In re ROY BUTLER Decision: Does it help LIFERs? (BASE TERM CALCULATION)

In re ROY BUTLER  (12/16/13)  --   Case Nos. A139411 & A137273
Alameda County Case No. 91694B

In summary, the BUTLER Court forces the Parole Board to calculate the base term of life prisoners at their Initial Hearings. Thus, the BUTLER case section that will apply to all LIFERs is the Base Term Calculation as ORDERed by the Court. Regardless of whether the LIFER will be found suitable or not, once the LIFER walks out of the Parole Hearing Board room, he will have a Base Term calculation for his specific crime under his specific circumstance, as defined below. If this is a subsequent Parole hearing, s/he will also be provided their Base Term, at that hearing.

The BIG QUESTION: How is the CASE  going to affect the time served by LIFERS?

According to BPH Executive Director Jennifer Shaffer and Chief Legal Counsel Howard Moseley ------ NO CHANGES will occur for the length of time incarcerated.

On the other hand, Attorney Diane Letarte would argue that once the Calculation is done at the Hearing (on the record for possible Appeals) and the BASE TERM has been exceeded,  the Panel (2-3 Commissioners at the Hearing) must articulate the reason for a denial beyond the Base Term in a non-arbitrary fashion. The Panel should be held to the Arbitrary-and-Capricious standard. Any action less than this standard would violate the Due Process of the Law and fail to provide a reasoned explanation for the denial.NOTE: YOPH Youth and Elderly parole hearings do NOT have a base term calculation done at the end of their hearings because if granted Parole, they are immediately release after the 150 days review period, regardless of the base terms.

The News Media links are below: San Francisco, Sacramento,  Los Angeles:

Click here for San Francisco 's version
Click Here for LA 's version
Click Here for Sacramento' s Version

Below is an excerpt of the ORDER. Paragraphs 3, will require the Board of Parole Hearings (BPH), via the Executive Officer Jennifer Shaffer, to announce NEW policies (and/or Directives) that will force the Commissioners to calculate the base term for all LIFER inmates during their hearing regardless of whether they are found suitable. This tern calculation was refused to be done by the Board for many years. It is encouraging to see the changes  in favor of the LIFER population.

========================
IS HEREBY ORDERED that:

1. ...

2. Upon issuance of a decision from this Court in Case No.
X137273, whether favorable or unfavorable to petitioner, the terms of
settlement for Case No. A139411, as described below, will become
effective immediately.

3. The Board shall, at the next publicly noticed Board meeting,
announce a policy of calculating the base term and the adjusted base term
for all life term inmates at the initial parole consideration hearing. The
Board will implement phis policy on faze first day of the calendar month
following the aforementioned meeting.

SB260 YOUTH OFFENDER HEARING to be "kicked off" by BPH on January 2014

After attending the mandatory October 2013 ADA (American with Disabilities Act)  training Seminar for the BPH State appointed LIFER attorneys, several questions were answered as it related to the new up and coming Youth Offender Hearing, among others. Below is a summary of information pulled from several resources, including BPH's Chief Counsel Howard Moseley

SB 260,  creates a new type of parole hearing, known as the Youth Offender Hearing (Penal Code 3051), which will be conducted much like the current LIFER parole hearings. The added BONUS element to be vigorously argued by the Criminal Defense attorney will be the "age" of the offender at the time of the Crime (not the conviction date).

We (Law office of Diane T. Letarte) always argued the Age for specific LIFERS that were young at the time of the comitted offense, but it always seemed to fall on deaf (Commissioners') ears in the past. Now with SB 260 and the new Directives to the Commissioners, basically that the  “hallmarks” of youth (lack of maturity, flawed reasoning skills, susceptible to manipulation) be given “great weight” in suitability deliberations. Furthermore new psychological evaluations will also be given to those covered under the new law, again with “great weight” given to the characteristics of youth when making psychological risk assessments reports. Even if the inmate is not provided a Grant of Parole at the Youth Hearing, the age will still carry "great weight" in the length of time the denial will be (3, 5, 7,10,15 years), but still under Marsy's Law standard.

On the other hand, if the inmate is found Suitable, the inmate will be immediately eligible for parole (release) since they met the "time" criteria for the Youth Offender Hearing to be allowed the Hearing. This means there will be no TERM calculations needed at deliberation time, like the regular LIFER inmates who get found suitable.

Who will be eligible for the Youth Offender Hearing? 

The BPH is currently evaluating all those previously denied prisoners who are eligible for Youth Offender Hearing consideration with a focus towards advancing their next hearing in a timely fashion. The bill does allows for an 18 month implementation window, beginning Jan. 1, 2014, during which time the BPH will identify those whose hearing should be advanced as well as some individuals who may be entitled to an initial hearing (earlier than before) or consideration earlier than anticipated under their original sentence.

A certain amount of time will need to be first served by the inmates as states below:

• DSL: eligible at the 15th year of incarceration 
• ISL:  (Life term)  less than 25 years:      eligible at the 20th year of incarceration
• ISL:  (Life term)  greater than 25 years: eligible at the 25th year of incarceration

In summary,  with the signing of SB 260 there will be many inmates who immediately qualify, for a parole hearing, and others who already qualify for a parole hearing and will now need to be considered in light of the new law. Those inmates that have already went to their Parole Hearing (pre-SB 260) and were denied parole may consider filing a Petition to Advance (PTA) their hearing given the "NEW CIRCUMSTANCES", in their case, the new law.

Given the SB 9 for Juvenile LWOP  passed last year [that were modified to Life with possibility of Parole], they may now also take advantage of the new SB 260 this year and possibly apply for a Youth Offender Hearing.


Contact an experience LIFER Attorney to maneuver though the maze of options now available for the Youth Offender Hearings option, among others.

In re Vicks, In re Morganti pushes BOARD to Automatic review on 3 year Denials

Some helpful statistics: A lion's share (60%) of parole suitability denials are for 3 years. Remembering that since the implementation of Marsy's Law (aka Prop 9) the denials can be for 3, 5, 7, 10, 15 years.

What do you do if you get denied - an inmate can file on their own BPH 1045 form to Petition the BOARD to advance the Hearings earlier than the denied amount of years. Given the new increase in Grant rates - inmates are encouraged to file the PTA, regardless of the New procedures implemented by the BOARD (see below)

In 2012 inmates filed 329 Petition To Advance (PTA) their hearings,  29 were granted and hearings moved forward. In the first half of 2013,  251 PTAs were filed by inmates, 129 have been approved and the hearing advanced. This shows an increase from an 8% grants to 52% grants.

From now on Lifers who receive a 3 year denial of parole will get an automatic review of their hearing and possible chance to advance the next hearing ahead of the 3 years under a new policy put into effect recently by the Board of Parole Hearings (BPH). This process should not prevent inmates from filing the BPH 1045 Petition to Advance (PTA) at any time during the 3 year period. The rule of thumb has been to file the PTA 1/2 into the number of years that you were denied. For example, if you were denied 3 years, file the PTA after 1.5 years - showing all the new "change in circumstances or new information" that would warrant an early Grant of the hearing.

When Marsy’s Law passed in 2008 and expanded the parole denial range from 1 to 5 years up to 3 to 15 years several legal actions were filed seeking to have this provision of Marsy’s invalidated as ex post facto. The most recent and well known case that fought to find a violation of the Ex Post Facto legal principal (with Marsy's Law) was lost at the CA Supreme Court.  In Re Vicks, was decided in April 2013, with the court ruling the increased denial period was not ex post facto. The Court reasoned that there was a "safety valve" by allowing the inmates [with long denial period] to file the BPH 1045 form to request an earlier Parole Hearing, through the PTA process.  In Re Morganti, emphasized that it would be wise of the BOARD to start  review of denials, on its own accord. Hence, the new BPH policy. 

These reviews will be conducted approximately 1-year after the 3-year denial, at the Board of Parole  Hearings (BPH)  headquarters in Sacramento, by Deputy Commissioners, whose primary job will be to review, consider and decide on these potential hearing advancements. The standards seems to remain the same as the current BPH 1045 Petition requirements. If a “change in circumstances or new information” and “after considering views and interests of victims,” there exists a “reasonable likelihood that consideration of public and victim’s safety does not require the additional incarceration,” a hearing date will be advanced.

The decision on whether to advance a hearing or not would therefore depend on different requirements. During the decision process the victims would be allowed to write to the Commissioners to relay their view on the advance hearing. The actual time to schedule the hearing will vary depending if there are Victims' Next of Kin (VNOK) that would need to be NOTIFIED several months ahead of time. 

By the time all the hoops are jumped through and a Hearing date is Advanced -one can expect- the next hearing to be scheduled approximately 18 months from the last hearing. We will see similar time frame delays  to the next scheduled hearings from a Governor reversal of a grant - 18  months.

A big thank you to Vanessa Nelson (LSA, lifersupportalliance@gmail.com) for providing the bulk of the statistics and the information.

SB 260-POSSIBLE RELIEF FOR LIFERS SENTENCED AS JUVENILES

 The article below is mostly a reprint from the LSA - Life Support Alliance group Newsletter. A big thank you to Vanessa Nelson for all her hard work in Support of the LIFERS.

Sister Mary Sean Hodges, Attorney Diane Letarte, Vanessa Nelson

Senate Bill 9 (also called SB 9) became California law in January 2013. This law gives a second chance to most people who were under the age of 18 at the time of their crime and sentenced to life without parole. They can ask the court for a new sentencing hearing. At that hearing, they will have the chance of getting a new sentence with the possibility of parole. SB 9 is in the California Penal Code section 1170(d). SB 9 allows a person who was under 18 years old at the time of a crime and sentenced to life without parole to submit a request to have a new sentencing hearing.

SB 260, introduced by Sen. Loni Hancock (D-Petaluma) is a companion piece to SB 9, Sen. Leland Yee’s bill passed last year that offered relief to those sentenced to LWOP as juveniles. SB 260, not yet fully passed by the legislature or signed by Gov. Brown, is a bi-furcated bill, meaning it offers two levels of action. It addresses all those sentenced to life with the possibility of parole and who were under 18 years of age at the time of the crime, offering the chance to have their sentences reviewed for possible reduction from the life term. Under current provisions SB 260 would require the Board of Parole Hearings (BPH) to hold a Youth Opportunity Review Hearing,

Those convicted of a non-homicide (attempted murder, conspiracy to commit murder or manslaughter) and sentenced to a determinate term of 40 years or less or an indeterminate term with a base term of 40 years or less could be offered the Youth Opportunity Review Hearing during the 15th year of incarceration.

Those with the same category of offenses but sentenced to or with a base term of more than 40 years will be considered during the 20th year of imprisonment.

For those with a second degree homicide conviction, the hearings will be held during the 15th year inside and for those with a first degree murder conviction, in the 25th year of their prison term. The bill also provides for a review of circumstances 5 years prior to the window for the Youth Opportunity Hearing, similar to the documentation hearings, to provide information on parole hearings and suitability requirements. If the youth hearing does not result in a recommendation for parole the denial time will be limited to 3 years.

There are other factors included in the language of SB 260 relating to what factors shall be considered in the Youth Opportunity Review Hearing, including the exclusion of those convicted under 3 Strikes from consideration under the bill or those convicted for first degree murder with special circumstances.


Having already cleared the Senate and the Assembly Public Safety Committee SB 260 will be heard in Assembly Appropriations Committee the second or third week in August, when the legislature returns from recess.

FIRST Annual LIFER Celebration by: ECC at Buena Park 6/8/2013

A big THANK YOU to Keith Chandler and Gary "red dog" Eccher (ECC Consulting) for Sponsoring the FIRST Annual LIFER Celebration at Boisseranc Park in Buena Park, CA.


A BIG CONGRATULATIONS to the Survivors of the California Department of Correctional and Rehabilitation (CDCR).

LIFERS at BBQ

Below are just some of the Photos from the BBQ. Special guest Appearance included Sister Mary Sean Hodges (Francisco home and The Partnership for Re-Entry Program (PREP) was established in 2002), Venessa Nelson (Vanessa Nelson heads the Life Support Alliance, which advocates for the fair and unbiased consideration of parole dates for inmates sentenced to life), Attorney Michael Beckman and Family, Attorney Marilyn Spivey, our own Renegade Attorney Diane T.  Letarte with the Post-Conviction Angels (No blondes here!) Yolanda Navarro and Attorney Serena Salinas.

Sister Mary Sean Hodges, Renegade Attorney Letarte, Venessa Nelson)

(L to R, Yolanda Navarro, Red Dog, Attorney Salinas, Keith Chandler, Renegade Attorney Letarte

Atty Salinas, Mr. Trujillo, Atty Letarte, "Doc" Hales and his wife Pam

Mr. Rosenkrantz and Atty Salinas

For those of you that are new to the LIFER Legal work.....here is a Summary of this Significant battle against the Board of Prison Terms' and Governor Davis's lifer parole policies by Mr. Rosenkrantz  over 13 years ago........

In re Rosenkrantz (BPT):

In an on-going battle against the Board of Prison Terms' and Governor Davis's lifer parole policies, a California Court of Appeals condemned the BPT for failing to fairly consider evidence of a life prisoner's suitability for parole, and ordered the BPT to re-hear the prisoner's case. (In re Rosenkrantz (2000) 80 Cal.App.4th 409) The BPT subsequently found Mr. Rosenkrantz suitable for parole, but the Governor blocked parole. The prisoner filed an amended habeas petition naming the Governor as a defendant, and on June 21, 2001, a Los Angeles Superior Court judge issued an order for Mr. Rosenkrantz's release, finding that he had been denied an individualized determination of suitability and that the Governor's "no parole" policy violated due process. The state appealed the order and the California Supreme Court granted a stay of the Los Angeles Court's order pending appeal. In January 2002, the Court of Appeal affirmed the order for Mr. Rosenkrantz's release. The state sought review in the California Supreme Court; in an opinion isssued December 16, 2002, the Court denied the challenge to the Governor's "No-Parole" policy, setting back many model life prisoners' hopes for parole. The case is published at (2002) 29 Cal.4th 616. The U.S. Supreme Court declined to review the case on April 21, 2003.

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The Picnic was wonderful, tons of food, great Sunny Location, and even greater people attending the Celebration. In addition it was a great pleasure to see some of my Lifer Clients in their regular "street clothes".   :-)

Attorney Michael Beckman ... and the new addition to the Family.

Yolanda Navarro and Sister Mary Sean Hodges

In re Stoneroad 4/18/2013: BPH ignored "virtually all" of the Relevant Factors of Suitability

Case Name: In re Stoneroad ,
 District: 1 DCA , Division: 2 , Case #: A132591
Opinion Date: 4/18/2013 , DAR #: 5063

One for the LIFERs!.
The good LIFER case are few and far between, but here the Court chastised the BOARD for ignoring almost all of the Factors of Suitability normally reviewed during a Lifer Parole Hearing. The factors (such as Age, Prior criminal history, Institutional behavior, etc )  from the Title 15 of the California Code of Regulations (CCR). 

IN SUMMARY the Court held:

Board of Parole Hearings' (BPH) decision to deny parole was not supported by substantial evidence of current dangerousness. Petitioner was a life-term inmate serving a sentence for second degree murder. He sought review of BPH's denial of parole. Held: Petition granted; case remanded.

A reviewing court is required to affirm the denial of parole unless BPH's "decision does not reflect due consideration of all relevant statutory and regulatory factors or is not supported by a modicum of evidence in the record rationally indicative of current dangerousness." Here the BPH ignored not just several of the relevant factors, "but virtually all of them." The BPH had available reliable information indicating that almost all of the regulatory factors favoring a grant of parole applied to petitioner, yet its decision denying parole mentioned virtually none of these factors.

 Further, the BPH disregarded favorable psychological evaluations. The gravity of the commitment offense is one of the factors relevant to deciding whether the inmate is suitable for parole insofar as there is a nexus between the offense and current dangerousness. That nexus did not exist here. The BPH's conclusion that petitioner's inability to recall the commission of the life offense reflected he could not understand the factors that caused him to commit it, was not rational in view of his acceptance of responsibility and remorse for the crime, and other evidence demonstrating petitioner's insight into his offense.

In re Vicks REVERSED by the CA Supreme Court. Unfortunately for LIFERS - Marsy's Law remains the Law!

 In re MICHAEL D. VICKS on Habeas Corpus SUMMARY OUTCOME.

The long awaited In Re Vicks Decision from the 1/8/13 ORAL argument is finally decided. Unfortunately the CA Supreme Court did not think there was anything wrong with applying this 2008 voted in Marsy's Law to Lifers that had already been sentenced BEFORE this law was enacted.What a Let down for all the Lifers, it was good battle at the Court of Appeal, unfortunately it was lost at the CA  SUPREME court.

WHAT happens now if my loved one was denied 3,5,7,10,or 15 years?

The fall back position is to do a PETITION TO ADVANCE the parole hearing earlier than the 3, 5, 7, 10, or 15 year denial. One can use the BPH 1045(a) form to Advance Petition, when the inmate has been denied multiple years but new circumstances have developed so that he no longer needs additional time. The petition should then be submitted for a new Lifer Parole Hearing, before the full denial period.

==================
In 2008, California voters approved Proposition 9, the Victims Bill of Rights Act of 2008: Marsy’s Law. The changes enacted by Marsy’s Law became effective immediately; pertinent here are the amendments to Penal Code1 section 3041.5 that increase the denial (3 to 15 years) period of time between parole hearings but allow for the advancement of a hearing if a change in circumstances or new information subsequently establishes that there is a reasonable probability the prisoner is suitable for parole.

Petitioner Michael D. Vicks (Vicks) contends that application of these new parole procedures to prisoners who committed their crimes prior to the enactment of Marsy’s Law violates the ex post facto clauses of the federal and state Constitutions. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.)  He challenges the amendments both on their face and as applied to him.

For the reasons set forth below in the full opinion, CA SUPREME Court reject both of his challenges and reverse the Court of Appeal.

See the full opinion  In re Vicks opinion at CA SUPREME COURT OPINION.

In re VICKS: OPINION to be filed MONDAY 3/4/13 @10am

SUPREME Court Issue -  Is Marsy's Law a violation of ex post facto principles for those incarcerated BEFORE Marsy's Law?    See the 2013  UPDATES at the California Appellate Court case Information.

Case was argued and submitted on 1/8/13 in San Francisco. QUICK 1/10/13 SUMMARY:  Justice Liu seemed to be our biggest advocate, while Corrigan appeared to be clearly on the other side (no surprise given her 1983-1986 Position as Special Consultant, President’s Task Force on Victims of Violent Crime, 1982.) Other justices were on the fence while other were hard to read.  The Chief Justice was sworn into office on January 3, 2011 is the first Asian-Filipina American and the second woman to serve as the state’s Chief Justice. Of course, you never really can call these cases, so we'll just have to wait & see. (A Personal thanks to the In re Vicks' Attorney who argued the case on 1/8/2013)
 
In re Russo (2011), Cal.App.4th (No. D057405 Fourt Dist.. Div One. April  8, 2011)
In conclusion, the Court held that Marsy's law was just an "admistrative method by which a parole release date is set..." and concluded that no ex post facto violation occurred.

In Re Vicks (2011), Cal.App.4th (No. D056998. Fourt Dist.. Div One. May 11, 2011).
In conclusion, the Court conclude the 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 (November 5,  2008) violates ex post facto principles.
 
In re Aragon (2011), Cal.App.4th (No. D058040 Fourt Dist.. Div One. June 9, 2011).

In re Smith (2011), 196 Cal.App.4th 468, review granted September 14, 2011, S194750.

In re Rodriguez (2011) 199 Cal.App.4th 1158, review granted January 18, 2012, S197961;
In conclusion, the Court rejected the In re Vicks panel's conclusion and stated that Marsy's Law does NOT violate the ex post facto principles.

In summary, WE will have an OPINION by March 4, 2013 from the CA Supreme Court. It will  be a Ruling on:  Whether Marsy's Law is being applied ex post facto (after the fact) on thousands of LIFERS since Prop 9 became effective late 2008 thus denying them from 3 to 15 years at their LIFER Parole Suitability vs. the old law of 1 to 5 year denials when they were found unsuitable.

DEC. 2012 BPH Executive Board meeting - Dr. Latessa on PCL-R

BPH's December 2012 Executive Board meeting had several speakers including Dr. Latessa Professor at the University of Cincinnati and Dr. Kusaj (current FAD chief psychologist).

Edward J. Latessa received his Ph.D. from the Ohio State University in 1979 and is Interim Dean and Professor of the College of Education, Criminal Justice and Human Services at the University of Cincinnati.  Dr. Latessa has published over 140 works in the area of criminal justice, corrections, and juvenile justice.  He is co-author of seven books including Corrections in the Community, and Corrections in America. Professor Latessa has directed over 150 funded research projects including studies of day reporting centers, juvenile justice programs, drug courts, prison programs, intensive supervision programs, halfway houses, and drug programs. He and his staff have also assessed over 600 correctional programs throughout the United States, and he has provided assistance and workshops in over forty-five states. Dr. Latessa served as President of the Academy of Criminal Justice Sciences (1989-90).

Successful Rehabilitation was the focus of  Dr. Ed Latessa's presentation. Dr. Kusaj's presentation focused on Risk Assessment and Parole Decision Making.

In attendance were most of the BPH Commissioners. A transcript of this public session is available. Please contact the Law office of Diane T. Letarte for a copy of the pdf file transcript.

One interesting comment (below) by Dr. Latessa on the result and use of the PCL-R test (aka psychopathy check list) when questioned by one of the BPH commissioner in attendance.

Below is a short EXCERPT of one Dr. Latessa's response at the December 2012 Executive Board Meeting Session:


COMMISSIONER FRITZ:
We have some inmates who have high -- are high on the Psychopathy Checklist. And are there ideas -- You know, some of it's historical,  some of it's fluid, ideas for them, the programs that they need to work on those issues on the checklist.

DR. LATESSA: That's a tough question. I'm not,  you know, I've done some work in this area. I'm not,  you know, an expert per se in psychopathy. There are  those including one of my colleagues I work closely with  who believes that we can bring about change with  psychopaths. Conventional research wisdom says they do  not respond well to the traditional approaches. They do  not respond to talk therapy at all. COG, no.

There is  some evidence that putting them in treatment makes them  worse. And the reason is because these are people that  are bright, manipulative, and when you put them in group  settings, right, what they're learning is what people's  weaknesses are and how to go at them and so forth. For  example, in our studies in Ohio, we found that putting low risk sex offenders and high risk sex offenders was a  big mistake. You increased dramatically the risk for  low risk sex offenders, and I think it's because they  were learning these things from the high risk people. I do know there are some states that do work with  psychopaths and they tend to keep them together. So  they do not put them in with other inmates a YA sex offender program. For example, Wisconsin used to do  that. I don't know if they still do. So what they're  doing is providing treatment, but that's an inclusionary  criteria. You don't put them in with non, you know.

The label psychopath is a tough label. It's a damning  label. I think where you really are concerned is when  they have a history of violent behavior. I would never  just do a psychopathy checklist on everybody. It's a  big mistake. But if they've got a history of violent  behavior, I think it's appropriate to screen them for that and then you have to make decisions accordingly. But I can't stand here and say we've got all these great  treatment modalities for them. Most folks would say  that, you know, we don't.

Not all psychopaths, you know, get into trouble. Some of them are CEOs, some of  them sell insurance, you know, used cars, brothers-in- law, people like that. But when they've got that  history of violence, then I think you have to be -- I'd always err on the side of caution.


For  more thorough viewing of the interactions between the BPH commissioners and the Guest Psychologist speaker please contact Attorney Diane T. Letarte for a copy of the transcript at email: dletarte@earthlink.net please specify in the SUBJECT line that you are requesting BPH Dec 2012 Session transcript from my BLOG posting.

In Re VIcks **ORAL ARGUMENT*** 1/8/2013 - Wait and See

IN RE VICKS  195 Cal.App.4th 475 (2011)
In re MICHAEL VICKS on Habeas Corpus.  No. D056998.
Court of Appeals of California, Fourth District, Division One.  May 11, 2011.

Attorney Steve M. Defilippis, under appointment by the Court of Appeal, for Petitioner Michael Vicks.

Background Summary: 

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. Vicks was sentenced to a total term of 37+ years 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 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 the Appellate court for a writ of habeas corpus. Vicks asserts the BPH's decision to deny parole violated due process in 2 ways:

1) 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.
2) He also asserts the imposition of a five-year (Marsy’s Law. Prop 9) cannot be applied to him without violating ex post facto principles.

Although the Court concluded the BPH's decision to deny parole was supported by some evidence!
The Court also concluded that the application of  Marsy's Law violates ex post facto principles.

**** SUPREME COURT ORAL ARGUMENT  Marsy's Law (Prop9) Heard 1/8/2013 ****

Current California Supreme Court 7 Justices:
(left to right) Associate Justice Carol A. Corrigan, Associate Justice Joyce L. Kennard, Associate Justice Kathryn M. Werdegar, Chief Justice Tani Cantil-Sakauye (middle), Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Goodwin Liu.

Quick Summary of the Oral argument as edited by Lifer criminal defense Attorney Diane Letarte:

Justice Liu seemed to be our biggest LIFER advocate, while Justice Corrigan appeared to be clearly on the other side (no surprise given her 1983-1986 Position as Special Consultant, President’s Task Force on Victims of Violent Crime, 1982.)

Other justices were on the fence while other were hard to read. 

The California Chief Justice Tani Cantil-Sakauye was sworn into office on January 3, 2011 is the first Asian-Filipina American and the second woman to serve as the state’s Chief Justice. She could go either way.

Of course, you never really can call these Oral argument cases, so we'll just have to wait & see for the official written OPINION.

Case opinions of the California Supreme Court and Courts of Appeal are available on this website.


(A Personal thanks to the In re Vicks' Attorney who argued the case on 1/8/2013 - Steve M. Defilippis, under appointment by the Court of Appeal, for Petitioner Michael Vicks.)