In re Smith

Filed 6/09/08 In re Smith CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re RICHARD LEE SMITH
on Habeas Corpus.
G039301
(Super. Ct. No. M-11470)
O P I N I O N
Original proceeding; petition for a writ of habeas corpus to challenge an
order of the Superior Court of Orange County, Kazuharu Makino, Judge. Petition denied
in part and granted in part. Parole denial vacated. Matter remanded to Board of Parole
Hearings.
Marilee Marshall & Associates and Marilee Marshall for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman and
Amanda Lloyd, Deputy Attorneys General, for Respondent.
* * *

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In 1986, petitioner Richard Lee Smith was convicted of second degree
murder and was sentenced to a term of 17 years to life. Our court affirmed his conviction
in 1988. (People v. Smith (Jul. 29, 1988, G004334) [nonpub. opn.].) He first became
eligible for parole in 1995. At his fifth parole hearing on July 25, 2006, parole was
denied.
Petitioner filed a petition for writ of habeas corpus in the Orange County
Superior Court, which was denied. He then filed his petition here, alleging that the
decision of the Board of Parole Hearings is unsupported by the record and that, therefore,
it violates his rights under the Fifth, Eighth, and Fourteenth Amendments to the
Constitution of the United States.
The Board of Parole Hearings is vested with the power to determine when a
felon sentenced to life in prison can safely be released on parole. (Pen. Code, §§ 3040,
3041, 5077.) The scope of our review is limited. As both parties realize, “the judicial
branch is authorized to review the factual basis of a decision of the Board denying parole
in order to ensure that the decision comports with the requirements of due process of law,
but . . . in conducting such a review, the court may inquire only whether some evidence
in the record before the Board supports the decision to deny parole, based upon the
factors specified by statute and regulation.” (In re Rosenkrantz (2002) 29 Cal.4th 616,
658.) In re Singler (2008) 161 Cal.App.4th 281 suggests, however, that our “Supreme
Court has endorsed subsequent Court of Appeal decisions that give courts greater leeway
in reviewing the Board’s determination that an inmate remains a danger to public safety.”
(Id. at p. 287.) And “the relevant test is not whether some evidence supports the reasons
cited for denying parole, ‘but whether some evidence indicates [an inmate’s] release
unreasonably endangers public safety.’ [Citations.]” (Id. at p. 295, fn. omitted.)
Our review of the record fails to disclose evidence supporting a number of
the board’s findings. It is not clear that the board properly considered whether it is
appropriate to continue to rely on the especially cruel manner in which the crime was

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committed well over a decade after petitioner first became eligible for parole. And it is
also unclear whether the board is concerned that petitioner, if released on parole, may
cease taking his psychotropic drugs. Because we cannot determine that the board would
have denied petitioner parole had it relied only on findings supported by substantial
evidence, we must vacate the denial of parole and remand for the board to conduct a new
parole suitability hearing. (In re Roderick (2007) 154 Cal.App.4th 242, 276-277.) The
hearing shall be conducted no later than 60 days from the date this opinion becomes final.
(See id. at p. 278.)
FACTUAL BACKGROUND
1. The Facts Described in Our 1988 Opinion
Our opinion affirming petitioner’s conviction summarizes the events
surrounding the crime as follows:
“At the time of the crime and for 12 years before, defendant was a
philosophy professor at California State University Fullerton. He was viewed as
intelligent and politically active. He also had a history of mental illness dating from
1967. He was hospitalized six times between 1967 and 1973, with diagnoses including
acute paranoid schizophrenic reaction, chronic undifferentiated schizophrenia and
chronic paranoid schizophrenia.
“In 1981 or 1982, defendant met Consuelo Matters, a student at the
university. Consuelo was then married to Donald Matters. By late 1982 or 1983,
defendant was in love with Consuelo. Over a period of several months, he gave
considerable financial support to her and her children. He considered the relationship a
very close one; she may not have so characterized it.
“Consuelo and her husband were separated in the summer of 1983.

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“On April 30, 1984, while defendant’s car was undergoing routine
maintenance, defendant rented a blue Camaro from a car rental agency. He was dressed
in conspicuously mismatched clothes.
“At about 1:30 a.m. on May 3, 1984, a man driving a Camaro and wearing
a trench coat was seen taking the license plate from another Camaro. The stolen plate’s
number was 1ECX911. Defendant’s alarm clock was later found to be set for 1:36 a.m.
“Donald Matters worked in construction and generally left for work at 5:30
a.m. On May 3, 1984, at 5:30 a.m., Donald and defendant were seen standing in the
street talking. Defendant was wearing a tan car coat or trench coat. Fifteen to twenty
minutes later, neighbors heard gunshots and screams. Three witnesses placed defendant
or a man wearing a tan coat at the scene; one witness saw him holding a pistol.
Defendant walked or ran to a late model Camaro whose license plate included the figures
“1” and “E,” and drove away.
“Defendant gave Consuelo her customary wake-up call between 7:00 a.m.
and 8:00 a.m. that morning. She noticed nothing unusual in his manner.
“When questioned by police, defendant stated he had spent the night on
campus studying, except for a trip home between 3:00 a.m. and 4:00 a.m. The campus
security officer did not see a Camaro on campus that night or morning, nor did he see
defendant during his hourly building checks.
“On May 11, after defendant was arrested, he was interviewed by a
psychiatrist, Dr. Klatte. Defendant told Klatte that God had directed defendant and had
taken defendant over in order to kill Donald. In a later interview with a court-appointed
psychologist, defendant denied having killed Donald and said his previous statement had
described a ‘delusional memory.’ In interviews with another psychiatrist, defendant
seemed intermittently aware of having killed Donald.
“The gun used in the crime was never found; however, police found a gun
cleaning rod in defendant’s home.

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“Defendant was charged with murder (Pen. Code, § 187), with an
additional allegation of use of a firearm in the commission of the offense (Pen. Code, §
12022.5). He entered a plea of not guilty and later a plea of not guilty by reason of
insanity.” (People v. Smith, supra, G004334, at pp. 2-4.)
2. The Record of the Parole Hearing
Petitioner testified at the hearing and acknowledged the accuracy of the
planning that went into the commission of the crime: “the rental car, the changing of the
license plates, the hooded sweatshirt, [and] the trench coat.” He had purchased the gun
during his 1984 spring vacation, presumably some weeks before the May 3 murder. He
waited for about 45 minutes for the victim to come out of his house, talked to him for
several minutes in the middle of the street, then, after the two embraced, pulled out the
gun and shot the victim three or four times. Thereafter, he disposed of the gun in a trash
can, replaced his vehicle’s license plates, and threw the stolen plates away. A month or
so before the murder, petitioner had set the victim’s car on fire. He stated that the
victim’s wife, who was in the middle of getting divorced, had asked him “to get rid of
[the victim].” Petitioner had been paying her “at least a thousand dollars a month” and
after the murder gave her all of his money.
Before the crime, petitioner had been hospitalized because of mental illness
six times; four of these hospitalizations were voluntary. At the time he committed the
murder, petitioner was not taking medication, none had been prescribed, and he had not
been under the care of a psychiatrist for some time.
Petitioner testified that at the time of the crime, he was not married but in
1987 he remarried the wife whom he had divorced in 1980; he was still married. If
granted parole, he would reside with her. The panel received a letter from petitioner’s
wife, a special education teacher, in support of his being granted parole. The letter noted
that the couple never had “any domestic disputes or anything remotely close to domestic

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violence.” Petitioner receives approximately $1,200 per month from Social Security and
additional benefits through PERS.
Dr. Laura Petracek, who conducted a psychological evaluation, reported
that petitioner suffered from schizophrenia, paranoid type. Her report stated that the
conditions were in remission with “psychotropic medications in a controlled
environment.” It noted: “The only factors that appear to predict an increased risk of
dangerousness are the nature of his crime and the presence of severe Axis I mental
disorder. Overall, it is my impression and opinion that his risk for violence among his
peers in a Level Two facility is much lower than average. His risk for violence in an
uncontrolled community setting would be below average as long as he was under
psychiatric treatment, but unpredictable if off medication and under stress.” Among
Petracek’s clinical observations, she noted: “My conclusion in this matter is that this
inmate appears to be a better than average candidate for parole based on the information
obtained in this assessment, but with the strict provision that he continue in mandatory
psychiatric treatment for the foreseeable future.”
The board denied parole.
DISCUSSION
1. Our Standard of Review
“A defendant sentenced to an indeterminate life term is normally entitled to
parole if the Board of Parole Hearings finds he does not pose an unreasonable risk to
public safety. (Pen. Code, § 3041, subd. (a)). California Code of Regulations, title 15,
section 2402 establishes the ‘general guidelines’ for determining whether a defendant
poses such a danger. Section 2402 sorts the factors relevant to assessing a defendant’s
risk into two categories: those that tend to show unsuitability for parole, such as an
especially atrocious crime by the defendant and a history of violence; and those factors

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that tend to show suitability, such as lack of a criminal history, good prison behavior, and
remorse.” (In re Lee (2006) 143 Cal.App.4th 1400, 1405-1406, fn. omitted.) Thus our
inquiry is whether there was some evidence supporting the board’s determination that
petitioner would pose an unreasonable risk to public safety if parole were granted.
2. Standard to Be Applied By the Board
While the “some evidence” rule governs our review on appeal, the
preponderance of evidence standard applies to the board’s determinations. (In re Tripp
(2007) 150 Cal.App.4th 306, 312 [prisoner’s unsuitability for parole must be established
by a preponderance of the evidence]; see Evid. Code, § 115.) The applicable statutes and
regulations create a presumption in favor of parole, unless “public safety requires a
lengthier period of incarceration . . . .” (In re Rosenkrantz, supra, 29 Cal.4th at p. 654;
accord, Pen. Code, § 3041, subds. (a) & (b); Cal. Code Regs., tit. 15, § 2401.) Given the
Legislature’s conclusion prisoners who have served their minimum parole-eligibility
terms are “normally” entitled to a parole date absent an unreasonable risk to public safety
(Pen. Code, § 3041, subd. (a)), the burden rests on the board to ascertain that evidence
demonstrating a prisoner’s unsuitability preponderates over the parole presumption and
factors suggesting suitability.
‘“Preponderance of the evidence’ is usually defined in terms of ‘probability
of truth.’ [Citation.]” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482-
483.) In other words, the evidence must, “‘when weighed with that opposed to it, ha[ve]
more convincing force and the greater probability of truth.’ [Citation.]” (Id. at p. 483.)
Inferences drawn from facts may support the conclusion a prisoner poses an unreasonable
danger to the public if paroled, but the nature of the preponderance standard requires
more than a mere possibility of dangerousness. Instead, under the preponderance
standard, the inferences favorable to a particular conclusion must be “more reasonable or
probable than those against [it]. [Citations.]” (Ibid.) “[T]o constitute an inference, the

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conclusion must to some degree reasonably and logically follow from the preliminary
facts. If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we
refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and
it cannot rise to the dignity of an inference. [Citation.]” (People v. Massie (2006) 142
Cal.App.4th 365, 374.) In short, to be legally adequate, an inference must be ‘“drawn
from evidence rather than . . . mere speculation as to probabilities without evidence.’”
(California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 45.)
3. Panel’s Stated Reasons For Its Ruling
The panel decided petitioner was “not suitable for parole and would pose an
unreasonable risk of danger to society or a threat to public safety if released from prison.”
In its detailed ruling, the board noted it considered many factors in denying parole. The
presiding commissioner Garner explained the board’s reasoning as being based on the
following factors, which we present in the order noted by Garner: (1) the commitment
offense “was carried out in an especially cruel and callous manner”; (2) petitioner did not
have a record as a juvenile or as an adult; (3) his “institutional behavior . . . has been
fine”; (4) he “managed to do independent studies in the unavailability of the formal
programs”; (5) the psychological report “is generally favorable, although it does note the
need for lifelong medications”; (6) parole plans were acceptable and disclosed that
petitioner would be able to support himself; (7) “there is no way that the panel can
compel a parolee to medicate, and . . . parole is a five-year period, it’s not a lifelong
parole”; (8) petitioner “need[s] therapy in order to face, discuss and understand and cope
with stress in a non-destructive manner”; and (9) petitioner lacked remorse.
Findings two, three, four, and six obviously would support a grant of
parole. We therefore examine whether any facts support the panel’s remaining findings.

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4. Factual Basis for Denial of Parole
The evidence does support the panel’s finding that the commitment offense
“was carried out in an especially cruel and callous manner.” We will discuss below why
this, by itself, may be insufficient to support the denial of parole. We are left with (1) the
need for lifelong medications, (2) the panel cannot compel petitioner to medicate, (3)
petitioner needs therapy to cope with stress, and (4) petitioner lacks remorse. The record
does not contain any evidence supporting the last two of these findings. All the evidence
is to the contrary.
a. The Need for Therapy
As to the need for therapy, the prison psychologist who evaluated Smith for
his most recent parole hearing concluded: “He has developed an understanding of his
susceptibility to relationship-related stressors and appears to have a steady and stable
relationship with his wife, with whom he has been for many years prior to and during
incarceration. There appears little more that can be done psychologically for this inmate
while he is confined. It is my opinion that if parole is denied, it should be based on issues
other than those psychological in nature.”
Nothing in Smith’s prison history suggested stress management posed a
problem for him. The psychologist identified pre-incarceration “work-related stress and
the breakdown of relationships with women” as stressors “precipitating” and
“exacerbating” pre-prison psychotic episodes. But no evidence suggested a likelihood
either of these flashpoints would recur.
Employment-related stress would not be a factor because the panel excused
Smith from employment verification based on his eligibility for Social Security benefits
and his PERS pension. And, in 1987, three years after the commitment offense and early
in his incarceration, Smith remarried his wife and the record reflects this relationship, far
from a source of stress, proved “a major support” for Smith over the next 20 years.

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Commission of a crime resulting from “significant stress in his life,
especially if the stress had built over a long period of time,” is a factor in favor of parole,
not against it. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(4).) The rule presumes such
stress is an anomaly. Because the board’s mandate is to assess future dangerousness
(Pen. Code, § 3041, subd. (a)), there is no reason to deny parole if the commitment
offense culminates ““‘a long, entangled, emotional event the likes of which [is] not likely
to ever be duplicated again especially after all the positive gains this inmate has made.’””
(In re Burdan (2008) 161 Cal.App.4th 14, 27.)
b. Lack of Remorse
As to the alleged lack of remorse, the record is also to the contrary.
Petracek’s report notes that petitioner “is able to express remorse and accepts
responsibility for his crime . . . .” In response to a deputy district attorney participating in
the hearing suggesting that petitioner failed to show remorse, petitioner testified: “Of
course I do [feel remorse], and I’ve written letters to the judge and to the district
attorney’s office expressing apologies and remorse. There’s no amount of remorse that
can make up for taking a life. It’s -- it’s impossible. . . . I have grief, I have guilt, I have
sorrow, I have shame. . . . I still can’t believe that I did this, this poor man and his
children and his family and all this grief and sorrow that I’ve caused. I do works of
penance, even make small monetary contributions, but there’s nothing anybody can ever
do to make up for the loss of a life. The remorse is there, but its not going to - - it doesn’t
make it up. It doesn’t . . . .”
There was no evidence to contradict either the psychologist or petitioner
with respect to petitioner’s remorse for the crime.

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c. The Immutable Facts
We are left with the nature of the crime and petitioner’s need for continued
medication as bases for the denial of parole.
(1) The Nature of the Crime
The board’s conclusion petitioner committed the offense in a “cruel and
callous” manner is supported by the evidence. But as the court stated in In re Burdan,
supra, 161 Cal.App.4th at p. 28, “the relevant test is not whether some evidence supports
the reasons cited for denying parole, ‘but whether some evidence indicates a parolee’s
release unreasonably endangers public safety.’ [Citations.]” (Citing In re Lee, supra,
143 Cal.App.4th at p. 1408; see also In re Tripp, supra, 150 Cal.App.4th at p. 313.) In
Rosenkrantz our high court stated that “‘[t]he Board’s authority to make an exception [to
the requirement of setting a parole date] based on the gravity of a life term inmate’s . . .
past offense should not operate so as to swallow the rule that parole is “normally” to be
granted. Otherwise, the Board’s case-by-case ruling would destroy the proportionality
contemplated by Penal Code section 3041, subdivision (a), and also by the murder
statutes, which provide distinct terms of life without possibility of parole, 25 years to life,
and 15 years to life for various degrees and kinds of murder. [Citation.]’” (In re
Rosenkrantz, supra, 29 Cal.4th at p. 683.)
Cruel or callous criminal conduct reveals a deliberate disregard or
indifference, at the time of the offense, for the security and dignity of others that may
warrant an inference of future dangerousness, to the degree the offender’s emotional
calcification persists. The question whether there may come a point after a lengthy
period of incarceration at which the gravity of the prisoner’s commitment offense may be
insufficient to deny parole is pending before our Supreme Court. (In re Lawrence (2007)
150 Cal.App.4th 1511, review granted Sept. 19, 2007, S154018.) We have no doubt
denial of parole based solely on the unchanging factor of the nature of the crime violates

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a defendant’s right to due process, absent an individualized assessment of his or her
present dangerousness.
We agree with the observation that a “parole board’s sole supportable
reliance on the gravity of the offense and conduct prior to imprisonment to justify denial
of parole can be initially justified as fulfilling the requirements set forth by state law.
Over time, however, should [the inmate] continue to demonstrate exemplary behavior
and evidence of rehabilitation, denying him a parole date simply because of the nature of
the [commitment] offense and prior conduct would raise serious questions involving his
liberty interest in parole. [¶] . . . A continued reliance in the future on an unchanging
factor, . . . conduct prior to imprisonment, runs contrary to the rehabilitative goals
espoused by the prison system and could result in a due process violation.” (Biggs v.
Terhune (9th Cir. 2003) 334 F.3d 910, 916-917; see also In re Barker (2007) 151
Cal.App.4th 346, 374 [‘“Given the lapse of 2[9] years and the exemplary rehabilitative
gains made by [Barker] over that time, continued reliance on the aggravating facts of the
crime no longer amount[s] to “some evidence” supporting denial of parole’”]; In re
Elkins (2006) 144 Cal.App.4th 475, 498-499 [“Reliance on an immutable factor, without
regard to or consideration of subsequent circumstances, may be unfair, run contrary to the
rehabilitative goals espoused by the prison system, and result in a due process violation”;
Irons v. Carey (9th Cir. 2007) 505 F.3d 846, 854 [“We hope that the Board will come to
recognize that in some cases, indefinite detention based solely on an inmate’s
commitment offense, regardless of the extent o his rehabilitation, will at some point
violate due process, given the liberty interest that flows from the relevant California
stautes”].)
Here, the board did not decide the callousness petitioner displayed in his
commitment offense demonstrated a continuing, present dangerousness that outweighed
all other factors. Rather, the board merely recited that the commitment offense was
“cruel and callous” and included this factor as one among others in denying parole,

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including a need for continued therapy and petitioner’s lack of remorse. As noted, these
latter factors find no support in the record. A decision denying parole “‘cannot stand’
when findings on important factors lack evidentiary support and it is not clear that the
Board would have reached the same conclusion” based solely on other factors. (In re
DeLuna (2005) 126 Cal.App.4th 585, 598; In re Roderick, supra, 154 Cal.App.4th at
p. 276.) Accordingly, we vacate the board’s decision denying parole and remand for a
new hearing in which the board must assess whether petitioner poses a present danger
upon release in light of his remorse, his “graduation” from therapy, and all other relevant
factors, including the nature and gravity of his commitment offense, his age, the passage
of time and, as we discuss in the next section, his need for medication.
(2) The Need for Psychotropic Medicine
This leaves us with the final basis stated by the board in support of the
denial of parole: the danger that petitioner may cease to take his psychotropic medicine.
The board observed “that there is no way the panel can compel a parolee to medicate, and
that parole is a five-year period, it’s not a lifelong parole.” The upshot of the panel’s
rationale is that no prisoner requiring medication could ever be paroled, swallowing the
presumption in favor of parole without regard to the question the panel is charged to
evaluate: this prisoner’s future dangerousness. The necessity of lifelong medication
presents a legitimate concern in the abstract. But due process requires an “individualized
consideration” of the prisoner’s prospects on parole. (In re Rosenkrantz, supra,
29 Cal.4th at p. 677.) And, as discussed, the burden rests on the parole board to ascertain
that evidence of dangerousness preponderates over other factors before the board may
deny parole. The mere possibility an inmate may fail to medicate is insufficient.
Consequently, we are remanding the case to the board so that the panel can reach an
evidence-based conclusion on remand concerning the likelihood petitioner will abandon
his medication regimen.

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DISPOSITION
The board’s decision denying petitioner parole is vacated. We deny
petitioner’s request for an order directing the board to set a parole date. The matter is
remanded to the board to conduct a new parole suitability hearing consistent with this
opinion. The hearing shall be held no later than 60 days after the date this opinion
becomes final.
RYLAARSDAM, J.
WE CONCUR:
SILLS, P. J.
ARONSON, J.

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