Gilman v. Schwarzenegger

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD M. GILMAN, JAMES 

MASONER, RICHARD W. BROWN,

CHRIS FOWLER, EDWARD STEWART,

MARIO MARQUEZ, RICHARD LEWIS,

and GLORIA OLSON,

Plaintiffs-Appellees,

v. No. 10-15471

D.C. No.

ARNOLD SCHWARZENEGGER,

Governor of California; ROBERT  2:05-cv-00830-

DOYLE, Chairman of the Board of LKK-GGH

Parole Hearings; ALL OPINION

COMMISSIONERS OF THE BOARD OF

PAROLE HEARINGS; ALL DEPUTY

COMMISSIONERS OF THE BOARD OF

PAROLE HEARINGS WHO HEAR LIFER

CASES,

Defendants-Appellants.



Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted

August 12, 2010—San Francisco, California

Filed December 6, 2010

Before: Susan P. Graber, Consuelo M. Callahan, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

19495

19498 GILMAN v. SCHWARZENEGGER

COUNSEL

Terence J. Cassidy, Michael W. Pott (argued), and Thomas L.

Riordan, Porter Scott, Sacramento, California, for the

defendants-appellants.

Daniel J. Broderick, Federal Defender, and David Porter and

Monica Knox (argued), Assistant Federal Defenders, Sacra-

mento, California, for the plaintiffs-appellees.

OPINION

BEA, Circuit Judge:

Plaintiffs are eight California life-term prisoners who repre-

sent a class of similarly situated California prisoners. They

allege that Proposition 9, the “Victims’ Bill of Rights Act of

2008: Marsy’s Law,” which modifies the availability and fre-

quency of parole hearings, violates the Ex Post Facto Clause

of the United States Constitution. The district court held that

Plaintiffs were likely to succeed on the merits of their claim.

We hold that the district court abused its discretion and, there-

fore, reverse.

The California Prison Parole Scheme

The California Board of Parole Hearings (“Board”) has

“the power to allow prisoners imprisoned in the state prisons

GILMAN v. SCHWARZENEGGER 19499

. . . to go upon parole outside the prison walls and enclo-

sures.” Cal. Penal Code § 3040 (2010). California prisoners

who are serving sentences of life with the possibility of parole

are not eligible for parole until they have served the greater

of a term of seven years or “[a] term as established pursuant

to any other provision of law that establishes a minimum term

or minimum period of confinement.” Id. § 3046(a).

The Board is required to conduct a prisoner’s first parole

hearing one year prior to the prisoner’s minimum eligible

parole release date. Id. § 3041(a). At the hearing, a panel—

two or more commissioners or deputy commissioners of the

Board—must first determine whether the prisoner is “suit-

able” for parole. See id. § 3041(b). The panel must find a pris-

oner suitable for parole and set a parole 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 incarcera-

tion for this individual, and that a parole date, there-

fore, cannot be fixed at this meeting.

Id. The panel’s “fundamental consideration in parole deci-

sions is public safety.” In re Lawrence, 190 P.3d 535, 549

(Cal. 2008). “[T]he core determination of ‘public safety’ . . .

involves an assessment of an inmate’s current dangerous-

ness.” Id.1 The Governor may review and affirm, modify, or

reverse a panel’s suitability determination. Cal. Const. art. V,

§ 8(b); Cal. Penal Code § 3041.2. But, the Governor’s review

must be based on the same factors the Board is required to

consider. Cal. Const. art. V, § 8(b).

1

In California, “some evidence” of future dangerousness is required to

deny parole. Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010) (en

banc).

19500 GILMAN v. SCHWARZENEGGER

If the panel determines that the prisoner is unsuitable for

parole at the time of the hearing, the panel must set the date

for the prisoner’s next parole hearing. Cal. Penal Code

§ 3041.5(a)(6). At the next hearing, a panel determines

whether intervening changes have rendered the prisoner suit-

able for parole. Id. § 3041.5(c).

The Deferral Process Before and After Proposition 9

Before Proposition 9 was enacted, the length of the deferral

was determined by California Penal Code § 3041.5(b)(2).

That section provided:

The board shall hear each case annually . . . , except

the board may schedule the next hearing no later

than the following:

(A) Two years after any hearing at which

parole is denied if the board finds that it is

not reasonable to expect that parole would

be granted at a hearing during the following

year and states the bases for the finding.

(B) Up to five years after any hearing at

which parole is denied if the prisoner has

been convicted of murder, and the board

finds that it is not reasonable to expect that

parole would be granted at a hearing during

the following years and states the bases for

the finding in writing.

Cal. Penal Code § 3041.5(b)(2) (2008) (emphasis added). In

2007, 35% of prisoners who were denied parole received

deferrals of one year, 32% received deferrals of two years,

and 33% received deferrals of three years or more. In 2008,

these percentages were 40, 33, and 27, respectively.2

2

The 2008 statistics do not include data from parole hearings conducted

after December 10, when Proposition 9 was implemented.

GILMAN v. SCHWARZENEGGER 19501

Proposition 9 significantly changed the law governing

deferral periods.3 The relevant changes were codified in Cali-

fornia Penal Code § 3041.5(b)(3) and provide:

The board shall schedule the next hearing, after

considering the views and interests of the victim, as

follows:

(A) Fifteen years after any hearing at which

parole is denied, unless the board finds by

clear and convincing evidence that the

criteria relevant to the setting of parole

release dates enumerated in subdivision (a)

of Section 3041 are such that consideration

of the public and victim’s safety does not

require a more lengthy period of incarcera-

tion for the prisoner than 10 additional

years.

(B) Ten years after any hearing at which

parole is denied, unless the board finds by

clear and convincing evidence that the

criteria relevant to the setting of parole

release dates enumerated in subdivision (a)

of Section 3041 are such that consideration

of the public and victim’s safety does not

require a more lengthy period of incarcera-

tion for the prisoner than seven additional

years.

(C) Three years, five years, or seven years

after any hearing at which parole is denied,

because the criteria relevant to the setting

of parole release dates enumerated in subdi-

vision (a) of Section 3041 are such that

3

No changes were made to the basis for determining suitability or the

Governor’s role in the parole process.

19502 GILMAN v. SCHWARZENEGGER

consideration of the public and victim’s

safety requires a more lengthy period of

incarceration for the prisoner, but does not

require a more lengthy period of incarcera-

tion for the prisoner than seven additional

years.

Cal. Penal Code § 3041.5(b)(3) (2010) (emphasis added).

The most significant changes are as follows: the minimum

deferral period is increased from one year to three years, the

maximum deferral period is increased from five years to fif-

teen years, and the default deferral period is changed from

one year to fifteen years. See id. Further, the burden to impose

a deferral period other than the default period increased.

Before Proposition 9 was enacted, the deferral period was one

year unless the Board found it was unreasonable to expect the

prisoner would become suitable for parole within one year.

Cal. Penal Code § 3041.5(b)(2) (2008). After Proposition 9,

the deferral period is fifteen years unless the Board finds by

clear and convincing evidence that the prisoner will be suit-

able for parole in ten years, in which case the deferral period

is ten years. Cal. Penal Code § 3041.5(b)(3)(A)-(B) (2010). If

the Board finds by clear and convincing evidence that the

prisoner will be suitable for parole in seven years, the Board

has discretion to set a three-, five-, or seven-year deferral

period. Id. § 3041.5(b)(3)(B)-(C).

Proposition 9 also amended the law governing parole defer-

ral periods by authorizing the Board to advance a hearing

date. The Board may exercise its discretion to hold an

advance hearing sua sponte or at the request of a prisoner.

“The board may in its discretion . . . advance a hearing . . .

to an earlier date, when a change in circumstances or new

information establishes a reasonable likelihood that consider-

ation of the public and victim’s safety does not require the

additional period of incarceration of the prisoner . . . .” Id.

§ 3041.5(b)(4). Also, a prisoner may request an advance hear-

GILMAN v. SCHWARZENEGGER 19503

ing by submitting a written request that “set[s] forth the

change in circumstances or new information that establishes

a reasonable likelihood that consideration of the public safety

does not require the additional period of incarceration.” Id.

§ 3041.5(d)(1). A prisoner is limited to one such request every

three years. Id. § 3041.5(d)(3). Although the minimum defer-

ral period is three years, there is no minimum period the

Board must wait before it holds an advance hearing. See id.

§ 3041.5(b)(4).

Plaintiffs filed suit against the state in federal court under

42 U.S.C. § 1983. The only claim relevant to this appeal is

Plaintiffs’ claim that Proposition 9 violated their rights under

the Ex Post Facto Clause of the United States Constitution.

Plaintiffs filed a motion for a preliminary injunction to pre-

vent the Board from enforcing Proposition 9’s amended defer-

ral periods.4 On February 4, 2010, the district court granted

Plaintiffs’ motion for a preliminary injunction. On March 3,

2010, the state timely appealed. On April 7, 2010, the district

court entered an order staying the preliminary injunction

solely as to Plaintiff Gilman.

I

[1] “A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7, 24-25 (2008). “A preliminary

injunction is an ‘extraordinary and drastic remedy’; it is never

awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90

(2008) (citations omitted).

4

Because class certification was on appeal, the motion for preliminary

injunction was evaluated and granted only as to the named Plaintiffs. The

district court’s order which certified the class was subsequently affirmed

on appeal.

19504 GILMAN v. SCHWARZENEGGER

This court reviews for an abuse of discretion a district

court’s decision to grant or deny a preliminary injunction.

Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d

644, 651 (9th Cir. 2009). A two-part test is used to determine

whether the district court abused its discretion. United States

v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc).

First, this court must “determine de novo whether the [dis-

trict] court identified the correct legal rule to apply to the

relief requested.” Id. at 1262. A district court necessarily

abused its discretion if it applied the incorrect legal standard.

Id. at 1261. Second, if the district court applied the correct

legal standard, this court will reverse only when “the [district]

court’s application of the correct legal standard was (1) illogi-

cal, (2) implausible, or (3) without support in inferences that

may be drawn from the facts in the record.” Id. at 1262 (inter-

nal quotation marks omitted).

II

[2] “The States are prohibited from enacting an ex post

facto law.” Garner v. Jones, 529 U.S. 244, 249 (2000) (citing

U.S. Const. art. I, § 10, cl. 1).5 “One function of the Ex Post

Facto Clause is to bar enactments which, by retroactive oper-

ation, increase the punishment for a crime after its commis-

sion.” Id. Although retroactive changes in laws governing

parole of inmates may violate the Ex Post Facto Clause, “not

every retroactive procedural change creating a risk of affect-

ing an inmate’s terms or conditions of confinement is prohib-

ited.” Id. at 250. A retroactive procedural change violates the

Ex Post Facto Clause when it “creates a significant risk of

prolonging [an inmate’s] incarceration.” Id. at 251 (emphasis

added). A “speculative” or “attenuated” risk of prolonging

incarceration is insufficient to establish a violation of the Ex

Post Facto Clause. Cal. Dep’t of Corr. v. Morales, 514 U.S.

499, 509 (1995). Thus, Plaintiffs cannot succeed on the merits

5

The Ex Post Facto Clause applies to the states directly: “No State shall

. . . pass any . . . ex post facto Law . . . .” U.S. Const. art. I, § 10, cl. 1.

GILMAN v. SCHWARZENEGGER 19505

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 “demon-

strate, 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].”

Garner, 529 U.S. at 255.

In Morales, the Supreme Court upheld the constitutionality

of a statutory change to the laws that governed California

parole hearings. 514 U.S. at 501-02. There, the California leg-

islature decreased the frequency of parole hearings for

inmates convicted of multiple murders—from every year to

up to every three years. Id. at 503. The Court explained the

amendment did not increase the statutory punishment for any

particular offense, did not change the date of inmates’ initial

parole hearings, and did not change the standard by which the

Board determined whether inmates were suitable for parole.

Id. at 507. The amendment simply “introduced the possibility

that after the initial parole hearing, the Board would not have

to hold another hearing the very next year, or the year after

that, if it found no reasonable probability that respondent

would be deemed suitable for parole in the interim period.”

Id. This change did not violate the Ex Post Facto Clause

because it did not “produce[ ] a sufficient risk of increasing

the measure of punishment attached to the covered crimes.”

Id. at 509. The change “applie[d] only to a class of prisoners[,

murderers of multiple victims,] for whom the likelihood of

release on parole [was] quite remote,” id. at 510; the fre-

quency of an inmate’s hearings was not affected unless the

Board concluded “ ‘it [was] not reasonable to expect that

parole would be granted at a hearing during the following

years,’ ” id. at 511 (quoting Cal. Penal Code § 3041.5(b)(2)

(1982)); and the Board retained the authority to schedule

annual hearings, id. Thus, the decrease in the frequency of

parole hearings “create[d] only the most speculative and

attenuated possibility of producing the prohibited effect of

increasing the measure of punishment for covered crimes.” Id.

19506 GILMAN v. SCHWARZENEGGER

at 509. Further, inmates who received two- or three-year

deferrals were not prohibited from requesting advance hear-

ings based on changed circumstances that affected their suit-

ability for parole. Id. at 512.

In Garner, the Georgia Board of Pardons (“Board”)

changed the frequency of parole hearings from every three

years to up to every eight years for inmates serving life sen-

tences. 529 U.S. at 247. Jones, who was serving two life sen-

tences for murder, was denied parole at his first parole

hearing. Id. The Board scheduled his next parole hearing for

eight years later. Id. Jones sued the Board in federal court

under 42 U.S.C. § 1983 and alleged the Board’s amendment

violated the Ex Post Facto Clause. Id. at 248. The district

court granted summary judgment to the Board. Id. The Elev-

enth Circuit reversed because the amendment “ ‘seem[ed] cer-

tain’ to result in some prisoners serving extended periods of

incarceration.” Id. at 255. The Eleventh Circuit distinguished

the case from Morales because the change made by the Geor-

gia Board (1) applied to a broader class of inmates (i.e., all

life-term inmates), some of whom could expect to be paroled

at some point; (2) allowed the Board to delay subsequent

hearings for up to eight years, instead of three years; and (3)

did not require the Board to state the bases for finding there

was no reasonable probability the inmate would become suit-

able for parole before the next hearing. Id. at 249.

The Supreme Court reversed and remanded. Id. at 257. The

Court rejected Jones’s contention that the amendment elimi-

nated the Board’s exercise of discretion between scheduled

parole hearings on the basis that the changes to the frequency

of parole hearings were “qualified in two important respects.”

Id. at 254. “First, the law vests the Parole Board with discre-

tion as to how often to set an inmate’s date for reconsidera-

tion, with eight years for the maximum.” Id. The Board’s

policy provides that it will set the duration between parole

hearings at more than three years only if “it is not reasonable

to expect that parole would be granted during the intervening

GILMAN v. SCHWARZENEGGER 19507

years.” Id. “Second, the Board’s policies permit expedited

parole reviews in the event of a change in [an inmate’s] cir-

cumstance or where the Board receives new information that

would warrant a sooner review.” Id. (internal quotation marks

omitted). The Court concluded that the amendment “[did] not

by its own terms show a significant risk [of increasing Jones’s

punishment].” Id. at 255. Thus, Jones was required to “dem-

onstrate, by evidence drawn from the rule’s practical imple-

mentation by the [Board], that its retroactive application will

result in a longer period of incarceration than under the earlier

rule.” Id. Because there was insufficient evidence in the

record to determine whether the amendment “created a signif-

icant risk of increased punishment for [Jones],” the Court

remanded the case. Id. at 257.

[3] Here, as in Morales and Garner, Proposition 9 did not

increase the statutory punishment for any particular offense,

did not change the date of inmates’ initial parole hearings, and

did not change the standard by which the Board determined

whether inmates were suitable for parole. However, the

changes to the frequency of parole hearings here are more

extensive than the change in either Morales or Garner. First,

Proposition 9 increased the maximum deferral period from

five years to fifteen years. This change is similar to the

change in Morales (i.e., tripled from one year to three years)

and the change in Garner (i.e., from three years to eight

years). Second, Proposition 9 increased the minimum deferral

period from one year to three years. Third, Proposition 9

changed the default deferral period from one year to fifteen

years. Fourth, Proposition 9 altered the burden to impose a

deferral period other than the default period. Before Proposi-

tion 9, the deferral period was one year unless the Board

found it was unreasonable to expect the prisoner would be

suitable for parole in one year. After Proposition 9, the defer-

ral period is fifteen years unless the Board finds by clear and

convincing evidence that the prisoner will be suitable for

parole in ten years, in which case the deferral period is ten

years. If the Board finds by clear and convincing evidence

19508 GILMAN v. SCHWARZENEGGER

that the prisoner will be suitable for parole in seven years, the

Board has discretion to set the deferral period at three, five,

or seven years. Neither Morales nor Garner involved a

change to the minimum deferral period, the default deferral

period, or the burden to impose a deferral period other than

the default period.

[4] In both Morales and Garner, even after the changes to

the laws governing the frequency of parole hearings, the

Board retained discretion to set subsequent parole hearings at

the same frequency as it would have before the changes to the

law. But here, Proposition 9 eliminated the Board’s discretion

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

find by clear and convincing evidence that a prisoner would

be suitable for parole in one year. In the two years before

Proposition 9 was implemented, approximately two-thirds of

prisoners received deferral periods of one or two years. Now,

all prisoners will receive deferral periods of at least three

years. Further, the Board must set a fifteen-year deferral

period unless it finds by clear and convincing evidence that

the prisoner will be suitable for parole in ten years or less.

Thus, the changes required by Proposition 9 appear to

“create[ ] a significant risk of prolonging [Plaintiffs’] incar-

ceration.” Garner, 529 U.S. at 251.6

Even assuming, without deciding, that the statutory

changes decreasing the frequency of scheduled hearings

would create a risk of prolonged incarceration, the availability

6

This conclusion, however, assumes that more frequent parole hearings

produce more frequent grants of parole, rather than more frequent denials

of parole. It is true that more frequent hearings give a prisoner earlier

opportunities at being paroled; however, Plaintiffs produced no evidence

to support a finding that more frequent parole hearings result in more fre-

quent grants of parole. Indeed, the assumption that more frequent parole

hearings produce more frequent grants of parole is belied by the situations

of several of the named Plaintiffs in this case, who were subject to

repeated one- and two-year deferrals. These prisoners would not have

served shorter prison terms just because of more frequent parole hearings.

GILMAN v. SCHWARZENEGGER 19509

of advance hearings is relevant to whether the changes in the

frequency of parole hearings create a significant risk that pris-

oners will receive a greater punishment. Garner, 529 U.S. at

256-57;7 Morales, 514 U.S. at 512. In Morales, the prisoner

contended “there [was] some chance that the amendment

might . . . produce an increased term of confinement for some

prisoners who might experience a change of circumstances

that could render them suitable for parole during the period

between their hearings.” 514 U.S. at 512. The Court rejected

this contention and explained that, even if it assumed such a

change of circumstances, “there is no reason to conclude that

the amendment will have any effect on any prisoner’s actual

term of confinement, for the current record provides no basis

for concluding that a prisoner who experiences a drastic

change of circumstances would be precluded from seeking an

expedited hearing from the Board.” Id. Even though such

expedited hearings were not provided by statute or regulation,

the Court relied on the Board’s “practice” of “review[ing] for

merit any communication from an inmate asking for an earlier

suitability hearing.” Id. As the Court explained, “[a]n expe-

dited hearing by the Board . . . would remove any possibility

of harm” to prisoners who experienced changes in circum-

stances between hearings. Id. at 513 (emphasis added).

[5] Here, advance hearings are explicitly made available

7

In Garner, the Board adopted a policy that permitted inmates, “upon

a showing of a change in their circumstance or where the Board receives

new information, to receive expedited reconsideration for parole.” 529

U.S. at 248 (citation and internal quotation marks omitted). The Court held

that the Board’s internal policy statement was relevant to whether changes

to the frequency of parole hearings violated the Ex Post Facto Clause. Id.

at 256. As the Court explained, “policy statements, along with the Board’s

actual practices, provide important instruction as to how the Board inter-

prets its enabling statute and regulations, and therefore whether, as a mat-

ter of fact, the amendment to [the Board’s rules] created a significant risk

of increased punishment.” Id. “Absent a demonstration to the contrary,

[courts must] presume the Board follows its statutory commands and inter-

nal policies in fulfilling its obligations.” Id.

19510 GILMAN v. SCHWARZENEGGER

by statute: “The board may in its discretion . . . advance a

hearing . . . to an earlier date, when a change in circumstances

or new information establishes a reasonable likelihood that

consideration of the public and victim’s safety does not

require the additional period of incarceration of the prisoner.”

Cal. Penal Code § 3041.5(b)(4). The Board may exercise its

discretion to hold an advance hearing sua sponte or at the

request of a prisoner. A prisoner may request an advance

hearing by submitting a written request that “set[s] forth the

change in circumstances or new information that establishes

a reasonable likelihood that consideration of the public safety

does not require the additional period of incarceration.” Id.

§ 3041.5(d)(1). The Board’s decision to deny a prisoner’s

request for an advance hearing is subject to judicial review.

Id. § 3041.5(d)(2). Here, as in Morales, an advance hearing

by the Board “would remove any possibility of harm” to pris-

oners because they would not be required to wait a minimum

of three years for a hearing. 514 U.S. at 513.

Plaintiffs provide four reasons why the advance hearings do

not sufficiently reduce the risk of increased punishment for

prisoners. None of these reasons is persuasive.

Plaintiffs’ first reason is that the decision to grant a prison-

er’s request for an advance hearing is entirely discretionary.

Neither a change in circumstances nor new information

requires the Board to hold an advance hearing. However,

absent evidence to the contrary, this court must presume the

Board will exercise its discretion in a manner consistent with

the Ex Post Facto Clause. See Garner, 529 U.S. at 256

(“Absent a demonstration to the contrary, we presume the

Board follows its statutory commands and internal policies in

fulfilling its obligations.”). Plaintiffs have adduced no evi-

dence that the Board has denied a request for an advance

hearing where a prisoner has shown a change in circum-

stances or new evidence. In fact, Plaintiffs have adduced no

evidence that the Board has denied a request for an advance

hearing for any reason. Thus, this court must presume that the

GILMAN v. SCHWARZENEGGER 19511

Board will, upon request, schedule advance hearings for pris-

oners who become suitable for parole prior to their scheduled

hearings.

Plaintiffs’ second reason is that “there is no mechanism or

procedure in place for the Board to initiate a review or to

accept, consider or rule on a prisoner’s request [for an

advance hearing].” We are not persuaded. Section

3041.5(d)(1) allows a prisoner to request an advance hearing,

and § 3041.5(b)(4) allows the Board to advance a hearing

based on a change in circumstances or new information. Fur-

ther, in Morales, no statute or regulation provided for advance

hearings, yet the Court relied on the fact that the Board—the

same Board involved in this case—had a practice of review-

ing inmates’ requests for earlier parole hearings. 514 U.S. at

512. If the Board were able to review inmates’ requests for

advance hearings before such hearings were explicitly autho-

rized by statute, there is no reason to believe that the Board

is no longer capable of handling such requests. Indeed, just

the contrary is true now that statutory authorization has sup-

planted mere practice. Further, Plaintiffs have adduced no evi-

dence that the Board has denied or failed to respond to

requests for advance hearings.

[6] Plaintiffs’ third reason is that the district court con-

cluded that “there will necessarily be a delay between any

meritorious request for an advance hearing and the grant of

such hearing, and Plaintiffs contend, with some evidence, that

this delay will likely exceed a year.” This conclusion is not

supported by the evidence in the record. Plaintiffs rely in part

on the fact that the Board’s decision to deny parole does not

become final for four months. But Plaintiffs cite no authority

that requires a prisoner to wait until the Board’s decision is

final before he requests an advance hearing based on changed

circumstances or new information. Other steps may also delay

an advance hearing once a request has been made: the Board

must solicit the views of the victim or next of kin before it

grants a request for an advance hearing, Cal. Penal Code

19512 GILMAN v. SCHWARZENEGGER

§ 3041.5(b)(4), (d)(2); the Board must consider the merits of

the request, id. § 3041.5(b)(4); and, if the Board grants the

request, it must provide 90 days’ notice to the victim or next

of kin before it holds the hearing, id. § 3043(a)(1). But Plain-

tiffs fail to explain how these statutory requirements make it

“virtually impossible” for a prisoner to receive an advance

hearing within one year of the denial of parole—the previous

default deferral period. The speculative and attenuated risk

that an advance hearing will not be held within one year of a

request is insufficient to establish an ex post facto violation.

See Morales, 514 U.S. at 508-09.

Plaintiffs’ fourth reason is that they will be unable to estab-

lish changed circumstances or new information with respect

to static factors such as the circumstances of the commitment

offense or prior criminal history. Plaintiffs are correct that

those static factors will not change; but a prisoner’s suitability

for parole may change even though static factors remain

unchanged. For example, the passage of time is a change in

circumstances that may affect a prisoner’s suitability for

parole (i.e., the prisoner’s current dangerousness) even though

his prior criminal history has not changed. See Lawrence, 190

P.3d at 560 (holding that the passage of time is a factor the

Board must consider when it determines whether a prisoner is

currently dangerous and, thus, unsuitable for parole). Plain-

tiffs also contend that they will be unable to establish changed

circumstances or new information with respect to intangible

factors such as the failure to accept responsibility or the lack

of sufficient remorse. But, just as a prisoner must explain his

acceptance of responsibility and convey his remorse at a

parole hearing, a prisoner can, in a request for an advance

hearing, explain that he has accepted full responsibility for his

crime and convey his remorse.

[7] There were no facts in the record from which the dis-

trict court could infer that Proposition 9 created a significant

risk of prolonging Plaintiffs’ incarceration; thus, the district

court abused its discretion. See Hinkson, 585 F.3d at 1262

GILMAN v. SCHWARZENEGGER 19513

(holding that a trial court abuses its discretion when its appli-

cation of the correct legal standard was “without support in

inferences that may be drawn from the facts in the record”).

Because Proposition 9 does not create a significant risk of

prolonging Plaintiffs’ incarceration on any of the theories

asserted by Plaintiffs, they are unlikely to succeed on the mer-

its of their ex post facto claim. Therefore, we reverse the dis-

trict court’s order that granted Plaintiffs’ motion for a

preliminary injunction.

REVERSED.