Friday, May 13, 2011

In re Vicks 5/11/2011 - Marsy's Law Violates Ex Post Facto Principle - Big Win for Lifers!

In re Vicks (2011) , Cal.App.4th
[No. D056998. Fourth Dist., Div. One. May 11, 2011.]

Click here for the latest on In re Vicks  (Prop. 9 Marcy's Law challenge)

In 1983, Michael Vicks was convicted of two counts of rape in concert, two counts of forcible oral copulation in concert, three counts of kidnapping, one count of kidnapping to commit robbery, and multiple counts of robbery; many of these convictions included true findings on appended firearm enhancements. Vicks was sentenced to a total term of 37 years 8 months to life. Vicks, now 51 years old, has been incarcerated for more than 28 years.
At Vicks's first parole hearing, the Board of Parole Hearings (BPH) found him unsuitable for parole. The BPH found the commitment offense was particularly egregious under many indices and, considering numerous other factors (including Vicks's prior criminal record, his disciplinary record while incarcerated, his failure to gain insight into the commitment offense, and his psychological evaluation), concluded Vicks was not currently suitable for parole. The BPH further concluded a five-year denial of parole was appropriate under the circumstances.
Vicks petitioned the trial court for a writ of habeas corpus, but the court denied the writ, concluding the BPH's decision was supported by some evidence. Vicks then petitioned this court for a writ of habeas corpus. We issued an order to show cause, the People filed a return, and Vicks filed a traverse.
Vicks asserts the BPH's decision to deny parole violated due process because its conclusion that he posed an unreasonable risk of danger to society if released on parole was contrary to the only reliable evidence that he was not currently dangerous. He also asserts the imposition of a five-year deferral, pursuant to the amendments to Penal Code section 3041.5, subdivision (b), adopted after the voters approved Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law" (hereafter Marsy's Law), cannot be applied to him without violating ex post facto principles.
We conclude the BPH's decision to deny parole was supported by some evidence, pursuant to the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241.

We also conclude application of the amendments to Penal Code section 3041.5, subdivision (b), to inmates whose commitment offense was committed prior to the effective date of Marsy's Law violates ex post facto principles.


  1. yeah Baby..... Marsy's Law violates all the old incarcerated inmates that committed their crime BEFORE November 5, 2008 (effective day of Marsy's Law)... NO More 7, 10 or 15 years denials!!!

    "Attempted Murder" crimes no more than 2 year Denials!!!

  2. This is law that will only now help the governor to continue releasing those lifer's found suitable. While lifer's seeking suitability, thank god for Micheal Vick being a fighter, rather then laying around watching the Laker's. Congratulation Lifer's

    Sincerely Kenyatta

  3. like many of lifer's that have experienced California prison politics. I also had to litigate myself out of prison on both the state and federal level. If there are any lifer's that need legal representation. With the Assistance of Dejon R. Lewis Attorney at Law, and my experience. You can not receive reasonable litigation Call me at 805 754-7273 or

    Sincerely Kenyatta

    Mr. Richard R. Brown
    1330 Glenwood Drive #C
    Oxnard, CA 93030