Opinion
No. D060171.
2012-02-15
In re Rufus THOMPKINS, on Habeas Corpus.
Appellate Defenders, Inc. and Rich Pfeiffer, under appointment of the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Jennifer Neill, Acting Senior Assistant Attorney General, Phillip Lindsay and Kathleen R. Walton, Deputy Attorneys General, for Respondent.
Appellate Defenders, Inc. and Rich Pfeiffer, under appointment of the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Jennifer Neill, Acting Senior Assistant Attorney General, Phillip Lindsay and Kathleen R. Walton, Deputy Attorneys General, for Respondent.
HUFFMAN, Acting P. J.
In 2009, the Board of Parole Hearings (BPH) found petitioner Rufus Thompkins unsuitable for parole and scheduled his next parole hearing, pursuant to the minimum deferral term permitted under the amendments to Penal Code
section 3041.5 (adopted by the passage of Proposition 9, the Victim's Bill of Rights Act of 2008: Marsy's Law (hereafter Marsy's Law)), to be in 2012. Thompkins later applied for an “advanced” hearing date, which the BPH ultimately denied. In Thompkins's petition for writ of habeas corpus, he argues the mode by which the BPH disposed of his petition for an “advanced” hearing date denied him procedural due process, and that denial of the advanced hearing was an abuse of discretion. In Thompkins's supplemental petition, he argues application of Marsy's Law to him violates ex post facto principles.
Statutory references are to the Penal Code unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
In 1986, petitioner Rufus Thompkins shot and killed his wife and wounded her boyfriend with a firearm. In 1988, a jury convicted Thompkins of the first degree murder of his wife, assault with a deadly weapon on her boyfriend, and burglary. Thompkins was sentenced to 27 years to life, and has been imprisoned for more than 25 years. ( In re Thompkins (May 27, 2008, D050679) [nonpub. opn.].) During his imprisonment, he has largely avoided serious disciplinary actions, but the BPH found him unsuitable for parole at several hearings, including the most recent hearing in August 2009.
B. The Challenged BPH Action
At the 2009 hearing, after finding Thompkins unsuitable for parole, the BPH set his next parole hearing for the minimum deferral term permitted under the amendments to section 3041.5 and ordered he not be considered for parole for another three years. However, one year later, Thompkins applied under section 3041.5, subdivision (d), to advance his parole hearing, asserting there were changed circumstances (in the form of an August 16, 2010 report by Dr. A.L. Matthews describing Thompkins's psychological progress) that required the BPH to advance his parole hearing date. Thompkins was notified he was scheduled for a November 2, 2010 “Petition to Advance Hearing,” and that the BPH ordered a “full review” of his request for an advanced parole hearing.
However, the BPH (apparently after conducting a full review of Thompkins's application) ultimately denied his application to advance his parole hearing. In the order denying Thompkins's application to advance his parole hearing, the BPH found he had not established a reasonable likelihood that considerations of public safety and the victim's interests did not require the additional three years of incarceration. The order denying the advanced parole hearing stated the newly submitted information (the new psychological evaluation) did not address the concerns stated by the BPH in its 2009 denial of parole about his history of domestic violence. Neither Thompkins nor his attorney were permitted to attend the hearing at which his application to advance his parole hearing was considered.
C. The Writ Proceedings
Thompkins petitioned the trial court for a writ of habeas corpus asserting the order denying the advanced parole hearing should be vacated on two separate grounds. Thompkins argued he was denied procedural due process because he was entitled to be personally present and to have an attorney present when the application to advance his parole hearing date was considered, but was denied those rights. He also apparently contended, on the merits, that it was an abuse of discretion for the BPH to conclude the newly submitted information had not established a reasonable likelihood that considerations of public safety and the victim's interests did not require the additional three years of incarceration. The trial court denied Thompkins's petition, and he then filed a petition for writ of habeas corpus in this court asserting the order denying the advanced parole hearing should be vacated on the same two grounds.
This court issued an order to show cause, appointed counsel for Thompkins, and authorized Thompkins to file a supplemental petition for writ of habeas corpus. His supplemental petition reasserted the original arguments seeking relief and raised, for the first time, the argument that Thompkins should have been given a parole hearing on the one-year anniversary date of the 2009 denial because application of Marsy's Law's three-year deferral provisions violates ex post facto protections on their face and as applied by the BPH.
The People dispute that Thompkins was entitled to participate in the BPH's process of considering his application for an advanced parole hearing date, and dispute that the decision denying an advanced parole hearing was an abuse of the broad discretion granted by the statutory scheme to the BPH under the advanced parole hearing provisions of section 3041.5. The People argue Thompkins may not interpose any ex post facto contest to Marsy's Law because it is not properly before this court, it is untimely, it is “ successive,” and because principles of comity should be applied to defer to a pending federal class action raising the same issue. The People also argue, on the merits, that application of Marsy's Law's three-year deferral provisions does not violate ex post facto protections either facially or as applied by the BPH.
In the published portion of this opinion, we conclude Thompkins was not entitled to a separate hearing on his request for advancement. We also conclude the BPH did not abuse its discretion in denying Thompkins's request for advancement of his next parole hearing.
In the unpublished portion of this opinion, we will reject Thompkins's claim that application of Marsy's Law to him violates his ex post facto protections.
II
THOMPKINS'S CHALLENGE TO ORDER DENYING ADVANCEMENT
When the BPH denied parole to Thompkins in 2009, it ordered a three-year deferral under section 3041.5, subdivision (b)(3)(C), before Thompkins would again be considered for parole at his next parole hearing. Thompkins, contending new information or changed circumstances justified an earlier parole hearing, applied one year later to advance the date for his new parole hearing. The manner in which the BPH considered his application, as well as the decision on that application, was challenged in Thompkins's original writ petition.
A. The Former Law
The commitment offenses occurred in 1986. 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 parole hearing. However, that law gave discretion to the BPH to defer the subsequent parole hearing for two years (for all life sentence prisoners) or three years (for life sentence prisoners who had committed multiple murders) if the BPH found it was not reasonable to expect that parole would be granted sooner than two or three years, respectively.
(See Stats.1982, ch. 1435, § 1.)
Section 3041.5 was later amended to permit a five-year deferral of subsequent parole hearings for life sentence prisoners who had committed multiple murders, although it also provided that if such a longer deferral was imposed, the parole authority was required to conduct a “file review” within three years and had discretion based on that review to conduct an earlier parole hearing. (Stats.1990, ch. 1053, § 1.)
B. The Current Law
Changes in the Length of the Deferral Term (Subdivisions (b)(3)(A)–(C))
The enactment of Marsy's Law in 2008 amended section 3041.5 to provide longer deferral periods between parole hearings, and modified the standards and considerations for determining which of the longer deferral periods would be selected by the BPH panel. The most significant change is that, when the BPH denies parole, the amendments mandate longer deferrals for the subsequent parole hearing than were permitted under the prior statutory scheme. Under current law, the subsequent parole hearing date must be set at either 15 years or 10 years unless the BPH finds 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 by clear and convincing evidence that neither the 10–nor 15–year deferral are necessary to protect the safety of the public or the victims, the BPH must select a seven-year deferral for the subsequent parole 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 an additional seven additional years,” in which event the BPH may set the deferral at either five years or three years. (§ 3041.5, subd. (b)(3)(C).)
Advancing a Hearing (Subdivisions (b)(4) & (d)(1)–(3))
A second aspect of the changes adopted under Marsy's Law is that an inmate may request the BPH to order, or the BPH may on its own motion order, the subsequent parole hearing date be advanced to an earlier date based on changed circumstances or new information. (§ 3041.5, subds. (b)(4) & (d) (1).) Subdivision (b)(4) provides:
“The [BPH] 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).”
Subdivision (d), which specifies the procedures and showing for inmate-initiated requests to advance a hearing date, provides:
“(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.”
The inmate's ability to initiate the procedures seeking review pursuant to this avenue appears constrained to cases in which he or she can make a prima facie showing both that there are changed circumstances or new information and that such changed circumstances or new information establishes a “reasonable likelihood” that consideration of the public safety does not require the additional period of incarceration of the inmate. (§ 3041.5, subd. (d)(3).) Additionally, if the inmate applies to advance the subsequent parole hearing date and the request is denied (as here), or obtains an advanced hearing but is denied parole at the advanced hearing, the inmate may not petition again to advance the subsequent parole hearing date to an earlier date until three more years have elapsed from either the summary denial or the denial after a full review. (§ 3041.5, subds. (d)(1) & (d) (3).)
C. The BPH May Deny an Inmate's Application to Advance a Parole Hearing Without a Full Hearing on the Application
Thompkins argues he was denied procedural due process because the BPH reviewed and ruled on his application without affording him a hearing on his application at which he or his attorney could have attended to argue in favor of the application.
First, there is nothing in section 3041.5, subdivision (d), that supports Thompkins's claim that an inmate's application to advance a parole hearing date may only be denied after an adversarial hearing on the application. Subdivision (d)(2), which specifies the BPH has “sole jurisdiction ... to determine whether to grant or deny a written request” and that such decision is subject to review “only for a manifest abuse of discretion,” specifies the BPH “shall have the power to summarily deny a request ” if it concludes either that the application “does not comply with the provisions of [subdivision (d) ]” or that the application “does not set forth a change in circumstances or new information ... that in the judgment of the board is sufficient to justify [advancing the suitability hearing].” ( Ibid., italics added.) As we read the statute, section 3041.5, subdivision (d), gives the BPH two options when an inmate applies for an advanced parole hearing date: it may grant the application by “exercis[ing] its discretion to advance a hearing set ... to an earlier date” ( id., subds. (d)(1) & (b)(4), italics added), or it may “ summarily deny a request” ( id., subd. (d)(2), italics added). Neither option contemplates a hearing on the action the BPH decides to take in response to the application, and the plain language of section 3041.5, subdivision (d), authorizing a “summary denial” appears inconsistent with Thompkins's argument that the decision must be preceded by some form of adversarial hearing on the application.
We are also unpersuaded by Thompkins's argument that, because the decision on his application deprives him of some federally protected liberty interest, the due process clause superimposes on this decision the right to some form of adversarial hearing (under the rationale of People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024 ( Coleman )) before the BPH can rule on the application.
However, Coleman involved a parole revocation hearing and concluded, considering the analysis of Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (which had determined that a parole revocation proceeding required some level of procedural due process protections, id. at pp. 482–489, 92 S.Ct. 2593), that some level of procedural due process protection is available in a probation revocation proceeding. ( Coleman, at pp. 873–878, 120 Cal.Rptr. 384, 533 P.2d 1024.) Coleman is inapposite because the United States Supreme Court has expressly determined an inmate does not have a constitutionally protected liberty interest in being released on parole ( Greenholtz v. Inmates of Nebraska Penal and Correctional Complex (1979) 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 [“[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence”] ), and thus the protections accorded in parole revocation proceedings are inapplicable to proceedings to determine whether to grant or deny parole ab initio. ( Id. at p. 9, 99 S.Ct. 2100 [rejecting argument that Morrissey supported imposing procedural due process protections at hearing to determine whether to parole inmate because the “fallacy in respondents' position is that parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires”].)
We are also unpersuaded by Thompkins's implicit argument that an administrative process having been made available, some form of procedural due process protections must attend the application process. In Olim v. Wakinekona (1983) 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813, the court noted that a state can “create[ ] a protected liberty interest by placing substantive limitations on official discretion [but the] inmate must show ‘that particularized standards or criteria guide the State's decisionmakers.’ [Citation.] If the decisionmaker is not ‘required to base its decisions on objective and defined criteria,’ but instead ‘can deny the requested relief for any constitutionally permissible reason or for no reason at all,’ [citation] the State has not created a constitutionally protected liberty interest. [Citations.] [¶] Hawaii's prison regulations place no substantive limitations on official discretion and thus create no liberty interest entitled to protection under the [d]ue [p]rocess [c]lause.” ( Id. at p. 249, 103 S.Ct. 1741.) Here, the statute expressly grants the BPH the “sole jurisdiction” to make the decision, and states the decision is both permissive and discretionary. (§ 3041.5, subd. (b)(4) [the BPH “ may in its discretion ” order an advanced hearing date].) Because there is no objective and defined criteria for ordering an advanced parole hearing, Thompkins has no liberty interest in obtaining that order for purposes of procedural due process protections.
We conclude that neither the statute nor constitutional requirements require that, before the BPH rules on an inmate's application to advance a parole hearing date, the BPH must afford the inmate a hearing on that application.
In many ways, the inmate's application for an advanced parole hearing date resembles a petition for writ of habeas corpus. In both types of proceedings, the applicant must set forth facts establishing a prima facie case for relief, or the application may be summarily denied. ( People v. Duvall (1995) 9 Cal.4th 464, 474–475, 37 Cal.Rptr.2d 259, 886 P.2d 1252 [petition for habeas corpus]; § 3041.5, subd. (d)(1) [application to advance hearing].) In neither proceeding, however, is the decisional body obligated automatically to order a full hearing on the merits of the application merely because the applicant's allegations are facially satisfactory; instead, the decisional body may conduct additional informal analysis of the applicant's allegations to assess whether a full adversarial hearing is warranted considering the full record before it. (See Cal. Rules of Court, rule 4.551, subd. (b) [before ordering a full adversarial hearing on merits, court may request informal response]; § 3041.5, subds. (b)(4) & (d)(2) [before BPH exercises discretion to advance a parole hearing, it must determine whether the proffered change in circumstances or new information establishes a reasonable likelihood that inmate does not require the additional period of incarceration].) The court explained in Durdines v. Superior Court (1999) 76 Cal.App.4th 247, 90 Cal.Rptr.2d 217 that, in the context of a petition for writ of habeas corpus, a court need not issue an order to show cause merely because an “artful petitioner” has stated a prima facie claim for relief ( id. at p. 252, 90 Cal.Rptr.2d 217), but may instead request an informal response that might convince the court a full hearing is unnecessary, and permit the court to “speedily terminate proceedings, after the minimum expenditure of time and expense.” ( Id. at p. 253, 90 Cal.Rptr.2d 217.) There is no suggestion that a habeas petitioner's procedural due process rights encompass the right to an adversarial hearing before the court (after considering the informal response) may decline to issue an order to show cause, and we are similarly convinced an inmate's procedural due process rights do not encompass the right to an adversarial hearing before the BPH (after considering the entire record before it) may decline to issue an order under section 3041.5, subdivision (b)(4) setting a full hearing on suitability for parole.
D. The BPH's Decision on Thompkins's Application Was Not a Manifest Abuse of Discretion
Thompkins also challenges the substantive ruling of the BPH as a manifest abuse of its discretion. The statutorily mandated standard for our review of the BPH's decision to deny Thompkins an advanced parole hearing is whether the denial constituted a “manifest abuse of discretion.” (§ 3041.5, subd. (d)(2).) This highly deferential standard requires that we affirm the BPH's decision unless it “ ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” ( People v. Williams (1998) 17 Cal.4th 148, 162, 69 Cal.Rptr.2d 917, 948 P.2d 429.)
Under the applicable law, the BPH has discretion to order an advanced parole hearing “when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner.” Thus, if there are no changed circumstances or new information, the BPH may deny an advanced parole hearing. Alternatively, even if there are changed circumstances or new information, the BPH may deny an advanced parole hearing if it concludes the changed circumstances or new information do not establish “a reasonable likelihood” that parole would be granted at an advanced parole hearing. We must therefore examine whether there is “some evidence” ( In re Powell (1988) 45 Cal.3d 894, 904, 248 Cal.Rptr. 431, 755 P.2d 881) either (1) there were no changed circumstances or (2) such changed circumstances did not establish a reasonable likelihood that parole would be granted at an advanced parole hearing.
We conclude that, even assuming Thompkins had shown changed circumstances or new information,
there was some evidence to support the conclusion the asserted changed circumstances did not establish a reasonable likelihood parole would be granted at an advanced parole hearing. When the BPH concluded Thompkins was unsuitable for parole one year earlier, it cited (among other things) that Thompkins posed an unreasonable risk to the community because his mental attitude toward the crime reflected a continued effort to minimize his culpability for the murder of his wife.
The asserted new information cited by Thompkins was a new statement from a psychologist opining favorably on his ability to succeed on parole. While this was chronologically new (insofar as it was generated after his 2009 parole suitability hearing), the psychological evaluation considered by the BPH when it denied Thompkins's parole in 2009 also gave a favorable opinion on his ability to function on parole. Thus, we question whether the 2010 report was a “changed circumstance” from those previously considered and rejected by the BPH.
When the BPH denied Thompkins's current application to advance a parole hearing date, it found the asserted changed circumstances did not establish a reasonable likelihood that parole would be granted at an advanced parole hearing, and specifically noted the “ ‘new information’ ” did not “address concern expressed by the hearing panel” concerning Thompkins's past history of domestic violence. Since there was some evidence that his cited “changed circumstances” did not establish a reasonable likelihood that parole would be granted at an advanced parole hearing, because the new information did not obviate a major concern expressed by the BPH one year earlier when it denied parole for Thompkins, we cannot conclude that denying his application for an advanced parole hearing was a manifest abuse of discretion within the standards prescribed by section 3041.5, subdivision (d)(2).
The 2009 panel noted that Thompkins currently claimed he had not been involved in any domestic violence toward his wife, and that he was armed with the gun on the night of the murder because he was sleeping in his car and carried it to protect himself, when there was contradictory evidence that (1) he had engaged in prior domestic violence toward his wife, (2) he carried the gun into his confrontation with his wife because he thought she was armed, and (3) he had expressed a willingness to kill his wife and her boyfriend if his wife refused Thompkins's entreaty to stop seeing her boyfriend.
III–IV
See footnote *, ante.
DISPOSITION
The petition is denied.