Opinion
H036114
10-26-2011
In re DAVID BRIAN BAKER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 127997)
I. INTRODUCTION
Petitioner David Brian Baker was convicted of first degree murder in 1989 and sentenced to prison for a term of 27 years to life. On May 6, 2009, a panel of commissioners representing the Board of Parole Hearings (Board) found Baker unsuitable for parole and ordered that his next parole hearing be deferred for five years. The Santa Clara County Superior Court granted Baker's petition for writ of habeas corpus, vacating the Board's order and directing the Board to conduct a new hearing within 30 days. Respondent Vince Cullen, acting warden of San Quentin State Prison (Warden), appeals. He argues that the superior court erred because the record contains some evidence that Baker would pose a risk to public safety if released. We agree and shall reverse the order of the superior court.
In a supplemental brief Baker argues that the extended deferral period between parole suitability hearings enacted by Proposition 9 in 2008 (Marsy's Law) violates the prohibition against ex post facto laws. We find no ex post facto violation.
Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law," effective November 5, 2008 (Cal. Const., art. I, § 28) amended Penal Code section 3041.5, extending the period between parole suitability hearings. The question whether the amendment violates constitutional ex post facto provisions is presently before the California Supreme Court. (In re Vicks, S194129, review granted July 20, 2011; In re Russo, S193197, review granted July 20, 2011; In re Smith, S194750, review granted Sept. 14, 2011.)
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The 2009 Board Hearing
The hearing at issue was Baker's first subsequent parole consideration hearing. The first hearing was held May 8, 2006, at which time the Board denied parole for a three-year period and recommended that Baker be discipline free, earn positive comments from his supervisors, and continue to get self help. Except where indicated, the following facts are taken from the transcript of the 2009 hearing.
1. The Life Crime
On November 10, 1988, Baker, who was 22 years old at the time, shot and killed the victim, Steven Shipman. Baker had been having an affair with Shipman's wife, Star. Star was older than Baker by about 10 years; she "stroked" his ego by telling him she was attracted to him. She also told him that Shipman had been physically abusing her.
On the day of the crime, Baker had not seen or spoken to Star for a week. Nevertheless, he said he was "fed up," took his loaded .22 caliber automatic rifle, and positioned himself behind a cinderblock wall across the street from Shipman's parents' house where Baker knew Shipman to be. When Shipman left the house and came within about 30 feet of Baker, Baker fired about nine shots, hitting Shipman with three of them. Shipman called to his parents that he had been shot. He later died of his wounds. Baker fled. He contacted a friend and inveigled him into providing an alibi. Baker said that he thought he was going to be a hero, but "that was wrong. There was no way that I should have even mangled in their affairs."
Baker was not on drugs when he committed the crime but he had been taking methamphetamines for weeks before that. Baker told the Board that if he had had the drug that day he would have taken it. He explained that when taking methamphetamine one does not eat or sleep, you are "just going out of control." And he had been "doing it for weeks." Baker said that when taking methamphetamine, one is "not thinking clearly."
2. Social/Criminal History
Baker was raised in the small town of Greenfield, California. He was the fifth of seven children. His parents had a loving, long-term marriage. Baker graduated from high school in 1983. He moved to the San Jose area shortly thereafter. He had begun using marijuana and alcohol as a teenager and was using very heavily by the time he was 18. He used drugs to cover his shyness and to fit in with the people he met. In his words, he got "caught up with the wrong people [in the big city]." He used methamphetamine almost daily for about two years before committing the murder. Baker had no juvenile record or any criminal record prior to murdering Shipman. He had been selling methamphetamine in order to support his drug habit but he had never been arrested for that conduct.
Baker is presently married to Trisha Baker, whom he first met in high school. Trisha, who was married at the time, contacted Baker through Classmates.com while Baker was incarcerated. She eventually divorced her husband and married Baker in 2003. Trisha has three children, two of whom are adults and live independently. Her 13-year-old son lives with his father in Utah. The son has visited Baker and established a relationship with him.
3. Parole Plans
Baker would like to live with his wife if paroled. His father still lives in Greenfield. Baker and his wife would live with him until they could save enough to afford a place of their own. There are many services near Greenfield for inmates reentering the community. If the Board required that he be paroled to Santa Clara County, Baker has resources and support there as well.
If paroled to Greenfield, Baker expects to be able to work as an automotive mechanic for Wente Brothers, a winery in King City where his former brother-in-law has assured him of a position. Given his experience in welding and refrigeration Baker might also be able to obtain employment with Monterey Bay Aquarium. Other skills include air conditioning and appliance repair.
4. Institutional Record
Baker has had regular jobs while in prison and has taken several vocational courses. He presently works in the garage servicing prison vehicles. Since his last parole hearing he completed an appliance repair and paint and decoration courses and was certified in refrigeration.
Baker has regularly participated in Narcotics Anonymous (NA) meetings. His self-help programming since the last parole hearing included an anger management program, a 22-week victim offender education group, four sessions of a 16-week workshop entitled "What is a Man," and nine sessions of the "Keeping It Real" program. His file also contained several laudatory comments from prison staff.
Baker's record during incarceration is marred by one disciplinary violation and two counseling reports. In February 2004 he received a 128-A custodial counseling chrono for participating in a forwarded telephone conversation. (Trisha had forwarded her home telephone to her cell phone.) The three-way call was a violation of prison rules. In April 2003 Baker received a CDC 115 disciplinary violation related to sexual conduct with Trisha while in the visiting area. On June 17, 2006, a little over a month following his last hearing, he had another 115 disciplinary violation, which was later reduced to a 128-A counseling chrono. This also involved sexual misconduct with Trisha.
A CDC "115" is issued for misconduct "believed to be a violation of law or . . . not minor in nature." A CDC "128-A" is issued for incidents of "minor misconduct." (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2) & (3); In re Reed (2009) 171 Cal.App.4th 1071, 1077.)
Reports of the sexual misconduct violations appear in the record. The report of the first incident states that Baker and Trisha were in the visiting area where Trisha was seated with one leg up on a table. Baker was seen rubbing Trisha's genital area for approximately one minute, then licking his index and middle finger. The incident occurred in plain view of civilian visitors and their children. The report of the second incident states that Baker was kissing Trisha, holding her with his left arm, when he was observed inserting his right hand into the waistband of her garment, palm toward her body. He moved his hand up and down in a "massaging" motion for about 30 seconds before being ordered to the back of the room. Baker claimed that he was merely kissing her goodbye. When asked by the district attorney why, when he knew the rules, he still did what he did, Baker said that he "just got caught up in the moment." He used the same phrase in response to a similar question from his attorney. While denying that either incident showed him to be impulsive, he admitted that he and Trisha "get caught up in the moment."
5. 2009 Psychological Evaluation
Baker underwent a psychological examination by Dr. Richard Hayward. Hayward's report is dated February 5, 2009. According to Hayward's report, Baker denied any physical, sexual, or emotional abuse as a child. He began using drugs around the age of 14. Prior to the murder, Baker was "immature and had an anti-social orientation." His judgment was impaired by use of methamphetamines and other substances. "His excessive drug use delayed his developmental processes resulting in an emotionally unstable and immature young adult." Presently, Baker "displays improved interpersonal skills and an awareness of the impact of his actions on others."
Hayward states that Baker's crime "partly resulted from his severely impaired judgment and impulse control. He also displayed impulsivity during his incarceration as indicated by the 115 RVR [rules violation report] and the 128 RVR for improper contact with his visitor." Baker expressed remorse about the murder. Based upon Baker's comments and his consistent account of his version of the crime, "there are indications that Mr. Baker has gained insight into his life crime during his past 20 years of incarceration. He reported that he now understands that his judgment and impulse control were severely impaired, and that he made a tragic decision."
Hayward further states that Baker has "improved his behavior in a controlled environment." He had "significant problems with impulse control, judgment and relationship stability" when he was younger, in the "more current and dynamic domain of risk assessment, Mr. Baker displayed only a few of the predictive factors for recidivism. He has no active symptoms of a major mental illness, and he displayed insight into his former personality style as well as the contributing factors to the commitment offense. He has been responsive to the programming that has been available to him, and remains positive about his progress and hopes for his future. All reports indicated that he is both emotionally and behaviorally stable."
Baker's risk of recidivism is reduced by several factors, including his work history, family support and positive attitude. His risk of violent recidivism would increase if he relapsed into drug or alcohol abuse; it would decrease if he were able to obtain employment with a sufficient income and continue to participate in NA.
6. Community Support and Opposition
Baker submitted numerous letters of recommendation from family and friends. In opposition was a letter from the Honorable David A. Cena, Judge of the Santa Clara County Superior Court, who stated, "The court recommends against the defendant's [sic] release." Santa Clara County Sheriff Sergeant Dean Baker stated, "In my opinion, David Baker represents a significant hazard to the public as demonstrated by the callous manner in which he committed his crime . . . ."
7. The Board's Decision
After a nearly four-hour hearing, the Board deliberated for 27 minutes and decided to deny parole for five years. The presiding commissioner gave the Board's decision stating that the "first consideration which weighs against suitability is the commitment offense." The commissioner described the facts of the murder stating there is "no question that this was a cold-blooded calculated murder." Given the number of shots and the distance a bullet can travel, "several or many other people could have been injured or killed." The crime "demonstrated an extremely callous disregard for human suffering" because the victim was not immediately killed but called for help after being shot. The Board also found "the motive was very trivial."
The commissioner acknowledged that Baker had no "formal criminal history" but that he admitted to selling methamphetamine, which is a criminal act. Baker's psychological evaluation was "certainly favorable." But the Board was concerned that Baker had "minimized" his personal responsibility for the crime by pointing to external influences like drugs and the people around him. The other factor of concern was Baker's "lack of impulse control." The presiding commissioner pointed out that before he began the relationship with Trisha, Baker had no disciplinary violations in prison. But when Trisha started visiting there were incidents that Baker had explained away as getting caught up in the moment. "And with your history, being caught up in the moment is what is problematic. . . . I basically felt that that behavior was similar to the life crime, that your insight into the life crime and your behavior while incarcerated, as it relates to the visiting infractions, don't reconcile."
The decision goes on to note that while there is evidence of opposition from the victim's family, the court, and the Santa Clara County Sheriff, Baker has a great deal of support from friends and family. He also has excellent vocational programming, extensive laudatory reports and self-help, and good parole plans. Although he was making progress, the Board is "concerned with that impulse control."
Pursuant to Penal Code section 3041.5, subdivision (b)(3), the panel found that Baker "does not require a period of incarceration of 15 additional years before his next parole hearing." "But we find you're unsuitable for parole because you remain a present risk of danger for at least to require at least an additional five years of incarceration, and that's because of the things that I mentioned. The impulse control is what we're concerned about, or lack thereof. And we do believe that you externalized and minimized a lot of the circumstances of your situation. It's like somebody else made me do it, the drugs made me do it, my friends made me do it . . . . We're real concerned about that, because then that means that it's not Mr. Baker taking full and total responsibility, and, therefore, having a clear--clear insight into exactly his responsibility."
The panel encouraged Baker to participate in any vocational or educational programs that become available, to continue to participate in self-help and earn the positive reports. "So, you're on your way. You're getting there. You just have some work to do, and we believe eventually that will happen."
B. The Habeas Petition
Baker petitioned the superior court for a writ of habeas corpus arguing that the Board's decision was arbitrary and in violation of the rule of In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence). The superior court issued a lengthy order granting the writ. Referring to what it labeled "a pattern of Board practices," the court noted, "Despite specific directives, and unheeded advice, the Board remains entrenched in its Dannenberg approach to parole determinations even though Dannenberg was overruled." The superior court faulted the Board for what it viewed as the Board's reliance upon an old formula of simply weighing the factors listed in California Code of Regulations title 15, section 2402 rather than utilizing Lawrence's "nexus analysis." (See Lawrence, supra, at p. 1227.) The court was of the opinion that under the "nexus test" "the fact that the crime was aggravated adds nothing to the analysis."
In re Dannenberg (2005) 34 Cal.4th 1061.
Further unspecified section references are to title 15 of the California Code of Regulations.
The superior court rejected the argument that there is any "nexus" between the premeditated crime and Baker's more recent impulsive behavior. The court found that the type of impulsiveness that resulted in the sexual misconduct in the visiting room "played little role in the crime." Moreover, to the extent there is a nexus between the crime and Baker's postconviction conduct, "this would be a nexus that does not depend on the crime being aggravated or fitting any of the Board's regulations. Thus the Board's finding giving the crime weight in and of itself was irrelevant, and therefore error, even under the only asserted nexus Respondent now offers." As to the crime, the court rejected the Board's conclusion that the motive was trivial, concluding that Baker's situation was "unfortunately all too common."
Finally, the superior court found that "the Board was crystal clear that its analytical paradigm called for weighing its regulatory criteria without regard to any nexus. It is not merely that the Board did not use the words of nexus analysis, it is that the Board did not use the concept of nexus analysis. By assigning independent weight to the crime, which by itself 'weighs against suitability,' the Board revealed a systematically flawed approach and one which does not satisfy due process."
The superior court vacated the decision of the Board and remanded "with directions to proceed in accordance with due process and to consider all relevant reliable information. [¶] The new hearing shall be held within thirty days. (See Moreno, [J.,] concurring in [In re] Prather [(2010) 50 Cal.4th 238, 259], re: 'expedited parole hearings on remand.')" The Warden appeals from the order. We have issued a writ of supersedeas, staying enforcement of the order pending resolution of this appeal.
III. DISCUSSION
A. Legal Framework
Penal Code section 3041 and title 15 of the California Code of Regulations govern the Board's parole decisions. Under the statute the Board is required to set a parole release date one year before an inmate's minimum eligible parole release date unless it "determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." (Pen. Code, § 3041, subd. (b).)
A parole release decision by the Board is essentially discretionary in that it is "the Board's attempt to predict by subjective analysis" the inmate's suitability for release on parole. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz).) Such a prediction requires analysis of individualized factors on a case-by-case basis and the Board's discretion in that regard is " ' "almost unlimited." ' " (Ibid.) A number of factors for the Board to consider are identified in Penal Code section 3041 and in the Board's regulations. The regulations provide that in making its determination the Board must consider "[a]ll relevant, reliable information" concerning suitability for parole. (§ 2402, subd. (b).) The regulations contain a nonexclusive list of factors demonstrating suitability or unsuitability. (Id. subds. (c), (d).) The first unsuitability factor listed is the inmate's having committed the offense in a particularly heinous, atrocious, or cruel manner such as where multiple victims were attacked, injured, or killed; the offense was carried out in a dispassionate and calculated manner as with an execution-style murder; the victim was abused, defiled, or mutilated; the offense was carried out with exceptionally callous disregard for human suffering; or where the motive for the crime was inexplicable or very trivial. (Id. subd. (c)(1).) Other unsuitability factors include that the inmate possesses a previous record of violence, has an unstable social history, or has engaged in serious misconduct while in prison. (Id. subd. (c)(2), (c)(3), (c)(6).) Relevant suitability factors include that the inmate has no record of violent crime, a stable social history, demonstrated signs of remorse, realistic plans for release or marketable skills that can be put to use upon release, and a record of engaging in institutional activities that indicate an enhanced ability to function within the law upon release. (Id. subd. (d).)
The foregoing factors are " 'general guidelines,' " illustrative rather than exclusive, and " 'the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board].' " (Rosenkrantz, supra, 29 Cal.4th at p. 654; § 2402, subds. (c), (d).) "[T]he fundamental consideration in parole decisions is public safety," and, therefore, "the core determination of 'public safety' . . . involves an assessment of an inmate's current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1205.) Thus, while the Board's discretion is broad, the Board's analysis "requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision--the determination of current dangerousness." (Id. at p. 1210.)
Judicial review of the Board's decision is very deferential. To support the Board's decision, "[o]nly 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.)
Lawrence did not change the standard of judicial review of parole decisions set forth in Rosenkrantz but it did caution that the standard is "certainly . . . not toothless." (Lawrence, supra, 44 Cal.4th at p. 1210.) "[J]udicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights. If simply pointing to the existence of an unsuitability factor and then acknowledging the existence of suitability factors were sufficient to establish that a parole decision was not arbitrary, and that it was supported by 'some evidence,' a reviewing court would be forced to affirm any denial-of-parole decision linked to the mere existence of certain facts in the record, even if those facts have no bearing on the paramount statutory inquiry." (Id. at p. 1211.) "Accordingly, when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212.)
Where, as here, the superior court granted habeas relief without an evidentiary hearing, our review is de novo. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
B. Analysis
In denying parole in this case the Board relied upon its finding that the commitment offense was particularly heinous in that multiple victims could have been injured or killed, Baker carried it out in a calculated manner, and the motive was trivial. The Board also cited Baker's lack of insight as demonstrated by his externalizing some of the blame for his committing the murder and his impulsive behavior as demonstrated by his sexual misconduct in the visiting area.
We agree with the trial court that Baker's motive was not trivial. As the appellate court noted in In re Scott (2004) 119 Cal.App.4th 871, 893, murder is such an egregious crime that any motive could be considered trivial. Here, Baker was an infatuated, drug-saturated 22-year-old man, who thought he was going to be a hero and save his lover from abuse he believed she was suffering. Although possibly delusional, the motive was not trivial.
Assuming, without deciding, that there is no factual support for the Board's finding that the crime was particularly egregious, the finding is superfluous to its ultimate decision. The "nexus" analysis to which the superior court referred is straightforward. "Nexus" means, quite simply, "a link or connection." (Concise Oxford English Dict. (11th ed. 2004) p. 964, col. 2.) The link or connection with which Lawrence was concerned was the link between the factors found by the Board and the ultimate finding that the inmate would present a danger to the public if released. The whole point of Lawrence was that the Board's mere recitation of a fact, without somehow showing how it could be linked or connected to the ultimate finding of dangerousness, is insufficient to support an unsuitability determination. Nothing in Lawrence inhibits the Board's discretion to consider and weigh the factors relevant to its ultimate determination, which is what the superior court's order seems to suggest. Lawrence simply clarified: "It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (Lawrence, supra, 44 Cal.4th at p. 1212.) Although the superior court is correct that the circumstances of the offense, standing alone, are usually insufficient to support an unsuitability finding, the circumstances of the crime are not irrelevant. Nor does the crime have to be particularly egregious in order to play a role in the Board's analysis. In this case, the Board was concerned with Baker's current view of why he committed the murder and also with evidence of his recent impulsiveness, which has some parallels with the circumstances surrounding the murder.
The Board found that Baker's attitude about the crime was that external forces--the people with whom he associated, the drugs he took, the woman who made him feel important--were at least part of the reason he ended up killing Shipman. There is evidence to support the finding in that Baker repeatedly noted that he had been heavily under the influence of drugs around the time he murdered Shipman, drugs prevented him from thinking clearly, he used drugs in order to fit in with others, and he stayed with Star because she stroked his ego.
The Board was also concerned that Baker's conduct with Trisha in the visiting area had circumstances in common with the commitment offense. The psychologist opined that the murder was the result of Baker's bad judgment and lack of impulse control. The impulsiveness of the murderous act is demonstrated by Baker's description of his state of mind at the time. After not having seen or spoken to his lover for a week, Baker said that he got "fed up." He was caught up in his fantasy of being the hero who would save his lover from an abusive relationship and, notwithstanding he had not seen or heard from her for several days, he allowed his fantasy to impel him to murder the man he believed was abusing her. Baker had no history of arrests for violent behavior prior to the crime and the crime itself was inextricably linked to his romantic entanglement with a married woman. Baker's postconviction sexual misconduct has some similar characteristics in that Baker had no rules violations before his involvement with Trisha; the incidents sprang from his feelings for a woman who was married at the time their relationship began; and the conduct shows a lack of judgment and inability to control his impulses. Indeed, in denying that he has a problem with impulse control while at the same time admitting that he and Trisha get "caught up in the moment," Baker affirmatively demonstrates that he lacks a clear understanding of what it means to control one's impulses. This lack of understanding and continuing impulsiveness suggest that he still lacks insight into what led him into jump in his car with a loaded gun and go after Shipman. Whether or not the murder is properly characterized as particularly egregious, the parallels between it and Baker's current conduct caused the Board to be concerned that Baker may not fully appreciate the internal forces that compelled him to shoot Shipman and, therefore, he remains a danger to the public if released.
Even without their similarity to the circumstances of the life crime, the two visiting room violations demonstrate a simple inability to follow the rules. Indeed, the second violation occurred after Baker's first parole suitability hearing in which he was expressly directed to be discipline free. "Does [an inmate's] inability to follow an express direction to comply with the rules of the institution provide some current evidence that, when released, petitioner will be unable to follow society's laws? It does." (In re Reed, supra, 171 Cal.App.4th at p. 1085.) "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." (Id. at p. 1081.) The Board is entitled to deny parole to a life prisoner who has "demonstrated a current unwillingness or inability to adhere to the reasonable conditions of parole." (Id. at p. 1075.) Baker's repeated misconduct with his wife was some evidence supporting the Board's decision in this case.
We also reject the superior court's characterization of the Board's order as failing to apply the concept of the Lawrence nexus analysis. "Although the Board did not specifically state that there was a 'rational nexus' between [the stated factors] and the ultimate conclusion [that Baker was currently dangerous], we are not required to remand due solely to the absence of some pro forma recitation on the record. To the contrary, Lawrence called, instead, for reasoning. (Lawrence, supra, 44 Cal.4th at p. 1210.) The Board's explanation contains that reasoning. . . ." (In re Criscione (2009) 180 Cal.App.4th 1446, 1461.) The Board stated that it found Baker unsuitable "because you remain a present risk of danger" because of "the things that I mentioned. The impulse control is what we're concerned about, or lack thereof. And we do believe that you externalized and minimized a lot of the circumstances of your situation. . . . We're real concerned about that, because then that means that it's not Mr. Baker taking full and total responsibility, and, therefore, having a clear--clear insight into exactly his responsibility." The unstated but implied assumption is that the absence of more clear insight and better impulse control is a present risk to public safety. Although the reasoning relies upon unstated assumptions, it is, in our view, adequate to reveal that the Board was appropriately connecting the factors it found to exist with its determination of present dangerousness.
Because we reverse the superior court's decision, we need not reach the Warden's alternative argument, which is that the superior court erred in ordering a new hearing to be held within 30 days instead of the 90 days required for notice under Penal Code section 3043, subdivision (a)(1).
IV. MARSY'S LAW
Baker contends that the 2008 amendments to Penal Code section 3041.5, popularly known as Marsy's Law, violate the Ex Post Facto clauses of the state and federal Constitutions. Baker did not raise the issue in connection with his petition for writ of habeas corpus but asks that we exercise our discretion to consider it for the first time on appeal. Because we reverse the superior court's order, and because the argument presents an issue of law based upon undisputed facts, we shall consider it. (See In re Stier (2007) 152 Cal.App.4th 63, 75-76.)
Ex post facto laws are those that "retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 43; People v. Alford (2007) 42 Cal.4th 749 (Alford).)"A change in the law that merely operates to the disadvantage of the defendant or constitutes a burden is not necessarily ex post facto." (People v. Bailey (2002) 101 Cal.App.4th 238, 243.) 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 state and federal provisions are analyzed identically. (Alford, supra, at p. 755.)
Former Penal Code 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 inmates convicted of multiple murders) if it was not reasonable to expect parole would be granted before that. (See In re Brown (2002) 97 Cal.App.4th 156, 158.) Marsy's Law gave the Board discretion to schedule subsequent suitability hearings 15, 10, seven, five, or three years after a parole denial. (Pen. Code, § 3041.5, subd. (b)(3).) This means that instead of scheduling subsequent hearings one to five years after the hearing at which parole is denied, the Board now schedules subsequent hearings from three to 15 years distant. Baker maintains that this change is an impermissible ex post facto law because it makes his punishment more burdensome than it would have been under the law in effect when he committed the murder.
Penal Code section 3041.5, as amended by Marsy's Law, provides in pertinent part:
"(b)(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 threeyear 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 threeyear period of time has elapsed from the summary denial or decision of the board."
In California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 514 (Morales), the United States Supreme Court held that a 1981 amendment to Penal Code section 3041.5 that decreased the frequency of parole suitability hearings did not violate ex post facto principles. The amendment authorized the Board to defer parole suitability hearings for up to three years for inmates who had committed multiple murders if the Board found it was not reasonable to expect parole to be granted before that. (Morales, supra, at p. 514.) The controlling inquiry was whether retroactive application of the amendment created "a sufficient risk of increasing the measure of punishment attached to the covered crimes." (Id. at p. 509.) Morales reasoned that there was no ex post facto violation because the amendment did not increase the statutory punishment for the crime; it did not disturb the indeterminate sentence, the substantive formula for securing any reductions to the sentence, the process for setting the minimum eligible parole date, or the standards for determining parole suitability. (Id. at p. 507.) Of particular note was the fact that 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 (id. at pp. 513-514). Because the amendment created "only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes," it was not an ex post facto violation. (Id. at p. 509.)
Garner v. Jones (2000) 529 U.S. 244, 250 (Garner), also considered the ex post facto prohibition in connection with a law governing parole hearings. In Garner, at the time the defendant committed his crime, Georgia's parole board was required to reconsider parole suitability every three years. (Id. at p. 247.) Later, the parole board amended its rules, extending reconsideration hearings for all inmates with life terms to at least every eight years. (Ibid.) Although the new rules allowed the parole board to extend parole reconsideration by significantly more than the two additional years at issue in Morales, applied to all prisoners serving life sentences and not just those committing multiple murders, and afforded fewer procedural safeguards than the amendment at issue in Morales, the Supreme Court found that these differences were "not dispositive." (Garner, supra, at p. 251.)
As the majority opinion in Garner pointed out, although the presence of discretion does not displace the ex post facto analysis, "to the extent there inheres in ex post facto doctrine some idea of actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression, [citation] we can say with some assurance that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender's release, along with a complex of other factors, will inform parole decisions. [Citation.] The essence of respondent's case, as we see it, is not that discretion has been changed in its exercise but that, in the period between parole reviews, it will not be exercised at all. The statutory structure, its implementing regulations, and the Parole Board's unrefuted representations regarding its operations do not lead to this conclusion." (Garner, supra, 529 U.S. at pp. 253-254.) Georgia's amended statute preserved the parole board discretion to deny parole for a range of years and permitted an expedited review if a change of circumstances or new information indicated that an earlier review was warranted. (Id. at p. 254.) Thus, the change in the law did not risk lengthening the inmate's time of actual imprisonment because it did not deprive the parole board of discretion during the time between hearings. (Id. at p. 256.)
The 2008 amendments to Penal Code section 3041.5, like the 1981 amendment considered in Morales, did not alter the statutory punishment for the crime, the substantive formula for securing credits, calculation of the minimum eligible parole date, or the standards for determining parole suitability. Although the 1981 amendment considered by Morales did not involve a change to the minimum deferral period as the current amendments have done, Penal Code section 3041.5, subdivisions (b)(4) and (d)(1), allow the Board to advance a hearing on its initiative or in response to an inmate's request. These provisions, like the provisions in the Georgia law analyzed in Garner, eliminate any ex post facto implications because they minimize the risk of unduly prolonging a prisoner's incarceration.
V. DISPOSITION
The superior court's order of September 17, 2010, is reversed and the matter is remanded to the superior court with directions to enter a new order denying inmate Baker's habeas corpus petition.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.