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.)

In re Denham 12/5/12: NEW Parole Hearing ORDERed: Regulation say nothing explicitly about "escalating criminal conduct"

Filed December 5, 2012, First District, Div. Three Cite as A133492


SUMMARY:  The  Court of Appeal did not "buy" the BPH's reasoning given for the denial of Parole and thus ordered a new Parole Hearing. Two major reasons used by the Board was;  1) "escalating pattern of criminal conduct" and 2)“unstable social history".

See below for the Rebuttal from the Court specifically on those 2 reasons stated above.
 For Full text see http://www.metnews.com/sos.cgi?1212//A133492

  
The Board relied on Denham‟s “escalating pattern of criminal conduct,” which was purportedly evidenced by his preincarceration arrests for which he sustained no criminal convictions, and his 1987 conviction for weapons possession while in prison. The regulations concerning parole suitability say nothing explicitly about escalating criminal conduct. Among the factors tending to show unsuitability for parole is “Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.” (Regs., § 2402, subd. (c)(2).) The regulations do, however, provide that the Board is to consider all relevant, reliable information, including “past criminal history, including involvement in other criminal misconduct which is reliably documented.” (Regs., § 2402, subd. (b).) Thus, the Board was entitled to recognize that Denham‟s criminal conduct escalated from drug and weapons possession to murder. However, where the Board considers that factor to be predictive of current dangerousness, it must articulate why that is the case. (In re Roderick (2007) 154 Cal.App.4th 242, 264.) “ „[I]mmutable facts such as an inmate‟s criminal history‟ . . . do not by themselves demonstrate an inmate „continues to pose an unreasonable risk to public safety.‟ (Lawrence, supra, 44 Cal.4th at p. 1221, original italics.)” (Sanchez, supra, 209 Cal.App.4th at p. 975.) 

The Board also relied on Denham‟s “unstable social history” based on the fact that “he was involved in drug sales prior to incarceration.” However, Denham‟s involvement in selling drugs does not address his social history as that factor is defined in the regulations. An “unstable social history” is defined as a situation where “[t]he prisoner has a history of unstable or tumultuous relationships with others.” (Regs., § 2402, subd. (c)(3).) Conversely, “a stable social history” is defined as a situation where “[t]he prisoner has experienced reasonably stable relationships with others.” (Id., § 2402, subd. (d)(2).) Here, there is no evidence of any tumultuous or particularly unstable relationships. Indeed, when considering the date of Denham‟s next parole hearing, the Board found by clear and convincing evidence that public safety did not require an additional 15-year period of incarceration before his next hearing because of Denham‟s “[s]table social history.” Denham‟s involvement in selling drugs, however, was certainly a factor that the Board could consider in assessing parole suitability. (Regs., § 2402, subd. (b).) But given Denham‟s lack of any substance abuse history since 1986, his long-standing participation in 12-step programs, and his development of prosocial vocational skills, the Board must explain how his preincarceration history as a drug dealer predicts his current dangerousness.

The Board cites no evidence establishing that Denham‟s participation in the crime was anything other than what he described at the 2010 parole hearing.

CONCLUSION

A New Lifer Parole Suitability hearing was required when the board's denial was based on the defendant's lack of insight into his crime (among others stated above, his history of selling drugs but it did not adequately take into account his acceptance of responsibility for his crime or his longstanding participation in 12-step programs and other parole suitability factors.
 

Prop-36 Three strikes Law passes by a 68% to 32% vote

On November 6th, 2012 the voters enacted drastic changes to California’s old 1994 Three Strikes Law of 25 to Life. Under California Proposition 36 Three Strikes sentencing,  those whose new offense is non-serious will receive a sentence double the usual prison term.  Some current qualifying Three Strikers may have their sentence reduced. 

WHAT TO DO? 

FIRST an analysis must be done to see if the Inmate-Defendant is eligible for re-sentencing of his third strike. If you retain the services on Attorney Diane T.  Letarte, you will need to first fill out a Prop-36 QUESTIONNAIRE  to assist in the analysis. The questionnaire can be found under Attorney Letarte's website.

SECOND, you must file a Petition [under newly created Penal Code 1170.126] in Court before the November 6, 2014 DEADLINE.


The Courts have the discretion not to re-sentence.  Judges should understand (more than the non-attorney BPH Commissioners)  that re-sentencing is the expected outcome of the petition. A Refusal to re-sentence the three-striker is reserved for the Exceptions.  This means the court will give a 2nd-strike sentence, unless the petitioner would pose an “unreasonable risk … to public safety.” See CA  Penal Code  1170.126, subd. (f). Thus, The re-sentencing is a “post-conviction release proceeding”  therefore a lack of rehabilitation in prison, Misconduct (CDC-115, etc.)  or other abnormal individual case factors may foster the refusal to re-sentence the inmate at a lower sentence than the current 25 to Life.


More specifically, under amended PC 667, Inmate (defendant) is now facing only a 2nd-strike sentence unless 1) The current offense involves drugs, with an HS 11370.4 or 11379.8 allegation; or 2) The current offense is a felony; or 3) the current offense involves firearm(s); or 4) has a prior serious or violent offense-conviction for an enumerated number of offenses, such as “sexually violent offense",  homicide or attempted homicide, Solicitation to commit murder, etc.

Unlike the Petition to Advance Parole Hearings (aka PTA, BPH Form 1045(a)) where there is a limit to three times to file the PTA. The new Prop-36 law is silent on the number of times a Petition can be filed and the possible "wait" period between re-filing, if allowed. The only deadline known at this time is the 2-year as stated above.

REMEMBER: The re-sentencing is a “post-conviction release proceeding” under Cal. Const. art. I, § 28. Hiring an experienced attorney with Post-conviction expertise such as (Attorney Diane T. Letarte, MBA, LLM, MS)  may make the difference in a successful re-sentencing Petition in  your case.