. For example, Petitioner’s 2008 psychological evaluation indicates that, based on events occurring prior to the commitment offense and incarceration, Petitioner exhibited a “blatant disregard” for others and Petitioner could have problems dealing with negative criticism if released on parole. (Lodgment 9, p. 11, 14.) Furthermore, Petitioner’s participation in the commitment offense appeared to be based, in part, on peer pressure and the need to be accepted by the other participants. (Lodgment 9, p. 9.) The record further indicates that, while in prison, Petitioner received citations for unexcused absences and hiding during the count, which further show Petitioner may have difficulty dealing with authority and people outside of prison. (Lodgment 7, p. 40.) Indeed, it appears that Petitioner stopped attending the rehabilitation programs around the time the Governor reversed Petitioner’s parole grant and Petitioner has made little if any attempt since then to remedy the concerns raised by the Governor. (Lodgment 7, p. 121-24.) These circumstances further evidence spitefulness and difficulty handling criticism and setbacks. (Lodgment 7, p. 121-24.) The Board noted these circumstances still existed in October 2009, when it again denied parole. (Lodgment 8, p. 6,10.) One could argue, however, that merely a bad attitude and potential difficulty in dealing with others is not sufficient to show that Petitioner poses an unreasonable risk of danger to society. This is especially true where, as detailed in the Report and Recommendation, there is clearly evidence in the record showing that Petitioner may be suitable for parole. However, this Court’s role is limited to assessing the reasonableness of the Board’s parole determination in 2008, not deciding on its own whether Petitioner is entitled to parole. Powell v. Gomez, 33 F.3d 39, 42 (9th Cir.1994) (“This court cannot reweigh the evidence, but looks only to see if ‘some evidence’ supports the [Board’s] decision.”); In re Lawrence, 44 Cal.4th 1181, 1191, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008) (noting the “some evidence” standard is extremely deferential and a federal habeas court may not substitute its own judgment for the Board’s merely because it would weigh the evidence differently). In this regard, all factors must be weighed: “Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” CaLCode Regs., tit. 15 § 2281(b). Keeping this in mind, the Court notes that Petitioner’s prior criminal history includes arrests and, in some instances convictions, for robbery, burglary, drugs, trespassing, prowling, and receiving stolen property. (Lodgment 7, p. 34-36, 111-12.) In fact, Petitioner was on probation when he committed the commitment offense. Id. Although these offenses were non-violent, they were numerous and show that, despite receiving prison time and probation, Petitioner was not deterred from future criminal conduct. The record also shows that Petitioner had no justifying motivation for the commitment offense. (Lodgment 9, p. 9.) Cal.Code Regs., tit. 15 § 2281(d)(4). Petitioner was the eldest of the participants (most of whom were juveniles), Petitioner did not know the victim, and the victim did not pose an immediate threat to Petitioner or any other participants. (Lodgment 7, p. 53; Lodgment 9.) In light of the above, the Court finds that the record provides “some evidence” of the Board’s determination that Petitioner presented a current danger to society and, therefore, should not be granted parole. The “some evidence” standard is minimal and assures only that the record is not so devoid of evidence that the denial of parole was arbitrary. See Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1129 (9th Cir.2006), overruled in part on other grounds, Hayward, 603 F.3d at 555. The standard requires only a “modicum of evidence” of unsuitability for parole. In re Lazor, 172 Cal.App.4th 1185, 1198, 92 Cal. Rptr.3d 36 (2009) (quoting Lawrence, 44 Cal.4th at 1191, n. 2, 82 Cal.Rptr.3d 169, 190 P.3d 535). The Board cited other factors for denying parole, including the commitment offense, the lack of acceptance of responsibility or remorse inadequate parole plans, unstable social history and opposition to release. However, for the same reasons stated in the Report and Recommendation, which are incorporated herein by this reference, the Court finds the record void of “some evidence” supporting these other findings. Nonetheless, given the standard that applies here, the Court finds that Petitioner’s attitude, lack of participation in rehabilitation programs, prior criminal history and lack of motivation in committing the commitment offense, when taken as a whole, evidenced current dangerousness to society. Accordingly, the Court finds the Superior Court’s order dated October 14, 2009 was not an unreasonable application of the “some evidence” standard nor was it an unreasonable determination of the facts in light of the evidence. CONCLUSION In light of the above, the Court DENIES Petitioner’s petition for writ of habeas corpus. IT IS SO ORDERED. REPORT AND RECOMMENDATION FOR ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS BARBARA L. MAJOR, United States Magistrate Judge. This Report and Recommendation is submitted to United States District Judge Roger T. Benitez pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On February 2, 2010, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus. ECF No. 1. Petitioner challenges the November 24, 2008 decision by the Board of Parole Hearings (“Board”) denying him parole. Id. On June 9, 2010, Respondent filed an answer requesting that the Petition be denied. ECF No. 12. Petitioner filed a traverse on July 9, 2010. ECF No. 13. This Court has considered the above documents as well as the record as a whole. Based thereon, and for the reasons set forth below, this Court RECOMMENDS that Petitioner’s Petition for Writ of Habeas Corpus be GRANTED. FACTUAL AND PROCEDURAL BACKGROUND The following factual summary is taken from the transcript of the November 24, 2008 parole hearing, which the Board indicated it was reading into the record from the probation officer’s report At approximately 7:50 a.m. on May the 30th, 1977 an officer from the San Bernardino Police Department was dispatched to American and West Baldwin Street regarding a possible alcoholic sleeping under a trailer on a vacant lot. When the officer went to investigate, he found the body of a man who was later identified through his fingerprints as 33-year-old Dallas Foster. The autopsy performed by Dr. Irving Pruitt on May the 30th, 1977 revealed that the victim had been severely beaten prior to his death that was due to a bullet wound behind his left ear. There were abrasions and lacerations. In addition to the gunshot wound to the head, Mr. Foster also sustained two other gunshot wounds, six fractured ribs on the left side and two on the right side, his skull had been fractured, both cheekbones, his nose and his jaw broken. It was also found that he had a blood alcohol level of .41. The discovery of the body initiated an intense police investigation which began with a door-to-door check with residents in the area where the victim was found. The information obtained from this canvas of the neighborhood directed the investigators’ attention to a party which had taken place on the evening of May the 27th 1977. Through interviews it was learned that those attending the party on May 27 had been the residents of that address, Conrad Ray, his roommate, which was the inmate, the inmate’s girlfriend, Clara Lavatos, L-AV-A-T-O-S, and her two children, ages three years and eighteen months. Also present was Mr. Ray’s juvenile girlfriend, Joy Pasillas, P-A-S-I-L-L-A-S, Julian Tomaio and two male juveniles. Those present were drinking bottles of wine and beer, some of the individuals were also sniffing spray paint. Sometime around 3:00 to 3:30 on the afternoon of May the 27th, the victim, Dallas Foster, who was on his way to hop a train to Bakersfield to work in the field, knocked on their door and asked for a drink of water. He was invited in and given a drink of wine. Approximately one hour after Mr. Foster arrived, the inmate began to make a statement to the effect that Mr. Foster had pulled a knife on Mr. Ray some months earlier. The inmate became insistent on this point, asking Mr. Ray what he was going to do about it, to which Mr. Ray responded by hitting Mr. Foster in the mouth, knocking him to the floor, where Mr. Ray began kicking him. The other males present joined in the beating and kicking of Mr. Foster, which continued for some minutes. Throughout the remainder of the evening until approximately midnight the victim was repeatedly beaten on perhaps seven or eight separate occasions. During these beatings the victim was punched, kicked, stomped on and beaten with a belt and with a two-by-four piece of lumber. The beating was not continual, with the participants stopping from time to time to take a break, drinking more wine or beer or sniffing paint, then returning to beating the victim. At one point the victim became so bloody that he was taken to the bathroom by the inmate and one of the male juveniles in order to change his clothes. While he was nude, he was brought into the living room and paraded before the two women and two small children who were present. During this time, while the victim was laying on the floor naked, he was crying and asking them to leave him alone. After he was returned to the bathroom, the male juvenile came out and stated they were trying to hang him in the bathroom with a belt. Later, when the victim was lying on the floor unconscious, one of the male juveniles urinated on his face into his open mouth. According to Mr. Ray, on two occasions the male juvenile filled the bath with urine, which the inmate then made the victim drink, threatening to kill him if he did not. On another occasion Mr. Tomaio attempted to smother the victim with a towel. In the course of the evening the inmate made a statement to the effect that they could not allow the victim to leave because he would go to the police. Mr. Tomaio responded, “Well, let’s kill him,’ and on at least three separate occasions Mr. Tomaio held a .22 caliber automatic rifle within inches of the victim’s face, cocked the weapon and pulled the trigger as the victim begged not to be killed. On each of these occasions the weapon was empty. At midnight the victim was carried from the apartment by Mr. Tomaio and one of the male juveniles. The inmate and Ms. Pasillas accompanied the others as the victim was taken to the vacant lot in order to set him under the trailer, where Mr. Tomaio shot him first in the head, then in the neck and in the stomach. As they were leaving the apartment, the inmate had ordered Mr. Ray to dispose of the victim’s belongings. When they returned to the apartment, the inmate instructed the others to clean up the blood and not to tell anyone what had happened. Lodgment 7 at 15-19. Petitioner was convicted of first degree murder and committed to prison on December 1, 1977, for a term of seven years to life. Pet’r Mem. On October 8, 2003, at his fourteenth parole hearing, Petitioner was granted parole. Id. at 1-2. The Governor of California reversed Petitioner’s parole grant on March 5, 2004. Id. at 2. On November 24, 2008, Petitioner went before the Board again and this time the Board found Petitioner unsuitable for parole. Id. It is this 2008 decision that Petitioner challenges in the instant Petition. Id. Petitioner challenged the Board’s decision in a habeas petition filed in the Superior Court of California, County of San Bernardino on June 2, 2009. Lodgment 1. The superior court denied his petition in a reasoned decision on October 14, 2009. Lodgment 2. Petitioner then raised the same arguments in a habeas petition before the California Court of Appeal, Fourth District, Division Two, which that court summarily denied. Lodgments 3 & 4. Finally, Petitioner challenged the Board’s decision in the California Supreme Court. Lodgment 5. That court summarily denied his habeas petition without citation of authority on January 21, 2010. Lodgment 6. While Petitioner was pursuing state collateral relief, he appeared before the Board for another hearing on October 22, 2009, and once again, was denied parole. Lodgment 8. It does not appear Petitioner is challenging the 2009 Board decision in the instant Petition and the Court, therefore, will not address it. SCOPE OF REVIEW Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a) (1996). The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (1996). Summary denials constitute adjudications on the merits. See Luna v. Cambra, 306 F.3d 954, 960 (9th Cir.2002) (citing Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.1992)) amended by 311 F.3d 928 (9th Cir.2002). Where there is no reasoned decision from the state’s highest court, the Court “looks through” to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). A state court’s decision is “contrary to” clearly established federal law if the state court: (1) “applies a rule that contradicts the governing law set forth in [Supreme Court] cases”; or (2) “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an “unreasonable application” of clearly established federal law where the state court “‘identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.’ ” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). “[A] federal habeas court may not issue [a] writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable.” Id. at 75-76, 123 S.Ct. 1166 (emphasis added) (citations and internal quotation marks omitted). Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. Finally, habeas relief also is available if the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2) (1996); Wood v. Allen, — U.S. -, 130 S.Ct. 841, 845, 175 L.Ed.2d 738 (2010). A state court’s decision will not be overturned on factual grounds unless this Court finds that the state court’s factual determinations were objectively unreasonable in light of the evidence presented in state court. See Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (the fact that “[r]easonable minds reviewing the record might disagree” does not render a decision objectively unreasonable). This Court will presume that the state court’s factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). DISCUSSION Petitioner posits two claims for relief. First, Petitioner argues that the Board’s parole denial was based on an unreasonable determination of the facts and the court decision affirming the denial was not supported by the requisite “some evidence.” Petitioner asserts the denials violated his rights under the Fifth and Fourteenth Amendments of the United States. Pet’r Mem. at 3-12. Second, Petitioner argues that he must be released immediately because any state action causing a prisoner to serve prison time in excess of the term prescribed under the Indeterminate Sentencing Law guidelines violates the Ex Post Factor Clauses of the State and Federal constitutions. Id. at 3, 12-16. Respondent contends Petitioner is not entitled to relief. Mem. P. & A. Supp. Answer (“Resp’t Mem.”) at 3-11. A. Respondent Repeats Legal Arguments Rejected by the Ninth Circuit In his answer, Respondent correctly states that there is no federal constitutional requirement that there be “some evidence” supporting a parole board’s decision to deny parole to an inmate. Resp’t Mem. at 4. Because there is no independent, federal requirement and the courts must rely on the state requirement, Respondent argues that this Court is limited to reviewing “whether the state’s parole review procedures are fundamentally unfair” and may not review the sufficiency of the “some evidence” determination made by the state court. Id. at 3-9. Respondent’s argument misinterprets and misapplies the Ninth Circuit’s recent decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir.2010) and ignores the Ninth Circuit’s subsequent analysis and ruling in Pearson v. Muntz, 606 F.3d 606 (9th Cir.2010). The Due Process Clause of the Fourteenth Amendment protects individuals from deprivations of life, liberty or property. It has long been established Supreme Court law that a liberty interest may arise from an expectation or right created by a state statute or regulation. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 556-58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (holding that the Due Process Clause ensures that state-created liberty interests are not arbitrarily abrogated); see also Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (internal citations omitted) (reconfirming that “[a] liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or interest created by state laws or policies”). As the Ninth Circuit recently recognized, “[i]t is beyond doubt that state statutes, and a fortiori, state constitutions, ‘may create liberty interests in parole release that are entitled to protection under the Due Process Clause.’ ” Pearson, 606 F.3d at 610-11 (quoting Bd. of Pardons v. Allen, 482 U.S. 369, 371, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)). California has created just such a liberty interest. Under California law, a prisoner sentenced to an indeterminate life term is sentenced to a life term, “subject only to the ameliorative power of the [parole authority] to set a lesser term.” Hayward, 603 F.3d at 561 (quoting People v. Wingo, 14 Cal.3d 169, 182, 121 Cal.Rptr. 97, 534 P.2d 1001 (1975)). The governing statute requires the Board to consider specifically-enumerated factors in evaluating the prisoner’s suitability for parole and to grant parole unless it determines that public safety requires a longer period of incarceration. In re Rosenkrantz, 29 Cal.4th 616, 654, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002) (citing Cal. Penal Code § 3041(b)). There are six factors tending to show unsuitability for parole and nine factors that the statutes direct the Board to deem indicative of parole suitability. Cal. Code Regs., tit. 15 §§ 2281(c)-(d) & 2402(c)-(d). However, while these factors must be weighed in evaluating the appropriateness of parole, “the paramount consideration for both the Board [of Prison Terms] and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety.” Hayward, 603 F.3d at 562 (quoting In re Lawrence, 44 Cal.4th 1181, 1210, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008)). There must be “some evidence” of a current threat to public safety in order to deny parole and the commitment offense alone does not establish current dangerousness. Cooke v. Solis, 606 F.3d 1206, 1214 (9th Cir.2010) (citing Lawrence, 44 Cal.4th at 1213, 82 Cal.Rptr.3d 169, 190 P.3d 535 and Hayward, 603 F.3d at 562). The Board or Governor may consider the aggravated circumstances of the commitment offense, but the record also must establish “that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” Lawrence, 44 Cal.4th at 1214, 82 Cal. Rptr.3d 169, 190 P.3d 535; Cooke, 606 F.3d at 1214. On federal habeas review of a prisoner’s claim that the Board or the Governor denied parole in the absence of “some evidence” of current dangerousness, courts in this circuit “need only decide whether the California judicial decision approving the [Board or] governor’s decision rejecting parole was an ‘unreasonable application’ of the California ‘some evidence’ requirement, or was ‘based on an unreasonable determination of the facts in light of the evidence.’ ” Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(1)-(2)); Pearson, 606 F.3d at 608 (including decisions of the parole board in the Hayward analysis); see also Boyd v. Newland, 467 F.3d 1139, 1152 (9th Cir.2006) (“[i]n general, Ninth Circuit precedent remains persuasive authority in determining what is clearly established federal law”). Respondent argues that under Hayward, this Court may not review how the state court applied the “some evidence” test because doing so would run afoul of AEDPA’s limitation of habeas relief to misapplications of federal, as opposed to state, law. Resp’t Mem. at 7. Rather, Respondent contends the Court is limited to the following two-step analysis: “(1) is the state court procedure at issue fundamentally adequate to vindicate the state interests afforded Medway; and (2) if so, did California in fact provide Medway the procedures required under state law.” Id. at 8. Because Hayward did not find California’s procedural “some evidence” requirement inadequate to vindicate the rights afforded under California’s statutes and because California provided Medway with the required procedural review, Respondent contends Petitioner is not entitied to further review or relief from this Court. Id. at 8-9. The Ninth Circuit addressed and rejected this precise argument in Pearson, explaining: [T]he State contends that Hayivard limits federal habeas review to a cursory examination of whether a state court identified and applied the California “some evidence” requirement, rather than an examination of how the state court applied the requirement. Again, the State’s argument is based on a fundamental misunderstanding of the Hayward holding quoted above. Hayward specifically commands federal courts to examine the reasonableness of the state court’s application of the California “some evidence” requirement, as well as the reasonableness of the state court’s determination of the facts in light of the evidence. Hayward, 603 F.3d at 562-63. That command can only be read as requiring an examination of how the state court applied the requirement. Moreover, after examining the particular state court decision at issue, Hayward concluded that the district court properly denied the writ because “[tjhere was some evidence of future dangerousness” justifying the denial of parole, 603 F.3d at 563, and not merely because the state court purported to identify some evidence of future dangerousness. In short, the Hayward court itself performed the function that the State argues it forbade. Indubitably, Hayward neither announced nor applied the test now urged by the State. Pearson, 606 F.3d at 609. Furthermore, this Court is not'persuaded by Respondent’s argument that interpreting Hayward as requiring an analysis of how the state court applied the “some evidence” test is contrary to well-established Supreme Court authority prohibiting federal habeas review of state court determinations on questions of state law. See Resp’t Mem. at 7-8. Respondent cites to Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) and Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) for this proposition. Id. at 8. Both of those decisions do, in fact, make clear that “[a] federal court may not issue the writ on the basis of a perceived error of state law.” Pulley, 465 U.S. at 41, 104 S.Ct. 871; see also Estelle, 502 U.S. at 67-68, 112 S.Ct. 475 (“we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”). However, the Supreme Court repeatedly has explained that federal habeas courts are tasked with evaluating state courts’ applications of state laws to the extent necessary to determine “whether the state court’s finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); see also Pulley, 465 U.S. at 41, 104 S.Ct. 871 (acknowledging that “an error of state law could be sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment”); Estelle, 502 U.S. at 68, 112 S.Ct. 475 (evaluating “the question whether the admission of the evidence [by the state court] violated McGuire’s federal constitutional [Due Process] rights”). , Respondent’s summary of District Attorney’s Office v. Osborne, — U.S. -, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) in support of his position is equally misleading. See Resp’t Mem. at 6. In Osborne, the Supreme Court considered whether the petitioner had “a right under the Due Process Clause to obtain postconviction access to the State’s evidence for DNA testing.” Osborne, 129 S.Ct. at 2316. As in prior cases of this nature, the Court determined that the state afforded the petitioner “a liberty interest in demonstrating his innocence with new evidence under state law.” Id. at 2319 (emphasis added). Respondent incorrectly asserts that the Osborne Court “simply determined that the state’s procedures were not fundamentally inadequate and then looked to see if the petitioner received those protections” and that, therefore, Osborne stands for the proposition that federal courts should not review how the state applies its procedures. See Resp’t Mem. at 6. To the contrary, the Osborne Court expressly noted that it could not address whether the state’s “newly developing procedures for obtaining postconviction access to DNA” worked “in practice” because the petitioner “ha[d] not tried to use the process provided to him by the State or attempted to vindicate the liberty interest that is now the centerpiece of his claim.” Osborne, 129 S.Ct. at 2321. In other words, the Court did not say it would not address whether the state properly applied its procedures, it said that it could not under the facts of the case. This Court also briefly addresses Respondent’s argument that the “some evidence” standard established in Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) is not clearly established federal law for purposes of federal review of a state parole decision, and therefore, cannot be grounds for Petitioner to obtain habeas relief. Resp’t Mem. at 9. Respondent is absolutely correct that the Hayward court held that Hill is not on point and that “[t]here is no general federal constitutional ‘some evidence’ requirement for denial of parole.” Hayward, 603 F.3d at 559. However, once again, this is not the whole story. The full quote from Hayward is “[t]here is no general federal constitutional ‘some evidence’ requirement for denial of parole, in the absence of state law creating an enforceable right to parole.” Id. (emphasis added). While the court found no federal constitutional “some evidence” standard, the Hayward court concluded that a state court finding of “some evidence” was part of the liberty interest in parole release created by California’s system and that this liberty interest is “entitled to protection under the Due Process Clause.” Id. at 561 (quoting Allen, 482 U.S. at 371, 107 S.Ct. 2415). Accordingly, this Court finds no support for Respondent’s argument that this Court’s review is limited to evaluating the procedures utilized by the State. B. The Board’s Decision Denying Parole was an Unreasonable Application of California’s “Some Evidence” Requirement and was Based on an Unreasonable Determination of the Facts in Light of the Evidence Presented Having rejected Respondent’s legal arguments, this Court now turns to the proper standard of review in this case, which is “whether the California judicial decision approving the [Board or] governor’s decision rejecting parole was an ‘unreasonable application’ of the California ‘some evidence’ requirement, or was ‘based on an unreasonable determination of the facts in light of the evidence.’ ” Hayward, 603 F.3d at 562-63 (quoting 28 U.S.C. § 2254(d)(1)-(2)); Pearson, 606 F.3d at 608. Petitioner argues that Board’s decision denying him parole was based on an unreasonable determination of the facts. Pet’r Mem. at 3-12. Respondent only made the legal arguments discussed above and did not address whether the state courts unreasonably applied California’s “some evidence” requirement or based their decisions on an unreasonable determination of the facts. In this case, the California Supreme Court and the California Court of Appeal summarily denied Petitioner’s claim, so this Court must “look through” these silent denials to the superior court’s reasoned decision. Ylst, 501 U.S. at 804, 111 S.Ct. 2590. The superior court explained: As the Supreme Court has stated, “Parole applicants have an expectation of being granted parole unless the Board finds, in the exercise of its discretion that the applicant is unsuitable.” The operative words are “in the exercise of its discretion”. Judicial review of this discretion is limited only to a determination as to whether there is “some evidence” in the record to support the decision. As stated earlier, that “some evidence” must go to the core statutory determination that Petitioner remains a current threat to public safety. The Supreme Court has noted that the standard of “some evidence” is extremely differential (sic) towards the Board. The Supreme Court in Laurrence directed the Board to look at the commitment offense within the context of the prisoner’s pre- and/or post-incarceration history, as well as his current demeanor and mental state. Appellate decisions continue to allow the Board to consider strongly the prisoner’s commitment offense. In the recent case of In Re Smith, (2009) 171 Cal.App.4th 1631 at 1639, 90 Cal.Rptr.3d 400, the Court held as follows: “The gravity of Respondent’s commitment offense has continuing predicted value as to current dangerousness in view of her lack of insight into her behavior and refusal to accept responsibility for her personal participation.” As the government correctly points out and as the board members noted, the Petitioner has not fully accepted responsibility for the victim’s death. This is the case because Petitioner insists that he is not fully responsible because he was not the shooter, rather he only beat the victim. In response to Petitioner’s statements to the Board the Government refers this Court to In Re Bettencourt, (2007) 156 Cal.App.4th 780, 67 Cal.Rptr.3d 497. In that case, it is noted that an accomplice’s liability is derivative to the perpetrator and so Petitioner is fully responsible for all acts committed during the course of the murder. The psychological report by Dr. Turner is certainly supportive of parole. On Page 9 of that report, the evaluator opined that Petitioner has “largely accepted”. He notes that the Petitioner has programmed in an “exemplary” manner earning his GED, four vocational certificates, and is a valued person assisting staff at Centinela State Prison. Petitioner was also noted to have positive parole plans with respect to employment and living arrangements. It was further noted that during his term of incarceration, Petitioner had received only four CDC 115’s and two CDC 128’s but has maintained a disciplinary free status for many years. The Board did consider the positive factors, which favored parole, and made its findings that these did not outweigh the factors surrounding the circumstances of the life crime, taking into account the prisoner’s pre- and post-incarceration history. While the decision did not reflect the weighing process of the Board, in (sic) the case of In Re Rosenkrantz, (2002) 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174, clearly states that the Board need not explain its decision, where the precise manner in which the specific facts where (sic) relevant to parole suitability. This consideration and balancing lay within the discretion of the Board. Here the Board found that the identified facts were probative on the central issue of current dangerousness when considered in light of the full record before the Board. The Court cannot substitute its own judgment for that of the board members. A review of the record discloses that the Board’s observations were valid and consisted of “some evidence” in support of a finding of nonsuitability with a one year denial and does comport with the Supreme Court’s most recent directions in the cases of Lawrence and Shaputis. Lodgment 2 at 3-5. Here, the superior court’s opinion does not clearly specify which of the Board’s findings it believes supported the parole denial. Instead, the court largely deferred to the Board’s judgment, concluding generally that “[a] review of the record discloses that the Board’s observations were valid and consisted of ‘some evidence.’ ” Id. at 5. Under these circumstances, this reviewing court must examine each of the Board’s reasons for denying parole in order to evaluate the reasonableness of the superior court’s decision. See Cooke, 606 F.3d at 1214. In so doing, the Court is cognizant of the fact that the Board is charged with applying California parole regulations, which call for consideration of enumerated circumstances that “tend to indicate unsuitability for release” as well as those that “tend to show that the prisoner is suitable for release.” Cal. Code Regs., tit. 15 § 2281(c)-(d). However, while these factors may guide the Board’s decision, the ultimate question is whether there is “some evidence” of a current threat to public safety “and not merely evidence that supports one or more of the Board’s subsidiary findings.” Pirtle v. Cal. Board of Prison Terms, 611 F.3d 1015, 1021 (9th Cir.2010). The decision of the 2008 Board panel is the only one being reviewed by this Court. The 2008 Board panel based its decision on the following factors: 1) The commitment offense 2) Petitioner’s failure to profit from society’s attempts to correct his criminality prior to his commission of the commitment offense 3) Petitioner’s problematic relationship with his step-father prior to the commitment offense 4) Petitioner’s lack of insight into the crime and failure to take full responsibility 5) Petitioner’s desire to do things his way, failure to participate sufficiently in self-help programs, and his sense of entitlement to parole 6) Unrealistic parole plans and a vague employment offer 7) District Attorney’s opposition to his release Lodgment 7 at 109-124. The Court will address each of these considerations in turn. 1. The Commitment Offense The Board first relied upon the commitment offense, which took place thirty-one years before the hearing. Specifically, the Board described the commitment offense as “a dispassionate and very horrible crime where the victim was abused, he was defiled, and it clearly demonstrated an exceptionally callous disregard for human suffering.” Lodgment 7 at 110. The presiding commissioner went on to note that “[i]t appeared that the motive for this was strictly for fun or relaxation — not relaxation, fun, and I really can’t see, really, a good motive for it.” Id. at 110-11. He also found it troubling that “after the fact, after the crime, [] [Petitioner] instructed others to clean up everything so that it would appear that none of [them] were involved in this tragic event.” Id. at 111. While the Board acknowledged awareness of the recent California Supreme Court decisions (In re Lawrence and In re Shaputis) barring use of the commitment offense alone as a basis for denying parole and requiring that some “nexus” be found that made the prisoner a continuing safety risk (id. at 109), it did not make clear which “nexus” it relied upon in this case. In reviewing the facts of Petitioner’s commitment offense, this Court experienced the same sense of horror and disgust that numerous Board panels and the Governor seem to have felt in the past. However, the law now is crystal clear that the commitment offense, no matter how gruesome, is not sufficient by itself to justify the denial of parole. Lawrence, 44 Cal.4th at 1214, 82 Cal.Rptr.3d 169, 190 P.3d 535; Cooke, 606 F.3d at 1214. Because the law is clear that the commitment offense alone cannot establish current dangerousness, the Court looks to the other reasons cited by the Board in order to determine whether the record establishes “that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” Lawrence, 44 Cal.4th at 1214, 82 Cal.Rptr.3d 169, 190 P.3d 535; Cooke, 606 F.3d at 1214. 2. Petitioner’s Record Prior to the Commitment Offense One basis for the Board’s denial was that Petitioner “clearly” failed to profit from society’s previous attempts to correct his criminality. Lodgment 7 at 112. In support of this assertion, the Board noted that one of Petitioner’s probationary periods occurred when he was a juvenile and another was imposed in Petitioner’s adulthood. Id. While the record is somewhat unclear as to the dates and dispositions of Petitioner’s prior convictions, it appears the first probationary period occurred in 1974 (at age 20) and resulted from a prowling conviction and the second, in 1976 (at age 22), stemmed from a conviction for entering without consent. Id. at 36; Pet’r Mem., Ex. H (record of prior convictions) & D (2003 mental health evaluation at 9-10). Assuming it is an accurate statement that a twenty year old was considered a juvenile in 1974, the Board fails to elaborate on how these two relatively minor, non-violent convictions over thirty years ago can reasonably be viewed as evidence that Petitioner posed an unreasonable risk to public safety in 2008. In fact, none of the records of Petitioner’s prior convictions are for violent crimes. See Lodgment 7 at 34-36; Pet’r Mem., Ex. H (record of prior convictions) & D (2003 mental health evaluation at 9-10); Traverse Mem. at 11. This is significant because under the California regulations established to guide Board decisions, the fact that “[t]he prisoner lacks any significant history of violent crime” is listed as a “circumstance tending to show suitability” for parole. Cal. Code Regs., tit. 15, § 2281(d)(6) (emphasis added). In a recent Ninth Circuit case, the Board based its parole denial on a finding that the petitioner “failed to profit from society’s previous attempts to correct his criminality,” and that the petitioner “cannot be counted on to avoid criminality.” Pirtle, 611 F.3d at 1022-23. In rejecting this ground for denying parole, the court concluded that the petitioner’s two short jail terms for non-violent, alcohol-related offenses did not serve as evidence that he “cannot be counted on to avoid criminality.” Id. at 1023. As the court explained, “[t]o hold otherwise would be to create a per se rule that any inmate who previously spent time in jail for any crime, no matter how minor, ‘cannot be counted on to avoid criminality’ and is therefore unsuitable for parole.” Id.; see also Cooke, 606 F.3d at 1215 (rejecting the board’s use of ten-year-old minor and non-violent disciplinary infractions as bases for denying parole). This reasoning applies with equal force to the instant case. In other words, Petitioner’s supposed “fail[ure] to profit from society’s previous attempts to correct [his] criminality” is just as immutable a reason as the commitment offense to deny parole. The Board provided no nexus between Petitioner’s non-violent criminal history and a finding of current dangerousness and the Court finds no evidence that a rational connection between the two exists. It also should be noted that Petitioner has an exemplary record in prison. His most recent disciplinary infraction of any kind was in 1990 — twenty years ago — and it was an unexcused absence. Lodgment 7 at 40. In total, he has received only 4 “115s” (i.e. serious rules violations, the last being in 1987 for hiding during the inmate count) and 3 “128s” (administrative rules violations). Id. Thus, it appears that since his incarceration, Petitioner has profited from society’s attempts to correct his criminality. 3. Unstable Social History The Board also cited Petitioner’s problematic and abusive relationship with his step-father, which resulted in Petitioner running away from home at age thirteen and living on the streets when he could not stay with friends. Lodgment 7 at 33, 112. One of the factors indicating unsuitability for parole is that “[t]he prisoner has a history of unstable or tumultuous relationships with others.” Cal. Code Regs., tit. 15, § 2281(c)(3). However, while Petitioner’s relationship with his step-father may have been indicative of some instability during Petitioner’s youth, this isolated example does not provide evidence of current dangerousness. Petitioner does not plan to live with his step-father upon release and, in fact, it appears his mother divorced this individual soon after Petitioner’s incarceration. See Pet’r Mem., Ex. D (2003 mental health evaluation at 7). The record reflects no other “unstable” relationships; to the contrary, it shows that he has had consistent contact with, and support from, his mother and sisters. See Lodgment 7 at 23-24, 28-29; Lodgment 9 (2008 psychological evaluation at 4-5) (noting that Petitioner “enjoys significant emotional support from family members and friends” and that Petitioner’s prison file contains “numerous letters of support, written consistently from year to year”); Pet’r Mem., Ex. D (2003 mental health evaluation at 7) and (1995 psychological evaluation at 3). Additionally, the record before this Court indicates that Petitioner has interacted well both with other prisoners and with prison staff during his decades of incarceration. For instance, in the 2008 psychological evaluation, the forensic evaluator noted, “[tjhere is no documented evidence of interpersonal conflict with staff or peers. To the contrary, he is viewed as an asset by custody officers and appears to get along well with his peers.” Id. at 13. And, since 2004, he has maintained employment doing clerical work in the Program B office and earned several laudatory chronos for his performance. See Lodgment 9 at 5. As such, there is no credible evidence that Petitioner has had, or continues to have, “a history of unstable or tumultuous relationships” or that his interactions with his step-father over forty years ago have any bearing on his current dangerousness. 4. Petitioner’s Lack of Insight and Failure to Take Responsibility The Board also felt that Petitioner lacked “true insight” into his crime and failed to accept full responsibility. Lodgment 7 at 113-17. In elaborating on this point, the Board compared Petitioner’s summary of the crime in the 2008 psychological evaluation to a summary he provided in an application for New House, a halfway house. Id. Concluding that they were in “direct conflict,” the Board explained “we just don’t believe that you really and truly understand the magnitude and nature of the crime, because you keep saying you’re sorry for what you did, but you initiated the whole thing and therefore you are just as guilty and the jury found you just as guilty as the person that pulled the trigger.” Id. at 117. As Petitioner points out, “lack of insight” is not expressly listed in the California regulations as a factor to be considered in determining suitability for parole. Traverse Mem. at 9 (citing Cal. Code Regs., tit. 15 §§ 2281, 2402). Nonetheless, it has become a common theme in parole denials, as the California Court of Appeals recently explained: Before August 21, 2008, the date Lawrence, supra, 44 Cal.4th 1181, 82 Cal. Rptr.3d 169, 190 P.3d 535 and Shaputis, supra, 44 Cal.4th 1241, 82 Cal.Rptr.3d 213, 190 P.3d 573 were decided, virtually all decisions of the Board and Governor denying parole relied primarily on the gravity of the commitment offense. (See Lawrence, at p. 1206, 82 Cal. Rptr.3d 169, 190 P.3d 535 [noting “the practical reality that in every published judicial opinion [reviewing a parole decision], the decision of the Board or the Governor to deny or reverse a grant of parole has been founded in part or in whole upon a finding that the inmate committed the offense in an ‘especially heinous, atrocious or cruel manner’ ”].) In the aftermath of Lawrence and Shaputis, the denial of parole now seems usually based, at least in part, upon the inmate’s asserted “lack of insight” in some respect, which has become the new talisman. The intensified interest in this very subjective factor — which is not among the criteria indicative of unsuitability for release on parole set forth in the governing regulations (Regs., §§ 2281, 2402) — derives, of course, from the Supreme Court’s opinion in Shaputis, in which the Governor’s reversal of an award of parole was upheld because his reliance on the gravity of the inmate’s commitment offense was coupled with concern about the inmate’s “lack of insight into the murder and into the years of domestic violence that preceded it.” (Shaputis, supra, 44 Cal.4th at p. 1258, 82 Cal.Rptr.3d 213, 190 P.3d 573.) The weight placed on this factor by the Shaputis court has stimulated far greater use of it by the Board and Governor than was formerly the case. Considering that “lack of insight” is not among the factors indicative of unsuitability for parole specified in the sentencing regulations and has been rarely relied upon by the Board or Governor in the past, the increasing use of this factor is likely attributable to the belief of parole authorities that, as in Shaputis, “lack of insight” is more likely than any other factor to induce the courts to affirm the denial of parole. But the incantation of “lack of insight,” a more subjective factor than those specified in the regulations as indicative of unsuitability, has no talismanic quality. Like all evidence relied upon to find an inmate unsuitable for release on parole, “lack of insight” is probative of unsuitability only to the extent that it is both (1) demonstrably shown by the record and (2) rationally indicative of the inmates current dangerousness. In re Calderon, 109 Cal.Rptr.3d 229, 242-43 (Cal.App. 1st Dist.2010) (finding “no basis at all in the record” for the Governor’s perception that the petitioner lacked insight). It is noteworthy that even the Shaputis court acknowledged the subjective nature of this element of its analysis, when it explained that “expressions of insight and remorse will vary from prisoner to prisoner and that there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior.” In re Shaputis, 44 Cal.4th 1241, 1260 n. 18, 82 Cal.R