In Re Smith

I. Statement of the Case

In 1980, respondent Ernest Smith (Smith) shot and killed his wife. He pleaded guilty to second degree murder and admitted using a firearm and as a result was sentenced to an indeterminate term of 17 years to life. On February 28, 2001, the Board of Prison Terms (the Board) conducted a parole consideration hearing, and a majority found Smith suitable for parole. (See Pen. Code, § 3041.) On July 9, 2001, the Board’s Decision Review Committee approved the Board’s decision. However, on August 8, 2001, appellant Governor Gray Davis (Governor) reviewed and then reversed the Board’s decision, finding that Smith was still too dangerous to be released on parole. (See § 3041.2; Cal. Const., art. V., § 8.) Thereafter, Smith filed a petition for a writ of habeas corpus in the Santa Clara County Superior Court, challenging the Governor’s decision. The superior court granted the writ, finding that (1) the Governor’s decision was improperly based on a blanket no-parole policy for convicted murders; (2) the decision violated the ex post facto clause of the federal Constitution; and (3) the decision was not supported by “some evidence.” The court ordered that…