In Re Smith

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’s 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 [ 201 Cal.Rptr. 311 , 678 P.2d 886 ].) 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…

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.”

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…

YEGAN, Acting P. J.—

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's 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.

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 [ 201 Cal.Rptr. 311 , 678 P.2d 886 ].) 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…