Supreme Court of California Justia
Citation 56 Cal.4th 274, 153 Cal.Rptr.3d 471

In re Vicks

Filed 3/4/13




IN THE SUPREME COURT OF CALIFORNIA



In re MICHAEL D. VICKS

on Habeas Corpus.

S194129

Ct.App. 4/1 D056998

San Diego County

Super. Ct. No. CR63419

____________________________________)


In 2008, California voters approved Proposition 9, the Victims‟ Bill of

Rights Act of 2008: Marsy‟s Law. The changes enacted by Marsy‟s Law became

effective immediately; pertinent here are the amendments to Penal Code1 section

3041.5 that increase the period of time between parole hearings but allow for the

advancement of a hearing if a change in circumstances or new information

subsequently establishes that there is a reasonable probability the prisoner is

suitable for parole. Petitioner Michael D. Vicks (Vicks) contends that application

of these new parole procedures to prisoners who committed their crimes prior to

the enactment of Marsy‟s Law violates the ex post facto clauses of the federal and

state Constitutions. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) He

challenges the amendments both on their face and as applied to him. For the

reasons set forth below, we reject both of his challenges.


1

All further statutory references are to the Penal Code unless otherwise

noted.


I. FACTS

A. The Underlying Crimes

In 1983, Vicks was convicted of numerous violent felonies and sentenced

to life in prison with the possibility of parole, consecutive to a determinate term of

37 years eight months.2 According to the appellate opinion affirming the

judgment, which the Board of Parole Hearings (Board) referenced during the

parole hearing, Vicks and his accomplice engaged in two crime sprees in April

1983. They confronted their first victim as she was putting groceries into her car

in a parking lot. Vicks drove the victim‟s car, with the victim inside, to a second

parking lot where he blocked a parked car. Vicks‟s accomplice put a gun to the

side of one of two women who were entering the parked car and took both

women‟s purses. The accomplice then drove the first victim‟s car to a third

parking lot and blocked another parked car. Vicks got out, pointed a gun at the

driver of the parked car, and demanded his wallet and money. Vicks then

approached the passengers, a woman and her six-year-old son, put a gun to the

woman‟s ribs, and ordered her into the first victim‟s car. The woman pushed her

son into her own car and got into the first victim‟s car. After driving for a few

minutes, the accomplice stopped the car. The two women, whose heads were


2

Petitioner was convicted of one count of kidnapping for purposes of

robbery while personally using a firearm (§§ 209, subd. (b), 12022.5; six counts of
robbery while armed with a firearm (§§ 211, 12022, subd. (a)); two counts of rape
in concert while armed with a firearm (§§ 261, subd. (a)(2), 264.1, 12022.3,
subd. (b); two counts of oral copulation in concert while armed with a firearm
(§§ 288a, subd. (d), 12022.3, subd. (b)); one count of kidnapping while personally
using a firearm (§§ 207, 12022.5); one count of attempted robbery while
personally using a firearm (§§ 211, 664, 12022.5); one count of robbery while
personally using a firearm (§§ 211, 12022.5); two counts of kidnapping while
armed with a firearm (§§ 207, 12022, subd. (a)).

2

covered, were led into a canyon area, where they were separated. Vicks, his

accomplice, and a third man were present. The women were repeatedly sexually

assaulted. The three men then ran away.

Less than two weeks later, Vicks and his accomplice forced two women at

gunpoint into a car belonging to one of the women, then blocked a third woman‟s

car and stole the third woman‟s purse. After they drove away, the accomplice

placed the hand of one of the women on his erect penis. The two women then

fought their way out of the car, hitting the accomplice in the head with his gun

during the fight, and leaving their purses behind. That evening, Vicks and his

accomplice went to Vicks‟s cousin‟s apartment. The cousin saw the two looking

through women‟s purses and removing money from them. The accomplice, whose

head was bleeding, said that he and Vicks “had just gotten into a crazy incident.”

The accomplice told Vicks‟s cousin that he had asked one of the women to orally

copulate him, and described a fight that ended with the women‟s escape. The

cousin drove Vicks and his accomplice onto a freeway where Vicks threw the

purses out of the car. When the purses were returned by the police to the victims,

one purse contained a paper with the name of Vicks‟s cousin on it. The cousin

informed the police that Vicks and the accomplice brought the purses to the

cousin‟s house after the women had jumped out of the car nearby.

B. Parole Hearing

Vicks began serving his life term on March 13, 2003. His minimum

eligible parole date was March 14, 2010, and his initial parole suitability hearing

was held on February 3, 2009. Applying section 3041.5 as amended by Marsy‟s

Law in 2008, the Board found him unsuitable for parole, and further concluded

that he should be denied another parole hearing for five years.

3

In announcing the Board‟s decision, the presiding commissioner noted that

Vicks‟s offenses involved “a series of horrific crimes that happened over a very

short period. Your position is that it wasn‟t you and you did not participate in that,

other than finding several of the victim‟s purses and failing to turn them in.”3 The

commissioner noted that the Board accepts the facts found in the criminal

prosecution, and observed that “[t]hese are the kinds of crimes that

psychologically last a lifetime . . . .” He added that “the offense was carried out

dispassionately and certainly there was a level of calculation to the execution . . . .

The offense was carried out in a manner that demonstrates disregard for human

suffering and the motive was apparently self-gratification and financial

gratification as well.” The commissioner stated that Vicks‟s prior criminal history

“did not weigh heavily into our decision, because it was frankly a long time ago

and most of the issues were nonviolent . . . .” He also stated that “you‟ve done a

marvelous job on yourself,” and “[y]ou have remained in a very good status with

regard to your disciplines . . . .” He explained that “[o]ur biggest concern with

you, sir, is your level of insight, it‟s difficult for us to measure that when you‟ve

been convicted and it is a horrific crime in nature and you find yourself not

coming to grips in any way, shape or form with that, other than you found yourself

in possession of purses.” He added that individuals sometimes have difficulty


3

In a statement petitioner prepared for the hearing, he stated that he “made a

very irresponsible and life altering decision when I came in possession of purses
belonging to [three victims],” but he “reiterate[d] that I am totally and
unequivocally innocent of the crimes for which I was found guilty . . . .” (See
§ 5011, subd. (b) [“The Board . . . shall not require, when setting parole dates, an
admission of guilt to any crime for which an inmate was committed”]; Cal. Code
Regs., tit. 15, § 2281, subd. (b) [among the information considered in determining
suitability for parole is “past and present attitude toward the crime”].)

4

coming to grips with the kinds of crimes Vicks committed, and that “[i]f that‟s

what your struggle is, we wish you well, sir.” The commissioner also stated that

Vicks needed to reduce some of the ratings in his psychological evaluation.4

Finally, with respect to the date of Vicks‟s next parole suitability hearing, the

presiding commissioner stated that the commissioners “discussed at length what

we thought would be appropriate and at this point we have reached a conclusion

that a five-year denial is the appropriate denial . . . .”

Vicks challenged the decision by filing a petition for writ of habeas corpus

in San Diego County Superior Court, which the superior court denied on

December 10, 2009.

Vicks then filed a petition for writ of habeas corpus in the Court of Appeal.

On May 11, 2011, following issuance of an order to show cause and briefing, the

Court of Appeal, with one justice dissenting, filed an opinion vacating the Board‟s

order to the extent the order deferred Vicks‟s subsequent parole suitability hearing

for five years. The majority concluded that the changes enacted by Marsy‟s Law

to the scheme for setting parole hearings violate ex post facto principles as applied

to prisoners who committed their crimes prior to the enactment of Marsy‟s Law.

It directed the Board to issue a new order scheduling the hearing in accordance

with the provisions of section 3041.5 in effect in 1983, which generally entitled a

prisoner to an annual parole hearing but allowed deferrals of no more than three

years in specified circumstances.


4

The psychological evaluation prepared for the parole hearing concluded

that “[t]he combined weight of the various points of data indicates that the inmate
poses a Medium-Low risk for Sexual Recidivism and a Low to Moderate risk of
violence for general recidivism in the community.”

5

We granted review to address whether section 3041.5, as amended by

Marsy‟s Law, may be applied to life inmates convicted before the effective date of

the amendments without violating the ex post facto clauses of the state and federal

Constitutions.

II. DISCUSSION

A. Marsy’s Law

1. Overview of Marsy’s Law

Marsy‟s Law, which was enacted by the voters in November 2008, was

named after a young woman who was murdered in 1983. (Prop. 9, reprinted at

Historical Notes, 1E West‟s Ann. Cal. Const. (2012) foll. art. I, § 28, p. 9.)

According to the measure‟s uncodified findings and declarations (Prop. 9,

Findings), following the arrest of Marsy‟s murderer, “Marsy‟s mother was

shocked to meet him at a local supermarket” after he was released on bail without

Marcy‟s family‟s receiving notice or opportunity to express opposition to his

release. (Id., ¶ 7.) “Several years after his conviction and sentence to „life in

prison,‟ the parole hearings for his release began. In the first parole hearing,

Marsy‟s mother suffered a heart attack fighting against his release. Since then

Marsy‟s family has endured the trauma of frequent parole hearings and constant

anxiety that Marsy‟s killer would be released.” (Id., ¶ 8.) The law was “written

on behalf of [Marsy‟s family], who were often treated as though they had no

rights, and inspired by hundreds of thousands of victims of crime who have

experienced the additional pain and frustration of a criminal justice system that too

often fails to afford victims even the most basic of rights.” (Id., ¶ 2.)

The measure‟s findings express a number of grievances, including the

failure to build adequate prisons and jails, the early release of inmates “after

serving as little as 10 percent of the sentences imposed” (Prop. 9, Findings, ¶ 4,

6

West‟s Ann. Cal. Const., supra, at p. 9), the pain caused victims‟ families by

frequent parole hearings, the failure of the criminal justice system to give victims

“notice of important hearings in the prosecutions of their criminal wrongdoers,

failure to provide them with an opportunity to speak and participate, failure to

impose actual and just punishment upon their wrongdoers, and failure to extend to

them some measure of finality to the trauma inflicted upon them by their

wrongdoers.” (Id., ¶ 9; see id., ¶ 5.) Among the measure‟s stated purposes are to

“[p]rovide victims with rights to justice and due process” (Prop. 9 , § 3, ¶ 1

(Prop. 9, Purposes)), and to “eliminat[e] parole hearings in which there is no

likelihood a murderer will be paroled . . . .” (Id., ¶ 2.) According to the measure,

“ „Helter Skelter‟ inmates Bruce Davis and Leslie Van Houghton, two followers of

Charles Manson convicted of multiple brutal murders, have had 38 parole hearings

during the past 30 years.” (Prop. 9, Findings, ¶ 6.)

Marsy‟s Law includes both constitutional and statutory amendments. The

constitutional provisions recognize various rights of victims of crime and of the

people of California, including the right to expect that crimes will be thoroughly

investigated, and that criminals will be tried in a timely manner and “sufficiently

punished in both the manner and the length of the sentences imposed.” (Cal.

Const., art. I, § 28, subd. (a)(5); see id., subd. (a)(4).) The provisions also state

that “[l]engthy appeals and other post-judgment proceedings that challenge

criminal convictions, frequent and difficult parole hearings that threaten to release

criminal offenders, and the ongoing threat that the sentences of criminal

wrongdoers will be reduced, prolong the suffering of crime victims for many years

after the crimes themselves have been perpetrated.” (Id., subd. (a)(6).) The

provisions recognize a right of crime victims to notice of and to be present at “all

public proceedings . . . at which the defendant and the prosecutor are entitled to be

present and of all parole or other post-conviction release proceedings . . . .” (Id.,

7

subd. (b)(7).) They afford a right “[t]o be heard . . . at any proceeding . . .

involving a post-arrest release decision, plea, sentencing, post-conviction release

decision, or any proceeding in which a right of the victim is at issue.” (Id.,

subd. (b)(8).) They also entitle victims to provide and receive information related

to sentencing of a defendant. (Id., subd. (b)(10), (11).) With respect to parole, the

provisions afford victims the right “[t]o be informed of all parole procedures, to

participate in the parole process, to provide information to the parole authority to

be considered before the parole of the offender, and to be notified . . . of the parole

or other release of the offender.” (Id., subd. (b)(15.)

Most of the law‟s statutory amendments relate to parole. As described

more fully below, Marsy‟s Law amended section 3041.5 to increase the time

between parole hearings, absent a finding by the Board that an earlier hearing is

appropriate. It also amended section 3042 to expand the rights of victims to

present information to the Board, and to require the Board to consider the “entire

and uninterrupted” statements of victims, their families and their representatives.

(§ 3043, subd. (d).) It added section 3044, which specifies that in the event a

parolee‟s parole is revoked, the parolee shall not be entitled to any procedural

rights other than those specified in that section. Finally, it added section 679.026,

which requires law enforcement agencies to take specified steps to inform crime

victims of their rights under Marsy‟s Law.

8

2. Amendments to section 3041.5 affecting the time within which

Vicks’s parole hearing must be held

In 1983, at the time Vicks committed the crimes for which he is

incarcerated, section 3041.5 required the Board of Prison Terms5 to provide

annual parole hearings following the initial hearing, except that a hearing could be

deferred for (1) up to two years “if the board finds that it is not reasonable to

expect that parole would be granted at a hearing during the following year and

states the bases for the finding,” or (2) up to three years “if the prisoner has been

convicted . . . of more than one offense which involves the taking of a life, and the

board finds that it is not reasonable to expect that parole would be granted at a

hearing during the following years and states the bases for the finding.” (§ 3041.5,

subd. (b)(2), as amended by Stats. 1982, ch. 1435, § 1, p. 5474.) Thus, at the time

Vicks committed his crimes, he was entitled to an annual parole hearing unless the

Board found that it was not reasonable to expect that he would be granted parole

in a year, in which case his parole hearing could be deferred for up to two years.

As amended in 2008 by Marsy‟s Law, section 3041.5 establishes longer

deferral periods following the denial of parole than did the statute in 1983.6 The


5

The Board of Prison Terms was abolished and replaced by the Board of

Parole Hearings, effective July 1, 2005. (§ 5075; Gov. Code, § 12838.4; we use
the term “Board” to refer to both entities.)

6

In 1990, section 3041.5 was amended to authorize a deferral of three years

“if the prisoner has been convicted . . . of more than one offense which involves
the taking of a life,” and five years “if the prisoner has been convicted . . . of more
than two murders . . . .” (§ 3041.5, former subd. (b)(2)(B), (C); Stats. 1990,
ch. 1053, § 1, pp. 4380-4381.) To defer for three or five years, the Board was
required to find that it was not reasonable to expect that parole would be granted at
a hearing in the interim period, and to state the bases for the finding in writing.
Also, in the event of a five-year deferral, “the prisoner‟s central file shall be
reviewed by a deputy commissioner within three years at which time the deputy
commissioner may direct that a hearing be held within one year.” (§ 3041.5,

(Footnote continued on next page.)

9

deferral periods range from a default period of 15 years to a minimum of three

years. More specifically, the next hearing is to occur in 15 years, “unless the

board finds by clear and convincing evidence that the criteria relevant to the

setting of parole release dates . . . are such that consideration of the public and

victim‟s safety does not require a more lengthy period of incarceration for the

prisoner than 10 additional years.” (§ 3041.5, subd. (b)(3)(A).) If the Board

makes such a finding, the next hearing shall be in 10 years, unless the Board finds,

again by clear and convincing evidence and considering the same criteria and

considerations, that a period of more than seven years is not required. (§ 3041.5,

subd. (b)(3)(B).) In that event, the next hearing shall be in three, five, or seven

years. (§ 3041.5, subd. (b)(3)(C).) The Board is required to “consider[] the views

and interests of the victim” before selecting the appropriate deferral period.

(§ 3041.5, subd. (b)(3).)

Although the amendments mandate longer deferral periods after the Board

declines to set a parole date, they also give the Board discretion to advance the

date of the next parole suitability hearing “when a change in circumstances or new

information establishes a reasonable likelihood that consideration of the public and

victim‟s safety does not require the additional period of incarceration of the

prisoner provided” by the statutory deferral periods. (§ 3041.5, subd. (b)(4).) In

addition, “[a]n inmate may request that the board exercise its discretion to advance


(Footnote continued from previous page.)

former subd. (b)(2)(C); Stats. 1990, ch. 1053, § 1, p. 4381.) In 1994, the provision
concerning five-year deferrals was amended to apply to any prisoner convicted of
murder. In addition, the statute was amended to require the Board to “adopt
procedures that relate to the criteria for setting the hearing between two and five
years.” (§ 3041.5, former subd. (b)(2)(B); Stats. 1994, ch. 560, § 1, pp. 2833-
2834.)

10

a hearing . . . to an earlier date, by submitting a written request to the board, with

notice, upon request, and a copy to the victim which shall set forth the change in

circumstances or new information that establishes a reasonable likelihood that

consideration of the public safety does not require the additional period of

incarceration of the inmate.” (§ 3041.5, subd. (d)(1).) The Board may summarily

deny a petition to advance if the petition does not comply with these requirements,

or if, in the judgment of the Board, the change in circumstances or new

information is insufficient to justify the Board‟s exercising its discretion under

subdivision (b)(4). (§ 3041.5, subd. (d)(2).) Section 3041.5 does not expressly

address what other actions the Board may take in response to a written request, but

if the petition sets forth a “change in circumstances or new information that

establishes a reasonable likelihood that consideration of the public safety does not

require the additional period of incarceration of the inmate,” the Board has

authority under subdivision (b)(4) to hold a parole suitability hearing at an earlier

date than was set when parole was previously denied.

Section 3041.5 provides that “[a]n inmate may make only one written

request [to advance a hearing] during each three-year period.” (§ 3041.5,

subd. (d)(3).) The three-year period is calculated from one of two start dates:

“Following either [1] a summary denial of [an inmate‟s] request . . . or [2] the

decision of the board after a hearing described in subdivision (a) to not set a parole

date, the inmate shall not be entitled to submit another request for a hearing

pursuant to subdivision (a) until a three-year period of time has elapsed from the

summary denial or decision of the board.” (§ 3041.5, subd. (d)(3).)

The Court of Appeal interpreted this timing provision “to set a three-year

„blackout‟ period for an inmate to trigger the advanced hearings safeguard,

because that section states that „[f]ollowing either a summary denial of a request

made pursuant to paragraph [(d)(1)], or the decision of the board after a hearing

11

described in [section 3041.5, subdivision (a)] to not set a parole date, the inmate

shall not be entitled to submit another request for a hearing pursuant to [section

3041.5, subdivision (a)] until a three-year period of time has elapsed from the

summary denial or decision of the board.‟ (§ 3041.5, subd. (d)(3), italics added.)

Because a regularly scheduled parole suitability hearing results (as it did here) in a

„decision of the board after a hearing described in [section 3041.5, subdivision (a)]

to not set a parole date,‟ the statute appears to impose a three-year blackout period

for an inmate to petition for an advanced hearing when parole is denied following

a regularly scheduled suitability hearing.”

We disagree with this interpretation, and conclude that section 3041.5,

subdivision (d) does not prohibit an inmate from making a written request to

advance a parole suitability hearing within three years after a regularly scheduled

hearing at which parole is denied.7 As noted above, if a written request complies

with the statutory requirements and sets forth a “change in circumstances or new

information that establishes a reasonable likelihood that consideration of the

public safety does not require the additional period of incarceration of the inmate”

(§ 3041.5, subd. (d)(1)), the Board presumably will hold a parole suitability

hearing at an earlier date than was set when parole was previously denied. Thus,

there are two possible outcomes of a written request — denial of the request or an

earlier parole hearing. If the request is denied, the inmate may not make another

request for three years. Similarly, if the Board holds an earlier parole suitability


7

Vicks relies in part on the initiative measure‟s Purposes, which identify a

purpose “to provide that a convicted murderer can receive a parole hearing no
more frequently than every three years.” (Prop. 9, Purposes, ¶ 2, West‟s Ann. Cal.
Const., supra, at p. 9.) This statement is a general description of the measure, and
does not prevail over the substantive terms of section 3041.5.

12

hearing — “a hearing described in subdivision (a)” — rather than denying the

request, and it declines to set a parole date after the hearing, the inmate may not

make another request for three years after this more recent decision of the Board.

(§ 3041.5, subd. (d)(3).) In light of the reference to “another” request, it appears

that subdivision (d)(3) calculates the three-year period from the date on which a

request for an earlier hearing is finally resolved, i.e., from (1) the date of the

summary denial or (2) the date of the advanced hearing at which the setting of a

parole date is again denied. Therefore, a prisoner may make his or her first

request for a new hearing at any time following the denial of parole at a regularly

scheduled hearing, and then may make another request every three years.8


8

The Board has also interpreted this timing provision to allow the first

request to be made at any time. In its Administrative Directive No. 09/01, the
Board states that the provision “allows the inmate to make one request for an
advanced hearing date during each three year period, regardless of the denial
length. If the request is granted and the inmate receives a denial at the advanced
hearing, or if the request is summarily denied, the inmate cannot submit another
request for an advanced hearing until a three-year period of time has elapsed from
either the date of the summary denial or the advanced hearing[.]”
(<http://www.cdcr.ca.gov/BOPH/docs/AD%2009-01.pdf.> [as of Mar. 4, 2013].)
Similarly, the form the Board has made available to prisoners to petition to
advance a hearing date states: “You can make one initial request for an advanced
hearing date following a denial of parole at any time, but from then on you can
only submit requests every three years.” (Bd. Parole Hearings, Petition to
Advance Hearing Date, p. 1 <http://www.cdcr.ca.gov/BOPH/docs/BPH_1045(A)-
Petition_to_Advance_Hearing_Date.pdf. > [as of Mar. 4, 2013] (Petition); see
Garner v. Jones (2000) 529 U.S. 244, 256 (Garner) [“Absent a demonstration to
the contrary, we presume the Board follows its statutory commands and internal
policies in fulfilling its obligations”]; Good Samaritan Hospital v. Shalala (1993)
508 U.S. 402, 414 [“Confronted with an ambiguous statutory provision, we
generally will defer to a permissible interpretation espoused by the agency
entrusted with its implementation”]; Yamaha Corp of America v. State Bd. of
Equalization
(1998) 19 Cal.4th 1, 7 [“An agency interpretation of the meaning and
legal effect of a statute is entitled to consideration and respect by the courts”].)

(Footnote continued on next page.)

13

B. Prohibition on ex post facto laws

The United States Constitution states: “No state shall . . . pass any . . . ex

post facto law . . . .” (U.S. Const., art. I, § 10, cl. 1.) The California Constitution

also provides that an “ex post facto law . . . may not be passed.” (Cal. Const.,

art. I, § 9.) Our California provision provides the same protections and is analyzed

in the same manner as the federal provision. (In re Rosenkrantz (2002) 29 Cal.4th

616, 640, fn. 6 (Rosenkrantz).) Therefore, we may look to federal law in

analyzing Vicks‟s challenge under both the federal and state provisions concerning

ex post facto laws.

The purpose of the ex post facto doctrine is to ensure fair notice of the

conduct that constitutes a crime and of the punishment that may be imposed for a

crime. (Rosenkrantz, supra, 29 Cal.4th at p. 638.)9 Therefore, it is “aimed at laws


(Footnote continued from previous page.)



Based on our interpretation of section 3041.5, subdivision (d)(3) as

calculating the three-year period from the date of the denial of the request to
advance or the denial of parole at an advanced hearing, and consistent with the
Board‟s statements that (1) a prisoner must wait “until a three-year period of time
has elapsed from either the date of the summary denial or the advanced hearing”
and (2) he or she may subsequently submit requests every three years, a prisoner
may file another request three years later, regardless of whether a regularly
scheduled hearing has occurred in the meantime. For example, if a prisoner whose
next hearing is deferred for three years unsuccessfully petitions after two years to
advance the hearing, the prisoner will have the regularly scheduled hearing a year
later, and, if parole is denied, will be entitled to petition to advance the next
hearing two years later (three years after the summary denial of the earlier
petition).

9

The purpose and scope of the ex post facto clause are described more fully

in our opinion in Rosenkrantz, supra, 29 Cal.4th at pages 638 through 640, which
found no violation of ex post facto principles where the Governor reversed the
Board‟s grant of parole to a prisoner who had committed his crime before the
enactment of the Governor‟s authority to reverse the Board‟s decision. (Id. at
pp. 651-652.)

14

that „retroactively alter the definition of crimes or increase the punishment for

criminal acts.‟ [Citations.]” (California Dept. of Corrections v. Morales (1995)
514 U.S. 499, 504 (Morales).) “Retroactive changes in laws governing parole of

prisoners, in some instances, may be violative of [the prohibition on retroactive

increases in punishment]. [Citations.] Whether retroactive application of a

particular change in parole law respects the prohibition on ex post facto legislation

is often a question of particular difficulty when the discretion vested in a parole

board is taken into account.” (Garner, supra, 529 U.S. at p. 250.)

Two United States Supreme Court opinions are particularly pertinent to our

inquiry — Morales, which considered California‟s 1981 increase in the potential

deferral period between parole suitability hearings, and Garner, which reviewed

Georgia‟s increase in its potential deferral period. In each case, the court

identified the controlling inquiry as “whether retroactive application of the change

. . . created „a sufficient risk of increasing the measure of punishment attached to

the covered crimes.‟ ” (Garner, supra, 529 U.S. at p. 250, quoting Morales,

supra, 514 U.S. at p. 509.) As discussed below, however, the high court

undertook somewhat different approaches in the two cases in evaluating whether

the change created a sufficient risk of increasing a prisoner‟s period of

incarceration. The analysis in Morales focused on details of California‟s 1981

amendment demonstrating that the change was unlikely to result in longer

incarceration. In contrast, Garner focused on the broad discretion held by

Georgia‟s parole board, a power that includes the authority “to change and adapt

based on experience.” (Garner, supra, 529 U.S. at p. 253.)

We begin with Morales, supra, 514 U.S. 499. Prior to the 1981 amendment

considered in Morales, a prisoner who was denied parole at his or her first parole

suitability hearing was entitled to a subsequent suitability hearing annually. The

1981 amendment “authorized the Board to defer subsequent suitability hearings

15

for up to three years if the prisoner has been convicted of „more than one offense

which involves the taking of a life‟ and if the Board „finds that it is not reasonable

to expect that parole would be granted at a hearing during the following years and

states the bases for the finding.‟ [Citation.]” (Id. at p. 503.)

The high court began its analysis by rejecting the prisoner‟s reliance on

three cases in which a violation of the ex post facto clause was found: Lindsey v.

Washington (1937) 301 U.S. 397, which addressed a law that altered the sentence

for the defendant‟s crime from “not more than fifteen years” to a sentence of

15 years; Miller v. Florida (1987) 482 U.S. 423, which addressed an increase in

the presumptive sentencing range; and Weaver v. Graham (1981) 450 U.S. 24,

which addressed a reduction in the credit prisoners earned toward their time served

through good behavior in prison. “In contrast to the laws at issue in Lindsey,

Weaver, and Miller (which had the purpose and effect of enhancing the range of

available prison terms, [citation]), the evident focus of the California amendment

was merely „ “to relieve the [Board] from the costly and time-consuming

responsibility of scheduling parole hearings” ‟ for prisoners who have no

reasonable chance of being released. [Citation.] Rather than changing the

sentencing range applicable to covered crimes, the 1981 amendment simply „alters

the method to be followed‟ in fixing a parole release date under identical

substantive standards. [Citations.]” (Morales, supra, 514 U.S. at pp. 507-508.)

The high court also rejected the view that “any legislative change that has

any conceivable risk of affecting a prisoner‟s punishment” should be held to

violate the ex post facto clause. (Morales, supra, 514 U.S. at p. 508.) “Under

respondent‟s approach, the judiciary would be charged under the Ex Post Facto

Clause with the micromanagement of an endless array of legislative adjustments to

parole and sentencing procedures . . . .” (Ibid.) Instead, “the question of what

legislative adjustments „will be held to be of sufficient moment to transgress the

16

constitutional prohibition‟ must be a matter of „degree.‟ [Citation.] In evaluating

the constitutionality [of a change], we must determine whether it produces a

sufficient risk of increasing the measure of punishment attached to the covered

crimes.” (Id. at p. 509.)

The court concluded the Board‟s new authority to defer hearings created

only a speculative possibility of increasing a prisoner‟s punishment. “First, the

amendment applies only to a class of prisoners for whom the likelihood of release

on parole is quite remote” (Morales, supra, 514 U.S. at p. 510), prisoners who had

been convicted of “more than one offense which involves the taking of a life.”

(§ 3041.5, former subd. (b)(2); Stats. 1981, ch. 1111, § 4, p. 4339.) In support of

its conclusion, it cited statistics from our opinion in In re Jackson (1985) 39

Cal.3d 464, 473, that “90% of all prisoners are found unsuitable for parole at the

initial hearing, while 85% are found unsuitable at the second and subsequent

hearings. [Citation.] In light of these numbers, the amendment „was seen as a

means “to relieve the [Board] from the costly and time-consuming responsibility

of scheduling parole hearings for prisoners who have no chance of being

released.” ‟ [Citation.]”10 (Morales, supra, 514 U.S. at p. 511.)


10

In In re Jackson, supra, 39 Cal.3d 464, we addressed a 1982 amendment to

section 3041.5 that authorized the Board in all cases, not only those involving the
taking of a life, to defer the next parole hearing for up to two years if the Board
found it was not reasonable to expect that parole would be granted in a year.
(Stats. 1982, ch. 1435, § 1, p. 5474.) We held that the amendment was “a
procedural change outside the purview of the ex post facto clause” (Jackson,
supra
, 39 Cal.3d at p. 472) because it did not alter the criteria related to parole
suitability or release on parole, and it “did not entirely deprive an inmate of the
right to a parole suitability hearing.” (Id. at p. 473.) We acknowledged that the
change in the frequency of hearings “did eliminate the possibility that a parole
date would be set within the period of the postponement. However, the likelihood
that the postponement actually delays release on parole until after the next parole
hearing appears slight.” (Ibid.) In support of this conclusion, we cited legislative

(Footnote continued on next page.)

17

Second, the amendment was carefully tailored to the purpose of reducing

the number of futile hearings. The timing of the initial parole suitability hearing

remained the same; only after the Board had concluded at a parole hearing that (1)

the prisoner was not suitable for parole and (2) it was not reasonable to expect that

the prisoner would be suitable for parole in a year would the timing of a prisoner‟s

hearings be affected. In addition, the Board was required to conduct a full hearing

and state the bases of its finding, and there appeared to the high court to be an

opportunity for an administrative appeal. “Moreover, the Board retains the

authority to tailor the frequency of subsequent suitability hearings to the particular

circumstances of the individual prisoner.” (Morales, supra, 514 U.S. at p. 511.)

The court concluded: “In light of the particularized findings required under the


(Footnote continued from previous page.)

committee analyses that set forth statistics, noted in Morales, supra, 514 U.S. 499,
concerning the percentage of prisoners found suitable for parole. We explained
that “[i]n view of these statistics, the 1982 amendment was seen as a means „to
relieve the [Board] from the costly and time-consuming responsibility of
scheduling parole hearings for prisoners who have no chance of being released.‟
[Citation.]” (Jackson, supra, 39 Cal.3d at p. 473.) We also concluded, based on
petitions we had received from prisoners who had been found suitable for parole,
that “the periods between the date of the suitability finding and the proposed
release date vary from three and one-half to nineteen years” (id. at p. 474),
because a prisoner may be found suitable for parole before he or she has served
the minimum period required by law. (See post, pp. 29-31.) This period between
the finding of suitability and release “reinforce[d] the conclusion that the „practical
effect‟ of a hearing postponement is not significant.” (Ibid.)


Jackson‟s analysis — whether the change is “procedural” — is no longer

dispositive of the issue of whether a change violates ex post facto principles. (See
Collins v. Youngblood (1990) 497 U.S. 37, 46 [“by simply labeling a law
„procedural,‟ a legislature does not thereby immunize it from scrutiny under the Ex
Post Facto
clause”]; Rosenkrantz, supra, 29 Cal.4th at p. 651, fn. 9 [“Collins did
not suggest that the circumstance that a change is procedural rather than
substantive has no bearing on the ex post facto question”].)

18

amendment and the broad discretion given to the Board, the narrow class of

prisoners covered by the amendment cannot reasonably expect that their prospects

for early release on parole would be enhanced by the opportunity of annual

hearings.” (Id. at p. 512.)

In response to the contention that there was a possibility a prisoner would

have a change in circumstances that would render him or her suitable for parole

earlier than the scheduled hearing, the court stated that Morales had failed “to

provide any support for his speculation that the multiple murderers and other

prisoners subject to the amendment might experience an unanticipated change that

is sufficiently monumental to alter their suitability for release on parole.”

(Morales, supra, 514 U.S. at p. 512.) Assuming a prisoner might experience such

a change, the court found no basis in the record “for concluding that [such] a

prisoner . . . would be precluded from seeking an expedited hearing from the

Board.” (Ibid.) On the contrary, this court had suggested in In re Jackson, supra,

39 Cal.3d at page 475, that the Board had discretion to advance a hearing, and the

brief of the California Department of Corrections in Morales informed the high

court that “the Board‟s „practice‟ is to „review for merit any communication from

an inmate asking for an earlier suitability hearing.‟ ” (Morales, supra, at p. 512.)

The court concluded that “[a]n expedited hearing by the Board . . . would remove

any possibility of harm even under the hypothetical circumstances suggested by

[Morales].” (Id. at p. 513.)

Finally, the court concluded that “[e]ven if a prisoner were denied an

expedited hearing, there is no reason to think that such postponement would

extend any prisoner‟s actual period of confinement.” (Morales, supra, 514 U.S. at

p. 513.) In support of its conclusion, the court cited our explanation in In re

Jackson, supra, 39 Cal.3d at page 474, that a finding of suitability for parole rarely

leads to a prisoner‟s immediate release, and may be followed by years of

19

incarceration until the prisoner serves the minimum period of incarceration

required by law. If a prisoner becomes suitable for parole before the next

regularly scheduled hearing, “the Board retains the discretion to expedite the

release date of such a prisoner. Thus, a prisoner who could show that he was

„suitable‟ for parole two years prior to such a finding by the Board might well be

entitled to secure a release date that reflects that fact. Such a prisoner‟s ultimate

date of release would be entirely unaffected by the change in the timing of

suitability hearings.” (Morales, supra, at p. 513.)

The high court next addressed the validity of an increase in the period

between parole hearings in Garner, supra, 529 U.S. 244. Garner involved a

prisoner‟s challenge to a change in Georgia‟s parole law that allowed that state‟s

parole board to increase the period of time between parole hearings. At the time

the prisoner committed his most recent offense, he was entitled to a parole hearing

every three years after his initial denial of parole. Thereafter, the law was changed

to require a hearing “ „at least every eight years‟ ” after the initial denial. (Id. at

p. 247.)

The court began its analysis by noting several principles it had recognized

in Morales, supra, 514 U.S. 499. “[N]ot every retroactive procedural change

creating a risk of affecting an inmate‟s terms or conditions of confinement is

prohibited. [Citation.] The question is „a matter of “degree.” ‟ [Citation.] The

controlling inquiry, we determined, was whether retroactive application of the

change in California law created „a sufficient risk of increasing the measure of

punishment attached to the covered crimes.‟ [Citation.]” (Garner, supra, 529

U.S. at p. 250.) The court acknowledged the numerous factors it had identified in

support of its conclusion in Morales that California‟s decrease in the frequency of

parole hearings did not violate the ex post facto clause, but it rejected the

prisoner‟s focus on the differences between Georgia‟s amended parole law and the

20

California law reviewed in Morales, such as Georgia‟s longer potential deferral

and the application of Georgia‟s amendment to all prisoners serving life sentences.

“These differences are not dispositive. The question is whether the amended

Georgia Rule creates a significant risk of prolonging respondent‟s incarceration.”

(Garner, supra, 529 U.S. at p. 251.) The court reiterated that “the Ex Post Facto

Clause should not be employed for „the micromanagement of an endless array of

legislative adjustments to parole and sentencing procedures.‟ [Citation.] These

remain important concerns. The States must have due flexibility in formulating

parole procedures and addressing problems associated with confinement and

release.” (Id. at p. 252.)

The court observed that “[t]he case turns on the operation of the

amendment . . . within the whole context of Georgia‟s parole system.” (Garner,

supra, 529 U.S. at p. 252.) It then reviewed Georgia‟s parole suitability criteria,

which “illustrate[d] the broad discretion the Parole Board possesses in determining

whether an inmate should receive early release.” (Id. at p. 253.) Georgia law

required the parole board to consider a prisoner‟s good conduct, reading ability,

and efficient performance of his or her duties. It provided that “ „[n]o inmate shall

be placed on parole until and unless the board shall find that there is a reasonable

probability that . . . he will live and conduct himself as a respectable and law-

abiding person and that his release will be compatible with his own welfare and

the welfare of society.‟ ” (Id. at p. 252.) The law also prohibited parole unless the

board was satisfied that the prisoner would have employment or not otherwise

become a public burden. “Only upon a showing that the Board engaged in a

„gross abuse of discretion‟ [could] a prisoner challenge a parole denial in the

Georgia courts.” (Id. at p. 253.)

The court acknowledged that “[t]he presence of discretion does not displace

the protections of the Ex Post Facto Clause,” but added that, to the extent notice of

21

the potential penalty prior to the commission of an offense is an aspect of ex post

facto doctrine, “we can say with some assurance that where parole is concerned

discretion, by its very definition, is subject to changes in the manner in which it is

informed and then exercised. The idea of discretion is that it has the capacity, and

the obligation, to change and adapt based on experience. New insights into the

accuracy of predictions about the offense and the risk of recidivism consequent

upon the offender‟s release, along with a complex of other factors, will inform

parole decisions. [Citation.] The essence of respondent‟s case, as we see it, is not

that discretion has been changed in its exercise but that, in the period between

parole reviews, it will not be exercised at all.” (Garner, supra, 529 U.S. at

pp. 253-254.)

With respect to the concern that discretion would not be exercised during

the longer period between hearings, the court noted that “[t]he law changing the

frequency of parole reviews is qualified in two important respects. First, the law

vests the Parole Board with discretion as to how often to set an inmate‟s date for

reconsideration, with eight years for the maximum. [Citation.] Second, the

Board‟s policies permit „expedited parole reviews in the event of a change in their

circumstance or where the Board receives new information that would warrant a

sooner review.‟ ” (Garner, supra, 529 U.S. at p. 254.) The court concluded that

“[t]hese qualifications permit a more careful and accurate exercise of the

discretion the Board has had from the outset. Rather than being required to review

cases pro forma, the Board may set reconsideration dates according to the

likelihood that a review will result in meaningful considerations as to whether an

inmate is suitable for release. The Board‟s stated policy is to provide for

reconsideration at 8-year intervals „when, in the Board‟s determination, it is not

reasonable to expect that parole would be granted during the intervening years.‟

[Citation.] The policy enables the Board to put its resources to better use, to

22

ensure that those prisoners who should receive parole come to its attention. By

concentrating its efforts on those cases identified as having a good possibility of

early release, the Board‟s Rules might result in the release of some prisoners

earlier than would have been the case otherwise.” (Garner, supra, 529 U.S. at

p. 254.)

The court rejected the lower court‟s view that it “ „seem[ed] certain‟ ” some

prisoners would remain incarcerated for a longer period than under the previous

law. “The standard announced in Morales requires a more rigorous analysis of the

level of risk created by the change in law. [Citation.] When the rule does not by

its own terms show a significant risk, the respondent must demonstrate, by

evidence drawn from the rule‟s practical implementation by the agency charged

with exercising discretion, that its retroactive application will result in a longer

period of incarceration than under the earlier rule.” (Garner, supra, 529 U.S. at

p. 255.) The evidence in the record in Garner did not contain adequate

information to determine whether the change in the law had lengthened the

prisoner‟s time of incarceration.

The court also faulted the lower court‟s failure to consider the parole

board‟s internal policy statement. “It is often the case that an agency‟s policies

and practices will indicate the manner in which it is exercising its discretion.”

(Garner, supra, 529 U.S. at p. 256.) It noted that “[i]n Morales, we relied upon

the State‟s representation that its parole board had a practice of granting inmates‟

requests for early review. [Citation.] The policy statement here, by contrast, is a

formal, published statement as to how the Board intends to enforce its Rule. It

follows a fortiori from Morales that the Court of Appeals should not have

disregarded the policy. Absent any demonstration to the contrary from

respondent, we respect the Board‟s representation that inmates, upon making a

23

showing of a „change in their circumstance[s]‟ or upon the Board‟s receipt of „new

information,‟ may request expedited consideration.” (Id. at pp. 256-257.)

Finally, the court noted that the prisoner claimed he had not been allowed

sufficient discovery, and stated that “[t]he matter of adequate discovery is one for

the Court of Appeals or, as need be, for the District Court in the first instance.”

(Garner, supra, 529 U.S. at p. 257.) Therefore, it remanded the case for further

proceedings.

C. Is there a significant risk the changes will prolong a prisoner’s

incarceration?

As the court observed in Garner, supra, 529 U.S. at page 252, analysis of

whether a change in parole procedures violates ex post facto principles requires

consideration of how the change operates within the context of the entire parole

system. Therefore, we begin with a review of California‟s parole system.

1. California’s parole system

The power to grant parole lies with the Board. (§§ 3040, 5075 et seq.) A

panel of two or more commissioners or deputy commissioners must meet one year

prior to a prisoner‟s minimum eligible parole release date to consider whether to

set a parole date.11 “The panel . . . shall set a release date unless it determines that

11

The minimum release date is addressed in section 3046, which provides

that “[n]o prisoner imprisoned under a life sentence may be paroled until he or she
has served the greater of the following: [¶] (1) A term of at least seven calendar
years. [¶] (2) A term as established pursuant to any other provision of law that
establishes a minimum term or minimum period of confinement under a life
sentence before eligibility for parole.” (§ 3046, subd. (a).) The calculation of
sentences when a person is convicted of multiple crimes is addressed in section
669, which provides that “[w]henever a person is committed to prison on a life
sentence which is ordered to run consecutive to any determinate term of
imprisonment, the determinate term of imprisonment shall be served first and no
part thereof shall be credited toward the person‟s eligibility for parole as
calculated pursuant to Section 3046 or pursuant to any other section of law that

(Footnote continued on next page.)

24

the gravity of the current convicted offense or offenses, or the timing and gravity

of current or past convicted offense or offenses, is such that consideration of the

public safety requires a more lengthy period of incarceration for this individual,

and that a parole date, therefore, cannot be fixed at this meeting.” (§ 3041,

subd. (b).)

Section 3041 directs the Board to “establish criteria for the setting of parole

release dates.” (§ 3041, subd. (a).) Pursuant to this directive, the Board has

promulgated regulations identifying circumstances that tend to indicate suitability

or unsuitability for release on parole. The circumstances identified in the

regulations “are set forth as general guidelines; the importance attached to any

circumstance or combination of circumstances in a particular case is left to the

judgment of the panel.” (Cal. Code Regs., tit. 15, § 2281, subds. (c), (d).)12

The Board‟s regulations identify six circumstances that tend to indicate

unsuitability for release on parole: (1) the commitment offense was committed “in

(Footnote continued from previous page.)

establishes a minimum period of confinement under the life sentence before
eligibility for parole.”

12

Division 2 of title 15 of the California Code of Regulations sets forth

regulations related to the functions of the Board. (Cal. Code Regs., tit. 15,
§§ 2000-2870.) Chapter 3 of division 2 sets forth regulations concerning
procedures for parole. (Id., §§ 2230-2439.1.) Within chapter 3, the articles that
address the criteria and guidelines related to the granting or denial of parole are
divided into articles based upon the crime that is the basis of the life sentence.
(Id., §§ 2280-2292 [murders committed before Nov. 8, 1978, and aggravated
kidnapping], 2400-2411 [murders committed on or after Nov. 8, 1978, and
specified attempted murders], 2420-2429.1 [habitual offenders sentenced under
§ 667.7], 2430-2439.1 [sex offenders sentenced under § 667.51].) As relevant
here, the provisions are substantially identical among the various articles.
Therefore, in our summary we cite only one set of regulations, those set forth in
article 5. (Id., §§ 2280-2292.)

25

an especially heinous, atrocious or cruel manner,” including factors such as

multiple victims, a dispassionate and calculated manner, abuse or defilement of

the victim, an exceptionally callous disregard for human suffering, and an

inexplicable or trivial motive; (2) a previous record of violence, particularly at an

early age; (3) a history of unstable or tumultuous relationships; (4) previous

sadistic sexual offenses; (5) a lengthy history of severe mental problems related to

the crime; and (6) serious misconduct while incarcerated. (Cal. Code Regs.,

tit. 15, §§ 2281, subd. (c).)

The regulations identify nine circumstances that tend to show suitability for

release on parole: (1) the absence of a juvenile record; (2) a history of reasonably

stable relationships with others; (3) actions that tend to demonstrate remorse,

including attempting to assist the victim and exhibiting an understanding of the

nature and magnitude of the crime; (4) the commission of the crime was “the

result of significant stress in [the prisoner‟s] life, especially if the stress had built

over a long period of time”; (5) the actions were the result of “Battered Woman

Syndrome”; (6) the absence of a significant criminal history; (7) “[t]he prisoner‟s

present age reduces the probability of recidivism”; (8) “[t]he prisoner has made

realistic plans for release or has developed marketable skills that can be put to use

upon release”; and (9) activities in prison that “indicate an enhanced ability to

function within the law upon release.” (Cal. Code Regs., tit. 15, § 2281,

subd. (d).)

The Board applies these criteria to “attempt to predict by subjective

analysis whether the inmate will be able to live in society without committing

additional antisocial acts. [Citation.] „The [Board‟s] exercise of its broad

discretion “involves the deliberate assessment of a wide variety of individualized

factors on a case-by-case basis, and the striking of a balance between the interests

of the inmate and of the public.” [Citation.]‟ [Citation.] „The [Board‟s]

26

discretion in parole matters has been described as “great” [citation] and “almost

unlimited” [citation].‟ [Citation.]” (Rosenkrantz, supra, 29 Cal.4th at p. 655.)

The Board‟s discretion is limited only by the requirements that it provide an

individualized consideration of all relevant factors, provide a written statement

that sets forth its reasons for denying a parole date, and not render an arbitrary

decision. (Ibid.)

If the Board determines a prisoner is suitable for parole, it then sets a parole

date. “The release date shall be set in a manner that will provide uniform terms

for offenses of similar gravity and magnitude with respect to their threat to the

public, and that will comply with the sentencing rules that the Judicial Council

may issue and any sentencing information relevant to the setting of parole release

dates.” (§ 3041, subd. (a).)

Pursuant to section 3041, the Board has promulgated regulations that

establish criteria for setting parole release dates, including regulations that

establish a life prisoner‟s “total life term.” (Cal. Code Regs., tit. 15, §§ 2285-

2289.) The Board‟s regulations require the panel to set a “base term,” which the

panel derives by considering all of the circumstances of the most serious of the life

offenses the prisoner committed. The regulations set forth matrices of factors that

determine the lower, middle, and upper base terms for particular crimes.13 “The


13

For example, when the most serious offense is kidnapping for robbery, as

Vicks committed, the matrix considers the distance, duration, and destination of
the movement, whether the victim was taken as a hostage, whether the crime
involved intricate prior planning, whether the victim was sexually assaulted or
otherwise seriously injured or assaulted, and how significant the injuries were. A
crime involving minor movement and minor injury is assigned a base term range
of 8, 10 or 12 years, while a crime involving intricate planning, and in which the
victim suffered major injuries, is assigned a base term range of 13, 15, or 17 years.
(Cal. Code Regs., tit. 15, § 2282, subd. (c).)

27

panel shall impose the middle base term reflected in the matrix unless the panel

finds circumstances in aggravation or mitigation.” (Id., § 2282, subd. (a);14 see

generally In re Dannenberg (2005) 34 Cal.4th 1061, 1078-1079.) Circumstances

in aggravation include such factors as the vulnerability of the victim, whether

there was a special relationship of confidence and trust with the victim, and the

prisoner‟s leadership role in the crime. (Cal. Code Regs., tit. 15, § 2283,

subd. (a).) Circumstances in mitigation include such factors as whether the

prisoner was induced by others to commit the crime, whether the prisoner tried to

help the victim, and whether the crime was committed in unusual circumstances

unlikely to reoccur. (Id., § 2284.) After the panel determines the base term

through consideration of the matrices and any aggravating or mitigating

circumstances, it adds terms for personal use of a firearm and for other offenses,

resulting in a total life term. (Id., §§ 2285-2289.)

If the prisoner has already served more time than the total life term

calculated pursuant to the regulations, the prisoner is to be transferred from prison

to parole supervision in the community, but the release date may not be earlier

than the period during which the Board and the Governor may review parole

decisions, which is described below. (Cal. Code Regs., tit. 15, § 2289; see, e.g., In

re Lawrence (2008) 44 Cal.4th 1181, 1199 [appropriate term calculated pursuant


14

Like the regulations related to the criteria and guidelines for the

consideration of suitability for parole, the regulations related to setting the base
term and a parole date are divided among articles based upon the crime that is the
basis of the life sentence. (Cal. Code Regs., tit. 15, §§ 2282-2292 [murders
committed before Nov. 8, 1978, and aggravated kidnapping], 2403-2411 [murders
committed on or after Nov. 8, 1978, and specified attempted murders], 2423-
2429.1 [habitual offenders sentenced under § 667.7], 2433-2439.1 [sex offenders
sentenced under § 667.51].) As in our summary of suitability factors, we cite only
one set of regulations, those set forth in article 5. (Id., §§ 2280-2292.)

28

to the matrices was less than half of the prisoner‟s nearly 24 years in prison]; In re

Bush (2008) 161 Cal.App.4th 133, 138-139 [prisoner whose base term was

12 years six months had custody credits exceeding 20 years when he was found

suitable for parole]; see also Cal. Criminal Law: Procedure and Practice

(Cont.Ed.Bar 2011) § 47.46, p. 1555 [“It is very common that when a lifer is

found suitable, he or she has already served time under the appropriate matrix”].)

If the prisoner has not yet served the appropriate term calculated pursuant to the

regulations, a proposed release date will be set. If that date is 10 months or longer

after the hearing at which the prisoner is found suitable for parole, a progress

hearing will be held a specified number of months before the parole date, to

determine whether the parole date should be advanced based upon good conduct in

prison. (Cal. Code Regs., tit. 15, § 2269.)

The proposed decision becomes final 120 days after the hearing. During

the 120-day period, the Board may review the decision. (§ 3041, subd. (b).) “Any

person on the hearing panel may request review of any decision regarding parole

for an en banc hearing by the board.” (§ 3041, subd. (a).) In addition, by

regulation, proposed grants of parole and a random sample of proposed denials of

parole must be reviewed by the Board‟s chief counsel or a designee. If the chief

counsel recommends a modification to the decision that is adverse to the prisoner,

the recommendation “shall be referred to the full board for en banc review.” (Cal.

Code Regs., tit. 15, § 2041, subd. (h).) The chief counsel may also recommend a

new hearing, but “[n]o proposed decision shall be referred for a new hearing

without a majority vote of the board following a public hearing.” (Ibid.) “The

panel‟s decision shall become final . . . unless the board finds that the panel made

an error of law, or that the panel‟s decision was based on an error of fact, or that

new information should be presented to the board, any of which when corrected or

considered by the board has a substantial likelihood of resulting in a substantially

29

different decision upon a rehearing.” (§ 3041, subd. (b).) Unlike the scheme

considered in Morales, supra, 514 U.S. 499, the current scheme does not have

provisions for an administrative appeal of a decision denying parole. (Cal. Code

Regs., tit. 15, former §§ 2050-2057, repealed in 2004.)

During the 30-day period following finality of the Board‟s decision, when

the commitment offense is murder, the Governor “may only affirm, modify, or

reverse the decision . . . on the basis of the same factors which the [Board] is

required to consider.” (Cal. Const., art. V, § 8, subd. (b); see § 3041.2.) The

Governor‟s discretion with respect to parole decisions is as broad as the Board‟s

discretion. The Governor‟s “decision must reflect an individualized consideration

of the specified criteria and cannot be arbitrary or capricious,” but “[r]esolution of

any conflicts in the evidence and the weight to be given the evidence” and “the

precise manner in which the specified factors relevant to parole suitability are

considered and balanced lies within the discretion of the Governor . . . .”

(Rosenkrantz, supra, 29 Cal.4th at p. 677.) “Although „the Governor‟s decision

must be based upon the same factors that restrict the Board in rendering its parole

decision‟ [citation], the Governor undertakes an independent, de novo review of

the inmate‟s suitability for parole [citation]. Thus, the Governor has discretion to

be „more stringent or cautious‟ in determining whether a defendant poses an

unreasonable risk to public safety.” (In re Lawrence, supra, 44 Cal.4th 1181,

1204.)15

15

In addition to the Governor‟s authority, in the 30 days following finality of

the Board‟s decision, to reverse grants of parole when the commitment offense is
murder
, the Governor has authority, “[u]p to 90 days prior to a scheduled release
date, . . . [to] request review of any decision by a parole authority concerning the
grant or denial of parole to any inmate in a state prison. The Governor shall state
the reason or reasons for the request, and whether the request is based on a public
safety concern, a concern that the gravity of current or past convicted offenses

(Footnote continued on next page.)

30

The decisions of the Board and of the Governor are subject to the same

level of judicial scrutiny: a court inquires whether there is “some evidence”

related to the relevant factors that supports the decision. (Rosenkrantz, supra, 29

Cal.4th at pp. 658, 667.) Because “the fundamental consideration in parole

decisions is public safety” (In re Lawrence, supra, 44 Cal.4th at p. 1205), “the

relevant inquiry is whether some evidence supports the decision of the Board or

the Governor that the inmate constitutes a current threat to public safety, and not

merely whether some evidence confirms the existence of certain factual findings.”

(Id. at p. 1212.) “It is settled that under the „some evidence‟ standard, „[o]nly a

modicum of evidence is required. Resolution of any conflicts in the evidence and

the weight to be given the evidence are matters within the authority of [the Board

or] the Governor. . . . [T]he precise manner in which the specified factors relevant

to parole suitability are considered and balanced lies within the discretion of [the

Board or] the Governor . . . . It is irrelevant that a court might determine that

evidence in the record tending to establish suitability for parole far outweighs

evidence demonstrating unsuitability for parole. As long as the . . . decision

reflects due consideration of the specified factors as applied to the individual

prisoner in accordance with applicable legal standards, the court‟s review is


(Footnote continued from previous page.)

may have been given inadequate consideration, or on other factors. When a
request has been made, the request shall be reviewed by a majority of
commissioners specifically appointed to hear adult parole matters and who are
holding office at the time. In case of a review, a vote in favor of parole by a
majority of the commissioners reviewing the request shall be required to grant
parole to any inmate. In carrying out any review, the board shall comply with the
provisions of this chapter.” (§ 3041.1.)

31

limited to ascertaining whether there is some evidence in the record that supports

the . . . decision.‟ [Citations.]” (In re Shaputis (2011) 53 Cal.4th 192, 210.)

2. Analysis

a. Facial challenge

With this background, we consider whether Marsy‟s Law “creates a

significant risk of prolonging [Vicks‟s] incarceration.” (Garner, supra, 529 U.S.

at p. 251; see also Morales, supra, 514 U.S. at p. 509 [“we must determine

whether it produces a sufficient risk of increasing the measure of punishment

attached to the covered crimes”].) Marsy‟s Law did not change the timing of the

first parole suitability hearing, the factors to be considered in deciding whether a

prisoner is suitable for parole, the criteria for setting a parole date once a prisoner

is found suitable for parole, or the standard of review of parole decisions. As

explained above, Marsy‟s Law eliminated the requirement that Vicks‟s next parole

hearing be set annually or deferred at most up to two years if it was not reasonable

to expect that the prisoner would be suitable for parole within a year. Instead,

Marsy‟s Law prohibits the Board, at the time that a prisoner is found unsuitable

for parole, from setting a parole hearing sooner than three years after the finding

of unsuitability, and mandates that it set the parole hearing 15 years after the

finding of unsuitability, “unless the board finds by clear and convincing evidence

that the criteria relevant to the setting of parole release dates . . . are such that

consideration of the public and victim‟s safety does not require a more lengthy

period of incarceration for the prisoner than 10 additional years.” (§ 3041.5,

subd. (b)(3)(A).) If the board makes such a finding, the next hearing shall be in

10 years, unless the board finds by clear and convincing evidence that a period of

more than seven years is not required. (§ 3041.5, subd. (b)(3)(B).) In that event,

the next hearing shall be in seven, five, or three years. (§ 3041.5, subd. (b)(3)(C).)

32

These changes exceed the revisions considered in Morales, supra, 514 U.S.

499. The provisions of Marsy‟s Law apply to all life prisoners, whereas the new

parole provisions in Morales applied only to those who had killed more than one

person, “a class of prisoners for whom the likelihood of release on parole is quite

remote.” (Morales, supra, at p. 510.) Marsy‟s Law also deprives the Board of

discretion at the outset to schedule the next parole hearing in less than three years,

whereas the amendments considered in Morales retained the one-year deferral

period unless the Board found that it was not reasonable to expect that the prisoner

would be suitable for parole in a year. In addition to shifting the presumption

from the shorter deferral period to a longer deferral period, Marsy‟s Law imposes

a heightened evidentiary standard upon the Board that must be met before it may

initially schedule a hearing sooner than the default period of 15 years.

As we have noted, however, in Garner, supra, 529 U.S. 244, the Supreme

Court rejected the prisoner‟s focus on the differences between the changes

considered in Morales and the changes in Georgia‟s parole scheme challenged in

Garner. “These differences are not dispositive. The question is whether the

amended Georgia Rule creates a significant risk of prolonging [the prisoner‟s]

incarceration.” (Garner, supra, at p. 251.) The high court recognized that the

broad discretion associated with the function of determining when a prisoner may

be released on parole encompasses discretion “to change and adapt based on

experience.” (Id. at p. 253.) Thus, the issue is not whether the manner in which

discretion is exercised has been changed but whether, “in the period between

parole reviews, [discretion] will not be exercised at all.” (Id. at p. 254.)

Therefore, we focus on whether the changes in the hearing schedule effected by

Marsy‟s Law create a significant risk that there will be a period between parole

reviews when the elimination of a hearing that would have been required under the

former law creates a significant risk of prolonging incarceration.

33

We begin with the increase in the minimum period between regularly

scheduled parole hearings. The Board has no discretion, at the time parole is

denied, to schedule the next hearing as early as had been allowed by the statutory

scheme in effect at the time Vicks committed his crimes. Marsy‟s Law does,

however, give the Board unfettered discretion to advance the date of the next

parole hearing “when a change in circumstances or new information establishes a

reasonable likelihood that consideration of the public and victim‟s safety does not

require the additional period of incarceration of the prisoner provided” by the

statutory deferral periods. (§ 3041.5, subd. (b)(4).) These provisions reflect a

judgment that the previous schedule for parole hearings had been overly optimistic

with respect to the speed with which prisoners become suitable for parole. Rather

than assuming that all prisoners may become suitable for parole within a shorter

period of time, Marsy‟s Law assumes otherwise and takes a “wait and see”

approach. Rather than requiring earlier hearings in all cases regardless of whether

there is a reasonable likelihood the prisoner will be suitable for parole, it

authorizes earlier hearings only if there is a reasonable likelihood the prisoner no

longer poses a threat to society.

The Court of Appeal viewed the authority of the Board to advance hearings

sua sponte as inadequate to prevent longer periods of incarceration. In its view,

“[b]ecause there is no mechanism by which the [Board] might sua sponte generate

new information, or any mechanism by which the [Board] might sua sponte learn

of either new information or changed circumstances on which it might act, an

inmate who would have obtained a new hearing as early as one year after his or

her last hearing must now wait a minimum of three years before obtaining a new

hearing. Thus, although sua sponte advanced hearings are nominally available, it

appears „the rule‟s practical implementation . . . will result in a longer period of

incarceration than under the earlier rule‟ (Garner, supra, 529 U.S. at p. 255)

34

because of the absence of any practical method for triggering this advanced

hearing.”

The portion of Garner‟s analysis on which the Court of Appeal relied

relates to a claim that a change in the law, as applied, creates a significant risk of

prolonged incarceration. In connection with a facial challenge, Garner identified

the inquiry as whether the requisite risk was “inherent in the framework” of the

amended scheme. (Garner, supra, 529 U.S. at p. 251.) If the risk is not inherent

in the new scheme, then the risk must be “demonstrated on the record.” (Ibid.) In

reiterating these two steps of the analysis, the court stated that “[w]hen the

[amended scheme] does not by its own terms show a significant risk, the

[challenger] must demonstrate, by evidence drawn from the rule‟s practical

implementation by the agency charged with exercising discretion, that its

retroactive application will result in a longer period of incarceration than under the

earlier [scheme].” (Id. at p. 255.) Thus, in considering a facial challenge, the

court‟s focus is on any risk inherent in the statutory scheme rather than on the

practical implementation of the scheme. Therefore, in Garner, the court identified

as an important aspect of Georgia‟s scheme “the Board‟s policies [permitting]

„expedited parole reviews in the event of a change in their circumstance or where

the Board receives new information that would warrant a sooner review‟ ” (id. at

p. 254), but in connection with its facial review, the court did not evaluate whether

there were mechanisms that would ensure the Board would become aware of

changed circumstances or new information that might give rise to expedited parole

reviews.

Here, the Board has not described to this court any policies or practices it

follows with respect to the exercise of its authority to advance hearings, and

counsel were unaware at oral argument of any policies or practices related to the

Board‟s authority. As explained below, however, our review of the new statutory

35

provisions leads us to conclude that the scheme may function in a manner that

mitigates the risk that the Board will fail to exercise its discretion at a point in time

when it might have exercised its discretion under the prior scheme and concluded

that a prisoner was suitable for parole. Therefore, we conclude that a significant

risk of prolonging incarceration “is not inherent in the framework” of the parole

system as amended by Marsy‟s Law. (Garner, supra, 529 U.S. at p. 251.)

First, although Marsy‟s Law does not require an internal review or

evaluation of whether there is a reasonable probability that a prisoner has become

suitable for parole at some interim point in the lengthier deferral period, implicit in

the Board‟s authority to grant parole (§ 3040) and its authority to advance the date

of the next parole suitability hearing “when a change in circumstances or new

information establishes a reasonable likelihood that consideration of the public and

victim‟s safety does not require the additional period of incarceration of the

prisoner provided” (§ 3041.5, subd. (b)(4)), is the authority to direct its staff to

review a particular prisoner‟s circumstances at any time to determine if there is a

reasonable likelihood the prisoner is suitable for parole. For example, if the panel

is of the view that the prisoner may be suitable for parole in one year, it may direct

staff to conduct an internal review at a future date to determine whether a change

in circumstances — which may relate solely to the passage of time — establishes a

reasonable likelihood that further incarceration is not required to protect the

public.16 (See In re Lawrence, supra, 44 Cal.4th at pp. 1219-1220 [“the

16

Under the former law, when the Board deferred a hearing for five years, a

deputy commissioner was required to review the prisoner‟s central file within
three years, and could order that the next hearing be held within one year.
(§ 3041.5, former subd. (b)(2)(B); Stats. 1994, ch. 560, § 1, p. 2834; Cal. Code
Regs, tit. 15, § 2270, subd. (d); see Cal. Code Regs., tit. 15, § 3000 [“central file”
is “a master file maintained by the department containing records regarding each
person committed to its jurisdiction”]; see Cal. Department of Corrections and

(Footnote continued on next page.)

36

Legislature considered the passage of time — and the attendant changes in a

prisoner‟s maturity, understanding, and mental state — to be highly probative to

the determination of current dangerousness”].) Similarly, if the factors preventing

a finding of suitability may be amenable to correction in a short period of time,

such as inadequacies in a prisoner‟s parole plans, the panel may direct that if

information is received reflecting that such factors have been addressed, an

internal review must be conducted to determine whether the change in

circumstances establishes a reasonable likelihood that further incarceration is not

required.

Second, “[a]n inmate may request that the board exercise its discretion to

advance a hearing . . . to an earlier date, by submitting a written request to the

board . . . which shall set forth the change in circumstances or new information

that establishes a reasonable likelihood that consideration of the public safety does

not require the additional period of incarceration of the inmate.” (§ 3041.5,

subd. (d)(1).) This provision allows the prisoner to bring to the Board‟s attention

changes that may warrant an earlier hearing. As explained above, a prisoner may

file his or her first petition any time after the denial of parole at a regularly


(Footnote continued from previous page.)

Rehabilitation Operations Manual, ch. 7, art. 5, pp. 607-608,
<http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/DOM%20201
2/2012%20DOM-Combined.pdf> [description of contents of central file] [as of
Mar. 4, 2013].)


Under Marsy‟s Law, the Board may identify cases in which interim review

of the prisoner‟s central file would be appropriate, and thereby may concentrate its
resources on cases in which there is a possibility of release on parole. (§ 3041.5,
subd. (b)(4); see Garner, supra, 529 U.S. at p. 254 [Georgia parole board‟s policy
of deferring review for eight years when it is not reasonable to expect that parole
would be granted sooner allows the board to concentrate its efforts on cases in
which there is a good possibility of release on parole].)

37

scheduled hearing, and then may file a petition every three years. (See ante,

pp. 12-13.)

In connection with either of these two routes to earlier consideration of

suitability, if the Board concludes that there is not a reasonable likelihood that the

prisoner will be suitable for parole earlier, the hearing will not be advanced and

the prisoner might be deprived of a hearing to which he or she would have been

entitled under prior law. In light of the Board‟s conclusion that there is not a

reasonable likelihood of suitability, however, and given the Board‟s very broad

discretion to resolve the issue of suitability, the prisoner will not thereby be

deprived of an earlier release date.

There remains a possibility that there will be prisoners who become

suitable for parole and are precluded from petitioning for an advanced hearing

because less than three years has passed since the prisoner‟s last request.17 We do

not find that this possibility creates a significant risk of prolonging a prisoner‟s

incarceration. Most of the circumstances relevant to suitability for parole in

California are not of a type amenable to rapid change. Many of the circumstances

relate to historical events such as the circumstances of the crime, including actions

toward the victim during and after its commission, the prisoner‟s previous record,

17

In considering this possibility, we do not mean to suggest that

communications with the Board concerning a prisoner‟s suitability for parole are
barred during the three-year intervals between petitions to advance. Although
Marsy‟s Law limits the frequency with which a prisoner may file a formal petition
to advance a hearing, it does not prohibit other communications with the Board. If
a significant change relevant to a prisoner‟s suitability for parole occurs at a time
when the prisoner is precluded from filing another petition to advance the hearing,
the prisoner or any other person may convey the information to the Board.
Because the Board has discretion at any time to advance the hearing based on a
change in circumstances or new information, it may advance a hearing in response
to such communications.

38

and the prisoner‟s history of relationships. The Board also considers factors such

as the prisoner‟s understanding of the nature and magnitude of the crime, the

prisoner‟s age, the prisoner‟s development of marketable skills, the prisoner‟s

activities in prison, and the prisoner‟s plans for employment and residence. At the

time the Board determines that a prisoner is not suitable for parole, it is able to

evaluate what further period of time will be required to overcome whatever

deficits the Board has identified with respect to suitability. If the Board believes

the deficits require less than three years to overcome, the Board may direct, as

discussed above, that there be an internal review earlier than the next scheduled

hearing to determine whether there is a reasonable likelihood the prisoner will be

found suitable for parole. If the Board, which has almost unlimited discretion to

resolve the issue of suitability, is of the view at the time it denies parole that the

deficits require three or more years to remedy, it is unlikely that there will come a

time between the denial of a request to advance a hearing and the next scheduled

hearing, or during the three years until the next request to advance may be filed,

that a prisoner will become suitable for parole. (See Garner, supra, 529 U.S. at

p. 255 [rejecting “the Court of Appeals‟ supposition that [the change in Georgia‟s

parole procedures] „seems certain‟ to result in some prisoners serving extended

periods of incarceration. . . . Morales requires a more rigorous analysis of the

level of risk”].)18


18

Because of differences among different panels of commissioners, there is

some possibility that a prisoner‟s chance of being found suitable for parole is
enhanced by more frequent parole hearings, which increase the chance that the
prisoner will be considered by a more sympathetic panel. In rejecting judicial
“micromanagement of an endless array of legislative adjustments to parole and
sentencing procedures” in Morales, the high court identified “changes to the
membership of the Board” as an “innocuous adjustment[].” (Morales, supra, 514
U.S. at p. 508; see Gilman v. Davis (E.D.Cal. 2010) 690 F.Supp.2d 1105, 1121,

(Footnote continued on next page.)

39

The Board‟s authority to advance a hearing when there is a reasonable

likelihood the prisoner will be found suitable for parole creates a scheme that is

similar in substance to the scheme considered in Garner, supra, 529 U.S. 244,

which was found not to violate ex post facto principles. As noted above,

Georgia‟s law vested its parole board with discretion to defer the next hearing for

any period up to eight years, rather than the previous deferral period of three years,

and Georgia‟s parole board‟s policies authorized “ „expedited parole reviews in

the event of a change in their circumstance or where the Board receives new

information that would warrant a sooner review.‟ ” (Id. at p. 254.) The high court

observed that “[t]hese qualifications permit a more careful and accurate exercise

of the discretion the Board has had from the outset. Rather than being required to

review cases pro forma, the Board may set reconsideration dates according to the

likelihood that a review will result in meaningful consideration as to whether an

inmate is suitable for release.” (Ibid.) The court also noted the board‟s policy to

defer the next hearing for eight years, rather than the previous deferral period of

three years, “ „when, in the Board‟s determination, it is not reasonable to expect

that parole would be granted during the intervening years‟ ” (ibid.), and concluded

that “[t]he policy enables the Board to put its resources to better use, to ensure that

those prisoners who should receive parole come to its attention. By concentrating

its efforts on those cases identified as having a good possibility of early release,

the Board‟s Rules might result in the release of some prisoners earlier than would

have been the case otherwise.” (Ibid.)


(Footnote continued from previous page.)

fn. 13 [although changes in the Board may affect the likelihood of release, such
changes “would not ordinarily constitute an Ex Post Facto violation”].)

40

Similarly, Marsy‟s Law frees the Board from pro forma review of cases and

authorizes advanced review when a change in circumstances or new information

establishes a reasonable likelihood that the prisoner does not pose a danger to the

public. (§ 3041.5, subds. (b)(4), (d)(1).) We recognize that Garner referred to the

Georgia parole board‟s discretion at the outset to defer the next hearing for a

shorter period as an important qualification (Garner, supra, 529 U.S. at p. 254),

and that Marsy‟s Law does not give California‟s Board the same discretion, but

the absence of such discretion in California‟s system does not introduce a

significant risk of prolonging incarceration because once the Board sets a date for

the next hearing in accordance with the requirements of Marsy‟s Law, the Board

has unfettered discretion to advance the hearing any time new information or a

change in circumstances indicates that there is a reasonable likelihood the prisoner

is suitable for parole. As noted above, the passage of time, during which the

Board may expect positive changes in the prisoner‟s maturity, understanding, and

mental state, is a changed circumstance.

Georgia‟s scheme will result in earlier hearings in cases in which its parole

board believed at the outset that the prisoner would be suitable for parole at an

earlier date, even when that prediction is incorrect and the prisoner is not suitable

for parole at the earlier date, whereas Marsy‟s Law does not afford an earlier

hearing unless there is a change in circumstances or new information that supports

holding an earlier hearing. Each approach affords the prisoner a hearing when it

appears he or she may be suitable for parole, but California‟s approach will

eliminate some hearings at which the prisoner would not be found suitable for

parole.

For the same reasons, any risk of prolonged incarceration introduced by

various other changes effected by Marsy‟s Law is mitigated by a prisoner‟s right

to seek an advanced hearing and the Board‟s discretion to advance a hearing at any

41

time a change in circumstances or new information establishes a reasonable

probability of suitability for parole. The provisions of Marsy‟s Law that (1)

increase the maximum deferral period to 15 years, (2) shift the presumption

regarding whether to set an earlier or later date to favor a longer deferral period,

and (3) impose a burden of clear and convincing evidence before a hearing may be

set for a date earlier than 15 years (§ 3041.5, subd. (b)(3)) affect only the date

scheduled at the time parole is denied. In cases in which these provisions compel

the Board to select a deferral period that is longer than the Board believes will

probably be necessary to overcome the prisoner‟s deficits, the Board may, at the

time it denies parole, direct staff to conduct an internal review at an earlier date to

determine whether a change in circumstances establishes a reasonable likelihood

that further incarceration is not required to protect the public. In cases in which

the Board selects a long deferral period with no expectation that the prisoner will

be suitable for parole at an earlier date, the prisoner may bring changed

circumstances and new information to the Board‟s attention every three years. In

the latter cases, given that the Board, in the exercise of its very broad discretion,

has determined that a long period of additional incarceration will be required, and

given the nature of the criteria related to suitability for parole, many of which are

not amenable to rapid change, it is highly unlikely that a prisoner will become

suitable for parole in a shorter period than the three years between applications to

advance the hearing.

These provisions requiring the Board to choose a longer deferral period are

similar to the Georgia parole board‟s policy to defer reconsideration for the

maximum period allowed under the new law (eight years rather than the prior

three years) “ „when, in the Board‟s determination, it is not reasonable to expect

that parole would be granted during the intervening years.‟ ” (Garner, supra, 529

U.S. at p. 254.) Each scheme favors longer deferrals that exceed the maximum

42

deferral previously allowed, but each authorizes the advancement of a hearing in

the event of a change in circumstances or new information.

Although multiple changes to the parole scheme contribute to longer

periods between hearings, the changes have no cumulative effect that would create

a significant risk of prolonged incarceration. (See Morales, supra, 514 U.S. at

p. 509; Garner, supra, 529 U.S. at p. 250 [the question of whether a retroactive

procedural change creates a significant risk of prolonging a prisoner‟s

incarceration is “ „a matter of “degree” ‟ ”].) Regardless of whether a hearing is

deferred for three years or 15 years, the risk that the prisoner will remain

incarcerated longer than under the prior scheme is mitigated by the Board‟s

discretion to advance a hearing any time there is a change in circumstances or new

information. Although a deferral of 15 years might seem to increase the risk more

than a deferral of three years, any enhanced risk is mitigated by fact that the

prisoner may petition every three years to advance the hearing, and the fact that

the Board, which has broad discretion to determine suitability for parole, has

determined that a lengthier deferral period is warranted. The Board‟s

determination reflects that the factors impeding a finding of suitability for parole

are not amenable to rapid change, and an earlier hearing will not result in a finding

of suitability for parole.

Vicks raises several other arguments, in addition to those based on Morales

and Garner. First, he contends that a parole hearing “affects a critical stage of the

criminal process, the sentencing phase of a criminal case,” and that by imposing

the clear and convincing burden of proof before the Board may impose a deferral

period of less than 15 years, Marsy‟s Law “imposes an unlawful shifting of the

burden of proof to the defense at a critical stage of the criminal proceedings.” He

cites three cases in support of his conclusion. In People v. Doolin (2009) 45

Cal.4th 390, 453, we acknowledged that sentencing is a critical stage in a criminal

43

prosecution. In In re Roberts (2005) 36 Cal.4th 575, 589-590, in the course of

analyzing whether a petition for writ of habeas corpus challenging the denial of a

parole date should be filed in the county in which the prisoner is incarcerated or

the county in which the prisoner was sentenced, we observed that “a sentence

contemplates a period of parole, which in that respect is related to the sentence,”

and that “the objectives of sentencing and parole are related . . . .” (Id. at p. 590.)

Finally, in Santosky v. Kramer (1982) 455 U.S. 745, the high court explained that

the government‟s burden of proof is heightened when it seeks to deprive a party of

liberty or life, and it held that the due process clause requires the state to establish

by clear and convincing evidence the facts required to support an order

terminating parental rights. Certainly, in the criminal proceeding that concluded

with defendant‟s conviction and sentence, the government bore the burden of

proving beyond a reasonable doubt the facts underlying the conviction and

sentence, but none of the authorities he cites support the proposition that the

determination of the initial deferral period at a hearing at which parole is denied is

a critical stage of criminal proceedings, or that altering the burden of proof

associated with the decision concerning the timing of the next parole hearing

violates ex post facto principles.

Vicks also contends that the changes enacted by Marsy‟s Law violate the ex

post facto clause because they “lead to more onerous results than under the prior

law.” The authorities he cites, which we summarize below, involve substantive

changes in the scheme for calculating the time to be served. In contrast, Marsy‟s

Law alters only the procedure by which the date of the next parole hearing is set,

and it allows the date to be changed whenever there is a reasonable probability that

the prisoner may be found suitable for parole; it does not alter the calculation of

the sentence, the calculation of credits, the criteria relevant to the determination of

44

suitability for parole, or the criteria relevant to the determination of the parole date

once a prisoner is found suitable for parole.

In Weaver v. Graham, supra, 450 U.S. 24, the state reduced the rate at

which the prisoner accumulated credit for good behavior in prison. Although the

new law included provisions pursuant to which a prisoner could earn discretionary

credit, “the new provision constrict[ed] the inmate‟s opportunity to earn early

release, and thereby [made] more onerous the punishment for crimes committed

before its enactment.” (Id. at pp. 35-36.) Marsy‟s Law does not alter the

standards for earning release on parole.

In Miller v. Florida, supra, 482 U.S. 423, the presumptive sentencing range

was increased between the time that the defendant committed his offenses and the

time he was sentenced to seven years in prison. To have imposed a seven-year

sentence under the prior scheme, the judge would have been required to provide

clear and convincing reasons for varying from the presumptive sentence range,

and the decision to depart from the presumptive range would have been

reviewable on appeal. Under the new scheme, the seven-year sentence could be

imposed without providing any reasons, and the decision was not reviewable on

appeal. (Id. at pp. 432-433.) The court acknowledged that “no ex post facto

violation occurs if the change in the law is merely procedural and does „not

increase the punishment, nor change the ingredients of the offence or the ultimate

facts necessary to establish guilt‟ ” (id. at p. 433), but found that the revised

guidelines did not merely change the procedure for arriving at a sentence, they

increased the “ „quantum of punishment‟ ” for defendant‟s crimes. (Id. at p. 434.)

Marsy‟s Law, however, changes the procedures for scheduling hearings, but does

not change the standards that determine eligibility for release on parole.

In Himes v. Thompson (9th Cir. 2003) 336 F.3d 848, the court considered a

change in the law governing the rerelease of a prisoner after parole has been

45

revoked. The new law required the parole board, in cases in which it found

“aggravation” in connection with the prisoner‟s violation of parole, to deny

rerelease and to require the prisoner to serve the remainder of the term, twenty-

nine and a half years in Himes‟s case. The prior law had given the board

discretion to choose from a continuum of terms when it found aggravation,

“anywhere from a few months to the entirety of the prison term. For prisoners like

Himes, for whom the remaining prison term was quite lengthy, the Board of

Parole [under the prior law] would likely have imposed the entire prison term only

under extraordinary circumstances. So the change in regulatory regime, viewed in

its entirety, significantly increased the possibility of serving a lengthy re-

incarceration period under the new regime.” (Id. at pp. 859-860.) Therefore, the

change in the law “created a significant risk of a more onerous sentence.” (Id. at

p. 855.) Marsy‟s Law does not constrain the Board‟s authority to set a parole date

at whatever point in time the prisoner is suitable for parole.

Vicks notes that, in addition to increasing the potential deferral period,

shifting the presumption to favor a longer deferral period, and imposing a “clear

and convincing” evidentiary burden to deferring a hearing for fewer than 15 years,

Marsy‟s Law requires the Board to “consider[] the views and interests of the

victim” (§ 3041.5, subd. (b)(3)) before exercising its discretion to select the proper

deferral period or to advance a hearing date. (Id., subd. (b)(4).) He characterizes

this requirement as permitting victims “a say” in the frequency of parole hearings,

and as incorporating public outcry into the equation that determines when a

prisoner will be found suitable for parole. (See In re Dannenberg (2009) 173

Cal.App.4th 237, 255, fn. 5 [rejecting the Governor‟s reliance on the district

attorney‟s opinion that the prisoner lacked insight; the district attorney‟s and the

Governor‟s opinions are not evidence regarding suitability for parole]; In re

Weider (2006) 145 Cal.App.4th 570, 590 [family‟s statements may influence the

46

weight the Board gives to the evidence, but opposition of victim‟s next of kin is

not evidence of unsuitability for parole].)

The parole scheme has long required consideration of the victim‟s views in

connection with the Board‟s evaluation of a prisoner‟s suitability for parole. In

1982, prior to Vicks‟s crimes, the voters approved Proposition 8, The Victims‟

Bill of Rights. Among the provisions Proposition 8 enacted was section 3043,

which gives victims “the right to appear, personally or by counsel, at the [parole

suitability] hearing and to adequately and reasonably express his, her, or their

views concerning the prisoner and the case, including, but not limited to the

commitment crimes, determinate term commitment crimes for which the prisoner

has been paroled, any other felony crimes or crimes against the person for which

the prisoner has been convicted, the effect of the enumerated crimes on the victim

and the family of the victim, the person responsible for these enumerated crimes,

and the suitability of the prisoner for parole.” (§ 3043, subd. (b)(1).) As enacted

in 1982, section 3043 also provided that “[t]he board, in deciding whether to

release the person on parole, shall consider the statements of victims and next of

kin . . . .” Marsy‟s Law amended section 3043 to require that “[t]he board, in

deciding whether to release the person on parole, shall consider the entire and

uninterrupted statements of victims or victims, next of kin, immediate family

members of the victim, and the designated representatives of the victim or next of

kin . . . .” (§ 3043, subd. (d), Stats. 2004, ch. 289, § 1.)

In light of the fact that the Board is required to consider the victim‟s views

in deciding whether to find a prisoner suitable for parole, the addition of a

requirement that the Board consider the victim‟s views before deciding the initial

date set for the next parole hearing, and before deciding whether new information

or circumstances establish a reasonable likelihood the prisoner will be suitable for

parole at an earlier date, does not create a significant risk of prolonging the

47

prisoner‟s incarceration. Moreover, to the extent victims provide information or

argument relevant to the express issue of safety and thus suitability for parole,

their participation simply provides another source of information for the Board to

consider. Finally, to the extent Marsy‟s Law requires the Board to consider

statements that may not be relevant to its decision, we assume the Board will base

its decisions on appropriate grounds.

With respect to the possibility that, in some cases, the Board will be

required to consider statements that are not relevant to the criteria that guide the

Board‟s exercise of its discretion in setting the deferral period or advancing a

hearing date, we note that the Board‟s receipt of such statements serves a purpose.

One of the principal purposes of Marsy‟s Law is to provide victims “due process”

by affording them an opportunity to be heard in proceedings concerning the

prosecution, punishment, and release of those who victimized them. (Prop. 9,

Findings, ¶ 1 West‟s Ann. Cal. Const., supra, at p. 9; id., Purposes, ¶ 1.) Its

provisions are intended to “ensur[e] that crime victims are treated with respect and

dignity . . . .” (Cal. Const., art. I, § 28, subd. (a)(2).) We have recognized similar

rights in the context of an individual‟s due process liberty interest in being free

from arbitrary adjudicative procedures. (People v. Ramirez (1979) 25 Cal.3d 260,

264.) We noted in Ramirez “the important due process interest in recognizing the

dignity and worth of the individual by treating him as an equal, fully participating

and responsible member of society. [Citations.] „For government to dispose of a

person‟s significant interests without offering him a chance to be heard is to risk

treating him as a nonperson, an object, rather than a respected, participating

citizen.‟ [Citation.] Thus, even in cases in which the decision-making procedure

will not alter the outcome of governmental action, due process may nevertheless

require that certain procedural protections be granted the individual in order to

protect important dignitary values, or, in other words, „to ensure that the method of

48

interaction itself is fair in terms of what are perceived as minimum standards of

political accountability — of modes of interaction which express a collective

judgment that human beings are important in their own right, and that they must

be treated with understanding, respect, and even compassion.‟ [Citation.]” (Id. at

pp. 267-268.) The same sentiments are evident in the provisions of Marsy‟s Law

that seek to ensure that crime victims are treated with dignity. As in the context of

adjudication of liberty interests, it is not critical that a victim‟s participation be

relevant to the ultimate decision; rather, what is important is that the victim be

acknowledged and respected. In doing so, the scheme does not authorize the

Board to base its decisions on victims‟ opinions or public outcry.

Vicks also identifies various alleged flaws in the procedures for advancing

a hearing. First, he notes that the Board requires a prisoner to provide copies of

documentation in support of a petition to advance a hearing. He states that “the

passage of time is itself a change in circumstances that may affect a prisoner‟s

suitability for parole,” citing In re Lawrence, supra, 44 Cal.4th 1181, and that

“this change would be present in every case, and cannot itself be documented.”

The Board‟s form for petitioning to advance a hearing date states: “Attach a copy

of the supporting document(s) such as support letters, job offers, and vocational or

educational certificates.” (Bd. Parole Hearings, Petition, supra, p. 1, original

boldface; <http://www.cdcr.ca.gov/boph/docs/BPH_1045(A)-

Petition_to_Advance_Hearing_Date.pdf> [as of Mar. 4, 2013].) The form merely

informs the prisoner to provide copies rather than originals of documentation; it

does not establish that a hearing cannot be advanced without documentation from

the prisoner.

Second, he observes that the Board‟s form does not identify guidelines the

Board will follow in resolving a petition, and asserts that “the Board has no

standards whatsoever that it must follow in assessing a 1045(A) Petition, and

49

apparently can deny it solely because the victim or victim‟s next of kin objects,

without regard to how the changed circumstances actually impact the sole relevant

issue, whether the inmate remains dangerous.” The standards applicable to the

Board‟s assessment of a prisoner‟s petition are set forth in section 3041.5 and are

based on long-established principles governing the Board‟s discretion. The Board

evaluates a petition to determine whether it “set[s] forth [a] change in

circumstances or new information that establishes a reasonable likelihood that

consideration of the public safety does not require the additional period of

incarceration . . . .” (§ 3041.5, subd. (d)(1).) Whether there is a reasonable

likelihood that the prisoner is suitable for parole is evaluated by considering the

suitability criteria set forth in section 3041 and the Board‟s regulations. (Cal.

Code Regs., tit. 15, § 2281, subds. (c), (d).) As explained above, the Board applies

these criteria to “attempt to predict by subjective analysis whether the inmate will

be able to live in society without committing additional antisocial acts. [Citation.]

„The [Board‟s] exercise of its broad discretion “involves the deliberate assessment

of a wide variety of individualized factors on a case-by-case basis, and the striking

of a balance between the interests of the inmate and of the public.” [Citation.]‟

[Citation.]” (Rosenkrantz, supra, 29 Cal.4th at p. 655.) If the change in

circumstances or new information establishes that there is no longer an evidentiary

basis for concluding the prisoner is a current threat to public safety, the Board will

abuse its discretion if it declines to advance the hearing date and find the prisoner

suitable for parole. If, however, there is some evidence to support a conclusion

that the prisoner continues to pose a threat to public safety, it is within the Board‟s

broad discretion to decide whether the “change in circumstances or new

information establishes a reasonable likelihood that consideration of the public and

victim‟s safety does not require the additional period of incarceration . . . .”

(§ 3041.5, subd. (b)(4).)

50

Third, he notes that under the former law, when the Board deferred a

hearing for five years, a deputy commissioner was required to review the

prisoner‟s central file within three years, and could then order that the next hearing

be held within one year. (§ 3041.5, former subd. (b)(2)(B); Stats. 1994, ch. 560,

§ 1, p. 2834.) The absence of a mandatory interim review of the prisoner‟s file

within three years does not introduce a significant risk that a prisoner‟s

incarceration will be prolonged. Under Marsy‟s Law, the prisoner has a right to

bring new information or a change in circumstances to the attention of the Board

any time within the first three years following the denial of parole. (§ 3041.5,

subd. (d).) Thus, the new procedure allows more information to be brought to the

attention of the Board within the same or a shorter period of time.

b. Challenge to the law as applied to Vicks

In addition to his facial challenge, Vicks contends Marsy‟s Law violates ex

post facto principles as applied to him. As noted above, Garner recognized that

“[w]hen the [amended scheme] does not by its own terms show a significant risk,

the [challenger] must demonstrate, by evidence drawn from the rule‟s practical

implementation by the agency charged with exercising discretion, that its

retroactive application will result in a longer period of incarceration than under the

earlier [scheme].” (Garner, supra, 529 U.S. at p. 255.) As explained below,

Vicks has not established that Marsy‟s Law has created a significant risk of

prolonging his incarceration.

Vicks contends that the Board‟s deferral of his next hearing for five years,

instead of the maximum two-year deferral he would have received under prior

law, reflects a “lost opportunity” to serve less time, and that such lost opportunity

establishes a violation of the ex post facto clause. He cites Weaver v. Graham,

supra, 450 U.S. 24, which held that a reduction in the rate at which the prisoner

51

accumulated credit for good behavior in prison and the addition of a means to earn

discretionary credit “constrict[ed] the inmate‟s opportunity to earn early release,

and thereby [made] more onerous the punishment for crimes committed before its

enactment.” (Id. at pp. 35-36.) In contrast to the change considered in Weaver,

Marsy‟s Law did not alter the criteria for obtaining release. By reducing the

frequency of hearings at the outset and allowing the advancement of a hearing date

“when a change in circumstances or new information establishes a reasonable

likelihood that consideration of the public and victim‟s safety does not require the

additional period of incarceration of the prisoner” (§ 3041.5, subd. (b)(4)),

Marsy‟s Law affords prisoners an opportunity to have their suitability for parole

considered when there is a reasonable likelihood they are suitable. Vicks does not

indicate that he has requested an advanced hearing date or that there is any

changed circumstance or new information that would support a conclusion that

there is a reasonable likelihood he is suitable for parole. Thus, it does not appear

that he has lost an opportunity to serve less time due to the longer delay before his

next parole suitability hearing.

We further note that Vicks has not been prejudiced by the fact that the

Board lacks discretion initially to set a hearing earlier than three years after the

denial of parole. Under Marsy‟s Law, if the Board makes a finding by clear and

convincing evidence that a deferral period of more than seven years is not

required, the Board has discretion to schedule the next hearing in seven, five, or

three years; there is no additional finding required to set the next hearing for three

rather than five years later. (§ 3041.5, subd. (b)(3)(C).) The fact that the Board

deferred Vicks‟s hearing for five years, despite its discretion to set the hearing for

three years, establishes that it would not have exercised its discretion to set the

next hearing within the time limits existing under the prior law, even if Marsy‟s

Law afforded the Board the same discretion given Georgia‟s parole board.

52

Finally, we note that Vicks has not provided any basis to suspect that, had

his next hearing been scheduled in accordance with prior law and had he been

found suitable for parole at that earlier hearing, he would have been released on

parole. Vicks began serving his life term on March 13, 2003. In light of the

circumstances of his kidnapping offenses, such as the movement of the victims,

the sexual assaults, and the use of a firearm, it appears under the matrices

governing the calculation of his base term that he would be required to remain

incarcerated even if he were found suitable for parole at this time. (See Cal. Code

Regs., tit. 15, §§ 2282-2288.)

Vicks and amicus curiae, the Public Defender for the Eastern District of

California, seek to expand the challenge in this case to encompass a claim that

Marsy‟s Law violates ex post facto principles as applied to life prisoners whose

commitment offenses occurred before the passage of Marsy‟s Law. Vicks cites an

article reporting a study of 211 parole hearings held during the period from 2007

to 2010. (Richardson, Impact of Marsy‟s Law on Parole in California: An

Empirical Study (May 16, 2011), available online at

<http://ssrn.com/abstract=1878594> [as of Mar. 4, 2013].) He does not address

the basis on which a court might grant judicial notice of the contents of the article.

In any event, the conclusions cited concerning the increase that has occurred in the

average time between the denial of parole and the date set for the next parole

hearing merely reflect the fact that Marsy‟s Law mandates lengthier deferrals at

the time parole is denied; these conclusions do not reflect that prisoners are being

denied parole hearings when there is a reasonable probability they will be suitable

for parole.

The federal public defender, joined by Vicks, has requested that this court

grant judicial notice of four volumes of evidence presented in a class action

brought on behalf of life prisoners whose commitment offenses occurred before

53

the passage of Marsy‟s Law. (Gilman v. Brown (E.D.Cal. Sept. 7, 2012, CIV.

No. S-05-830 LKK/GGH) 2012 U.S.Dist. Lexis 127679.) The proffered evidence

was presented at an evidentiary hearing in April 2011, and generally concerns the

Board‟s processing of prisoner requests to advance parole hearings, and statistics

related to the advancement of parole hearings and the granting or denial of parole.

The evidence also includes data concerning (1) the rate at which prisoners

received parole dates following this court‟s decision in In re Lawrence, supra, 44

Cal.4th 1181, which explained that the modicum of evidence required to support a

denial of parole must establish not only that the commitment offense was

particularly egregious, but also that the prisoner currently is dangerous, and (2) the

results of parole hearings following the stipulation in In re Rutherford (Super Ct.

Marin County, 2006, No. SC135399A), that those prisoners whose parole

suitability hearings were overdue on December 15, 2008, were entitled to have

their parole hearings conducted under the pre-Marsy‟s Law statutory guidelines.

The public defender contends that “the evidence shows without doubt that the

result of the [Marsy‟s Law] deferral periods has been to create not only a

significant risk of increased incarceration for life prisoners but a certainty of

increased incarceration for many of them.”

We deny the request for judicial notice for two reasons. First, most of the

records are not subject to judicial notice for the purposes they are offered. The

public defender proposes that the transcript of the evidentiary hearing and the 41

exhibits admitted into evidence at the hearing are subject to judicial notice under

Evidence Code section 452, subdivision (d), which authorizes judicial notice of

court records. “The court may in its discretion take judicial notice of any court

record in the United States. [Citation.] This includes any orders, findings of facts

and conclusions of law, and judgments within court records. [Citations.]

However, while courts are free to take judicial notice of the existence of each

54

document in a court file, including the truth of results reached, they may not take

judicial notice of the truth of hearsay statements in decisions and court files.”

(Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91

Cal.App.4th 875, 882.) Here, judicial notice of the contents of the transcript and

exhibits is sought.

Second, the evidence the public defender has assembled reflects only the

beginning of the factfinding process required to determine the impact of Marsy‟s

Law as applied to prisoners generally. The federal court in the Gilman litigation

has appointed a statistician to analyze the evidence, has ordered the plaintiffs to

present additional evidence beyond the evidence presented at the April 2011

evidentiary hearing, and has ordered the defendants to produce certain information

about parole decisions in the years 1991 through 2008. According to the Attorney

General, the federal court has made no findings concerning the evidence presented

in that case. Thus, even if some of the documents obtained from the Board might

be subject to judicial notice under Evidence Code section 452, subdivision (c), as

official acts of an executive agency, such documents are not properly considered

in isolation and do not establish facts that would allow resolution of the contention

that Marsy‟s Law has, as applied, prolonged prisoners‟ incarceration.

Therefore, we decline to consider evidence of the effect of the changes in

parole procedures on prisoners in general, and we decline the request of Vicks and

amicus curiae to expand the issues in this proceeding to address whether Marsy‟s

Law violates ex post facto principles as applied to life prisoners whose

commitment offenses occurred before the passage of Marsy‟s Law.

D. Was Marsy’s Law intended to increase punishment?

Independent of Vicks‟s contention that Marsy‟s Law creates a significant

risk of prolonging a prisoner‟s incarceration, he also contends that Marsy‟s Law

55

was intended to increase punishment, and for that reason alone violates the ex post

facto clause. We disagree, for two reasons. First, the authority Vicks cites in

support of the proposition that an intention to increase punishment is, by itself,

sufficient to establish a violation of the ex post facto clause, is inapposite. Second,

none of the provisions of Marsy‟s Law reflects an intent to deny inmates a parole

date when they are suitable for parole.

Vicks cites Smith v. Doe (2003) 538 U.S. 84 in support of his view that

intent alone will establish an ex post facto violation. Smith considered whether a

sex offender registration requirement violated the ex post facto clause when

applied to sex offenders who had committed their offenses prior to the enactment

of the registration requirement. Resolution of the issue required a determination

of whether the registration law was civil or criminal. The court observed that “[i]f

the intention of the legislature was to impose punishment, that ends the inquiry.

If, however, the intention was to enact a regulatory scheme that is civil and

nonpunitive, we must further examine whether the statutory scheme is „ “so

punitive either in purpose or effect as to negate [the State‟s] intention” to deem it

“civil.” ‟ [Citation.]” (Id. at p. 92.) Thus, if the legislature intended the new

registration statute to be punitive rather than regulatory, the statute was criminal,

and its imposition upon one whose crime was committed prior to the statute‟s

enactment constituted additional punishment. It was in this context that the court

observed that “[a] conclusion that the legislature intended to punish would satisfy

an ex post facto challenge without further inquiry into its effects . . . .” (Id. at

pp. 92-93.) Smith did not address the issue of whether an intent to increase

punishment, by itself, constitutes a violation of ex post facto principles, and Vicks

has cited no case holding that such an intent violates ex post facto principles. (See

also Garner, supra, 529 U.S. at p. 262 (dis. opn. of Souter, J.) [acknowledging that

56

“we have never decided that a purpose to increase punishment, absent a punitive

effect, itself invalidates a retroactive policy change”].)

Even if an intent to increase punishment were sufficient to establish a

violation of the ex post facto clause, the terms of Marsy‟s Law do not evince an

intent to increase punishment or to deny inmates parole. The measure‟s Findings

and its statement of purposes reflect that the Law‟s principal goals are to grant

victims of crime the rights to notice and to be heard in the criminal process; to

promote adequate funding of the justice system so that criminals will be

prosecuted and punished in a manner that is timely and commensurate with their

crimes; and to spare victims the ordeal and taxpayers the expense of parole

hearings when there is no current likelihood that the prisoner will be paroled.

(Prop. 9, West‟s Ann. Cal. Const., supra, at p. 9.) Its references to inadequate

incarceration relate to issues other than parole, such as an asserted failure to build

adequate jails and prisons and to effectively prosecute and sentence criminals.

(Id., Findings, ¶ 4.) Similarly, its references to “the right to an expeditious and

just punishment” (id., ¶ 1) and to the “failure to impose actual and just

punishment” (id., ¶ 9) appear to relate to funding and functioning of the criminal

justice system which, it states, “has failed to expeditiously finalize the sentences

and punishments of criminal wrongdoers. Those criminal wrongdoers are being

released from custody after serving as little as 10 percent of the sentences imposed

and determined to be appropriate by judges.” (Id., ¶ 4.) This construction is

supported by the fact that statements that expressly address parole focus on the

impact that frequent parole hearings have on victims, and on the measure‟s intent

to eliminate hearings at which there is no likelihood that the prisoner will be found

suitable for parole. None of the statements expressly addressing parole indicates a

desire to extend incarceration despite a prisoner‟s suitability for parole. (Id., ¶¶ 5,

6, 8; id., Purposes, ¶ 2.) Finally, the stated intent “to provide that a convicted

57

murderer can receive a parole hearing no more frequently than every three years,

and can be denied a follow-up parole hearing for as long as 15 years” (id.,

Purposes, ¶ 2) merely states in general terms the change to parole procedures

proposed by the voter initiative, and does not reflect an intent to deny parole to

any prisoner who is suitable for parole under the law.

The provisions that Marsy‟s Law added to the state Constitution concerning

“the expectation” that criminals will be “tried . . . , sentenced, and sufficiently

punished” (Cal. Const., art. I, § 28, subd. (a)(4)) and the “right to expect that

persons convicted of committing criminal acts are sufficiently punished in both the

manner and the length of the sentences imposed” (id., art. I, § 28, subd. (a)(5))

appear to relate to the enforcement of the Penal Code, the sentence imposed and

the stated concern that inadequate prison capacity and ineffective prosecutions

result in insufficient punishment. This relationship is apparent in section 28,

subdivision (a)(5)‟s reference to “the manner and the length of the sentences

imposed,” and is also reflected in the fact that the expectations set forth in section

28, subdivision (a)(4) parallel the concerns expressed in the measure‟s Findings

regarding asserted failures in the criminal justice system with respect to prison

capacity and prosecutions. (See Prop. 9, Findings, ¶ 4, West‟s Ann. Cal. Const.,

supra, at p. 9.)

In contrast, perceived flaws in the parole process are addressed in a

different subpart of subdivision (a) (see Cal. Const., art. I, § 28, subd. (a)(6)), and

the concerns and proposed solutions that are related to parole procedures are silent

with respect to the sufficiency of punishment. Instead, the statements addressing

parole focus on the impact of frequent parole hearings on victims, an impact that

results from a system that affords multiple hearings during a period in which the

prisoner is not suitable for parole. Thus, the concerns and solutions related to

parole are directed to reducing the number and frequency of hearings at which

58

parole is denied rather than extending the incarceration of prisoners who are

suitable for parole.

Vicks also contends that the statutory amendments, which create “hurdles

and obstacles for parole eligible life term inmates” by lengthening the default

deferral period to 15 years and the minimum deferral period to three years,

demonstrate that Marsy‟s Law is “vindictive legislation.” To the extent the

changes intentionally and actually result in less frequent parole hearings, these

aspects reflect the law‟s stated intent to spare victims of crime and taxpayers the

burden of parole hearings at which there is no reasonable likelihood that the

prisoner will be found suitable for parole. That the changes limit the frequency of

parole hearings does not reflect an intent to increase punishment or to prolong

incarceration beyond the time when a prisoner is suitable for parole.

III. CONCLUSION

For the reasons set forth above, we conclude that the changes to the parole

process effected by Marsy‟s Law do not, on their face, create a significant risk that

life prisoners‟ incarceration will be prolonged. We also reject Vicks‟s contention

that Marsy‟s Law is invalid as applied to him. Finally, we decline to undertake an

analysis of whether Marsy‟s Law violates ex post facto principles as it is being

applied to life prisoners whose commitment offenses occurred before the passage

59



of Marsy‟s Law; Vicks did not raise this contention below, and the evidence of

which he seeks judicial notice does not provide a basis for this court to address the

issue.

The judgment of the Court of Appeal is reversed to the extent it vacates the

Board‟s order deferring Vicks‟s next parole hearing in accordance with the terms

of Marsy‟s Law. In all other respects, the judgment is affirmed.

CANTIL-SAKAUYE, C. J.

WE CONCUR:


KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.

60










CONCURRING OPINION BY LIU, J.




I join the court‟s opinion and write separately to underscore the limited

nature of our holding.

Petitioner‟s primary claim is a facial challenge to the application of

Marsy‟s Law to prisoners who committed their crimes before the law was enacted.

Petitioner also contends that the statute violates the ex post facto clauses of the

federal and state Constitutions as applied to him. Whether the challenge is on its

face or as applied, the United States Supreme Court has held that the relevant

inquiry is not whether differences exist between the prior parole system and the

current system, but “whether the amended [statute] creates a significant risk of

prolonging [the prisoner‟s] incarceration.” (Garner v. Jones (2000) 529 U.S. 244,

251.) On a facial challenge, the Garner inquiry requires that this “significant risk”

be “inherent in the framework” of the amended schedule. (Id. at p. 251.) Where

the statute in question provides the parole board with some discretion, the Garner

standard by its nature permits — in fact, requires — the reviewing court to

speculate about possible safety valves consistent with the statutory scheme that

might mitigate any significant risk of prolonged incarceration.

Applying this rule, the court today concludes that Marsy‟s Law on its face

does not create a significant risk of prolonged incarceration. In reaching this

conclusion, the court speculates on a variety of ways that the Board of Parole

Hearings (Board) may exercise its discretion to mitigate the risk of prolonged

1

incarceration. For example, the court says the Board “may” exercise its discretion

by directing its staff to conduct interim internal reviews when it believes an inmate

might become parole eligible before his or her next scheduled hearing. (See, e.g.,

maj. opn., ante, at pp. 36, 39, 42.) The court also says that if something changes

to affect an inmate‟s parole eligibility during a period in which he or she is barred

from submitting a petition for an advanced hearing, the inmate “may” convey the

information to the Board outside of a formal petition. (Id. at p. 38, fn. 17.)

Further, the court says the Board “may” direct staff to conduct an internal review

upon receipt of any such information. (Id. at p. 37.)

All of these possibilities are highly speculative. But they appear to be

within the Board‟s authority and discretion, and together they weigh against a

finding that a significant risk of prolonged incarceration is inherent in Marsy‟s

Law. However, the fact that these speculative actions may occur does not imply

that they do occur in practice. The Attorney General stated at argument that she

was not aware of any Board policy or practice of exercising its authority to

advance a hearing or to direct staff to monitor or internally review parole

eligibility. Today‟s opinion acknowledges that no such policy or practice appears

in the record before us. (See maj. opn., ante, at p. 35.)

The court also notes that the risk of prolonged incarceration is further

mitigated by the fact that many of the factors affecting parole suitability are not

“amenable to rapid change.” (Maj. opn., ante, at pp. 38, 42, 43.) I understand this

to mean it is possible, even if speculative, that the immutability of some parole

factors (e.g., the circumstances of the crime, the inmate‟s criminal record, and

other factors concerning the inmate‟s history), together with the posited discretion

of the Board to respond to factors that may change over time (e.g., a prisoner‟s

insight into his crime, his activities in prison, his parole plans), suggests that

Marsy‟s Law does not inherently create a significant risk of prolonged

2

incarceration. However, we have no facts before us to determine, one way or

another, how rapidly the suitability factors that are amenable to change actually do

change, or whether the Board actually exercises its discretion to respond to such

changes.

With these observations, I join the court‟s limited holding that Marsy‟s Law

does not violate the ex post facto clauses on its face or as applied to petitioner.

LIU, J.

I CONCUR: WERDEGAR, J.

3

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Vicks
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 195 Cal.App.4th 475
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S194129
Date Filed: March 4, 2013
__________________________________________________________________________________

Court:
Superior
County: San Diego
Judge: David M. Gill

__________________________________________________________________________________

Counsel:

Steven M. Defilippis, under appointment by the Supreme Court, for Petitioner Michael Vicks.

Daniel Broderick, Federal Defender, and Monica Knox, Assistant Federal Defender, as Amici Curiae on
behalf of Petitioner Michael Vicks.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Donald E. de Nicola, Deputy State Solicitor General, Julie L. Garland and Jennifer A.
Neill, Assistant Attorneys General, Anya M. Binsacca, Phillip Lindsay and Jennifer Gwen Ross, Deputy
Attorneys General, for Respondent The People.

W. Scott Thorpe; Bonnie M. Dumanis, District Attorney (San Diego), Richard J. Sachs, Deputy District
Attorney; and Albert C. Locher, Assistant District Attorney (Sacramento), for California District Attorneys
Association as Amicus Curiae on behalf of Respondent The People.




1





Counsel who argued in Supreme Court (not intended for publication with opinion):

Steven M. Defilippis
Picone & Defilippis
625 N. First Street
San Jose, CA 95112
(408) 292-0441

Jennifer Gwen Ross
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5774




2

Petition for review after the Court of Appeal granted relief on a petition for writ of habeas corpus. This case presents the following issue: Can Penal Code section 3041.5, as amended by the "Victims' Bill of Rights Act of 2008: Marsy's Law," which decreased the frequency of parole consideration hearings, be applied to life inmates convicted before the effective date of the amendments without violating the ex post facto clauses of the state and federal Constitutions?

Opinion Information
Date:Citation:Docket Number:Cross Referenced Cases:
Mon, 03/04/201356 Cal.4th 274, 153 Cal.Rptr.3d 471S194129

California Dept. of Corrections v. Morales, 529 U.S. 244 (2000)
Garner v. Jones, 514 U.S. 499 (1995)


Parties
1Michael D. Vicks (Petitioner)
Represented by Stephen M. Defilippis
Picone & Defilippis
625 N. First Street
San Jose, CA

2Randy Grounds/Board of Parole Hearings (Non-Title Respondent)
Represented by Jennifer Gwen Ross
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

3Randy Grounds/Board of Parole Hearings (Non-Title Respondent)
Represented by Anya Marie Binsacca
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA


Opinion Authors
OpinionChief Justice Tani Cantil-Sakauye
ConcurJustice Goodwin Liu, Justice Kathryn M. Werdegar

Brief Downloads
application/pdf icon
1-s194129-non-title-resps-pet-rev-062011.pdf (2675877 bytes) - Petition for Review
application/pdf icon
2-s194129-non-title-resps-opening-brief-merits-090211.pdf (708963 bytes) - Opening Brief on the Merits
application/pdf icon
3-s194129-pet-answer-brief-merits-112911.pdf (1791951 bytes) - Respondent's Answering Brief on the Merits
application/pdf icon
4-s194129-non-title-resps-reply-brief-merits-122011.pdf (718624 bytes) - Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 11, 2013
Annotated by Laura Sullivan

FACTS:
In 1983, petitioner Michael Vicks was convicted of numerous violent felonies, including multiple counts of armed robbery, rape and kidnapping, and sentenced to life in prison with the possibility of parole.

Vicks began serving his life sentence in 2003. His minimum eligibility parole date was in 2010 and his initial parole suitability hearing was in 2009, at which the Parole Board found him unsuitable and deferred his next hearing for five years.

At the time Vicks committed his crimes, he was entitled to an annual parole hearing unless the Board found that it was not reasonable to expect that he would be granted parole in a year, in which case his parole hearing could be deferred up to two years.

Marsy’s Law (Proposition 9, the Victim’s Bill of Rights Act of 2008), enacted in 2008, addressed a number of grievances, including early release of inmates “after serving as little as ten percent of the sentences imposed,” the pain caused victims’ families by frequent parole hearings, the failure to provide them with an opportunity to speak and participate, and the failure to impose actual and just punishment upon their wrongdoers. The law was named after Marsy Nicholas, who was stalked and killed by a former boyfriend. After her murderer’s conviction and sentence of life in prison, parole hearings for his release began. In the first hearing, Marsy’s mother suffered a heart attack. Since then, Marsy’s family has endured the trauma of frequent hearings and anxiety that he will be released.

Most of the law’s statutory amendments relate to parole. Specifically, Marsy’s Law amended section 3041.5 of the California Penal Code to increase the time between parole hearings, absent a finding by the Board that an earlier hearing is appropriate. It also amended section 3042 to expand the rights of victims to present information to the Board, and to require the Board to consider the “entire and uninterrupted” statements of victims, their families and their representatives.

PROCEDURAL POSTURE
The California Superior Court denied Vicks’s challenge of the Parole Board’s decision. Vicks then filed a petition for writ in the Court of Appeal, which vacated the Board’s decision to the extent the order deferred the subsequent parole suitability hearing for five years, concluding that the changes enacted by Marsy’s Law to the scheme for setting parole hearings violate ex post facto principles as applied to prisoners who committed their crimes prior to the law’s enactment. The California Supreme Court granted review.

ISSUE
Whether Section 3041.5, as amended by Marsy’s Law, may be applied to life inmates convicted before the effective date of the amendments without violating the ex post facto clauses of the state and federal constitutions.

HOLDING
Marsy's Law does not violate the ex post facto clauses on its face or as applied to Vicks.

The Supreme Court reversed the Court of Appeal’s judgment to the extent it vacated the Board’s order deferring Vicks’s next parole hearing in accordance with the terms of Marsy’s Law.

ANALYSIS
Section 3041.5, as amended by Marsy’s Law, established longer deferral periods following the denial of parole, ranging from a default period of fifteen years to a minimum of three years. The Board is required to consider the views and interests of victims before selecting the deferral period. The Board also has the discretion to advance the date of a parole hearing if parole officials decide there is new information or a change in circumstance. An inmate may petition the Board for an earlier date once every three years. The court disagreed with the Court of Appeal’s interpretation of the blackout period after a “decision of the board” to include regularly scheduled suitability hearings, concluding that the three-year period begins only from the date of a summary denial or the date of an advanced hearing at which parole is denied. Therefore, a prisoner may make his first request for a new hearing at any time following the denial of parole at a regularly scheduled hearing and then may make another request every three years.

Both the United States Constitution and California state constitution forbid the passage of ex post facto laws. Latin for "after the fact," ex post facto refers to laws adopted after an act is committed, making it illegal retroactively, or to laws that increase the penalty for a crime after it is committed. Chief Justice Cantil-Sakauye analyzed at length two U.S. Supreme Court opinions, California Dept. of Corrections v. Morales, 529 U.S. 244 (2000) and Garner v. Jones, 514 U.S. 499 (1995) which treated the issue of ex post facto as it related to the parole of prisoners. The Court in both cases identified the controlling inquiry as “whether retroactive application of the change . . . created a sufficient risk of increasing the measure of punishment attached to the covered crimes.”

In Morales, the Court held that an amendment allowing the Parole Board to defer subsequent hearings for up to three years for a prisoner convicted of more than one offense involving the taking of a life, did not violate the ex post facto clause, if the Board found that it was not reasonable to expect that parole would be granted at a hearing during the intervening years. The Court rejected the view that any legislative change potentially affecting a prisoner’s punishment should be held to violate the ex post facto clause, holding that it is a matter of degree. It upheld the amendment, as a means of relieving the Board from the costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no chance of being released. In Garner, a prisoner challenged a change in Georgia’s parole law which lengthened the time between parole hearings from three years to eight. The Court found that the frequency of parole reconsideration hearings at the discretion of the Board and the possibility of expedited reviews in the event of a change in circumstances or new information minimize the risk that an affected prisoner’s punishment would be increased by the rule’s application.

Based on the Supreme Court’s reasoning, the court stated that determining whether a change in parole procedures violates ex post facto principles requires consideration of how the change operates within the context of the entire parole system. The court then discussed in detail the California parole system. The Parole Board, which by statute must establish criteria for the setting of parole release dates, has broad discretion to apply these criteria to attempt to predict by subjective analysis whether the inmate will be able to live in society. The Board is limited only by the requirements that it provide an individualized consideration of all relevant factors, provide a written statement that sets forth its reasons for denying a parole date, and not render an arbitrary decision. Decisions of the Board (and the Governor) are subject to the same level of judicial scrutiny: some evidence related to the relevant factors must support the decision.

In determining whether Marsy’s Law creates a significant risk of prolonging Vicks’s incarceration, the court concluded that the provision did not change the timing of the first parole suitability hearing, the factors to be considered in deciding whether a prisoner is suitable for parole, the criteria for setting a parole date once a prisoner is found suitable or the standard of review of parole decisions. The court rejected the Court of Appeal’s conclusion that the absence of any practical method for triggering an advanced hearing would lead to longer periods of incarceration because the Court of Appeal incorrectly applied Garner’s reasoning to the provision’s application rather than its statutory framework. Garner was a facial challenge; the U.S. Supreme Court did not evaluate “the practical implementation of the scheme.” Chief Justice Cantil-Sakauye concluded that a significant risk of prolonging incarceration is not inherent in the framework of the parole system as amended by Marsy’s Law. First, the law gives the Board the authority to direct its staff to review a particular prisoner’s circumstances at any time to determine if there is a reasonable likelihood the prisoner is suitable for parole. Second, an inmate may submit a written request which allows the prisoner to bring to the Board’s attention changes that may warrant an earlier hearing. Additionally, most of the circumstances relevant to suitability for parole in California are not of a type amenable to rapid change. The court compared the scheme promulgated by Marsy’s Law to the one in Garner, which was found not to violate ex post facto principles.

The court found that Marsy’s Law frees the Board from pro forma review of cases and authorizes advanced review when a change in circumstances or new information establishes a reasonable likelihood that the prisoner does not pose a danger to the public. Therefore, although multiple changes to the parole scheme contribute to longer periods between hearings, the changes have no cumulative effect that would create a significant risk of prolonged incarceration.

The court then addressed Vicks’s other arguments, rejecting them in turn. It found no merit in Vicks’s arguments that Marsy’s Law imposes an unlawful shifting of the burden of proof to the defense at a critical stage of the criminal proceedings and that the changes enacted made the punishment more onerous than under the prior law. Marsy’s Law changes only the procedure by which the date of the next parole hearing is set, not the calculation of the sentence, calculation of credits, or the criteria relevant to the either the determination of suitability of parole or the determination of the parole date once a prisoner is found suitable for parole. In response to Vicks’s contention that victims should not influence the frequency of parole hearings , the court noted that the parole scheme has long required consideration of the victim’s views in connection with the Board’s evaluation of a prisoner’s suitability for parole and that victims deserve the opportunity to be heard in proceedings.

The court also rejected various alleged flaws Vicks identified: that the Board requires the prisoner to provide documentation to petition for an advanced hearing, that there are no guidelines for the Board and that the absence of a mandatory interim review as required under prior law lengthens incarceration.

In addition to his facial challenge, Vicks contends Marsy’s Law violates ex post facto principles as applied to him, because the Board’s deferral of his next hearing for five years, instead of the maximum two-year deferral under prior law, reflects a lost opportunity to serve less time, violating the ex post facto clause. However, the court noted that there is no indication that Vicks requested an advanced hearing date or that there has been a change in circumstance suggesting he would be suitable for parole. Additionally, the Board’s deferral of Vick’s hearing for five years, despite its discretion under Marsy’s Law to defer it for three, demonstrates that he has not lost an opportunity to serve less time.

Although Vicks sought to expand the challenge to encompass a claim that Marsy’s Law violates ex post facto principles as applied to life prisoners whose offenses occurred before its passage, his evidence did not convince the court that such prisoners were at risk of longer incarceration. The court also denied the federal public defender’s request for judicial notice* of four volumes of evidence in a class action on behalf of those life prisoners for two reasons. First, most of the evidence contained inadmissible hearsay and second, it “reflects only the beginning of the factfinding process” required to determine the impact of Marsy’s Law on life prisoners generally.

Finally, Vicks contends that Marsy’s Law was intended to increase punishment and for that reason alone violates the ex post facto clause. The court rejected his argument because the authority he cited did not support his claim and none of the provisions of Marsy’s Law reflects an intent to deny inmates a parole date when they are suitable for parole.

CONCURRENCE
Justice Liu, joined by Justice Werdergar, wrote separately to underscore the “limited nature of the holding.” He emphasized that while the court, in applying the Garner standard, concluded that Marsy’s Law withstood Vicks’s facial challenge, the fact that these speculative actions involving the Board’s exercise of its discretion may occur does not mean that they do occur in practice.

*The authority of the court to accept as fact certain matters of official record or common knowledge