Ct.App. 4/1 D056998 Super. Ct. No. CR63419 Court: Superior County: San Diego Judge: David M. Gill
The opinion of the court was delivered by: Liu, 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 Penal Code*fn1 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.
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.*fn2 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 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.
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.
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."*fn3 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 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.*fn4 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.
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, 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., 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.
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 Terms*fn5 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.*fn6 The 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 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  a summary denial of [an inmate's] request . . . or  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 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.*fn7 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 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.*fn8
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.)*fn9 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
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 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 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.]"*fn10 (Morales, supra, 514 U.S. at p. 511.)
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 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 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, ...