Opinion
H036326
08-30-2011
In re MICKEL E. GOLLIHER, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Santa Clara County Super. Ct. No. 78638
Respondent Mickel E. Golliher has been incarcerated since 1981 for first degree murder (Pen. Code, § 187). In January 2010, the Board of Parole Hearings (the Board) concluded he was unsuitable for parole because he would pose an unreasonable risk of danger or a threat to public safety if released. Golliher challenged the decision in the superior court, which granted his petition for a writ of habeas corpus and ordered the Board to conduct a new hearing.
Subsequent statutory references are to the Penal Code unless otherwise noted.
On appeal, the Warden contends the superior court erred in granting the petition, because "some evidence" supports the Board's decision. We agree, and we reverse the superior court's order.
I. Background
A. The Murder
We take the facts from the 1981 probation report and from a 2005 report by the Board's investigative unit.
At 1:40 a.m. on December 21, 1980, San Jose police officers found the body of a man lying face down in the road. There was a rope around his neck, and he was shoeless. A trail of blood 1,580 feet long led to the body.
Bruce Stowell later told police he saw Golliher tie the rope around the victim's neck and drag him behind his truck. Stowell had attended a party at Golliher's house on December 20. The victim had also attended, and Stowell saw Golliher arguing with him.
The victim became so intoxicated that he eventually passed out. Around 12:30 a.m., Golliher asked Stowell if he would help him take the victim for a ride. Believing the plan was to take the victim home, Stowell helped Golliher carry him to Golliher's pickup. They put the victim in the back of the truck, took some beer from the house, and drove to Highway 101. Stowell began to doze off at that point. Half an hour later, he noticed that the truck had stopped and Golliher was not there. Figuring that Golliher was relieving himself, Stowell got out to do the same. He walked behind the truck and saw Golliher tying a rope around the victim's neck. Golliher warned Stowell that if he ever mentioned the incident, the same thing would happen to him.
They got back into the truck and Golliher drove for approximately 45 seconds with the victim tied behind it. He stopped, and he and Stowell got out. Stowell noticed that the victim was choking. He asked Golliher if the victim was dead, and Golliher replied, "No, but he will be." Golliher untied the rope from the truck and got back in. As he turned the truck around by reversing, backing up, and then going forward, Stowell felt a "thump" and thought (apparently mistakenly) that Golliher had run over the victim. Golliher warned Stowell again that if he ever said anything, he would end up just like the victim.
Golliher was arrested six weeks later. He testified in his own defense at trial. Stowell testified for the prosecution. There was also evidence that the assistant manager of the auto parts store where Golliher worked had borrowed Golliher's truck to transport an engine from another store. He had used a new, 50-foot blue nylon rope to secure the engine, and had left the rope in Golliher's truck. The same type of rope had been used to tie and drag the victim.
The jury convicted Golliher of first degree murder, and he was sentenced to 25 years to life. His conviction was affirmed on appeal.
B. Golliher's Prior History
The oldest of six children, Golliher grew up in Kansas. He described his childhood as "fine" and his parents as loving and supportive. He experimented with marijuana as a teenager, and when he was 15 or 16, he began consuming alcohol on a regular and "social basis." He has no juvenile criminal history.
Golliher's family moved to California when he was 18. A self-described "relatively average" student, he reported doing well in auto shop and wood shop. He graduated from Eureka High School in 1969. He was steadily employed as an auto mechanic before his incarceration.
Golliher married his first wife at 19; they had two children and divorced five years later. A second marriage lasted 10 years.
By his twenties, Golliher was drinking "around 12 cans" of beer during the week and "a little more" (which he variously estimated at "six to 12 cans" and "12-18 beers") on weekends. He sometimes drank hard liquor at parties. He has two drunk driving arrests. He admitted drinking four to five beers "during the timeframe when the life crime took place."
C. Postincarceration Record
Golliher has been disciplined only once in prison, for participating in a work strike in 2004. He has never received a counseling chrono. He has "numerous" certifications, including as a forklift operator, furniture assembler, machine setter, brake operator, and customer service specialist. He received "exceptional work reports in PIA furniture," and his file contains several positive chronos.
"In prison argot, [Rule 128A] 'counseling chronos' document 'minor misconduct,' not discipline . . . [Citation.]" (In re Smith (2003) 109 Cal.App.4th 489, 505.) A CDC 115 rules violation report documents serious misconduct that is believed to be a violation of law or otherwise not minor in nature. (In re Gray (2007) 151 Cal.App.4th 379, 389; Cal. Code Regs., tit. 15, § 3312, subd. (a)(2) & (3) (Regs.).) Subsequent references to "Regs." will be to this title.
Golliher has not upgraded educationally, and he has never participated in self-help therapy or substance abuse programs. Asked why not, he explained, "you know, I don't see where they would be doing me any good."
D. Psychological Evaluation
1. Early Evaluations
Golliher was diagnosed with passive-aggressive personality disorder in 1984, and the psychologist who evaluated him found "an indirect relationship between the diagnosis and the commitment offense." "There is more to him psychologically than the image he is presenting," the psychologist observed, "but at this time he is not willing to reveal more." Golliher declined to discuss the commitment offense, explaining that his case was on appeal.
The psychologist who evaluated Golliher in 1990 found "no evidence" of passive-aggressive personality disorder but diagnosed him with alcohol dependence by history, "weekend drinking pattern, in institutional remission." He could not opine "with certainty" that the offense was connected to that diagnosis, nor could he predict whether Golliher could "continue improvement or hold gains" in a less controlled community.
Golliher told the psychologist he had known Stowell for about a year before the crime and had met the victim "a few times." Golliher claimed he drove the victim downtown on the night of the murder and dropped him off in front of a restaurant. He suspected Stowell reported "witnessing a murder" because he was angry after catching Golliher "necking with his wife one night at a party. I don't recall if I did it . . . . I was drunk, yes . . . . My wife told me the next day I had done this . . . ." The party Golliher described was at his house a month after the murder.
Dr. Nelson evaluated Golliher in 1996 and 2000. Golliher told him he did not have a drug problem, and "[w]hile his drinking resulted in several DUI's, . . . alcohol was not a significant problem for him, and . . . was not involved in the . . . committing offense." Golliher believed he had "no particular issues to address in either individual or group therapy."
Dr. Nelson reported that Golliher "did describe sorrowful feelings for the death of the victim, although [he] claims that he was not involved in the crime." Golliher claimed to have "uncovered evidence" showing his innocence; he told Dr. Nelson he had just mailed it to the California Supreme Court and to the 9th Circuit Court of Appeals.
Dr. Nelson diagnosed Golliher with alcohol abuse in institutional remission and identified the use of alcohol as a risk factor in returning him to the community.
2. 2004 Evaluation
Dr. Starrett evaluated Golliher in 2004. Asked about the crime, Golliher replied that "yes, he is sticking to the same story. He is innocent. He . . . does not know why the guy [Stowell] made up the story." Golliher claimed that "the last time he saw the victim, [he and Stowell] put the victim into the front seat of his truck. They drove downtown and dropped him off by a restaurant and returned to the party." Golliher denied arguing with the victim and said he "never had a bad relationship with [him] . . . ." He denied that alcohol or drugs were a problem and became "a little defensive" when asked about his family's drinking or drug history.
Dr. Starrett diagnosed Golliher with polysubstance disorder in institutional remission and identified "relapsing in the use of alcohol" as a concern bearing on his future dangerousness. He found Golliher "rather defensive, guarded and marginally aggressive, which may be reflective of an underlying personality disorder." "He does not take responsibility or show remorse. He has not been involved with self-help or NA. He has not upgraded himself vocationally or educationally." His parole plans were "undeveloped" and "unrealistic."
Given these findings, Dr. Starrett rated Golliher's prognosis for community living as "guarded" and concluded that he represented an "unpredictable danger in the community." He recommended that Golliher "explore his crime in more detail. Either he needs to prove his innocence or deal with what happened. He needs to be involved in NA or AA [on] a continual basis. He needs to be involved in self-help. He needs to upgrade his vocational skills and educational level. Moreover, he needs to develop more realistic parole plans."
3. 2009 Evaluation
Dr. Black evaluated Golliher in 2009. Golliher maintained his innocence, explaining that he had had a combined housewarming and Christmas party on the night of the crime, and "one of the people was taken out and killed . . . ." Asked about the evidence supporting his conviction, Golliher claimed that Stowell "was going to be arrested" until he told police that Golliher committed the crime.
Golliher told Dr. Black that he and Stowell "took the victim on a drive and dropped him off at a Sambo's restaurant and then went back home."
Dr. Black noted a number of inconsistencies between prison records and Golliher's report of autobiographical details, including the extent of his drinking. Agreeing with prior diagnoses of alcohol abuse, he explained that since Golliher denied killing the victim, the role alcohol played "ultimately remain[ed] unknown. However, given his disclosure that he consumed 4 to 5 beers during the timeframe of the murder, it does appear that alcohol played a probable role . . . ."
Dr. Black observed that "[o]n the positive side," Golliher claimed to have avoided alcohol in prison. As he pointed out, however, "sobriety in a controlled environment is not synonymous with continued abstinence in the free community." He believed that a comprehensive relapse prevention plan, which Golliher concededly had not prepared, was "essential." Dr. Black assessed Golliher's overall insight as "limited." "[H]e does not believe himself to have any current or past problem with alcohol" and "would not see any need for alcohol-related treatment if he were paroled."
As requested, Dr. Black addressed Golliher's violence potential in the free community. He used three different assessment guides, the Psychopathy Check List-Revised (PCL-R), the Historical-Clinical-Risk Management-20 (HCR-20), and the Level of Service/Case Management Inventory (LS/CMI). Golliher's score on the PCL-R put him in the "low range" for psychopathy compared to other male offenders. Items requiring "some level of endorsement" included pathological lying, lack of remorse/guilt, shallow affect, callous/lack of empathy, irresponsibility, and failure to accept responsibility for actions.
Golliher's overall score on the HCR-20 put him "in the moderate range of violent recidivism." Dr. Black noted Golliher's history of alcohol abuse as a historical factor, but he was primarily concerned about clinical and risk factors which, unlike historical factors, can change. Clinical factors included Golliher's "lack [of] insight into his history of alcohol abuse and the potential benefits of self-help programming such as AA" and his failure to respond appropriately to recommendations that he participate in such programming. Risk factors included the limited scope of his personal support network, his history of noncompliance with remediation attempts, and his perception "that he does not need to participate in alcohol abuse self-help programming . . . in the future."
Golliher's overall score on the LS/CMI, which focuses on "risk of general recidivism and not violence per se," also put him in the "moderate risk category." Factors that increased his risk of recidivism included his history of alcohol abuse, his two drunk driving arrests, his incarceration, "criminal acquaintances/friends, and not participating in self-help programming or perceiving the potential benefit of self-help programming."
Overall, Dr. Brown assessed Golliher's risk for future violent recidivism as "low to moderate." He explained that the risk would likely increase if Golliher "returned to the use of intoxicating substances[,] associated with antisocial peers[,] possessed a weapon," or found himself without a permanent residence or sufficient income or social support. Golliher could decrease his risk of recidivism by developing an alcohol abuse relapse prevention plan, completing and verifying his parole plans, "examining and coming to terms with the causative factors of the life crime," and "developing proactive strategies to avoid those liabilities in the future."
E. January 2010 Parole Consideration Hearing
Golliher first became eligible for parole on December 20, 1995. This was his sixth subsequent parole consideration hearing. He was 59 years old. Golliher waived his right to an attorney and represented himself at the hearing, electing to speak with the panel "in all matters."
A description of the crime that appears to have been taken from the probation report was read into the record of the hearing. Asked if it was "a fairly accurate statement of the commitment offense," Golliher responded, "Yes, it is." The following colloquy then occurred: "PRESIDING COMMISSIONER TARDIFF: So are you admitting that you committed this crime? [¶] INMATE GOLLIHER: No, I'm not. [¶] [Q]: So what do you know about this crime, then, if you didn't commit it? [¶] [A]: I know I was convicted of it and I'm doing a lot of years for a crime that I didn't commit. [¶] [Q]: Okay. So was there a party at your home? [¶] [A]: Yes. There was. It was --[¶] . . . [¶] a Christmas party/housewarming combination. [¶] [Q]: And was the victim at the party? [¶] [A]: Yes, he was. [¶] [Q]: And the witness Stowell? [¶] [A]: Yes, he was. [¶] [Q]: And at some point did you take the victim into your truck? [¶] [A]: Yes, we did. [¶] [Q]: Okay. And what did you do? [¶] [A]: We took him downtown and dropped him off at a Sambo's Restaurant. [¶] [Q]: So why would Stowell give this big story? [¶] [A]: That I haven't been able to talk to Stowell [about], and I don't have any information in regards to that. [¶] [Q]: How did the victim end up dead? [¶] [A]: Apparently he was dragged along the road. [¶] [Q]: By an unknown individual. [¶] [A]: Yes."
The Board asked Golliher about his drinking. He reported drinking "a couple beers" after work and "six to 12 cans" on weekends. On "a couple of occasions," he drank to the point of intoxication. He denied having "a problem" with alcohol "except between the divorce and my second marriage. I was drinking quite a bit at that time."
The Board asked Golliher why he refused to participate in self-help programming. He replied that he did not believe self-help would benefit him. Also, space in those programs was limited, "and there's other people that, you know, want to get into them and want to participate in them . . . ." Asked later by the district attorney why he continually ignored Board recommendations to participate in AA, Golliher reiterated, "I don't believe there's a need for it." He emphasized his abstinence in prison, which "should say something about being able to stay away from that, and I've pretty much done that on my own without having to go through any programs or anything to have somebody do it for me."
Asked about his parole plans, Golliher told the Board he intended to live with his sister and her husband in Atwater. He hoped to open his own custom furniture shop, but would look for work "in either plumbing or maybe look into a furniture shop . . . until I can get myself started." He had not contacted prospective employers in the Atwater area, nor had he asked his sister to do so.
The Board discussed Golliher's most recent psychological evaluation, noting that it was "not totally supportive of release at this time." Golliher declined to comment on the report.
Questioned by the district attorney about his lack of remorse, Golliher responded, "[i]f I didn't commit the crime, how can I have remorse or have insight or tell you anything about it?" He said he felt "real, you know, bad for anybody that goes through something like this, but as far as this case here, you know . . . I didn't commit the crime, so I can't come in here and tell you what you want to hear." He could not explain why, even assuming he was not involved in the killing, he had no feeling about the death of someone he had known well enough to invite into his home.
The Board denied parole, finding that factors favoring unsuitability "heavily outweigh[ed]" those favoring suitability. The Board noted that the commitment offense was "especially heinous and atrocious and cruel" and demonstrated an especially callous disregard for human suffering. But, the Board told Golliher, "your past and present mental state regarding the commitment offense and substance abuse is the reason for the denial, as well as your inability to follow the recommendations of the Board." The Board reminded him that he had repeatedly been directed to engage in self-help programming or some sort of substance abuse treatment "and you've never done either . . . . For 28 years you've been asked to do these things . . . ." "[I]f you can't just abide by a simple request that you do some sort of self-help in almost 30 years, how are [we] to be guaranteed that you would abide by the laws out in the streets?"
The Board also noted that Golliher minimized his involvement in the commitment offense "absolutely by denying it" although the record convincingly demonstrated his guilt. He was convicted by a jury after an eyewitness provided "a very graphic and gruesome account" of the crime. His own version of events placed him with the victim at about the time of death. He had made no mention, at trial, of Stowell's alleged bias against him.
The Board noted the district attorney's comment, at the sentencing hearing, that the People "were helped tremendously in this case because the inmate took the stand and gave the story that was absolutely incredible, and . . . instrumental in returning the conviction in this case." The Board told Golliher that his complaint about incompetent trial counsel was contradicted by the district attorney's comment, at sentencing, "that the defense attorney was stuck in a position where he had a defendant who was going to give an incredible story . . . and would, in fact, hang himself in this case." "[Y]ou're not credible," the Board said, "in terms of what you say occurred, that you took the victim to a Sambo's and left him there; you don't know what happened to him after that. You can't give any credible reason why Mr. Stowell would fabricate this story."
The Board also relied on Golliher's most recent psychological report, noting that it documented his significant history of alcohol abuse, his lack of insight, his refusal to participate in AA or other self-help, and his lack of a relapse prevention plan.
Explaining its reasoning, the Board told Golliher that "the reason your lack of insight into the commitment offense, as well as your lack of insight into your alcohol use, make[] you a danger today is because you don't indicate that you've at all changed your character. You're still the same man that came in as you are today . . . and you have not changed anything since that time, which makes you currently an unreasonable risk of danger because your present mental state is the exact same state you were in at the time of the commitment offense. There's no indication that you wouldn't again re-offend if released into the community." The Board issued a seven-year denial.
II. Superior Court Proceedings
Golliher challenged the Board's decision in the superior court, which granted his habeas corpus petition and ordered the Board to conduct a new hearing. The court's 25- page opinion criticized the Board for stating, in announcing its decision, that " '[t]he finding[] of unsuitability is based on weighing the considerations provided in the California Code of Regulations Title 15.' " The court found it "evident" that the Board "was going down the list of § 2402(c) unsuitability factors and giving each of them independent weight" with "no attempt to link any of the points together" or to "piece together 'some evidence' of a possible nexus." "This was error," the court ruled, "because the Title 15 factors do not have independent weight and the Board violates the nexus rule by declaring that they do."
Referring to what it labeled "a pattern of Board practices," the court complained that "[d]espite specific directives, and unheeded advice, the Board remains entrenched in its Dannenberg[]approach to parole determinations even though Dannenberg was overruled. One might reasonably have expected that when the California Supreme Court reversed the authority the Board had been following, the practices, and even the regulations themselves, ought to have been revised so as to conform to the new rules. Because there has been little to no institutional modification of Board practices the result is that, in this case, the Board failed to provide the due process a parole suitability determination required."
In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg).
The Board's "central error" in this case, the court wrote, was "giving the crime weight against parole in and of itself . . . ." The Board's "other major error" was "violating PC §5011" by, in the court's view, basing its lack of insight finding on Golliher's refusal to admit guilt. Concluding that neither error was harmless, the court vacated the Board's decision and remanded the matter for a new hearing "in accordance with due process . . . ."
The Warden filed a timely notice of appeal and petitioned for a writ of supersedeas. We granted the petition and stayed the superior court's order pending appeal.
III. Discussion
A. Standard of Review
"[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but . . . in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz).)
"Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board's] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the [Board's] decision." (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
"When a superior court grants relief on a petition for habeas corpus without an evidentiary hearing, . . . the question presented on appeal is a question of law, which the appellate court reviews de novo. [Citation.]" (In re Lazor (2009) 172 Cal.App.4th 1185, 1192 (Lazor); Rosenkrantz, supra, 29 Cal.4th at p. 677.)
B. Parole Suitability and Unsuitability Criteria
The general standard for a parole unsuitability decision is that "a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board or the Governor] the prisoner will pose an unreasonable risk of danger to society if released from prison." (Regs., § 2402, subd. (a).) "[C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner;[] (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)" (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, fn. omitted.)
An offense is considered "especially heinous, atrocious, or cruel" if it "was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering" or "[t]he motive for the crime is inexplicable or very trivial in relation to the offense." (Regs., § 2402, subd. (c)(1).)
"[C]ircumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has 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 upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)" (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
C. Lawrence
Lawrence killed her lover's wife because her lover had chosen not to leave his wife for Lawrence. Lawrence shot her lover's wife multiple times and repeatedly stabbed her. She became a fugitive but surrendered 11 years later and was convicted of first degree murder. (In re Lawrence (2008) 44 Cal.4th 1181, 1192-1193 (Lawrence).)
During 23 years of imprisonment, Lawrence had a few administrative violations, but she was free of serious discipline. (Lawrence, supra, 44 Cal.4th at p. 1194.) Her psychological reports were troubling at first but improved over the years to the point that she was found to have no psychiatric or psychological disorder. (Lawrence, at pp. 1194-1195.) After about a decade in prison, a psychological report found she no longer posed a significant danger to public safety. Numerous psychological reports over the next decade made the same finding. (Lawrence, at p. 1195.) During that same decade, the Board three times found her suitable for parole, but in each instance the Governor reversed. (Lawrence, at pp. 1195-1197.) In 2005, the Board granted parole for the fourth time, and the Governor reversed again, reasoning that the commitment offense had been " 'carried out in an especially cruel manner and committed for an incredibly petty reason.'" (Lawrence, at p. 1200.)
Lawrence sought habeas relief in the Court of Appeal, which held that the Governor's decision was not supported by some evidence that she " 'presently represent[ed] an unreasonable risk to public safety if released on parole.' " (Lawrence, supra, 44 Cal.4th at p. 1201.) The court vacated the Governor's reversal and reinstated the Board's grant of parole. (Lawrence, at p. 1201.) The California Supreme Court affirmed the Court of Appeal's decision. (Lawrence, at pp. 1201, 1229.)
The high court's opinion in Lawrence explicitly recognized that "the core determination of 'public safety' under the statute and corresponding regulations involves an assessment of an inmate's current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1205.) Reconsidering its holding in Dannenberg, the court explained that it "presumed [in Dannenberg] that the evidence of egregiousness supported the ultimate determination that the inmate posed a threat to public safety, as opposed to merely providing support for the Board's or the Governor's conclusion that the crime was particularly aggravated." (Lawrence, at pp. 1207-1208.) The court concluded that this presumption was invalid, though the Rosenkrantz standard of review remained valid. "This [Rosenkrantz] standard [of review] is unquestionably deferential, but certainly is not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness." (Lawrence, at p. 1210.)
"[T]he statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1211.) "[I]t is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole—it is the implication concerning future dangerousness that derives from the prisoner having committed that crime. Because the parole decision represents a prospective view—essentially a prediction concerning the future—and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision." (Lawrence, at pp. 1213-1214.) "Accordingly, we conclude that although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, at p. 1214.) "Absent affirmative evidence of a change in the prisoner's demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner's dangerousness for some time in the future." (Lawrence, at p. 1219.)
"[T]he relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude." (Lawrence, supra, 44 Cal.4th at p. 1221.) "In sum, the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. (Regs., § 2281, subd. (a).) Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor." (Lawrence, at p. 1221.)
Applying this standard to the Governor's decision to deny Lawrence parole, the court concluded that "[i]n light of petitioner's extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board at successive hearings—decisions reversed by the Governor based solely upon the immutable circumstances of the offense—we conclude that the unchanging factor of the gravity of petitioner's commitment offense had no predictive value regarding her current threat to public safety, and thus provides no support for the Governor's conclusion that petitioner is unsuitable for parole at the present time." (Lawrence, supra, 44 Cal.4th at p. 1226.)
"Our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. (Rosenkrantz, supra, 29 Cal.4th at p. 658.) This does not mean, however, that evidence suggesting a commitment offense was 'especially heinous' or 'particularly egregious' will eternally provide adequate support for a decision that an inmate is unsuitable for parole. . . . When, as here, all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner's rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required 'modicum of evidence' of unsuitability." (Lawrence, supra, 44 Cal.4th at pp. 1226-1227.)
"Accordingly, under the circumstances of the present case—in which the record is replete with evidence establishing petitioner's rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety—petitioner's due process and statutory rights were violated by the Governor's reliance upon the immutable and unchangeable circumstances of her commitment offense . . . . Accordingly, the Governor's decision is not supported by 'some evidence' of current dangerousness and is properly set aside by this court." (Lawrence, supra, 44 Cal.4th at p. 1227.)
The court noted the limited nature of its holding. "In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide 'some evidence' of current dangerousness even decades after commission of the offense." (Lawrence, supra, 44 Cal.4th at p. 1228.)
D. Shaputis
The California Supreme Court's decision in In re Shaputis (2008) 44 Cal.4th 1241, 1247-1248 (Shaputis)provided a counterpoint to Lawrence and explained how the egregious nature of the commitment offense could combine with other evidence to demonstrate the prisoner's current dangerousness despite the passage of a long period of time, thereby supporting a decision to deny parole.
Shaputis murdered his second wife by firing a single shot from a handgun into her neck at close range. (Shaputis, supra, 44 Cal.4th at pp. 1247-1248.) He claimed the shooting was an accident, which the evidence overwhelmingly refuted. (Shaputis, at p. 1249.) He had a long history of domestic violence, including violence against his first wife and daughters and many years of violent abuse of, and threats toward, his second wife before her death. (Shaputis, at pp. 1246-1247.) His prior criminal conduct included a sexual assault on his daughter. Shaputis also had a history of alcohol abuse and was intoxicated on the night of the murder. Although he acknowledged being an alcoholic, "he considers himself to be a 'mellow . . . outgoing' drinker." (Shaputis, at p. 1248.) He remained discipline free throughout his incarceration, but psychological reports indicated that there was a "'schizoid quality to his interpersonal relationships.' " (Shaputis, at pp. 1249-1251.)
The Board denied parole in 2004 based on the egregiousness of the offense and his history of unstable relationships. (Shaputis, supra, 44 Cal.4th at pp. 1250-1251.) Shaputis petitioned for a writ of habeas corpus, and the Court of Appeal ordered a new hearing at which the Board could base a denial of parole only on new or different evidence. The Board reluctantly granted parole. The Governor reversed, finding that Shaputis remained a danger to society due to the aggravated nature of the crime, which included premeditation, and his lack of insight into both the murder and the years of domestic violence that preceded it. (Shaputis, at pp. 1251-1253, 1255.) The Court of Appeal granted Shaputis's writ petition, and the California Supreme Court granted review. (Shaputis, at pp. 1253-1254.)
On review, the California Supreme Court reiterated the Rosenkrantz standard of review it had applied in Lawrence. (Shaputis, supra, 44 Cal.4th at p. 1258.) The court distinguished Lawrence. "This is not a case like Lawrence . . . in which the commitment offense was an isolated incident, committed while petitioner was subject to emotional stress that was unusual or unlikely to recur. [Citation.] Instead, the murder was the culmination of many years of petitioner's violent and brutalizing behavior toward the victim, his children, and his previous wife. [¶] The record establishes, moreover, that although petitioner has stated that his conduct was 'wrong,' and feels some remorse for the crime, he has failed to gain insight or understanding into either his violent conduct or his commission of the commitment offense. Evidence concerning the nature of the weapon, the location of ammunition found at the crime scene, and petitioner's statement that he had a 'little fight' with his wife support the view that he killed his wife intentionally, but as the record also demonstrates, petitioner still claims the shooting was an accident. This claim, considered with evidence of petitioner's history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and that he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative 'programming,' all provide some evidence in support of the Governor's conclusion that petitioner remains dangerous and is unsuitable for parole." (Shaputis, at pp. 1259-1260, fn. omitted.)
E. The Case Before Us
The Warden contends the superior court's order must be reversed because some evidence supports the Board's decision that Golliher remains currently dangerous. We agree.
At the outset, we address Golliher's contention that that his positive chronos, "minimal disciplinary history" and "never once engaging in violence while incarcerated" provide "affirmative evidence" that he is no longer currently dangerous. The argument misses the point. The record does indeed contain some positive evidence. But it is not our task, nor was it the superior court's, to reweigh the evidence. (Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.) "A court may not substitute its judgment for the Board's merely because it would weigh the evidence differently." (Lazor, supra, 172 Cal App.4th at pp. 1198-1199.) Where, as here, the record reflects the Board's "due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards," our review is limited to determining whether some evidence in the record supports the Board's decision. (Rosenkrantz, at p. 677.)
The Board's conclusion that Golliher remained currently dangerous was based primarily on findings that he would have difficulty conforming his behavior to society's rules and lacked insight into the commitment offense and his substance abuse. Some evidence supports these findings, and some evidence also supports the Board's conclusion that Golliher would pose a risk to public safety if released from prison.
Although the Board focused primarily on these findings, it also mentioned the heinous nature of the commitment offense, Golliher's lack of remorse, his "somewhat limited . . . personal support network," and his most recent psychological report, which was "not supportive of release."
1. Inability to Follow Society's Rules
The Board found that Golliher had ignored repeated Board recommendations to engage in self-help therapy programming and substance abuse treatment. Some evidence supports this finding. Numerous psychological reports and the transcripts of his previous parole denials document the Board's specific directives and Golliher's 28-year refusal to heed them. This not only prevented him from gaining insight into his alcohol abuse but also signaled to the Board that he would have difficulty conforming his behavior to society's rules if released. As the Board told him at his 2010 hearing, "You've been directed by the Board in one way or another since your first documentation hearing, which was in 1982, to do . . . self-help or some sort of substance abuse treatment, and you've never done either of those . . . . For 28 years you've been asked to do these things." "[I]f you can't just abide by a simple request . . . , how are [we] to be guaranteed that you would abide by the laws out on the streets?"
Golliher's 28-year failure to abide by the Board's "simple request" is some evidence that he remains currently dangerous. "In addition to an evaluation of the risk of future violations of the criminal law, the determination of parole suitability requires a consideration of the broad risk the inmate will fail on parole through noncompliance with the reasonable restrictions imposed by his or her parole agent." (In re Reed (2009) 171 Cal.App.4th 1071, 1082 (Reed).)In Reed, the court held that a single counseling chrono received after the inmate had been "cautioned in the most direct terms" to " 'remain disciplinary free, not even a 128," was "some evidence" supporting the Board's decision to deny him parole. (Reed, at pp. 1084-1085.)
In Reed, the inmate failed to heed a single directive. This case is much stronger, because Golliher has ignored the Board's repeated directives for 28 years. "Does [his] inability to follow . . . express direction[s] . . . provide some current evidence that, when released, [he] will be unable to follow society's laws? It does." (Reed, supra, 171 Cal.App.4th at p. 1085.)
2. Lack of Insight into Alcohol Abuse
The Board's denial was also based on its finding (not surprising given Golliher's refusal to participate in self-help programming and substance abuse treatment) that he lacked insight into his alcohol abuse. Some evidence supports this finding.
Golliher's psychological evaluations documented his history of alcohol abuse and his drunk driving arrests. He acknowledged those arrests and, significantly, also admitted consuming four to five beers around the time of the crime. The psychological reports also documented diagnoses of alcohol dependency (albeit in institutional remission) and identified the use of alcohol or drugs as a risk factor in returning him to the community.
Notwithstanding his history and despite these diagnoses and warnings, Golliher insisted he had no current or past problem with alcohol and saw no reason to participate in self-help programming. He had no relapse prevention plan, moreover, and told Dr. Black in 2009 "that he would not see any need for alcohol-related treatment if he were paroled." He reiterated these views at his 2010 parole consideration hearing, thus confirming his lack of insight.
Golliher's lack of insight into his past alcohol abuse is some evidence that he remains currently dangerous. (Shaputis, supra, 44 Cal.4th at pp. 1247-1248, 1259-1260 [inability to gain insight into his antisocial behavior and belief that he was " 'a mellow . . . outgoing' drinker" provided some evidence that Shaputis, who was intoxicated when he murdered his wife, remained currently dangerous].) As Dr. Black noted, "given [Golliher's] disclosure that he consumed 4 to 5 beers during the timeframe of the murder, it does appear that alcohol played a probable role in the commitment offense." That he may have remained sober in the highly controlled prison environment is no guarantee that he can remain sober in the free community.
As the Board explained to Golliher, "When you're on the outside you can walk down to the liquor store and get a six-pack and go back to your apartment . . . . It's not the same. So the fact that you can be sober in prison doesn't necessarily correlate that therefore you can be sober out in the free community. We don't know anything about why you drank the way you did, what your triggers were. You were drinking on the night of the offense -- we know that -- five or six beers. That's excessive alcohol use. And again, you know, nothing's changed today to show that you would not go out and re-offend." Golliher's lack of insight into his alcohol abuse is some evidence that he remains currently dangerous. (Shaputis, supra, 44 Cal.4th at pp. 1259-1260.)
3. Lack of Insight into Commitment Offense
The Board's denial was also based on Golliher's lack of insight into his commitment offense. "You minimize your involvement in the commitment offense absolutely by denying it and the record," the Board told him, but "you're not credible in terms of what you say occurred."
Golliher argues that the court improperly relied on the circumstances of his commitment offense. Asserting that it "occurred over 29 years ago," he contends "the Board failed to follow current law because [it] did not establish a nexus between . . . the commitment offense and [his] current risk of danger." We cannot agree. Just as Shaputis's present lack of insight into his crime and its underlying causes made the circumstances of his commitment offense probative of his current dangerousness (Shaputis, supra, 44 Cal.4th at pp. 1259-1260), Golliher's lack of insight into his substance abuse and his 28-year refusal to engage in self-help programming or alcohol abuse treatment made the circumstances of his commitment offense probative of his current dangerousness. (See Lawrence, supra, 44 Cal.4th at p. 1228 [noting that "[i]n some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, . . . or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide 'some evidence' of current dangerousness even decades after commission of the offense."].)
4. Alleged Violation of Section 5011
Golliher contends the Board "expressly found [he] lacks insight because he denies he is guilty," in violation of section 5011, which prohibits the Board from conditioning a grant of parole on an inmate's admission of guilt. (§ 5011, subd. (b); In re Aguilar (2008) 168 Cal.App.4th 1479, 1491.) The Board's decision must be vacated, Golliher claims, "[s]ince the Board[] found [he] lacked insight because he maintains his innocence." We disagree.
This is not a case like In re McDonald (2010) 189 Cal.App.4th 1008 (McDonald), on which Golliher relies. In McDonald, the Governor's reversal of the Board's parole grant was based on only two factors: the circumstances of the commitment offense and the inmate's lack of insight into his crime. (McDonald, at p. 1023.) The first was insufficient, standing alone (Lawrence, supra, 44 Cal.4th at p. 1214), and the second was based on the inmate's denial of involvement in the crime—evidence on which the Governor could not legally rely. (McDonald, at p. 1023; § 5011, subd. (b).)
Here, unlike in McDonald, Golliher's "past and present mental state regarding the commitment offense" was only one of many factors that the Board relied on. Here, the interrelation of Golliher's inability to conform his behavior to society's rules, his lack of insight into his alcohol abuse, the circumstances of his commitment offense, and his most recent psychological assessment provide some evidence supporting the Board's decision even if we ignore his lack of insight into the crime.
But this is not to say that the Board improperly relied on Golliher's lack of insight. This is not a case like In re Twinn (2010) 190 Cal.App.4th 447, where "[t]he physical evidence presented at trial [did] not undermine Twinn's statements concerning his intent." (Id. at p. 468.) Nor is this a case like In re Palermo (2009) 171 Cal.App.4th 1096 (Palermo), disapproved on other grounds in In re Prather (2010) 50 Cal.4th 238, 252-256, where the inmate's version of the killing "did not strain credulity such that his denial . . . was delusional, dishonest, or irrational." (Palermo, at p. 1112.)
Here, Golliher's own testimony put the victim in Golliher's company and in his truck around the time of the victim's death. There was evidence that a blue nylon rope like the one found around the victim's neck had been left in Golliher's truck before the murder. Eyewitness Stowell provided "a very graphic and gruesome account" of the crime, and there was no evidence whatsoever to support Golliher's belated claim that Stowell was biased against him.
Additional evidence before the Board further undermined Golliher's profession of innocence. Statements that he made at his 2003 parole consideration hearing had prompted the Board's investigative unit to "take a look at" information he insisted demonstrated his innocence.
Investigators reviewed "numerous documents," including "[m]aterials submitted by the inmate . . . , [Board] hearing transcripts, and documents from the inmate's central file." Investigators found "no significant information . . . that would bolster the inmate's claim of innocence . . . ." "[R]ather," the 2005 report of the investigation concluded, "it appears that Golliher has not been forthcoming in describing exactly what transpired on the night prior to, and the morning of the victim's death."
Incorporating facts taken from the appellate decision affirming Golliher's conviction, the 2005 report noted that the victim had attended Golliher's party with his girlfriend, Patricia Langnes. Langnes, her husband, and his family were friends of Golliher's. Although Langnes was married, she and the victim had been living together while her husband, who had been incapacitated in a hunting accident, remained hospitalized. Langnes drank heavily at the party and complained about her relationship with the victim, and when he passed out, she asked Golliher to "take care of him." She expected that the victim would spend the night passed out at Golliher's home; she did not solicit Golliher to harm him and did not want him harmed.
Langnes also told Golliher that she wanted her husband's boots, which the victim was wearing that night. Golliher delivered the boots to Langnes the morning after the murder. The victim had been found shoeless. Viewing all of this evidence in light of Golliher's 28-year refusal to engage in self-help programming, the Board could reasonably have relied on Golliher's lack of insight into his crime.
F. Marsy's Law
1. Alleged Ex Post Facto Violation
Golliher contends the 2008 amendments that Marsy's Law made to section 3041.5 violate the ex post facto clauses of the federal and California Constitutions. Both the federal and state Constitutions prohibit ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) The prohibition is based on the principle that "persons have a right to fair warning of that conduct which will give rise to criminal penalties . . . ." (See Marks v. United States (1977) 430 U.S. 188, 191.) Thus, laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts" are unconstitutional. (Collins v. Youngblood (1990) 497 U.S. 37, 43; People v. Alford (2007) 42 Cal.4th 749 (Alford).)However, "[a] change in the law that merely operates to the disadvantage of the defendant or constitutes a burden is not necessarily ex post facto. [Citations.]" (People v. Bailey (2002) 101 Cal.App.4th 238, 243.) California's ex post facto law is analyzed in the same manner as the federal prohibition. (Alford, supra, 42 Cal.4th at p. 755.)
The Marsy's Law amendments to section 3041.5 went into effect on November 5, 2008, after voters approved Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law." (Former § 3041.5; Cal. Const., art. I, § 28.)
The California Supreme Court is currently considering this issue. (In re Vicks (2011) 195 Cal.App.4th 475, review granted July 20, 2011, S194129; In re Russo (2011) 194 Cal.App.4th 144, review granted July 20, 2011, S193197.)
Pre-Marsy's Law versions of section 3041.5 provided for annual parole suitability hearings for inmates who had been denied parole, but gave the Board discretion to defer subsequent hearings for two years (and up to five years for life term inmates convicted of more than one murder) if it was not reasonable to expect parole would be granted before that. (See In re Brown (2002) 97 Cal.App.4th 156, 158 [relating the history of section 3041.5].) The 2008 amendments gave the Board discretion to schedule subsequent suitability hearings 15, 10, seven, five, or three years after a parole denial. (Former § 3041.5, subd. (b)(3).) This means that instead of issuing one- to five-year denials, as in the past, the Board now issues three- to 15-year denials. That makes Golliher's punishment "more burdensome," he argues, because he "now faces a longer potential imprisonment." We disagree.
In pertinent part, the amended statute provides that "(b) . . . [¶] (2) Within 20 days following any meeting where a parole date has not been set, the board shall send the prisoner a written statement setting forth the reason or reasons for refusal to set a parole date, and suggest activities in which he or she might participate that will benefit him or her while he or she is incarcerated. [¶] (3) The board shall schedule the next hearing, after considering the views and interests of the victim, as follows: [¶] (A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years. [¶] (B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than seven additional years. [¶] (C) Three years, five years, or seven years after any hearing at which parole is denied, because the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years. [¶] (4) The board may in its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided in paragraph (3). [¶] . . . [¶] (d)(1) An inmate may request that the board exercise its discretion to advance a hearing set pursuant to paragraph (3) of subdivision (b) to an earlier date, by submitting a written request to the board, with notice, upon request, and a copy to the victim which shall set forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate. [¶] (2) The board shall have sole jurisdiction, after considering the views and interests of the victim to determine whether to grant or deny a written request made pursuant to paragraph (1), and its decision shall be subject to review by a court or magistrate only for a manifest abuse of discretion by the board. The board shall have the power to summarily deny a request that does not comply with the provisions of this subdivision or that does not set forth a change in circumstances or new information as required in paragraph (1) that in the judgment of the board is sufficient to justify the action described in paragraph (4) of subdivision (b). [¶] (3) An inmate may make only one written request as provided in paragraph (1) during each three-year period. Following either a summary denial of a request made pursuant to paragraph (1), or the decision of the board after a hearing described in subdivision (a) to not set a parole date, the inmate shall not be entitled to submit another request for a hearing pursuant to subdivision (a) until a three-year period of time has elapsed from the summary denial or decision of the board." (§ 3041.5.)
The United States and California Supreme Courts have previously held that statutes amending procedures to decrease the frequency of parole suitability hearings do not violate the ex post facto clause when applied to inmates convicted pre-amendment. (California Dept. of Corrections v. Morales (1995) 514 U.S. 499 (Morales); In re Jackson (1985) 39 Cal.3d 464 (Jackson))
In Morales, the United States Supreme Court rejected an ex post facto challenge to the constitutionality of a 1981 amendment to section 3041.5. (Morales, supra, 514 U.S. at p. 514.) The 1981 amendment authorized the Board to defer parole suitability hearings for up to three years for prisoners convicted of more than one murder if the Board found it was not reasonable to expect parole to be granted before that and stated the bases for its findings. (Ibid.)The court reasoned that there was no ex post facto violation because the amendment did not increase the statutory punishment for the defendant's crime of second degree murder, which was 15 years to life both before and after the amendment. (Morales, at p. 507.) The amendment left the defendant's indeterminate sentence and the substantive formula for securing any reductions to that sentence untouched. (Ibid.) It did not affect the setting of his minimum eligible parole date, nor did it change the standards for determining his suitability for parole. (Morales, at p. 507.) It simply " 'altered the method to be followed' in fixing a parole release date under identical substantive standards." (Morales, at p. 499.)
Rejecting the defendant's view that the ex post facto clause "forbids any legislative change that has any conceivable risk of affecting a prisoner's punishment," the Morales court held that the relevant inquiry was whether the amendment "produce[d] a sufficient risk of increasing the measure of punishment attached to the covered crimes" to fall within the constitutional prohibition. (Morales, supra, 514 U.S. at pp. 508-509, italics added.) The 1981 amendment did not do so. It applied only to prisoners "for whom the likelihood of release on parole [was] quite remote" (id. at p. 510) and only if the Board concluded, after a hearing, that " 'it [was] not reasonable to expect that parole would be granted . . . during the following years.' [Citation.]." (Morales, at p. 511.) Moreover, the Board "retain[ed] the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner" (id. at p. 511), and inmates given two-or three-year denials were not precluded from asking, based on changed circumstances, for earlier hearings. (Morales, at pp. 513-514.) Thus, the amendment created "only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes . . . ." (Id. at pp. 509, 512-513.)
In Jackson, the California Supreme Court rejected an ex post facto challenge to the constitutionality of a 1982 amendment to section 3041.5 that authorized the Board to schedule biennial rather than annual parole suitability hearings. (In re Jackson (1985) 39 Cal.3d 464, 472.) The court held that the amendment effected only "a procedural change outside the purview of the ex post facto clause." (Ibid.) The amendment "did not alter the criteria by which parole suitability [was] determined . . . [n]or did it change the criteria governing an inmate's release on parole." (Jackson, at p. 473, citations omitted.) "Most important," the court emphasized, "the amendment did not entirely deprive an inmate of the right to a parole suitability hearing." (Ibid.) It simply "changed only the frequency with which the Board must give an inmate the opportunity to demonstrate parole suitability." (Ibid.) That there was a "hypothetical" chance that an inmate's suitability for parole might "drastically improve during the period of the postponement" did not undermine the Jackson court's conclusion that it was unlikely, in general, that a longer postponement would affect an inmate's right to an early parole release, since it was "conceivable that the Board could advance the suitability hearing and order immediate release." (Jackson, at p. 475.)
Jackson and Morales are controlling here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) The 2008 amendments to section 3041.5, like the amendment at issue in Morales, did not increase the statutory punishment for defendant's crime. (Morales, supra, 514 U.S. at p. 507.) The amendments left his indeterminate sentence and the substantive formula for securing credits untouched, did not affect his minimum eligible parole date, did not change the standards for determining his suitability for parole, and did not "entirely deprive [him] of the right to a parole suitability hearing." (Jackson, supra, 39 Cal.3d at p. 473; Morales, at p. 507.) Marsy's Law simply " 'alter[ed] the method to be followed' in fixing a parole release date under identical substantive standards." (Morales, at p. 508.) Such procedural changes are outside the purview of the ex post facto clause. (Jackson, at p. 472.) We reject defendant's ex post facto claim.
2. Alleged Violation of Section 3
Golliher contends that Marsy's Law amendments to section 3041.5 run afoul of section 3's proscription against retroactive application of statutes that increase the punishment for particular crimes. We disagree.
Section 3 states that no part of the Penal Code is " 'retroactive, unless expressly so declared.'" The California Supreme Court has interpreted section 3 "to mean '[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' " (Alford, supra, 42 Cal.4th at p. 753.) "[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 (Evangelatos).)
We need not look to extrinsic sources here, because Marsy's Law includes an express retroactivity provision. That provision states "[t]he provisions of this act shall apply in all matters which arise and to all proceedings held after the effective date of this act." (Ballot Pamp., Gen. Elec. (Nov. 4, 2008) text of Prop. 9, p. 132.) Defendant concedes that "[t]he application of the Victim's Bill to 'all proceedings' held after the bill's effective date effectively extends its application to all parole hearings so held, including those for inmates whose crime was committed and who were sentenced prior to November 5, 2008." (Italics added.)
He argues, however, that the amendments cannot be applied retroactively because they increase the punishment for his crime. We disagree. As we have already determined (ante, at pp. 27-31), Marsy's Law did not increase the punishment for defendant's crime. (Morales, supra, 514 U.S. at p. 507.)
IV. Disposition
The superior court's November 19, 2010 order is reversed, and the court is directed to enter a new order denying Golliher's habeas corpus petition.
Mihara, J. WE CONCUR:
Bamattre-Manoukian, Acting P. J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.