Gilman v. Fisher, et al

Filing 532

ORDER signed by Judge Lawrence K. Karlton on 2/27/14: Going forward, the Board shall apply Cal. Penal Code § 3041.5, as it existed prior to Proposition 9, to all class members. That is, all class members are entitled to a parole hearing ann ually, unless the Board finds, under former Section 3041.5(b) that a longer deferral period is warranted. The Governor of California shall refrain from imposing longer sentences on class members than are called for by application of the same factors the Board is required to consider, as provided for by Proposition 89.43 This order is stayed for 31 days, and goes into effect immediately thereafter, unless a timely appeal is filed. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD M. GILMAN, et al.,

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No.

CIV. S-05-830 LKK/CKD

Plaintiffs,
v.

ORDER

EDMUND G. BROWN, JR., et al.,
Defendants.

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Plaintiffs in this certified class action are inmates in

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California state prisons who are serving terms of life

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imprisonment with the possibility of parole.

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that Propositions 9 and 89 have retrospectively increased their

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punishments, in violation of the Ex Post Facto Clause of the U.S.

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Constitution.

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Plaintiffs assert

Proposition 9 amended California law to, among other things,

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increase the time between parole hearings.

2008 Cal. Legis.

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Serv. Prop. 9 (West), amending in pertinent part, Cal. Penal Code

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§ 3041.5(b)(3) (extending deferral periods) and (b)(4) and

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(d) (advance hearings).

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consists of “‘all California state prisoners who have been

The class challenging this Proposition

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sentenced to a life term with the possibility of parole for an

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offense that occurred before November 4, 2008.’”

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¶ 1.

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ECF No. 340

Proposition 89 amended the California Constitution to grant

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the Governor the authority to review parole decisions of

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California’s Board of Parole Hearings (the “Board”), regarding

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parole decisions of prisoners convicted of murder.

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Legis. Serv. Prop. 89 (West), amending Cal. Const. Art. V, § 8.

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The class challenging this Proposition consists of “‘all

1988 Cal.

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California state prisoners who have been sentenced to a life term

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with possibility of parole for an offense that occurred before

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November 8, 1988.’”

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ECF No. 340 ¶ 2.

The matter came on for trial before the undersigned from

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June 27, 2013 through July 2, 2013.

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the court finds that both Propositions, as implemented, have

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violated the ex post facto rights of the class members.

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For the reasons that follow,

I. THE EX POST FACTO CLAUSE

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“The Constitution prohibits both federal and state

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governments from enacting any ‘ex post facto Law.’”

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U.S., 569 U.S. ___, 133 S. Ct. 2072, 2081 (2013).1

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of this case, an “ex post facto” law is one “‘that changes the

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punishment, and inflicts a greater punishment, than the law

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annexed to the crime, when committed.’”

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(quoting Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed. 648 (1798)).

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“The key ex post facto inquiry is the actual state of the law at

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1

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Peugh v.
For purposes

Id., 133 S. Ct. at 2078

U.S. Constitution, Art. I, Sec. 10, cl. 1 (“No State shall …
pass any … ex post facto Law”); U.S. Constitution, Art. I,
Sec. 9, cl. 3 (“No … ex post facto Law shall be passed”).

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2

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the time the defendant perpetrated the offense.”

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Estelle, 886 F.2d 1093, 1096 (9th Cir. 1989).

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relevant to this case, the Ex Post Facto Clause is violated if

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either Proposition, as implemented by the decision-maker – the

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Board in the case of Proposition 9, or the Governor in the case

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of Proposition 89 – creates a “significant risk” that its

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retroactive application to the class would result in “a longer

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period of incarceration” for them than they would have received

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under the law in effect when their crimes were committed.

Watson v.

Accordingly, as

See

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Garner v. Jones, 529 U.S. 244, 255 (2000); see also, Peugh, 133

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S. Ct. at 2084 (a “retrospective increase in the [Sentencing]

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Guidelines range applicable to a defendant creates a sufficient

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risk of a higher sentence to constitute an ex post facto

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violation”).

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II. PROPOSITION 9: INCREASED TIME BETWEEN PAROLE HEARINGS

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The focus of this court’s inquiry is fairly narrow, thanks

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to a substantial body of law on the effect of the Ex Post Facto

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Clause on retrospective changes in the availability of parole

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hearings.

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In California Dept. of Corrections v. Morales, 514 U.S. 499

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(1995), the Supreme Court rejected an ex post facto challenge to

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a 1981 amendment to Cal. Penal Code § 3041.5.

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abolished mandatory annual parole hearings for prisoners

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convicted of more than one homicide, even when annual hearings

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were mandatory when the crimes were committed.

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enactment authorized the parole board to defer subsequent

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suitability hearings for up to three years if the Board found

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that it was “not reasonable to expect that parole would be
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The amendment

Instead, the

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granted at a hearing during the following years.”

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U.S. at 503.

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Morales, 514

Morales teaches that the mere fact that parole hearings are

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less frequent than they were when a prisoner’s crime was

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committed, is not, by itself, sufficient to establish an ex post

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facto violation.

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Rather,

the
controlling
inquiry
…
was
whether
retroactive application of the change in
California law created "a sufficient risk of
increasing the measure of punishment attached
to the covered crimes.”

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9
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Garner, 529 U.S. at 250 (quoting Morales, 514 U.S. at 509);

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Gilman v. Schwarzenegger, 638 F.3d 1101, 1106 (9th Cir. 2011)

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(“[a] retroactive procedural change violates the Ex Post Facto

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Clause when it ‘creates a significant risk of prolonging [an

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inmate's] incarceration’”).

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Similarly, in Garner, the Supreme Court rejected an ex post

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facto challenge to the Georgia parole board’s decision to do away

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with mandatory parole hearings every three (3) years.

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amended its rules so that it could defer parole hearings for up

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to eight (8) years.

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for reconsideration at 8-year intervals ‘when, in the Board's

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determination, it is not reasonable to expect that parole would

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be granted during the intervening years.’”

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254.

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it wished to do so.

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That board

“[T]he Board's stated policy is to provide

Garner, 529 U.S. at

However, the Board “could have shortened the interval” had
Id. at 248.

Garner teaches that no ex post facto violation will be found

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where parole hearings can be at longer intervals than was the

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case when the prisoner’s crime was committed, but the parole

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board has the discretion to conduct hearings at the same interval
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it could when the prisoner’s crime was committed.
Plaintiffs correctly point out that Morales and Garner are

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not directly on point, because the challenged law changes

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involved in those cases only authorized a longer deferral period,

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and only when the Board determined that parole was not likely to

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be granted in the intervening years.

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hand, does away with the previously authorized annual parole

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hearings in all cases, even if the prisoner conclusively showed

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that he would be suitable for parole in a year.

Proposition 9, on the other

See Gilman, 638

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F.3d at 1108 (“Proposition 9 eliminated the Board's discretion to

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set a one-year deferral period, even if the Board were to find by

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clear and convincing evidence that a prisoner would be suitable

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for parole in one year”).

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In Gilman, the Ninth Circuit made clear that
Plaintiffs cannot succeed on the merits of
their
ex
post
facto
claim
unless
(1) Proposition 9, on its face, created a
significant risk of increasing the punishment
of California life-term inmates, or (2)
Plaintiffs can “demonstrate, by evidence
drawn
from
[Proposition
9's]
practical
implementation ..., that its retroactive
application will result in a longer period of
incarceration than under the [prior law].”

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Gilman, 638 F.3d at 1106 (quoting Garner, 529 U.S. at 255).

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The Ninth Circuit reversed this court’s grant of a preliminary

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injunction for plaintiffs, finding that even if plaintiffs could

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show that there was a significant risk of longer incarceration

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under Proposition 9, plaintiffs failed to establish that the

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“advance hearing” procedure did not avoid that problem.

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In a recent case addressing the Sentencing Guidelines, the
Supreme Court made clear that it meant what it said in Garner,
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that is, a law that creates a sufficient risk of retrospectively

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increasing a prisoner’s sentence is a violation of the Ex Post

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Facto Clause.

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Peugh, 133 S. Ct. at 2084.

A. Increased Deferral Periods: Findings.

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1. On November 4, 2008, California voters approved

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“Proposition 9,” also known as “the Victims' Bill of Rights Act

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of 2008: Marsy's Law.”

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(2013).

See In re Vicks, 56 Cal. 4th 274, 278

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2. The law became effective “immediately,”2 and was

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made expressly applicable “to all proceedings held after” its

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effective date.

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board, however, did not instantaneously implement the new law.

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Rather, the Board implemented the law – that is, started using

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Proposition 9 to determine the deferral periods – on December 15,

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2008.

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2008 Cal. Legis. Serv. Prop. 9, § 10 (West). The

Exh. 1 (ECF No. 259-1) at 7 (Exhibit A to Exh. 1).
3. As relevant here, Proposition 9 “amended

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section 3041.5 [of the California Penal Code] to increase the

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time between parole hearings.”

Vicks, 56 Cal. 4th at 283.

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4. Before Proposition 9, life prisoners received annual

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parole suitability hearings, as required by the prior versions of

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Cal. Penal Code § 3041.5, unless the Board found that it was not

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reasonable to expect that parole would be granted during the

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following year.

In those cases, the Board deferred the next

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2

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According to Vicks, the law became effective “immediately.”
Vicks, 56 Cal. 4th at 278. The California Constitution provides
that amendments effected by initiative become effective “the day
after the election unless the measure provides otherwise.” Cal.
Const. Art. XVIII, § 4; Californians For An Open Primary v.
McPherson, 38 Cal. 4th 735, 743 (2006) (same).

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parole hearing for up to two years, and for up to five years for

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prisoners convicted of murder, as authorized by the old law.

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1994 Cal. Legis. Serv. Ch. 560, § 1 (S.B. 826) (West), amending

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Cal. Penal Code § 2041.5(b)(2)(A).

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See

5. All the crimes for which Proposition 9 class members
were convicted occurred before Proposition 9.3

ECF No. 340 ¶ 1.

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3

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The court notes that crimes that could result in life terms
that were committed at different times were covered by different
versions of the parole hearings law. No party has suggested, or
directed the court to evidence suggesting, that any class
member’s crime was committed at a time when there was no right to
periodic review of parole hearings, or when the deferral periods
were longer than those provided for in Proposition 9.
Before 1972, California prisoners had a right, established by
case law, to “periodic” review of parole decisions, although
there does not appear to have been any particular time period
within which the review had to occur. See In re Jackson, 39
Cal. 3d 464, 469-70 (1985).

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Between 1972 and July 1, 1977, California prisoners were
entitled, by policy of the parole board, to annual parole
reconsideration, “‘except in certain extreme cases where
reconsideration of parole may be postponed for two or three
years.’” See Jackson, 39 Cal. 3d at 470.
On July 1, 1977, the California Determinate Sentencing Law
(“DSL”) went into effect. Watson, 886 F.2d at 1094 (citing
Jackson, 39 Cal. 3d at 467). Under this enactment, all inmates
incarcerated on or after that date were statutorily entitled to
annual parole hearings, without exception. Id.

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In 1981, California enacted an exception to the annual parole
review requirement, permitting the Board to defer the next parole
hearing for three years if the prisoner had been convicted of
“more than one offense which involves the taking of a life,” and
the Board found, stating its bases in writing, that it was “not
reasonable to expect that parole would be granted at a hearing
during the following years.” Watson, 886 F.2d 1093.
In 1990, California amended Section 3041.5 to “permit the Board
to schedule the next hearing no later than 5 years after any
hearing at which parole is denied if the prisoner has been
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The class members were all convicted and sentenced to life in

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prison with the possibility of parole, before Proposition 9.

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After Proposition 9, all Proposition 9 class members remained

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sentenced to life in prison with the possibility of parole. See

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Undisputed Facts (“UF”), Final Pretrial Order (ECF No. 473)

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¶ III(2) (hereinafter “UF ¶ 2”).

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6. In the two-year period before Proposition 9 was

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implemented, January 2007 through December 2008, the Board held

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approximately 6,550 parole suitability hearings for life

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prisoners.

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hearings.

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resulted in one- or two-year deferrals; approximately 34.7

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percent resulted in one-year deferrals and approximately 31.5

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percent resulted in two-year deferrals.

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Parole was granted in approximately 6.4% of the
Of the cases in which parole was denied, two-thirds

UF ¶ 5.

7. The deferrals for those years were governed by the

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1994 amendments to Cal. Penal Code § 3041.5.

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Serv. 560 (SB 826) (West).

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required to hold annual parole hearings unless “the Board finds

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that it is not reasonable to expect that parole would be granted

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at a hearing during the following year.”

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25

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Under that law, the Board was

convicted of more than 2 murders.”
(SB 560) (West).

Id.4

Therefore, it is

1990 Cal. Legis. Serv. 1053

In 1994, California amended Section 3041.5 to “require that the
hearing be held no later than up to 5 years after the hearing
denying parole if the prisoner has been convicted of murder.”
1994 Cal. Legis. Serv. 560 (SB 826) (West).
4

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1994 Cal. Legis.

The court is aware of the evidence in the record indicating
that some prisoners agree that they are not currently suitable
for parole, and “stipulate” to a deferral period of, say, one
year. Neither side has directed the court’s attention to any
evidence that in such cases the Board agrees to such a
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a reasonable inference that the parole board found that for the

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life prisoners whose parole hearings came before them during that

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time, it was reasonable to expect that parole would be granted

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for 35% of them after one year.

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8. Under the same law, where the Board found that an

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annual review was not warranted, it was required to impose a

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deferral of two years, unless “the Board finds that it is not

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reasonable to expect that parole would be granted at a hearing

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during the following years [up to five years for prisoners

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convicted of murder].”

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inference that the Board found that for the 32% of life prisoners

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whose parole hearings resulted in two year deferrals during that

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time, it was reasonable to expect that parole would be granted

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for them after two years.

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have been 3, 4 or 5 years pursuant to the statute.

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Id.

Therefore, it is a reasonable

Otherwise, the deferral periods would

9. It is, further, a reasonable inference that of all

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the inmates who had parole hearings during the two years prior to

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implementation of Proposition 9, about two-thirds of them were

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determined by the Board to be ready for parole within one or two

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years.

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10. In the two-year period after Proposition 9 was

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implemented, January 2009 through December 2010, the Board held

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approximately 6,100 hearings.

At those hearings, parole was

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stipulation even when it is not reasonable to expect that parole
would be granted during that year. Nor has either side directed
the court’s attention to evidence showing what percentage of
these 6,550 deferrals were stipulated. Accordingly, the court
does not, for these purposes, distinguish between stipulated
deferrals and those imposed by the Board.

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9

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granted in approximately 17 percent of the cases.5

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in which parole was denied, approximately 48.4 percent resulted

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in the lowest deferral possible under Proposition 9, three years.

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UF ¶ 6.6

5

Of the cases

11. For the period 2007 to 2008, before the passage of

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Proposition 9, the average deferral period for all life prisoners

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who were denied parole at their hearing, was 2.3 years.

8

Plaintiffs’ Exh. 51.7

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for the minimum period allowed by law, one year.

10

See

Approximately 35% of those deferrals were

32% of the deferrals were for two years.

An additional

UF ¶ 5.

11

12. Following the passage of Proposition 9, the average

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deferral periods for all life prisoners decided under the new law

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were as follows:

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years in 2011; 4.42 years in 2012.

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5

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4.84 years in 2009; 5.11 years in 2010; 5.08
See Defendants’ Exh. U.8

Neither side offers an explanation for why the parole rate
almost trebled. With no evidence on it, there is no way for the
court to consider this fact except to speculate. For example,
the Board may have been reluctant to impose a 3-year deferral on
someone it believed would be ready for parole within the year,
and therefore granted parole immediately. Or, there could simply
have been a backlog of inmates ready for parole. However, this
is entirely speculation, and plays no part in the court’s
decision.
6

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The parties included a recounting of several cases, in which
the prisoners requested advanced hearings. To the degree the
cases seem relevant to an issue in the case, they are discussed
or footnoted below.

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7

This number is the weighted average of the deferral periods
disclosed in Plaintiffs’ Exhibit 51. The average is a little
fuzzy, because Exhibit 51 does not specify what dates in 2007 to
2008 are included.
8

These numbers are the weighted averages of the deferral periods
disclosed in Defendants’ Exhibit U.

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10

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Almost 56% of those deferrals were for the minimum period then

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allowed by law, three years.

See Defendants’ Exh. U.

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B. Increased Deferral Periods: Conclusions.

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The evidence shows that the average deferral times for

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Proposition 9 class members has increased since the

6

implementation of that law.

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that it was not correct simply to assume that “more frequent

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parole hearings produce more frequent grants of parole rather

9

than more frequent denials of parole.”

10

The Ninth Circuit cautioned however,

Gilman, 638 F.3d at 1108

n.6 (emphasis in text).

11

The evidence adduced at trial shows however, that the

12

increased deferral periods did not happen randomly, or only to

13

those prisoners least likely to be granted parole.

14

evidence shows that in the two years prior to Proposition 9, the

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Board imposed deferral periods of one or two years on two-thirds

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of all the prisoners who were denied parole.

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prisoners who are the most likely to be paroled within a year or

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two.

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contemplated that the Board would grant deferrals of one or two

20

years only when there was a reasonable expectation that the

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prisoner would be ready for parole within that time.

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Cal. Legis. Serv. 560 (West).

23

Rather, the

These are the

That is because the statute in effect at the time

See 1994

Of course, those prisoners were under no guarantee of

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release on parole.

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the Board applied the statute as written, then it is a reasonable

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inference that there existed a reasonable expectation that those

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prisoners would be paroled within the following year or two, if

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they could get to a parole hearing during that time.

However, if the statute had any meaning, and

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Yet, under

1

Proposition 9, these same prisoners cannot get to a hearing

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before at least three years, the new minimum deferral period.

3

Cal. Penal Code § 3041.5(b)(3)(C).

4

was a reasonable expectation that these prisoners would be

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paroled within one or two years, but Proposition 9 prevents them

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from getting to a hearing before three years, there is a

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significant risk that their incarcerations are being lengthened

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by Proposition 9.

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It follows that since there

Even as to those prisoners who received deferral periods of

10

three, four or five years under the old law, Proposition 9 has

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created a significant risk of longer incarceration.

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old law, deferrals of three or four years would be imposed if the

13

Board determined that there was a reasonable expectation that the

14

prisoner would be paroled during that time.

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the time their crimes were committed, these prisoners’

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incarcerations (beyond a minimum term), were to continue only as

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long as the Board found that the prisoner was not suitable for

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parole.

Under the

In other words, at

19

Under Proposition 9 however, the prisoner’s incarceration

20

would continue indefinitely, unless the Board found “clear and

21

convincing evidence” that he was suitable for parole in 3, 5, 7

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or 10 years.9

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standard, refers to a quantum and quality of evidence that “could

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place in the ultimate factfinder an abiding conviction that the

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truth of its factual contentions are ‘highly probable.’”

“Clear and convincing evidence,” the Proposition 9

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27

9

No particular showing is required, under Proposition 9, to get
a hearing after a 15-year deferral.

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12

1

Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (emphases

2

added).

3

Since the old law and Proposition 9 are thus governed by

4

these two completely different standards, it is quite possible

5

that a prisoner could satisfy the old-law standard, but never

6

satisfy the Proposition 9 standard.

7

Indeed, this logically seems to be at greatest risk when

8

dealing with those subjected to the longest deferral periods,

9

those deferred for 3, 4 or 5 years under the old law.

Such

10

prisoners, independently of how often they could get to a parole

11

hearing, would have little chance of ever giving the Board an

12

“abiding conviction” that it was “highly probable” that they were

13

suitable for parole.

14

The court therefore concludes that Proposition 9 has created

15

a significant risk of imposing a longer incarceration on the

16

class than was the case when their crimes were committed.

17

conclusion is drawn from the evidence presented at trial, and the

18

reasonable inferences arising from it.

19

further attempted to buttress their case by presenting actual

20

accounts of prisoners whose incarcerations, they assert, were

21

lengthened by Proposition 9.

22

now turns, keeping in mind that at the preliminary injunction

23

stage, the Ninth Circuit found that plaintiffs had, to that date,

24

“produced no evidence to support a finding that more frequent

25

parole hearings result in more frequent grants of parole.”

26

Gilman, 638 F.3d at 1108 n.6.

27

////

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////

This

However, the plaintiffs

It is to that showing that court

13

1

C. The Rutherford Litigation: Findings.

2

A somewhat detailed description of the Rutherford litigation

3

is useful because plaintiffs argue that a subset of the class

4

certified in In re Rutherford (Cal. Super. Ct., Marin County, No.

5

SC135399A), is representative of the Proposition 9 class

6

certified in this case, while defendants argue that there is

7

insufficient evidence to conclude that the Rutherford subset is

8

representative.

9

came into being is helpful in determining whether the Rutherford

10

Describing how the Rutherford class and subset

subset is representative of the Proposition 9 class in this case.
13. On February 25, 2003, California life prisoner

11
12

Jerry Rutherford was denied parole, and given a one-year deferral

13

until his next hearing, pursuant to Cal. Penal Code § 3041.5, as

14

it then existed.

15

(1st Dist. 2008).10

16

Rutherford a parole hearing during the next year, although

17

required to do so by the law in effect at the time.

18

(admitted, over objection, at RT 30) (ECF No. 343-9) (“Stipulated

19

Testimony of Thomas Master”) ¶ 2.11

However, the Board failed to provide

Exh. 53

14. On May 26, 2004, Rutherford filed a petition for

20
21

See In re Lugo, 164 Cal. App. 4th 1522, 1529

habeas corpus in California state court, In re Rutherford (Cal.

22
23

10

Petitioner Lugo was substituted in as class representative
after Rutherford’s death. Id., at 1532.

24
11

25
26
27

The parties stipulated that, if called to testify, Thomas
Master would testify as described in Exhibit 53. ECF No. 343-9.
At trial, with Master on the stand, defendants objected to the
Stipulated Testimony on hearsay grounds. RT 30. The objection
was overruled because Master was on the stand and was available
to be cross-examined on the Stipulated Testimony. Id.

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14

1

Super. Ct., Marin County, No. SC135399A), challenging the delay

2

in his parole hearing.

3

Lugo, 164 Cal. App. at 1529.

15. On November 29, 2004, the California Superior Court

4

hearing Rutherford certified a class of “all prisoners serving

5

indeterminate terms of life with the possibility of parole who

6

have approached or exceeded their minimum eligible parole dates

7

without receiving their parole hearings within the time required

8

by sections 3041 and 3041.5.”

9

Lugo, 164 Cal. App. at 1530.

16. After the Rutherford class was certified, “the

10

Board stipulated that it was not providing timely parole

11

consideration hearings as required by the Penal Code.”

12

Cal. App. at 1530.

13

Lugo, 164

17. On March 22, 2006, the parties agreed to a remedial

14

plan intended to reduce the backlog of parole hearings.

15

164 Cal. App. at 1532.

16

Lugo,

18. When Proposition 9 was implemented, on December 15,

17

2008, life prisoners were still having their parole hearings

18

delayed beyond the dates when they should, by law, have occurred.

19

Because of this general timeliness problem the Board was having,

20

there arose a subset of the Rutherford class (“the Rutherford

21

subset”), who should have had their parole hearings conducted

22

under the old law, before Proposition 9’s implementation, but who

23

in fact did not (or would not) receive their hearings until after

24

implementation.

25

(ECF No. 259-1) at 7 (admitted over objection at RT 26).

26

hearings were (or were scheduled to be) conducted under

27

Proposition 9.

28

See Exh. 1, Exhibit A (Rutherford Stipulation)
Their

19. To avoid having their hearings decided under
15

1

Proposition 9, the Rutherford subset sought a preliminary

2

injunction enjoining the Board from implementing Proposition 9 as

3

to them.

4

See id., Exhibit A at 7.
20. The preliminary injunction proceeding was settled

5

with a stipulation.

6

were those prisoners in the Rutherford subset whose pre-

7

Proposition 9 hearings were delayed until after Proposition 9,

8

because of reasons attributable to the State, or because of

9

“exigent circumstances,”12 and those whose hearings commenced

Prisoners who qualified for the stipulation

10

before Proposition 9, but which were continued to a date after

11

Proposition 9.

12

at ¶ 6.

13

subset members who were granted parole or who elected to waive or

14

postpone their hearings through no fault of the Board or exigent

15

circumstances.

16

Exh. 1, Exhibit A at pp. 9-10 ¶ 4(a)-(d); Exh. 53

Excluded from this stipulation were those Rutherford

Exh. 53 ¶ 6.

21. Under the stipulation, all qualifying Rutherford

17

subset members who should have had their parole hearings

18

conducted before December 15, 2008 under the old law, were

19

granted hearings governed by the old law, even if those hearings

20

occurred after the implementation of Proposition 9.

21

(Exh. 1) ¶ 5.

Master Decl.

Further, in the event the life prisoner’s delayed

22
23
24
25
26
27

12

Exigent circumstances are (a) natural disaster, (b) institution
security or medical lockdown/quarantine, (c) illness or emergency
of an essential party, (d) power outage or equipment failure,
(e) prisoner medically or psychiatrically unavailable,
(f) attorney not prepared to proceed or became unavailable after
hearing was scheduled. Exhibit A at p.9 ¶ 4(c) & p.14. This
group includes prisoners who postponed their hearings to a date
before Proposition 9, but the hearing was not provided before
Proposition 9.

28
16

1

hearing had already been conducted under Proposition 9, and

2

parole had been denied, the Board agreed to re-calculate the

3

deferral period using the old law.

4

5-, 7-, 10- and 15-year deferrals under Proposition 9 would be

5

recalculated to 1-, 2-, 3-, 4- or 5-year deferrals under the old

6

law.

7

Id.13

In other words, the 3-,

22. The parties in Rutherford stipulated that 442 such

8

prisoners, identified at Exh. 20 (admitted per PTO), were covered

9

by the stipulation.

10

UF ¶ 14; (RT 26-29, Master testimony).

23. Of the 442 prisoners who received the

11

modifications, 305 had, as of March 2011, received their

12

subsequent hearings after the modifications; of those 305

13

prisoners, 51 (16.7%) were granted parole at their hearings.

14

¶ 15.

15

UF

24. In addition to the 442 prisoners who received

16

modifications of their Proposition 9 deferrals to old-law

17

deferrals due to the Rutherford litigation, there were 408 other

18

prisoners who had been entitled to their hearings before

19

Proposition 9 but had not yet had their hearings at the time

20

Proposition 9 was implemented; pursuant to a stipulation in the

21
13

22
23
24
25
26
27

Some covered prisoners chose to stipulate to a deferral period,
rather than go forward with their delayed, Proposition 9 parole
hearing. In those cases, all the new, old-law deferral periods
were set by agreement. Master Decl. ¶ 10. For those convicted
of murder: all 3-year stipulations were converted to 1-year, 5year stipulations to 2-years, 7-years to 3-years, 10-years to 4years, and 15-years to 5-years. Master Decl. ¶ 10. For those
not convicted of murder: all 3-year stipulations were converted
to 1-year (identically with those convicted of murder), and all
other stipulated deferrals (5-, 7-, 10- and 15-year deferrals),
were converted to 2-year deferrals. Id.

28
17

1

Rutherford case, those prisoners' first post-Proposition 9

2

hearings were to be governed by the old law.

3

2011, of those 408 prisoners, 247 were denied parole and given

4

old-law (one- to five-year) deferrals.

5

of the 247 had reached their next hearing (because they had

6

received only one- or two-year deferrals at their first post-

7

Proposition 9 hearings), and 25 (28 percent) were granted parole

8

at their hearings.

9

As of April 6,

As of April 6, 2011, 88

UF ¶ 16.

25. Of the 240 prisoners in the Rutherford subset who

10

received or stipulated to the minimum 3-year deferral under

11

Proposition 9, (a) 102 had their deferral dates reduced to the

12

minimum 1-year deferral in a hearing under the old law,14 (b) 60

13

had their deferral dates reduced to a 2-year deferral (the

14

second-shortest deferral) in new hearings under the old law, and

15

(c) none had their deferral dates stay the same or get increased

16

using the old law.

17

granted in 43 of those cases.

Exh. 20 (admitted per PTO).15

Parole was

Exh. 54 (admitted at RT 32).16

As

18
19
20
21
22
23
24
25
26
27

14

An additional 78 stipulated to parole unsuitability for 3 years
at their Proposition 9 hearings. Exh. 20 at 43-49 (entries with
“S” in the decision column are these stipulations). In that
case, the old-law deferral period was reduced to one year by
agreement, apparently without the need for a new hearing
conducted under the old law. Exh. 1 at 10 ¶ 10.
15

Exhibit 20 is a chart of the prisoners covered by the
Rutherford stipulation. It includes a column that shows the
original deferral date calculated under Proposition 9 (“Original
Hearing Info / Result Length”), and a column that shows the new
deferral date, calculated under the old law (“Modified Hearing
Info / Length”). See RT 27-28.
16

Exhibit 54 is a summary chart showing parole grants after the
Rutherford modifications.

28
18

1

noted above, the Board’s decision to defer a parole hearing for

2

only one or two years is made when there is a reasonable

3

expectation that the prisoner will be granted parole during the

4

next year or two.

5

then, that for most of those 240 prisoners (that is, 162 of them,

6

which excludes those subject to the agreed-to deferrals), there

7

was a reasonable expectation that they would be granted parole in

8

one or two years.

9

stood, they would have been unable to even get to a parole

The conclusion appears to be inescapable,

Yet, if their Proposition 9 deferrals had

10

hearing for three years.

11

26.

Of the 104 prisoners in the Rutherford subset who

12

received or stipulated to a five (5) year deferral under

13

Proposition 9, seventy-four of them had their deferral periods

14

re-calculated under the old law.17

15

deferral reduced to the 1-year minimum, (b) forty-eight had their

16

deferrals reduced to two years, the next-shortest available,

17

(c) seventeen had their deferrals reduced to 3 years, and

18

(d) eight had their deferrals reduced to 4 years in new hearings

19

conducted under the old law.

20

same, and it was not possible to get a greater deferral under the

21

old law.

22

(74, which excludes those subject to agreed-to deferrals), there

23

was a reasonable expectation that they would be granted parole in

24

one to four years.

Exhs. 20 & 54.

As a result, (a) one had the

None had their deferrals stay the

Therefore, for most of these prisoners

Yet, if their Proposition 9 deferrals had

25
17

26
27

An additional thirty of these prisoners stipulated to 5-year
deferrals under Proposition 9, and so their deferrals were
reduced to 2-year old-law deferrals by agreement. See Exhibit A,
¶ 10.

28
19

1

stood, they would have been unable to even get to a parole

2

hearing for five years.

3

27.

Of the 53 prisoners in the Rutherford subset who

4

received or stipulated to a seven (7) year deferral under

5

Proposition 9, thirty-nine had their deferral periods re-

6

calculated under the old law.18

7

either the 1-year minimum or the 5-year maximum deferral, (b) six

8

had the deferral reduced to 2 years, the next shortest deferral

9

under the old law, (c) seventeen had their deferrals reduced to

As a result, (a) none received

10

three (3) years, and (d) 16 had their deferrals reduced to 4

11

years.

12

longer deferral under the old law.

13

prisoners, there was a reasonable expectation that they would be

14

granted parole in one to four years.

15

deferrals had stood, they would have been unable to even get to a

16

parole hearing for seven (7) years.

17

Exhs. 20 & 54.

It was not possible to get an equal or
Therefore, for most of these

Yet, if their Proposition 9

28. The 31 prisoners in the Rutherford subset who

18

received a ten (10) year deferral (the next-to-longest deferral

19

possible) under Proposition 9, all had their deferrals re-

20

calculated under the old-law.19

21

the 1-year minimum deferral, (b) somewhat surprisingly, six (6)

22

had the deferral reduced to 2 years, the next shortest deferral

As a result, (a) none received

23
18

24
25
26
27

An additional fourteen of these prisoners stipulated to 7-year
deferrals under Proposition 9, and so their deferrals were
reduced, by agreement, to 2-year old-law deferrals, or 3-year
old-law deferrals if their convictions were for murder. See
Exhibit A, ¶ 10.
19

According to Exh. 20, none of these prisoners stipulated to
deferrals under Proposition 9.

28
20

1

under the old law,20 (c) 20 had their deferrals reduced to four

2

(4) years and (d) 5 had their deferrals reduced to 5 years, the

3

maximum deferral under the old law.

4

possible to get an equal or longer deferral under the old law.

5

Exhs. 20 & 54.

It was not

29. Therefore, for the majority of these prisoners (26

6

out of 31), there was a reasonable expectation that they would be

7

granted parole in one to four years.

8

deferrals had stood, they would have been unable to even get to a

9

parole hearing for ten (10) years.

10

30.

Yet, if their Proposition 9

Of the 14 prisoners in the Rutherford subset who

11

received the maximum, 15-year deferral under Proposition 9,

12

(a) none received the 1-year minimum deferral, (b) somewhat

13

remarkably, five (5) had the deferral reduced to 2 years, the

14

next shortest deferral under the old law, (c) none had their

15

deferrals reduced to 3 years, (d) one had the deferral reduced to

16

four (4) years and (d) eight (8) had their deferrals reduced to 5

17

years, the maximum deferral under the old law.

18

It was not possible to get an equal or longer deferral under the

19

old law.

20

Exhs. 20 & 54.

31. Thus, most of those who received the maximum, 15-

21

year, deferral under Proposition 9, also received the maximum, 5-

22

year, deferral under the old law.

23

irrebutable presumption on these prisoners that they would not be

The law thus imposed an

24
20

25
26
27

This is the old-law deferral these six would have received by
agreement, if they had stipulated to deferrals under
Proposition 9, and if their commitment offenses were other than
murder. Without this agreement, it seems surprising that their
next-to-longest deferrals would be re-calculated to the next-toshortest level.

28
21

1

suitable for parole for 15-years, removing the old-law

2

possibility that at least every five years, the prisoner could

3

demonstrate suitability.

4

32. As for the five prisoners whose deferrals dropped

5

from 15 years under Proposition 9 to 2 years under the old law,

6

the reduction seems remarkable because having received the

7

maximum, 15-year deferral under Proposition 9, these five

8

prisoners received the next shortest deferral available under the

9

old law.

It is a reasonable inference from this that in December

10

2008 and January 2009, the Board did not have “clear and

11

convincing evidence” that those prisoners would be ready for

12

release for the next 15 years.

13

the old law about three months later (in March and April 2009),

14

the Board concluded that these same prisoners would be ready for

15

release within 2 years.

16

Yet, making the calculation under

Exh. 20.

33. These five prisoners may thus have played out the

17

disturbing scenario mentioned earlier, namely that prisoners who

18

would be paroled under the old law could never show with the

19

“clear and convincing evidence” required by Proposition 9, that

20

they were ready for parole.21

21

34. There exists a separate group of 408 prisoners who

22

also had post-Proposition 9 deferrals decided under the old law.

23

Exh. 56 (ECF No. 343-12) (admitted at RT 117).

24

prisoners in that group who were denied parole, 91 received the

25

21

26
27

Of the 247

These five (Ambers, Pinell, Storey, Case and Martin) are not
recorded as having stipulated to a deferral. See Exhibit 20.
Had they stipulated, and if their crimes were other than murder,
then the deferral would have dropped from 15 years to 2 years
under the Rutherford agreement.

28
22

1

minimum one-year deferrals, and 22 of them were granted parole.

2

Id.

3

shortest under the old law), and 2 of them were granted parole.

4

Id.

5

Of the group, 87 received 2 year deferrals (the next

35. The actual effect of Proposition 9 on a sample

6

group of life prisoners affected by the Rutherford litigation is

7

set forth below.

8

the last two admitted at RT 222-23).22

9

See Exh. 20 & 55 (binder) (all columns except

a. Life prisoner A. Taylor (Exh. 20 ¶ 300)

10

received a Proposition 9 parole hearing in January 2009.

11

was denied parole, and given the minimum deferral permitted under

12

Proposition 9, three years, on January 2012.

13

the prisoner was covered by the Rutherford litigation, the Board

14

re-calculated the deferral, using the old law.

15

law, the Board deferred Taylor’s hearing two (2) years, or until

16

January 2011.

17

a reasonable chance that the prisoner would be granted parole in

18

two years (otherwise, it was required by the old law to defer the

19

hearing 3, 4 or 5 years).

20

parole at the January 2011 hearing, and the prisoner was released

21

on parole in June 2011.

22

law before a parole hearing could even have occurred under

Taylor

However, because

Using the old

This meant that the Board believed that there was

In fact, the Board granted Taylor

Thus, Taylor was released under the old

23
24
22

25
26
27

The court determined that the last two columns, although not
admitted as evidence, represented what the witness, Monica Knox,
would have testified to, if the court were inclined to drag out
the trial. RT 222-23. Defendant was granted the opportunity to
cross-examine the witness on those columns as if she had so
testified in court.

28
23

1

Proposition 9.23

2

b. Life prisoner H. Tuey (Exh. 20 ¶ 152) received

3

a Proposition 9 parole hearing in December 2008.

4

parole, and given the minimum 3-year deferral permitted under

5

Proposition 9, to December 2011.

6

was covered by the Rutherford litigation, the Board re-calculated

7

the deferral under the old law.

8

gave Tuey the minimum 1-year deferral, to December 2009.

9

meant that the Board believed that there was a reasonable chance

10

that Tuey would be granted parole the following year (otherwise,

11

it was required by the old law to defer the hearing 2, 3, 4 or 5

12

years).

13

December 2009 hearing, and the prisoner was released on parole in

14

May 2010.

15

half years before the next parole hearing could even have

16

occurred under Proposition 9.24

17

Tuey was denied

However, because the prisoner

Using the old law, the Board
This

In fact, the Board granted Tuey parole at the

Thus, Tuey was released under the old law one and one-

c.

Life prisoner A. Flores (Exh. 20 ¶ 302)

18

received a Proposition 9 parole hearing in December 2008, but

19

was denied parole, and given a seven (7) year deferral, to

20

23

21
22
23
24
25
26
27

Similar results obtain for seven (7) other life prisoners
identified by plaintiffs, namely, P. Guerrero, J. Morales,
R. Willis, R. Morton, R. DeCid, N. Powell and G. Balaoing.
24

Similar results obtain for 42 other life prisoners identified
by plaintiffs, namely, I. Kegler, R. Anderson, Curry, M. Arthur,
S. Law, P. Syzemore, D. James, R. Hamilton, C. Henderson,
G. Zavala, R. Perez, R. Stewart, O. Boone, C. Salgado, G. Rounds,
G. Counts, A. Saucedo, A. Marin, E. Reams, B. Barnard,
T. Pacheco, B. Jackaway, J. Anderson, J. Moreno, J. Acosta,
B. Weatherly, T. Davis, J. Masoner, D. Cordar, A. Harrell,
C. Racca, M. Gaona, D. Schlappi, H. Oropeza, A. Garcia, E.
Russell, Kwitkowski, J. Bonilla, R. Espinola, J. Crespo, F. Hill
and A. Hanna.

28
24

1

December 2015.

2

the Board finds “by clear and convincing evidence” that the

3

prisoner need not be incarcerated for more than seven additional

4

years.

5

deferring for 3, 5 or 7 years.

6

by the Rutherford litigation, the Board re-calculated the

7

deferral under the old law.

8

Flores a 3-year deferral, to December 2011.

9

Board believed that there was a reasonable chance that Flores

Under Proposition 9, this deferral is given when

Under this circumstance, the Board had the choice of
Because the prisoner was covered

Using the old law, the Board gave
This meant that the

10

would be granted parole in three years, (otherwise, it was

11

required by the old law to defer the hearing 4 or 5 years).

12

fact, the Board granted Flores parole at the November 2011

13

hearing, and the prisoner was released on parole in May 2012.

14

Thus, Flores was released under the old law three years before

15

the next parole hearing that had been granted under

16

Proposition 9.

17

d.

In

Life prisoner C. Orduna (Exh. 55 ¶ 19)

18

received a Proposition 9 parole hearing in March 2009.

19

was denied parole, and given a five (5) year deferral, to March

20

2014.

21

finds “by clear and convincing evidence” that the prisoner need

22

not be incarcerated for more than five (5) additional years.

23

Under this circumstance, the Board had the choice of deferring

24

for 3, 5 or 7 years.

25

Rutherford litigation, the Board re-calculated the deferral under

26

the old law.

27

deferral, to 2011.

28

was a reasonable chance that Orduna would be granted parole in

Orduna

Under Proposition 9, this deferral is given when the Board

Because the prisoner was covered by the

Using the old law, the Board gave Orduna a 2-year
This meant that the Board believed that there

25

1

two years, (otherwise, it was required by the old law to defer

2

the hearing 3, 4 or 5 years).

3

parole at the April 2010 hearing, and the prisoner was released

4

on parole in October 2010.

5

In fact, the Board granted Orduna

Thus, Orduna was released under the old law before the

6

earliest date the next parole hearing could even have occurred

7

under Proposition 9.25

8
9

36. An additional group of 24 life prisoners had their
3-year Proposition 9 deferrals (the minimum permitted under

10

Proposition 9), reduced through individual court orders.26

11

Exh. 58 (binder) (all columns except the last two admitted at RT

12

25

13
14
15
16
17
18
19

See

Similar results obtain for 4 other life prisoners identified by
plaintiffs, namely, C. Luong, J. Barrigan, M. Luna and M. Bunney.
The court rejects, however, Knox’s testimony of what is the
“earliest release” date under Proposition 9 for several
prisoners. See Exh. 55. According to Knox’s testimony, this was
the earliest release date if the prisoner “had gotten the
shortest Prop 9 deferral possible.” RT 219. The shortest
deferral possible under Proposition 9 was three (3) years. See
Cal. Penal. Code § 3041.5(b)(3)(C) (defer for 3, 5, or 7 years if
prisoner does not require incarceration for more than seven
additional years). However, it appears that Knox used the actual
deferral given under Proposition 9 rather than the “shortest”
deferral possible, in her calculation.

20

24

This apparent error was avoided in the calculation for J.
Alvarez, but repeated for J. Coleman, B. Jimenez, C. Luong, B.
Martinez, J. Barrigan, C. Escobar, M. Luna, P. Velazquez, M.
Bunney and G. Tuzon. However, even correcting these errors,
Orduna, Luong, Barrigan, Luna and Bunney were released under the
old law sooner that they could even have gotten a parole hearing
under Proposition 9.

25

26

21
22
23

26
27

L. Garcia, A. Marcelo, A. Criscione, A. Bics, S. Murphy, R.
Young, J. Powell, M. Fairfax, E. Juarez, R. Hudson, J. Alexander,
D. Kurtzman, R. DeLaBarcena, M. Berger, I. Sepulveda, M. Barajas,
O. Willis, H. Rosales, A. Aguilar, S. Contreras, E. Estrada, J.
Portillo, H. Jimenez and L. Liftee. Exh. 58.

28
26

1

222-23).27

2

earlier than would have been permitted under Proposition 9, and

3

each was released on parole before they even could have had a

4

parole hearing under Proposition 9.

5

Each of these life prisoners received parole hearings

Id.

37. Dr. Barry Krisberg was qualified to testify as an

6

expert on criminology, sociology and statistics.

7

Dr. Krisberg opined that there was no systematic bias in the

8

Rutherford subset that would make it different from the class in

9

this case.

10

(RT 73-74.)

(RT 76.)
38. According to Dr. Krisberg, “comparing the outcomes

11

of the Rutherford Group to the class as a whole is a valid

12

research design to determine the effect of the new law.”

13

(RT 85.)

14

39. Dr. Stephen Klein was qualified to testify as an

15

expert in statistics.

16

soon to know what the effects of Proposition 9 are.”

17

Dr. Klein disagreed with Dr. Krisberg that the Rutherford subset

18

was unbiased, or was representative of the plaintiff class as a

19

whole.

20

“controlling” the Rutherford subset for “case characteristics.”

21

40. Dr. Klein identified two factors that, he opined,

(RT 100.)

Dr. Klein opined that “it’s too
(RT 101.)

Dr. Klein believed that Dr. Krisberg erred by not

22

defeated Dr. Krisberg’s assertion that the Rutherford subset was

23

an unbiased “natural experiment,” and was therefore

24

representative of the class as a whole.

25

27

26
27

The first is Dr. Klein’s

Once again, the court found that the last two columns
represented what the witness, Monica Knox, would have testified
to, if the court were inclined to drag out the trial. Defendant
was granted the opportunity to cross-examine the witness on those
columns as if she had so testified in court.

28
27

1

assertion that the hearing mandated by the Rutherford litigation

2

“could be two years” after the initial post-Proposition 9

3

hearing.

4

identified any document or other evidence from which he drew this

5

“two years” figure.

6

RT 106.

Neither Dr. Klein nor defendants’ counsel ever

41. The other factor Dr. Klein identified is that “the

7

people doing the second hearing may or may not have known the

8

outcome of the first hearing, and that could be affecting

9

things.”

(RT 106.)

Dr. Klein does not identify any law,

10

document or other evidence indicating that the decision-makers in

11

the second hearing knew the outcome of the first hearing.28

12

does he identify any document or evidence showing that knowing

13

the prior outcome would make any difference to the second

14

decision-makers.

15

Nor

42. Dr. Klein opined that in order for Dr. Krisberg’s

16

“natural experiment” to be valid, “[w]hat you’d want to do is you

17

want to get the characteristics of the Rutherford Group and the

18

characteristics of the non-Rutherford group in the larger

19

population to see whether those characteristics are the same.”

20

(RT 108-09.)

21

not do this, his “natural experiment” was not valid.

22

did not identify any case characteristics between the two groups

23

that were different, or that could affect the outcome.

Dr. Klein concluded that because Dr. Krisberg did
Dr. Klein

24
28

25
26
27

Under Proposition 9, the Board is expressly directed to
consider the findings and conclusions “reached in a prior parole
hearing,” although it is not binding. Even assuming a similar
direction applied under the old law or regulations, it is not
clear that the vacated hearings in Rutherford would qualify as a
prior parole hearing.

28
28

1

D. The Rutherford Litigation: Conclusions.

2

The court finds that Dr. Klein’s testimony does not really

3

bear on the question before the court, namely, whether

4

Proposition 9 created a “significant risk” of longer

5

incarceration.

6

different lengths of incarceration are, years from now, and

7

looking back to see whether they were longer after Proposition 9

8

passed.

9

significant risk of increased incarceration.

This is not the same as waiting to see what the

The question is whether, looking forward, there is a
If the court were

10

to rely upon Dr. Klein’s testimony, this court could not reach

11

any conclusion about the constitutionality of Proposition 9 until

12

some time in the indefinite future when all the class members had

13

either been released or died.

14

Even if Dr. Klein’s testimony were pertinent, the court

15

rejects it.

16

Krisberg to know that the Rutherford subset is representative of

17

the class as a whole.

18

Dr. Krisberg did not “control” for case characteristics.

19

of this, Dr. Klein opines, there is no way to know whether

20

something other than the accident of calendaring -- such as

21

individual case characteristics, or some biasing factor that

22

caused the “accident” of calendaring – distinguishes the

23

Rutherford subset from the class here.

24

Dr. Klein opines that there is no way for Dr.

The basis for this opinion is that

There are several problems with this assertion.

Because

First,

25

neither the defendants nor Dr. Klein offer any evidence of any

26

case characteristics that would distinguish the Rutherford subset

27

from the class.

28

central files, and yet they have not identified any of the

Defendants have access to all the prisoners’

29

1

differences that Dr. Klein speculates might possibly exist.

2

court infers from this failure to produce any such evidence, that

3

there is none.

4

The

Second, the evidence before the court plainly shows that

5

there is no overall difference that would make a difference

6

between the Rutherford subset and the class.

7

identifies two possible differences in case characteristics.

8

asserts that “the time between the two hearings could be two

9

years, things could happen that would be affecting whether

Dr. Klein

10

somebody got a parole grant during that two-year period.”

11

He

RT 106.

12

This basis is flatly contradicted by the evidence.

13

Exhibit 20 is the defendants’ own compilation of every member of

14

the Rutherford subset.

15

case, the time between the two hearings for the Rutherford

16

prisoners is just under one month (e.g., Tilford), to just under

17

five (5) months (e.g., Hill), with the overwhelming majority

18

being about 3 or 4 months apart.

19

that the court was able to identify, namely, Harrell (11 months)

20

and Moore (10 months), was the time difference greater than 5

21

months.

22

It shows that in almost every single

Exhibit 20.

In only two cases

If Dr. Klein’s assertion had been based upon actual evidence

23

in the case, the court would consider it, since the time between

24

hearings, and possibility of changes in case characteristics that

25

could occur during that time, most notably “institutional

26

behavior,” is pertinent to whether parole would be granted.

27

Cal. Admin. Code, tit. 15, § 2281(d)(9) (finding of suitability

28

for release is better when “[i]nstitutional activities indicate
30

See

1

an enhanced ability to function within the law upon release”).

2

Since Dr. Klein’s assertion was based upon an apparently made-up

3

number of “years” between the initial Proposition 9 hearing and

4

the old-law hearing gained through the Rutherford litigation, the

5

court must discard Dr. Klein’s opinion, as to this factor.

6

Finally, the evidence before the court tends to show that

7

the relevant case characteristics were not different between the

8

two groups.

9

the case characteristics that matter are set forth in the

This conclusion can be inferred from the fact that

10

regulations governing the determination of parole suitability,

11

id. § 2281(b)-(d), and the fact that both groups wound up with

12

the full range of outcomes.

13

characteristics are inferable from the outcome.

14

Rutherford subset was, for example, crowded with multiple

15

murderers who showed no remorse, there would be few among them

16

receiving the minimum deferral, and many receiving the maximum.

17

But defendants have identified no such skewing in the

18

distribution of outcomes in the record.

19

In other words, the case
If the

The court finds that the Rutherford subset is representative

20

of the Proposition 9 class as a whole.

21

this matter shows that the Rutherford subset is distinguished

22

from the Proposition 9 class only by the accident of when their

23

parole hearings were scheduled on the calendar.

24

evidence that the case characteristics are different between the

25

two groups.

26

accident of calendaring was anything other than an accident of

27

the calendar.

28

The evidence submitted on

There is no

There is no evidence that something about the

For example, there is no evidence that only those most or
31

1

least likely to be paroled moved into the Rutherford subset.

2

Rather, the evidence is clear that the Rutherford subset came

3

into existence because the Board had a backlog that applied to

4

all life prisoners, not any particular subset of them based upon

5

any case characteristics.

6

differences in case characteristics is therefore a red herring,

7

especially since Dr. Klein, who presumably had access to the

8

central files of the class as well as the Rutherford group, did

9

not identify a single case characteristic that distinguished the

10

Dr. Klein’s speculation on possible

two groups.

11

The court therefore finds that plaintiffs have properly

12

buttressed their showing that Proposition 9 actually did create a

13

significant risk that their incarcerations would be lengthened.

14

In addition to the inferences to be drawn from how the Board

15

imposes deferral periods, the Rutherford subset shows that in

16

fact, some members of the class had their incarcerations

17

lengthened by Proposition 9, but were rescued from that result by

18

the Rutherford stipulation.

19

The experience of the Rutherford subset thus shows that

20

while it is true that more frequent parole hearings result in

21

more frequent denials for some, it is also true that they result

22

in more frequent grants of parole for others.

23
24
25

III.

PROPOSITION 9: THE “ADVANCED HEARING” PROCESS

A. Findings.
43. A life prisoner who has been denied parole may

26

request that the Board exercise its discretion to advance a

27

hearing to an earlier date.

28

See UF ¶ 4.

44. From the passage of Proposition 9 through April 6,
32

1

2011, when a full review of a petition to advance was ordered,

2

the review was conducted by a Board employee at the prison where

3

the prisoner was housed so that the prisoner's entire file could

4

be reviewed.

5

counsel when their files were reviewed.

6

The prisoners were not present or represented by
UF ¶ 13.

45. During the period from January 1, 2009 through

7

December 31, 2010, there were 119 petitions to advance filed by

8

prisoners.

9

(approximately 93%) were summarily denied and eight

10

Of those, 114 (approximately 96%) were denied; 106

(approximately 7%) were denied following a full review.

11

UF ¶ 7.

46. From 2009 to June 2012, the Board has not exercised

12

its discretion to advance a hearing absent a prisoner filing a

13

petition to advance.

14

UF ¶ 26.

47. Although the procedure for making this request does

15

not appear to be reflected in the Board’s official regulations,

16

the Board’s Executive Officer, Jennifer Shaffer, testified about

17

the Board’s process for determining whether an expedited hearing

18

is warranted for a particular inmate.

(RT 263-95.)

19

48. The prisoner starts this process by completing Form

20

1045, Exhibit 35 (ECF No. 341-3), entitled “State of California /

21

Board of Parole Hearings / Petition To Advance Hearing Date.”

22

(RT 265.)

23

circumstances or new information that “show a reasonable

24

likelihood that consideration of the public and victim’s safety

25

does not require the additional period of incarceration” that was

26

set at the last parole suitability hearing.

27

The prisoner is also instructed to submit with the petition all

The form instructs the prisoner to list the changed

28
33

Exh. 35 at BPH-44.

1

supporting documents.

2

Id.29

49. Prior to March 1, 2014, the submitted petition was

3

first given a “preliminary review.”

4

this stage, according to Exhibit 35, the petition could be

5

“Summarily Denied” if (1) the prisoner was seeking to advance the

6

wrong type of hearing, (2) the petition was not timely or (3) the

7

petition contained “[n]o evidence of new information or a change

8

in circumstances warranting further review.”

9

reasons were plainly jurisdictional, in that such petitions were

10

not within the statute.

11

See Exh. 35 at BPH-45.

Id.

At

The first two

material) (admitted at RT 210).

12

See Exh. 38 at BPH-12 (BPH training

50. As for the third issue, the training provided to

13

the decision-makers states that the prisoner first had to assert

14

that there was “new information” or a “change in circumstances”

15

without regard to any showing or assertion of suitability.

16

Exh. 38 at BPH-14.

17

was not sufficient to warrant an advance hearing; there had to

18

be, in addition, some “new information” or “change in

19

circumstances.”

20

No. 341-8) at BPH-36 (defendants’ explanation of “preliminary

21

review” states that “[m]inimally, the prisoner must make a valid

22

assertion of a change in circumstances or new information in

23

order to avoid the BPH summarily denying the petition”).

24
25

See

In other words, a mere showing of suitability

See also Exh. 40 (admitted at RT 211) (ECF

51. In addition to that assertion (of changed
circumstances or new evidence), the prisoner then had to

26
27
28

29

The form was amended on March 1, 2014, although it appears that
prisoners still fill out Exhibit 35. However, the decisionmakers now use Exhibit 2B instead. (RT 265-66.)
34

1

establish, still in the “preliminary review” stage, that there

2

was a “reasonable likelihood” that the prisoner no longer

3

required additional incarceration.

4

petition would be “Summarily Denied” if “other evidence shows”

5

that the prisoner was “unsuitable for parole despite the change

6

in circumstances” or “new information.”

See Exh. 38 at BPH-15.

The

Id.

7

52. The “full review” required the prisoner to again

8

establish “a reasonable likelihood,” considering the safety of

9

the public and victim, that the prisoner no longer required

10

incarceration.

11

See Exh. 38 at BPH-17.

53. After March 1, 2014, the decision-making process

12

was changed.

13

“full review,” there is now a “jurisdictional review,” followed

14

by a “full review.”

15

54.

Instead of a “preliminary review” followed by a

(RT 272) (Shaffer Testimony).

The jurisdictional review is conducted by legal

16

analysts, and determines only whether to screen out petitions

17

where (1) the prisoner was seeking to advance the wrong type of

18

hearing,30 or (2) the petition was not timely.

19

(RT 272-73.)

55. The jurisdictional review does not involve any

20

determination on the merits.

21

the pre-March 1, 2014 procedure, in which the “preliminary

22

review” included a merits determination on whether the prisoner

23

had shown a change of circumstances warranting further review.

24

See, e.g., Exh. 38 of BPH-145.

25
26
27

(RT 276.)

This is in contrast to

56. If the petition survives the jurisdictional review,
30

For example, there are medical parole suitability hearings,
documentation hearings and progress hearings, none of which are
included in the advance hearing process. (RT 275.)

28
35

1

it moves to a “full review,” which is a merits review conducted

2

by a Commissioner or Deputy Commissioner.

3

review is conducted based upon documents, possibly including the

4

prisoner’s “central file,” or some portion of it, and does not

5

include a hearing.

6

(RT 277-83.)

This

(RT 284-308.)

57. The standard for advancing a hearing is whether

7

there is a “reasonable likelihood that additional incarceration,

8

after consideration of the public safety and the [victim’s]

9

safety, is no longer necessary.”

10

suitability standard.31

11

(RT 284.)

It is not the

(RT at 288.)

58. When the PTA is submitted, the Board places a hold

12

on a hearing date 9 months from that date, in order to ensure

13

that a hearing date will be available if the PTA is granted.

14

(RT 277-78.)

15

hearing in a year must file the PTA immediately, but in any

16

event, no later than 3 months from the date of the parole denial.

17

Thus, the inmate can use at most 3 months worth of “changed

18

circumstances” or “new information” to convince the decision-

19

maker to grant him an advance hearing.

Accordingly, a prisoner who wishes to have a new

Accordingly, whatever

20
21
22
23
24
25
26

31

The standard for suitability is:
The panel or the Board, sitting en banc,
shall set a release date unless it determines
that the gravity of the current convicted
offense or offenses, or the timing and
gravity of current or past convicted offense
or offenses, is such that consideration of
the public safety requires a more lengthy
period of incarceration for this individual.

27
Cal. Penal Code § 3041(b).
28
36

1

work the inmate does in the subsequent 9 months is not

2

considered.

3

59. The inmate may file a new petition to advance no

4

sooner than three years after the last petition to advance was

5

denied.

6

(RT 274-75.)
60. Although the Board has the authority to grant an

7

advanced hearing sua sponte, it has never done so, because until

8

recently, there has been no process for doing so.

9

See RT 297.

61. Post-Vicks, the Board is apparently implementing a

10

procedure to implement sua sponte reviews.

11

board is currently conducting sua sponte reviews, although as of

12

the date of Shaffer’s testimony, none had ever been granted.

13

(RT 289-95, 297-98.)

(RT 289-95).

The

14

B. Advance Hearing Examples.

15

The parties have directed the court’s attention to several

16

examples of the petition to advance process.

17

examples point to cases where advanced hearings were granted or

18

denied, and appear to show that the advance hearing process can

19

afford prisoners an opportunity to avoid the ex post facto

20

problems associated with Proposition 9.32

21
22

Some of the

Other examples show the Petition to Advance (“PTA”) process
identifying prisoners whose PTAs apparently ought to be denied.

23
32

24
25
26
27

See, e.g., R. Evans (petition to advance granted, denied
parole), UF ¶ 8; L. Gooseberry (petition to advance granted, and
parole granted after some voluntary deferrals), UF ¶ 9;
J. Martinez (petition to advance granted, parole granted), UF
¶ 10; R. Singh (petition to advance granted after prisoner
stipulated to 3-year deferral, parole denied), UF ¶ 11;
D. Vanlandingham (petition to advance granted, parole granted,
Governor reversed, parole again granted), UF ¶ 12.

28
37

1

For example, T. Faatiliga’s advance hearing petition made it past

2

the preliminary review stage.

3

(full review ordered on April 5, 2011).

4

stage, the petition was denied, for the following reasons:

5

See Exh. 80, Vol. 2, at BPH-22042
At the full review

Although the inmate has remained disciplinary
free,
earned
6
laudatory
chronos,
and
provided a letter regarding insight and
remorse, he has only participated in 2
additional self help programs since his last
review.
He attended a one day program on
victim recognition, reflection and healing on
11-10-10 and has continued his participation
in the YAPP program.
The transcripts
indicate
the
panel
would
like
him
to
participate in an anger management program as
well and to continue self help that would
further improve his level of insight.

6
7
8
9
10
11
12

Id.

13

issue presented, that is, whether the inmate should get an

14

advance hearing.

15

the prisoner had not done what the last panel indicated he should

16

do before he could be ready for release, namely, “participate in

17

an anger management program.”33

18
19
20
21
22
23
24
25
26
27
28

This advance petition denial appears to squarely address the

The decision-maker denied the petition because

These examples tend to show that

33

Similar examples are: D. Washington (Exh. 80 at Y 25025)
(prisoner failed to address issues identified at the last parole
hearings); D. Plata (Exh. 80 at Y 20560) (same); T. Porter
(Exh. 80 at Y 33758) (prisoner failed to document participation
in a program apparently); S. Mendoza (Exh. 80 at Y 18391) (denial
fully explained, addressed relevant factors); M. Heller (Exh. 80
at Y 18481) (level of insight is improving but “still deemed
inadequate”); R. Holguin (Exh. 80 at Y 30144) (recent
disciplinary incidents); B. Werner (Exh. 80 at Y 25063)
(continued failure of “insight”); T. Cobos (Exh. 80 at Y 12776)
(continued failure of “insight,” superficial comments to the
contrary are not enough); A. Monteon (Exh. 80 at Y 18674) (inmate
was untruthful in evaluation); M. Loveless (Exh. 80 at Y 17242)
(petition failed to address concerns of last panel); R. Elam
(Exh. 80 at Y 13861) (inmate failed to update parole plans, as
asked for by prior panel).
Plaintiffs have identified several examples where they disagree
38

1
2
3
4
5
6
7
8
9
10

substantively with the decision-maker, even though they do not
identify any structural problem with the decision. See, e.g., E.
Sanders (Exh. 48 (binder) at BPH-3499) (plaintiffs assert that
the decision-maker “discounts” prior panel’s comments that the
prisoner is close to suitability); F. Salas (Exh. 47 (binder) at
BPH-1491) (plaintiffs say that the decision-maker denied PTA even
though prisoner completed relevant courses and was a great
student); and Dawn Ayres (Exh. 80 at Y 10180) (plaintiffs
apparently feel that the inmate’s 400 pages of documentation
should have resulted in a grant of parole).
However, this court does not sit to review individual parole
decisions. The question here is not whether the decision-makers
reached the correct decision or not. The question is whether the
system in which they make their decisions is enough to rescue
Proposition 9 from its ex post facto problems.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In the case of J. Barajas (Exh. 80 at Y 10820), plaintiffs
complain that the petition was denied because the decision-maker
determined that “more time” is needed. This court knows of no
reason that the decision-maker cannot independently determine
that more time is needed, as apparently was the case here. The
same applies to: T. Tuvalu (Exh. 80 at Y 24699) (“[a]nything less
than three years would be insufficient”); J. Stephen (Exh. 80 at
Y 15973) (“additional time is needed to evaluate [inmate’s
recent] gains/knowledge and understanding in this area”); S.
Sevior (Exh. 80 at Y 23514) (not enough time has elapsed for
prisoner to work on his anger); I. Verdugo (Exh. 80 at Y 35615)
(“[a]lthough his programming is positive a longer period of time
to participate and fully understand and use the concepts is
needed”); A. Cook (Exh. 80 at Y 28003) (“[w]hile his ongoing
participation in self help is commendable, the extent and length
of his involvement remains inadequate in light of the prior
panel’s comments as to lack of insight and remorse”); J. Kuhnke
(Exh. 80 at Y 31650) (“[i]t is believed that Mr. [Kuhnke] needs
more time to continue on this positive path to lay a stronger
foundation to insure that he is not a public safety risk when
released into the free community”); and L. Haynes (Exh. 80
at Y 17145) (“it is still an inadequate amount of time in terms
of ongoing participation in these self-help groups”) (the court
notes that he was also denied because his parole plans were
“barely adequate, and does not mention a plan for staying out of
the gang lifestyle”).
This is a different matter than if the decision-maker were to
simply rely on the prior panel’s determination that more time is
needed.
39

1

the PTA system works at denying petitions that ought to be

2

denied.

3

that ought to be granted.

4

The remaining question is whether it grants petitions

Several examples show that even when the Board decides a

5

case under an apparently reasonable interpretation of

6

Proposition 9 and the implementing regulations, the advance

7

hearing process can be rendered meaningless or illusory.

8

most profound failure of this process is in the Board’s apparent

9

interpretation of the statute authorizing advance petitions.

The

The

10

statute provides that the inmate may request an advance hearing

11

by submitting a petition that sets forth “the change in

12

circumstances or new information that establishes a reasonable

13

likelihood that consideration of the public safety does not

14

require the additional period of incarceration of the inmate.”

15

Cal. Penal Code § 3041.5(d)(1).

16

this authorization is that the “change in circumstances or new

17

information” is tied to the question of suitability for parole.

18

A sensible interpretation of

However, some examples identified by plaintiffs show that

19

the Board has interpreted the authorization in a way that

20

separates the “change in circumstances or new information” from

21

the question of suitability.

22

showing of “change in circumstances or new information” before it

23

will even consider the question of suitability for parole.

24

is a problem first because the most fundamental change in

25

circumstances would be a move from unsuitability to suitability.

26

But as the examples show, that is apparently not a change in

Rather, the Board requires a

27
28
40

This

1

circumstance that will satisfy the Board.

2

requirement is spun off from the suitability requirement, it

3

imposes an additional, substantive burden on the prisoner’s

4

ability to obtain parole.

5

Second, when this

This is not a harmless procedural change.

This is a change

6

that says that the prisoner must now show something that he never

7

had to show before, namely, this amorphous “change in

8

circumstances or new information.”

9

committed, the sentence was incarceration until such time as the

At the time the crime was

10

Board determined that the prisoner was suitable for parole.

11

Under Proposition 9, it is incarceration indefinitely, unless the

12

Board finds clear and convincing evidence of (a) a change in

13

circumstances or new information, and separately,

14

(b) suitability.

15

(1)

M. Brodheim: Change in Circumstances or New
Evidence.

16
17

Plaintiffs have directed the court’s attention to the

18

case of M. Brodheim as an example of the advance hearing process

19

in action.34

20

denied parole for Brodheim, and deferred his next hearing for the

21

minimum 3-year period allowed under Proposition 9.

22

Exhibit 80, Vol. 2 at BPH-21458.

23

granted Brodheim’s habeas corpus petition on the ground that the

24

record did not contain “some evidence” of Brodheim’s current or

25

34

26
27

At a parole hearing on June 4, 2009, the Board

See

On November 1, 2010, this court

There appear to be over 40,000 pages of advance hearing
documents in Plaintiffs’ Exhibit 80 (submitted on two CD’s). It
is not practical for the court to review them all, so the court
considers only the documents specifically brought to its
attention by the parties.

28
41

1

future dangerousness.

2

Brodheim released within 45 days unless the Board conducted a new

3

suitability hearing in accordance with Due Process and the

4

court’s order.

5

December 1, 2010.

6

was suitable for parole.

7

15, 2011, the Ninth Circuit reversed this court’s order, citing

8

the intervening authority of Swarthout v. Cooke, 562 U.S. ___,

9

131 S. Ct. 859 (2011) (per curiam).

Id.

Id. at BPH 21468.

This court ordered

The board scheduled the new hearing for

At that hearing, the Board found that Brodheim
Id. at BPH 21567.

However, on March

Id. at BPH-21459-60.

Even

10

though the Board had already found Brodheim suitable for parole,

11

it immediately (March 18, 2011) vacated its decision, solely

12

because the earlier-than-planned – but already conducted –

13

December 2010 hearing was no longer legally required.

14

21458.

15

original hearing.

16

indicate that it had substantively changed its view, or had

17

decided that Brodheim was no longer suitable for parole.

18

the decision was vacated solely because it was held at an earlier

19

date than was found to be legally required.

20

Id.

Id. at BPH

The board re-instated the 3-year deferral of the
Id.

The board did not state or otherwise

Rather,

On April 20, 2011, Brodheim filed a petition to advance his

21

hearing.

22

upon the transcript from the December 10, 2011 hearing at which

23

the Board had already found that he was suitable for parole.

24

On May 11, 2011, the Board “Summarily Denied” Brodheim’s

25

petition, on the boilerplate grounds that there was “[n]o

26

evidence of new information or a change in circumstances

27

warranting further review.”

28

Id. at BPH 21462.

Brodheim relied, among other things,

Id. at BPH 21463.

From the Brodheim example, the court infers that the
42

Id.

1

Advanced Hearing process requires the inmate to make a showing

2

beyond simple “suitability” for parole.

3

in addition, show “new information or a change in circumstances”

4

from the last parole denial.

5

Rather, the inmate must,

The inference is supported by the Board’s training manual

6

and instructions to decision-makers.

7

No. 341-8).

8

“preliminary review,” the prisoner must make the assertion that

9

there are “changed circumstances” or “new information.”

See Exhibit 40 (ECF

The manual makes clear that in order to pass

Id., at

10

BPH-36.

11

survive summary denial, and the Board go on to determine whether

12

those changed circumstances or new information establish whether

13

additional incarceration is required.

14

Only once this assertion has been made does the petition

See id.

Examples of the “change in circumstances” or “new

15

information” that would enable a prisoner to avoid summary denial

16

are having updated or stable parole plans, job offers, vocational

17

or educational certificates, completion of self help and/or drug

18

or other treatment programs, or changed outcome of disciplinary

19

actions.

20

this list is stated to be not exclusive, it does appear to

21

consist of things in a different category than, for example, the

22

mere passage of an additional year of incarceration.35

See Exhibit 42 (ECF No. 341-10) at BPH-33.

Although

23
35

24
25
26
27
28

As another example, J. Kyne was denied parole on June 18, 2009.
Exh. 45 (binder). On August 9, 2010, he filed a PTA. Submitted
with the PTA was a large volume of documentation that, even under
the most skeptical and jaundiced eye, clearly presents new
information and changed circumstances that addressed his
suitability for parole (although of course, they do not compel a
conclusion one way or another). His PTA was summarily denied, on
the grounds that it failed to present new information or changed
circumstances. There is no other explanation for the summary
43

1

(2) T. Nguyen: The Next Panel Should Decide.

2

In another set of examples, the decision-maker made no

3

finding on whether the prisoner had shown a reasonable likelihood

4

that further incarceration was not needed, and therefore the next

5

parole hearing should be advanced, even though that was the only

6

question he had to decide.36

7

was a question for the next parole review panel.

8

decision-maker denied the prisoner the opportunity to get to the

9

next review panel until the original deferral period had elapsed.

10
11

Rather, they determined that this
Yet, the

These examples tend to show that some PTA decision-makers viewed
denial.

12
13
14
15
16

Similar results are: J. Ferioli (Exh. 80 at Exh Y 29405 (at full
review, the sole reason for denying the PTA was that, while the
prisoner was doing well, “there is insufficient reason/change of
circumstances to warrant advancing the date of the suitability
hearing, as such”); C. Chruniak (Exh. 80 at Y 27915) (at full
review, decision-maker denies PTA because although the prisoner
is doing well, he demonstrated “neither new information nor
changed circumstances”).

17
18

36

In denying the petition, the decision-maker checks the box next
to the following paragraph:

19
20
21
22
23
24
25
26
27

Denied, after conducting a review of the case
factors and considering the new information
of change in circumstances, the prisoner did
not establish a reasonable likelihood that
consideration of the public and victim’s
safety does not require the additional
incarceration.
See, e.g. Exh. 80 at Exh Y 25932. However, the Board appears to
concede that this boilerplate language does not actually give the
reason the advance petition was denied. See RT 267 (“a lot of
decisions were going back to inmates … saying summarily denied,
and it didn’t give enough reason to explain our decision … [s] we
expanded that”). The actual reason is given in the “Comments”
section.

28
44

1

certain issues as categorically exempt from the PTA process, and

2

therefore could only be decided by panels after the deferral

3

period imposed by the last panel.

4

categorical exemption in the law or regulations.

5

the PTA process was illusory.

6

In fact, there is no such

T. Nguyen’s advance hearing petition, for example, made it

7

past the preliminary review stage.

8

(full review ordered on February 21, 2012).

9

stage, the petition was denied.

10

In such cases,

See Exh. 80 at Exh Y 19163
At the full review

Id. (April 25, 2012).

The

reason for the denial was:

11

Prior panel’s primary factor that tend to
show unsuitability … was his past and present
mental state and attitude towards the crime.
These concerns need to be address[ed] by the
panel and will be at next hearing. All other
areas continue to be positive.

12
13
14

Id. at 19164.37
15
(3) M. Killingsworth: Comprehensive Risk Assessment.
16
17

A structural barrier to a meaningful PTA process is the

18

Comprehensive Risk Assessment (“CRA”).

19

decision-maker must consider in determining whether to grant an

20

advance hearing petition (RT 284).

21

five (5) years.

22

Subsequent Risk Assessment (“SRA”) can be made before any

23

regularly scheduled hearing.

24

First, the SRA “will not include an opinion regarding the

25

37

26
27

The CRA is one factor the

The CRA is completed every

Cal. Code Regs. tit. 15, § 2240(b).

A

There are two problems here.

Similar denials occurred in the other cases: K.E. Woods
(Exh. 80 at Y 25932) (last panel’s concerns must be evaluated “by
a future panel”); K. Blackman (Exh. 80 at Y 11362) (“the
[panel’s] concerns that not enough time has elapsed since his
last CDC 115 and counseling chronos has not changed”).

28
45

1

inmate’s potential for future violence because it supplements,

2

but does not replace, the Comprehensive Risk Assessment.”

3

§ 2240.

4

to be issued for a PTA.

5

prepared in advance of a hearing, not a request for a hearing.

6

Plaintiffs therefore argue that “any prisoner who is denied

7

parole in part because of the CRA has no chance of obtaining an

8

advanced hearing.”

9

n.37.

10

Id.,

Second, there is no authorization for the CRA or the SRA
Under the regulations, these reports are

Plaintiff’s Summation (ECF No. 517) at 25

The undisputed examples identified by plaintiffs support

11

this assertion.

12

petition made it past the preliminary review stage.

13

at Exh Y 17970 (full review ordered on June 28, 2011).

14

full review stage, the petition was denied, for the following

15

reasons:

16
17
18
19

For example, M. Killingsworth’s advance hearing
See Exh. 80
At the

I/M Killingsworth is to be commended for his
additional/continued participation in self
help
programming
and
disciplinary
free
behavior.
The panel’s concerns with the
psychiatric evaluation completed by Dr. Smith
in August 2008 indicating that P presents a
moderate risk of violence are still valid.

20

Id. at 17971.

21

question presented, that is, whether considerations of public and

22

victim safety indicate that the prisoner should be granted an

23

advanced hearing.

24

finding that the concerns about the prisoner’s “moderate risk of

25

violence” were still valid.

26

This denial does appear to address squarely the

The decision-maker denied the petition,

However, the psychiatric evaluation it relies upon,

27

addressing risk assessment, is completed only every five years,

28

so there would appear to be no way for the prisoner to show that
46

1

circumstances have changed.

2

request for a hearing, the prisoner does not even have the right

3

to obtain a supplemental risk assessment report.38

Moreover, since this is only a

4

(4) A. Mendoza: Translation Services Unavailable.

5

Another structural barrier to making the PTA anything other

6

than an illusory benefit is the apparent inability of the

7

decision-makers to get documents translated in time for them to

8

rule on the petition.

9

petition made it past the preliminary review stage.

For example, A. Mendoza’s advance hearing
See Exh. 80

10

at Exh Y 32900 (full review ordered on June 28, 2011).

11

full review stage, the petition was denied because some of the

12

documents the prisoner submitted were in Spanish, and the

13

decision-maker therefore could not determine whether the standard

14

had been met until the documents were translated.

15

32901.

16

At the

Id. at Y

This situation appears to contradict the testimony that

17

prisoners who need assistance receive such assistance in

18

preparing their petitions to advance.

19

no translation services are provided at the PTA stage, then the

20

PTA process is illusory for those prisoners who communicate only

21

38

22
23
24
25
26
27

(See RT 273.)

If in fact,

Other examples of this result are: V. Pleitez (Exh. 80 at
Y 20606) (at full review, decision-maker states, “[i]f new CRA is
found reschedule inmate for full review”); W. Crawford (Exh. 80
at Y 13359) (at full review, decision-maker states the prisoner
“submitted nothing to document any change in these important
areas” identified in the CRA); B. Jimenez (Exh. 80 at Y 11616)
(at full review, decision-maker states “[a] new psychiatric
evaluation has not been completed; hereby reflecting no change to
the major reasons for the unsuitability determination,” namely,
the risk assessment); J. Stevenson (Exh. 80 at Y 24063) (at full
review, advance hearing is denied based upon “unresolved issues”
identified by the CRA).

28
47

1

in Spanish.39

2

C.

3

The evidence shows that the advance hearing process

Conclusions.

4

sometimes works and sometimes does not work.

5

appears to deny advance hearings where there is good cause to

6

deny them.

7

It certainly

However, the PTA appears to deny advance hearings even to

8

those who facially appear to deserve them.

9

that the Board interprets Proposition 9 to impose a substantive

The evidence shows

10

new “changed circumstances or “new information” requirement on

11

prisoners, separate and apart from the requirement that they show

12

suitability.

13

whether to even grant an advance hearing, even though no new CRA

14

can be done earlier than five years from the last one, and no SRA

15

is available for a hearing request, like the PTA.

16

apparently fails to provide translation services for the PTA

17

process.

18

simply rely on the last panel’s assessments about whether the

19

prisoner is ready for parole, and deny advance hearings because

20

they think another panel should decide the question.

21
22

The PTA decision-makers rely on CRA’s to determine

The board

Finally, the PTA decision-makers from time to time,

Thus, these PTA process’s failings appear to be built in to
the PTA system, rather than simply resulting from occasional

23
39

24
25
26
27

Plaintiffs also complain that inmates are denied parole because
of “classification scores.” ECF No. 517 at 28-29. However, this
appears to have no bearing on the value of the PTA process.
Classification scores apparently arise from the inmate’s behavior
in prison. If a prisoner is denied parole because he has spent
the first 20 years in prison conducting gang activities, and is
classified pursuant to those activities, that is a matter
unrelated to the validity of the PTA process.

28
48

1

errors.

2

many cases, to afford inmates a fair opportunity to obtain an

3

advance hearing.

4

protect inmates from the ex post facto problems inherent in

5

Proposition 9.

The PTA process is structured such that it fails, in

6

All told, the PTA process is not sufficient to

III. PROPOSITION 89

7

A.

8

62. On November 4, 1988, California voters approved

9

Findings of Facts.

Proposition 89, which granted the Governor the ability to reverse

10

the decisions of the parole board regarding prisoners convicted

11

of murder.

12
13

1988 Cal. Legis. Serv. Prop. 89

(West).

63. Proposition 89 is neutral on its face, allowing the
Governor to reverse parole grants and denials alike.

14

Id.

64. However, its intent was stated to be to give the

15

Governor “the power to block the parole of convicted murderers.”

16

Exh. 72 (ECF No. 428-9) (Proposition 89 Ballot Pamphlet (Argument

17

in Favor of Proposition 89)) at 46 (admitted per PTO).

18

Intending to “correct a weakness in the state’s parole system,”

19

Proposition 89 would, according to its proponents, “provide an

20

extra measure of safety to law-abiding citizens by giving the

40

21
40

22
23
24
25
26

In California, ‘[b]allot summaries … in the Voter Information
Guide” are recognized sources for determining the voters’
intent.’” Perry v. Brown, 671 F.3d 1052, 1090 n.25 (9th Cir.),
vacated on standing grounds sub nom., Hollingsworth v. Perry, 570
U.S. ___, 133 S. Ct. 2652 (2013); Hodges v. Superior Court, 21
Cal. 4th 109, 114 & 115-18 (1999) (“the voters should get what
they enacted, not more and not less. In this matter, therefore,
we are obliged to interrogate the electorate’s purpose, as
indicated in the ballot arguments and elsewhere”).

27
28
49

1

Governor the authority to block the parole of criminals who still

2

pose a significant threat to society.”

3

to Argument Against Proposition 89).

4

Exh. 72 at 47 (Rebuttal

65. In 2007, Governor Schwarzenegger reviewed 172

5

decisions by the Board granting parole; the Governor reversed 115

6

(66.9%) of those decisions, he referred 18 (10.5%) to the Board

7

to review the cases en banc, he modified 2 decisions (1.1%), and

8

he declined to review 37 decisions (21.5%).

9

Schwarzenegger reviewed 170 decisions by the Board granting

In 2008, Governor

10

parole; the Governor reversed 81 (47.6%) of those decisions, he

11

referred 33 (19.4%) to the Board to review the cases en banc, he

12

affirmed 1 decision (0.6%), and he declined to review 55

13

decisions (32.4%).

14

decisions by the Board granting parole, the Governor reversed 285

15

(62.8%) of those decisions, he referred 49 (10.8%) to the Board

16

to review the cases en banc, he modified 2 decisions (0.4%), and

17

he declined to review 118 decisions (26%).

18

Governor reviewed 503 decisions by the Board granting parole, the

19

Governor reversed 290 (57.7%) of those decisions, he referred 58

20

(11.5%) to the Board to review the cases en banc, he modified 3

21

decisions (0.6%), and he declined to review 152 decisions

22

(30.2%).

23

In 2009, the former Governor reviewed 454

In 2010, the former

UF ¶ 17.
66. Between January 2007 and December 2010, the

24

Governor referred 158 cases in which the Board had granted parole

25

to the prisoner back to the Board for en banc consideration;

26

following the referral for en banc consideration, 153 (97%) of

27

the cases resulted in the prisoners' release, either because the

28

en banc Board affirmed the grant of parole or the en banc Board
50

1

sent the matter to rescission but the panel voted not to rescind.

2

UF ¶ 18.

3

67. During the review process, the chief counsel (or

4

designee) prepares a written report ("Executive Case Summary" or

5

"ECS") on each case in which parole has been granted, which

6

includes: (1) an overview of the prisoner's central prison files

7

as well as the evidence and the findings from the hearing that

8

resulted in a parole grant; (2) information about the prisoner's

9

term as set by the panel that granted parole; and (3) the

10

calculated release date for the prisoner based on that term.

11

¶ 3.

12

UF

68. The evidence presented at trial shows that

13

Proposition 89 was carried out consistent with its intent.

14

Plaintiffs’ Exhibit 67 (admitted over objection at RT 164), is a

15

summary listing of all grants of parole during the years 1999 to

16

2011, to life prisoners.

17

the time the parole grant came through, the inmate had already

18

served his life term, and could be paroled immediately, that is,

19

after finalization (120 days) and gubernatorial review (30 days).

20

Id.

21

RT 164-68.

“Release now” means that by

69. Exhibit 68 (admitted over objection at RT 170), is

22

a summary of Exhibit 67, without the names and individual

23

information.

24

the governor’s modifications of life parole grants.

25

(admitted at RT 175), is a summary of every parole decision that

26

the Governor reviewed.

27
28

70.

Exhibit 69 (admitted at RT 205), is a summary of
Exhibit 77

Executive Case Summaries are prepared when the

parole board grants parole to a life prisoner.
51

RT 206 (Knox

1

testimony).

2

an example of such a summary.

3

Exhibit 71 (admitted over objection at RT 207), is

71. In 1991, the Governor requested that all parole

4

grants involving murder convictions be forwarded to the

5

Governor’s office for review.

6

There is no evidence that the governor requested the review of

7

any parole denials, nor that there was any process to get such

8

decisions to the governor for review.

9

Exh. 75 (admitted at RT 176).

72. Of the parole grant reversals, most were of

10

prisoners who were already beyond their “life terms,” so that but

11

for Proposition 89 and the Governor’s reversal, they would have

12

been released already.

13

See Exh. 67.41

73. The Executive Reports on Parole Review Decisions

14

reflect that, for the 21-year period from 1991 through 2011, the

15

Governor reported reviewing only three decisions denying parole,

16

affirming all three denials.

17

Sanders, Nov. 2002, Gov. Davis), 517 (P. Agrio, Apr. 2003, Gov.

18

Davis), 893 (M. Lindley, Dec. 2003, Gov. Schwarzenegger).

19

UF ¶ 23.

See Exh. A at 383 (D.

74. The Governor fulfills the reporting mandate of

20

Proposition 89 by annually filing the "Executive Report on Parole

21

Review Decisions for the State of California."

22

UF ¶ 24.

75. The Executive Reports show that in the twenty-year

23

period from 1991 through 2010, the Governor reversed more than 70

24

percent of the grants of parole made to prisoners with murder

25
26
27

41

Plaintiffs say 90% were beyond their release dates (ECF No. 517
at 42), a percentage defendant does not dispute. The court has
not done the count and calculation, but the raw numbers are
available in Exhibit 67.

28
52

1

convictions.

2

B.

3

The facts are essentially undisputed.

UF ¶ 25.

Conclusions
The court reviews,

4

once again, the law of ex post facto, but in light of this

5

evidence.

6

has created a “significant risk” of longer incarceration for life

7

prisoners whose crimes were committed before the law’s passage.

8

I find that it does.

9
10

The inquiry for the court is whether Proposition 89

1.

Is plaintiffs’ challenge foreclosed by Biggs?

Defendants assert that plaintiffs’ ex post facto challenge

11

to Proposition 89 fails as a matter of law.

12

They argue that Supreme Court and Ninth Circuit precedent

13

forecloses plaintiffs’ challenge.

14

rejected defendants’ argument to the degree it is based upon

15

Collins v. Youngblood, 497 U.S. 37 (1990), Mallett v. North

16

Carolina, 181 U.S. 589 (1901), Dobbert v. Florida, 432 U.S. 282

17

(1977), Garner v. Jones, 529 U.S. 244 (2000), and Johnson v.

18

Gomez, 92 F.3d 964 (9th Cir. 1996), cert. denied, 520 U.S. 1242

19

(1997).

20

Cal. 2013) (Karlton, J.).

21

evidence presented at trial, the court sees no basis for changing

22

its views.

23

ECF No. 516 at 18.

This court has already

See Gilman v. Brown, 2013 WL 1904424 at *11-*15 (E.D.
Reviewing those cases in light of the

This court concluded that under Johnson v. Gomez, no facial

24

challenge to Proposition 89 can succeed in light of the cited

25

cases, as the new law “simply removes final parole decision-

26

making authority from the BPT and places it in the hands of the

27

governor.”

28

challenge was only one route plaintiffs had available to

Johnson v. Gomez, 92 F.3d at 967.

53

The facial

1

challenge Proposition 89.

2

plaintiffs could nevertheless succeed on the merits of their

3

challenge if they:

4

can “demonstrate, by evidence drawn from
[Proposition 9’s] practical implementation …,
that its retroactive application will result
in a longer period of incarceration than
under the [prior law].”

5
6
7

Gilman, 638 F.3d at 1106 (quoting Garner, 529 U.S. at 255).42

8
9

The Ninth Circuit has made clear that

Defendants argue that the possibility of an “as-applied”
challenge, expressly recognized by the Ninth Circuit in Gilman,

10

has now been foreclosed, as matter of law, by Biggs v. Secretary

11

of the California Dept. of Corrections and Rehabilitation, 717

12

F.3d 678 (9th Cir. 2013), a habeas case decided under the

13

Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28

14

U.S.C. § 2254(d).

15

levels.

16

Defendants’ argument appears wrong on several

First, the argument simply assumes that Biggs overruled

17

Gilman.

18

each other, at least not in the absence of intervening Supreme

19

Court, en banc or statutory authority.

20

F.2d 1074, 1077 (9th Cir. 1984).

21

intervening authority.

22

overrule Gilman.

23

reiterate that:

24

In fact, panels of the Ninth Circuit do not overrule

Montana v. Johnson, 738

This court knows of no such

Second, Biggs does not even purport to

Indeed, its only reference to Gilman is to

in Gilman v. Schwarzenegger, we said that the
plaintiffs could succeed on their Ex Post

25
42

26
27

See Gilman, 2013 WL 1904424 at *15-15 (plaintiffs are still
entitled to go to trial so that they could make an “as-applied”
challenge to the law, “based upon the ‘actual effect’ of
Proposition 89 on this class of plaintiffs”) (citing Garner).

28
54

1

Facto Clause claim through an evidentiary
demonstration that retroactive application of
the change in law in question would result in
increased incarceration time, citing Garner.
638 F.3d 1101, 1106 (9th Cir. 2011).

2
3
4

Biggs, 717 F.3d at 692.

Third, Biggs distinguishes Gilman on the

5

very point that defendants say is of “no moment,” namely, that

6

Biggs is an AEDPA case, while Gilman is a Section 1983 case.

7

(“But Gilman was a § 1983 case, id. at 1105, and thus contained

8

no holding about clearly established federal law”).

9

Biggs was an AEDPA case, the question presented was not whether

Id.

Because

10

plaintiff could make an “as-applied” challenge to Proposition 89.

11

The question was whether the California Supreme Court had failed

12

to apply “clearly established federal law” by not subjecting

13

Proposition 89 to an as-applied analysis.

14

such analysis was required by clearly established Supreme Court

15

law:

16
17
18
19
20
21

Biggs found that no

The Supreme Court did not clearly establish
in Garner that an as-applied analysis of the
significance
of
the
risk
of
increased
punishment is required with regard to the
retroactive application of a change in law
like California's gubernatorial review of
parole
board
decisions.
The
California
Supreme Court's decision in Rosenkrantz was
thus not an unreasonable application of
clearly established federal law, and neither
was the Superior Court's decision in Biggs'
case that relied on it.

22
23

Biggs, 717 F.3d at 693.

24

that such an analysis is now foreclosed in a Section 1983 case.

25

2.

That is not at all the same as saying

Proposition 89 violates the Ex Post Facto Clause.

26

Turning to the evidence presented at trial, it is clear that

27

Proposition 89, in actual practice, is not the “neutral” transfer

28

of final decision-making authority from one decision-maker to
55

1

another.

2

scales against parole.

3

Proposition 89 has done this, and there is no evidence that this

4

practice has stopped.

5

law to review parole decisions to ensure that they are accurate

6

and fair, they appear to have no such concern about decisions

7

that deny parole.

8
9

In practice the governors have used it to tip the
Every governor since passage of

Thus, while the governors could use the

Prior to the new law, the sentence faced by class members
was life with the possibility of parole.

The parameters for

10

determining the grant or denial of parole was fixed in the

11

statutes, and the length of the “life term” was fixed in the

12

Board’s regulations.

13

the amount of time class members would spend in prison by

14

creating a new mechanism for withholding parole, namely, the

15

governor’s veto.

16

governors have used the new law to withdraw the possibility of

17

parole from most class members.

18

simply switch the final decision-making authority from the Board

19

to the Governor.

20

Governor should put his finger on the scale to correct a

21

“weakness” they perceived to exist when the Board made the final

22

decision, namely, too many murderers being paroled, too soon.

23

The governors have carried out the people’s will by putting their

24

fingers on the scale and reversing 70% of parole grants for these

25

class members.

26

The new law was passed in order to lengthen

True to the law’s intentions, California

In short, the voters did not

They switched it with an instruction that the

There is no evidence presented here that the plaintiffs were

27

ever entitled to a liberal application of the parole rules.

28

However, they have always been entitled to a neutral
56

1

interpretation of those rules.

2

the final decision, or the governor, or anyone else, they are

3

required to apply the rules as directed by the statute and the

4

California Constitution.

5

the scale to obtain a result of longer prison sentences,

6

regardless of the inmate’s showing of suitability, they failed to

7

apply the statute in a neutral manner.

8

violation of California law is not for this court to say.

9

However, it is a plain violation of the ex post facto clause as

That is, whether the Board made

When the governors put their fingers on

Whether or not this is a

10

to those to inmates whose crimes were committed before

11

Proposition 89.

12

There is no claim here that California cannot instruct the

13

Governor to keep certain people in prison longer, or to place his

14

finger on the scale when deciding the question.

15

states are free to experiment with parole however they see fit.

16

However they may not experiment in such a way as to increase the

17

quantum of punishment for those who committed their crimes before

18

the new punishment went into effect.

In general,

19

IV. REMEDY

20

Plaintiffs’ surviving requests are for (a) a declaration

21

that defendants have denied plaintiffs’ rights under the Ex Post

22

Facto Clause of the U.S. Constitution, and (b) injunctive relief.

23

The court accordingly DECLARES that Proposition 9, as

24

implemented by the Board, violates the ex post facto rights of

25

the class members.

26

The court further DECLARES that Proposition 89, as

27

implemented by the governors of California, violates the ex post

28

facto rights of the class members.
57

1

The court orders injunctive relief as follows:

2

1.

Going forward, the Board shall apply Cal. Penal Code

3

§ 3041.5, as it existed prior to Proposition 9, to all class

4

members.

5

hearing annually, unless the Board finds, under former

6

Section 3041.5(b) that a longer deferral period is warranted.

7

2.

That is, all class members are entitled to a parole

The Governor of California shall refrain from imposing

8

longer sentences on class members than are called for by

9

application of the same factors the Board is required to

10

consider, as provided for by Proposition 89.43

11
12

This order is stayed for 31 days, and goes into effect
immediately thereafter, unless a timely appeal is filed.

13

IT IS SO ORDERED.

14

DATED:

February 27, 2014.

15
16
17
18
19
20
21
22
23
43

24
25
26
27
28

Defendants assert that no injunction is warranted because there
is no evidence that the current Governor is violating the Ex Post
Facto Clause, or that future governors will do so. The only
evidence before the court however, is what all governors thus far
have done, and there is no evidence of any change.
All other requests for relief are denied as moot (because based
upon dismissed claims), or are beyond the power of this court to
grant.
58