In Re Rosenkrantz

WERDEGAR, J., Concurring.

I agree with the majority that the judgment of the Court of Appeal should be reversed. I write separately to set forth why, in my view, Proposition 89 (enacting Cal. Const., art. V, § 8, subd. (b)) does not offend the ex post facto clauses of the federal and state Constitutions (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9).

Petitioner’s ex post facto challenge to Proposition 89 is difficult. This is because the United States Supreme Court’s jurisprudence in this area offers no clear resolution. None of the easy answers suffices. While the increased time petitioner spends in prison because of Proposition 89 “is not ‘in some technical sense part of the sentence’ ” (Lynce v. Mathis (1997) 519 U.S. 433, 445 [ 117 S.Ct. 891, 898 , 137 L.Ed.2d 63 ]), this fact is of no consequence (ibid.). While Proposition 89 operates in the realm of discretionary parole decisionmaking, the high court has made clear that “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause . . . .” (Garner v. Jones (2000) 529 U.S. 244, 253 [ 120 S.Ct. 1362, 1369 , 146 L.Ed.2d 236 ].) While Proposition 89 can be described as procedural rather than substantive, that label does not “immunize it from scrutiny under the Ex Post Facto Clause.” (Collins v. Youngblood (1990) 497 U.S. 37, 46 [ 110 S.Ct. 2715, 2721 , 111 L.Ed.2d 30 ].) While the high court has found no *687 constitutional infirmity in arguably analogous laws adding a layer of judicial review (Mallett v. North Carolina (1901) 181 U.S. 589 [ 21 S.Ct. 730 , 45 L.Ed. 1015 ]) or substituting the judge for the jury as the sentencing authority in capital cases (Dobbert v. Florida (1977) 432 U.S. 282 [ 97 S.Ct. 2290 , 53 L.Ed.2d 344 ]), in neither case was the law in question challenged as retroactively increasing punishment.

In fact, the high court has struggled case by case to adapt the requirements of the ex post facto clause to a variety of laws affecting the exercise of discretion in parole matters. This difficult task is unavoidable because “[t]he danger that legislatures might disfavor certain persons after the fact is present even in the parole context, and the Court has stated that the Ex Post Facto Clause guards against such abuse.” (Garner v. Jones, supra, 529 U.S. 244, 253 [ 120 S.Ct. 1362, 1369 ].) The most recent culmination of the high court’s efforts is the test articulated in California Dept, of Corrections v. Morales (1995) 514 U.S. 499 [ 115 S.Ct. 1597 , 131 L.Ed.2d 588 ], and restated in Garner v. Jones, supra, at page 251 [ 120 S.Ct. at page 1368 ]: A new rule governing the exercise of parole discretion violates the ex post facto clause if it “creates a significant risk of prolonging [a prisoner’s] incarceration.” “When the rule does not by its own terms show a significant risk, the [prisoner] must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.” (Id. at p. 255 [ 120 S.Ct. at p. 1370 ].)

If the Garner!Morales test applies, Proposition 89 probably fails. Petitioner argues that the law by its own terms significantly increases the risk that life prisoners will serve longer periods of incarceration because the law can operate only to the detriment of such prisoners, whom the Governor has always been empowered to release (Cal. Const., art. V, § 8, subd. (a)) but whose release the Governor could not block until Proposition 89 was enacted. But whether or not this facial argument has merit, certainly the evidence drawn from Proposition 89’s practical implementation demonstrates that the law’s retroactive application has resulted in longer periods of incarceration. During the current Governor’s term in office, only two of more than a hundred life prisoners offered parole by the Board of Prison Terms (board) have actually been released. Proposition 89 was intended by the voters to increase the time persons convicted of murder would spend in prison by giving the Governor power to “block” their parole. (Ballot Pamp., Gen. Elec. (Nov. 8, 1988) rebuttal to argument against Prop. 89, p. 47.) Clearly the law is having the intended effect.

Thus, the Garner/Morales test strongly suggests a particular resolution. The only significant question, in my view, is whether the test applies. My *688 own conclusion, despite Proposition 89’s evident purpose and effect, is that the Garner/Morales test does not apply and the law is constitutional. Both before and after Proposition 89, a person convicted of murder in California and sentenced to life with the possibility of parole has been entitled to nothing more than a parole decision by the executive branch made in accordance with the applicable statutory and administrative standards. To substitute the state’s chief executive for a subordinate executive branch agency has no apparent constitutional significance. Both must make parole decisions in accordance with the applicable standards for granting parole. Neither enjoys a judge’s relative independence from the political process: while a Governor is elected by the voters and must stand for reelection every four years (Cal. Const., art. V, § 2), a member of the board is appointed to a four-year term by the Governor with the advice and consent of the Senate (Pen. Code, § 5075, subd. (a)). To argue that Proposition 89 is invalid under the Garner/Morales test requires one to compare the risk that any particular Governor will deny parole with the risk that any particular board will do likewise. This is hardly different than arguing that a particular Governor’s or board’s parole decisions violate the ex post facto clause because that Governor or those members campaigned on the platform of granting parole less generously than their predecessors.

While the high court’s decisions are far from clear on this point, I believe it most likely that the high court has endeavored to avoid such results. I discern this partly from Garner v. Jones, supra, 529 U.S. 244, 253 [ 120 S.Ct. 1362, 1369 ], in which the court qualified its endorsement of a risk-based test by “say[ing] with some assurance that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised.” I also discern this from California Dept, of Corrections v. Morales, supra, 514 U.S. 499, 509 [ 115 S.Ct. 1597, 1603 ], in which the high court wrote that it has “declined to articulate a single ‘formula’ for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition . . . .” The basic point of Morales was to emphasize that the ex post facto clause is concerned only with significant risks of increased punishment and, thus, to avoid entangling the judiciary in micromanagement of “innocuous adjustments” to parole and sentencing procedures. (Id. at p. 508 [115 S.Ct. at pp. 1602-1603].) Here, the risk of increased punishment attributable to Proposition 89 arguably is significant. Yet that increased risk manifests as an exercise of discretion by the same branch of government to which parole decisions historically have been entrusted, subject to the same standards as before. Under these circumstances, my best judgment is that the Garner!Morales test does not apply to Proposition 89 and the law does not violate the ex post facto clause.