Opinion
B234561
02-16-2012
In re LESLIE PILTZ on Habeas Corpus.
Rutledge & Rutledge and Katera Estrada Rutledge for Petitioner. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Phillip Lindsay, Kathleen R. Walton and Michael Rhoads, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. A538598)
ORIGINAL PROCEEDINGS. Petition for writ of Habeas Corpus. Petition denied.
Rutledge & Rutledge and Katera Estrada Rutledge for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Phillip Lindsay, Kathleen R. Walton and Michael Rhoads, Deputy Attorneys General, for Respondent.
Leslie Piltz was sentenced to an indeterminate term of 17 years to life after pleading guilty in 1987 to the second degree murder of his wife, Linda Sue Piltz. In August 2009 the Board of Parole Hearings (Board) found Piltz suitable for parole. In January 2010 the Governor, exercising his authority under article V, section 8, subdivision (b), of the California Constitution and Penal Code section 3041.2, reversed the Board's decision, finding Piltz's release would pose a threat to public safety. In November 2010 we denied Piltz's petition for writ of habeas challenging the Governor's reversal, concluding in a nonpublished decision at least some evidence supported the Governor's determination that Piltz's inconsistent descriptions of the commitment offense, his statements that appeared to minimize his culpability and his failure to express a true appreciation of the impact of his crime on his victim's family demonstrated a lack of insight that, together with the aggravated nature of the commitment offense, were probative of his current dangerousness. (In re Piltz (Nov. 8, 2010, B224186) (Piltz I).)
In August 2010, while Piltz's petition was pending in this court, the Board conducted another parole consideration hearing and this time found Piltz unsuitable for parole. Relying heavily on the same factors as had the Governor seven months earlier, as well as additional findings in Piltz's 2010 psychological evaluation, the Board concluded Piltz's release would pose an unreasonable risk of danger to society. In particular, the Board expressed concern about his "credibility, minimization, and rationalization. . . . [I]f we can't accept that you're credible, we can't accept your expressions of remorse as being credible either." Piltz filed a new petition for a writ of habeas corpus directly in this court. We issued an order to show cause on September 1, 2011. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Except for events occurring after the Governor's reversal of the Board's August 2009 suitability decision, the background description is taken from our opinion in Piltz I.
1. The Commitment Offense and Piltz's Personal History
On October 17, 1986 Piltz shot his estranged wife, Linda Sue Piltz, six times at close range with a .22 caliber revolver he kept in the trunk of his car, following an argument at the family home over their impending divorce. The couple's two sons, Eric, then 15 years old, and Brian, then 12 years old, were upstairs in the house when the shooting occurred. Brian heard the shots, ran down the stairs and saw his mother covered in blood and his father standing next to the door holding a gun. Eric responded to his brother's call for help and attempted to assist Linda while Brian called the police emergency number. Piltz fled, but shortly thereafter called the sheriff's department from a telephone booth, confessed the crime and waited at that location to be arrested. Paramedics took Linda to the hospital, where she was pronounced dead. The coroner subsequently reported she had died from gunshot wounds to the head and chest.
According to the probation report and other sources developed over the years of Piltz's incarceration, Piltz and his wife were married in 1970. Their first child, Eric, was born the same year. Their son Brian was born three and one-half months prematurely in 1974 and suffered from related developmental problems, including blindness in one eye. At Linda's insistence, Brian was placed as a full-time resident of the Blind Children Center in Los Angeles, but spent weekends in the Piltz home. According to Piltz, having a special needs child put an enormous strain on the marriage, which began to deteriorate. Piltz has acknowledged thereafter treating his wife with "emotional cruelty."
Piltz, 46 years old at the time he murdered his wife, has a bachelor's degree in psychology from the University of Southern California, was honorably discharged after six years of military service (primarily as a mess steward) and worked as an executive at a corporate insurance brokerage firm. Piltz is also an alcoholic. His alcohol abuse began in college and worsened during the period 1980-1985. In April 1985 Piltz committed himself to an in-patient alcohol treatment facility. He refrained from drinking for several months, but then relapsed. The probation report stated both Eric and Brian indicated Piltz had a violent temper, although he had never struck the boys or Linda during one of his temper tantrums. Brian also said Piltz had threatened to shoot Linda in March 1986. Linda's mother similarly reported Piltz had threatened to kill her daughter prior to the couple's separation. In July 1986 Linda told Piltz she was going to divorce him and asked him to move out of the house.
According to the account of the crime Piltz gave at the August 2, 2010 parole hearing, on the day of the shooting Piltz signed the dissolution papers. That evening he went to the former family residence to give Linda a gag birthday present. However, the two began to quarrel about the divorce. After arguing for some time, Piltz decided he did not want to discuss anything further and told his wife he had something for her in his car. He went to his car and retrieved his gun, which Piltz said he kept in the trunk because the apartment he had rented was not secured to his satisfaction. (The present Piltz claimed he had intended to give his wife was never found.) Piltz went back into the house "with the intent of doing harm to myself." Although he attempted to shoot himself, he missed: The shot went into the wall in the living room. He then walked about 15 to 20 feet into the family room where Linda was sitting and shot her four or five times. As Brian arrived at the scene and saw his mother, Piltz walked out the door, returned the weapon to the trunk of the car and drove a short distance to a telephone booth where he called the Los Angeles County Sheriff's Department.
At the August 27, 2009 parole suitability hearing, Piltz had also said he took the revolver from the trunk of his car with the intent of harming himself. However, at that time he reported he went back inside the house and fired one shot into the wall and then "kind of blacked out." He acknowledged firing the gun at Linda, but claimed he did not remember how many times.
Piltz was charged with murder with a specially alleged enhancement for personal use of a firearm. He pleaded guilty to second degree murder and admitted the firearm- use enhancement. Piltz was sentenced to an indeterminate term of 15 years to life, plus two years for the firearm enhancement.
2. The Board's Parole Suitability Decisions; the Governor's Reversals
As we observed in Piltz I, Piltz's prison record—his participation in educational and training courses, self-help and other rehabilitation programs, positive evaluations from prison staff and his lack of any discipline for a serious rules violation during 25 years in prison—suggests Piltz is a strong candidate for release on parole. That view was shared by the Board on two prior occasions: Piltz's minimum eligible parole date was January 17, 1998. Although he was found unsuitable for parole following hearings in 1996, 2000 and 2003, in September 2006 the Board granted Piltz parole. After the Governor reversed that decision, the Board found Piltz unsuitable and denied parole in 2007 and 2008. However, it once again granted parole following a hearing on August 27, 2009, concluding Piltz would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison.
On January 11, 2010 the Governor reversed the Board's August 2009 decision, concluding, notwithstanding the various positive factors in the record identified by the Board, Piltz still posed an unreasonable risk of danger to society. The Governor described the commitment offense as especially atrocious because the victim was particularly vulnerable and because Piltz's children were home when the murder took place. In addition to the aggravated nature of the commitment offense, the Governor expressed concern that Piltz had failed to gain sufficient insight into the circumstances of the offense and did not evidence genuine remorse for the many victims of his crime (that is, not only his wife but also the members of her family). Specifically, the Governor found Piltz's inconsistent statements regarding the crime, his efforts to justify his conduct and increasing minimization of his culpability for the murder, and his failure to accept responsibility for his violent temper and prior threat against his wife "render[ed] his life offense still relevant to my determination that he poses a currently, unreasonable risk of danger if released to the public because Piltz cannot ensure that he will not commit similar crimes in the future."
In addition to noting Piltz's extensive job training and self-help programming and the positive evaluations received from prison personnel, the Governor observed, "Piltz maintained seemingly solid relationships and close ties with supportive family members, despite his incarceration, including with his sons Eric and Brian, who support his release. He made plans, if paroled, to reside with his mother and his son, Brian, in Orange County, the county to which the Board ordered parole. He does not have any current job offers. However, he is eligible to receive Social Security income and will be able to draw funds from his Individual Retirement Account."
Piltz, who turned 70 in May 2010, had a further hearing before the Board on August 2, 2010, seven months after the Governor's January 2010 decision finding him unsuitable for parole (and four months before our decision in Piltz I confirming that "some evidence" supported the Governor's decision). In the interim Piltz had a further psychological evaluation. The 2010 evaluator scored Piltz in the low or very low range for psychopathy and risk of recidivism and concluded there was a relatively low possibility of future violence if he was released, provided he maintained the support of his two sons and did not relapse into substance abuse. Specifically referring to several of the factors identified by the Governor in January 2010 when reversing the Board's 2009 decision to grant parole, the evaluator stated, "Presently, the evidence suggests that Mr. Piltz expresses an adequate degree of personal insight and self-assessment consistent with his educational attainment and social background. However, from a psychological point of view, this evaluator has the impression that there is evidence for a tendency to externalize and minimize. Regarding his level of insight into personality functioning, this does not appear to be deep or profound." The evaluator also observed, "Mr. Piltz's understanding leaves unanswered questions about the intentionality of his behaviors leading up to his crime." The evaluator concluded, "Overall, Mr. Piltz is able to verbally express a sense [of] remorse for his crime, and certainly accepts responsibility for the death of his wife. However, his level of insight into the personal factors and motivations that led to his offense remain lacking."
The 2010 psychological evaluation also noted that Piltz said he had had only two glasses of wine with dinner on the night of the murder and was not inebriated, a claim that was inconsistent with the relatively high level of blood alcohol revealed by testing following his arrest. Piltz insisted the high result must have due to mixing his test with another inmate's.
After reviewing all the information before it and weighing the relevant considerations as set forth in the governing statute and implementing regulations, the Board concluded Piltz was not suitable for parole because he currently poses an unreasonable risk of danger if released from prison. The Board emphasized it had "a really difficult time with this"—that is, in deciding between a denial of parole for the minimum time permitted by recently enacted statutory changes and granting parole. The presiding commissioner explained, "[W]hat swayed or what weighed most heavily was your credibility. We have a real hard time with your credibility. First of all, about your use of alcohol on the night of the life crime and second is whether or not you were abusive to Linda before in the years prior to the murder. And weighing all of these things weigh in favor of public safety." The Board emphasized that, although Piltz denied it, there were reports at the time of the murder that he had previously threatened his wife and had been abusive toward her. "You denied all those things that if you don't accept responsibility for them and work them through, then the likelihood you'll perpetuate this kind of behavior in the future exists." In addition, the reasons he shot her was never adequately explained: "You didn't say you were angry, you were enraged, you were jealous. . . . We're not sure why you chose to shoot her and kill her. . . . We don't really know if you completely understand why you murdered Linda. It's really important that you be able to verbalize that and express that because it will give you more understanding into why happened and why and you need to explore that and be able to tell the Panel why you think you murdered Linda."
3. The Petition for Writ of Habeas Corpus
On July 22, 2011 Piltz filed a petition for writ of habeas corpus directly in this court challenging the Board's August 2010 denial of parole. Piltz's petition asserts the Board's unsuitability decision is not supported by "some evidence" and thus violates his due process rights. In addition, Piltz claims his mandatory three-year denial of parole under Marsy's Law, which eliminated annual parole suitability reviews, is an unconstitutional imposition of an ex post facto sentence enhancement. We issued an order to show cause on September 1, 2011 and ordered the filing of a written return and a traverse.
Absent unusual circumstances, a challenge to the denial of parole suitability should be determined in the first instance by the superior court. (Cal. Rules of Court, rule 8.385(c).) However, as discussed, the Board's August 2010 denial was largely predicated on the same information the Governor had cited in his January 2010 reversal of the Board's earlier suitability determination. In light of our thorough review of that record in Piltz I, this is one of those exceptional cases in which a petition for writ of habeas corpus is properly before this court in the first instance.
DISCUSSION
1. The Record Contains Some Evidence Piltz Poses a Current Threat to Public Safety
a. Governing law
In Piltz I we reviewed the statutes, regulations and case law governing the substance and procedures for the Board's parole release decisions, as well as the standard of review when a court is presented with a challenge to the Board's or the Governor's decision an inmate constitutes a current threat to public safety and, therefore, is not suitable for release on parole. Quoting extensively from In re Lawrence (2008) 44 Cal.4th 1181, we explained in exercising its discretion the Board "must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation." (Lawrence, at p. 1219.) The aggravated circumstances of the commitment offense may properly be considered in the evaluation of an inmate, but "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 post-incarceration history, or his . . . current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his . . . commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Id. at p. 1214.)
We also held a prisoner's lack of insight into his or her criminal behavior or failure to take responsibility may provide the required nexus between the commitment offense and the prisoner's current dangerousness. (In re Lawrence, supra, 44 Cal.4th at p. 1228 ["[i]n some cases, such as those in which the inmate 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"]; In re Shaputis (2008) 44 Cal.4th 1241, 1261, fn. 20 (Shaputis I) ["petitioner's failure to take full responsibility for past violence, and his lack of insight into his behavior, establish that the circumstances of petitioner's crime and violent background continue to be probative to the issue of his current dangerousness"].)
As to this court's review of a suitability decision, we reiterated the Supreme Court's directive that "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." (In re Lawrence, supra, 44 Cal.4th at p. 1212; see id. at p. 1213 ["[E]vidence in the record corresponding to both suitability and unsuitability factors . . . must, by statute, be considered and relied upon by both the Board and the Governor. . . . By reviewing this evidence, a court may determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety."].) The standard is "unquestionably deferential," and "'limited to ascertaining whether there is some evidence in the record that supports the . . . decision.'" (Id. at p. 1210; accord, Shaputis I, supra, 44 Cal.4th at p. 1258 ["[w]hen a court reviews the record for some evidence supporting the Governor's conclusion that a petitioner currently poses an unreasonable risk to public safety, it will affirm the Governor's interpretation of the evidence so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors"].)
Eight weeks ago the Supreme Court emphatically reaffirmed the deferential nature of the "some evidence" standard for reviewing parole suitability determinations and offered some general guidance on an inmate's lack of insight as a parole unsuitability factor. (In re Shaputis (2011) 53 Cal.4th 192 (Shaputis II).) The Court held, "[u]nder the 'some evidence' standard of review, the parole authority's interpretation of the evidence must be upheld if it is reasonable, in the sense that it is not arbitrary, and reflects due consideration of the relevant factors." (Id. at p. 212.) The Court further explained, "When reviewing a parole unsuitability determination by the Board or the Governor, a court must consider the whole record in the light most favorable to the determination before it, to determine whether it discloses some evidence—a modicum of evidence— supporting the determination that the inmate would pose a danger to the public if released on parole. [Citations.] . . . Any relevant evidence that supports the parole authority's determination is sufficient to satisfy the 'some evidence' standard." (Id. at p. 214.) "Although, as we made clear in Lawrence, the ultimate conclusion on parole suitability is subject to judicial review, that review is limited, and narrower in scope than appellate review of a lower court's judgment. The 'some evidence' standard is intended to guard against arbitrary parole decisions, without encroaching on the broad authority granted to the Board and the Governor. [Citations.] When, as in this case, the parole authority declines to give credence to certain evidence, a reviewing court may not interfere unless that determination lacks any rational basis and is merely arbitrary." (Id. at p. 215.) "Only when the evidence reflecting the inmate's present risk to public safety leads to but one conclusion may a court overturn a contrary decision by the Board or the Governor." (Id. at p. 211.)
With respect to the use of an inmate's degree of insight into his or her criminal behavior in parole suitability determinations, the Supreme Court noted that in both In re Lawrence, supra, 44 Cal.4th at page 1227 and Shaputis I, supra, 44 Cal.4th at page 1261, footnote 20, it had "expressly recognized that the presence or absence of insight is a significant factor in determining whether there is a 'rational nexus' between the inmate's dangerous past behavior and the threat the inmate currently poses to public safety." (Shaputis II, supra, 53 Cal.4th at p. 218.) "Past criminal conduct and current attitudes toward that conduct may both be significant predictors of an inmate's future behavior should parole be granted." (Id. at p. 219.) Acknowledging that a finding on insight is necessarily subjective, the Court nonetheless observed it was not more subjective or conclusory than other findings properly part of an inmate's evaluation and cautioned, "[W]hile 'subjective analysis' is an inherent aspect of the parole suitability determination, it plays a proper role only in the parole authority's determination. [Citation.] The courts' function is one of objective review, limited to ensuring that the Board's or Governor's analysis of the public safety risk entailed in a grant of parole is based on a modicum of evidence, not mere guesswork." (Id. at p. 219.)
b. There is a rational nexus between the evidence before the Board and its determination of current dangerousness
The only differences in the record developed in August 2009, which we held in Piltz I contained some evidence supporting the Governor's decision that Piltz continued to pose a threat to public safety, and the record upon which the Board reached the same conclusion in August 2010 are (1) the 2010 psychological evaluation, (2) Piltz's additional comments to the Board concerning the commitment offense and his limited understanding of why he had acted as he did, and (3) the passage of approximately 12 months during which Piltz continued to participate in prison programs and remained discipline-free. None of the additional information alters our conclusion that, despite many positive factors indicating Piltz's suitability for parole, there is at least a modicum of evidence in the record supporting the conclusion that the circumstances of the commitment offense continue to be predictive of current dangerousness in light of Piltz's failure to take full responsibility for his past violence and his limited insight into his behavior.
From Piltz's perspective the 2010 psychological evaluation is, at best, mixed. Piltz scored in the low range on all tests that predict a future risk of violence. Nonetheless, although arguably attempting to respond in a supportive manner to the Governor's discussion of Piltz's lack of insight, the evaluator concluded "Piltz tends to minimize and externalize his actions" and confirmed "his level of insight into the personal factors and motivations that led to his offense remains lacking." The Board's reliance on those recent findings as providing a nexus between his commitment offense and the current threat he poses does not lack a rational basis and is plainly not arbitrary.
Similarly, the Board's finding that Piltz's statements of remorse and acceptance of responsibility at the August 2010 hearing lack credibility is neither irrational nor arbitrary. (See Shaputis II, supra, 53 Cal.4th at p. 208.) As we recounted in Piltz I, Piltz's version of the commitment offense has changed several times during his incarceration; and it changed yet again at the 2010 hearing. Piltz apparently now does remember shooting his wife four or five times after failing in his attempt to kill himself, rather than claiming he simply "blacked out." Yet he still has no explanation why he shot her. Moreover, in 2008 Piltz acknowledged alcohol had impaired his judgment the evening he murdered his wife; in 2010 he minimized the role of alcohol, insisting he only had two glasses of wine with dinner and the high blood-alcohol reading following his arrest was a mistake. Finally, Piltz still denies he possessed a violent temper or had previously threatened his wife notwithstanding evidence to the contrary at the time of his arrest. The Board's interpretation of the record before it is reasonable and must be upheld. (Shaputis II, at p. 212.)
2. The Board's Application of Marsy's Law To Schedule Piltz's Next Parole Hearing Three Years from the Date of the 2010 Denial Does Not Violate the Prohibition Against Ex Post Facto Laws
Proposition 9, "The Victims' Bill of Rights Act of 2008: Marsy's Law," was adopted by the electorate in 2008. Marsy's Law amended California Constitution article I, section 28, and Penal Code former section 3041.5, subdivision (b)(3), to give the Board discretion to schedule a new parole suitability hearing three, five, seven, 10 or 15 years after any hearing at which parole has been denied, rather than, as before, between one and five years after a parole denial. Piltz contends application of Marsy's Law's extension of the minimum deferral period following the denial of parole and concomitant decrease in the frequency of parole consideration hearings to life inmates convicted before the effective date of the amendments violates the prohibition against ex post facto laws contained in article I, section 10 of the United States Constitution.
Penal Code section 3041.5, subdivision (b)(3), was again amended in October 2009, effective January 1, 2010. (See Stats. 2009, ch. 276, § 2.) Those more recent changes do not affect analysis of Piltz's ex post facto claim.
The question whether Marsy's Law violates the ex post facto clauses of the state and federal Constitutions is currently pending in the California Supreme Court. (In re Vicks (2011) 195 Cal.App.4th 475, review granted July 20, 2011, S194129; In Aragon (2011) 196 Cal.App.4th 483, review granted Sept. 14, 2011, S194673.)
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 [110 S.Ct. 2715; 111 L.Ed.2d 30]; accord, People v. Alford (2007) 42 Cal.4th 749, 755.) "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.] It must be 'a more burdensome punishment.'" (People v. Bailey (2002) 101 Cal.App.4th 238, 243.) Although Piltz asserts only a federal ex post facto claim, both the California and United States Constitutions prohibit ex post facto laws. (Cal. Const., art. I, § 9; U.S. Const., art. I, § 10, cl. 1.) The two provisions are analyzed identically. (Alford, at p. 755.)
In California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 514 [115 S.Ct. 1597, 131 L.Ed.2d 588] the United States Supreme Court held 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, 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.) The Morales Court reasoned there was no ex post facto violation because the amendment did not increase the statutory punishment for the crime; or 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.) 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, rather than the normative one-year denial, 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 unconstitutional when applied to an inmate whose crime had been committed prior to the effective date of the amendment. (Id. at p. 509.)
The Supreme Court again considered ex post facto principles in connection with the timing of parole hearings in Garner v. Jones (2000) 529 U.S. 244, 250 [120 S.Ct. 1362, 146 L.Ed.2d 236]. At the time the defendant had committed his crime, Georgia's parole board was required to reconsider parole suitability every three years. (Id. at p. 247.) The parole board thereafter 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 California Dept. of Corrections v. Morales, supra, 514 U.S. 499, 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 these differences were "not dispositive." (Garner, at p. 251.)
The Garner Court explained, 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 v. Jones, supra, 529 U.S. at pp. 253-254.) Georgia's amended statute preserved the parole board's discretion to deny parole for a range of years and permitted an expedited review if a change of circumstances or new information indicated an earlier review was warranted. (Id. at p. 254.) Thus, the change in the law did not lengthen 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 California Dept. of Corrections v. Morales, supra, 514 U.S. 499, 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. They merely change the "administrative method by which a parole release date is set." (See In re Brown (2002) 97 Cal.App.4th 156, 160.) Although the amendment considered by Morales did not involve a change to the minimum deferral period as the amendments effected by Marsy's Law 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 v. Jones, supra, 529 U.S. 244, ensure the parole board retains discretion between scheduled hearings to order an inmate's release and thus eliminate any risk of unduly prolonging a prisoner's incarceration. (See generally In re Jackson (1985) 39 Cal.3d 464, 473 [1982 amendments to former Pen. Code, § 3041.5 allowing parole board to schedule suitability hearings biennially instead of annually did not violate ex post facto clauses of state or federal Constitutions when applied to an inmate who committed his offense before the effective date because the "amendment did not alter the criteria by which parole suitability is determined"; it did not "change the criteria governing an inmate's release on parole"; and "[m]ost important, the amendment did not entirely deprive an inmate of the right to a parole suitability hearing"].) In sum, Marsy's Law's extension of the minimum deferral period following the denial of parole and its mandated decrease in the frequency with which parole suitability hearings will be held do not violate the prohibition against ex post facto laws.
Penal Code section 3041.5, subdivision (b)(4), provides, "The board may in its discretion, after considering the views and interests of the victim, advance a [parole suitability] hearing . . . 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 . . . ."
Penal Code section 3041.5, subdivision (d)(1), provides, "An inmate may request that the board exercise its discretion to advance a hearing . . . to an earlier date, by submitting a written request to the board . . . which shall set forth the change in circumstances of new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate."
DISPOSITION
The petition for writ of habeas corpus is denied.
We concur:
ZELON, J.
JACKSON, J.
PERLUSS, P. J.