In re Vicks

• Decision Date: 04 March 2013
• Docket Number: No. S194129.,S194129.
• Citation: 56 Cal.4th 274,295 P.3d 863,153 Cal.Rptr.3d 471
• Parties: In re Michael D. VICKS on Habeas Corpus.
• Court: California Supreme Court

56 Cal.4th 274

295 P.3d 863

153 Cal.Rptr.3d 471

In re Michael D. VICKS on Habeas Corpus.

No. S194129.

Supreme Court of California

March 4, 2013.

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 750.

Negative Treatment Reconsidered

West's Ann.Cal.Penal Code § 3041.5

Steven M. Defilippis, under appointment by the Supreme Court, for Petitioner Michael Vicks.

Daniel Broderick, Federal Defender, and Monica Knox, Assistant Federal Defender, as Amici Curiae on behalf of Petitioner Michael Vicks.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Donald E. de Nicola, Deputy State Solicitor General, Julie L. Garland and Jennifer A. Neill, Assistant Attorneys General, Anya M. Binsacca, Phillip Lindsay and Jennifer Gwen Ross, Deputy Attorneys General, for Respondent The People.

W. Scott Thorpe; Bonnie M. Dumanis, District Attorney (San Diego), Richard J. Sachs, Deputy District Attorney; and Albert C. Locher, Assistant District Attorney (Sacramento), for California District Attorneys Association as Amicus Curiae on behalf of Respondent The People.

CANTIL–SAKAUYE, C.J.

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 Code ¹ section 3041.5 that increase the 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, we reject both of his challenges.

I. Facts

A. The Underlying Crimes

In 1983, Vicks was convicted of numerous violent felonies and sentenced to life in prison with the possibility of parole, consecutive to a determinate term of 37 years eight months.² According to the appellate opinion affirming the judgment, which the Board of Parole Hearings (Board) referenced during the parole hearing, Vicks and his accomplice engaged in two crime sprees in April 1983. They confronted their first victim as she was putting groceries into her car in a parking lot. Vicks drove the victim's car, with the victim inside, to a second parking lot where he blocked a parked car. Vicks's accomplice put a gun to the side of one of two women who were entering the parked car and took both women's purses. The accomplice then drove the first victim's car to a third parking lot and blocked another parked car. Vicks got out, pointed a gun at the driver of the parked car, and demanded his wallet and money. Vicks then approached the passengers, a woman and her six-year-old son, put a gun to the woman's ribs, and ordered her into the first victim's car. The woman pushed her son into her own car and got into the first victim's car. After driving for a few minutes, the accomplice stopped the car. The two women, whose heads were covered, were led into a canyon area, where they were separated. Vicks, his accomplice, and a third man were present. The women were repeatedly sexually assaulted. The three men then ran away.

Less than two weeks later, Vicks and his accomplice forced two women at gunpoint into a car belonging to one of the women, then blocked a third woman's car and stole the third woman's purse. After they drove away, the accomplice placed the hand of one of the women on his erect penis. The two women then fought their way out of the car, hitting the accomplice in the head with his gun during the fight, and leaving their purses behind. That evening, Vicks and his accomplice went to Vicks's cousin's apartment. The cousin saw the two looking through women's purses and removing money from them. The accomplice, whose head was bleeding, said that he and Vicks “had just gotten into a crazy incident.” The accomplice told Vicks's cousin that he had asked one of the women to orally copulate him, and described a fight that ended with the women's escape. The cousin drove Vicks and his accomplice onto a freeway where Vicks threw the purses out of the car. When the purses were returned by the police to the victims, one purse contained a paper with the name of Vicks's cousin on it. The cousin informed the police that Vicks and the accomplice brought the purses to the cousin's house after the women had jumped out of the car nearby.

B. Parole Hearing

Vicks began serving his life term on March 13, 2003. His minimum eligible parole date was March 14, 2010, and his initial parole suitability hearing was held on February 3, 2009. Applying section 3041.5 as amended by Marsy's Law in 2008, the Board found him unsuitable for parole, and further concluded that he should be denied another parole hearing for five years.

In announcing the Board's decision, the presiding commissioner noted that Vicks's offenses involved “a series of horrific crimes that happened over a very short period. Your position is that it wasn't you and you did not participate in that, other than finding several of the victim's purses and failing to turn them in.” ³ The commissioner noted that the Board accepts the facts found in the criminal prosecution, and observed that “[t]hese are the kinds of crimes that psychologically last a lifetime....” He added that “the offense was carried out dispassionately and certainly there was a level of calculation to the execution.... The offense was carried out in a manner that demonstrates disregard for human suffering and the motive was apparently self-gratification and financial gratification as well.” The commissioner stated that Vicks's prior criminal history “did not weigh heavily into our decision, because it was frankly a long time ago and most of the issues were nonviolent....” He also stated that “you've done a marvelous job on yourself,” and “[y]ou have remained in a very good status with regard to your disciplines....” He explained that “[o]ur biggest concern with you, sir, is your level of insight, it's difficult for us to measure that when you've been convicted and it is a horrific crime in nature and you find yourself not coming to grips in any way, shape or form with that, other than you found yourself in possession of purses.” He added that individualssometimes have difficulty coming to grips with the kinds of crimes Vicks committed, and that “[i]f that's what your struggle is, we wish you well, sir.” The commissioner also stated that Vicks needed to reduce some of the ratings in his psychological evaluation.⁴ Finally, with respect to the date of Vicks's next parole suitability hearing, the presiding commissioner stated that the commissioners “discussed at length what we thought would be appropriate and at this point we have reached a conclusion that a five-year denial is the appropriate denial....”

Vicks challenged the decision by filing a petition for writ of habeas corpus in San Diego County Superior Court, which the superior court denied on December 10, 2009.

Vicks then filed a petition for writ of habeas corpus in the Court of Appeal. On May 11, 2011, following issuance of an order to show cause and briefing, the Court of Appeal, with one justice dissenting, filed an opinion vacating the Board's order to the extent the order deferred Vicks's subsequent parole suitability hearing for five years. The majority concluded that the changes enacted by Marsy's Law to the scheme for setting parole hearings violate ex post facto principles as applied to prisoners who committed their crimes prior to the enactment of Marsy's Law. It directed the Board to issue a new order scheduling the hearing in accordance with the provisions of section 3041.5 in effect in 1983, which generally entitled a prisoner to an annual parole hearing but allowed deferrals of no more than three years in specified circumstances.

We granted review to address whether section 3041.5, as amended by Marsy's Law, may be applied to life inmates convicted before the effective date of the amendments without violating the ex post facto clauses of the state and federal Constitutions.

II. Discussion

A. Marsy's Law

1. Overview of Marsy's Law

Marsy's Law, which was enacted by the voters in November 2008, was named after a young woman who was murdered in 1983. (Prop. 9, reprinted at Historical Notes, 1E West's Ann. Cal. Const. (2012) foll. art. I, § 28, p. 9.) According to the measure's uncodified findings and declarations (Prop. 9, Findings), following the arrest of Marsy's murderer, “Marsy's mother was shocked to meet him at a local supermarket” after he was released on bail without Marcy's family's receiving notice or opportunity to express opposition to his release. ( Id., ¶ 7.) “Several years after his conviction and sentence to ‘life in prison,’ the parole hearings for his release began. In the first parole hearing, Marsy's mother suffered a heart attack fighting against his release. Since then Marsy's family has endured the trauma of frequent parole hearings and constant anxiety that Marsy's killer would be released.” ( Id., ¶ 8.) The law was “written on behalf of [Marsy's family], who were often treated as though they had no rights, and inspired by hundreds of thousands of victims of crime who have experienced the additional pain and frustration of a criminal justice system that too often fails to afford victims even the most basic of rights.” ( Id., ¶ 2.)

The measure's findings express a number of grievances, including the failure to build adequate prisons and jails, the early release of inmates “after serving as little as 10 percent of the sentences...