In re Rosenkrantz

• Citation: 128 Cal.Rptr.2d 104,29 Cal.4th 616,59 P.3d 174
• Decision Date: 16 December 2002
• Docket Number: No. S104701.,S104701.
• Court: United States State Supreme Court (California)
• Parties: In re Robert ROSENKRANTZ, on Habeas Corpus.

128 Cal.Rptr.2d 104

29 Cal.4th 616

59 P.3d 174

In re Robert ROSENKRANTZ, on Habeas Corpus.

No. S104701.

Supreme Court of California.

December 16, 2002.

Certiorari Denied April 21, 2003.

Rowan K. Klein, Los Angeles; Prison Law Office, Donald Specter, San Quentin, Zachary Katznelson; Munger, Tolles & Olson, Alan V. Friedman and Mark H. Epstein, Los Angeles, for Petitioner Robert Rosenkrantz.

Picone & DeFilippis and Steve M. DeFilippis as Amici Curiae on behalf of Petitioner Robert Rosenkrantz.

James F. Sweeney, Sacramento, for California Catholic Conference as Amicus Curiae on behalf of Petitioner Robert Rosenkrantz.

American Civil Liberties Union Foundation of Southern California, Mark D. Rosenbaum, Los Angeles; American Civil Liberties Union Foundation of Northern California, Alan L. Schlosser; Latham & Watkins, Peter A. Wald, San Francisco, Stephan E. Klein and Kyra G. Busby for Judge James Albracht, Allen Breed, Raymond Procunier, the California Council of Churches, the Order of the Society of Jesus, the Sisters of Saint Joseph of Carondelet-the Los Angeles Province Leadership and Justice Office, the Board of Rabbis of Northern California, the Directors of the Office of Detention Ministry of the Twelve Dioceses of the State of California, the Advisory Board of the Office of Detention Ministry, the Catholic Chaplains from the Los Angeles Archdiocese

Serving the State and Local Prisoners and the California Coalition for Battered Women in Prison as Amici Curiae on behalf of Petitioner Robert Rosenkrantz.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Assistant Attorney General, Susan Duncan Lee and Robert D. Wilson, Deputy Attorneys General, for Respondent the People.

Jones & Mayer, Martin J. Mayer, Long Beach, and Michael R. Capizzi, Santa Ana, for California State Sheriffs Association, California Police Chiefs Association and California Peace Officer's Association as Amici Curiae on behalf of Respondent the People.

Steve Cooley, District Attorney (Los Angeles), George M. Palmer, Head Deputy District Attorney, and Brentford J. Ferreira, Deputy District Attorney for California District Attorneys Association as Amicus Curiae on behalf of Respondent the People.

Daniel V. Felizzatto for Crime Victims United of California as Amicus Curiae on behalf of Respondent the People.

Robert S. Gerstein; Bien & Summers and Elliot L. Bien, Novato, for California Academy of Appellate Lawyers as Amici Curiae.

GEORGE, C.J.

In 1986, petitioner Robert Rosenkrantz was convicted of second degree murder and was sentenced to an indeterminate term of imprisonment for 15 years to life, plus two years because of his use of a firearm in the commission of the offense. In June 2000, after several hearings before the Board of Prison Terms (the Board) and rulings by the superior court and the Court of Appeal, the Board, in compliance with the mandate of an earlier judicial decision, found petitioner suitable for parole and set a parole date. The Governor, however, found petitioner unsuitable for parole and reversed the Board's decision. In a petition for writ of habeas corpus, petitioner challenged on several grounds the Governor's decision denying parole. The superior court granted the petition after concluding that there was no evidence supporting the Governor's decision, and that the Governor's decision was based upon an impermissible general policy of automatically denying parole to prisoners convicted of murder. The Court of Appeal affirmed the judgment rendered by the superior court, concluding that the law of the case doctrine supported the superior court's determination that there was no evidence to support the Governor's decision.

We granted review primarily to consider whether a decision of the Governor finding a prisoner unsuitable for parole is subject to judicial review and, if so, under what standard. After review was granted, petitioner requested this court to address an additional, threshold issue that petitioner had not timely presented to us—namely, whether the Governor's review of the Board's decision in this case is barred by the ex post facto clause of the federal and state Constitutions, because article V, section 8, subdivision (b) of the California Constitution (hereafter article V, section 8(b))—the provision that grants the Governor the authority to review the Board's parole decisions in a case such as this— was adopted in 1988, after petitioner had committed the underlying offense.

Although we are not required to address this belatedly presented issue, we conclude that it is appropriate to consider and resolve the ex post facto question in this case. As we shall explain, in conformity with the views of each of the state and federal courts that previously has addressed, this ex post facto question, we conclude that petitioner's ex post facto claim lacks merit and that the Governor's review of the Board's parole decision in this case did not violate the ex post facto clause of the federal or state Constitution.

With respect to the principal issue upon which we granted review, we conclude that a Governor's decision granting or denying parole is subject to a limited judicial review to determine only whether the decision is supported by "some evidence." As we shall explain, article V, section 8(b), does not grant a Governor unfettered discretion over parole matters, but rather explicitly requires his or her parole decision to be based upon the same factors that the Board is required to consider.¹ At the time article V, section 8(b), was adopted, it was established under California law that although the Board exercises broad discretion in determining whether to rescind parole, such decisions are subject to a form of limited judicial review to ensure that they are supported by at least "some evidence." (In re Powell (1988) 45 Cal.3d 894, 904, 248 Cal.Rptr. 431, 755 P.2d 881 (Powell).) We conclude that a Governor's decisions under article V, section 8(b), are subject to this same type of limited judicial review, and that under this standard a court is authorized to review the factual basis of the Governor's decision only to determine whether it is supported by some evidence relevant to the factors the Governor is required to consider under article V, section 8(b). This limited judicial review of a gubernatorial parole decision, for the purpose of determining whether it is supported by some evidence, does not usurp the executive's discretionary authority over parole matters or otherwise violate the separation of powers doctrine. Rather, such review simply ensures that parole decisions are supported by a modicum of evidence and are not arbitrary and capricious.

With regard to the Governor's decision in the present case, we conclude initially that the Court of Appeal erred in concluding that the law of the case doctrine establishes that the Governor's decision is not supported by some evidence. The prior appeal that was deemed by the appellate court to constitute the law of the case involved a different case, different parties, and a different underlying decision denying parole, and therefore does not support application of the law of the case doctrine. In addition, after conducting our own review of the Governor's decision (set forth in a 12-page document) reversing the Board's action granting parole to petitioner, we conclude that the Governor's decision in this case is supported by some evidence in the record, and further that the record does not support the trial court's finding that the Governor's decision in petitioner's case resulted from a blanket policy of denying parole in all cases in which a prisoner has been convicted of murder.

Accordingly, we shall reverse the judgment of the Court of Appeal in favor of petitioner and shall direct that the requested writ of habeas corpus be denied.

I

A

In 1986, petitioner was convicted of second degree murder and was sentenced to an indeterminate term of 15 years to life, plus two additional years because the jury found true an allegation that he personally used a firearm in the commission of the offense. On appeal, the Court of Appeal affirmed petitioner's judgment of conviction. (People v. Rosenkrantz (1988) 198 Cal.App.3d 1187, 244 Cal.Rptr. 403 (Rosenkrantz I).) Because resolution of the issues in the present case depends in part upon a consideration of the circumstances of the offense and the particular verdicts rendered in petitioner's trial, we begin by summarizing the facts of the crime as set forth in Rosenkrantz I. (Id. at pp. 1191— 1199, 244 Cal.Rptr. 403.) Additional details regarding the circumstances of the crime and petitioner's subsequent conduct will be discussed in connection with our analysis of the contentions of the parties.

At the time of the offense, petitioner was 18 years of age and resided with his parents and two brothers in Calabasas in Los Angeles County. Petitioner testified that he knew at an early age that he was gay but also knew that this circumstance was unacceptable to his family—particularly to his father, whom he idolized. Petitioner pretended to be heterosexual but secretly was able to communicate with and meet other gay teenagers. Petitioner's brother Joey, then 16 years of age, suspected that petitioner was gay and shared this suspicion with Steven Redman, Joey's 17-year-old friend. According to petitioner, Redman was a bully and was preoccupied with hatred of homosexuals, and Joey also disliked such individuals.

By eavesdropping on petitioner's telephone conversations, Joey learned that petitioner planned to meet another young male at the family's beach house on the evening petitioner graduated from high school—Friday, June 21, 1985. Redman suggested that he and Joey go to the beach house that night to investigate and gather information concerning petitioner's sexual orientation. Upon arriving at the beach house, Redman and Joey looked through a window...