In Re Smith

*508 ORTEGA, Acting P. J.

I am compelled to dissent. Smith’s version of events tries to paint him as one who intended no harm to Diamonon. He claims he even tried to help Diamonon when Leigh covered his nose and mouth during the argument in the limousine. While mouthing his acceptance of responsibility for the murder, Smith actually has attempted to disassociate himself from the crime by claiming that “he should have done something to stop it” but was “too scared” and “too weak to help.” “He maintains that he did not participate in the execution o[f] the offense. . . .” He claims “he was a passive spectator of the offense.” The overall theme of his “participation” is that he wanted no part of the lethal encounter.

Both Smith and Leigh were convicted. Each has adopted the time-worn tactic of pointing the finger at the other. If one accepts Smith’s version of the murder, he should never have been convicted. The Governor’s version of the facts (that Smith was fully involved in kidnapping, robbery and murder) is a more accurate interpretation of the evidence. At the very least, the convictions mean Smith aided and abetted the gruesome events. That means the Governor is justified in concluding that Smith is as responsible as Leigh for beating, shooting, robbing, and drowning Diamonon. The majority’s conclusion that “no” evidence supports the Governor on this point ignores the Penal Code’s provision that “[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission ... are principals in any crime so committed.” (§ 31.)

The majority consider Smith’s prior record insignificant, primarily because of a lack of violent offenses. The Governor thinks otherwise. I agree with the Governor. I do not think anyone with three theft convictions, an attempted burglary, and a weapon assault bargained down to a disturbance of the peace, has an “insignificant” record. Back in our more law-abiding days, an “insignificant record” usually meant the individual had little more than traffic violations. I concede that perhaps times have changed for the worse in this regard. But the majority’s disagreement with the Governor does not mean there is “no” evidence on this point.

The majority find no evidence to support the Governor’s finding that Smith “minimizes his role in the crime, claiming to have been a mere bystander. . . .” The majority quote Smith: “I meant I didn’t commit the act. I wouldn’t have wanted anybody to get hurt. Of course I feel responsibility for my part in that evening.” What part? Riding around in the limo? I suppose I can disagree with the Governor in one respect—Smith is not merely “minimizing” his involvement, he is completely denying it. He *509 denies having done anything wrong other than having “been too scared to stop the murder.” 1

Smith was a drug dealer of some duration when he got involved with Wachter. During a period of time before the murder, Smith would spend his nights riding around in a limousine, using drugs. He was providing cocaine to be sold to Wachter. This is a history of drug abuse, as characterized by the Governor.

The Governor properly considered Smith’s motivation (revenge over a dope deal), his history as a drug dealer/user/thief/would-be burglar, and his persistent attempts to distance himself from any wrongdoing. This constitutes “some” evidence to support the Governor’s decision. The People of this State have entrusted this decision to him, precisely to take it away from parole boards and courts. Although the courts retain some limited review, this court has exceeded that limit.

I do not agree that the majority is conducting an “extremely deferential review of the Governor’s decision” as called for by the Supreme Court in Rosenkrantz. (Maj. opn., ante, at p. 507.) Nor do I feel the majority is correctly applying In re Rosenkrantz (2002) 29 Cal.4th 616 [ 128 Cal.Rptr.2d 104 , 59 P.3d 174 ], The practical effect of the majority opinion is to ignore the Governor’s role in the process.

I also disagree with the majority’s departure from In re Capistran (2003) 107 Cal.App.4th 1299 [ 132 Cal.Rptr.2d 872 ]. In any case where the Governor has improperly considered any factors, he should be allowed to reconsider the matter with the improper factors removed. (Id. at pp. 1306-1307.) Should the case someday arise where there is nothing left, we can deal with that when the time comes. This is not that case.

I would deny Smith’s petition. He has not come close to demonstrating that he is being held wrongly. If anything, he continues to demonstrate that he will never acknowledge the depth of his involvement in this murder. Without doing so, it is impossible for him to accept “responsibility.”

Respondent’s petition for review by the Supreme Court was denied September 24, 2003. Baxter, J., did not participate therein.

This is a paraphrase of Smith’s statements.