VICKS (MICHAEL) ON H.C.Non-Title Respondents, Randy Grounds and Board of Parole Hearings, Petition for ReviewCal.June 20, 2011| COPY In the Suprente Court of the State of California Ine 8194129 MICHAEL D. VICKS, Case No. S On Habeas Corpus. Fourth Appellate District, Division One, Case No. D056998 San Diego CountySuperior Court, Case No. CR 63419 The Honorable David M.Gill, Judge PETITION FOR REVIEW SUPREME COURT id Ey JUN 20 204 Fredenek K Omen Clerk KAMALA D. HARRIS Attorney General of California Deputy MANUEL M.MEDEIROS State Solicitor General DANER. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M.BINSACCA Supervising Deputy Attorney General JENNIFER G. Ross Deputy Attorney General State Bar No. 252493 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5774 Fax: (415) 703-5843 Email: Jennifer.Ross@do}j.ca.gov Attorneysfor Warden Grounds and the Board ofParole Hearings TABLE OF CONTENTS Page Petition for ROVICW .......cccccssessecesceeeseeeesneeeesneeeneeetesseseeeessesesreeaeeereateseessetes 1 IMtrOdUcCtiONn......ecceccccccsceeeeeeeeeeeeeteeteeee resents sneesseenieeeneesneeeeseesneeensnesensaeseagees 1 Issue for ROVICW ...ccccccceececsceceeceeeneeeeeeecneeneeeesnnecneeeeneesnsnesesencnsseesseesssseesengess 2 Statement of the Case ......ceccceseeeseeeseresseresseensessneesnesssssiesseessnneesseeesnseens 2 Reasons for Granting ReEVICW .0.....cecerent eteeeeenerseeeenetesrteeterseresersnnees 4 I This Court should grant review to settle the split on the important question whether the longer deferral periods of Marsy’s Law violate the ex post facto clause..........ce. 4 Il. Alternatively the court should grant review to return this case to the court of appeal to determine whether Marsy’s Law—asit is interpreted and implemented by the Board—has an impermissible ex post facto effect on Respondent VICKS. ..... cee eeseseeeseeesseeeceenssnsensesseeeesneeens 7 CONCIUSION 0... ee cecccceeesseeceeesteeeneeesneerseneesesseeceeseccneaescseeseeteeseeeseneysecueststeeneeen 9 TABLE OF AUTHORITIES Page CASES Garner v. Jones (2000) 529 U.S. 244 oo icccccccesessetsecesecereeneeseeseessneeeneeneesereeneesaesniesnesnaeees 5,7 Gilman v. Schwarzenegger (2011) 638 F.3d 1101 we.seeeseeseaueceeeeeeeuaececesereeseaeeestseseneesateseietenteeey 5,6 Inre Aragon (D058040, June 9, 2011) — Cal.App.4th —, 2011 WL 2239564............ 5,6 — In re Rosenkrantz (2002) 29 Cal4th 616... cecccccsscscecenscerenseeeeseesseeeesereteesrestresneenenntessarenees 5 In re Russo (2011) 194 CalApp.4th 144oocecesccneecntecseeesesnneersresessssenneeneeenaes 5,6 People v. Davis (1981) 29 Cal. 3d 814iecccccescsssecereeecnaescecereceaeenesseesstensesneesnesierenneeeeeey 7 Yamaha Corp. ofAmerica v. State Bd. ofEqualization (1998) 19 Cal4th Looeecsccseceseeeeseseneesceeesieeseneesnresseeeecuersnteeteeseteeseeey 7 STATUTES Penal Code : § B04 LS Le eeccccsceeteceecseeseseeeseceecsaeceeeesneseaeeesesieeceesseseesneeserseaeeraessensatenetens 2 § 3041. S(A)(3) ..eeeceeeeceeceeceesceneeeseceeeeeneeeeeeceeeaeeneceaeeseessesseeesseensersuenrecnaeesgs 3,7 § 3041.5, subd. (D)(3) oo. eeeceeetceeeneeetertsecnetsetnecsseeneerneseneessessaessssesseersenas 4 Court RULES California Rules of Court Rule 8. 500(D)(1) cece ccccccccesecsscceeceesseccnseceseenaeseeesseceeeersaeeeteeesiestieereeneesaes 2 Rules 8.500(b)(4), 8.528(d) ...ccecccccccceeceeseectececeenecteeeeesesesneeseesieesessneesstenaes 2 Rulle 8.528(d) ....cccccccccessscesseececenseeseceeeseuseseecstseeeessesseersseneeneesenenaeesetianaaneeerenea il PETITION FOR REVIEW TO THE HONORABLE TANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: INTRODUCTION Randy Grounds, Warden ofthe Correctional Training Facility, respondentin the court below, and the Board of Parole Hearings (Board), real party in interest, petition this Court to grant review ofthe split decision of the California Court of Appeal, Fourth Appellate District, Division One, filed May 11, 2011. (Exh. 1 — Slip opn.) The Court of Appeal denied respondent’s petition for rehearing on June 3, 2011; one justice would have granted rehearing. This case presents the important issue of whether the Board may continue to apply the longer parole-deferral periods implemented by Marsy’s Law, enacted by the California voters through the initiative process. Division One here foundthat the Board violated ex post facto principles by applying Marsy’s Law’s parole-deferral periods to inmates who were convicted before Marsy’s Law took effect. The Court of Appeal’s decision in this case, based in part on a misunderstanding of the Board’s ability to advance hearing dates—and without regard to the Board’s actual practice—subverts the voters’ intent to avoid unnecessary hearings for inmates whoare notlikely to receive favorable parole decisions for several years. Additionally, different panels of Division One have published twocasesfinding that Marsy’s Law’s parole-deferral periods do not violate ex post facto provisions when applied to inmates sentenced before its enactment. Thus, there is a split of authority within Division Oneover the question whether Marsy’s Law violates ex post facto provisions. Review is therefore appropriate to settle this important question of law and resolve the disagreement within the Fourth Appellate District concerning the interpretation of Marsy’s Law. (Cal. Rules of Court, rule 8.500(b)(1).) Alternatively, petitioner urges that this case be transferred to the Court of Appeal to consider Vicks’s ex post facto challengein light of the Board’s actual implementation ofthe statute. (Cal. Rules of Court, rules 8.500(b)(4), 8.528(d).) ISSUE FOR REVIEW Can Penal Codesection 3041.5, as amendedby the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” be applied to respondent Vicks without violating constitutional ex post facto guarantees? STATEMENT OF THE CASE In 1983, Vicks was convicted of two counts of rape, two counts of forcible oral copulation in concert, three counts of kidnapping, one count of kidnapping to commit robbery, multiple robbery counts, and several firearm enhancements. (Slip opn. at pp. 1, 3.) He was sentenced to 37 years 8 monthsto life, and has been incarcerated for approximately 28 years. (/d. at p. 1.) At his 2009 initial parole consideration hearing, one year before his minimum eligible parole date, the Board denied Vicks parole andset a five-year “deferral” before his next parole hearing. (/d. at pp. 2, 6.) In its parole decision, the Board relied on Vicks’s commitment offenses; his criminal history; his record of misconduct in prison;his failure to gain adequate insight into why he committed his crimes; and a recent psychological evaluation, which assessed him as a “medium-low”risk of sexual recidivism and a “low to moderate”risk of violent and general recidivism. The psychological evaluation supported the Board’s finding of inadequate insight. (Slip opn. at pp. 3-6.) Vicksfiled a petition for writ of habeas corpus in the San Diego County Superior Court, arguing that the Board failed to articulate the requisite nexus between the evidence and his current dangerousness. (Slip opn. at p. 7.) The superior court denied his petition. (7bid.) Vicks then filed a habeas corpuspetition in the Court of Appeal for the Fourth Appellate District, Division One, arguing that the Board’s decision was not supported by some evidence, and that the application of Marsy’s Lawto set his parole-deferral at five years violated ex post facto principles. (Slip opn. at p. 2.) After formal briefing, oral argument, and three rounds of supplemental briefing, the Court of Appeal on May 11, 2011, granted the petition in part, in a published decision, The court unanimously upheld the Board’s denial of parole, but the panelsplit on the constitutional question. The majority held that the changesto the statutory parole-deferral periods enacted by Marsy’s Law violate ex post facto principles. (Slip opn. at pp. 17, 40.) Presiding Justice Nares dissented, concluding that the provisions allowing the Board to advance a hearing date, and permitting the inmate to request an advancement“eliminate any ex post facto implications because they constitute qualifying provisions that minimize or eliminate the significant risk of prolonging a prisoner’s incarceration.” (/d., dis. opn. at p. 5.) Respondentpetitioned for rehearing, arguing that the Court of Appeal erred in concluding that the amendedstatute imposesa three-year “blackout period” during which the inmate cannot request an advanced hearing. The petition pointed out that language in the statute indicates that the three-year prohibition applies only to subsequent,notinitial, requests for advancement (Pen. Code, § 3041.5(d)(3)[“the inmate shall not be entitled to submit another request” emphasis added]). More importantly, the petition advised the court that the Board’s implementation documents for Marsy’s Law include a “Petition to Advance Hearing Date,” which was contained in the record below and clearly states: “You can make oneinitial request for an advanced hearing date following a denial of parole at any time, but from then on you can only submit requests once every three years.” (Respondent’s Pet. for Rehrg., pp. 3-4; see http://www.cdcr.ca.gov/BOPH/docs/BPH_1045%28A%29- PetitiontoAdvanceHearingDate.pdf (emphasis added). Additionally, respondentargued that the Board’s reasonable interpretation of the statute—which is more favorable to Vicks than the court’s interpretation— was entitled to consideration. The Court of Appeal denied the petition on June 3, 2011, noting that Presiding Justice Nares would have granted the petition. REASONSFOR GRANTING REVIEW I. THIS COURT SHOULD GRANT REVIEW TO SETTLE THE SPLIT ON THE IMPORTANT QUESTION WHETHER THE LONGER DEFERRAL PERIODS OF MARSY’S LAW VIOLATE THE EX POST FACTO CLAUSE. Before the passage of Marsy’s Law, life-term inmates convicted of kidnapping to commit robbery, rape, and violent crimes other than murder could be denied parole for one to two years; murderers could be denied parole from one to five years. Marsy’s Law amended the Penal Code so that the Board may denyparole to any life-term inmate forfifteen, ten, seven,five, or three years. (Pen. Code, § 3041.5, subd. (b)(3).) The amendedstatute allows the Board to advance a subsequentparole hearing on its own, or in response to the inmate’s request. (/d. at subds. (b)(4), (d)(1).) | The statute indicates that the increased deferral periods applyto all parole-consideration hearings. (/d. at subd. (a).) The Court of Appeal for the Fourth Appellate District is internally split over the question whether Marsy’s Law violates ex post facto concerns whenapplied to inmates convicted before its effective date. In Jn re Russo, one panel of Division One (Benke,Haller, and Huffman, JJ.) found no ex post facto violation because Marsy’s Law did not increase sentences and because the provisions allowing the Board to advancea hearing, and for the inmate to request an advancement, “constitute qualifying provisions that minimize or eliminate the significant risk of prolonging [petitioner’s] incarceration.” Un re Russo (2011) 194 Cal.App.4th 144, 158, pet. for review filed May 18, 2011 (No. $193197), quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 650 and citing Garner v. Jones (2000) 529 U.S. 244, 251, internal quotation marks omitted.)' The panel below rejected the reasoning ofthe Russo panel. (Slip opn., pp. 36-37, fn. 22.) And, shortly after the decision of the Vicks panel, yet a third panel of Division One (Aaron, McConnell, andIrion, JJ.), agreed with the Russo panel that Marsy’s Law effects no ex post facto violation, criticizing the analysis of the Vicks panel. (dn re Aragon (D058040, June 9, 2011) — Cal.App.4th _, 2011 WL 2239564.) In contrast to the Russo and Aragon panels, the panel here held that Marsy’s Law amountsto an ex post facto law. (Slip. opn. at pp. 40-41.) In reaching that conclusion, the court focused largely on its theory that Marsy’s Law increased the minimum deferral period yet did not allow the ' The Ninth Circuit Court of Appeals has indicatedits initial agreement with this analysis, holding thata district court abusedits discretion in granting a preliminary injunction because there were nofacts in the record implying that Marsy’s Law created a significant risk of prolonged incarceration. (Gilman v. Schwarzenegger (2011) 638 F.3d 1101, 1110—- 1111; see also id. at p. 1108 [Even assuming, without deciding, that the . statutory changes decreasing the frequency of scheduled hearings would create a risk of prolonged incarceration, the availability of advance hearings is relevant to whether the changesin the frequency of parole hearings create a significant risk that prisoners will receive a greater punishment.”].) Board any discretion to advance a hearing during theinitial three years.” (Slip opn. at pp. 31-35; see also id. at pp. 19-20, fn. 10.) The court here also found significance in the fact that the default deferral period is the maximum deferral period, rather than minimum deferral period, and that the Board’s discretion to depart from that schemeis constrained. (/d. at pp. 35-40.) Whetherthe longer deferral periods can be appliedto life-term inmates convicted before the effective date of Marsy’s Law is an important question with a significant impact on the public interest. The Board conducts thousandsof hearings each year for life-term inmates.” The answerto the question of whetherthe law requires a minimum deferral period of one year between parole hearings (pre-Marsy’s Law)or instead permits a minimum deferral period of three years (post-Marsy’s Law) will significantly affect the number of hearings the Board conducts going forward. And as the Legislative Analyst noted in the Voters’ Guide for the November2008 election, the numberof hearingshasa significant fiscal effect on thestate. (http://www.voterguide.sos.ca.gov/past/2008/general/analysis/prop9- analysis.htm [“The provisions of this measure that reduce the numberof parole hearings received by inmatesserving life terms wouldlikely result in state savings amounting to millions of dollars annually.”].) * This is not the only permissible reading ofthe statute. (See Russo, supra, 124 Cal.Rptr.3d at pp. 454-455 [appearingto readstatute as allowing inmate to request advancementat any time]; Gilman, supra, 638 F.3d at p. 1105 [same].) And as noted abovein the Statement of the Case, the Board advised the panelin its petition for rehearing that this is not the interpretation that the Board givesthe statute in practice—butto no avail. See http://www.cdcr.ca.gov/BOPH/docs/BPH_Suitability_HearingSummary_ 1978-2010.pdf [indicating that the Board convened between 4,900 and 7,100 hearings per year between 2005 and 2010].) Moreover, because three panels of Division One of the Fourth Appellate District have already reached conflicting conclusions, this Court should grant review to prevent inconsistent outcomesin the superior courts and disparate treatment of life-term inmates. | II. ALTERNATIVELY THE COURT SHOULD GRANT REVIEW TO RETURN THIS CASE TO THE COURT OF APPEAL TO DETERMINE WHETHER MARSY’S LAW—ASIT IS INTERPRETED AND IMPLEMENTED BY THE BOARD—HASAN IMPERMISSIBLE EX POST FACTO EFFECT ON RESPONDENT VICKS. Becausethe Board is the agency charged with implementing the statute, its reasonable interpretation is entitled to consideration. (Garner, supra, 529 U.S. at pp. 256-257 [The Court of Appeals erred in not considering the Board’s internal policy statement. ... It is often the case that an agency’s policies and practices will indicate the manner in whichit is exercising its discretion.”]; Yamaha Corp. ofAmerica v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8, 12-15 [holding that an agency interpretation of the meaning andlegal effect of a statute is entitled to consideration and respect by the courts].) Here, the court gave no consideration to the Board’s interpretation that section 3041.5, subdivisions (d)(1) and (d)(3) do indeed authorize inmates to make an initial request for an advanced hearing—atany timeafter a denial of parole. Instead of considering the Board’s reasonable interpretation of the advancement provision—and,indeed, the actual manner in which the Board implements Marsy’s Law—the court choseto interpret section 3041 .5(d)(3) in a manner unfavorable to inmates, thereby triggering the very ex post facto concerns that formedthe basis for striking down the law as to every life-term inmate. (Slip opn., at p. 19 fh. 10; cf. People v. Davis (1981) 29 Cal.3d 814, 828— 829 [holding that an ambiguousstatute should be interpreted in the way most favorable to the criminal offender, and consistent with the statutory Janguage and purpose,to eliminate doubt as to the provision’s constitutionality].) Accordingly, to eliminate the current split within Division Oneof the Fourth Appellate District, this Court should grant review and return this case to the court below for reconsideration of the constitutional issue in light of the Board’s interpretation and implementation of the statute. (Cal. Rules of Court, rule 8.528(d).)* * The Board is also going to request that the decision below be depublished. Although depublication would eliminate the split of authority within Division One, by leaving the judgmentintact depublication would have the incidental effect of requiring the Board to give Vicks a new parole hearing annually. Accordingly, if the Court is inclined to vacate the decision below, a grant-and-transfer is the preferable method. CONCLUSION This Court should grant review to resolve the important question of whether Marsy’s Law violates ex post facto concerns. Alternatively, review should be granted and the matter transferred to the Court of Appeal to reconsider the ex post facto issue in light of the Board’s interpretation and implementation ofthe statute. Dated: June 20, 2011 $D2010800701 20466030.doc Respectfully submitted, KAMALAD. HARRIS Attorney General of California MANUEL M. MEDEIROS State Solicitor General DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYAM.BINSACCA Supervising Deputy Attorney General JENNIFER G. ROSS Deputy Attorney General Attorneys for Warden Grounds and the Board ofParole Hearings CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13 point Times New Romanfont and contains 2,265 words. Dated: June 20, 2011 KAMALA D, HARRIS Attorney General of California JENNIFER G. ROSS Deputy Attorney General Attorneys for Respondent Randy Grounds and the Board ofParole Hearings CERTIFIED FOR PUBLICATION COURT OF APPEAL - FOURTH APPELLATEDISTRICT : Court Of Appeal Fourth District LED DIVISION ONE STATE OF CALIFORNIA MAY 14 2011 Stephen M. Kelly, Clerk DEPUTY In re MICHAEL VICKS D056998 on (San Diego County Super. Ct. No. CR63419) Habeas Corpus. Petition for writ of habeas corpus from denialof parole. Relief granted in part. Steve M. Defilippis, under appointment bythe Court of Appeal, for Petitioner. Edmund G. Brown,Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Anya M. Binsacca, Phillip Lindsay and Jennifer G. Ross, Deputy Attorneys General, for Respondent. 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 tolife. Vicks, now51 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 manyindices and, considering numerousother factors (including Vicks's prior criminal record, his disciplinary record while incarcerated,his failure to gain insight into the commitmentoffense, and his psychological evaluation), concluded Vicks wasnot currently suitable for parole. The BPH further concluded a five-year denial of parole was appropriate underthe 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. Weissued an order to show cause, the People filed a return, and Vicksfiled a traverse. Vicks asserts the BPH's decision to deny parole violated due process becauseits conclusion that he posed an unreasonable risk of dangerto society if released on parole was contrary to the only reliable evidence that he was not currently dangerous. He also asserts the imposition ofa five-year deferral, pursuantto the amendments to Penal Code! section 3041.5, subdivision (b), adopted after the voters approved Proposition 9, otherwise knownas 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 someevidence, pursuant to the guidance provided by Jn re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) All statutory references are to the Penal Code unless otherwise specified. and In re Shaputis (2008) 44 Cal.4th 1241. Wealso 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 Lawviolates ex post facto principles. FACTS 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. Becausethe 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)),2 and Vicks does not dispute that this aspect of the BPH's determination is supportedby the requisite level of evidence, we do not further detail the commitmentoffenses. 2 Factors in support ofthe finding that the crime was committed "in an especially heinous, atrociousor crue] manner" (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)), include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents: (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused,defiled, or mutilated duringor after the offense; (D) the offense was carried out ina mannerthat demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable orverytrivial in relation to the offense. B. Vicks's Disciplinary Record in Prison Duringhis first 20 years in prison, Vicks received four "CDC 1 15's""3 (the most recent was in 1999 for indecent exposure), although noneofthe fourseriousrule violations involved violence. During thosefirst 20years, 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 discounthis 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 criminalhistory, requiring further query and prompting." The psychologist noted Vicks denied being involved in the commitment offenses, andalso denied the veracity ofeither the inculpatory evidence provided by Vicks's cousin or the identification by a victim of Vicksas one ofthe perpetrators. The psychologist "did not find [Vicks] to be a totallyreliable or credible historian." 3 "[A] CDC 115 documents misconductbelieved to be a violation of law whichis not minor in nature. A form 128 documents incidents of minor misconduct." (in re Gray (2007) 151 Cal.App.4th 379, 389.) The psychologist also evaluated Vicks's potential for violence under two separate empirically-based assessment guides,4 and evaluated Vicks's general risk of recidivism under two other empirically-based assessment guides.> Vicks's PCL-R score placed him the "lowrange." althoughit 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/CMIplaced him the "Moderate" categoryfor risk of recidivism, and the STATIC-99 placed Vicks in the Medium-Lowrisk category. The psychologist stated, based onhis clinical assessment and the empirical guides, that Vicks presented a "Medium-Lowrisk 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.© 4 The guides used to assess Vicks's potential for violence were the Psychopathy Checklist-Revised (PCL-R) and the History-Clinical-Risk Management-20 (HCR-20). 5 The guides used to assess Vicks's general risk of recidivism were the Level of Service/Case ManagementInventory (LS/CMI) and the STATIC-99, 6 Vicks had one conviction in 1978 for which he received probation. In 1981, he was convicted of receiving stolen property and placed on 12 months' probation, but was subsequentlyarrested four monthslater for anothertheft-related offense, for which he received three months in jail and was placed onsix years' probation, > D E. Vicks's Rehabilitative Efforts The evidence showed, and the BPH did not question, that Vicks's conduct while in prison has shownsubstantial 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. I HISTORY OF PROCEEDINGS 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 unreasonablerisk of danger to society if released. The BPHrelied on thefacts 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 BPHthenset 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 CountySuperior Court for a writ of habeas corpus, but the trial court deniedthepetition, finding there was some evidence to support the BPH's decision. Vicks then petitioned this court for a writ of habeas corpus. II] LEGAL STANDARDS A. The Parole Decision The decision whetherto grant parole is a subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a numberof factors, some objective, identified in Penal Codesection 3041 and the BPH's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) In makingthe suitability determination, the BPH mustconsider "{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 circumstancesthat 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 problemsrelatedto the offense; and (6) has engagedin serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).) A factor that alone might not establish unsuitability for parole maystill contribute to a finding of unsuitability. (Cal. Code Regs., tit. 15, § 2402, subd. (b).) Circumstances tending to showsuitability for parole includethat the inmate: (1) does not possess a recordof violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crimeasthe 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 onrelease; and (9) has engagedin institutional activities that indicate an enhancedability 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 circumstancesin a particular case] is left to the judgmentofthe [BPH]." (Rosenkrantz, supra, 29 Cal.4th at p. 679; Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) The endeavoris 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 preponderanceofthe evidence, the BPH mayconsider facts other than those foundtrue bya jury or judge beyond a reasonable doubt. (/d. at p. 679.) B. Standard for Judicial Review of Parole Decisions In Rosenkraniz, the California Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch. Thecourt first held that "the judicial branch is authorized to reviewthe factual basis of a decision ofthe [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 bystatute and regulation.” (Rosenkrantz, supra, 29 Cal.4th at p. 658.) In Lawrence, the Supreme Court notedthatits 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 "Tojnly a modicum of evidence" (Rosenkrantz, supra, 29 Cal.4th at p. 667), had generated confusion and disagreement amongthe lowercourts "regarding the precise contours ofthe '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 Governorthat the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence ofcertain factual findings." (Ud. at p. 1212.) Lawrence clarified that the standard for judicial review,although "unquestionably deferential, [is] certainly . . . not toothless, and ‘due consideration’ofthe 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." (/d. at p. 1210,italics added.) Indeed,it is Lawrence's numerousiterations (and variants) of the requirement of a "rational nexus" between the facts underlying the unsuitability factor and the conclusion of current dangerousness that appears to form the crux of, and provide the teeth for, the standards adopted in Lawrence to clarify and illuminate "the precise contours of the 'some evidence' standard." (/d. at p. 1206.) After clarifying the applicable standard of review, Lawrence addressed how one "unsuitability" factor—whether the prisoner's commitment offense was donein a particularly heinous, atrocious, or cruel manner—canaffect the parole suitability determination, and whetherthe existence of some evidence supporting the BPH's finding that the offense was particularly heinous, atrocious, or cruel is alone sufficient to deny 10 parole. Lawrence concluded that when there has been a lengthy passageoftime,the BPH maycontinueto rely on the nature of the commitment offense as a basis to deny parole only when there are otherfacts in the record, including the prisoner's history before andafter the offense or the prisoner's current demeanor and mentalstate, that provide a rational nexus for concluding an offense of ancient vintage continuesto be predictive of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221.) IV ANALYSIS OF CHALLENGE TO UNSUITABILITY FINDING Although the precise contours of Vicks's arguments are obscure, it appears he asserts there is no evidence ofsufficient substantiality on which the BPH could properly rest its determination that he would pose an unreasonable risk of dangerto the communityif released on parole. First, he argues the BPH improperlyrelied on the commitment offenses because Vicks maintains heis factually innocentandthis proclamation of innocence bars consideration of Vicks's current mentalattitudes toward the crimes. He argues that becausethe applicable statute precludes the BPH from requiring an inmate to admit guilt for the offense as a condition to granting parole (see, €.2., Pen. Code, § 5011, subd. (b); In re Aguilar (2008) 168 Cal.App.4th 1479, 1491). an inmate's profession of factual innocence bars the BPH from relying on the inmate's lack of insight into or remorsefor the offenses when considering whether to set parole. Vicks alternatively asserts any evaluative import that may have been gleaned from the commitment offenses has evaporated because ofthe passage of time. Fromthese 1] predicates, Vicks argues there is no other evidence in the record to support a finding of unsuitability because (1) the conclusions reachedby the psychologist were so fatally flawed that his opinion was inadmissible, and (2) no other evidence supported the finding of current dangerousness. We conclude that, even assuming the BPH could not consider Vicks's attitude toward the commitment offenses, there is other evidence from which it could have concluded he was unsuitable for parole. There is no dispute the evidence permitted the BPHto concludethe crimes were especially egregious. However, because there has been a lengthy passage of time since those crimes were committed, Lawrence teaches that the BPH maycontinueto rely on the nature of the commitment offenseas a basis to deny parole only whenother facts in the record,including the inmate's history before and after the offense or the inmate's current demeanor and mentalstate, provide a rational nexus for concluding thoseoffenses continue to be predictive of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1211, 1214, 1221.) We conclude that, in this case, there is some evidence—including Vicks's history before and after the offense as well as his current demeanor and mental state—from which the BPH could rationally conclude the commitmentcrimes remain probative of Vicks's dangerousness. A. Vicks's History Before and After the Offenses Although Vicks's criminal record before the commitment offenses did not involve violence, his prior offenses were escalating in seriousness. More importantly, his history demonstrated that he had reoffended while on probation, and the fact he had been twice granted—andhad twice violated—probation by committing crimes while on probation is 12 some evidence from which the BPH could conclude he posed an unreasonablerisk of repeating that pattern if granted parole. Finally, although Vicks's recent disciplinary record in prison has been unblemished, he received 11 disciplinarycitations while in the highly controlled setting of a prison, including a serious rules violation for using banned substances in 1993 and anotherserious rules violation for sexually inappropriate behavior in 1999. Because Vicks had shown that, despite 10 to 15 years of institutional programming,he could relapse into behavior patterns that may have contributed to the crimes of which he was committed, the BPH could conclude an additional period of discipline-free behavior was required to show that the influences and impulses leading to the crimes had been eradicated to a sufficient degree that he would not pose an unreasonable risk of relapsing into prior behavioralpatterns. B. Vicks's Current Demeanor and Mental State In addition to Vicks pre- and postincarceration behavior, the BPH considered and was expressly discomfited by the facts and opinions contained in the psychological evaluation.’ The psychologist concluded there were several factors that "increase the inmate's risk of violence in the community." Thereport stated: 7 Amongthe tendencies referred to in the psychological evaluation were tendencies for glibness or superficial charm, pathological lying, and being conning or manipulative, and the psychologist expressly stated Vicks was not "a totally reliable or credible historian." The BPH mayhave confirmed these tendencies for themselvesat the hearing: after Vicks proclaimedthat his reformation included his Christian faith and he had connected with an outside church through correspondence and prayer, a board member asked Vicksto identify his favorite New Testament book. When Vicks responded "Proverbs," the member noted that was an Old Testament book and again asked Vicks about his favorite New Testament book, to which Vicks replied "probably be Exodus," 13 "Of concern . . . are several factors that appear to contribute to an elevated risk status for the inmate in reference to violence and future offending. The inmate committed the life crimesat a relatively young age, and he has a substance abuse history which also beganat a relative[ly] young age. The inmate appears to have demonstrated a pattern of increasing criminal activity, and has a history of failure while on supervised release prior to the commission of the [commitment offenses] .... The record suggests a significant level of indifference and violence demonstrated during the [commitment offenses}. Additionally, [Vicks] has a diagnosis of Cannabis Abuse by history. In reference to the [commitmentoffenses], [Vicks] continues to deny[guilt]... .. Hence, he wasnotable to identify the impact his actions have had on the victims .... Therefore, the inmate appears to have limited insight into how his choices and decisions may have contributed to the [commitment offenses]. This form of thinking would be expected to cause difficulties with [Vicks's] ability to identify and changehis poor decision- making .... [Vicks] has a past history of antisocial peer associations, if he were to find himself continuing to affiliate with such individuals in the community, this reasonably increaseshis chancesof recidivism .... Additionally, [Vicks] appears to show a tendency to discounthis criminal history and lacks insight into the underlying sourcesof his antisocial/criminal behavior. If he were to feel depressed or anxious or other negative emotions in combination with reduced behaviorcontrols, he maybe at significantly increased risk of future violence." The psychologist's observations, and particularly that Vicks's tendencyto discount his criminal history andhis lack of understandingof the underlying sourcesofhis antisocial/criminal behavior would be expected to cause difficulties with Vicks's ability to identify and changehis poor decision-making and to avoid relapsing into antisocial which the Board memberagain noted was not from the New Testament. We makethese observationsnotto denigrate the sincerity or fervor of Vicks's profession of a newly found spiritual awakening, but only to note thatthis exchange could provide some evidence from which a rational person might conclude the tendencies of manipulative behavior and lying were in fact presentin Vicks. 14 peer associations, provide some evidence under Shaputis to support the BPH's finding he posed an unreasonablerisk to the communityif released on parole. In this proceeding, Vicks argues the entire report should have been excluded based on flawed methodologyor because certain conclusions exceeded the guidelines issued by the Departmentof Corrections. We are not persuaded by his arguments. First, although Vicks was represented by counsel at the BPH hearing, he raised no objection to the report, and therefore has waived any claim it was improperly admitted and considered by the BPH. (Cf. People v. Neely (2009) 176 Cal.App.4th 787, 794.) Second, manyofthe challenges raised by Vicksin this habeas proceeding, whichassert that the reliability of some of the indices employed by the psychologist were of dubious validity, are founded on citationsto articles and correspondencethat were notpart of the record below, and we therefore must disregard that material in this proceeding. (People v. Jacinto (2010) 49 Cal.4th 263, 272-273, fn. 5 [appellate court generally not the forum in whichto develop an additional factual record and reviewing courts generally do nottake Judicial notice of evidence not presented belowbut only consider matters. part of record at time Judgment rendered].) Most importantly, the core of Vicks's argument appears to assumethat, insofar as some aspects of the report either expressed conclusions about his future dangerousness or incorporated measurements based on his PCL-R or HCR-20 score, the conclusions reached bythe psychologist would be inadmissible because they do not pass muster underthe so called "Kelly-Frye"8 rule. However, Vickscites nothing to suggest that the strictures applicable to admitting evidencein a criminal proceeding apply with equal force to parole proceedings, and the analogouslawis to the contrary. The courts have recognized that decisions to grant and to rescindparole are sufficiently analogous to warrantthe application of similar standards for judicial deference to those decisions (see, e.g., J re Ramirez (2001) 94 Cal.App.4th 549, 562-564, disapproved on other grounds by Inre Dannenberg, supra, 34 Cal.4th at p. 1100), and both federal and state law decisions in the parole revocation context have madeclearthat "there is no thought to equate fa parole revocation hearing] to a criminal prosecutionin any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence includingletters, affidavits, and other material that would not be admissible in an adversary criminaltrial." (Morrissey v. Brewer (1972) 408 U.S. 471, 489; accord, Pope v. Superior Court (1970) 9 Cal.App.3d 636, 640-641 [parole revocation proceedings by " 'the Adult Authority are wholly administrative in nature,’ and its determinationis not a judicial act [citation]. The Adult Authority is not limited to the same rules of evidence applicable in a judicial proceeding.”].) Vicks cites nothing to convince us that a more stringent evidentiary . standard should applytotheinitial decision to grant parole, or that the BPH is sua sponte obligated to disregard evidence merely because that evidence might be inadmissible in a criminaltrial under Kelly-Frye, and wetherefore reject Vicks's claim that the BPH was precluded from relying on the psychologist's report in this proceeding. People v. Kelly (1976) 17 Cal.3d 24; Frye v. US. (D.C. Cir. 1923) 293 F. 1013. 16 Webelieve any deficiencies that might infect a psychologist's adverse report, although perhapsproviding fertile grounds for an inmate to challenge the weight to be accorded that report, does not entirely bar the BPH from considering the report. We reject Vicks's claim that, as a matter of law, the psychologist's report provides no modicum of evidence to support the finding of unsuitability. C. Conclusion We conclude the BPH's unsuitability determination is supported by some evidence, and therefore affirm its determination on the issue of Vicks's current unsuitability forparole. V ANALYSIS OF EX POST FACTO CHALLENGE The BPH concludeda five-year deferral before Vicks would again be considered for parole, as permitted under Penal Codesection 3041.5, subdivision (b)(3), was appropriate. Vicks argues the amendments to Penal Codesection 3041.5, subdivision (b), which implement aspects of Marsy's Lawto permit the five-year deferral, when applied to him, violates ex post facto principles. A. Background Former Law Vicks's commitment offenses occurred in 1983. At that time, section 3041.5 provided that when an inmate was denied parole, he or she was entitled to have the matter reviewed annually at a subsequent suitability hearing. However, that law gave discretion to the BPH to defer the subsequentsuitability hearing for two years (for all life sentence 17 prisoners) or three years (for life sentence inmates convicted of murder) if the BPH found it was not reasonable to expect that parole would be granted soonerthan twoor three years, respectively.? (See Stats. 1982, ch. 1435, § 1, p. 5474.) Current Law In 2008, the voters enacted Marsy's Law, which amendedsection 3041.5 to provide longer deferral periods between parole hearings, and to modify the standards and considerations for determining which of the longer deferral periods would beselected by the BPH panel. Becauseit is the application of these changesto Vicks that assertedly offends the ex post facto clause, we detail those changes. The mostsignificant changeis that, when the BPH denies parole, the amendments mandate longer deferrals for the subsequent suitability hearing than those permitted under the prior statutory scheme. Undercurrentlaw, the subsequent suitability hearing date mustbeset at either 15 years or 10 years unless the BPHfinds by clear and convincing evidence that the factors relevant to deciding suitability for parole "are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner" than either 15 or 10 years. ($ 3041.5, subds. (b)(3)(A) & (B).) Even if the BPH finds byclear and convincing evidence that neither the 10- nor 15- year deferral is necessary to protect the safety of the public or the victims, the BPH must 9 Section 3041.5 was later amended to permit a five-year deferral of subsequent suitability hearings for life sentence inmates convicted of more than two murders, although it also provided thatif such a longer deferral was imposed, the parole authority wasrequired to conducta file review within three years and had discretion based on that reviewto conduct an earlier parole hearing. (Stats. 1990, ch. 1053, § 1, pp. 4380-4381.) 18 select a seven-year deferral for the subsequentsuitability hearing unless it concludes the suitability factors examined at the hearing "are such that consideration of the public and victim's safety . . . [do] not require a more lengthy period of incarceration for the prisoner than seven additional] years," in which event the BPH maysetthe deferralateither five years or three years. (§ 3041.5, subd. (b)(3)(C).) A second aspect of the changes adopted under Marsy's Lawis that, although an inmate may request the BPH to advance the subsequent parole suitability hearing date to an earlier date because of changed circumstances or newinformation (§ 3041.5, subd. (d)(1)), the inmate maynot obtain review pursuant to this provision earlier than three years after a decision denying parole has been madeeven if there are changed circumstances or newinformation.!9 (§ 3041.5, subd, (d)(3).) Additionally, if the 10 Section 3041.5, subdivision (d)(3), appearsto set a three-year "blackout" period for an inmate to trigger the advanced hearings safeguard, because that section states that "[flollowing either a summary denial of a request made pursuant to paragraph [(d)(1)], or the decision ofthe boardafter a hearing described in [section 3041.5, subdivision (a)] to not set a parole date, the inmate shall notbe entitled to submit another request for a hearing pursuantto [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 ofthe boardafter 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. Certainly, section 3041.5, subdivision (b)(4), nominally appears to preserve the ability of the BPH on its own motion to advance a subsequentsuitability hearing date to a date earlier than that set, as long as there are changed circumstances or newinformation that establish a reasonablelikelihood the inmate will be found suitable for parole. However, neither the statute nor the administrative regulations explain the mechanism by which the BPH would (absent a request from the inmate under § 3041.5, subd. (d)(1)) 19 inmate petitions to advance the subsequentsuitability hearing date and eitherhis or her request is summarily denied orit is denied after a hearing on the merits, the inmate may not petition again to advance the subsequentsuitability hearing date to an earlier date until three more years have elapsed from either the summary denial or the hearing on the merits.!1 (§ 3041.5, subds. (d)(1) &(d)(3).) B. Ex Post Facto Principles The core of ex post facto law is to bar application of laws that criminalize conduct not criminal when done, or increase punishmentfor a crime above the punishment the | law specified at the time the crime was committed. In Calder v. Bull (1798) 3 US. | (Dall.) 386, 1 L.Ed. 648, the court explained at page 390that the ban against ex post facto laws under the federal Constitution 12 prohibits four general categories of laws: (1) a law become cognizant ofthe changed circumstances or newinformation that might trigger ‘sua sponte action by the BPH to advancethe hearing date. © 1] Another change apparently operable under the current version of section 3041.5 is that the version of section 3041.5 operable at the time of Vicks's commitment offenses permitted the BPH to depart from the one-year deferral period and order a two-year deferral if it found it was not reasonable to expect that parole would be granted sooner than two years andstated the bases for that determination. (See Stats. 1982, ch. 1435, § 1, p. 5474.) No similar requirement of a statement of reasonsis found in the current version of section 3041.5, subdivision (b)(3). Additionally, although the considerations guidingthe finding (underthe formerversion of § 3041.5) that would justify a longer deferral period were apparently limited to an assessment of the same factorsthat guideall suitability determinations, Marsy's Law now requires the BPH toset the deferral period "after considering the views andinterests of the victim." (§ 3041.5, subd.(b)(3).) 12 Although Calder v. Bull examined the ex post facto clause of the federal Constitution, the ex post facto clause in the California Constitution is analyzed in the same manneras its federal counterpart. (People v. Castellanos (1999) 21 Cal.4th 785, 790.) We may therefore resort to federal law to evaluate Vicks's ex post facto arguments. 20 that makes criminal an action not criminal when done; (2) a law that aggravates a crime or makes it greater than it was when committed; (3) a lawthat increases the punishment for a crimeafier it was committed: and (4) a law that alters the legal rules of evidence and requires less or different evidence to convict the offender of a crime than the law required at the time the crime was committed. !3 As the court explained in John L. v. Superior Court (2004) 33 Cal.4th 158: "[A]n ex post facto violation does not occur simply because a postcrime law withdrawssubstantial proceduralrights in a criminal case. [Citation.] Even new methodsfor determining a criminal sentence do not necessarily involve punishmentin the ex post facto sense. [Citations]... "Contrary to whatpetitioners imply, the ex post facto clause regulates increases in the '" ‘quantum of punishment.'"' [Citations.] Although no universal definition exists [citation], this concept appears limited to substantive measures, standards, and formulas affecting the time spentincarcerated for an adjudicated crime. For example, an ex post facto violation occurs wherelawssetting the length of a prison sentence are revised after the crime to contain either a longer mandatory minimum term [citation], or a higher presumptive sentencing range [citation]. Impermissible increases in punishmentalso have been found where a new postcrime formula for earning gain-time credits postpones an inmate's eligibilityfor early release [citation], or where retroactive cancellation of 13 The languagein Collins v. Youngblood (1990) 497 U.S. 37 created substantial doubt whether the fourth category remained viable for ex post facto purposes. Many subsequent California decisions interpreted Collins's exclusive reference to the first three categories, and its statement that the fourth category did not prohibit the application of newevidentiary rules, to mean ex post facto principles were violated only by laws within the first three categories. (See, e.g., People v. Frazer (1999) 21 Cal.4th 737, 756; Tapia v. Superior Court (1991) 53 Cal.3d 282, 293-299.) However,the decision in Carmel] y. Texas (2000) 529 U.S. 513 clarified that Calder v. Bull's fourth category has not been eliminated as part of the ex post facto doctrine and remains a category of laws prohibited from operatingretroactively. (Carmell, at pp. 514-515, 537-539.) 2] overcrowding credits requires reimprisonment of an inmate who has been freed." (/d. at p. 181.) C. Ex Post Facto Law and Changesto Parole Suitability Rules Vicks contends section 3041.5, as amended by Marsy's Law,if applied to him violates ex post facto protections because it increased his sentence(i.e., punishment) beyondthe term that applied when the crime was committed in 1983. He arguesthat, under the statutory scheme applicable in 1983, he would have been eligible for a new parole hearing not more than twoyears after theinitial denial of parole, but must now wait at least three years (even if he could show changed circumstances or new information)or upto five years before his suitability for parole may be reexamined. Vicks argues the longer period before he may obtain his subsequentsuitability hearing creates the risk that he will remain incarcerated longer thanifhis subsequentsuitability hearing had been scheduledatthe earlier date prescribed by the statutory schemein effect at the time of his commitmentoffenses. The John L. court explained, however, that "not every amendmenthaving ‘any conceivablerisk’ of lengthening the expected term of confinementraises ex post facto concerns. [Citation.] In [California Dept. of Corrections v. Morales (1995) 514 US. 499], a California lawallowed the parole board, after holding aninitial hearing, to defer subsequentparole suitability hearings up to three years for inmates convicted of multiple homicides, provided it found parole was not reasonably likely to occur sooner. (/d. at p. 503.) Finding noretroactive increase in punishment, the high court emphasized that there had been no changein the applicable indeterminate term,in the formula for earning 22 sentence reduction credits, or in the standards for determining either the initial date of parole eligibility or the prisoner's suitability for parole. (/d. at p. 507.)... At bottom, no ex post facto violation occurred because the risk of longer confinement was ‘speculative and attenuated! (7d. at p. 509), and because the prisoner's release date was essentially ‘unaffected’ by the postcrime change. (/d. at p. 513: [citation].)" (John L. v. Superior Court, supra, 33 Cal.4th at pp. 181-182.) In California Dept. of Corrections v. Morales, supra, 514 U.S. 499 (Morales) and again in Garnerv. Jones (2000) 529 U.S. 244 (Garner), the United States Supreme Court evaluated ex post facto challenges to parole laws that bore some resemblanceto the changes wrought by Marsy's law. "The controlling inquiry . . . [is] whether retroactive application of the change... . created 'a sufficient risk of increasing the measure of punishment attached to the covered crimes.'" (Garner, at p. 250 [quoting Morales, at p. 509].) A sufficient risk is one that is "significant," (Garner, at p. 255) rather than merely "speculative and attenuated." (Morales, at p. 509.) The alteration in the legislative scheme mayposea sufficient risk either "by its own terms" or where "the rule's practical implementation . . . will result in a longer period of incarceration than under the earlier rule." (Garner, at p. 255.) However,neither case articulated a single formula for determining whentherisk reached a level of sufficiency to offend ex post facto protections. (Morales, at p. 509.) We must examine the particular principles and rationales employed by Garner and Morales to guide our evaluation of whether Marsy's Lawoffends ex post facto protections byposing a sufficientrisk, either by its own terms or by its practical implementation, ofresulting in a longer period ofincarceration than under the old rule. (Garner, supra.) Morales In Morales, a California inmate challenged the 1981 amendmentsto section 3041.5. Prior to the amendments,all life prisoners whose sentences included the possibility of parole received annualparole hearings. The 1981 amendmentauthorized the BPH to defer subsequentsuitability hearings for up to three years, but only for certain prisoners (those convicted of " 'more than one offense which involvesthe taking ofa life'") (Morales, supra, 514U.S. at p. 503, quoting former Pen. Code, § 3041.5, subd. (b)(1}) and only if the BPH found "‘it [was] not reasonable to expect that parole would be granted at a hearing during the followingyears and state[d] the bases for the finding.’ " ([bid.) Morales held that the risk ofprolonged confinementposed by this amendment's terms wasnotsufficient to violate the ex post facto clause. (Morales, supra, 514 U.S. at p. 512.) The court provided three reasons for this conclusion. Most importantly, the court concluded the only group ofinmates impacted by the increased deferral periods under the amendments (e.g. multiple murderers) would be unlikely to have been found suitable at an earlier date because, in general, inmates convicted of multiple murders wereparticularly unlikely to be foundsuitable for parole.!4 (Morales, supra, 514 US. at pp. 511-512.) Second, even amongthis subset of inmates, the additionaldeferral period 14 In contrast, Marsy's Law appliesto al/ inmates serving indeterminate terms, not merely the subclass ofthose offendersleast likely to obtain parole at an earlier hearing. 24 was not mandatory but instead would be increased only where the BPH had made specific findingsthat an individual inmate was unlikely to be foundsuitable for parolein the deferral period, and the length of the increased deferral would be specifically tailored to the BPH's findings. (/bid.) Finally, even assuming there were inmates (within the larger group the BPH had found were unlikely to be found suitable for paroleif a subsequent suitability hearing were held within one year) who could showthere was a change in circumstancessufficient to call into question theBPH's projection that suitability would be foundat a one-year hearing, those inmates could seek to advance the hearing date. (/d. at p. 512; In re Jackson (1985) 39 Cal.3d 464, 475.) | Because the terms of the 198] amendmentincreased deferral of subsequent suitability hearings onlyin cases in which the BPH projected it would be unlikely there would be an earlier finding of suitability, and because advanced hearings were available as a safety valve to bring about a hearing where changed circumstances undercut the BPH's projections, the court concluded that "the narrowclass 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." (Morales, supra, 514 U.S. at p. 512; see also Garner, supra, 529 U.S. at pp. 250-251 [explaining Morales turned on the facts that deferral was increased only whenthe likelihood of release was lowand that advanced reconsideration was available when circumstances changed].)!5 15 The concurring and dissenting opinion interprets Morales as supportingits conclusion that application of Marsy's Lawto Vicks and others similarly situated does not offend ex post facto provisions, because it concludes Morales's holding was based on 25 Garner The United States SupremeCourt in Garner again considered an inmate's challenge to a changein parole regulations that decreased the frequency of parole hearings. Prior to the change, when an inmate wasinitially found unsuitable for parole, the Georgia parole board was required to conduct a further hearing every three years. (Garner, supra, 529 U.S. at p. 247.) The regulation was amendedto provide for reconsideration "at least everyeight years." (/bid., quoting the amended rule.) Garner concluded that two features of the changed regulation, both of which were also present in Morales, militated against finding application of the new regulation to the inmate was barred by ex post facto principles. (Garner, supra, 529 U.S. at p. 254.) The first feature was that Georgia's parole board haddiscretion in setting the length of the deferral period andthat board's policy was to impose a lengthened period when it was "not reasonable to expect that parole would be granted during the interveningyears.' " (/bid.) Absent such a finding, the Georgia parole board would apparently set hearingsat four factors and "these same factorsare also present in [Marsy's Law]." (Conc. & dis. opn., at p. 5, post.) Although one ofthe factors (no effect on the dateofthe initial parole hearing) is present, the other three factors are not: the new law in Morales gave the Board discretion to "tailor the frequencyofparole hearing” by scheduling the same deferral period followinga denial ofparole (i.e., a one-year deferral) as existed underthe prior law, but Marsy's Law eliminates that discretion; the new lawin Morales constrained the Board's discretion to order a longer deferral (by requiring particularized findings justifying a more than one-year postponement), but Marsy's Law mandates a longer deferral; and the newlaw in Morales gave the prisoner the ability to in effect reinstate his previous rightto a hearing at one-year intervals (by showing changed circumstances), but Marsy's Law imposes three-year blackout periods. Moreover, Morales was carefulto note the new law applied only to those prisoners already particularly unlikely to be found suitable for parole (i.e., multiple murders), but Marsy's Law applies to even those prisoners (including Vicks) whose life offenses do not include murder. 26 the times provided by the old rule. The second feature was the regulation's explicit provision of" 'expedited parole reviewsin the event of a change in [an inmate's] circumstance or where the Board receives new information that would warrant a sooner review.’ " (Ibid.)!6 The court illustrated the effect of these qualifications with the particular _ circumstancesof the inmate in that case. (Garner, supra, 5329 U.S. at p. 255.) The parole board had deferred the inmate's next parole suitability hearing for the maximum period of eight years. The inmate's history—including a prior escape from prison and a subsequent act of murder—madeit unlikely that, even if the parole board were to conduct a suitability hearing in the interveningtime, the inmate would be foundsuitable for parole. However, if a change in circumstances or new information arosethat would call the parole board's assessment into question, the inmate could seek earlier review. ([bid.) 16 The concurring and dissenting opinionalso relies on Garner to support its conclusion that application of Marsy's Lawto Vicks and others similarly situated does not offend ex post facto provisions, because it concludes Garner relied on the "same factors ... present in [Marsy's Law]." (Conc. & dis. opn., at p. 5. post.) However,as previously discussed, Garner concluded two factors of the changed regulation (both of which werealso present in Morales) militated against finding application of the new regulation to the prisoner wasbarred by ex post facto principles. The first factor was that Georgia's parole board had discretionin setting the length of the deferral period by scheduling the same deferral period following a denial of parole that applied underthe prior law, while Marsy's Laweliminates that discretion. The second factor noted by Garner was the regulation's explicit provision of expedited parole reviewsin the event of a change in circumstances or newinformation, by which the prisoner could reinstate his previousright to a hearingat the priorintervals (by showing changed circumstances); in contrast, Marsy's Lawsets three-year blackoutperiods that preclude the prisoner from initiating proceedingsto reinstate his previous right to hearings at the prior one-year intervals. For these reasons, the salient factorsrelied on by Garner to conclude there was no ex post facto violation are not present in Marsy's Law. 27 Based on these provisions, the court concluded application of the changed regulation did not facially violate ex postfacto protections. (/d. at p. 256.)!7 Subsequent Decisions Neither Morales nor Garner required that the risk of prolonged incarceration be precisely quantified as a predicate to whether application of the new parole rules would be barred by ex post facto protections. Instead, each looked to whether inmates who could expectrelease (or hada significant chance ofbeing released) at an earlier time under the former rule had a significant risk of being released onlyat a later time under the newrule. In both cases, the court found that, because subsequent hearings would be delayed only when there wasno appreciable likelihood ofan earlier release, the new rules did not violate ex post facto protections. Subsequent cases applying Morales and Garner have similarly examined whether changesin statutoryor regulatory rules governing parole may beapplied to existing inmates without violating ex post facto protections. Recognizing that the significant inquiry "looksto the challenged provision, and not to any special circumstances that may mitigate its effect on the particular individual" (Weaverv. Graham (1981) 450 U.S. 24, 33), the Ninth Circuit in Brown v. Palmateer (9th Cir. 2004) 379 F.3d 1089 applied Garner and Morales to conclude the changed standards challenged in Brown created a 17 The court left open the possibility that the Board's exercise ofthe discretion provided by the statute would, in practice, present a significant risk of increased punishment. (Garner, supra, 529 U.S. at pp. 256-257.) However, the court found no evidenceto this effect in the record beforeit. 28 sufficiently significant risk of longer incarceration to violate ex post facto protections. }8 (Brown v. Palmateer, supra, 379 F.3d at pp. 1094-1096.) Similarly, in Himes v. Thompson(9th Cir. 2003) 336 F.3d 848, a prisoner argued application of the newrules was barred by ex post facto protections based on two changesin the rules governing a prisoner's eligibility for "rerelease"after a grant of parole had been revoked: changesin the factors to be considered in deciding "aggravation," and changesin the impact that an affirmative finding of aggravation would have ona prisoner's eligibility for rerelease. (id. at pp. 854-863.) The court concluded, although the former changes did notcreate a sufficientrisk of longer incarceration to trigger ex post facto concerns(id. at pp. 856- 858), the latter change did trigger ex post facto concerns, Under the newrules,the parole authority waslimited to a binary choice of either rereleasing the inmate after 90 days or (if it made an affirmative finding of aggravation)entirely denying rerelease to an inmate for the balance ofhis or her sentence. (/d. at p. 859.) In contrast, the formerrules did not mandate outright denial ofrerelease as the only available aggravation remedy, but allowed a selection amonga graduated series of terms of confinement. ({bid.) This 18 In Brown, the former statute permitted the parole authority to postpone a scheduledrelease when there was a" 'psychiatric or psychological diagnosis of present severe emotional disturbance’ " (Brownv. Palmateer, supra, 379 F.3d at p. 1091) of the inmate, thus posing a danger to the community, while the new scheme under whichthe inmate's release date was postponed permitted postponement" 'fa]f the Board finds the [inmate] has a mental or emotional disturbance' " that would pose a dangerto society. (/bid.) Because the formerstatute required a medical diagnosis as a predicate to postponement. while the latter statute permitted the Board to postponerelease if it found a mental or emotional disturbance regardless of the existence of (or even contrary to) a medical diagnosis, the court concludedthe requisite risk of longer confinement was present for purposes of ex post facto protections. (Ud. at p. 1095.) 29 constriction of available release dates, concluded Himes, was a sufficiently significant increasein the possibility of serving a more lengthy period of incarceration to preclude application of the new rules underex post facto provisions. (id. at pp. 863-864.) D. Marsy's Law The decisions in Garner and Morales, as well as the application of those cases in other courts, turned on the particular features of the laws under consideration. (See, e.g., Morales, supra, 514 U.S. at p. 509, fn. 5 [expressly declining to consider whether alternative enactments changing the timing of parole hearings could be unconstitutional}.) Here, Vicks asserts the changeseffectuated by Marsy's Lawpresenta distinct set of changes outside the boundariesof the changes that Garner and Morales found not to violate ex post facto principles. Unlike Garner and Morales, which considered permissive extensions ofthe maximum possible parolehearing date, Marsy's Laweffectuates numerous significant changes: (1) it mandates increases in the minimum deferral date and appears to constrain the ability of the BPH to consider and act on new information or changed circumstances, (2) it reduces the BPH's discretion to order a deferral for less than the maximum possible term and entirely eliminates the BPH's discretion to order a deferralfor less than the minimum term, and (3) it increases the maximum deferral date. Because Garner's ex post facto analysis carefully examined each category of change (Garner, supra, 529 U.S. at pp. 251-252; see also Morales, supra, 514 U.S. at p. 513), we examineeachalteration enacted by Marsy's Law. 30 Increased Minimum Deferral Periods Garner and Morales both emphasized that, under the new laws they considered, a longer deferral would be imposed only whenthe parole board foundit unreasonable to expectparole would be granted in the interim. (Garner, supra, 529 U.S. at p. 254; see also Morales, supra, 514 U.S. at pp. 511-512.) In contrast, Marsy's Law increasesthe minimum deferral period for all inmates (from oneto three years) regardless of the BPH's expectation about whetherthe inmate may becomeeligible for parole at an earlier date. (§ 3041.5, subd. (b)(3)(C).) Thus, unlike the laws reviewed by Garner and Morales (which provided the relevant parole boards with discretion to impose the pre-amendment deferral period), there appears to be no discretion under Marcy's Law to tailor the deferral to either a one- or two-year deferral even where the BPH believes an individual inmate will likely achievesufficient progressin his or her rehabilitation to warrant parole in one ~ or two moreyears. The People appearto argue therisk of an increased period of incarceration created by lengthier mandatorydeferrals between suitability hearings is ameliorated bythe inmate's ability to request (and the BPH's ability to order) that a deferred hearing date be advanced on a showingof changed circumstances or new information. Although the People's argument is somewhat murky, the unstated predicates to the argument appear to be (1) any deferral occurs only when the BPH concludes the inmateis not presently suitable for parole, (2) a subsequent hearing will not result in the inmate's release unless some fact changes to render him orher suitable, and (3) under the former system the BPH would schedule the next hearing in one yearifit thought the requisite change would 3] possibly occurin that time, or two yearsif the BPH thoughtit was not reasonable to expect this possibility would cometo fruition. The People appear to argue that, although the three-year minimumprevents the BPH frompresently scheduling an earlier hearing based onthis possibility, if the requisite change actually occurs then the occurrence will entitle the inmate to an advanced hearing. Thus, as best we can discern, the People argue that in all the circumstances in which an inmate would have actually been released under the former system, the inmate will also be released under the new system, albeit pursuant to a different procedure, and therefore there is no substantial risk of increased incarceration by applying Marsy's Lawto all inmates. Although the People correctly note that the possibility of advanced hearings serving as a safety valve was oneof the several factors considered in Garner and Morales, neither case suggestedthat the ability to advance a hearing wasitself sufficient to ameliorate ex post facto concerns. (Garner, supra, 529 US.at p. 251 [lookingat totality of the factors]; Morales, supra, 514 U.S. at p. 509 [same].) More importantly, neither Garner nor Morales evaluated a system like the statutory regime presented by Marsy's Law, in which an inmate is expressly barred from first seeking to trigger the safety valve for a minimum ofthree years(andis also expressly barred from thereafter seeking to trigger the safety valve for another minimum ofthree years) even ifthere are changed circumstances or new information that would have resulted in a favorable suitability determination at a regularly scheduled one- or two-year deferred hearing in 32 which the newinformation or changed circumstances would be considered, !9 (§ 3041.5, subd. (d)(1).) Although the former statutory scheme would permit annual (or biennial) examinations of changed circumstances or newfacts supporting a release on parole, inmates must now wait at least an additional year (or two years) before changed circumstances or newfacts supporting a release on parole will be considered, resulting in a significant risk that an inmate will spend a longer period of incarceration under Marsy's Lawthan under the former system ,29 19 As previously noted (see fn. 10, ante), although Marcy's Law nominally appearsto allow the BPH sua sponte to advance a subsequentsuitability hearing date based on changed circumstances or newinformation, the absence of any Statutory or regulatory requirements (as was presentunder the 1990 enactment requiring the parole authority to conduct a file review within three years and to act on that information to conduct an earlier parole hearing when appropriate, see fn. 9, ante) by which the BPH might obtain information for that action appears de facto to relegate advanced hearings to those triggered by the "inmate request" provisions. Because there is no mechanism by which the BPH might sua sponte generate new information, or any mechanism by which the BPH might sua sponte /earn of either new information or changed circumstances on which it might act, an inmate who would have obtained a new hearing as early as one year after his or her last hearing must now wait a minimumofthree years before obtaining a new hearing. Thus, although sua sponte advanced hearings are nominally available, it appears "the rule's practical implementation .. . will result in a longer period of incarceration than underthe earlier rule" (Garner, supra, 529 U.S. at p. 255) because of the absence of anypractical method for triggering this advanced hearing. 20 Weare loathe to characterize the risk of increased incarceration as insubstantial because we apprehendthat inmatés who do obtain rehabilitation sufficient for parole presumablydo so over a time continuum. That is, some inmates will achieve the requisite rehabilitation during the first year after denial, while a second group of inmates will achieve the requisite rehabilitation after the first year but during the second yearafter denial, while the third group requires three years. Under the old system, although thelast of these three groups will not incur any additional incarceration as a result of the minimum deferrals required by Marsy's Law, the first and second groups will be certain to suffer an additional incarceration under the minimum deferrals required by Marsy's Law, because they would have been heardat an earlier date but are nowbarred from 33 In summary, Marsy's Law, unlike the changes considered in Morales and Garner, increases the minimum deferral period and removesthe ability of the BPHtoselect among agraduatedseries of deferrals of less than three years. (Himes v. Thompson, supra, 336 F.3d at p. 864 [the switch "from a flexible continuum to a compelled determination that the inmate be returnedfor his entire remaining sentence... increased the 'mandatory minimum’punishmentfor a particular category of inmates, [citation] creating a ‘sufficient risk' of increasing the measure of punishment" under Morales].) The changes will necessarily increase the periodof incarceration for those inmates currently found unsuitable for parole but who havea significant chance of becoming suitable in Jess than two years and, havingservedtheir base terms, would be granted immediate release if found suitable. (Cf. Morales, supra, 514 U.S. at p. 513.) Finally, the possibility of an advancedhearing is an inadequate substitute for a scheduled hearing when the BPH reasonably expects that an inmate will become suitable for parole in less than two years, or when circumstances unexpectedly change or new facts unexpectedly develop during the additional two-year period that would demonstrate suitability. Accordingly, the change in the minimum deferral perioditself creates a significant risk of being heard until after an additional one or two years. We acknowledgethat there exists the fourth category of inmates—those who would not have achieved the requisite rehabilitation even duringthose three years and would suffer no immediate harm from a three-year denial. However, because the fourth group of inmates would again be subjected to a mandatory three-year denial, the cyclical continuum would recommence and manyof those inmates would eventually become membersofthe first, second, and third groups, two of which groupswill be certain to suffer an additional incarceration under the minimum deferrals required by Marsy's Law. 34 prolonged incarceration for inmates who would have received shorter deferral periods under the formerstatute. Limits on BPH's Discretion and Increase In Default Maximum Deferral | A second aspect of Marsy's Lawthat incrementally addsto the risk of a longer period ofincarceration is the added constraint placed on the BPH's discretion. First, as discussed above, there appearsto be no discretion under Marcy's Law(unlike the laws considered in Garner and Morales) to tailor the deferral to either a one- or two-year deferral even if the BPH believes an individual inmate will likely achieve sufficient progress in his or her rehabilitation to warrant parole in one or two moreyears. Second, in addition to raising the minimum deferral period, Marcy's Law also increasesthe default deferral period to 15 years while simultaneouslylimiting the BPH's ability to reduce the maximum deferral period. Under the scheme applicable in 1983, the default was the minimum one-year period and the Board had discretion to impose a longer deferral only whenit was "not reasonable to expect that parole would be granted at a hearing during the following year[s]." (See Stats. 1982, ch. 1435, § 1, p. 5474.) Moreover, because this longer deferral was permissive only, the BPH haddiscretion to impose less than the maximum even whenit was not reasonable to expect parole would be granted sooner. Under Marsy's Law, however, the default deferral is now the maximum 15-year deferral (§ 3041.5, subd. (b)(3)(A)), and the BPH's discretion to depart from that maximum period is constrained: it may depart from that default and set a lesser deferral only where it finds, by "clear and convincing evidence,"2! that "consideration of the public and victim's safety does not require a more lengthy period ofincarceration." (§ 3041.5, subd. (b)(3)(A).) Becausethis aspect of Marsy's Law imports (into the departure from the default 15-year deferral) "consideration ofthe public safety,” which is also the determinant of parole suitability, Marsy's Lawappearsto allowa deferralforless than the maximum only when clear and convincing evidenceindicates parole will actually be granted at the next hearing. Thus, the BPH no longerhasthe discretion (whichit apparently had underthe former scheme)to depart from the maximum deferral periods and schedule an earlier hearing when it does not expect parole to be granted at an earlier hearing. Because Marsy's Law constrains the discretion to set earlier hearings (and entirely eliminates the discretion to set hearings earlier than three years), rather than expands the discretion to set deferred hearings, it bears scant resemblance to the schemes considered by Garner or Morales.22 Those cases examined changesthat, like California's prior 2] Neitherparty has identified whether this aspect of Marsy's Law changesthe quantum of proof previously governing BPH determinations, which precludes us from assessing whetherthis change mightalso raise ex post facto concerns under Calderv. Bull's fourth category (see fn. 13, ante). 22 For this reason, we respectfully disagree with the holding in Jn re Russo (Apr.8, 2011, D057405)_—Cal.App.4th [2011 WL 1332164]. In Russo, a panel ofthis court rejected an ex post facto challenge to Marsy's Law by relying on Garner and Morales. However, Russo's analysis contains no extended evaluation ofthe salient rationales underlying the holdings in Garner and Morales, and therefore could not apply those cases to determine whether (considering the reasoning of Garner and Morales) the ~ features of Marsy's Law mightcall for a different conclusion. (See, e.g., fn. 14, ante.)a Additionally, Russo stated that "the parole board may grant, and the inmate may request 36 system, granted the BPH discretion to postpone subsequentparole hearings when the BPH madespecific findings that an earlier release was unlikely, which convinced those courts that application of the newrules did notcreate a sufficiently significant increasein _ the possibility of serving a more lengthyperiod ofincarceration to offend ex post facto protections. (Garner, supra, 529 U.S. at p. 254 [longer deferral permitted where"‘it is not reasonable to expect that parole would be granted during the intervening years’ "]; Morales, supra, 514 U.S. at p. 507 [longer deferral only where no reasonable probability to expect that parole would be granted at a hearing duringthe following year].) ... an earlier parole hearing" (Russo, at p. *9, italics added), which Russo concluded "eliminate[s] any ex post facto implications because they constitute ‘qualifying provisions that minimizeoreliminate’ [citation] the 'significant risk of prolonging [petitioner's] incarceration.'" (/bid.) However, Russo overlooked that because an inmate must wait three years to invoke that safeguard (see § 3041.5, subd. (d)(1)), that "qualifying provision" does nof minimizeor eliminate the risk of prolonging the period of incarceration for inmates who achieve rehabilitation earlier than three years after their last hearing. (See fns. 19 & 20, ante.) For similar reasons, weare also unpersuaded by the recent decision in Gilman v. Schwartzenegger (9th Cir. Jan. 24, 2011, No. 10-15471) __F.3d_ [201] WL 198435]. The Gilmancourt, although acknowledging that "the changes required by Proposition 9 appear to 'create[s] a significant risk of prolonging [Plaintiffs'] incarceration’ "(id. at p. *6), concluded the availability of the advanced hearings " ‘would remove anypossibility ofharm' to prisoners who experienced changes in circumstances between hearings." (/bid., quoting Morales, supra, 314 US. at p. 513, italics added by Gilman.) This conclusion again ignoresthat the "possibility of harm" remained extant during the three-year blackout period for prisoner-initiated requests. Indeed, when the Gilman court rejected the plaintiffs’ argumentthat there would " necessarily be a delay between any meritorious request for an advance hearing and the grant of such hearing’ " (Gilman, at p. *7) as unsupported bythe evidence, Gilmandid so because the plaintiffs "fail[ed] to explain howthesestatutory requirements makeit ‘virtually impossible’ for a prisoner to receive an advance hearing within one year ofthe denial of parole—theprevious default deferral period." ({bid.) However, the explanation for whyit is "virtually impossible" for a prisonerto successfully pursue an advance hearing within one year ofthe denial ofparole is that the statute bars an inmate-initiated request for an advanced hearing for three years. 37 We must assess whether this second set of changes—imposinga longer default maximum deferral period while simultaneously limiting the BPH's discretion to depart from that maximumby requiring (as a condition to departing from the maximum) that there be clear and convincing evidence supporting a prediction that the inmate will achieve rehabilitation before that maximum deferral period term would expire—increases the probability that application of the new rules will cause inmates to serve more lengthy periods of incarceration than they would have served underthe old rules. Because ex post facto principles may preclude application of new rules even when an inmate " ‘cannot show definitively that he would have gotten a lesser sentence’ " (Millerv. Florida (1987) 482 U.S. 423, 432), and instead "[t]he controlling inquiry ... [is] whether retroactive application of the change... created 'a sufficientrisk of increasing the measure of punishmentattached to the covered crimes' " (Garner, supra, 529 U.S, at p. 250), we must assess whether these changes do create such a risk. Weappreciate that it is hard to predict when many inmateswill becomesuitable for parole and,in a significant number ofcases, the evidence will not support a prediction (one wayor the other) regarding future suitability for parole. Under the former rules, yearly (or bi-yearly) hearings were held to reevaluate suitability and afforded the BPH the ability to respond flexibly to unforeseeable progressat these periodic hearings; the formerrules also provided the BPH with discretion to schedule a one-year hearing even if it believed it was unlikelysufficient progress would be achieved but the BPH nevertheless wished to preserveits ability to respondto unexpected progress. Marsy's Law, however, eliminates this discretion and appearsto place on the inmate the burden of 38 proving, clearly and convincingly, that future suitability will be attained earlier than 15 years. If it is frequently impossible to make anyconfident prediction as to whether an inmate will (or will not) achieve the requisite progress, reallocating the burden of proof and simultaneously imposing a 15-year default deferral if that burden is not met effectively removesthe prior presumption of periodic scheduled hearings andrestricts the BPH's ability to respond timely to change. In Miller v. Florida, supra, 482 U.S. 423, the court concluded application of a new set of rules could be barred by expost facto principles even if the change did not automatically lead to a more onerousperiod ofincarceration than under the prior rules. In Miller, the court considered a challenge to application of Florida's new sentencing guidelines. (/d. at p. 425.) The former guidelines provided a presumptive range of three and one-half to four and one-half years for the crime: a sentence within the presumptive range could be imposed with no statement of reasons and, although a judge could depart from the range to impose a higher or lower term,he or she could only do so by providing clear and convincing written reasonsfor the departure. The new guidelines imposed a higher presumptiverangeoffive and one-half to seven years for the crime, but were otherwise similar to the prior system. (/d. at pp. 424, 426-427.) The petitioner was sentenced to seven years under the newpresumptive range, and the court found application of the newguidelines would violate the ex post facto clause—despite the fact the petitioner could have received the same sentence under the former law—becausethe changes imposed a higher presumptive minimum while constraining the judge's discretion to imposethe lower sentence to cases in which clear and convincing reasons 39 could be articulated for imposing a lower sentence. (Jd. at pp. 428, 435.) Marsy's Law similarly lengthens the presumptive period of incarceration, and limits the BPH's discretion to depart from that presumptive period to cases in which clear and convincing evidence supports a departure from the lengthened presumptive period. These interrelated aspects of Marsy's Lawfurther contributeto the risk of prolonged incarceration. E. Conclusion Increasing the minimumdeferral date and constrainingthe ability of the BPH to consider and act upon newinformation or changed circumstanceswill adversely impact those inmates whoserehabilitative progress during the two years after an unsuccessful parole hearing may have otherwise warranted parole but must now wait until the three- year blackout period imposed under Marsy's Law haslapsed. Additionally, lengthening the presumptive period of incarceration and limiting the BPH's discretion to depart from that presumptive period to cases in which clear and convincing evidence supports a departure incrementally increases the risk of a more lengthy incarceration for those inmates who,althoughnotready for parole before the end ofthe two-year hiatus under the former rules, have been sufficiently rehabilitated during the ensuing years but were unable to provide clear and convincing evidence to have obtained a parole hearing earlier than the presumptive 15- or 10-year deferrals. Garner teachesthat changes must be reviewed "within the whole contextof[the state's] parole system" (Garner, supra, 529 U.S. at p. 252), and that ex post facto principles bar application of newrules when they create a significant (rather than a speculative and attenuated) risk of increasing the 40 measure of punishmentattached to the covered crimes. (Garner, at pp. 250-251.) We conclude the risk of increased incarcerationis real and significant, rather than speculative or attenuated, and therefore the changesto section 3041.5 enacted pursuant to Marsy's Law maynot be applied to inmates whosecrimespredated the effective date of Marsy's Law. DISPOSITION The relief requested in the petition for writ of habeas corpus is granted in part. The 2009 orderis vacated to the extent it defers Vicks's subsequent parole suitability hearing for five years under section 3041.5 as amended pursuant to Marsy's Law,and the BPHis directed to issue a new order rescheduling the hearing under section 3041.5 in effect in 1983. In all other respects,relief is denied. Delehl McDONALD,J. I CONCUR: MEINTERY i ) 4] NARES,J, concurring and dissenting: I concurin the majority's decision that some evidence supports the Board ofParole Hearing's (Board) decision to deny parole. However,I respectfully dissent from the majority's decision that the Victims' Bill of Rights Act of 2008: Marsy's Law (hereafter Marsy's Law) (Pen. Code,! § 3041.5) violates state and federal constitutional protections against ex post facto laws. The United States Constitution provides that "[nJo State shall... pass any .. . ex post facto Law." (U.S. Const., art. I, § 10.) A law violates the ex post facto clause of the United States Constitution if it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makesa crime's punishment greater than when the crime was committed; or (3) deprives a person of a defense available at the time the crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 52 [110 S.Ct. 2715]}.) The ex post facto clause " ‘is aimed at lawsthat retroactively alter the definition of crimes or increase the punishmentfor criminal acts.'" (Himes v. Thompson (9th Cir. 2003) 336 F.3d 848, 854 (Himes), quoting Souch v. Schaivo (9th Cir. 2002) 289 F.3d 616, 620; see also Cal. Dep't ofCorr. v. Morales (1995) 514 U.S. 499, 504 [115 S.Ct. 1597] (Morales). The ex post facto clauseis also violated if: (1) state regulations have been applied retroactivelyto a defendant; and (2) the new regulations havecreated a "sufficient risk" of increasing the punishmentattachedto the defendant's crimes. (Himes, 336 F.3d at p. 854.) J All further statutory references are to the Penal Code. However, not every lawthat disadvantages a defendant is a prohibited ex post facto law. The retroactive application ofa change in state parole proceduresviolates ex post facto principles only if there exists a "significant risk" that such application will increase the punishmentfor the crime. (See Garnerv. Jones (2000) 529 U.S. 244, 255 [120 S.Ct. 1362] (Garner).) Before Proposition 9 (otherwise known as Marsy's Law) was enacted, the length of a parole hearing deferral was determined by section 3041.5, subdivision (b)(2). That section provided: "The board shall hear each case annually... , except the board may schedule the next hearing no later than the following: [{] (A) Two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be grantedat a hearing during the following year and states the bases for the finding. [{] (B) Uptofive years after any hearing at whichparoleis denied if the prisoner has been convicted of murder, and the board findsthatit is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing." (Italics added.) As the majority discusses, Proposition 9 substantially changed the law governing deferral periods. The most significant changesare as follows: the minimum deferral period is increased from oneyear to three years, the maximum deferralperiodis increased from five years to 15 years, and the default deferral period is changed from one year to 15 years. (§ 3041.5, subd. (b)(3).) Additionally, before Proposition 9 was enacted, the deferral period was one year unless the Board found it was unreasonable to expect the prisoner would becomesuitable for parole within one year. (§ 3041.5, subd. (b)(2).) After Proposition 9, the deferral period is 15 years unless the Boardfinds by clear and convincing evidence that the prisoner will be suitable for parole in 10 years, in whichcase the deferral period is 10 years. (§ 3041.5, subd. (b)(3)(A-B).) If the Board finds by clear and convincingevidencethat the prisonerwill be suitable for parole in seven years, the Board has discretion to set a three-, five-, or seven-year deferral period. (§ 3041.5, subd. (b)(3)(B-C),) However, Proposition 9 also authorized the Board to advance a hearing date onits own accordor at the requestof a prisoner. "The board mayinits discretion . . . advance a hearing .. . to an earlier date, when a change in circumstances or new information establishes a reasonablelikelihood that consideration of the public and victim's safety does not require the additionalperiod of incarceration ofthe prisoner...." (§ 3041.5, subd. (b)(4).) Also, a prisoner may request an advance hearing by submitting a written request that "set[s] 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." (§ 3041.5, subd. (d)(1).) A prisoneris limited to one such request every three years. (§ 3041.5, subd. (d)(3).) Moreover, although the | minimum deferral periodis three years, there is no minimum period the Board must wait before it holds an advance hearing. (§ 3041.5, subd. (b)(4).) As will be discussed, post, I believe that these protections eliminate any "significant risk" application of Marsy's Law will increase a prisoner's punishmentforhis or her crime. In analyzing whether these changes violate ex post facto principles, we are guided by United States Supreme Court precedentthat has addressed similar changes in laws governing parole. In Morales, supra, 514 U.S. at pages 502-503, the defendant was sentenced to 15 yearsto life for a murder committed while on parole from a prior murder sentence. As noted, ante, section 3041.5, subdivision (b)(2) at that time provided for annual subsequent parole reviews. (Morales, at pp. 502-503.) In 1981, the law was amended to allow the Board to delay a subsequent hearing for up to three yearsif the prisoner had been convicted of more than one offense involvingthe takingofa life and the Board found it unreasonable to expect that parole would be grantedin intervening years. (Ibid.) Theinitial parole hearing for Morales occurred in 1989. (/d. at p. 502.) The Board found Morales unsuitable for parole and that it was not reasonableto expect that he would be foundsuitable for parole in 1990 or 1991. (/d. at p. 503.) The Boardset the next parole hearing for 1992. (/bid.) Morales filed a federal habeas corpuspetition, arguing that the 1981 amendment, as applied to him, constituted an ex post facto law. (/d. at p. 504.) The high court in Morales rejected that contention, concluding that the 1981 amendment "creates only the most speculative and attenuated possibility of producingthe prohibited effect of increasing the measure of punishmentfor covered crimes, and such conjecturaleffects are insufficient under any threshold we might establish under the Ex Post Facto Clause." (Morales, supra, 514 U.S. at p. 509.) In doing so, the court noted (1) the amendmentdid notaffect the date of the initial parole suitability hearing; (2) the Board retained discretion to tailor the frequencyofparole hearingsto the circumstances of individual prisoners; (3) the Board was required to makeparticular findings justifying the postponement of a subsequent hearing more than a yearin the future; and (4) an expedited hearing could occurif a prisoner experienced such a change in circumstanceas to make suitability for parole likely. (/d. at pp. 510-513.) Similar protections are also present in the current version of section 3041.5. While Morales did not involve a change to the minimum deferral period, the default deferral period, or the burden to impose a deferral period other than the default period, the procedural safeguards in subdivisions(b)(4) and (d)(1) allowing an advancehearing by the Board would removeanypossibility of harm to prisoners because they would not be required to wait a minimum ofthree years for a hearing. Those subdivisions eliminate any ex post facto implications because they constitute qualifying provisionsthat minimize or eliminate the significantrisk of prolonginga prisoner's incarceration, The Supreme Court also addressed retroactive changes in laws governing parole in Garner, supra, 529 U.S. 244. When the defendant committed his offense and was sentenced, the rules of Georgia's parole board required reconsideration of parole to take place every three years. (/d. at p. 247.) In 1985 the board amendedits rules to provide that reconsideration for inmates serving life sentences would take placeat least every eight years. (/bid.) Although Georgia's amended parole rules permitted extension of parole reconsideration by five years (not just the two years in Morales ), appliedto all prisoners serving life sentences (not just to multiple murderers), and afforded fewer procedural safeguards than in Morales, the Court foundthat these differences were "not dispositive." (/d. atp. 251.) In finding that Georgia's amended parole rules did not violate ex post facto principles, the Court noted under Georgia's amendedstatute that the parole board maintained the discretion to denyparole for a range of years and permitted 5 an expedited reviewif a change of circumstances or newinformation indicated that an earlier review was warranted. (id. at p. 254.) Again, similar protections are present in the current version on section 3041.5 that eliminate any ex post facto implications. Ourhigh court has also addressed the constitutionality of retroactive changes to periods for parole review. In Jn re Jackson (1 985) 39 Cal.3d 464, the court examined an amendmentto an earlier version of section 3041.5 that increased the maximum parole denial period from one year to two years. Our high court concluded that becasue the amendment only changed the frequency of hearings and didnotalter the criteria for determining parolesuitability, it was a "procedural change outside the purview of the ex post facto clause." (/d. at p. 472, fn. omitted.) Here too the amendmentsto section 3041.5 are a procedural changethat impacts only the frequencyofparole hearings. Vicks retains the right to a hearing with numerous procedural protections, and thecriteria for determiningparole suitability remains unchanged. Mostrecently, the Ninth Circuit addressed an ex post facto challenge to Marsy's Lawoverturning a district court decision granting a preliminary injunction to plaintiffs in a class action seeking to prevent the board from enforcing the amended deferral periods established bysection 3041.5. (Gilman v. Schwarzenegger(9th Cir, Jan. 24, 201 1, No. 10-15471) Ss F.3d [2011 WL 198435].) The court found it unlikely that plaintiffs would succeed on the merits of their underlying challenge premised onthe ex post facto clause. In doingso, the court initially compared and contrasted Marsy's Law with Morales and Garner: "Here, as in Morales and Garner, Proposition 9 did notincrease the statutory punishmentfor any particular offense, did not changethe date of inmates'initial parole hearings, and did not changethe standard by which the Board determined whether inmates were suitable for parole. However,the changesto the frequency of parole hearings here are more extensive than the changein either Morales or Garner. First, Proposition 9 increased the maximum deferral period from five years to fifteen years. This changeis similar to the change in Morales(i.e., tripled from oneyearto three years) and the change in Garner(i.e., from three years to eight years). Second, Proposition 9 increased the minimum deferral period from one year to three years. Third, Proposition 9 changedthe default deferral period from oneyearto fifteen years. Fourth, Proposition 9 altered the burden to impose a deferral period other than the default period. ... Neither Morales nor Garnerinvolved a changeto the minimum deferral period, the default deferral period, or the burden to imposea deferral period other than the default period." (Gilman, supra, 2011 WL 198435, at p. 5.) The Ninth Circuit found these distinctions insignificant, however, dueto the availability of advance parole hearings at the Board's discretion (sua sponte or upon the requestof a prisoner, the denial of whichis subjectto judicial review), reasoningthat, "as in Morales, an advance hearing by the Board ‘would remove any possibility of harm’ to prisoners because they would not be required to wait a minimum ofthree years for a hearing." (Gilman, supra, 2011 WL 198435, at p. 6, quoting Morales, 514 USS. at p. 513.) The court concludedthatthe plaintiffs had failed to demonstrate a significant risk that their incarceration would be prolonged by application of Marsy's Law, and thus foundthat plaintiffs had not established a likelihood of success on the merits of their ex post facto claim. (Gilman,supra, at p. 6.) I conclude,as did the court in Gilman, that amended section 3014.5 does not violate ex post facto principles. As in Morales and Garner, Proposition 9 did not increase the statutory punishmentfor any particular offense, did not changethe date of inmates’ initial parole hearings, and did not changethe standard by which the Board determined whether inmates were suitable for parole. Further, the fact that advance parole hearingsare available at the Board's discretion,either initiated by the board or upon the requestofa prisoner, and the prisoneris not required to wait a minimum of three years to have a hearing, ex post facto principles are not implicated because the amendments create "only the most speculative and attenuated risk of increasing the measure of punishmentattached to the covered crimes." (Morales, supra, 514 U.S, at p. 514.) The majority minimizes the protections afforded bythe ability to have advance hearing dates by focusing on the fact there is a three-year "blackout" period for prisoners to request an advance hearing following a denial ofparole and that the Boardis "constrained" from considering new information or changed circumstances becausethere is no explicit mechanism for the Board on its own motionto set an advance hearing. However,thecriteria for advanced hearings and the Board's discretion to advance a hearing on its own are clearly set forth in the statute itself and do not require any clarification, regulations, or procedures necessary for the Board to advance a hearing. (§ 3041.5, subd. (b)(4).) The Board is in no wayis "constrained" from considering or acting on newinformation or changed circumstances. Indeed, in Morales, supra, 514 U.S. at page 512, the Supreme Court found no ex postfacto implications even though 8 expedited hearings were not provided by statute or regulation, but only the Board's “practice” of "reviewing for merit any communication from an inmate asking for an earlier suitability hearing.'" The majority also focuses on the fact the "default" deferral is now 15 years and opinesthat the Board doesnot havethe discretion to depart from that deferral period whenit does not expect parole to be granted at an earlier hearing. However, as can be seen from what occurred in Vick's case, the Board does retain substantial discretion to set a deferral period of less than 15 years based upon the individual circumstancesofthe prisoner. Here, the Board set the deferral period at five years, the secondshortest period possible. In doing so, the Board made the following comments, demonstrating that in practice it acted upon an individualized assessmentof the prisoner's status: "In terms of your denial length, we do notfeel that a time frame of ten or fifteen years is appropriate in your case. The Commissioner and myself 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 that we are going to give you here. Now,I know that's a long time, butit is the second lowest denial that we can give someone. So you need to take heart in that and you needto understand that we're offering something that is not often given. Under Prop 9 our lowestis three years, then it goes five, seven, ten and fifteen." As the majority notes in concluding that there was some evidenceto support the denial of parole, the Board could reasonably conclude "an additional [5-year] period of discipline-free behavior was required to show that the influences and impulses leading to the crimes had been eradicated to a sufficient degree that he wouldnot pose an unreasonablerisk of relapsing into prior behavioral patterns.” (Maj opn., p. 13.) As can be seen by the Board's decision in this case, section 3041.5 as amendedallowsfor the Board's exercise of discretion and an individualized assessmentofthe prisoner's suitability for parole. NARES, Acting P. J. 10 DECLARATION OF SERVICE Case Name: In re Vicks Lower Court No.: D056998 I declare: fam employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member’s direction this service is made. I am 18 years of age or older and nota party to this matter; my business address is 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004. I am familiar with the business practice at the Office of . the Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On June 20, 2011, I served the attached PETITION FOR REVIEWbyplacing true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail system of the Office of the Attorney General, addressed as follows: Steven M.Defilippis, Esq. Picone & Defilippis 625 N. First Street San Jose, CA 95112 Attorneyfor Petitioner Michael Vicks, C-78619 San Diego County District Attorney's Office The Honorable Bonnie M. Dumanis 330 West Broadway, Suite 1320 San Diego, CA 92101 Appellate Defenders,Inc. 555 W. BeechStreet, Suite 300 San Diego, CA 92101-2936 Court of Appeal of the State of California Fourth Appellate District 750 B Street, Suite 300 San Diego, CA 92101 Court Clerk San Diego County Superior Court c/o The Hon. David M.Gill (SD-28) Main Courthouse 220 West Broadway San Diego, CA 92101 On June 20, 2011, I caused one (1) original and thirteen (13) copies of the Petition for Review in this case to be delivered to the California Supreme Court at 350 McAllister Street, San Francisco, CA 94102 by Personal Delivery. I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on June 20, 2011, at San Francisco, California. M. Luna Declarant $D2010800701; 20473199 doc H. Sima— Signature