Metropolitan News-Enterprise


Thursday, May 2, 2002


Page 1


High Court to Review Scope of Governor’s Power to Block Parole


From Staff and Wire Service Reports


The state Supreme Court yesterday agreed to review the cases of two prisoners who have challenged—successfully, so far—Gov. Gray Davis’ power to block parole under a 1988 amendment to the state Constitution.

The justices agreed to hear the cases of convicted murderers Robert Rosenkrantz and Mark Smith. The court also stayed an order that Smith be released and left in place a prior stay of Rosenkrantz’s release.

Four members of the court—Chief Justice Ronald M. George and Justices Marvin Baxter, Kathryn M. Werdegar, and Ming Chin—voted to transfer to the high court Davis’ appeal of a Superior Court judge’s order that Smith be freed. The appeal had been pending in Div. One of this district’s Court of Appeal, the same division that earlier ruled in favor of Rosenkrantz.

The same four voted to stay the AIDS-infected murderer’s release. Justices Joyce L. Kennard and Carlos Moreno did not sign the order transferring the appeal, and voted for Smith’s immediate release.

The vote to grant review in the Rosenkrantz case was unanimous, except for Justice Janice Rogers Brown, who recused herself in both cases. No reasons were given for the recusal of Brown, who dealt with parole and clemency matters while serving as legal affairs secretary to then-Gov. Pete Wilson from 1991 to 1994.

Earlier Stay

George, Baxter, Werdegar, and Chin had voted for the earlier stay of Rosenkrantz’s release. Kennard did not support the stay, and Moreno had not yet joined the court.

Smith, 46, has spent 17 years in prison. He was convicted of second-degree murder in the 1985 death of Rick Diamonon following an argument over cocaine.

He was diagnosed with AIDS in 1994. He has been treated twice for cancer and suffers from progressive dementia, according to court records.

The state Board of Prison Terms had decided to parole Smith, praising his exemplary prison record and noted that the sentencing judge had supported the release. But Davis overruled the board, calling Smith “a person with little regard for human life.”

In granting Smith’s release on habeas corpus, Los Angeles Superior Court Judge Judge Keith L. Schwartz said in March there was no evidence supporting the governor’s denial of parole. He said Davis had wrongly labeled Smith as one of the killers, rather than an accomplice, and had exaggerated his criminal history.

Life Sentence

Rosenkrantz, 34, is serving a 17-year-to-life sentence for second-degree murder in the 1985 shooting death of Steven Redman, a former Calabasas High School classmate who exposed him as a homosexual.

Div. One initially ruled that there was no evidence to support the parole board’s earlier finding that Rosenkrantz’s release would endanger the public, and that the board had to set a release date.

After it did so, explicitly declaring that it was only acting to comply with the court order, Davis vetoed the decision. But the appeals court ruled in January that he lacked a constitutional basis for doing so.

Under the 1988 amendment, passed by the Legislature and approved by voters as Proposition 89, the governor has the power to veto parole dates, but the amendment places limits on that power.

It requires among other things that the chief executive confine his decision to the record considered by the parole board.

In other actions taken at yesterday’s conference, the high court:

Denied review of an unpublished Feb. 4 ruling by this district’s Div. One that the county cannot be held liable for damages to the spouse and children of Pifen Lo as a result of her extramarital affair with former Los Angeles Superior Court Judge George Trammell.

Trammell, who resigned from the bench when news of the affair became public, is now serving a 27-month federal prison term for mail fraud, a crime which he admitted committing in order to cover up the fact that he was involved with a woman he had placed on probation and whose husband and baby-sitter were still defendants in the case.

Lo said her only reason for becoming involved with the jurist was that she was told she “had to pay the price” if she wanted lenient treatment for her husband.

Lo still has claims pending in her suit against Trammell, the county, and others.  But the Court of Appeal panel said that civil rights and infliction of emotional distress claims by her husband and children “amounted to nothing more than claims of spousal and parental alienation of affections,” which are no longer viable under California law. 

Agreed to decide whether Proposition 36, which requires that certain drug offenders be granted probation and treatment instead of being incarcerated, applies to persons sentenced before July 1 of last year—the measure’s operative date—but whose convictions are not yet final.

The Court of Appeal held in People v. Floyd, 95 Cal.App.4th 1092, that there is a rational basis for denying the benefit of the initiative to those defendants, since the programs required by Proposition 36 were not in place when they were sentenced. But the Sixth District ruled otherwise this past Tuesday in People v. Fryman, 02 S.O.S. 2078.

Agreed to decide whether independently represented members of the plaintiff class in a toxic torts action, who claim they received inadequate awards as a result of an arbitration process established as part of a settlement, may sue class counsel. The First District’s Div. Four ruled Jan. 11 in Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 95 Cal.App.4th 154, that they could not.

Granted review in Haynes v. Farmers Ins. Exchange, 95 Cal.App.4th 588. The Fourth District’s Div. Three ruled Jan. 24 that a policy provision that restricted recovery by permissive users was inconspicuous and unenforceable. 

Agreed to hear the defendant’s appeal in People v. Mosby, 95 Cal.App.4th 967. The Third District held on Jan. 31 that the defendant’s admission of a prior conviction was voluntary and intelligent, though he had not been expressly advised of his rights to remain silent and confront witnesses, since he had waived his right to a trial on the prior and had just completed a jury trial in which he exercised his rights to confrontation and silence.


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