Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SON-12080
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT
Marchiano, P.J.
It is ordered that the opinion filed herein on June 18, 2008, be modified as follows:
1. On page 17, first full sentence of the first paragraph, the words “find it significant” should be changed to “note” so the sentence reads:
We note that he refused to answer questions at the parole hearing about why he did not think a shooting might occur when he armed hardened criminals, made their weapons more concealable, and gave them the layout of the liquor store.
2. On page 17, add the following footnote at the end of the first full sentence of the first paragraph (the revised sentence in 1):
In his petition for rehearing, Ferguson draws our attention to a regulation which permits an inmate seeking parole release to refuse to talk about the facts of the crime and provides that the refusal cannot be used against him. Title 15, California Code of Regulations, section 2236, provides that the facts of the crime shall be discussed with the prisoner to assist in determining the extent of personal culpability. “A prisoner may refuse to discuss the facts of the crime in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner.” This regulation governs the Board’s decision to grant or deny parole. We would reach the same result even absent Ferguson’s refusal to answer questions about the crime.
3. On page 17, the first sentence of the first full paragraph, delete the words “refusal to answer the questions about the shooting” so the sentence reads:
Ferguson’s past statements and his observable demeanor constitute information about his attitude toward the offense, speak directly to the level of his remorse—which involves his “understand[ing] of the nature and magnitude of the offense” (Cal. Code Regs., tit. 15, § 2402, subd. (d)(3)), and by logical extension, the degree to which he facilitated the crime and was legally responsible for it under the felony murder rule.
There is no change in the judgment.
The petition for rehearing is denied.