In re Smith

• Decision Date: 15 December 2003
• Docket Number: No. H025304.,H025304.
• Court: California Court of Appeals Court of Appeals
• Parties: In re Ernest SMITH, on Habeas Corpus.

7 Cal.Rptr.3d 655

114 Cal.App.4th 343

In re Ernest SMITH, on Habeas Corpus.

No. H025304.

Court of Appeal, Sixth District.

December 15, 2003.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Susan Duncan Lee, Supervising Deputy Attorney General, Allen R. Crown, Supervising Deputy Attorney General, for Appellant.

Steve Defilippis, Picon & Defilippis, for Respondent, (Under appointment by the Court of Appeal).

WUNDERLICH, J.

I. Statement of the Case

In 1980, respondent Ernest Smith (Smith) shot and killed his wife. He pleaded guilty to second degree murder and admitted using a firearm and as a result was sentenced to an indeterminate term of 17 years to life. On February 28, 2001, the Board of Prison Terms (the Board) conducted a parole consideration hearing, and a majority found Smith suitable for parole. (See Pen.Code, § 3041.)¹ On July 9, 2001, the Board's Decision Review Committee approved the Board's decision. However, on August 8, 2001, appellant Governor Gray Davis (Governor) reviewed and then reversed the Board's decision, finding that Smith was still too dangerous to be released on parole. (See § 3041.2; Cal. Const., art. V., § 8.) Thereafter, Smith filed a petition for a writ of habeas corpus in the Santa Clara County Superior Court, challenging the Governor's decision. The superior court granted the writ, finding that (1) the Governor's decision was improperly based on a blanket no-parole policy for convicted murders; (2) the decision violated the ex post facto clause of the federal constitution; and (3) the decision was not supported by "some evidence." The court ordered that Smith immediately be released.

The Governor now appeals from the trial court's order, challenging all three findings by the court.² (See § 1506.)

We agree with the trial court that the Governor's decision cannot stand and that Smith is entitled to writ relief. However, we disagree with the order directing Smith's release and remand the matter for the court to enter a new and different order directing the Governor to vacate his decision.

II. Background

A. Smith's Criminal History and the Commitment Offense

Prior to the murder, Smith had no criminal record. As a child, however, Smith and his stepfather did not get along, and Smith once pushed him to prevent him from abusing his mother. At 13, Smith spent time at Juvenile Hall after his stepfather complained about his uncontrollable behavior. Thereafter Smith periodically lived with other relatives. Smith was also taken into custody once for joyriding, but he was not prosecuted. At 17, Smith joined the Army. He was AWOL (absent without leave) twice, spent one year in the stockade, and received an undesirable discharge.

In February 1978, Smith, who was then 28, married Tina Garner, who was 19.³ Her parents disapproved because of Smith's age, tattoos, and use of drugs. Smith and Garner then moved to Oregon because Smith thought her friends were a negative influence on her. According to Smith, Garner was flirtatious, and he suspected she was being unfaithful. At his parole hearing, Smith admitted that in Oregon he slapped and/or grabbed Garner seven or eight times, and they went to a minister for counseling. Smith also acknowledged that the minister arranged for Garner to go to a battered women's shelter, but Smith interceded, and she did not go. Smith further admitted that when Garner expressed a desire to return to San Jose, he went into a rage and told the minister that he had guns and would follow her and kill her. He said the Charles Manson case was nothing compared with what he would do to Garner and anyone else who got in his way. Smith said he now appreciates the minister's efforts to help them.

In April 1980, Garner returned to San Jose to live with her parents. A few weeks later Smith joined her. At the time Smith was using marijuana and amphetamines.⁴ In his statement in the 1980 probation report, Smith explained that Garner had found a job at a state psychiatric hospital, but he objected. On May 22, 1980, he asked to her accompany him job hunting. When she refused, "`he began to shake uncontrollably because he could no longer tolerate the pressure from his disintegrating marriage and his wife's parents' hostility. When [he] asked [her] if she was seeing another man, [she] replied in the affirmative and stated she did not want anything further to do with [him]. [Smith] began pounding his head with his fists and stated he could not take anymore of this anxiety. [He] took a .22 caliber handgun from a dresser drawer and shot his wife once in the head. He shot [her] twice more as she was falling to the floor.' "Later that morning, Smith went to a church, asked people to pray for him, and asked them to call the police. At the parole hearing, Smith said that he had used drugs on May 18, four days before the offense but not on that day.

B. Smith's Parole Hearings

On November 6, 1980, Smith was received by the Department of Corrections, and it set October 19, 1989, as his minimum eligible parole date. Over the years Smith had several parole hearings. After the last one on February 28, 2001, the Board found him suitable for parole.⁵

Before summarizing the evidence presented to the Board, we briefly review the statutes and regulations governing parole suitability hearings. Under section 3041, subdivision (a), release on parole is the rule, rather than the exception. This section requires that the Board set a release date unless it determines that "consideration of the public safety requires a more lengthy period of incarceration...." (§ 3041, subd. (b).) In making this determination concerning convicted murderers, the Board is guided by the criteria set forth in title 15, division 2, chapter 3, article 11 of the California Code of Regulations.⁶ (Regs., § 2400.) Section 2401 of the Regulations requires the Board to set a release date if the prisoner is found suitable for parole under Regulations section 2402, subdivision (d), which enumerates circumstances tending to show suitability; conversely, the Board must deny a parole date if the prisoner is found unsuitable under Regulations section 2402, subdivision (c), which enumerates circumstances tending to show unsuitability.⁷ Section 2402, subdivision (a) of the Regulations generally provides, in relevant part, " Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." Section 2402, subdivision (b) requires the Board to consider " [a]ll relevant, reliable information available" in determining suitability.

Here, the Board considered Smith's entire record, which included the facts concerning Smith's background and commitment offense summarized above. The Board also considered a 1999 evaluation by staff psychologist L.W. Berning. Berning reported additional background information. Smith's biological father left the family when Smith was five or six years old. His mother remarried, but her new husband was an abusive, angry, and critical, alcoholic, who showed little interest in Smith. Smith's biological father also remarried, but when Smith expressed interest in living with him, his father rejected him, saying he and his wife were going to adopt a child. Around this time, Smith started using drugs.

Berning related Smith's explanation of his offense. According to Smith, Garner was "`easy going and fun'" but also sexually promiscuous, and her gregariousness attracted other men, which made him jealous and insecure. When he expressed these feelings, she was not responsive. Smith told Berning that at the time of the offense, he was immature, possessive, and self-centered and dealt with his jealousy and insecurity by trying to control Garner's activities and her contact with friends.

Smith acknowledged that Garner did nothing to provoke the shooting, and he assumed full responsibility for it. He said he now understands the effects of being rejected as a child and how he tried to control Garner to avoid losing her and re-experiencing rejection.

Given Smith's history, Berning stated that his diagnoses continued to be "Axis I: Polysubstance Dependence, in Remission." (Italics added.) In this regard, Berning observed that while incarcerated, Smith had participated in Alcoholics Anonymous for 14 years and Narcotic Anonymous for three and a half years. He also completed three substance abuse groups with each one lasting eight weeks. Berning further found an "Axis II: Personality Disorder NOS, with Narcissistic Features, Improved." (Italics added.)

Given Smith's family history, Berning explained that Smith "indeed felt rejected not only by his natural father but by his highly critical stepfather. He learned to expect rejection from others but apparently explored the issue no further until after the crime. Instead, the inmate avoided looking at these personal issues by using drugs and engaging in adolescent activities. His selection of his second wife was precisely the kind of person which would engender feelings of insecurity and second thoughts regarding a personal commitment. The inmate's own activities tended to drive away her friends and isolate his wife which eventually led to his expectation that she would reject him. The inmate's displaced rage coupled with a difficulty in looking beyond his own personal needs resulted in this crime of passion."

In assessing Smith's dangerousness, Berning stated, "[Smith] was raised in a very unstable and personally rejecting family structure. There is no early pattern of aggression or serious violation of rules. His only crime was the commitment offense. The inmate attempted to make commitments through traditional marital relations but his internal preoccupation with personal rejection and lack of trust with others guided his...