In Re Rosenkrantz

CHIN, J.

I dissent. Robert Rosenkrantz’s continued incarceration violates the rule against ex post facto laws.

For over two centuries, a bedrock principle of American criminal justice, embedded in both the United States Constitution 1 and the California Constitution, 2 has been that no state may pass an ex post facto law, which includes a law that increases the punishment for a crime after it has been committed. (Calder v. Bull (1798) 3 U.S. (3 Dall.) 386 , 390-391 [ 1 L.Ed. 648, 650 .) Among other things, the ex post facto clause guards against the “danger that legislatures might disfavor certain persons after the fact . . . .” (Garner v. Jones (2000) 529 U.S. 244, 253 [ 120 S.Ct. 1362, 1369 , 146 L.Ed.2d 236 ] (Garner).) Robert Rosenkrantz committed a murder in 1985, for which he received an indeterminate prison sentence of 17 years to life with the possibility of parole. The Board of Prison Terms (Board), which at the time of the crime determined when a convicted murderer would be released on parole, has ordered his release. However, the Governor, acting pursuant to a *691 law enacted after the crime, has blocked Rosenkrantz’s parole and ordered his continued incarceration. Changing the law in this way after the fact to prolong Rosenkrantz’s incarceration is impermissible.

The California Constitution, article V, section 8, subdivision (b) (article V, section 8(b)), gave the Governor the power to reverse the Board’s decision to grant parole to convicted murderers. It was added in 1988 when the electorate passed Proposition 89. The ballot argument in favor of Proposition 89 makes its purpose clear: “Under Proposition 89, the Governor, for the first time, will have the power to block the parole of convicted murderers.” (Ballot Pamp., Gen. Elec. (Nov. 8, 1988) argument in favor of Prop. 89, p. 46, italics added; see also id. at p. 47 [Proposition 89 will give “the Governor the authority to block the parole of criminals who still pose a significant threat to society”].) The proposition’s supporters pointed out that the Governor always had “the power to grant reprieves, pardons and commutations,” and thus could always “act on behalf of more lenient treatment of convicted criminals”; but, they argued, “the state’s top elected official should also be given the power to protect the public from the early release of still dangerous killers.” (Id. at p. 46)

In practice, Proposition 89 has functioned exactly as intended: to block parole that convicted murderers would otherwise receive and to keep them in prison. The record shows that the current Governor has never exercised this power to reverse the denial of parole, but only to reverse the grant of parole. And during one period of over two years, the Governor employed this power to prevent the release on parole in 47 out of 48 cases in which the Board granted parole (out of a total of 4,800 hearings). (Maj. opn., ante, at pp. 684-685.) As of today, it appears the Governor has blocked parole in over 100 cases and permitted parole only twice. (Id. at pp. 638, fn. 5, 685.)

Although the prohibition against ex post facto laws goes back to the founding days of this nation, a decision less than three years old virtually compels its application to this case. ( Garner, supra, 529 U.S. 244.) In Garner , as here, the question was whether a procedural change in the way the parole release decision is made can violate the ex post facto prohibition. There, the change was Georgia’s extending the interval between parole hearings from three years to as much as eight years. The high court stated that, although the grant of parole is discretionary, “[retroactive changes in laws governing parole of prisoners, in some instances,” may impermissibly increase the punishment for a crime after its commission. (Id. at p. 250 [ 120 S.Ct. at p. 1367 ].) “Whether retroactive application of a particular change in parole law respects the prohibition on ex post facto legislation is often a question of particular difficulty when the discretion vested in a parole board *692 is taken into account.” (Ibid.) The court cited its decision in California Dept. of Corrections v. Morales (1995) 514 U.S. 499 [ 115 S.Ct. 1597 , 131 L.Ed.2d 588 ], which had found no ex post facto violation in California’s extending the time between parole hearings from one to up to three years, as “emphasizing that not every retroactive procedural change creating a risk of affecting an inmate’s terms or conditions of confinement is prohibited.” (Garner, supra, 529 U.S. at p. 250 [ 120 S.Ct. at p. 1367 ].)

But the high court made clear that although not all changes in parole law implicate the ex post facto clause, some do. “The 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, supra, 529 U.S. at p. 253 [ 120 S.Ct. at p. 1369 ].) The court explained that mere changes in the way discretion is exercised cannot violate the clause. “[W]here parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised.” (Ibid.) But other changes, including procedural changes, may be prohibited. The court stated the test to determine whether a retroactive change in parole law violates the prohibition against ex post facto laws: “In the case before us, [the inmate] must show that as applied to his own sentence the law created a significant risk of increasing his punishment.” (Id. at p. 255 [ 120 S.Ct. at p. 1370 ].) Or, stated slightly differently, “The question is whether the amended Georgia Rule creates a significant risk of prolonging [the inmate’s] incarceration.” (Id. at p. 251 [ 120 S.Ct. at p. 1368 ].)

Sometimes deciding this question requires evidence. “When the rule does not by its own terms show a significant risk, the [inmate] 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.” (Garner, supra, 529 U.S. at p. 255 [ 120 S.Ct. at p. 1370 ].) The Garner record “contained little information bearing on the level of risk created by the change in law.” (Id. at p. 256 [ 120 S.Ct. at p. 1371 ].) The court remanded the matter to give the inmate a chance to make the required showing. (Id. at p. 257 [ 120 S.Ct. at p. 1371 ].)

Garner makes clear that retroactive changes in parole law, even procedural ones—other than mere changes in the exercise of discretion—are impermissible if they create a significant risk of prolonging the prisoner’s actual incarceration. The Garner court could not decide the question without further evidence. We do not have that problem. Whether viewing the law’s impact on Rosenkrantz himself or on parolees generally, we know that *693 retroactive application of article V, section 8(b), created a significant risk of prolonging incarceration. Indeed, it has prolonged Rosenkrantz’s incarceration to a certainty. But for the Governor’s action, he would now be released on parole. 3 Moreover, the fact that during an approximately two-year period the Governor blocked 47 of 48 grants of parole shows that, in general, the new rule’s application has significantly increased the risk of prolonging incarceration.

The conclusion is inescapable: retroactive application of article V, section 8(b), to do what it was designed to do—block parole for convicted murderers—violates the prohibition against ex post facto laws. The Maryland Court of Appeals has reached a similar conclusion. (Gluckstern v. Sutton (1990) 319 Md. 634 [ 574 A.2d 898, 912-916 ].)

The majority finds Gamer inapplicable because it views article V, section 8(b), as only a change in the way discretion is exercised. (Maj. opn., ante, at pp. 647-650.) I fully agree that mere changes in the way discretion is exercised or, indeed, in who exercises it, would not constitute an ex post facto law. If article V, section 8(b), had abolished the Board and shifted parole decisions to the Governor, the ex post facto clause would not be implicated. Nor would it be implicated if a Board member were replaced with a new member who promised to be stricter in granting parole. Such changes would merely affect who exercises discretion and how. But article V, section 8(b), did not replace the Board. As the Maryland Court of Appeals noted in similar circumstances, “the requirement of gubernatorial approval for parole is an additional requirement.” (Gluckstern v. Sutton, supra, 574 A.2d at p. 916 , italics added.) Rosenkrantz “now needs the favorable decisions of both the [Board] and the Governor in order to be *694 paroled.” (Id. at p. 915.) 4 Thus, article V, section 8(b), added a previously nonexistent barrier to parole. Previously, convicted murderers had to convince the Board to release them, a very difficult thing to do, as this record attests. Now they not only must convince the Board, they also must convince the Governor to affirm the Board’s decision. 5

The majority cites Johnson v. Gomez (9th Cir. 1996) 92 F.3d 964 (Johnson) and In re Arafiles (1992) 6 Cal.App.4th 1467 [ 8 Cal.Rptr.2d 492 ], But these decisions predate the current indisputable evidence that the Governor has consistently applied article V, section 8(b), solely to prolong the incarceration of persons who would otherwise be released on parole. More importantly, they also predate Garner . For example, Arafiles erroneously believed that “the issue is not the actual application to the petitioner . . . .” (In re Arafiles, supra, 6 Cal.App.4th at p. 1484 .) On the contrary, Garner holds that the issue is indeed the actual application of the law to the inmate’s “own sentence.” (Garner, supra, 529 U.S. at p. 255 [ 120 S.Ct. at p. 1370 ].)

The Johnson court said that because under the old law the Board’s decision to grant parole would not have been subject to review, but now is subject to review, “it cannot be said with certainty that the [Board] would have granted [the inmate] parole had it possessed the final review authority.” (Johnson, supra, 92 F.3d at p. 967.) The court also said the inmate “would have to show ‘with assurance,’ to use the Dobbert language [Dobbert v. Florida (1977) 432 U.S. 282 [ 97 S.Ct. 2290 , 53 L.Ed.2d 344 ]] . . . that he would have received parole under the old system,” and that the inmate must “demonstrate an increase in punishment with certainty before finding an Ex Post Facto Clause violation.” (Johnson, supra, at p. 968.) This requirement of “certainty” and “assurance” is inconsistent with the test the high court applied in the parole context in Garner . Moreover, the Board, an official agency charged with the very serious duty of making parole decisions, is presumed to exercise its own good judgment. We should not base our ex post *695 facto jurisprudence on the assumption the Board’s exercise of discretion varies depending on whether or not the Governor can overrule its decisions.

The high court cases that the majority cites do not support its conclusion, especially in light of the more recent Garner decision. In Mallett v. North Carolina (1901) 181 U.S. 589 [ 21 S.Ct. 730 , 45 L.Ed. 1015 ], the court merely held that new rules allowing the prosecution to appeal certain adverse rulings did not violate ex post facto principles. Dobbert v. Florida, supra, 432 U.S. 282 , involved the substitution of the court for the jury as the decision maker, not an additional layer of review. (See Gluckstern v. Sutton, supra, 574 A.2d at p. 916 [distinguishing Dobbert on this basis].) The changes in those cases are far different from imposing, after the crime, a new barrier to parole for the very purpose of prolonging incarceration. Neither of these high court cases even involved a claim that a retroactive change in law increased punishment. Moreover, as the Johnson court noted, the high court in Dobbert “found no violation because the law was only a procedural change and because it appeared the change would benefit defendants in most cases by providing that the trial judge and the state’s highest court would have the final say on whether the death penalty was imposed.” (Johnson, supra, 92 F.3d at pp. 966-967.) To say the least, the change here does not benefit inmates. And “simply labeling a law ‘procedural,’ . . . does not thereby immunize it from scrutiny under the Ex Post Facto Clause. [Citation.] Subtle ex post facto violations are no more permissible than overt ones.” (Collins v. Youngblood (1990) 497 U.S. 37, 46 [ 110 S.Ct. 2715, 2721 , 111 L.Ed.2d 30 ].) I doubt that article V, section 8(b), or the supporting ballot arguments, or blocking parole in 47 of 48 cases, can be described as “subtle,” but the new law, although procedural, is an ex post facto violation.

Another case the majority cites, Collins v. Youngblood, supra, 497 U.S. 37 , involved reformation of improper jury verdicts. It, too, bears little similarity to this case. Its primary significance here is its statement, quoted in the previous paragraph, that labeling a new law procedural does not immunize it from the ex post facto rule.

The majority seems to suggest that article V, section 8(b), is merely a neutral change in who has the final say in parole decisions. It is not neutral. Although it permits the Governor to reverse all parole decisions, including those denying parole, it is one-sided both facially and in practice. As Proposition 89’s supporters stressed, the Governor always had the power to commute sentences. (See Cal. Const., art. V, § 8, subd. (a).) What article V, section 8(b), did, “for the first time,” was also give the Governor the power to “block” parole. (Ballot Pamp., Gen. Elec., supra, argument in favor of Prop. 89, p. 46.) Although written neutrally, the only change it made was to *696 allow the Governor to keep persons incarcerated who otherwise would be released. It is a new barrier to parole, nothing else. Its purpose and effect are solely to block parole, and it has fulfilled this purpose with great effect.

The ex post facto clause guards against the “danger that legislatures might disfavor certain persons after the fact. . . .” (Garner, supra, 529 U.S. at p. 253 [ 120 S.Ct. at p. 1369 ].) Here article V, section 8(b), targeted a disfavored group, and it did so after the fact. Admittedly, convicted murderers are not a sympathetic group, but the ex post facto clause protects everyone. And the Board itself treats this group unsympathetically. As this record shows, the Board has been very cautious in its parole decisions. It granted parole a scant 48 times in 4,800 hearings over an approximately two-year period, which means it denied parole 99 percent of the time. The Board has hardly opened the floodgates; nor should we. But imposing after the fact a new barrier to parole that potentially keeps in prison even those scarce few who convince the Board they have earned it violates the prohibition against ex post facto laws.

I would affirm the judgment of the Court of Appeal. 6

Kennard, J., concurred.

“No state shall . . . pass any ... ex post facto law . . . .” (U.S. Const., art. I, § 10, cl. 1.) A different provision of the Constitution also prohibits the federal government from passing an ex post facto law. (U.S. Const., art. I, § 9, cl. 3.)

“A[n] ... ex post facto law . . . may not be passed.” (Cal. Const., art. I, § 9.) Article I, section 16, of the original Constitution of 1849 provided: “No ... ex post facto law . . . shall ever be passed.” (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 295, fn. 10 [ 279 Cal.Rptr. 592 , 807 P.2d 434 ].)

The majority notes that the Board granted Rosenkrantz parole only under compulsion of In re Rosenkrantz (2000) 80 Cal.App.4th 409 [ 95 Cal.Rptr.2d 279 ], a decision it describes as “questionable.” (Maj. opn., ante, at p. 637 & &. 4.) It seems to believe, but does not explain how, this circumstance is relevant to the ex post facto issue. Questionable or not, the earlier decision became final over two years ago when this court denied review. All that is now prolonging Rosenkrantz’s incarceration is the Governor’s exercise of a power created after Rosenkrantz’s crime, which presents the ex post facto issue squarely.

The majority also seems to suggest it is doing Rosenkrantz a favor by even considering this issue because he presented the issue to us belatedly. (Maj. opn., ante, at pp. 625, 637.) He cannot, however, be accused of abandoning this issue. He did present it in the trial court. He prevailed in that court, although on different grounds, so he had little reason to appeal this issue to the Court of Appeal. He again prevailed in the Court of Appeal. Rosenkrantz focused on defending his victories, not trying to win on ever more grounds. This threshold issue underlies the entire case. Accordingly, we issued an order, quite properly (Cal. Rules of Court, rule 29.2(b)), placing the issue within the scope of our review. In any event, belated presentation of the issue is irrelevant to its merits which, as the majority notes, “may be decided as a matter of law.” (Maj. opn., ante, at p. 637.)

Similarly, article V, section 8(b), did not merely “substitute” one decision maker for another. (Cone. opn. of Werdegar, J., ante, at p. 687.) Nor did it make “ ‘innocuous adjustments [such] as changes to the membership of the Board of Prison Terms . . . .’’’(Maj. opn., ante, at p. 646, quoting California Dept, of Corrections v. Morales, supra, 514 U.S. at p. 508 [115 S.Ct. at pp. 1602-1603], italics added by the majority.) Changes in the Board’s membership concern me not at all.

As the majority notes, Gluckstern v. Sutton, supra, 574 A.2d 898 , discussed ex post facto law that then existed but is now somewhat obsolete. (Maj. opn., ante, at p. 644, fn 8.) It also predated Gamer, supra, 529 U.S. 244 . Its analysis, however, fits Garner and adds further support to my conclusion.

If adding “a new level of review of parole decisions” (maj. opn., ante, at p. 650) is permissible, how many new levels of review will the majority permit? After the crime is committed, how many new bodies can be given the power to veto parole? Just one more, as here? Two? Three? One hundred?

In those cases not involving retroactive application of article V, section 8(b), I agree with the majority that the Governor’s decision is subject to judicial review to determine whether “some evidence” supports it. (Maj. opn., ante, at pp. 625-626.)