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In Re Michael Vicks

May 11, 2011


On Habeas Corpus. San Diego County Super. Ct. No. CR63419 Petition for writ of habeas corpus from denial of parole. Relief granted in part.

The opinion of the court was delivered by: McDONALD, J.


In 1983, Michael Vicks was convicted of two counts of rape in concert, two counts of forcible oral copulation in concert, three counts of kidnapping, one count of kidnapping to commit robbery, and multiple counts of robbery; many of these convictions included true findings on appended firearm enhancements. Vicks was sentenced to a total term of 37 years 8 months to life. Vicks, now 51 years old, has been incarcerated for more than 28 years.

At Vicks's first parole hearing, the Board of Parole Hearings (BPH) found him unsuitable for parole. The BPH found the commitment offense was particularly egregious under many indices and, considering numerous other factors (including Vicks's prior criminal record, his disciplinary record while incarcerated, his failure to gain insight into the commitment offense, and his psychological evaluation), concluded Vicks was not currently suitable for parole. The BPH further concluded a five-year denial of parole was appropriate under the circumstances.

Vicks petitioned the trial court for a writ of habeas corpus, but the court denied the writ, concluding the BPH's decision was supported by some evidence. Vicks then petitioned this court for a writ of habeas corpus. We issued an order to show cause, the People filed a return, and Vicks filed a traverse.

Vicks asserts the BPH's decision to deny parole violated due process because its conclusion that he posed an unreasonable risk of danger to society if released on parole was contrary to the only reliable evidence that he was not currently dangerous. He also asserts the imposition of a five-year deferral, pursuant to the amendments to Penal Code*fn1 section 3041.5, subdivision (b), adopted after the voters approved Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law" (hereafter Marsy's Law), cannot be applied to him without violating ex post facto principles.

We conclude the BPH's decision to deny parole was supported by some evidence, pursuant to the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241. We also conclude application of the amendments to Penal Code section 3041.5, subdivision (b), to inmates whose commitment offense was committed prior to the effective date of Marsy's Law violates ex post facto principles.


A. The Commitment Offense

In 1983, Vicks was convicted of participating in a crime spree in which he and two other defendants employed firearms while committing numerous offenses against multiple victims, including kidnapping and sexually assaulting, as well as robbing, the victims. Because the facts of the crimes support the BPH's determination that the commitment offenses were committed in a particularly heinous, atrocious, or cruel manner (Cal. Code Regs., tit. 15, § 2402, subd. (b)),*fn2 and Vicks does not dispute that this aspect of the BPH's determination is supported by the requisite level of evidence, we do not further detail the commitment offenses.

B. Vicks's Disciplinary Record in Prison

During his first 20 years in prison, Vicks received four "CDC 115's"*fn3 (the most recent was in 1999 for indecent exposure), although none of the four serious rule violations involved violence. During those first 20 years, he also received seven "CDC 128's," the most recent of which occurred in 2002. He was discipline free for the seven-year period prior to his parole hearing.

C. Vicks's Psychological Evaluation

A psychologist evaluated Vicks and his report was received by the BPH without objection. The psychologist interviewed Vicks and concluded he had a "tendency to minimize and discount his criminal history," to "discount or minimize the disciplinary infractions he has received during his incarceration," and to "limit his answers to the [psychologist's] questions regarding his criminal history, requiring further query and prompting." The psychologist noted Vicks denied being involved in the commitment offenses, and also denied the veracity of either the inculpatory evidence provided by Vicks's cousin or the identification by a victim of Vicks as one of the perpetrators. The psychologist "did not find [Vicks] to be a totally reliable or credible historian."

The psychologist also evaluated Vicks's potential for violence under two separate empirically-based assessment guides,*fn4 and evaluated Vicks's general risk of recidivism under two other empirically-based assessment guides.*fn5 Vicks's PCL-R score placed him the "low range," although it also suggested tendencies toward "Glibness/Superficial Charm, Pathological Lying, Conning/Manipulative, Lack of Remorse or Guilt, Shallow Affect, Callous/Lack of Empathy, and Impulsivity." Vicks's score on the HCR-20 placed him the "Moderate" risk category for violent recidivism. The LS/CMI placed him the "Moderate" category for risk of recidivism, and the STATIC-99 placed Vicks in the Medium-Low risk category.

The psychologist stated, based on his clinical assessment and the empirical guides, that Vicks presented a "Medium-Low risk for sexual recidivism and a Low to Moderate risk of violence or general recidivism."

D. Vicks's Criminal Background

Vicks had prior convictions for nonviolent offenses, and was on probation at the time of the commitment offenses.*fn6

E. Vicks's Rehabilitative Efforts

The evidence showed, and the BPH did not question, that Vicks's conduct while in prison has shown substantial progress. He had not been disciplined in any fashion for the prior seven years. His educational and vocational training was substantial, and he participated in numerous self-help and therapy groups.

F. Parole Plans

The evidence demonstrated, and the BPH did not dispute, that Vicks had viable parole plans, including a family support system, a job offer, and offers for living arrangements.


A. The BPH Proceedings

Vicks's minimum eligible parole date was in 2010. At his 2009 parole hearing, the BPH considered Vicks's testimony at the hearing, as well as the written reports, and ultimately concluded he was unsuitable for parole because he posed an unreasonable risk of danger to society if released.

The BPH relied on the facts of the crime, his prior criminal record, his current level of insight into or acceptance of responsibility for the crime, his disciplinary record while in prison, and his psychological evaluation to conclude he was not currently suitable for parole. The BPH then set a five-year period for Vicks's next parole eligibility hearing pursuant to Penal Code section 3041.5, subdivision (b)(3)(C).

The Habeas Proceedings

Vicks petitioned the San Diego County Superior Court for a writ of habeas corpus, but the trial court denied the petition, finding there was some evidence to support the BPH's decision. Vicks then petitioned this court for a writ of habeas corpus.


A. The Parole Decision

The decision whether to grant parole is a subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a number of factors, some objective, identified in Penal Code section 3041 and the BPH's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) In making the suitability determination, the BPH must consider "[a]ll relevant, reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b)), including the nature of the commitment offense; behavior before, during, and after the crime; the inmate's social history; mental state; criminal record; attitude towards the crime; and parole plans. (Cal. Code Regs., tit. 15, § 2402, subd. (b).) The circumstances that tend to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (Cal. Code Regs., tit. 15, § 2402, subd. (b).)

Circumstances tending to show suitability for parole include that the inmate: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use on release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law on release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)

These criteria are general guidelines, illustrative rather than exclusive, and "the importance attached to [any] circumstance [or combination of circumstances in a particular case] is left to the judgment of the [BPH]." (Rosenkrantz, supra, 29 Cal.4th at p. 679; Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) The endeavor is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, at p. 655.) Because parole unsuitability factors need only be found by a preponderance of the evidence, the BPH may consider facts other than those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.)

B. Standard for Judicial Review of Parole Decisions

In Rosenkrantz, the California Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch. The court first held that "the judicial branch is authorized to review the factual basis of a decision of the [BPH] denying parole . . . to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the [BPH] supports the decision to deny parole, based on the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)

In Lawrence, the Supreme Court noted that its decisions in Rosenkrantz and In re Dannenberg (2005) 34 Cal.4th 1061, and specifically Rosenkrantz's characterization of "some evidence" as "extremely deferential" and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, 29 Cal.4th at p. 667), had generated confusion and disagreement among the lower courts "regarding the precise contours of the 'some evidence' standard." (Lawrence, supra, 44 Cal.4th at p. 1206.) Lawrence explained some courts interpreted Rosenkrantz as limiting the judiciary to reviewing whether "some evidence" exists to support an unsuitability factor cited by the BPH or Governor, while other courts interpreted Rosenkrantz as requiring the judiciary to instead review whether "some evidence" exists to support "the core determination required by the statute before parole can be denied--that an inmate's release will unreasonably endanger public safety." (Lawrence, at pp. 1207-1209.)

The Lawrence court, recognizing the legislative scheme contemplates "an assessment of an inmate's current dangerousness" (Lawrence, supra, 44 Cal.4th at p. 1205), resolved the conflict among the lower courts by clarifying that the analysis required when reviewing a decision relating to a prisoner's current suitability for parole 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.) Lawrence clarified that the standard for judicial review, although "unquestionably deferential, [is] certainly . . . not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision--the determination of current dangerousness." (Id. at p. 1210, italics added.) Indeed, it is Lawrence's numerous iterations (and variants) of the requirement of a "rational nexus" between ...

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