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SAN JOSE — Wading into a thicket that has torn the state’s appellate court districts, the San Jose-based Sixth District Court of Appeal found Monday that former Gov. Gray Davis hadn’t met the state Supreme Court’s highly deferential “some evidence” standard for overruling parole recommendations. “We are particularly mindful that the governor’s decision is entitled to great judicial deference,” wrote Justice William Wunderlich. But, he explained, “where, as here, the record does not contain some evidence to support some of his findings, we believe that his decision cannot stand.” Rather than ordering the release of prisoner Ernest Smith, who has served 23 years for shooting his wife to death, the Sixth District ordered the governor’s decision vacated. That means the recommendation that Smith be paroled will likely land in the lap of Gov. Arnold Schwarzenegger, who has given mixed signals thus far on his approach to parole board decisions. “This will be the first time Schwarzenegger will review a case where Davis took the [release] date away,” observed Stephen Defilippis, Smith’s appellate attorney. The governor’s office wouldn’t comment, but the new governor has said in the past that he would let the parole board do its job. “It really depends on what the governor does, but sure, it’s hopeful,” said Defilippis, of San Jose’s Picone & Defilippis. Monday’s appellate court ruling is believed to be the first in Northern California to apply the California Supreme Court’s “some evidence” standard and find a Davis decision fell short. The state justices crafted the standard last year, in a challenge that reached them after Davis had overruled scores of parole recommendations in what critics said amounted to an unconstitutional no-parole policy. State trial and appeal courts have parted ways when applying the justices’ ruling in In re Rosenkrantz, 24 Cal.4th 616, to other parole-denial cases. Last month, in a case out of Marin County, the First District sided with Davis, saying a trial judge was wrong to find the governor hadn’t met the “some evidence” standard. Earlier this year, the Second District vacated one of Davis’ denial orders, and the governor denied parole yet again. But another Second District panel reversed Davis and — refusing to give him another chance — ordered the inmate released. The state Supreme Court declined to step in. “It seems the courts have different opinions on how to read Rosenkrantz in terms of remedy,” said Deputy Attorney General Julie Garland, who argued Monday’s case before the Sixth District. “We definitely agree that’s the right remedy if the court finds the decision is not supported by some evidence,” Garland said of Monday’s decision. “We do disagree there was not some evidence to support the findings.” The Board of Prison Terms granted Smith parole in February 2001. But Davis overruled it, citing Smith’s unstable social history, the callous nature of the crime, and Smith’s need for additional counseling. But in its published decision Monday in In re Smith, H025304, the Sixth District found the governor’s decision wasn’t based on “alternative and independent findings” supporting his rationale, but “rather, he expressly based his decision on the unreasonable risk of danger posed by the combination of all those factors.” Smith is one of a string of cases in which Santa Clara Superior Court Judge James Emerson has reversed parole denials by the governor, writing in court opinions that — contrary to the conclusion of the state Supreme Court — Davis had a “no-parole” policy for convicted murderers.

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