In re LINDA LEE SMITH








Filed 2/18/09 Certified for Publication 3/12/09 (order attached)







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re LINDA LEE SMITH on Habeas Corpus.

2d Civil No. B207324 (Super. Ct. No. CR11181) (San Luis Obispo County)

Governor Arnold Schwarzenegger appeals from the superior court's order granting respondent Linda Lee Smith's petition for writ of habeas corpus and vacating the Governor's decision to reverse the Board of Parole Hearings' determination that she is suitable for parole. (Pen.Code, § 1507.) We reverse the superior court's order because some evidence supports the Governor's conclusion that respondent is unsuitable for parole because she is currently dangerous. That evidence consists of (1) the aggravated circumstances of the commitment offense, and (2) respondent's lack of insight into her criminal behavior and failure to take responsibility for her past violent conduct.
Factual and Procedural Background
In 1980 respondent was convicted by a jury of second degree murder. Our Supreme Court reversed the conviction because the trial court had erroneously given a felony-murder instruction. (People v. Smith (1984) 35 Cal.3d 798, 801, 808.) In its opinion, the Supreme Court summarized the facts as follows:
"[Respondent] and her two daughters, three-and-a-half-year-old Bethany (Beth) and two-year-old Amy, lived with David Foster. On the day Amy died, she refused to sit on the couch instead of the floor to eat a snack. [Respondent] became angry, took Amy into the children's bedroom, spanked her and slapped her in the face. Amy then went towards the corner of the bedroom which was often used for discipline; [respondent] hit her repeatedly, knocking her to the floor. Foster then apparently joined [respondent] to 'assist' in Amy's discipline. Beth testified that both Foster and [respondent] were striking Amy, who at that point had been at least partially undressed by [respondent]. [Respondent] and Foster used both their hands and a paddle on the child, and were also biting her. In addition, Beth testified that Foster put a wastebasket on Amy's head and hit her on the head with his fist. Eventually, [respondent] knocked the child backwards and she fell, hitting her head on the closet door.
"Amy stiffened and went into respiratory arrest. [Respondent] and Foster took her to the hospital, where [respondent] admitted that she 'beat her too hard.' She also stated that Foster had not come home until after the incident. Amy died that evening. Her injuries were consistent with compressive force caused by numerous blows by hands, fists, and a paddle. The severe head injury that was the direct cause of death occurred within an hour before the child was brought to the hospital.
"[Respondent] testified that although she had spanked Amy on the day in question, she then left Amy in the children's room. Foster, believing additional discipline was warranted, went into the room, closed the door and began shouting at Amy. Although [respondent] heard thumping noises, she was not overly concerned because Foster had behaved similarly in the past and Amy had not been injured. After a half hour, [respondent] became somewhat worried and entered the room. She observed that Amy had a puffy lip, and bite marks and bruises all over her lower body. Foster left the room at [respondent's] request after [respondent] said she would continue the discipline. [Respondent] then shouted at Amy for 15 to 20 minutes to allow Foster time to 'cool off.' To avoid the possibility that Foster might also attack Beth, she took Beth into another bedroom and closed the door. Foster returned to the children's room and began slapping Amy because she would not look at him. [Respondent] testified she was afraid that if she interfered she would become the object of Foster's attack. She stated that although she realized that Amy was being abused, she did not believe the child's life was in danger. [Respondent] eventually did intervene, at which point Amy stiffened and fainted. [Respondent] expressed a desire to take the child to hospital, but Foster objected because of his concern about the possible effect on his probation status. [Respondent] therefore agreed to take all responsibility for Amy's injuries and initially did so in her statement at the hospital. As noted above, however, [respondent] later denied any active involvement in the beating that led to Amy's death." (People v. Smith, supra, 35 Cal.3d at pp. 801-802, fn. omitted.)
Following retrial, a jury again convicted respondent of second degree murder. She was sentenced to prison for 15 years to life.
At a parole consideration hearing, conducted in March 2006, the Board of Parole Hearings (Board) decided for the seventh time that appellant should be granted parole. [1] For the seventh time, the Governor reversed the Board's decision.
At the March 2006 hearing as well as prior parole consideration hearings, respondent's version of events was as follows: The beating was triggered by an incident during which Amy "cried because the pet duck wanted to eat her pancake and she refused to get up on the couch where the duck couldn't reach the pancake." Respondent did not participate in the beating. All of the blows were struck by Foster. Nor did respondent bite Amy: "I did not make those bite marks, I did not beat her." Earlier that day, respondent had merely spanked Amy on the buttocks with her hand and "a hollow, lightweight" plastic paddle. Nevertheless, respondent accepted responsibility for Amy's death because she had failed to protect her from Foster's physical abuse.
At a parole consideration hearing conducted in October 2002, respondent said that, following her arrest, she had made "a very long confession" to the police. That confession was the basis for the Supreme Court's statement of facts portraying her as the initiator and chief perpetrator of the violent acts committed against Amy. Respondent explained that she had made the confession because she had told Foster that she would take the blame and because she "was finally trying to protect [her] children." A commissioner asked her why he should believe her present version of events instead of her confession. Respondent replied: "Because I'm telling you the truth to the best of my ability. . . . I know, in my heart of heart, I did not inflict the blows that cost Amy her life. But I also know, in my heart of heart, I didn't stop it either."
Respondent's most recent psychological evaluation, dated January 23, 2006, noted: "[Respondent] states that she has no intention to minimize her responsibility for Amy's death, but she is clear in her assertion that she did not inflict any harm on Amy leading to the child's death on the day [the] incident occurred." "[Respondent] 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 [Foster] once she realized that he was abusive and harmful toward her daughters."
In reviewing the Board's decision to grant parole, the Governor observed that a number of factors supported respondent's release from prison: "[She] 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 has also 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."
But the Governor declared that, "despite any factors currently tending to support [respondent's] parole suitability, she committed one of the most grisly crimes imaginable – she abused her helpless, two-year-old daughter and allowed her boyfriend to do the same." The Governor went on to state: "The torture and torment inflicted upon Amy was sickening. . . . Amy's battered body had damage and swelling on her head, bruises on her back, chest, and neck, scratch marks extending from her ear to her shoulders, bite marks on her buttocks, thighs, calves and feet, and severe damage to her eardrums consistent with a pail being placed over her head and struck. The nature and circumstances of this crime are enough for me to conclude again this year that [respondent's] release from prison would pose an unreasonable public-safety risk. Likewise, the reason for Amy's 'punishment' – her failure to sit in the right place and her decision to feed a pancake to her pet duck – is so exceedingly trivial that it makes the already deplorable and especially heinous crime for which [respondent] was convicted that much more atrocious and vile." The Governor noted that the walls of Amy's bedroom had been spattered with blood, that "[a]n autopsy [had] revealed more than 80 injuries on Amy's tiny body," and that respondent had told the police that the abuse of Amy had "lasted 'oh, about a half-hour or 45 minutes.' "
The nature and circumstances of respondent's crime were not the only reason why the Governor found her unsuitable for parole. The Governor also considered respondent's refusal to acknowledge her participation in the beating: "[Respondent's] role in Amy's murder was significantly more than just standing by and allowing it to happen. . . . [¶] . . . [Respondent] continues to believe that she carries a reduced culpability for this murder because her abuse of Amy perhaps was not administered as forcefully as her boyfriend's or maybe did not last as long. What matters, and what [respondent] apparently remains unable or unwilling to fully grasp, is that she abused Amy – and then Amy died. Notably, the 2006 Board did not address or make any findings concerning whether [respondent] appreciates the nature and magnitude of her actions or is remorseful [for] what she did to Amy."
The Governor, therefore, concluded that "the factors weighing against [respondent's] parole suitability continue to outweigh, even after being incarcerated for more than 26 years, the positive ones supporting her release." Because respondent "would pose an unreasonable risk of danger to society if paroled at this time," the Governor reversed the Board's decision finding her suitable for parole.
Standard of Review
"[T]he Governor undertakes an independent, de novo review of the inmate's suitability for parole. [Citation.]" (In re Lawrence, supra, 44 Cal.4th at p. 1204.) The Governor "must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation. [Citation.]" (Id., at p. 1219.)
In reviewing the Governor's decision to reverse the Board's determination that an inmate is suitable for parole, the standard of review is "whether 'some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." (In re Lawrence, supra, 44 Cal.4th at p. 1191.) "[A]lthough . . . 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 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." (Id., at p. 1214.)
Some Evidence Supports the Conclusion that Respondent Is
Unsuitable for Parole Because She Is Currently Dangerous
Based on In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), we conclude that some evidence supports the Governor's conclusion that respondent is unsuitable for parole because she is currently dangerous. Shaputis killed his wife by shooting her in the neck at close range. He was convicted of second degree murder and sentenced to prison for 15 years to life. The Board found Shaputis suitable for parole and set a parole date.
The Governor reversed the Board's decision "because he concluded [Shaputis] posed an unreasonable risk of danger to society if released. The Governor's decision relied upon two grounds: (1) the crime was especially aggravated because it involved some premeditation, and (2) [Shaputis] had not fully accepted responsibility for, and lacked sufficient insight concerning, his conduct toward the victim." (Shaputis, supra, 44 Cal.4th at p. 1253.)
Our Supreme Court upheld the Governor's reversal "because of the aggravated circumstances of [Shaputis's] commitment offense and 'his lack of insight into the murder and the abuse of his wife and family.' " (Shaputis, supra, 44 Cal.4th at p. 1255.) Although the evidence indicated that Shaputis had intentionally killed his wife, he consistently claimed that the shooting was an accident. The Supreme Court concluded that "the Governor's reliance on [Shaputis's] lack of insight is amply supported by the record – both in [Shaputis's] own statements at his parole hearing characterizing the commitment offense as an accident and minimizing his responsibility for the years of violence he inflicted on his family, and in recent psychological evaluations noting [Shaputis's] reduced ability to achieve self-awareness." (Id., at p. 1260, fn. 18.)
In reversing the Board's decision to grant respondent parole, the Governor here relied on grounds similar to those that he had relied on in Shaputis: (1) the aggravated circumstances of the crime, and (2) respondent's lack of insight into her conduct and refusal to accept responsibility for her participation in the beating of Amy. The circumstances of respondent's crime are far more aggravated than the circumstances of Shaputis's crime. Shaputis killed his wife by a single gunshot wound to the neck. According to respondent's confession and Bethany's testimony at the original trial, respondent personally attacked Amy over a period of 30 to 45 minutes. Amy must have suffered horribly during the attack, which was triggered by a trivial incident. Moreover, unlike Shaputis's wife, Amy was particularly vulnerable because she was only two years old.
Just as Shaputis insisted that the shooting of his wife was an accident, so has respondent continued to claim that she neither struck nor bit Amy. Respondent expressed remorse for not preventing Foster from beating Amy to death. She never expressed any remorse for her personal participation in that beating. Based on her confession and Bethany's testimony at the original trial, the Governor could have reasonably concluded that respondent had initiated the attack and had been the principal aggressor. The Governor was not required to accept respondent's version characterizing herself as a mere bystander to a beating perpetrated by Foster alone. Thus, as in Shaputis, the record supports the conclusion that respondent "has failed to gain insight or understanding into either [her] violent conduct or [her] commission of the commitment offense." (Shaputis, supra, 44 Cal.4th at p. 1260.)
In Shaputis our Supreme Court noted that "the Governor's decision is supported by some evidence – not merely because the crime was particularly egregious, but because [Shaputis's] failure to take full responsibility for past violence, and his lack of insight into his behavior, establish that the circumstances of [Shaputis's] crime and violent background continue to be probative to the issue of his current dangerousness." (Shaputis, supra, 44 Cal.4th at p. 1261, fn. 20.) The "violent background" referred to in this quotation consisted of Shaputis's "long history of domestic violence." (Shaputis, supra, 44 Cal.4th at p. 1253.) Unlike Shaputis, respondent does not have a violent background. The Governor observed that respondent "had no documented history of assaultive or violent behavior, or any criminal record at all, when Amy was murdered." (CT 101)
Respondent's lack of a violent background is not a valid distinction between the instant case and Shaputis. The gravity of respondent's commitment offense has continuing predictive value as to current dangerousness in view of her lack of insight into her behavior and refusal to accept responsibility for her personal participation in the beating of Amy. "[A]s established in . . . [Shaputis], . . . the Governor does not act arbitrarily or capriciously in reversing a grant of parole when evidence in the record supports the conclusion that the circumstances of the crime continue to be predictive of current dangerousness despite an inmate's discipline-free record during incarceration. As explained in detail in that case, where the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. [Citations.] (In re Lawrence, supra, 44 Cal.4th at p. 1228.)

Conclusion
When the Governor reverses a board's grant of parole, he sits as the trier of fact and may draw reasonable inferences from the evidence. (In re Tripp (2007) 150 Cal.App.4th 306, 312, 319.) Both the superior court and the dissent draw inferences in favor of respondent and based thereon, conclude that she is not currently dangerous and should, therefore, be released. This is not their "call." Their conclusions are based upon a reweighing of the evidence. We do not abdicate our constitutional duty: we recognize that in an appropriate case, inferences drawn by the Governor may be unreasonable as a matter of law. That is not the case here. Were we lawfully to view this evidence on a de novo basis, we might well come to the same conclusion as the superior court and the dissent. But this is not the appropriate standard of review.
The order of the superior court is reversed.



YEGAN, Acting P.J.

I concur:


COFFEE, J.

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."[2]
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,[3] 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.



TO BE CONTINUED AS PART II….



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