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Name: In re Smith
Case #: C064700
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/16/2011
Subsequent History: Revw. granted 9/14/11 (S194750)
Summary

Petitioner’s demeanor at the parole-suitability hearing may constitute evidence supporting the Board’s decision that he remains an unreasonable danger to public safety if released on parole. Petitioner killed his wife in an alcoholic rage and was then convicted of second degree murder. Imprisoned for 29 years, his adjustment was described as perfect, with no rule infractions and his involvement in therapy and other programs. At his most recent parole-suitability hearing, however, when questioned regarding his understanding of his anger, he raised his voice, clenched his fists, and had a red face. The Board, referencing petitioner’s demeanor, along with concern over petitioner’s lack of insight into why he killed his wife, deferred parole for three years, finding that appellant continued to represent a threat to public safety. In determining parole suitability the Board may rely on only a modicum of evidence, and resolution of conflicts in the evidence and the weight to be given the evidence is within the Board’s authority. (In re Rosenkrantz (2002) 29 Cal.4th 616; In re Lawrence (2008) 44 Cal.4th 1181.) On review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole. Here, despite the many factors arguing for petitioner’s release on parole, appellant’s demeanor at the parole hearing provided the requisite nexus between the facts of the commitment offense, involving uncontrolled anger, and petitioner’s current disposition and inability to control his anger at the hearing, so as to support the Board’s finding that he continued to present a potential threat to public safety.