In re Smith 6/9/08 CA4/3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G039301

Case Date: 09/17/2008

Preview:Filed 6/09/08 In re Smith CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

In re RICHARD LEE SMITH on Habeas Corpus.

G039301 (Super. Ct. No. M-11470) OPINION

Original proceeding; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Kazuharu Makino, Judge. Petition denied in part and granted in part. Parole denial vacated. Matter remanded to Board of Parole Hearings. Marilee Marshall & Associates and Marilee Marshall for Petitioner. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman and Amanda Lloyd, Deputy Attorneys General, for Respondent.

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In 1986, petitioner Richard Lee Smith was convicted of second degree murder and was sentenced to a term of 17 years to life. Our court affirmed his conviction in 1988. (People v. Smith (Jul. 29, 1988, G004334) [nonpub. opn.].) He first became eligible for parole in 1995. At his fifth parole hearing on July 25, 2006, parole was denied. Petitioner filed a petition for writ of habeas corpus in the Orange County Superior Court, which was denied. He then filed his petition here, alleging that the decision of the Board of Parole Hearings is unsupported by the record and that, therefore, it violates his rights under the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States. The Board of Parole Hearings is vested with the power to determine when a felon sentenced to life in prison can safely be released on parole. (Pen. Code,

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