PERREN J., Dissenting. — I respectfully dissent.
Linda Smith has been in custody for 28 years. The crime that brought her to prison is the murder of her own child. Neither the Governor’s recent reversal nor the majority’s recitation of the facts want for adjectives in describing its commission. In reversing the Board of Parole Hearings (BPH), Governor Schwarzenegger found that Ms. Smith’s inability or unwillingness “to fully grasp” that she abused her child, coupled with the facts attending the murder, led him to believe that she “would pose an unreasonable risk of danger to society if paroled.”1
The record does not support the Governor’s conclusion. To the contrary, the record shows that Ms. Smith is remorseful, understands her culpability, and that there is not “some evidence” to support the Governor’s conclusion that, if released, Ms. Smith would “pose an unreasonable risk of danger to society.” The overwhelming and indisputable evidence presented at the 2006 BPH hearing, including over 20 years of unanimous opinions of mental health experts, evidences the sincerity of Ms. Smith’s remorse, her rehabilitation and her fitness for return to society. I therefore conclude that a review of Ms. Smith’s impeccable performance in prison, her repeated confessions of guilt and remorse for the crime and the opinion of mental health experts that Ms. Smith’s risk of recidivism is in the “Very Low” range,2 lead to but one conclusion; That she “does not present a threat to public safety.” Accordingly, I would grant the petition and reinstate the BPH’s parole release order.
A review of a denial of parole, whether by the BPH or the Governor, starts with the statutory mandate that the BPH shall normally set a parole release date. (Pen. Code, § 3041, subd. (a);3 In re Lawrence (2008) 44 Cal.4th 1181, 1212 [82 Cal.Rptr.3d 169, 190 P.3d 535].) The presumption is that parole must be granted unless public safety requires a lengthier period of incarceration. (In re Shaputis (2008) 44 Cal.4th 1241, 1257 [82 Cal.Rptr.3d 213, 190 P.3d 573].) “The Governor is subject to the same standards as those that apply to the Board.” (Id., at p. 1258.) In making the required analysis, both the Governor and the BPH apply the factors favoring and disfavoring suitability found in California Code of Regulations, title 15, section 2281, subdivisions (c) and (d). It is beyond dispute that Ms. Smith’s performance in [1641]prison has been remarkable. In fact, Ms. Smith has had nine parole dates set since 1995, the date when the release that had been scheduled for over four years was “reconsidered” but 33 days before her release. Since then she has been considered and recommended for parole seven times with a like number of gubernatorial reversals. The principal focus of these reversals has been the extreme (and immutable) severity of the offense. Yet, a fair reading of the factors to be considered in determining suitability favor her release.4 More importantly, the application of these factors lead inexorably to the conclusion that Ms. Smith is suitable for parole because there is not some evidence that she is currently dangerous. (In re Lawrence, supra, 44 Cal.4th at p. 1191.)
The test for sustaining the Governor’s finding is whether his conclusion is supported by “some evidence.” This involves a two-step analysis. First, the suitability factors must be supported by some evidence. Second, if so, the ultimate question of the inmate’s threat to public safety “must be supported by some evidence, not merely by a hunch or intuition.” (In re Lawrence, supra, 44 Cal.4th at p. 1213.) In the present case the only suitability factors upon which the Governor relied were the nature of the commitment offense, his [1642]assessment of appellant’s appreciation for the nature and magnitude of her conduct, her belief that she had reduced culpability for the murder, and his conclusion that she is not appropriately remorseful.
The indisputable conclusion that the commitment offense was carried out “in an especially heinous, atrocious or cruel manner” (Cal. Code Regs., tit. 15, § 2281, subd. (c)(1); In re Lawrence, supra, 44 Cal.4th at pp. 1202-1203, fn. 7), however, does not end the discussion. Rather, where the evidence of rehabilitation and suitability for parole “under the governing statutes and regulations is overwhelming,” and the commitment offense is “both temporally remote and mitigated by circumstances indicating the conduct is unlikely to recur, the immutable circumstance that the commitment offense involved aggravated conduct does not provide ‘some evidence’ inevitably supporting the ultimate decision that the inmate remains a threat to public safety.” (Lawrence, at p. 1191.) In its 2006 grant of parole, the BPH recognized this even prior to the Supreme Court’s pronouncement. “[The] crime was, of course, horrific. However we could further describe that crime as ugly, horrendous. Whatever one might want to call it it’s not going to change. Unfortunately, the victim is not going to return either. However, it is the same crime and will continue to be the same crime forever. The thing that has changed it would appear is that the inmate has changed. And consequently we believe that you have done a good job in making that change. . . . However the crime translated itself back so many years ago to today. It seems horrific then and it’s horrific today. However you have changed and we believe that you are ready to go out and be a member of society again.”5
What remains is the Governor’s determination that Ms. Smith “remains unable or unwilling to fully grasp” that “she abused Amy — and then Amy died.” A review of the record, however, discloses that every mental health professional and counselor who has dealt with her since 1986 has concluded otherwise. Representative examples include:
(1) Robert D. McDaniel, M.D., staff psychiatrist (Aug. 1995): “It is my professional opinion that Ms. Smith is not in denial regarding the seriousness of her crime, nor does anything suggest to me that [she] is avoiding responsibility.”
(2) Dr. McDaniel (Dec. 1996): “Anyone who spends time with this individual will be impressed with the difference she is now, as opposed to what she was at the time of her crime. [¶] From a psychological perspective, I believe that she has dealt with issues of responsibility for the crime, has dealt with issues of remorse, and has purposefully, and in my opinion, fearlessly [1643]opened herself up to feel the hurt and pain that her crime has caused. From this standpoint, she has internalized societal norms and expectations and feels deeply for the situations of others.”
(3) Peter Hu, M.D., staff psychiatrist (Aug. 2003): “In essence, the inmate was convicted of Second Degree Murder for the death of her child. Causative factors including relationship with a man who was by history violent and predatory in nature. The inmate has continued to demonstrate a significant level of insight in the mechanism of the crime and has demonstrated remorse and empathy for the victim.”
(4) Robert Smith, Ph.D., staff psychologist (Oct. 2004): “She stated that her responsibility for Amy’s death began when she did not terminate her relationship with David even after physical abuse was occurring in the home. Inmate Smith goes further to say that she personally failed in her responsibility to protect her own children from harm. She expressed genuine and deep remorse over Amy’s death.”6
(5) Dr. Smith (Jan. 2006): “Inmate Smith accepts full responsibility for the death of her daughter because she believes that she should have protected her children by ending the relationship with David once she realized that he was abusive and harmful toward her daughters. Inmate expresses insight, remorse, and sorrow over the death of her daughter.” Dr. Smith continues: “She possesses a viable parole plan, and her remorse and regret are creditable and consistent over numerous prior evaluations.”
Thus, where there is “unanimous clinical evidence” showing that the prisoner is not a danger to society and has insight and understanding of her behavior, neither the BPH nor the Governor has “some evidence” to find to the contrary. (In re Roderick (2007) 154 Cal.App.4th 242, 272 [65 Cal.Rptr.3d 16]; see also In re Lawrence, supra, 44 Cal.4th at pp. 1222-1223 [Governor’s conclusion that petitioner showed insufficient remorse is unsupported when clearly contradicted by abundant evidence in the record].) This is just such a case.
[1644]In discussing the facts of the case the majority suggest that Ms. Smith claims to not have struck her daughter and that the Governor could fairly conclude that Ms. Smith instigated the attack and was the principal aggressor. The record appears to the contrary. Ms. Smith testified at the 2006 hearing that she spanked her child’ and that she struck her with a plastic paddle. Ms. Smith also testified that she was in the room during the beating. Although relying on the Supreme Court’s recitation to set forth the facts of the case, the majority fail to mention the factual recounting in the opinion of this court following the retrial.7 In that opinion there is no recounting that Amy’s sister, Bethany, saw her mother strike Amy though she knew that both she and Foster were in the room and she heard Amy’s anguish. In testimony before the BPH in 2004, Bethany, now Ms. McDermott, testified that she did not see her mother administer any blows to her sister. Of greater import, however, are Ms. McDermott’s testimony and her letters to the BPH written in support of her mother. She accepts her mother’s complicity but recognizes her mother’s recovery: “[S]he was given a sentence 15 years to life, she has served that sentence responsibly. She has used the time and the resources available to her to improve herself, to help others, and to become the kind of person who would never let anything like this repeat, and she’s become the kind of person I would want to have in my life and that I would choose to have around me.”
The applicable analysis is summed up by the Supreme Court in Lawrence:
“As we explain below, an inquiry into whether the offense is more aggravated than the minimum elements necessary to sustain a conviction was not intended by this court to be the exclusive measure of due process, and has proved in practice to be unworkable, leading to arbitrary results. Most importantly, the circumstance that the offense is aggravated does not, in every case, provide evidence that the inmate is a current threat to public safety. Indeed, it is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole — it is the implication concerning future dangerousness that derives from the prisoner having committed that crime. Because the parole decision represents a prospective view — essentially a prediction concerning the future — and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision.
“Accordingly, we conclude that although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or [1645]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.” (In re Lawrence, supra, 44 Cal.4th at pp. 1213-1214.)
Application of these principles to the instant matter demonstrates that the decision of the trial court is entirely consistent with and predictive of the standards for reviewing a grant or denial of parole whether by the BPH or the Governor. Eligible for parole in 1990,8 and given a parole date in 1995, Ms. Smith has now served 28 years in prison. Her performance has been exemplary and without incident. Ironically, in 2006, Governor Schwarzenegger best described her exceptional qualifications for parole:
“Ms. Smith had no documented history of assaultive or violent behavior, or any criminal record at all, when Amy was murdered. And since her incarceration, she has maintained a discipline-free conduct record and continues to enhance her ability to function within the law upon release. She has bettered herself educationally by earning a college degree and pursuing a Masters in Divinity. She recently completed a vocational graphic-arts program, has held skilled institutional jobs, has taken part in extracurricular activities, and has availed herself of an array of self-help and therapy over the years, including psychotherapy groups, 12-step Christian Codependency Program, Victim Impact Orientation Program, Issues with Children Group, Peer-helpers Group, Parenting Program, and Substance Abuse Training. Likewise, she has received positive evaluations from various mental-health and correctional professionals, and despite her past experiences with rocky and failed relationships, has been able to establish and maintain some supportive ties with family, including her surviving daughter, and others. She also has made confirmed parole plans in San Luis Obispo County, her county of last residence, that including [sic] living arrangements with her parents and two job offers, both performing clerical duties. All of these factors are supportive of Ms. Smith’s release from prison to parole at this time.”9
[1646]The majority conclude that the Governor’s decision to reverse the BPH’s grant of parole is supported by “some evidence.” In reaching this conclusion they rely upon In re Shaputis, supra, 44 Cal.4th 1241. Shaputis murdered his wife. He had a long and “sometimes violent criminal history,” including charges of violent sex crimes against family members and charges of repeated driving under the influence offenses, all of which the Supreme Court recounts at length. (Id., at p. 1248.) He had abused his first wife and his children from that marriage including jumping on his wife’s stomach inducing a miscarriage. He held a knife to the throats of his daughters when they misbehaved. The marriage ended in divorce based on his abusive behavior. He beat the murder victim, his second wife, on many occasions over their 23-year marriage, once so severely that she required plastic surgery. Eighteen months before the crime, and during one bout of his chronic drinking, he shot at the victim. He had a history of chronic violence while drinking. Shaputis is inapposite. The Supreme Court explained: “This is not a case, like Lawrence, supra, 44 Cal.4th 1181, in which the commitment offense was an isolated incident, committed while petitioner was subject to emotional stress that was unusual or unlikely to recur. (See, e.g., [Cal. Code] Regs., [tit. 15] § 2402, subd. (d)(4) [the circumstance that the crime was committed during a period of significant stress in an inmate’s life constitutes evidence to be considered in evaluating his or her suitability for parole].) Instead, the murder was the culmination of many years of petitioner’s violent and brutalizing behavior toward the victim, his children, and his previous wife.” (In re Shaputis, supra, at p. 1259.) Lawrence’s emotional stress was the threat of the loss of her lover who threatened to return to his wife. (In re Lawrence, supra, 44 Cal.4th at pp. 1192-1193.) Ms. Smith was subjected to the brutality of the principal assailant in the murder of her daughter. In comparing and contrasting the precipitant factors resulting in these respective murders it seems clear that Ms. Smith’s “emotional stress” was far greater and personally threatening than that of Ms. Lawrence.
Lawrence is controlling. A comparison of the facts and circumstances of the crimes committed by Ms. Lawrence and Ms. Smith and the subsequent performance of each while in prison, strongly suggests that this court should affirm the trial court’s reversing of the Governor’s decision. The circumstances attending each of the murders were abhorrent. But Ms. Smith took her victim to the hospital rather than fleeing for over a decade. Unlike Ms. Smith, Ms. Lawrence initially had problems at the inception of the 23 years she spent in prison including several instances of administrative violations for which she was counseled. Ms. Smith has served 28 years and received no disciplinary writeups. Ms. Lawrence was initially diagnosed as “narcissistic,” and lacking in emotional insight. The examining [1647]psychologist characterized Ms. Lawrence “as ‘explosive’ and a ‘high flight risk if she loses her appeal.’ ” (In re Lawrence, supra, 44 Cal.4th at p. 1194.) In denying her parole, the Governor specifically noted that though Ms. Lawrence’s recent psychological reports were positive, “early prison reports by mental health evaluators characterized [her] as sociopathic, unstable, and moderately psychopathic.” (Id., at p. 1200.) No such entries appear in Ms. Smith’s record. To the contrary, 22 years ago Dr. Cotter, the prison staff psychiatrist, opined, “When the time comes for her release on parole, I have confidence she will present no danger to society.” Twenty years later, Dr. Smith stated, “There is no immediate threat of dangerousness, should this inmate be released to the community. The inmate is mentally stable, and there is no stated threat against persons or property in the community.” The intervening entries by all prison staff substantiate these conclusions. Ms. Lawrence had four positive parole recommendations. Ms. Smith has had nine.
“Accordingly, under the circumstances of the present case — in which the record is replete with evidence establishing petitioner’s rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety — petitioner’s due process and statutory rights were violated by the Governor’s reliance upon the immutable and unchangeable circumstances of her commitment offense in reversing the Board’s decision to grant parole. Contrary to the assertion of the dissent, the Governor’s action vacating the Board’s grant of parole to petitioner runs contrary to both his statutory and his constitutional obligations. As set forth in detail above, both the governing statutes and constitutional due process principles require the Governor to base his decision to set aside a grant of parole on ‘some evidence’ of current dangerousness. The evidence relied upon by the Governor in this case — the egregiousness of the commitment offense — does not provide ‘some evidence’ that petitioner remains a current threat to public safety. Accordingly, the Governor’s decision is not supported by ‘some evidence’ of current dangerousness and is properly set aside by this court.” (In re Lawrence, supra, 44 Cal.4th at p. 1227.)
Placing the template of our Supreme Court’s holding in Lawrence over the denial of parole in the instant matter should have led the majority to affirm the trial court’s order. Though the standard of review is “ ‘exceeding deferential,’ ” such deference “ ‘does not convert a court reviewing the denial of parole into a potted plant.’ ” (In re Lawrence, supra, 44 Cal.4th at pp. 1211-1212, citing In re Scott (2004) 119 Cal.App.4th 871, 898 [15 Cal.Rptr.3d 32].) In addition to the aggravated circumstances of the commitment offense, parole cannot be denied, “unless the record also 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 [1648]commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, at p. 1214.) Refracted through the prism of this test it is clear that, absent mere hunch or intuition, Linda Lee Smith presents no current danger to public safety.
I would affirm.
Respondent’s petition for review by the Supreme Court was denied June 24, 2009, S171561.
Indeterminate sentence parole release review and reversal dated July 25, 2006.
Report of staff Psychologist Robert Smith dated January 23, 2006.
All further statutory references are to the Penal Code unless otherwise specified.
The suitability factors as set forth in California Code of Regulations, title 15, section 2281, subdivision (d) and their applicability are as follows: (1) She has neither a juvenile nor adult record except for the commitment offense. Her term of imprisonment is unblemished. (2) Her relationships within the institution are unique. She is a peer counselor and a spiritual counselor, and has been recognized for her service both by the California Institution for Women (CIW) and Chaffey College. (See letter from Rev. Theodore R. Johnson: “Linda is a faithful worker in the Protestant out-reach here at CIW and has been for a number of years. She has been a tremendous help to those less fortunate than herself, providing emotional support to new arrivals, to the general population, and to those seeking Christ. [¶] . . . But the reason I am writing this letter is to encourage you, the Board of Prison Terms, to send home the hardest worker I’ve seen in my eight-plus years at CIW as a Chaplain Volunteer.”) In addition the record shows over 500 pages of letters from friends, family, community members and religious leaders sent over an 18-year period urging her release on parole. (3) Her signs of remorse will be addressed in the text. (4) and (5) The record is replete with evidence of her being abused by the codefendant David Foster. The Governor addresses the issue by discounting it since no finding was made by the BPH. (6) There is no other history of violence. (7) She is 54 and assessed as being in the “very low range” for recidivism. “If released to the community, I believe the inmate would continue to adhere to societal norms, rules, and regulations, and to the rights and feelings of others. The inmate continues to utilize her time in the service of others, and continues to develop greater skills in dealing an [sic] coping with stress. [¶] . . . I believe the risk factors involved in her crime are no longer evident. This individual is no longer emotionally unstable, either occupationally or socially, thus, these are no longer risk factors in my opinion.” (Dr. Robert McDaniel, staff psychiatrist, Feb. 3, 2000.) A full HCR-20 risk assessment was performed by Dr. Robert Smith in August 2005: “A review of inmate Smith’s static and dynamic risk factors suggests that the probability of future offenses if she were released from custody would probably fall below 5% over a three-year period. This means that fewer than five in every 100 women with similar risk factor loadings would be expected to commit an offense within three years after release.” (8) She has offered detailed plans for her future upon release, including job offers. (Comments by presiding commissioner at 2006 BPH hearing.) (9) The record is replete with evidence of Ms. Smith’s good works in the institution.
Transcript of 2006 BPH hearing, comments by Presiding Commissioner Inglee.
To give context and background to Dr. Smith’s opinion the following excerpt is added: “I have had the opportunity to work around inmate Smith in the Special Care Unit and in other mental health delivery settings for more than five years, observing her role as an inmate assistant and witnessing her ability to treat mentally impaired and less fortunate inmates with courtesy and respect. Prior to that time, I had contact with inmate Smith in relation to her work teaching values education modules to other inmates in the Special Care Unit and in the general population, and I have observed her efforts to organize and carry out holiday celebrations for mentally disordered inmates. [¶] I share the Governor’s concern for our community, and his desire to protect innocent victims from brutality. However, I regard inmate Smith as a transformed person who has considerable potential for social contributions in the community, should she obtain a release.”
(People v. Smith (Mar. 18, 1987, B011393) [nonpub. opn.].)
BPH hearing March 3, 2006.
Indeterminate sentence parole release review (§ 3041.2) July 25, 2006. (See also comments of Presiding Commissioner Angele at the 2004 BPH hearing: “The inmate has no juvenile record, while in prison has enhanced her ability to function within the law upon release, did participate in educational programs, self-help therapy and vocational programs, institutional job assignments, and voluntary assignments including but not limited to psychotherapy groups for lifers, walkathon, [her] involvement in the Christian carnival, mental health inmate assistance clerk, education clerk, Literacy Volunteers of America, records clerk, peer helper, peer counselor, Christian studies, Nonviolent Environmental program, and crochet project, interfaith chapel, assisting CCCMS and EOP programs, program inmates, MYRA, Renaissance Fair. She has received an AA degree and a Bachelor’s degree and is currently working on a [1646]Master’s degree. The inmate lacks a history of crime. She has no prior convictions or arrests emphasizing as a juvenile or an adult.”)