In re MICHAEL D. VICKS on Habeas Corpus.
No. S194129.
Supreme Court of California
Mar. 4, 2013.
274
Steve M. Defilippis, under appointment by the Supreme Court, for Petitioner Michael D. Vicks.
Daniel Broderick, Federal Defender, and Monica Knox, Assistant Federal Defender, as Amici Curiae on behalf of Petitioner Michael D. 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.
OPINION
CANTIL-SAKAUYE, C. J.-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
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 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
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
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
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
We granted review to address whether
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.
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, 1E West‘s Ann.
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.” (
Most of the law‘s statutory amendments relate to parole. As described more fully below, Marsy‘s Law amended
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,
As amended in 2008 by Marsy‘s Law,
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. (
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 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
The
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.) Therefore, it is “aimed at laws 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 [131 L.Ed.2d 588, 115 S.Ct. 1597] (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
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 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 [81 L.Ed. 1182, 57 S.Ct. 797], 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 [96 L.Ed.2d 351, 107 S.Ct. 2446], which addressed an increase in the presumptive sentencing range; and Weaver v. Graham (1981) 450 U.S. 24 [67 L.Ed.2d 17, 101 S.Ct. 960], 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
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.” (
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 pp. 512-513.) 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.)
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 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
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 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 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 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 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.
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. (
Section 3041 directs the Board to “establish criteria for the setting of parole release dates.” (
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.” (
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] 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.)
§§ 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. (
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.” (See
The proposed decision becomes final 120 days after the hearing. During the 120-day period, the Board may review the decision. (
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
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
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 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.” (
. . .
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
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.
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. (
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]
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 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.)
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
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, 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
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.)
Similarly, Marsy‘s Law frees the Board from pro forma review of cases and authorizes advanced review when a change in circumstances or new
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 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 (
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 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 the 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
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 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
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 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, 29 1/2 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” (
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.” (
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 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
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.
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, pp. 2833-2834.) 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. (
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 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” (
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. (
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
Vicks and amicus curiae, the Federal 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=1875894> [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 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 the passage of Marsy‘s Law. (Gilman v. Brown (E.D.Cal., Sept. 7, 2012, No. CIV. 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
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 federal 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 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 federal 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
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
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 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.]” (Smith, 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 Garner, supra, 529 U.S. at p. 262 (dis. opn. of Souter, J.) [acknowledging that “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
The provisions that Marsy‘s Law added to the state Constitution concerning “the expectation” that criminals will be “tried . . . , sentenced, and sufficiently punished” (
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 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.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Corrigan, J., and Liu, J., concurred.
LIU, J., Concurring.—I join the court‘s opinion and write separately to underscore the limited nature of our holding.
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 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. 302, 303-304, 305-306.) 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. 303, 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. 302.)
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. 301.)
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
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.
Werdegar, J., concurred.
Notes
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 [Ga. 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].)