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For the second time in about six weeks, appeal court justices have rebuffed a parole denial by Gov. Gray Davis, saying he didn’t have enough evidence to keep the man behind bars. In a 2-1 ruling on Thursday, Los Angeles’ Second District Court of Appeal said Davis — who overturned the state Board of Prison Terms’ parole recommendation for convicted murderer Mark Smith — failed to meet the fairly low “some evidence” standard laid out by the California Supreme Court in December’s In re Rosenkrantz, 24 Cal.4th 616. The appeal court also took the extraordinary step of ordering Smith’s release without sending the case back to the governor for another look. “Since we have reviewed the materials that were before the board and found no evidence to support a decision other than the one reached by the board,” Justice Miriam Vogel wrote, “a remand to the governor in this case would amount to an idle act.” Justice Robert Mallano concurred with the ruling. But Justice Reuben Ortega angrily dissented, accusing the majority of not providing Davis the deference he was due and of incorrectly applying the standard set in Rosenkrantz. “The practical effect of the majority opinion,” Ortega wrote, “is to ignore the governor’s role in the process.” Donald Specter, one of the attorneys representing Smith, said the ruling is a continuing indication that the governor won’t be able to run rampant over the parole process — which some defense lawyers had feared following Rosenkrantz. That Supreme Court ruling granted great deference to the governor’s parole authority, saying he only needed “some evidence” to support denials. “There’s been several post- Rosenkrantz cases, both in the superior court and courts of appeal, which have ruled in favor of the prisoner and against the governor,” Specter, a staff attorney at San Quentin’s Prison Law Office, said. “So there is still life after Rosenkrantz.” In April, another division of the Second District applied the “some evidence” standard in In re Capistran, 03 C.D.O.S 3327, to overrule the governor in a published ruling. On Monday, though, San Francisco’s First District sided with the governor in the unpublished Davis v. Skinner, A099128, upholding his denial of parole for wife-killer Raymond Skinner. In Thursday’s published case — In re Smith, B157419 — the defendant was sentenced to 16 years to life in prison for second-degree murder. He and co-defendant Kevin Leigh were convicted for the 1985 shooting and drowning of Rick Diamonon in a remote part of L.A. County’s Tujunga Canyon. While incarcerated, Smith’s health began failing, mostly because of AIDS dementia and cancer of the tonsils. At his parole hearing in 2000, the Board of Prison Terms, noting support from judges and Smith’s family, recommended parole, finding that Smith “would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” Soon thereafter, Gov. Davis reversed the board. L.A. County Superior Court Judge Keith Schwartz sided with Smith. And in agreeing, the Second District held that Davis had greatly misconstrued the factual record by citing events that never occurred during the murder or in prison. The court also found that rather than minimize his role in the murder, as Davis suggested, Smith “assumed full responsibility” and has “consistently expressed remorse.” Minus the co-defendant’s claim that Smith was the shooter — which even the trial judge rebuffed — “there is no basis at all for the governor’s decision,” Justice Vogel wrote. “But even with that statement, we remain unable to say there was ‘some evidence’ to support the governor’s decision.” Davis’ office didn’t respond to a request for comment. However, San Francisco-based Deputy Attorney General Diann Sokoloff, who argued the governor’s position, said she didn’t agree with the court’s ruling and believes that “factually and legally” there are some reasons upon which a petition for review by the Supreme Court might be granted. Sokoloff said the state would likely try to block Smith’s immediate release. Specter, noting that Davis has reversed parole recommendations for all but five of 200 inmates convicted of murder, remained hopeful that the courts will one day recognize Davis has a policy of denying parole. But it could be too late for Smith. “His mother just informed me it’s getting worse,” he said. “He’s got paralysis on one side of his body, AIDS dementia and all other sorts of conditions, medical and mental. The basic fact is that there’s no evidence that he’s a threat to the public.”

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