In re Smith 6/9/11 CA3

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State: California

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

Docket No: C064700

Case Date: 09/15/2011

Preview:Filed 6/9/11

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ---In re Robert Smith, on Habeas Corpus. C064700, C065545 (Super. Ct. No. 074350)

Original proceeding in the Court of Appeal. dismissed as moot; second petition denied.

First petition

Rich Pfeiffer and Brandie Grover Devall for petitioner. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill, Christopher J. Rench, Jessica N. Blonien and Krista Leigh Pollard, Deputy Attorneys General, for respondent.

When a prisoner convicted of murder by strangulation clenches both fists in apparent anger during a parolesuitability hearing, does his demeanor constitute some evidence that if released he would pose an unreasonable risk of danger to public safety? The Board of Parole Hearings (Board) denied

petitioner Robert Smith parole after serving 29 years for the second degree murder of his wife, despite his perfect prison record, including extensive rehabilitative programming, years of 1

therapy in anger management and self-esteem, a stellar work history, a "low" or "below average" risk of future violence rating, and a viable and realistic parole plan. We are

compelled to deny the most recent petition for habeas corpus in deference to the separation of powers, the Boards executive authority to set parole, and the limited scope of judicial review of petitioners due process challenge when, as here, there is "some evidence" to support the Boards denial. (In re

Lawrence (2008) 44 Cal.4th 1181, 1190-1191 (Lawrence); see In re Shaputis (2008) 44 Cal.4th 1241, 1254-1255 (Shaputis).)1 FACTS In this very difficult case, we present two sides of the ledger: the first are those facts presented by petitioner to

demonstrate he poses no current danger to public safety, and the second are those facts relied upon by the Board in support of its finding that he does pose an unreasonable risk of danger. Our analysis of the legal standard follows. No Danger. 29 years. Petitioner has been a model prisoner for

He has not committed a single rule infraction.

His demonstrated commitment to education, work, therapy, and

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We issued an order to show cause in the earlier petition for writ of habeas corpus (case No. C064700) and now dismiss that petition as moot. Even if we assume petitioner was denied due process during the 2008 hearing, the remedy would be to order a new parole-suitability hearing, which petitioner already had in September 2009 and which is the subject of the second petition for habeas corpus before us. (In re Prather (2010) 50 Cal.4th 238, 294 (Prather).) 2

spiritual growth supports his claim that, at 59 years old, he understands his errors in judgment and why he committed such an atrocious crime. His hard work and hard-earned insights, in his

view, assure his complete rehabilitation. Petitioner earned an associate of arts degree before entering prison. In prison, he earned vocational certificates He has completed

in sheet metal work and forklift operation.

and participated in a vast array of substance abuse, self-help, and therapy programs, including "Stress and Emotional WellBeing," "Negative Emotions," "Life Skills and Self-Development," "Creative Options," "Anger Management and Communication," "Planning for Sobriety," "Beyond Anger," "Turning Point Focus," Alcoholics Anonymous, "Introduction to Self-Help" groups, "Triggers, Cravings, and Relapse Prevention," "Sexually Transmitted Diseases," "Affects [sic] of Crime on Self, Family and Community," "The Way to Happiness," and "Learning Improvement Course." Petitioner worked extensively with prison therapists to

gain an understanding into his offense and to enhance his selfesteem. In 1985 he admitted guilt and abandoned his cover-up His file is replete with commendations from prison

fabrication. officials.

Since 2005 petitioner has worked in the furniture factory under the auspices of the Prison Industries Authority. His work

supervisors reports are consistently "exceptional to aboveaverage." He was promoted to lead man in 2008.

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Petitioner has been studying the catechism of the Catholic faith with the Catholic chaplain. confirmed in the Catholic Church. Carol Fetterman, Ph.D., conducted a forensic evaluation in preparation for petitioners 2008 parole-suitability hearing. She wrote: "The inmate has worked hard in therapy and self-help In 2009 he was baptized and

activities to come to terms with the underlying causes of his commitment offense. He has gained in-depth, psychological

insight that in no way takes away from his acceptance of responsibility for his crime. It is possible to understand

one[]s psychodynamics and the etiology of one[]s behaviors without blaming those factors or excusing oneself. The inmate

seems to have achieved such an understanding as he . . . accepts total responsibility and has sincere remorse. He stated in the

interview of 02-11-08 that ,,I was unfaithful, I killed her, I denied my guilt and I hurt everyone. how sorry I am. did. There is no way to express

In no way, shape or form did she deserve what I

She loved me to the best of her ability and I should have

gone through with the divorce so she could have led her life." Based on his commitment offense; postconviction record; family, developmental, educational, marital, employment, medical, and psychiatric histories; parole plans; and his current medical status, Dr. Fetterman concluded that "the inmate poses a low risk to become involved in a violent offense if released into the community." Her conclusion was consistent

with those of previous evaluators.

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Unreasonable Risk of Danger.

In finding petitioner

unsuitable for parole because he currently poses an unreasonable risk of danger, the Board relied on the gravity of the commitment offense, petitioners inadequate control over his anger, his lack of insight, and his shallow understanding of coping skills. We examine the quantum of evidence of each of

the Boards concerns. There is indeed something particularly grisly about the act of strangulation. There was evidence of manual strangulation,

but petitioner ultimately tied pantyhose tightly around his wifes neck. There was also evidence of a struggle. When his

wifes body was discovered, she was clasping a clump of petitioners hair. Her hair and his hair were found in the Thus, there was

knots of the pantyhose used to strangle her.

compelling evidence the killing was the result of uncontrolled rage. Petitioner, as recounted above, presented evidence that as a result of participation in many rehabilitative programs, he has learned to control his anger. The Board spent considerable

time probing his understanding of what triggered his anger and what techniques he had learned to control it. Petitioner

acknowledged that anger and his lack of control of that anger were causative factors. He insisted he understood anger was a Yet at his parole-suitability

choice and he could control it.

hearing, petitioner raised his voice, clenched his fists, and had a red face during a routine discussion regarding his understanding of the commitment offense. 5

The presiding commissioner explained:

"[The Board looks]

at all factors of this case from the beginning, to where you were, to where you are saying that you are now, what caused you to commit this crime, and the potential risk to the public if you were released. So all of this is important and its

important for this [Board] to understand, as well as we can during this hearing, the person you were and the person you are telling you are now, and so I believe thats what the Commissioner is trying to get at, thats what Im trying to get at. But when I see someone sitting across with [sic] me with

both fists clinched, a face red, and appearing to be agitated and angry over a conversation, Im concerned." The Board also cited petitioners lack of insight "into the causative factors/underlying reasons related to this crime." The Board noted, "The prisoner went into significant detail about how his relationship with his mother contributed to the commitment offense. The panel viewed his explanation as blaming

others, particularly his mother, and that he see[s] himself as a victim . . . ." The Board was troubled by petitioners

continued focus on his mothers behavior because a 2005 psychological evaluation had found that his focus on other peoples behavior instead of his own responsibility demonstrated a lack of insight. The Board also noted that petitioners

"crime certainly was one of domestic violence at its worst level. Yet, [he] was unable to address how he has identified

triggers directly related to domestic violence and other avenues to cope with such issues." 6

Finally, the Board concluded "the prisoners unstable social history" contributed to his unsuitability for parole. In the Boards view, petitioner has "a history of unstable or tumultuous relationships with others because he failed to profit from societys attempt to correct his prior juvenile criminality. Also, his problematic relationships, specifically

with [his] mother and [his] wife, Polly." The Board found petitioner presents an unreasonable risk of danger if released from prison. It deferred his next parolePetitioner filed a

suitability hearing for three years.

petition for writ of habeas corpus in the trial court, which the court denied. He filed a petition for writ of habeas corpus in We now

this court, and we issued an order to show cause. consider the merits of his petition. DISCUSSION I The Legal Ledger Statutory and Regulatory Framework.

The Board is the

agency within the executive branch charged with determining whether an inmate should be paroled and, if so, setting a release date. (Penal Code,

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