1

Filed 8/24/20 (unmodified opinion attached)

Order modifying opinion filed 7/23/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re ANDREW DAVE 

SHELTON,

on Habeas Corpus.

 A154983

 (Solano County Super. Ct.

 No. FCR334660) 

 ORDER MODIFYING OPINION

 NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on July 23, 2020, 

be modified as follows:

1. On page 19, at end of the last full paragraph, add as 

footnote 8, the following footnote, which will require renumbering 

of all subsequent footnotes: 

8 This statement of how the system is supposed to 

operate, however, may not describe reality. In 2019, 66 

percent of the hearings conducted by the Board resulted in 

a denial of parole, 61 percent of the hearings held for 

indeterminately sentenced youth offenders resulted in a 

denial (as did 77% of those for determinately sentenced 

youth offenders), and 68 percent of hearings held for 

inmates eligible for an elderly parole hearing resulted in 

the denial of parole. (Board of Parole Hearings, 2019 

Report of Significant Events (Feb. 18, 2020) p. 7.)

2. On page 34, in the last partial paragraph, make a new 

paragraph after the sentence ending, “. . . in which it is so 
2

eminently present.” The first sentence of the new paragraph is 

changed to read:

According to the California Department of 

Corrections and Rehabilitation (CDCR), 32 percent of the 

prison population in 2017 was mentally ill; and life 

prisoners eligible for parole, like Shelton, are more likely 

than other inmates to be mentally ill.13

3. On Page 35, at the end the of the sentence above, add as 

footnote 13, the following footnote, which will require 

renumbering of all subsequent footnotes:

13 The high percentage should not be surprising. 

According to a 2014 survey, there were approximately 10

times more identifiable mentally ill persons in state prisons 

in this nation than there were in mental hospitals. Torrey 

et al., The Treatment Advocacy Center, The Treatment of 

Persons with Mental Illness in Prisons and Jails; A State 

Survey (Apr. 8, 2014) p. 101 <http://treatmentadvocacy

center.org/storage/documents/treatmentbehind-bars/treatment-behind-bars.pdf> [as of 

Aug. 24, 2020].)

4. On page 35, and in between the parenthesis ending

“. . . [as of July 23, 2019].)” and the sentence beginning “In a 

prison system . . .” add the following:

Furthermore, “[o]n average, prisoners with mental illness 

receive sentences that are 12 percent longer than prisoners 

convicted of the same crime but without mental health 

diagnoses.” (Id. at p. 2.) Prisoners with mental illness are 

more likely to be deemed unsuitable for release because the 

symptoms of their illness often involve behavior that 
3

violates prison rules. (Id. at p. 4, citing as an example, 

“People v. Nolkemper, Los Angeles Sup. Ct. Case No. 

LA030060-01 (Nov. 3, 2016) [finding petitioner unsuitable 

for release based on prison rule violations directly related 

to petitioner’s mental illness].”) Indeed, having a mental 

illness may itself be weighed as a basis for finding a 

prisoner unsuitable for release on parole, as CDCR 

regulations provide that having “a history of unstable or 

tumultuous relationships with others” is a “circumstance 

tending to show unsuitability” for release. (Regs., § 2281, 

subd. (c)(3); see also, Human Rights Watch, Ill-Equipped: 

U.S. Prisons and Offenders with Mental Illness (Oct. 21, 

2003) <https//:www.hrw.org/report/2003/10/21ill-equipped/

us-prisons-and-offenders-mental-illness> [as of 

Aug. 24,

2020].)

5. On page 36, after the quote: “ ‘overwhelming evidence of 

the systematic failure to deliver necessary care to mentally ill 

inmates’ in California” delete “the denial of” and add the words

“denying Shelton.” The partial sentence should read:

“overwhelming evidence of the systematic failure to deliver 

necessary care to mentally ill inmates” in California, 

denying Shelton parole on grounds so obviously related to 

mental illness adds insult to injury.

6. On page 36, at the end of the sentence above, add the 

following, including footnote 14, which will require renumbering 

of all subsequent footnotes:
4

The denial of parole in this case (the seventh in 

the 16 years since Shelton became eligible for 

parole) on the basis of Shelton’s confused 

memory and assertedly illogical and implausible 

explanation seems wholly indifferent to the 

many reasons mentally ill inmates are much 

less able than other prisoners to satisfy the 

demands of the parole process and,

consequently, serve significantly longer prison 

terms 

than otherwise similarly situated prisoners.14

7. Add the following as text of footnote 14:

14 The many ways in which mental illness 

exacerbates the pains of imprisonment have been 

illuminated by University of California Santa Cruz 

Professor Craig Haney, a leading scholar in this area. 

(Haney, “Madness” and Penal Confinement; Some 

Observations on Mental Illness and Prison Pain

(2017) 19 Punishment & Society 310.)

8. On page 37, in the second full paragraph, change the 

first sentence to read:

To repeat, “ ‘parole is supposed to be the rule, rather 

than the exception.’ ”

There is no change in judgment.

Dated: ____________________ ________________________

 KLINE, P.J.
5

Trial Court: Solano County Superior Court

Trial Judge: Honorable Daniel Healy

Attorney for Petitioner: By Appointment of the Court of Appeal

Under the First District Appellat Project

Shannon Chase

Attorneys for Respondent: Attorney General of California

Xavier Becerra

Phillip J. Lindsay

Senior Assistant Attorney General

Sara J. Romano

Supervising Deputy Attorney General

Denise A. Yates

Deputy Attorney General
1

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

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re ANDREW DAVE SHELTON

on Habeas Corpus.

 A154983

 (Solano County Super. Ct.

 No. FCR334660) 

Andrew Dave Shelton, serving a life sentence for a 1991 

second degree murder, petitions for a writ of habeas corpus after 

being denied parole in 2016, and again in 2018. He contends the 

Board of Parole Hearings (Board) failed to apply controlling legal 

principles in finding him unsuitable for parole. As we will 

explain, we agree that the relief he seeks—a new parole 

suitability hearing—is warranted.

BACKGROUND

In 1993, Shelton was sentenced to a prison term of 19 years 

to life after pleading no contest to the second degree murder of 

his mother-in-law, Carol Tveisme, and assault with a firearm on 

her sister-in-law, Broje Tveisme. His minimum eligible parole 

date was February 18, 2004; the parole hearings in 2016 and 

2018, were his fifth and sixth. Each of these hearings followed a 

prior three-year denial and was advanced to a hearing date 

earlier than the three years as a result of the administrative 

review process. 
2

After Shelton filed a pro. per. petition for writ of habeas 

corpus challenging the parole denials, this court issued an order 

to show cause and appointed counsel to represent him. A 

supplemental petition was filed on February 19, 2019, followed by 

respondent’s return and Shelton’s traverse. While these 

proceedings were pending, Shelton appeared for another parole 

hearing on November 15, 2019, and was again denied parole. We 

denied Shelton’s request to expand the order to show cause but 

stated that any effect of the 2019 parole denial would be 

addressed in disposing of the issues raised in the current 

pleadings.1

Pre-offense Background

Shelton entered the military at age 17, after graduating 

from high school, and served from 1973 to 1991. The only 

instance of violence in his history was a bar fight early in his 

military service, which he said he did not instigate but responded 

to with violence. He served in active combat in various global 

locations, and reported having seen “horrible death, destruction” 

including rebels in the Congo “killing children, cutting babies out 

of women’s stomachs.” He received a Purple Heart and a Bronze 

Service Star, as well as other decorations including the “Army 

1 Shelton’s request was framed as an “Alternative Request 

To Expand Order To Show Cause To Include November 15, 2019 

Parole Denial Or For Finding That This Subsequent Parole 

Hearing Failed To Resolve The Issues Before This Court In The 

Habeas Proceeding.” Respondent did not seek to oppose this 

request. Respondent does argue that the 2019 hearing and 

denial moot Shelton’s challenges to the 2016 and 2018 decisions. 

We explain our reasons for rejecting this contention, post.
3

Service Ribbon/Oversea Service Ribbon, Professional 

Development Ribbon, Army Commendation Medal, Army Good 

Conduct Medal, Driver’s Mechanic Badge, and National Defense 

Service Medal.”

In 1990, Shelton suffered a traumatic brain injury when 

the tailgate of a five-ton truck was dropped on his head, after 

which he reported significant memory difficulties, had problems 

with getting lost, and suffered slurred speech. He also suffered 

back injuries when a helicopter he was in was shot down, and 

according to some of his accounts sustained head injuries in that 

crash.2 He acknowledged abusing alcohol while in the military, 

saying he never drank on duty but drank “ ‘hard’ ” on days off. 

He was honorably discharged in 1991, with a “100% disability for 

psychogenic amnesia.”

Shelton married in 1980, and had two daughters, but his 

wife left him for another man shortly after the birth of the second 

child, and then died in an airplane crash. He met Lori, his 

second wife, in Hawaii around the time of his discharge from the 

military. His daughters, then six months old and nine years old, 

were living with his sister in Texas. He and Lori moved to 

Fairfield, California and the children came to live with them, as 

did Lori’s son. At this time, the army owed Shelton $64,000 in 

back pay. 

2 The 2016 risk assessment report noted that in his 

interview, Shelton was “convinced” his only head injury in the 

military was from a helicopter crash despite records of a 1991 

psychological evaluation indicating the head injury resulted from 

being hit with the tailgate. 
4

Shelton's marriage to Lori was very brief. He reported that 

she had an alcohol problem and left the treatment program he

put her in, and that she would throw things at him, hit him, 

threaten him with a bat or knife, and threaten to have him killed. 

Shelton denied hitting her, but stated at the 2018 hearing that he 

once “spanked” her to get her to stop what she was doing. Lori’s 

mother, Carol, “talked ugly” to him, criticized, insulted, and 

belittled him. 

Prior to the life offense, Shelton believed Lori and her 

family were trying to kill him. In a 1992 interview, he said that 

they were trying to kill him to get access to his disability 

payments, and that two men had followed him, entered his home 

with a gun, and attempted to kidnap his children. Carol had 

pointed a gun at him in September 1991, and days before the life 

offense, Lori had given him rat poison.3 The 1993 presentence 

report related Shelton saying that six days before the life offense 

Lori threatened to have him killed, and the day before the 

offense, her friends attempted to kill him. At the 2016 hearing, 

Shelton said the men who came to his house were trying to hurt 

him, not to kidnap the children. At the 2018 hearing, however, 

when asked if he thought someone was trying to kill him, Shelton 

said, “No. See, the head injury kind of made me paranoid.” 

3 According to Shelton, Lori put something on his food

while they were eating in a restaurant and he subsequently 

swelled up and had to be taken to the hospital. He stated he was 

not allergic to anything. 
5

The Life Offense

At the time of the life offense, Shelton was 37 years old and 

had no prior criminal record. According to the police report, 

Shelton arrived at Carol’s home, where Lori was then living, at 

9:00 a.m. on December 11, 1991. After talking with Lori, Shelton 

went into Carol’s office to talk with her and shot Carol once in the 

head and once in the neck with a .25 caliber semiautomatic 

pistol. The coroner subsequently concluded that either of the two 

shots could have caused Carol’s death. 

After the shooting, Shelton returned to the living room to 

talk to Lori. Lori went into a neighbor’s apartment and locked 

the door “against [Shelton’s] attempts to gain entry.” Shelton 

shot three times into the door, and Lori jumped out a window and 

ran. Shelton went downstairs, grabbed Carol’s sister-in-law 

Broje in a headlock, placed the gun to her chest, and dragged her 

to the south end of the apartment complex, where she managed 

to get away and ran to a neighboring apartment. As she ran, 

Shelton pointed the gun at her and counted to three, then put the 

gun to his head and pulled the trigger. He was arrested and 

taken to the hospital. 

Shelton has always maintained Carol was shot 

accidentally. His basic account of the shooting has been 

consistent: After drinking several shots of vodka, he borrowed a 

gun from his daughter’s babysitter before going to Carol’s 

apartment. He and Carol argued about money, then as he was 

leaving, he was hit on the head, the gun fell on the floor, she 

grabbed it, and in a struggle over control of the gun, it fired 
6

accidentally.4 Details of the events and his motivations, however,

have varied between his various forensic interviews and 

statements to the Board, as have details about his life.

Shelton has repeatedly stated that he borrowed the gun 

from his babysitter because of his belief that Lori and Carol 

wanted him killed and/or the attempts to kill him. But he told 

the psychologist who conducted his 2016 risk assessment 

evaluation he did not know why the babysitter gave him a gun 

the morning of the offense. At the 2016 hearing, Shelton at one 

point said he brought the gun to Carol’s house because he 

thought the men who had come to his house would be waiting to 

ambush him; at another point said he did not know why the 

babysitter gave him the gun; and at yet another point he said the 

babysitter told him to take the gun because “those guys might be 

there.” At the 2018 hearing, he did not remember having said he 

brought the gun because he thought the men who came into his 

house were going to be waiting for him; he said the babysitter 

gave him the gun after talking to him about Lori and he did not 

know why he took it. 

Shelton went to Carol’s on the morning of the offense after 

Carol called saying Lori was sick and asking Shelton to come and 

take her to the hospital. Although Shelton reported having 

stopped drinking after leaving the military, he drank three or 

four shots of vodka that morning. When he arrived at Carol’s, 

4 An exception to this consistency appears in a pro. per. 

petition to recall sentence dated January 31, 2018, in which 

Shelton referred to the life offense as the “impulsive murder of 

his mother-in-law.” 
7

Lori was not sick. They discussed signing divorce papers and 

Shelton giving Lori $25,000 from the $64,000 he had received 

from the Army. At the 2018 hearing, however, when asked where 

he was going to get the $25,000, Shelton said he was going to 

borrow it from his brother-in-law. 

After the discussion with Lori, Shelton and Carol got into 

an argument about money. As Shelton attempted to leave, Carol 

hit him on the head; in some accounts he said she hit him with a 

hammer and in others that he did not know what she hit him 

with. He fell, and the gun came out of his sock (as he told the 

probation officer in 1993 and psychologist in 2016) or back pocket 

(as he said at the 2016 and 2018 hearings). Carol grabbed the 

gun and aimed at Shelton; at the 2018 hearings, he said she 

“clicked” it, and the presentence report and 2016 risk assessment 

report relate him saying she clicked it but the gun did not fire. 

He leaped at Carol, causing both of them to fall against the wall, 

and the gun accidentally fired during the struggle. Shelton’s 

description at the 2016 hearing was that he “rushed her and bent 

her hand back”; her hand was on the trigger and in the struggle 

the gun fired, hitting her in the neck and side of the head. Asked 

about the gun going off accidentally yet hitting the victim twice, 

Shelton said, “[y]ou’ve got a ten-round magazine in the . . . stock. 

And once you chamber the—chamber slider and a round goes up 

in there, if you just barely touch it, it will go off, especially if 

you’re pulling the trigger. And it will go off twice. It won’t go off 

no more.” 
8

Shelton explained that he fired three shots into the 

neighbor’s doorknob in an attempt to get in and explain to Lori 

what had happened. 

Regarding the incident with Broje, as related in the 

presentence report, Shelton said he saw Broje as he was leaving 

and grabbed her in order to explain what had happened. He 

denied holding a gun to her, and said that after talking briefly 

with her, he shot himself in the head. At the 2016 hearing, he 

said that as he was crying and trying to explain what had 

happened, he “put [his] hand around” Broje, walked with her to 

the “south end” and let her go, and did not point the gun at her or 

chase after her. He denied trying to commit suicide when he shot 

himself in the head and, confronted with a report of his having 

said he shot himself out of despair and guilt, did not remember 

having said this. Noting that he “talk[s] with [his] hands a lot,” 

Shelton said he was trying to explain to the police what had 

happened while holding the gun in his hand, and as he was 

demonstrating the struggle and the bullet hitting Carol’s head, 

the gun “just went off.” In contrast, the 2016 risk assessment 

report related Shelton having said that when he was trying to 

explain what happened to the police, he “thought they weren’t 

gonna take the word of a black man . . . so I shot myself right 

there.” 

According to the 2016 risk assessment report, Shelton

described a different sequence of events than in his other 

accounts: After the shooting, he first went to explain what 
9

happened to Broje, who was scared and would not talk to him,5

then went to find Lori and shot at the door knob when she would 

not open the door, and then went outside and encountered the 

police. 

Although Shelton consistently insisted Carol was shot 

accidentally, he took responsibility for her death due to his 

having brought the gun that day. At the 2016 hearing, he said it 

was his fault “for having the gun.” He said he was not mad when 

he went to the apartment to talk to Lori that day, although at 

another point, discussing how he would get angry in arguments 

with Carol, he said, “[t]he day I went over there, I got mad, I shot 

her.” At the 2018 hearing, he said he took “full responsibility” for 

Carol’s death even though it was an accident, and recognized that 

he “hurt a lot of people.” He told the panel, “She didn’t have no 

right to lose her life. She didn’t have no right—I didn’t have no 

right to do what I did. I betrayed that family.” He took 

responsibility “[f]or everything. That I hurt my daughter’s. I 

hurt the community. It’s a good community, a nice community. I 

hurt the community. Lori Shelton’s family, the Tveisme treasure 

family. . . . They lost their grandmother. The grandkids can’t see 

their grandmother. They don’t know who their grandmother was, 

5 The report quoted Shelton saying he was “running around 

with my head cut off trying to tell [Broje] what happened. She 

was south I think, sun rises in the east and sets in west right? 

She was in the south. She was smoking in the south, outside. 

Told her what happened, she got all scared and wouldn’t talk to 

me.” 
10

for what I’ve done. And plus the community, the neighbors, and 

everybody else. I’d affected a lot of people.” 

Institutional Conduct 

During his more than 25 years in prison, Shelton received 

five rules violation reports. The most recent was in 2011, for 

refusing a rehousing assignment; Shelton maintained he had no 

choice but to refuse because the prison intended to move him to a 

cell with an inmate who sold drugs and possessed a cellular 

phone. Earlier violations were for refusing a rehousing 

assignment and delaying a peace officer in 2009, sexual behavior 

in 2007, “conduct which could lead to violence” in 2005, and “Out 

of Bounds” in 2005. The 2005 and 2007 violations both involved 

an inmate named Blake. In 2007, the reporting officer observed 

the inmates kissing each other on the lips; Shelton denied the 

conduct. In 2005, the reporting officer heard a scream, then 

observed Shelton with his arms wrapped around Blake; Shelton 

said something like “you have my ring” or “give me back my 

ring,” Blake said he did not have it and Shelton threw a punch. 

Shelton said he was “just horse-playing” and they were not 

fighting, and denied ever having been in a relationship with 

Blake.

During the early years of his incarceration, Shelton 

completed vocational training programs in painting and in 

refrigeration and air conditioning. He then trained as a hospice 

volunteer in 2002 and 2003, and worked as a medical aide for 
11

many years. Laudatory “chronos”6 in 2013 and 2014 “attest[ed] 

to his strong work ethic compassion, and desire to learn.” He 

completed over 20 “Pastoral Care Services Advanced Trainings” 

from 2013 to 2015, and his work supervisor reports in that period 

were “mostly exceptional performance ratings.” He was 

reassigned in October 2015, after he was reported to have 

“administered medical care without permission/supervision”

while assisting an inmate to urinate; it was noted that he 

admitted “having feelings for the inmate.” He continued to write 

pastoral care essays after being reassigned. He earned 

certificates of completion for training in palliative care and 

“nursing care of the older adult” in 2015, and was awarded a 

diploma as Health Care Aide in March 2016. As of the 2018 

hearing, his work assignment was in facilities and he was 

continuing to do well and earn certificates in training courses.

Shelton engaged in Alcoholics Anonymous (AA) throughout 

his years in prison and participated in veterans groups and 

various other self-help programs, including anger management 

and “Alternatives to Violence,” earning numerous certificates of 

completion. 

In 2005, Shelton married a woman he was set up with and 

had spoken to only a few times. In a 2009 evaluation, Shelton 

6 A “chrono” is an institutional documentation of 

information about inmates and inmate behavior. (See Cal. Code 

Regs., tit. 15, § 3000 [definition of “General Chrono”]. All further 

references to Regulations are to the California Code of 

Regulations, tit. 15 [Crime Prevention and Corrections], Div. 2

[Board of Prison Terms], § 2000 et seq.)
12

reported he did not recall this marriage: in 2013, he said the 

marriage lasted about a year.

In 2009, Shelton was placed in the Correctional Clinical 

Case Management Services (CCCMS) after he reported having 

been raped by 20 inmates and reported or was observed to have 

nightmares, difficulty sleeping, a quick startle response, social 

withdrawal, agitation, and beliefs that his problems with 

urination and constipation were due to the rape. While in 

CCCMS he reportedly disclosed two suicide attempts during his 

military service—cutting his wrists and overdosing on aspirin. 

He subsequently denied these were suicide attempts, saying he 

had been misunderstood when he described being injured on 

barbed wire while in the field, then taking multiple doses of 

aspirin due to the pain. Shelton’s risk assessments reports state 

that he was removed from CCCMS in 2010 at his request, with a 

notation that depression and insomnia had not been apparent for 

six months. At the 2018 hearing, however, the commissioners 

stated that records showed he was in the mental health system; 

Shelton said he had not seen his psychiatrist in “a while” because 

she said he no longer needed to. 

Parole Plans

Shelton was pursuing plans to move into transitional 

housing, but also had the option of living at his brother-in-law’s 

house; his sister had died by the time of the 2018 hearing, but his 

brother-in-law remained ready to offer support. He was entitled 

to retirement and full medical benefits from the Department of 

Veterans Affairs (VA), as well as social security disability 
13

benefits, and would not need to work for compensation, but he 

intended to volunteer as a health care aide at the VA or, if that 

did not work out, with programs helping the homeless. 

Risk Assessment

Shelton’s most recent “Comprehensive Risk Assessment,”

at the time of both the 2016 and 2018 hearings, from 2016, 

concluded he presented a low risk of violence. All but one of his 

prior evaluations had similarly assessed him as presenting a low 

risk of violence (2003, 2009, 2013); the one exception placed his 

risk at low to moderate (2006). 

The psychologist who evaluated Shelton in August 2016, 

Dr. McManus, noted Shelton had “provided discrepant 

information about his adult life across evaluations” and stated 

this was “likely due to confusion and memory loss secondary to 

multiple traumatic brain injuries.” Dr. McManus noted that 

“[d]isorganization in his thought process and executive 

functioning were evident throughout the interview.” Shelton 

arrived one hour late due to difficulty finding the interview room, 

and admitted he frequently became lost. His speech was mildly 

slurred. Both remote memory and working memory appeared 

impaired, albeit not uniformly. He appeared to have significant 

difficulty remembering events from his military service and 

immediately following his discharge and “appeared to engage in 

some confabulation (describing events that occurred in his past 

even though he was not convinced if the events actually 

occurred).” He showed “relative strengths” concerning good 

judgment and abstract thinking. Dr. McManus stated that 
14

“[d]espite some apparent cognitive difficulties, effective 

communication was reached by speaking slowly and clearly, 

using simple language, and offering to re-word questions as 

needed. Shelton appeared to give his best effort to answer all 

questions, and at times appeared frustrated and confused about 

having difficulties coming up with an answer. His participation 

appeared non-defensive, forthright, and fully cooperative.” 

According to Dr. McManus, despite the discrepancies in 

Shelton’s reports regarding his head injury and the events during 

and after his military service, “evaluating clinicians (Board 

evaluations, military evaluation, multiple evaluations for 

competence to stand trial and criminal responsibility) have 

consistently concluded Shelton has not been lying/malingering” 

but rather that “he was compromised by neurological 

problems/confabulation, delusional thinking, or neurotic 

amnesia.” In Dr. McManus’s opinion, “neurological problems and 

confabulation appear to be the most likely explanation for his 

memory problems and the associated additional problems with 

his mental status.” 

Dr. McManus diagnosed Shelton with “Alcohol Use 

Disorder, In a Controlled Environment” “Major Neurocognitive 

Disorder, Mild, without behavioral disturbance,” and 

“Posttraumatic Stress Disorder.”7 He noted that Shelton’s 

7 Shelton had been diagnosed in 1997 with “Psychogenic 

Amnesia (suspected), Organic Mental Disorder (rule out) and 

Alcohol Abuse”; in 2003 with psychogenic amnesia and alcohol 

abuse; in 2006 with “Cognitive Disorder Not Otherwise 

Specified—possible amnesia/dementia, and Alcohol Abuse (rule 
15

neurocognitive disorder “may be following a progressive course 

toward Moderate levels of impairment (his mental status during 

the current evaluation appeared markedly more impaired 

compared to his status during the 2013 evaluation). This could 

lead to the future development of problems with anterograde 

memory and executive functioning that could impair his ability to 

independently care for himself.” With respect to the alcohol use 

disorder, Dr. Manus reported that Shelton demonstrated 

“internalization of multiple positive aspects of a substance use 

relapse prevention plan” and “a good knowledge of the tenets of 

Alcoholics Anonymous,” did not underestimate the possibility he 

would be tempted to drink in the community and was aware of 

his individualized triggers. 

In assessing Shelton’s risk for violence, Dr. McManus 

stated, “it is clear that a major disorder of thinking has been 

present since at least 1991. With the exception of the life crime, 

this disorder does not appear to have a relationship to violent or 

erratic behavior, as he has demonstrated non-violent and stable 

behavior during his incarceration.” Dr. McManus stated that 

Shelton’s motivations for the life crime remain “unclear due to his 

confabulation of events around that time. It is likely his mental 

disorder combined with disinhibition due [to] his use of alcohol 

that morning contributed to his violent behavior.” It was noted 

that the “potential effects of stress” on Shelton’s disorder should 

out)”; in 2009 with “Cognitive Disorder Not Otherwise Specified 

and Alcohol Abuse (rule out)”; and in 2013 with “Delusional 

Disorder, Dementia due to head trauma (provisional), Alcohol 

Abuse, Adult Antisocial Behavior.” 
16

be “closely monitored/managed during a transition to the 

community,” and his history of substance use considered. 

Dr. McManus stated that Shelton was empathic and “has 

not presented with persistent antisociality. His total PCL-R 

score is far below the mean of North American male inmates and 

below the cutoff or threshold commonly used to identify dissocial 

or psychopathic personality.” It was “unlikely his neurocognitive 

disorder will improve in the future” and “more likely that the 

symptoms will worsen with age.” While there had not been a 

connection between the disorder and violence in prison, “the 

possibility remains for a repeat of the overwhelming confusion, 

and fearfulness he experienced the last time he attempted to 

reintegrate into the community.” “With regard to insight, it is 

unlikely that his disorder will ever allow him to give a coherent 

narrative about his motivations at the time of the crime. This 

lack of insight does not appear to have led to violent outcomes in 

prison but during a transition to the community, his lack of 

insight would warrant consideration. However, violence risk 

could likely be managed without full insight into the life crime, as 

long as he possesses insight into the vulnerabilities that would be 

most likely to lead to his use of violence (substance use, mental 

disorder, poor stress response, interpersonal needs).” 

Dr. McManus noted that while Shelton made statements 

accepting full responsibility and acknowledging his fault for 

carrying a gun on the day of the life offense, his description of the 

events “portrayed himself as a passive victim of a family who 

were harassing and attacking him” and he “did not appear to 
17

have given much consideration to the pain and fear his victim 

must have experienced or to the effects on her family.” 

With respect to elder parolee considerations, Dr. McManus 

observed that Shelton’s medical conditions included two viral 

illnesses, a history of chronic back and knee pain and permanent 

visual impairment, as well as neurological impairment that 

might be “of a progressive nature which could eventually include 

symptoms of dementia.” “A progressive neurological condition 

would likely diminish his physical strength and his capacity to 

effectively plan violence. However, his ability to independently 

ambulate does not entirely rule out his potential to engage in less 

planned/sophisticated violence.” Noting that Shelton had no 

significant violent interactions in prison and minimal rules 

violations reports, Dr. McManus stated that “[t]hese positive 

behavioral patterns were likely influenced by the normal aging 

process and the effects of long-term confinement to some degree.” 

Dr. McManus felt Shelton’s key risk factor for violence was 

his neurocognitive disorder and therefore the key risk 

management target was his ability to understand and manage 

his condition in the community. Commenting upon the “problems 

with insight, empathy and acceptance of responsibility” discussed 

in the evaluation, and lack of understanding of the motivation for 

the offense, Dr. McManus stated, “Most likely, we will never be 

able to come up with the whole story of what occurred on the day 

in question.” He explained that Shelton’s lack of empathy for the 

victim could be “a by-product of the confusion he was 

experiencing at the time, which appeared to be at the level of 
18

intensity similar to a delusion” or “due to true hatred and 

hostility,” but in either case “it is important to note these insightrelated problems do not appear to be present for him in any other 

domains of his life. His few rules violations in prison do not 

appear indicative of antisociality though they do show some poor 

judgment in regard to his intimate relationships in prison. In 

general, he appears to have a pro-social worldview. In sum, his 

violence risk appears to have the potential to be effectively 

managed by proper monitoring, treatment and management of 

his mental disorder in combination with a strong network of 

support persons, AA, [VA], and other community programs.” 

Dr. McManus concluded Shelton presented a “low” risk for 

violence, with “non-elevated risk relative to long-term inmates 

and other parolees. Low-risk examinees are expected to commit 

violence much less frequently than all other parolees.” 

Physical Condition

Shelton was 61 years old at the time of the 2016 hearing, 

62 years old in 2018. He had been designated “Permanently 

Mobility Impaired” in 2003, and was also designated 

“Permanently Blind/Vision Impaired,” meaning his vision was 

“not correctable to acuity of less than 20/200 with corrective 

lenses.” At the 2016 hearing, he stated that he had trouble 

maintaining his balance when walking and would sway and fall

backward, and he had an ADA worker to help him back to his cell 

after the hearing. At the 2018 hearing, he reported that he had 

had two back surgeries and a knee replacement, and was taking 

60 milligrams of morphine twice daily for pain. He wore “special 
19

shoes” and had a restriction against lifting. At his doctor’s 

recommendation, he was trying to walk without a cane, and he 

was trying to go up and down stairs to regain strength in his legs 

and back, which he could manage if he moved slowly. 

DISCUSSION

“ ‘Section 3041 mandates that the Board “ ‘ “normally” ’ ” 

set a parole date for an eligible inmate, and “ ‘must’ ” do so unless 

it determines that an inmate poses a current threat to public 

safety. ([In re] Prather [(2010) 50 Cal.4th [238,] 249 [(Prather)], 

quoting ([In re] Lawrence [(2008)] 44 Cal.4th [1181], 1202

[(Lawrence)]. [Fn. omitted.] As a result, parole applicants have “a 

due process liberty interest in parole” and “ ‘an expectation that 

they will be granted parole unless the Board finds, in the exercise 

of its discretion, that they are unsuitable for parole in light of the 

circumstances specified by statute and by regulation.’ ” 

(Lawrence, [at pp.] 1191, 1204.) In other words, “ ‘parole is the 

rule, rather than the exception’ ” (id. at p. 1204, quoting 

In re Smith (2003) 114 Cal.App.4th 343, 366), and “the onus [is] 

on the Board to justify denial of parole . . .” ([In re] Shaputis

[(2011)] 53 Cal.4th [192,] 222 [(Shaputis II)] (conc. opn. of Liu, 

J.)).’ ” (In re Morganti (2012) 204 Cal.App.4th 904, 915–916, 

quoting In re Young (2012) 204 Cal.App.4th 288, 301 (Young).)

“ ‘ “We review the Board’s decision under a ‘highly 

deferential “some evidence” standard.’ ” ([Young, supra], 204 

Cal.App.4th [at p.] 302, quoting [Shaputis II, supra,] 53 Cal.4th 

at p. 221.) “[T]he appellate court must uphold the decision of the 

Board or the Governor ‘unless it is arbitrary or procedurally 
20

flawed,’ and it ‘reviews the entire record to determine whether a 

modicum of evidence supports the parole suitability decision.’ 

(Shaputis II, at p. 221.) ‘The reviewing court does not ask 

whether the inmate is currently dangerous. That question is 

reserved for the executive branch. Rather, the court considers 

whether there is a rational nexus between the evidence and the 

ultimate determination of current dangerousness. The court is 

not empowered to reweigh the evidence.’ (Ibid.) At the same 

time . . . the Board’s decision must ‘ “reflect[ ] due consideration 

of the specified factors as applied to the individual prisoner in 

accordance with applicable legal standards.” ’ (Shaputis II, at 

p. 210, quoting [In re] Rosenkrantz [(2002)] 29 Cal.4th [616,] 677, 

and citing Lawrence, supra, 44 Cal.4th at p. 1204, and [In re

Shaputis (2008)] 44 Cal.4th [1241,] 1260–1261 [(Shaputis I)].)” 

([In re] Stoneroad (2013) 215 Cal.App.4th 596, 616.) We are 

required to affirm a denial of parole “unless the Board decision 

does not reflect due consideration of all relevant statutory and 

regulatory factors or is not supported by a modicum of evidence 

in the record rationally indicative of current dangerousness, not 

mere guesswork.” (Ibid.)

‘The nexus to current dangerousness is critical. “Lawrence

and Shaputis I ‘clarified that in evaluating a parole-suitability 

determination by either the Board or the Governor, a reviewing 

court focuses upon “some evidence” supporting the core statutory 

determination that a prisoner remains a current threat to public 

safety—not merely “some evidence” supporting the Board’s or the 

Governor’s characterization of facts contained in the record.’ 
21

(Prather, [supra, 50 Cal.4th] at pp. 251–252.)” (In re Stoneroad, 

supra, 215 Cal.App.4th at p. 615.) “ ‘It is not the existence or 

nonexistence of suitability or unsuitability factors that forms the 

crux of the parole decision; the significant circumstance is how 

those factors interrelate to support a conclusion of current

dangerousness to the public.’ (Lawrence, [supra, 44 Cal.4th] at 

p. 1212, italics added.) The Board ‘must determine whether a 

particular fact is probative of the central issue of current 

dangerousness when considered in light of the full record.’ 

(Prather, . . . at p. 255, italics added.)” (Young, supra, 204 

Cal.App.4th at p. 303.) “ ‘[T]he proper articulation of the 

standard of review is whether there exists ‘some evidence’ 

demonstrating that an inmate poses a current threat to public 

safety, rather than merely some evidence suggesting the 

existence of a statutory factor of unsuitability. (Lawrence, . . . at 

p. 1191.)’ ([Prather], at pp. 251–252.)” (Shaputis II, supra, 53 

Cal.4th at p. 209.)’ ” (In re Poole (2018) 24 Cal.App.5th 965, 972, 

quoting In re Perez (2016) 7 Cal.App.5th 65, 84–85 (Perez).)

When the Board denied Shelton parole in 2016, it 

concluded he posed an unreasonable risk to public safety 

primarily because it found his version of the offense “defie[d] 

logic” and his continued view of it as accidental “hampered [his] 

ability to come to terms with this crime, and to accept 

responsibility for it.” Noting Dr. McManus’s statements that 

Shelton’s lack of empathy for the victim could be a “by-product of 

the confusion he was experiencing at that time, which appeared 

to be at the level of intensity similar to a delusion” or “due to true 
22

hatred and hostility” toward the family, the presiding 

commissioner told Shelton he needed to explore more deeply “to 

see if there was hatred and hostility to the point of committing 

murder.” Shelton was told he needed to “look at this from a 

different angle,” that his professed acceptance of responsibility 

did not clarify the motivation for the crime, and that “if you 

haven’t come to terms with the actual murder, then you haven’t 

zeroed in on what the problem is, so therefore, you haven’t been 

able to fix the problem, because you don’t have an understanding 

of why it occurred.” 

The panel in 2018 similarly found Shelton continued to 

pose an unreasonable risk of danger to society because it found 

his explanation of the offense implausible, had trouble believing 

Shelton because his accounts varied, and felt Shelton did not 

understand the magnitude of the crime and impact of his actions 

on his victims. The panel told Shelton there was “really not 

much difference” from 2016, when he was denied parole “for 

basically a lack of insight and lack of remorse,” and he needed to 

look at his offense “honestly.” 

At both hearings, the panels acknowledged that Shelton 

was assessed as presenting a low risk of future violence, and 

acknowledged his “exemplary programming” and “all the great 

laudatory write-ups that you’ve been getting.” Shelton did not 

have a violent history: Dr. McManus referred to the life offense 

as “the only violent act or crime in his lifespan,” and the few rules 

violations he incurred over his 28 years of incarceration did not 

involve actual violence, the only one alleging violence having 
23

been sustained as conduct “likely to lead to” violence.8 The 

panels did not express concerns with Shelton’s parole plans, 

which Dr. McManus described as “specific and feasible.” In short, 

the denials were based on the panels’ conclusions that Shelton’s 

lack of insight into his criminal conduct left him vulnerable to 

repeating that conduct in the future. 

As we explained in Perez, supra, 7 Cal.App.5th 65, the 

California Supreme Court made clear in Shaputis II that 

“ ‘[c]onsideration of an inmate’s degree of insight is well within 

the scope of the parole regulations. The regulations do not use 

the term “insight,” but they direct the Board to consider the 

inmate’s “past and present attitude toward the crime” (Regs., 

§ 2402, subd. (b)) and “the presence of remorse,” expressly 

including indications that the inmate “understands the nature 

and magnitude of the offense.” (Regs., § 2402, subd. (d)(3)).

8 Dr. McManus’s risk assessment noted that Shelton 

reported having been involved in a bar fight early in his military 

career. 

At the 2018 hearing, Shelton denied hitting Lori, even 

when she hit him, but acknowledged having “spanked her” to 

“make her quit” what she was doing. The panel viewed this as 

domestic violence that negated Shelton’s claim he was not a 

violent man. Shelton’s petition asserts that he testified he “might 

spank her on the butt . . . to make her quit hitting him,” and the 

commissioner mischaracterized this as “violence used to get his 

wife to comply or listen to him.” The record does not indicate 

what Lori was doing that he wanted her to “quit.” In responding 

to the commissioner’s question whether Lori wanted a divorce, 

Shelton had just referred to Lori having hit him in the mouth, 

but it is not clear that his comments about spanking her referred 

to the same occasion. 
24

These factors fit comfortably within the descriptive category of 

“insight.” ’ (Shaputis II, [supra, 53 Cal.4th] at p. 218.) ‘[T]he 

presence or absence of insight is a significant factor in 

determining whether there is a “rational nexus” between the 

inmate’s dangerous past behavior and the threat the inmate 

currently poses to public safety. (Lawrence, [supra, 44 Cal.4th] at 

p. 1227; see also Shaputis I, [supra, 44 Cal.4th] at p. 1261, 

fn. 20.)’ (Shaputis II, at p. 218.) Still, ‘the finding that an inmate 

lacks insight must be based on a factually identifiable deficiency 

in perception and understanding, a deficiency that involves an 

aspect of the criminal conduct or its causes that are significant, 

and the deficiency by itself or together with the commitment 

offense has some rational tendency to show that the inmate 

currently poses an unreasonable risk of danger.’ (In re Ryner

(2011) 196 Cal.App.4th 533, 548–549.) It has been noted that an 

inmate’s lack of insight has taken the place of the heinous nature 

of the commitment offense as a standard reason to deny parole, 

‘so much so that it has been dubbed the “ ‘new talisman’ ” for 

denying parole.’ (Id. at p. 547.)” (Perez, supra, 7 Cal.App.5th at 

pp. 85–86.)

The present case is particularly problematic because the 

record suggests Shelton’s cognitive condition will never allow him 

to achieve and demonstrate the kind of insight the panels have 

been demanding. As described by Dr. McManus, Shelton’s 

neurocognitive disorder was a significant contributing factor in 

his commission of the life offense (“[i]t seems more than 

coincidental that his life crime—the only violent act or crime in 
25

his lifespan—occurred around a year after his traumatic brain 

injury”), and his “key risk factor for violence.” Accordingly, 

Shelton’s “ability to understand and manage that condition in the 

community appears to be the key risk management target.” 

Dr. McManus stated that there were signs Shelton’s condition, 

diagnosed as “mild” in 2016, was “following a progressive course 

toward Moderate levels of impairment” and his “mental state 

during the current evaluation appeared markedly more impaired 

compared to his status during the 2013 evaluation. According to 

McManus, “it appears unlikely his neurocognitive disorder will 

improve in the future; in fact, it is more likely that the symptoms 

will worsen with age,” and “[w]ith regard to insight, it is unlikely 

that his disorder will ever allow him to give a coherent narrative 

about his motivations at the time of the crime.” Dr. McManus 

also viewed “neurological problems and confabulation” as “the 

most likely explanation for his memory problems and the 

associated additional problems with his mental status.” 

Further, Dr. McManus recounted that although there had 

always been discrepancies in Shelton’s accounts of his head 

injury and life events, “evaluating clinicians (Board evaluations, 

military evaluation, multiple evaluations for competence to stand 

trial and criminal responsibility) have consistently concluded 

[Shelton] has not been lying/malingering. Rather, they have 

concluded he was compromised by neurological problems/

confabulation, delusional thinking, or neurotic amnesia.” 

While acknowledging the possibility that “the 

overwhelming confusion, and fearfulness he experienced the last 
26

time he attempted to reintegrate into the community” could 

recur, and that his lack of insight “would warrant consideration” 

during a transition to the community, Dr. McManus stated that 

the lack of insight had not led to violent outcomes in prison and 

“violence risk could likely be managed without full insight into 

the life crime, as long as he possesses insight into the 

vulnerabilities that would be most likely to lead to his use of 

violence (substance abuse, mental disorder, poor stress response, 

interpersonal needs).” 

None of the commissioners who participated in Shelton’s 

2016 and 2018 parole suitability hearings expressed 

disagreement with Dr. McManus’s assessment. But there is no 

indication in the record they gave any consideration to the 

likelihood that Shelton would never be able to achieve and 

articulate the understanding of the offense and its motivations 

they required of him. It is clear that Shelton’s confused memory 

and differing accounts of various events were viewed by the 

commissioners as undermining his credibility. At the 2016 

hearing, for example, the presiding commissioner asked whether 

Shelton ever looked at the shooting as an intentional act and told 

him he needed to be truthful with himself in order to “overcome 

the behavior.” When Shelton responded that he had been trying 

and had “a real bad memory,” the commissioner said, “Let me tell 

you this. If you can remember the children in Congo being killed 

and beheaded, then you can remember what happened in this 

commitment offense.” 
27

To the extent Dr. McManus’s assessment is correct—and 

the panels suggested no reason to question it—Shelton is unlikely 

to ever be able to coherently answer the panels’ questions about 

his motivations for and understanding of the life offense. In this 

sense, the deficient insight upon which the panels based the

denials of parole is effectively an immutable factor precluding 

parole.9 

Our Supreme Court has stated that immutable facts such 

as the circumstances of the life offense or criminal history of the 

offender may be viewed as “some evidence” to support denial of 

parole “only if those facts support the ultimate conclusion that an 

inmate continues to pose an unreasonable risk to public safety.” 

(Lawrence, supra, 44 Cal.4th at p. 1221.) As applied to deficient 

insight, the question is whether the deficiency is “probative to the 

central issue of current dangerousness when considered in light 

of the full record.” (Ibid.)

The commissioner’s concern was that Shelton’s lack of 

insight left him at risk for future violence if faced with similar 

triggering circumstances. While reasonable enough as an 

abstract principle, this concern ignores facts specific to this case

9 Shaputis II, supra, 53 Cal.4th at page 216, rejected a 

petitioner’s argument that his inability to recall the 

circumstances of the crime was an immutable factor and he 

would be required to fabricate in order to show insight. There, 

however, there was nothing in the record indicating any problem 

with the petitioner’s memory, and the denial of parole was based 

on other factors, as well as the petitioner’s lack of insight. (Ibid.) 

Here, the record is clear that Shelton suffered traumatic brain 

injuries that have impaired his memory and other cognitive 

function for decades.
28

that seriously undermine any nexus between the deficiency in 

insight and dangerousness.

To begin with, the constellation of factors at play at the 

time of the life offense were so unique that it is difficult to 

imagine what similar circumstances might occur at this point in 

Shelton’s life. Newly out of the army and suffering from a 

relatively recent traumatic brain injury that significantly affected 

his thinking, suffering pain from knee and back injuries 

sustained earlier in his military career, experiencing migraines 

and going blind in one eye, Shelton found himself unable to 

obtain medical treatment because of a “many-months long 

waitlist” at the VA. At the same time, he was working and going 

to school while trying to care for two young children and deal 

with a new and tumultuous marriage to a woman with serious 

alcohol problems and mother-in-law who he believed 

disrespected, insulted, belittled, and criticized him. Almost three 

decades later, Shelton has had years to adjust to his disabilities 

and their effect on his cognitive and physical condition; his 

children are adults; and he is no longer embroiled in tumultuous 

romantic or familial relationships. He has learned strategies for 

dealing with stress and anger that he did not know at the time of 

the life offense and he no longer feels paranoid. 

Pursuant to the Board’s regulations, “[a]ll relevant, reliable 

information available to the panel shall be considered in 

determining suitability for parole.” (Regs., § 2402, subd. (b).) 

One of the “Circumstances Tending to Show Suitability” for 

parole is that “[t]he prisoner committed his crime as the result of 
29

significant stress in his life, especially if the stress has built over 

a long period of time.” (Regs., § 2402, subd. (d)(4).) Accordingly, 

the Board “is required to consider whether the prisoner committed 

the crime as the result of significant stress in his or her life.” 

(In re Scott (2005) 133 Cal.App.4th 573, 596, quoting In re 

Rosenkrantz, supra, 29 Cal.4th at p. 679; In re Weider (2006) 145 

Cal.App.4th 570, 589–590.) 

Shelton described himself as having been “stressed, very 

stressed” and “just about to go crazy” when he committed the life 

crime. Dr. McManus stated that the “confusion he was 

experiencing at the time . . . appeared to be at the level of 

intensity similar to a delusion.” 

Of course, “the importance attached to any circumstance or 

combination of circumstances in a particular case is left to the 

judgment of the panel.” (Regs., § 2402, subd. (d).) But there is no 

indication in the record that the panels gave any consideration to 

the potentially mitigating force of the stress under which Shelton 

was operating at the time of the life offense. (In re Weider, supra, 

145 Cal.App.4th at pp. 589–590 [“Board failed to acknowledge 

that the crime was the result of significant stress in [petitioner’s]

life”].) On the contrary, the only sense in which the role of stress 

seems to have been considered was as an aggravating factor, with 

Shelton’s “poor stress response” viewed as one of the risk factors 

he needed to be able to control. 

Additionally, the panels do not appear to have considered 

Shelton’s physical condition in evaluating his current risk for 

violence. Even aside from his traumatic brain injury, his 
30

physical condition has severely deteriorated over the years. He is 

designated “Permanently Mobility Impaired” and “Permanently 

Blind/Vision Impaired.” He has had knee and back surgeries, 

continues to have pain and has difficulty walking without a cane. 

At each of the parole suitability hearings, the panels 

discussed Shelton’s physical condition with respect to whether he 

needed any accommodations at the hearings. The record reflects 

no consideration, however, of how Shelton’s physical disabilities 

bore on his potential for future violence. The magnitude of his 

disabilities, especially combined with the absence of history of 

violence apart from the life offense, logically warranted some 

consideration in determining whether Shelton continued to

present a risk of danger to others.

More significantly, Shelton’s physical condition was one of 

the factors to which the panels were required to give “special 

consideration” under the Elderly Parole Program. (Pen. Code, 

§ 3055.) Section 3055 provides that when considering the release 

of an “inmate who is 60 years of age or older and has served a 

minimum of 25 years of continuous incarceration,” “the board 

shall give special consideration to whether age, time served, and 

diminished physical condition, if any, have reduced the elderly 

inmate’s risk for future violence.” (Pen. Code, § 3055, subd. (a), 

(c).)

As earlier described, with respect to the elderly parole 

considerations, the 2016 risk assessment stated that Shelton’s 

neurological impairment “may be of a progressive nature which 

could eventually include symptoms of dementia” and therefore 
31

“he appears to be experiencing major medical/cognitive issues of 

particular relevance to this risk assessment, as a progressive 

neurological condition would likely diminish his physical strength 

and his capacity to effectively plan violence.” While his impaired 

mobility “does not entirely rule out his potential to engage in less 

planned/sophisticated violence,” Dr. McManus noted that Shelton 

had “demonstrated no motivation to act violently toward others,”

or to "engage in antisocial and rule-breaking behaviors.” and 

viewed his “positive behavioral patterns” in prison as “likely 

influenced by the normal aging process and the effects of longterm confinement to some degree.”10 Dr. McManus described 

Shelton as “empathic” and appearing to have “a pro-social world 

view.” He assessed Shelton as presenting a low risk of future 

violence, “expected to commit violence much less frequently than 

all other parolees.” 

The transcripts of the 2016 and 2018 parole suitability 

hearings reflect very little attention to the elderly parole 

considerations. At the outset of each of the hearings, the 

presiding commissioner noted that Shelton was eligible for 

consideration under the Elderly Parole Program,11 and at each of 

10 The only one of Shelton’s prison rule violations that even 

came close to violence was the 2005 “conduct which could lead to 

violence,” a lesser rule violation sustained after the disciplinary 

hearing officer determined the evidence did not substantiate the 

alleged “Mutual Combat.”

11 At the 2016 hearing, the commissioner stated only that 

Shelton was “being considered under Elderly Parole, that 

indicates that you at least are 60 years old and you’ve been in 

custody for at least 25 years.” In 2018, there was a reference to 
32

the hearings the commissioner recited the statements about the 

elderly parole considerations in the 2016 risk assessment. At the 

2016 hearing, there was no further reference to the elderly parole 

factors either during the hearing or in the panel’s decision. In 

2018, the panel mentioned the factors in its decision—but only in 

explaining why it was issuing a three-year denial rather than a 

longer one, not in connection with its decision on suitability. 

It is apparent from this record that Shelton’s traumatic 

brain injury negatively affected his cognitive functioning, both at 

the time of the life offense and later, with regard to his ability to 

remember and reflect upon his actions. According to the 2016 

risk assessment, his condition was deteriorating as he aged. In 

addition, his mobility and vision were impaired. Having failed to 

address how Shelton’s physical condition related to his risk for 

future violence, the panels cannot be viewed as having given 

meaningful consideration to the elderly parole factors, much less 

the “special consideration” required by Penal Code section 3055.

As we have said, Shelton’s risk assessments (save one in 

2006) have consistently determined he poses a low risk of future 

violence. He did not have a violent history before the life offense, 

he has not been involved in violence during his prison term, and 

his increasing age attenuates a propensity toward violence. The 

combination of challenges and pressures that contributed to his 

mental state at the time of the life offense were unique; while he 

might well face difficulties in transitioning to life in the 

Shelton being qualified for “the consideration” under the Elderly 

Parole Program.
33

community, it is difficult to imagine how he could face a similar 

set of circumstances at this point in his life. From participation 

in self-help programming while incarcerated, he has learned 

strategies for coping with stress and anger that he was not aware 

of earlier in his life. He recognizes alcohol was a factor 

contributing to his conduct, has consistently embraced AA during 

incarceration and plans to continue doing so if released. He has 

realistic plans for parole. 

According to Dr. McManus, it is likely Shelton will never be 

able to address the motivations for the life crime coherently, but 

as long as he has insight into his risk factors for violence, he 

poses a low risk. Of course, while required to consider 

psychological assessments of the inmate (Lawrence, supra, 44 

Cal.4th at p. 1213), the Board is not required to accept the 

opinion and conclusions of the evaluator. (In re Lazor (2009) 172 

Cal.App.4th 1185, 1202 [“assessment does not necessarily dictate 

the Board’s parole decision].) Still, “ ‘[i]n cases where 

psychological evaluations consistently indicate that an inmate 

poses a low risk of danger to society, a contrary conclusion must 

be based on more than a hunch or mere belief that he should gain 

more insight into his past behavior. The Board must point to 

evidence from which it is reasonable to infer that the inmate’s 

lack of insight reveals a danger undetected or underestimated in 

the psychological reports.’ (Shaputis II, supra, 53 Cal.4th at 

p. 228 (conc. opn. of Liu J.), citing In re Roderick (2007) 154 

Cal.App.4th 242, 271–272.)” (Young, supra, 204 Cal.App.4th at 

p. 312.)
34

The panels did not point to such evidence. The panels 

announced their conclusions that Shelton lacked credibility, 

insight, empathy, and remorse without addressing how these 

conclusions took into account Shelton’s consistently low risk 

assessments, Dr. McManus’s opinions that Shelton’s 

neurocognitive disorder made it unlikely he would ever be able to 

“give a coherent narrative about his motivations at the time of 

the crime,” the disorder was progressive and his symptoms likely 

to worsen with age, his lack of insight had not led to violence 

during his incarceration, and it was likely his risk of violence in 

the community could be managed without full insight into the life 

offense as long as he had insight into the factors that would be 

most likely to lead to violence. 

The Board’s denials of parole to Shelton in 2016, on the 

ground his version of his criminal offense “defie[d] logic, and 

again in 2018, on the similar ground that his explanation of the 

offense was improbable, and he failed to confront the offense 

“honestly” inexplicably ignore the confusion and memory loss 

Dr. McManus attributed to Shelton’s traumatic brain injury, 

posttraumatic stress disorder, and other neurological 

impairments he considered “of a progressive nature which could 

eventually include symptoms of dementia.” Such indifference to 

mental illness is incomprehensible in a system in which it is so 

eminently present. According to the Department of Corrections 

and Rehabilitation, 32 percent of the prison population in 2017 

was mentally ill; and life prisoners like Shelton, whose sentences 

are set by the parole board, were found more likely than other 
35

inmates to be mentally ill. (Stanford Justice Advocacy Project, 

Confronting California’s Continuing Prison Crisis: The 

Prevalence And Severity Of Mental Illness Among California 

Prisoners On The Rise (2017) p. 1 <https://law.stanford.edu/wpcontent/uploads/2017/05/Stanford-Report-FINAL.pdf> [as of 

July 23, 2019].) In a prison system in which the treatment of 

mentally ill inmates has been declared unconstitutional by the 

United States Supreme Court (Brown v. Plata (2011) 563 U.S. 

493, affirming Coleman v. Wilson (E.D. Cal. 1995) 912 F.Supp. 

1282), which found “overwhelming evidence of the systematic 

failure to deliver necessary care to mentally ill inmates” in 

California, the denial of parole on grounds so obviously related to 

mental illness adds insult to injury. 

To repeat, “ ‘parole is the rule, rather than the exception.’ ” 

(In re Scott (2004) 119 Cal.App.4th 871, 891; In re Smith, supra,

114 Cal.App.4th at p. 366.) “Under the ‘some evidence’ standard 

of review, the parole authority’s interpretation of the evidence 

must be upheld if it is reasonable, in the sense that it is not 

arbitrary, and reflects due consideration of the relevant factors.” 

(Shaputis II, supra, 53 Cal.4th at p. 212.) In this case, due 

consideration of the relevant factors is lacking.

Contrary to the position taken by respondent, the fact that 

Shelton received a parole suitability hearing in 2019 does not

moot the issues presented by this petition or preclude us from 

ordering relief. Respondent’s return argues that Shelton’s 

challenge to the 2016 denial of parole is moot because any due 

process violation that may have occurred at the 2016 hearing 
36

would be redressed by our resolution of the challenge to the 2018 

denial. The return further argues that the challenge to the 2018 

denial should also be denied as moot because Shelton was 

scheduled for another parole suitability hearing on November 15, 

2019. That hearing, as indicated above, has now taken place.

We disagree with respondent. As this case demonstrates, 

where an inmate’s subsequent parole hearings are advanced as 

Shelton’s last two have been, a new parole hearing may take 

place before this court has considered and decided a challenge to 

the last one. Were we to dismiss such challenges as moot, the 

Board’s decision at a prior hearing would stand even if legally 

unsound, leaving the Board to repeat its errors at future 

hearings. “It is appropriate for an appellate court to exercise its 

discretion to retain and decide an issue that is technically moot 

where, as in this case, ‘the issue is “presented in the context of a 

controversy so short-lived as to evade normal appellate review” 

[citations], or when it is likely to affect the future rights of the 

parties [citation].’ (Chantiles v. Lake Forest II Master 

Homeowners Assn. (1995) 37 Cal.App.4th 914, 921.) A moot case 

may also be retained if, as also appears to be true in this case, the 

same controversy between the parties is likely to recur. 

(Cucamongans United for Reasonable Expansion v. City of 

Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479–480; Dobbins 

v. San Diego County Civil Service Com. (1999) 75 Cal.App.4th 

125, 128, fn. 3.)” (In re Scott, supra, 119 Cal.App.4th at p. 904, 

fn. 1.)
37

Although we do not rule on the 2019 decision in this case, 

the transcript of the 2019 hearing and decision—of which we take 

judicial notice (In re Copley (2011) 196 Cal.App.4th 427, 430, fn. 

1)—illustrates why the flaws in the 2016 and 2018 proceedings 

and decisions require a new hearing despite a subsequent one 

having taken place.12 The panel in 2019, again based its decision 

largely on its view that Shelton lacked credibility and insight, 

without apparent consideration of the factors we have discussed 

in connection with the 2016 and 2018 decisions. Most notably, 

the transcript reflects no consideration of the likelihood that 

Shelton will never be able to overcome his confused memory and 

articulate a clear understanding of his offense, and provides no 

indication of how the panel viewed the progressive nature of his 

neurocognitive disorder, decline in physical condition, and 

present level of disability as affecting the risk he presented. As 

the 2019 hearing was conducted without benefit of appellate 

review of the 2016 and 2018 hearings, it neither precludes nor 

obviates the need for a new parole suitability hearing on remand. 

DISPOSITION

The Board’s decisions of December 21, 2016, and June 7, 

2018, are hereby vacated. The matter is remanded for a new

parole suitability hearing consistent with due process of law and 

this decision. (See Prather, supra, 50 Cal.4th at p. 244.) The 

Board shall conduct this hearing within 30 days of the issuance of 

12 We additionally take judicial notice of the new 

comprehensive risk assessment available to the panel in 2019, 

which was based on an evaluation August 16, 2019, by Dr. Kalich 

and again concluded Shelton posed a low risk for violence. 
38

the remittitur in this matter, unless notice of hearing is 

requested pursuant to Penal Code section 3043.
39

_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

In re Shelton, on Habeas Corpus (A154983)
40

Trial Court: Solano County Superior Court

Trial Judge: Honorable Daniel Healy

Attorney for Petitioner: By Appointment of the Court of Appeal

Under the First District Appellat Project

Shannon Chase

Attorneys for Respondent: Attorney General of California

Xavier Becerra

Phillip J. Lindsay

Senior Assistant Attorney General

Sara J. Romano

Supervising Deputy Attorney General

Denise A. Yates

Deputy Attorney General