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Name: In re Vicks
Case #: D056998
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/11/2011
Subsequent History: 7/20/11 rev. gr. (S194129)

Application of the amendments to Penal Code section 3041.5, subdivision (b), which increased the interval between parole hearings, violates ex post facto principles when applied to inmates whose commitment offense predated “Marsy’s Law.” In 1983 Vicks was convicted of numerous violent offenses and firearm enhancements for acts committed during a crime spree. He was sentenced to 37 years, 8 months to life in prison. At his first parole hearing in 2009 the Board of Parole Hearings (BPH) found him unsuitable for release and ordered a five-year denial of parole. Vicks filed a writ petition challenging the denial of parole as well as the imposition of a five-year deferral, pursuant to the 2008 amendments to section 3041.5, subdivision (b) (“Marsy’s Law”).
The Board’s decision to deny parole was supported by other facts in the record which provided a rational basis for concluding that the commitment offenses, although committed long ago, continue to be predictive of petitioner’s current dangerousness. In re Lawrence (2008) 44 Cal.4th 1181, addressed how one unsuitability factor, such as a particularly heinous offense, can affect a parole suitability determination. The court found that when a long period of time has passed since the commitment offense, the BPH may rely on the nature of the commitment offense to deny parole only when other facts appear in the record that provide a rational basis for concluding that the commitment offense accurately predicts the prisoner’s current dangerousness. Here, petitioner’s commitment offenses were especially egregious, but were committed long ago. However, petitioner’s history before the commitment offense reflected crimes of increasing seriousness, some of which were committed while petitioner was on probation. Further, he suffered a number of disciplinary citations over the years. A psychologist who evaluated petitioner reported his tendency to discount his criminal history and his lack of insight into the underlying causes of his antisocial behavior. These other facts supported the BPH’s determination of unsuitability.
Ex post facto principles preclude application of Marsy’s Law to lengthen the interval between petitioner’s parole hearings. When petitioner’s commitment offenses occurred in 1983, section 3041.5 provided that when parole was denied, the inmate was entitled to have the matter reviewed annually at subsequent parole hearings. The law did accord the BPH discretion to defer subsequent suitability hearings for two years (for inmates serving a life sentence) or three years (for life sentence prisoners who murdered). Marsy’s Law amended section 3041.5 to lengthen the deferral period between hearings and altered the standards for determining which of the deferral periods was appropriate. It significantly changed the law by: 1) increasing the minimum deferral date (from 1 year to 3 years) and constraining the ability of the BPH to act on changed circumstances, 2) reducing the BPH’s discretion to defer the hearing for less than the maximum term, 3) increasing the maximum deferral date (to 15 years), and 4) increasing the default deferral period from 1 year to 15 years. These changes will increase the period of incarceration for inmates who are classified as currently “unsuitable for parole but who have a significant chance of becoming suitable in less than two years and, having served their base term, would be granted” parole. The possibility of an advanced hearing, also provided by Marsy’s Law, is insufficient to ameliorate the ex post facto implications, as the risk of increased incarceration is “real and significant, rather than speculative or attenuated.” The changes wrought by Marsy’s Law may not be applied to inmates whose crimes predated the effective date of the law. The dissent (J. Nares) would find no ex post facto problem because advance parole hearings may be set at the BPH’s discretion; the amendments create only a speculative risk of increasing punishment.