In Re Smith

Mark Smith was convicted of second degree murder and sentenced to an indeterminate prison term of 16 years to life. Three years ago, the Board of Prison Terms found Smith suitable for parole and set a parole date. The Governor reviewed the Board’s decision and reversed it, finding Smith was not suitable for parole. Smith challenged that decision by way of a petition for a writ of habeas corpus, which was granted, and the matter is now before us on the Governor’s appeal. The issue before us is the same as the issue before the trial court—whether the Governor’s decision is supported by “some evidence.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 626 [ 128 Cal.Rptr.2d 104 , 59 P.3d 174 ].) As did the trial court, we conclude that it was not and therefore affirm the order.

Facts

A. The Parole Board Record

On June 22, 2000, a three-commissioner panel of the Board of Prison Terms considered the matter of Smith’s suitability for parole, and the record now before us consists of a transcript of those proceedings, the documentary evidence considered by the Board, and the Board’s findings. (Cal. Code Regs., tit. 15, § 2254; see In re Rosenkrantz, supra, 29 Cal.4th at p. 676, fn. 16…

I am compelled to dissent. Smith’s version of events tries to paint him as one who intended no harm to Diamonon. He claims he even tried to help Diamonon when Leigh covered his nose and mouth during the argument in the limousine. While mouthing his acceptance of responsibility for the murder, Smith actually has attempted to disassociate himself from the crime by claiming that “he should have done something to stop it” but was “too scared” and “too weak to help.” “He maintains that he did not participate in the execution o[f] the offense. . . .” He claims “he was a passive spectator of the offense.” The overall theme of his “participation” is that he wanted no part of the lethal encounter.

Both Smith and Leigh were convicted. Each has adopted the time-worn tactic of pointing the finger at the other. If one accepts Smith’s version of the murder, he should never have been convicted. The Governor’s version of the facts (that Smith was fully involved in kidnapping, robbery and murder) is a more accurate interpretation of the evidence. At the very least, the convictions mean Smith aided and abetted the gruesome events. That means the Governor is justified in concluding that Smith is as…

MIRIAM A. VOGEL, J.

Mark Smith was convicted of second degree murder and sentenced to an indeterminate prison term of 16 years to life. Three years ago, the Board of Prison Terms found Smith suitable for parole and set a parole date. The Governor reviewed the Board's decision and reversed it, finding Smith was not suitable for parole. Smith challenged that decision by way of a petition for a writ of habeas corpus, which was granted, and the matter is now before us on the Governor's appeal. The issue before us is the same as the issue before the trial court—whether the Governor's decision is supported by "some evidence." ( In re Rosenkrantz (2002) 29 Cal.4th 616, 626 , 128 Cal.Rptr.2d 104 , 59 P.3d 174 .) As did the trial court, we conclude that it was not and therefore affirm the order.

On June 22, 2000, a three-commissioner panel of the Board of Prison Terms considered the matter of Smith's suitability for parole, and the record now before us consists of a transcript of those proceedings, the documentary evidence considered by the Board, and the Board's findings. (Cal. Code Regs., tit. 15, § 2254; see In re Rosenkrantz, supra, 29 Cal.4th at p. 676, fn. 16 , 128 Cal.Rptr.2d 104…