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.]

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OPINION
McDONALD, J.-
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.

In re Jackson: Big win for Lifers via Penal Code 5011: no need to admit

Here's a bombshell, out of the COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION THREE. Great win!

3/30/2011 - Certified for Publication
Case: B228409, (Los Angeles County
Super. Ct. No. A624068

ISSUE: Why the Board of Parole Hearings‘ decision to deny petitioner parole did not violate Penal Code section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236, by relying, either directly or indirectly, on petitioner‘s refusal to admit guilt!

BACKGROUND: The present case is analogous to Palermo and McDonald. The Board did not directly state that Jackson was unsuitable for parole due to his refusal to admit he was 16
guilty of the commitment offense—indeed, the Board stressed that Jackson was not required to admit guilt. Instead, the Board denied Jackson parole based on its findings that Jackson lacked insight into the crime, failed to take responsibility for it, and did not have remorse. But the only evidence to support these findings was Jackson‘s refusal to admit he shot and killed Sharon Wade!

CONCLUSION: Because the only basis for the Board to conclude Jackson lacked insight, failed to take responsibility, and lacked remorse was his refusal to admit guilt for the commitment offense, the Board indirectly relied on that refusal to deny Jackson parole.

By doing so, the Board violated section 5011, subdivision (b) and California Code of Regulations, title 15, section 2236. It is also important to recognize that like Palermo and McDonald, this is not a case where the inmate‘s version of the crime was physically impossible or strained credulity. While there was certainly substantial evidence to support the trial court‘s finding that Jackson murdered Wade, Jackson‘s denial of that allegation is not necessarily inconsistent with the evidence.

Further, like the inmates in Palermo and McDonald, Jackson accepted responsibility for the death of his victim, behaved well in prison, successfully engaged in self-improvement activity while there, and received positive reports regarding his potential dangerousness by prison psychologists.

Under these circumstances, Jackson‘s continuing insistence that he did not shoot and kill Wade does not support the Board‘s finding that he remains a danger to public safety.

In re Loveless : win some, lose some: Looser for Lifers

The Court of Appeal vacated the trial court order, finding there was "some evidence" supporting the board's decision.

Case Name: In re Loveless , District: 3 DCA , Case #: C062354
Opinion Date: 1/7/2011 , DAR #: 1739

Case Holding:

The standard of review for reviewing a parole decision is whether there is some evidence that an inmate poses a current risk to public safety, not merely whether there is some evidence to support the findings on the suitability or unsuitability factors.

Loveless was convicted of second degree murder based on the killing of a homeowner in front of his teenage son during the course of a home invasion robbery. At the time of the crime he was unemployed and an alcoholic. When Loveless came up for a parole hearing 22 years later, the board denied parole because the crime was "especially callous" and because he lacked insight and remorse, and had inadequate post-release plans.

The trial court reversed the denial of parole, and the warden appealed. The Court of Appeal vacated the trial court order, finding there was "some evidence" supporting the board's decision.

The evidence supports the board's findings regarding unsuitability factors, and there is a rational nexus between these findings and current dangerousness. Loveless did not adequately address post-release job prospects and stopped participating in AA, when unemployment and alcoholism were contributing factors to the crime.