In re Vicks

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 *279 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…

I join the court’s opinion and write separately to underscore the limited nature of our holding.

*318 Petitioner’s primary claim is a facial challenge to the application of Marsy’s Law to prisoners who committed their crimes before the law was enacted. Petitioner also contends that the statute violates the ex post facto clauses of the federal and state Constitutions as applied to him. Whether the challenge is on its face or as applied, the United States Supreme Court has held that the relevant inquiry is not whether differences exist between the prior parole system and the current system, but “whether the amended [statute] creates a significant risk of prolonging [the prisoner’s] incarceration.” (Garner v. Jones (2000) 529 U.S. 244, 251 [ 146 L.Ed.2d 236 , 120 S.Ct. 1362 ].) On a facial challenge, the Gamer inquiry requires that this “significant risk” be “inherent in the framework” of the amended schedule. (Id. at p. 251.) Where the statute in question provides the parole board with some discretion, the Garner standard by its nature permits—in fact, requires—the reviewing court to speculate about possible safety valves consistent with the statutory scheme that might mitigate any…

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…