# Petition for Writ of Certiorari — Rosenkrantz v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 980

## Text

() ) Supreme Gout, U.S.
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021310 FEB 26 2003
No.

In The
Supreme Court of the Gnited States

ROBERT ROSENKRANTZ,
Petitioner,

V.
GRAY DAVIS, Governor Of The State Of California,
WILLIAM DUNCAN, Warden, California

Men’s Colony,
Respondents.

On Petition For Writ Of Certiorari
To The Supreme Court Of California

PETITION FOR WRIT OF CERTIORARI

Donald Specter Alan V. Friedman
Counsel of Record Mark Epstein
Zachary Katznelson Deborah N. Pearlstein
Prison Law Office Munger, Tolles & Olson LLP
General Delivery 355 South Grand Avenue,
San Quentin, CA 94964 35th Floor
(415) 457-9144 Los Angeles, California, 90071

(213) 683-9100
Rowan K. Klein

10573 West Pico Blvd. #854
Los Angeles,CA 90064
(310) 845-1705

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QUESTIONS PRESENTED

1. Does the retroactive application of a new state law
giving the Governor veto authority over state parole board
decisions violate the Ex Post Facto Clause of the U.S.
Constitution, Article I, section 10, under Garner v. Jones,
529 U.S. 244 (2000), where the change in law as applied
creates a “significant risk of increasing the punishment” for
parole-eligible offenders?

2. In light of Garner v. Jones, 529 U.S. 244 (2000), did
the California Supreme Court err in holding, consistent with
the federal court of appeals for the Fourth Circuit, and in
conflict with Maryland’s highest court and the federal courts
of appeals for the Third, Tenth, Ninth and Eleventh Circuits,
that courts need not consider the effects of a new law
changing parole procedures in determining whether it
violates the Ex Post Facto Clause, even though virtually all
prisoners affected by the new law serve a longer period of
incarceration?

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TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

JURISDICTIONAL STATEMENT

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE
REASONS FOR GRANTING THE WRIT

A. The Lower Courts Have Split on the
Scope of the Garner Standard

B. The California Supreme Court
Misconstrued Garner

CONCLUSION

ill

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ill

TABLE OF AUTHORITIES

CASES
Beazell v. Ohio, 269 U.S. 167 (1925) 16
Calder v. Bull, 3 U.S. 386 (1798) 16
California Department of Corrections v. Morales,

514 US. 499 (1995) 7,10,14,15,17
Coady v. Vaughn, 251 F.3d 480 (3rd Cir. 2001) 11
Collins v. Youngblood,

497 U.S. 37 (1990) 7,10,14,15,18
Cummings v. Missouri, 71 U.S. 277 (1866) 18
Dobbert v. Florida, 432 U.S. 282 (1977) 14
Garner v. Jones, 529 U.S. 244 (2000) passim
Gluckstern v. Sutton,

319 Md. 634 (Md. 1990) 10,12
In re Head, 42 Cal. 3d 223 (1986) 3
In re Powell, 45 Cal. 3d 894 (1988) 3
In re Rosenkrantz,

80 Cal. App. 4th 409 (2000) pe
In re Rosenkrantz,

29 Cal. 4th 616 (2002) passim
Landgraf v. USI Film Productions,

511 U.S. 244 (1994) 16
Mallett v. North Carolina,

181 U.S. 589 (1901) 9,14
People v. Rosenkrantz,

198 Cal. App. 3d 1187 (1988) 2

Powell v. Ray, 301 F.3d 1200 (10th Cir. 2002) ----

Scott v. Baldwin, 225 F.3d 1020 (9th Cir. 2000)

State v. Daniels, 40 P.3d 611 (Utah 2002) 13
Swan v. Ray, 293 F.3d 1252 (11th Cir. 2002) 11
Warren v. Baskerville,

233 F.3d 204 (4th Cir. 2000) 13, 14
Warren v. Miles, 230 F.3d 688 (5th Cir. 2000) ----------- 13
Weaver v. Graham, 450 U.S.24 (1981) 18

STATUTES
California Penal Code

§ 1473(d) 3
28 United States Code

§ 1257(a) 1

CONSTITUTIONAL PROVISIONS
United States Constitution

Article I, § 10, cl. 1 passim

California Constitution
Article I, § 9 7
Article V, § 8(a) 4
Article V, § 8(b) 4,14

PETITION FOR WRIT OF CERTIORARI

Petitioner Robert Rosenkrantz respectfully prays that a
Writ of Certiorari issue to review the Judgment and opinion

of the Supreme Court of California issued on December
16, 2002, which became final on January 16, 2003.

OPINION BELOW

The opinion of the Supreme Court of California is reported
at 29 Cal.4th 616 (2002). It appears in Appendix A.

JURISDICTIONAL STATEMENT

This Court has jurisdiction of this case under 28 U.S.C.
section 1257(a). This petition is filed within 90 days of the
finality of the Judgment of the Supreme Court of California.

CONSTITUTIONAL PROVISIONS

The United States Constitution, article I, section 10, cl.
1, provides: “No State shall... pass any .. . Ex Post Facto
Law....”

The United States Constitution, amend. XIV, states: “No
State .. . shall . . . deprive any person of life, liberty, or
property, without due process of law... .”

STATEMENT OF THE CASE

Petitioner Robert Rosenkrantz was convicted of second
degree murder and use of a firearm in 1985, and sentenced
to 17 years to life in prison. His conviction and sentence

were affirmed on appeal. People v. Rosenkrantz, 198
Cal.App.3d 1187, 1206 (1988) (Rosenkrantz I). Under

California’s indeterminate sentencing scheme, Petitioner
became eligible for parole in 1996. At that time, a panel of
the California state parole board, called the Board of Prison
Terms (“the Board”), determined that Petitioner was suitable
for parole. The Board made findings that Petitioner’s crime
occurred as a result of an unusual set of circumstances that
caused severe long term stress! ; that he had no prior criminal
history; and that he had been a model prisoner, with both
mental health and correctional staff believing he presented
a low risk of reoffending. Jn re Rosenkrantz, 80 Cal.App.4th
409, 414 n.2 (2000) (Rosenkranz II). Despite these record
findings, the Board’s Decision Review Unit, citing issues in
need of further review, reversed the hearing panel’s decision.
Id., at 414.

Following several subsequent hearings at which
Petitioner was denied parole, Petitioner filed suit in state
court. He alleged that the Board had denied him due
process of law given the complete absence of evidence
supporting the Board’s decision. Petitioner prevailed in

1. The murder occurred soon after Petitioner was attacked and
injured by the victim in what the trial court characterized as a “vicious
hate crime” and was thrown out of his house by his father because of
his sexual orientation. Jn re Rosenkrantz, 80 Cal.App.4th 409, 412
(2000) (Rosenkraniz II). Rosenkrantz went to the victim’s home
without planning to kill, but to force the victim to recant his statements
to Rosenkrantz’s father. People v. Rosenkrantz, 198 Cal.App.3d
1187, 1204 (1988) (Rosenkrantz I). After refusing to recant, the
victim laughed at and taunted Rosenkrantz further. Rosenkrantz shot
him in response. He surrendered to police three weeks later.
Rosenkraniz II, 80 Cal.App.4th, at 412.

2. Under California law, such direct challenges to the legality of
parole proceedings are brought by petition for writ of habeas corpus.
Cal. Penal Code § 1473(d); Jn re Powell, 45 Cal.3d 894, 903 (1988).
The use of the writ in this context does not constitute a collateral

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state superior court, and the court of appeal ordered the
Board to conduct a new hearing. Rosenkrantz II, 80
Cal.App.4", at 429. At the new hearing, the Board found
Petitioner suitable for parole. Jn re Rosenkrantz, 29 Cal.4th
616, 634 (2002) (Rosenkrantz IIT) (Appendix A at 16).

On October 28, 2000, California’s Governor invoked an
amendment to the California Constitution, adopted three years
after Petitioner’s conviction, and reversed the Board’s
decision. Article V, section 8(b) of the California
Constitution, enacted by the voters in 1988 through
Proposition 89, for the first time authorized the Governor to
review and reverse parole decisions for prisoners convicted
of murder.’ Prior to this change in California law, the Governor
only had the power to reduce, but not increase, a term of

attack on a conviction. See, e.g., In re Head, 42 Cal.3d 223, 226, 230
(1986) (explaining that the writ may be used as an original civil
proceeding).

3. Article V, section 8(b) of the California Constitution states:

No decision of the parole authority of this State with
respect to the granting, denial, revocation, or
suspension of parole of a person sentenced to an
indeterminate term upon conviction of murder shall
become effective for a period of 30 days, during which
the Governor may review the decision subject to
procedures provided by statute. The Governor may
only affirm, modify, or reverse the decision of the
parole authority on the basis of the same factors which
the parole authority is required to consider. The
Governor shall report to the Legislature each parole
decision affirmed, modified, or reversed, stating the
pertinent facts and reasons for the action.

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incarceration. Cal. Const., art. V, § 8(a).* The expressed
intent of the authors of Proposition 89 was to give the
Governor the authority to “block” parole for murderers.
Rosenkraniz III, 29 Cal.4th, at 687 (Appendix A at 105)
(Werdegar, J., concurring). Proposition 89 proponents had
argued in the Ballot Pamphlet that the Governor already had
the power to grant parole and that he should ‘also’ have the
power to prevent the ‘early release’ of murderers. See id., at
691 (Appendix A at 111) (Chin, J. dissenting, quoting Ballot
Pamphlet argument in favor of Proposition 89) (italics in
original). Consistent with the intent of the amendment,
Governor Davis blocked Petitioner’s release in this case, and
has similarly prevented the release of virtually all prisoners
who have been granted parole by the Board. /d., at 651, 685
(Appendix A at 45, 101).

Since the Governor took office, the Board has granted
parole to just one percent of eligible prisoners. Of that
one percent, the record shows that Governor Davis has

4. Article V, section 8(a) of the California Constitution states:

Subject to application procedures provided by statute,
the Governor, on conditions the Governor deems
proper, may grant a reprieve, pardon, and
commutation, after sentence, except in case of

impeachment. The Governor shall report to the
Legislature each reprieve, pardon, and commutation
granted, stating the pertinent facts and the reasons
for granting it. The Governor may not grant a pardon
or commutation to a person twice convicted of a
felony except on recommendation of the Supreme

Court, 4 judges concurring.

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reversed the Board in all but two cases. The Governor has
not reviewed any cases in which parole has been denied.°
Rosenkraniz III, 29 Cal.4th, at 685 (Appendix A at 101).
As California Supreme Court Justice Chin recognized: “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.”
Id., at 691 (Appendix A at 111) (Chin, J., dissenting); see
also id., at 687 (Appendix A at 105) (Werdegar, J., concurring)
(“Clearly the law is having the intended effect” of blocking
parole for those convicted of murder).

Following the Governor’s veto, Petitioner filed a second
suit in state court, this time against Governor Davis. The new
suit raised both federal and state due process and ex post facto
claims. Rosenkrantz III,29 Cal.4th, at 635, 693 n.3 (Appendix
A at 17, 114) (Maj. Opn., Chin, J., dissenting) (describing
trial court proceedings). Among other claims, Petitioner
contended that the Governor’s application of Article V, section
8(b) to reverse the Board’s decision violated the ex post facto
prohibition against retroactive increases in the punishment
imposed for a crime. Rosenkraniz III, #593 n.3 (Appendix
A at 114) (Chin, J. dissenting). The superior court agreed
with Petitioner on due process grounds, holding that there
was no evidence supporting the denial of parole and further

5. The Governor has stated publicly that murderers, including
those with second degree convictions, should spend the rest of their
life in prison. When asked whether extenuating circumstances should
be a factor the Governor stated, “No. Zero.” Rosenkrantz III, 29
Cal.4th, at 684 (Appendix A at 100). The Governor emphasized the
point by bluntly exclaiming, “If you take someone else’s life, forget
it.” Rosenkrantz III, 29 Cal.4th, at 684 (Appendix A at 100).

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finding that Governor Davis was acting according to a policy
of denying parole to all life prisoners convicted of murder.
Id., at 635 (Appendix A at 17-18). The court ordered
Petitioner released forthwith, and the Court of Appeal
affirmed. Jd.

After granting discretionary review, the California
Supreme Court requested supplemental briefing by the
parties on the ex post facto claims, in addition to briefing
on the due process claims that had been the basis of the
lower courts’ rulings below. Rosenkrantz IIT, 29 Cal.4th, at
637 (Appendix A at 21). In a fractured decision, the State
Supreme Court reversed. A majority of justices held that
the retroactive application of Proposition 89 was not a
violation of the federal or state Ex Post Facto Clauses.
Id., at 638 (Appendix A at 23).

The court began by properly recognizing the scope of
the ex post facto prohibition: “Legislatures may not
retroactively alter the definition of crimes or increase the
punishment for criminal acts.” Collins v. Youngblood, 497
U.S. 37, 38 (1990). It then turned to this Court’s cases
considering how to determine when a change in law could
be said to “increase the punishment” for an offense. In
Garner v. Jones, 529 U.S. 244 (2000), the Court had
examined the ex post facto consequences of a state law
extending the period between parole hearings from three to
eight years. Discussing Garner at length, the California
Supreme Court acknowledged that Garner required it to ask

6. The California Supreme Court has long recognized that the ex
post facto clause in the California Constitution, Cal. Const., art. I, sec.
9, “embodies the same protection afforded by the federal ex post facto
clause.” Rosenkrantiz III, 29 Cal.4th, at 640 n.6 (Appendix A at 26)
(citing cases).

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“whether retroactive application of the change in California
law create[s] ‘a sufficient risk of increasing the measure of
punishment attached to the covered crimes.’” Garner, 529
U.S., at 250 (quoting California Dept of Corrections v.
Morales, 514 U.S. 499, 509 (1995)).

As to when such a “significant risk” could be present,
Garner explained:

When the rule does not by its own terms show
a significant risk, the respondent 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 . . . . [RJespondent must show that as
applied to his own sentence the law created a
significant risk of increasing his punishment. _

Garner, 529 U.S., at 255. After struggling with this
aspect of Garner ’s holding, the majority concluded that the
U.S. Supreme Court could not have intended Garner’
“significant risk” test to apply to all ex post facto changes
in parole rules. The state court focused on “[t}]he extremely
broad scope and wide-ranging implications” of such a rule
permitting “as applied” challenges. Rosenkraniz III, 29
Cal.4th, at 649 (Appendix A at 42). On that basis, and despite
the fact that Garner itself involved a purely procedural
change — a delay in parole hearings from three to eight years
— the court concluded that the Garner test did not apply to a
provision that merely altered the procedural mechanism
by which parole decisions were reviewed. J/d., at 650-651
(Appendix A at 44). The change in law here, according to
the state court, was thus categorically beyond the reach of

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the Ex Post Facto Clause. Id. Based on this reasoning, the
State court found evidence that the Governor “frequently
may disagree with the Board’s determination” irrelevant as
a matter of law. /d., at 652 (Appendix A at 46).

Justice Werdegar, concurring in the result, and Justices
Chin and Kennard, dissenting, rejected the mayjority’s
interpretation of Garner. While recognizing that this Court
had previously upheld a law “adding a layer of judicial
review,” against a facial ex post facto challenge, Rosenkrantz
IIT, 29 Cal.4th, at 686-687 (Appendix A at 104), citing
Mallett v. North Carolina, 181 U.S. 589 (1901), Justice
Werdegar noted that, in light of Garner, the “United States
Supreme Court’s jurisprudence in this area offers no clear
resolution.” Rosenkrantz III, 29 Cal.4th, at 686 (Appendix
A at 103). She argued that this Court “thad made clear that
‘the presence of discretion does not displace the protections
of the Ex Post Facto Clause”, id., at 686 (Appendix A at
103) (citing Garner, 529 U.S., at 253), and that Garner's
as-applied test here “strongly suggests” that Petitioner
Should prevail. Jd., at 687 (Appendix A at 105) (“If the
Garner/Morales test applies, Proposition 89 probably
fails.” Id., at 687 (Appendix A at 105)). Justice Chin was
even more direct: “Garner makes clear that retroactive
changes in parole law, even procedural ones .. . are
impermissible if they create a significant risk of prolonging
the prisoner’s actual incarceration.” Id., at 692 (Appendix
Aat 114) (Chin, J., dissenting). On the evidence before the
Court, he concluded, “[w]hether viewing the law’s impact

on Rosenkrantz himself or on parolees generally, we know
that retroactive application of article V, section 8(b), created
a significant risk of prolonging incarceration. Indeed, it has
prolonged Rosenkrantz’s incarceration to acertainty.” Jd.,
at 692-693 (Appendix Aat 1 14).

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REASONS FOR GRANTING THE WRIT

A. The Lower Courts Have Split on the Scope of the
Garner Standard

This Court has held since 1990 that the proper inquiry as
to whether a change in law violates the Ex Post Facto Clause
is not whether the law works to the prisoner’s “disadvantage,”
but whether it in fact makes the punishment for the crime
more burdensome. Collins v. Youngblood, 497 U.S., at 47.
In California Dep't of Corrections v. Morales, 514 U.S.
499, the Court applied this test to changes in parole
proceedings. Morales recognized that retroactive changes
in parole procedures could increase the punishment and
therefore violate the Ex Post Facto Clause, but held in that
case that the effect was too speculative to credit. /d., at
509. In Garner, the Court went further. While finding that
a change in the rule governing the timing of parole hearings
did not of itself create a “significant risk” of increased
punishment, the Court remanded the case so that the prisoner
could have an opportunity to demonstrate, based on “evidence
drawn from the rule’s practical implementation by the agency
charged with exercising discretion,” that the effect of the
change in law was to pose a significant risk of increased
punishment as applied. Garner, 529 U.S., at 255.

Since the Court extended this invitation in Garner, the
state and lower federal courts have split on whether Garner
invariably requires courts to take into account “evidence
drawn from the rule’s practical implementation” to
determine whether a retroactive change in parole laws violate
the Ex Post Facto Clause. In particular, the California
Supreme Court’s decision — holding that Garner’s
particularized determination is only required in considering
changes in the timing of parole hearings, not any other

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“procedural” change in parole rules — brings it into direct
conflict with the high court of Maryland, as well as the
federal courts of appeals in the Third, Ninth, Tenth and
Eleventh Circuits — all of which hold that evidence of the
effect of a change in law must be considered in all ex post
facto as-applied parole challenges. See Gluckstern v, Sutton,
319 Md. 634, 669, 671 (Md. 1990) (retroactive imposition
of new law requiring gubernatorial approval for parole
violates Ex Post Facto Clause) (“T]he effect of the Maryland
Statutory change was clearly to make the obtaining of parole
more difficult.”) (emphasis added); Coady v. Vaughn, 251
F.3d 480, 488, 490 n.5 (3rd Cir. 2001) (under Garner,
“courts must consider the practical effect of parole board
policies in the course of determining whether a statute
violates the ‘ex post facto law’ Clause of the Constitution”);
Scott v. Baldwin, 225 F.3d 1020, 1022 n.5 (9th Cir. 2000)
(under Garner, “if . . . a facial challenge [to denial of biennial
reviews of ‘dangerous offender’ Status] fails, then the convict
can still ‘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’”); Swan v, Ray, 293 F.3d 1252, 1254 (11th Cir.
2002) (Garner requires a “particularized inquiry into the
effect of the amended rule on an inmate’s sentence”); Powell
v. Ray, 301 F.3d 1200, 1203 (10th Cir. 2002) (elimination
of program permitting early release requires court to inquire
under Garner whether prisoner “has shown that
[retroactively applied law] created more than a speculative
risk that his prison term would be increased”).

The Tenth Circuit’s decision in Powell v. Ray, 301 F.3d
at 1203, illustrates this view of Garner. The Tenth Circuit
applied the Garner test to the retroactive elimination of a
pre-parole release program. After the prisoner committed

1]

his crime, the Oklahoma Legislature abolished pre-release
parole, ensuring that the prisoner would be incarcerated at
least 13 more months, until the date of his first parole
hearing. /d., at 1202, 1203. Unlike the California Supreme
Court and the Fifth Circuit, the Tenth Circuit did not end its
inquiry by characterizing the type of change at issue as
categorically outside Ex Post Facto Clause protection.
Instead, the Tenth Circuit asked whether the prisoner could
prove “more than a speculative risk that his prison term would
be increased.” /d., at 1203. The Court found that he had
not, but only after examining whether as applied to the
prisoner “the amended statute has had the effect of
prolonging his punishment.” /d., at 1204.

Maryland’s highest court also recognized the critical
importance of exploring the actual effect of a changed law
on the prisoner in a case very similar to this one. See
Gluckstern, 319 Md., at 669. While Sutton was incarcerated,
Maryland added a provision requiring that the Governor
approve release on parole, where previously approval by the
parole board alone had been sufficient. J/d., at 640. Sutton
was twice approved for parole by the parole board, but both
times was rejected by the Governor. /d., at 644. The Court
held that the requirement of gubernatorial approval of parole
could not be applied retroactively to Mr. Sutton without
violating the Ex Post Facto Clause, because as applied, it
increased his punishment. /d., at 669. The Court held that the
effect of this statute “as applied to Mr. Sutton, was obviously
to make parole more difficult to obtain. . . . [E]vents have
shown that obtaining parole has in fact become more difficult.”
Id. (italics added). The Court looked to the rule’s practical
implementation to determine whether it ran afoul of the Ex
Post Facto Clause — and found that it had.

In contrast, the California Supreme Court joins the

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Fourth and Fifth Circuits, and the Utah Supreme Court in
finding that Garner’s particularized evidence inquiry is
limited to its facts. These courts have held that the as-applied
evidence cited in Garner is relevant only in assessing
whether a change in the timing of parole hearings (the change
at issue in Garner) poses ex post facto concerns. Other
changes in parole rules — because they are “procedural” in
nature or otherwise not the “type” of changes contemplated
for protection under the Ex Post Facto Clause — do not admit
of such as-applied challenges. See Warren v. Baskerville,
233 F.3d 204, 208 (4th Cir. 2000) (retroactive change in
parole policy mandating revocation of good time credits
not subject to Ex Post Facto Clause evaluation under
Garner); Warren v. Miles, 230 F.3d 688, 693 (Sth Cir. 2000)
(Garner does not apply to challenge of retroactive change in
regulation barring prisoner from eligibility for early release
after completion of drug treatment program); State v. Daniels,
40 P.3d 611, 623, 625 (Utah 2002) (Garner does not
invalidate retroactive law removing jury unanimity
requirement to approve sentence of life without parole despite
fact that law “create[d] an increased chance that the sentence
of life without parole would be imposed”); Rosenkraniz III,
29 Cal.4th, at 650-651 (Appendix A at 44)

Along with the California Supreme Court’s decision
below, Warren, 230 F.3d., at 693, is representative of cases
that have turned on the application (or not) of Garner s
effects test. There, the Fifth Circuit rejected Michael
Warren’s ex post facto challenge to a change in federal
Bureau of Prisons (“BOP”) guidelines that for the first time
explicitly barred prisoners with sentence enhancements like
his from early release following completion of a residential
drug abuse program. While recognizing that “[i]n evaluating
an alleged violation of the ex post facto doctrine, the court
must rigorously analyze the level of risk that an inmate’s

Ps . \ . 4

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prison stay will be longer,” id., at 692, the court did not
consider that the effect of the change in practice would be
to significantly increase the risk that Warren would receive
greater punishment. Rather, the court found that while
“‘Warren’s case may not have been explicitly excluded under
the Program Statements in effect” when he pled guilty, the
BOP already had the discretionary authority under then-
existing guidelines to deny him early release. /d., at 693.
In the absence of any as-applied assessment, the appeals
court readily concluded that the shift in the guideline from
discretionary to mandatory was not the type of change that
gave rise to an ex post facto violation. Warren, 230 F.3d.,
at 693-694.

The confusion below is readily understandable in light
of this Court’s recent ex post facto jurisprudence. In Collins
v. Youngblood, the Court made two holdings that when
extended (as they have been in Morales and Garner) yield
contradictory results. First, the Court reiterated the
longstanding rule that a procedural change does not
immunize a law from the force of the Ex Post Facto Clause,
but recognized that some changes in procedure do not violate
the Clause even though they work to a prisoner’s
disadvantage. Collins v. Youngblood, 497 U.S., at 45.
Second, the Court held that the judicial inquiry must focus
on whether the law actually increases punishment, rather
than the method that it uses to effect a change.’ /d., at 46.

7. The Court’s decisions in Dobbert v. Florida, 432 U.S. 282,
294 (1977) and Mallett v. North Carolina, 181 U.S. 595 (1901), are
consistent with this formulation, since in both cases the Court did not
find that the defendant’s potential punishment would be increased by
the retroactive change in the law. See Collins, 497 U.S., at 46
(Constitution only prohibits laws, “‘whatever their form,’” that make
innocent acts criminal, alter the nature of the offense, or increase
punishment). The California Supreme Court’s reliance on these cases

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In Morales the Court continued this focus on actual
punishment, eschewing an approach that “would require that
we invalidate any of a number of minor (and perhaps
inevitable) mechanical changes that might produce some
remote risk of impact on a prisoner’s expected term of
confinement.” Morales, 514 U.S., at 508. In both Morales
and Garner the Court did not examine whether the change
was procedural or substantive, but looked only to whether
the new laws that changed parole procedure actually created
a significant risk of prolonged punishment. In Morales, the
Court found it could not, and in Garner, the Court found
that it possibly could, and remanded the case for an
evidentiary hearing. The question which some lower courts
have been grappling with is whether after Collins, Morales,
and Garner some changes that create a significant risk of
increased punishment fall outside the scope of the Ex Post
Facto Clause.

The instant case presents an important opportunity to
resolve that serious question. The California Supreme Court
here rejected the argument that Garner established a
“generally applicable ex post facto standard,” finding instead
that Garner s particularized “effects” inquiry was only “a
means of determining whether application of a new provision
or change in policy that reduces the frequency at which
parole hearings must be held violates the ex post facto
clause.” Rosenkranz III, 29 Cal.4th, at 649, 650 (Appendix
A at 42) (italics in original). By limiting Garner to its facts,
and terming the change in law at issue “procedural,” id., at
650 (Appendix A at 42, 43-44), the California Supreme Court
avoided examining the actual impact of the challenged

is misplaced, however, because here the record proves to a certainty
that Petitioner’s punishment has been increased by a prolonged period
of incarceration due to the retroactive application of § 8(b).

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provision — either on Petitioner in particular, or on the
population of inmates granted parole by the Board in general.
As the state court thus explained, evidence that the Governor
of California has used his power to review parole board
decisions “to deny parole in [117 out of 119] cases in which
the Board has determined that the prisoner is suitable for
parole . . . does not provide any support for the claim that
the application of article V, section 8(b), violates the ex post
facto doctrine.” Jd., at 651 (Appendix A at 45).

Petitioner respectfully requests that the Court grant
certiorari to clarify when the Garner test examining the
effects of a change in rules governing parole must apply.

B. The California Supreme Court Misconstrued Garner

The drafters of the United States Constitution included
the Ex Post Facto Clause out of recognition that the
government’s “responsivity to political pressures poses a
risk that it may be tempted to use retroactive legislation as
a means of retribution against unpopular groups or
individuals.” Landgraf v. USI Film Productions 511 U.S.
244, 266 (1994); U.S. Const., art. I, § 10, cl. 1. To guard
against this danger, states are forbidden to pass a law that
“changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.” Calder
v. Bull, 3 U.S. 386, 390 (1798); see also Beazell v. Ohio,
269 U.S. 167, 169-170 (1925) (“[A]ny statute . . . which
makes more burdensome the punishment for a crime, after
its commission . . . is prohibited as ex post facto.”) Indeed,
even though the decision to release a prisoner on parole is
discretionary, “(t]he presence of discretion does not displace
the protections of the Ex Post Facto Clause. ... The danger
that legislatures might disfavor certain persons after the fact
is present even in the parole context, and the Court has stated

16

that the Ex Post Facto Clause guards against such abuse.”
Garner, 529 U.S., at 253 (citations omitted).

Garner, in examining the extension of the period between
parole hearings from three to eight years, explained that the
ex post facto inquiry turned on: “whether retroactive
application of the change in . . . law create[s] ‘a sufficient
risk of increasing the measure of punishment attached to
the covered crimes.’” Garner, 529 U.S., at 250 (quoting
Morales, 514 U.S., at 509). While concluding that the
changed law in that case appeared not to increase punishment
by its terms, the Garner Court made clear that the prisoner
is entitled to show from “evidence drawn from the rule’s
practical implementation” that “as applied to his own
sentence the law created a significant risk of increasing his
punishment.” Garner, 529 U.S., at 255. The Court
accordingly remanded the case so that appropriate findings
could be made. /d., at 257.

The California Supreme Court refused to give effect to
this aspect of Garner’s holding, concluding instead that
Garner’s as applied test did not establish a “generally
applicable” standard. Rosenkrantz III, 29 Cal.4th, at 649
(Appendix A at 42). As a result, the California court found
irrelevant Petitioner’s evidence that the enactment of
gubernatorial veto authority over parole decisions had, as
applied, created a substantial risk that Petitioner’s punishment
would be increased. In particular, the court rejected as
irrelevant Petitioner’s evidence that the Governor overturned
parole board decisions granting parole in fully 99% of cases.
Id., at 651, 696 (Appendix A at 45-46, 119).

The court’s primary reason for limiting Garner to its
facts is what it termed the “extremely broad scope and
wide-ranging implications” of a contrary holding.

17

Rosenkranitz III, 29 Cal.4th, at 649 (Appendix A at 42) (“were
petitioner’s ex post facto argument correct, every
gubernatorial reversal of a Board decision granting parole
in these cases would have been constitutionally flawed,” id.,
at 638 (Appendix A at 23)), 649 (Appendix A at 41) (“under
petitioner’s reading of Garner it would appear that [§ 8(b)]
would violate the ex post facto clause in every case in which
the Governor reverses a Board decision granting parole”)
(emphasis in original). The state court also warned of a
“slippery slope’”—a ruling in Petitioner’s favor would mean
finding an ex post facto violation every time even minor
procedural changes were implemented, such as “minor
revisions of evidentiary rules” or “innocuous adjustments”
to changes in the membership of the parole board, provided
an individual offender could demonstrate that, as a matter
of practice, the change usually resulted in a greater
punishment than under the previous rule. Rosenkraniz III,
29 Cal.4th, at 649 (Appendix A at 41-42). To avoid this
outcome, the Court limited Garner to its facts and held that
the “significant risk” test does not apply here because § 8(b)
is merely a change in procedure, and therefore is beyond
the reach of the Ex Post Facto Clause under any standard.
Id., at 650-651 (Appendix A at 43-44).

The California court’s ex post facto analysis fails in
multiple respects. First and foremost, as Garner itself
makes plain, this Court has long rejected the distinction
between procedural and substantive changes in law as a basis
for identifying ex post facto violations. See Garner, 529
U.S., at 250; see also Collins v. Youngblood, 497 U.S., at
46; Cummings v. Missouri, 71 U.S. 277, 325 (1866); Weaver
v. Graham, 450 U.S. 24, 31 (1981) (“it is the effect, not the
form, of the law that determines whether it is ex post facto”).
Indeed, the new rule at issue in Garner was purely
procedural; it permitted the state parole board to delay parole

18

consideration hearings for five additional years. Garner,
529 U.S., at 247. The Garner Court did not attempt to
dissect the law to determine whether it is the “type of change
to which the ex post facto clause applies.” Rosenkrantz III,
29 Cal.4th, at 638 (Appendix A at 23). Instead, it remanded
the case for an inquiry into whether the change caused by
the new law created a significant risk of increasing the length
of the prisoner’s incarceration. Garner, 529 U.S.., at 256.
Petitioner here seeks no more than the same factual inquiry
into the effect of the new law.

Under any standard, the California court erred in holding
that the application of § 8(b) to Petitioner did not ““‘increase[]
the punishment for his offense.” Rosenkrantz III, 29 Cal.4th,
at 640 (Appendix A at 26). On the contrary, the change
wrought by Proposition 89 was certain to increase
punishment — both as applied generally to life prisoners as a
group, and without question to Petitioner in particular. As
the dissent below understood, since the Governor of
California already had the ability to reduce the length of
punishment, Cal. Const. art. V, section 8(a), section 8(b)
can only work to the prisoner’s disadvantage. “Although
written neutrally, the only change it made was to allow the
Governor to keep persons incarcerated who otherwise would
be released. It is a new barrier to parole, nothing else.”
Rosenkraniz III, at 695-696 (Appendix A at 119) (Chin, J.
dissenting) (italics in original). Under the new law, the
highest and most visible elected official in the state now
must permit a convicted murderer to be released on parole.
That is a far cry from a slight revision of the evidentiary
rules or a change in the membership of a relatively obscure
administrative body.

The facts here — that the Governor has reversed parole in
all but two of over 100 cases — are undisputed, and no opinion

of the California Supreme Court disputes their general
significance under Garner. See Rosenkraniz III, 29 Cal.4th,
at 638 (Appendix A at 23) (majority finds that if Garner test
applies, as Petitioner argues, prior gubernatorial decisions
are unconstitutional); id., at 687 (Appendix A at 105)
(Werdegar, J. concurring) (if Garner applies § 8(b) “probably”
fails); id., at 693 (Appendix A at 114-115) (Chin, J. dissenting)
(“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”). And, as at least two
California Supreme Court justices recognized, section 8(b)
prolonged Rosenkrantz’s sentence “to a certainty.” As Justice
Chin put it: “But for the Governor’s action, he would now be
released.” Jd. at 693 (Appendix A at 114) (Chin, J. dissenting).

Finally, the state court’s overriding fear — that Petitioner’s
reading of Garner would have wide-ranging implications if
applied in California — is simply unfounded. As indicated
above, the California parole board grants parole to just one
percent of eligible prisoners. Rosenkrantz III, 29 Cal.4th, at
696 (Appendix A at 119) (Chin, J. dissenting) (“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.”’). Robert Rosenkrantz in particular
is a model prisoner without prior criminal history, who,
according to two different panels of the parole board, two
state superior court judges and two panels of the state court
of appeals, should be released on parole. In any event, the
fact that the straightforward application of Garner here would
lead to an outcome other than the one the California Supreme
Court prefers is not a reason for ignoring the clear direction

20

of this Court’s holding.

The California Supreme Court’s decision in the present
case squarely presents the question whether some changes
that create a significant risk of increased punishment fall
outside the scope of the Ex Post Facto Clause. While
implicitly recognizing that the application of § 8(b) to
Petitioner and others prolonged their incarceration, the
Court refused to apply Garner. The Court should grant
certiorari to clarify whether changes in the law that increase
punishment run afoul of the Ex Post Facto Clause.

CONCLUSION

For the reasons noted above, this Court should issue a
Writ of Certiorari to the Supreme Court of California and
reverse the judgment of that Court.

Dated: February 26, 2003
Respectfully submitted,

Donald Specter Alan V. Friedman
Counsel of Record MarkEpstein
Zachary Katznelson Deborah N. Pearlstein

Prison Law Office Munger, Tolles & Olson LLP
General Delivery 355 South Grand Avenue,

San Quentin, CA 94964 35th Floor

(415) 457-9144 Los Angeles, California, 90071

(213) 683-9100
Rowan K. Klein
10573 West Pico Blvd. #854
Los Angeles, CA 90064
(310) 845-1705

Counsel for Petitioner

Appendix A

Supreme Court of California

In re ROBERT ROSENKRANTZ on
Habeas Corpus |

No. $104701

Dec. 16, 2002

29 Cal.4th 616

App. 1
GEORGE, C. J.

“In 1986, petitioner Robert Rosenkrantz was convicted of
second degree murder and was sentenced to an indeterminate
term of *625 imprisonment for 15 years to life, plus two
years because of his use of a firearm in the commission of
the offense. In June 2000, after several hearings before the
Board of Prison Terms (the Board) and rulings by the
superior court and the Court of Appeal, the Board, in
compliance with the mandate of an earlier judicial decision,
found petitioner suitable for parole and set a parole date.
The Governor, however, found petitioner unsuitable for
parole and reversed the Board’s decision. In a petition for
writ of habeas corpus, petitioner challenged on several
grounds the Governor’s decision denying parole. The
superior court granted the petition after concluding that
there was no evidence supporting the Governor’s decision,
and that the Governor’s decision was based upon an
impermissible general policy of automatically denying
parole to prisoners convicted of murder. The Court of Appeal
affirmed the judgment rendered by the superior court,
concluding that the law of the case doctrine supported the
superior court’s determination that there was no evidence
to support the Governor’s decision.

We granted review primarily to consider whether a
decision of the Governor finding a prisoner unsuitable for
parole is subject to judicial review and, if so, under what
standard. After review was granted, petitioner requested this
court to address an additional, threshold issue that petitioner
had not timely p.esented to us-namely, whether the
Governor’s review of the Board’s decision in this case is
barred by the ex post facto clause of the federal and state

a

App. 2

Constitutions, because article V, section 8, subdivision (b)
of the California Constitution (hereafter article V, section
8(b))-the provision that grants the Governor the authority
to review the Board’s parole decisions in a case such as this-
was adopted in 1988, after petitioner had committed the
underlying offense.

Although we are not required to address this belatedly
presented issue, we conclude that it is appropriate to consider
and resolve the ex post facto question in this case. As we
shall explain, in conformity with the views of each of the
state and federal courts that previously has addressed this
ex post facto question, we conclude that petitioner’s ex post
facto claim lacks merit and that the Governor’s review of
the Board’s parole de =1sion in this case did not violate the
ex post facto claus¢ of the federal or state Constitution.

With respect to the principal issue upon which we granted
review, we conclude that a Governor’s decision granting or
denying parole is subject to a limited judicial review to
determine only whether the decision is supported by “some
evidence.” As we shall explain, article V, section 8(b), does
not grant a Governor unfettered discretion over parole
matters, but rather explicitly requires his or her parole
decision to be based upon the same factors that *626 the
Board is required to consider. [FN1] At the time article V,

FN1. Article V, section 8(b), provides in full: “No decision of the
parole authority of this State with respect to the granting, denial,
revocation, or suspension of parole of a person sentenced to an
indeterminate term upon conviction of murder shall become effective
for a period of 30 days, during which the Governor may review the
decision subject to procedures provided by statute. The Governor
may only affirm, modify, or reverse the decision of the parole authority

i

App. 3

section 8(b), was adopted, it was established under California
law that although the Board exercises broad discretion in
determining whether to rescind parole, such decisions are
subject to a form of limited judicial review to ensure that
they are supported by at least “some evidence.” (Jn re Powell
(1988) 45 Cal.3d 894, 904 [248 Cal.Rptr. 431, 755 P.2d
881] (Powell).) We conclude that a Governor’s decisions
under article V, section 8(b), are subject to this same type
of limited judicial review, and that under this standard a court
is authorized to review the factual basis of the Governor’s
decision only to determine whether it is supported by some
evidence relevant to the factors the Governor is required
to consider under article V, section 8(b). This limited
judicial review of a gubernatorial parole decision, for the
purpose of determining whether it is supported by some
evidence, does not usurp the executive’s discretionary
authority over parole matters or otherwise violate the
separation of powers doctrine. Rather, such review simply
ensures that parole decisions are supported by a modicum
of evidence and are not arbitrary and capricious.

With regard to the Governor’s decision in the present case,
we conclude initially that the Court of Appeal erred in
concluding that the law of the case doctrine establishes that
the Governor’s decision is not supported by some evidence.
The prior appeal that was deemed by the appellate court to
constitute the law of the case involved a different case,
different parties, and a different underlying decision denying

on the basis of the saine factors which the parole authority is required
to consider. The Governor shall report to the Legislature each parole
decision affirmed, modified, or reversed, — the pertinent facts
and reasons for the action.”

App. 4

parole, and therefore does not support application of the

__ law of the case doctrine. In addition, after conducting our
own review of the Governor’s decision (set forth in a 12-
page document) reversing the Board’s action granting parole
to petitioner, we conclude that the Governor’s decision in
this case is supported by some evidence in the record, and
further that the record does not support the trial court’s
finding that the Governor’s decision in petitioner’s case
resulted from a blanket policy of denying parole in all cases
in which a prisoner has been convicted of murder.

Accordingly, we shall reverse the judgment of the Court
of Appeal in favor of petitioner and shall direct that the
requested writ of habeas corpus be denied. *627

I
A

In 1986, petitioner was convicted of second degree murder
and was sentenced to an indeterminate term of 15 years to |
life, plus two additional years because the jury found true
an allegation that he personally used a firearm in the
commission of the offense. On appeal, the Court of Appeal
affirmed petitioner’s judgment of conviction. (People v.
Rosenkrantz (1988) 198 Cal.App.3d 1187 [244 Cal.Rptr.
403] (Rosenkraniz I).) Because resolution of the issues in
the present case depends in part upon a consideration of the
circumstances of the offense and the particular verdicts
rendered in petitioner’s trial, we begin by summarizing the
facts of the crime as set forth in Rosenkranz I. (Id. at pp.
1191-1199.) Additional details regarding the circumstances
of the crime and petitioner’s subsequent conduct will be

App. 5

discussed in connection with our analysis of the contentions
of the parties.

At the time of the offense, petitioner was 18 years of age
and resided with his parents and two brothers in Calabasas
in Los Angeles County. Petitioner testified that he knew at
an early age that he was gay but also knew that this
circumstance was unacceptable to his family-particularly
to his father, whom he idolized. Petitioner pretended to be
heterosexual but secretly was able to communicate with and
meet other gay teenagers. Petitioner’s brother Joey, then
16 years of age, suspected that petitioner was gay and shared
this suspicion with Steven Redman, Joey’s 17-year-old
friend. According to petitioner, Redman was a bully and was
preoccupied with hatred of homosexuals, and Joey also
disliked such individuals.

By eavesdropping on petitioner’s telephone
conversations, Joey learned that petitioner planned to
meet another young male at the family’s beach house on
the evening petitioner graduated from high school- Friday,
June 21, 1985. Redman suggested that he and Joey go to
the beach house that night to investigate and gather
information concerning petitioner’s sexual orientation.
Upon arriving at the beach house, Redman and Joey looked
through a window and observed petitioner, two other
males, and one female drinking and watching television.

When petitioner and his male companion entered a
bedroom, and Joey and Redman no longer could view
petitioner’s activities, Joey wanted to leave. Redman,
however, decided that he would run into the house and
take photographs. Before he did so, Redman and Joey

App. 6

retrieved a flashlight and a stun gun from Joey’s
automobile. Joey unlocked the door to the house and
Redman kicked it in, shouting, “Get the fuck out of here
you faggots.” A *628 physical confrontation ensued in
which Joey burned petitioner’s hands by firing the stun
gun, Redman struck petitioner several times with the
flashlight, petitioner’s companion punched Redman, and
petitioner burned Joey on the face after having gained
control of the stun gun. Petitioner’s nose was broken
during the altercation.

The fighting ceased when petitioner’s other friends
intervened, but petitioner then obtained a BB gun from his
automobile and attempted to prevent Redman and Joey from
leaving the house. Joey stated that he had recorded telephone
calls confirming petitioner’s homosexuality, and that the
tapes were in his automobile. Joey managed to escape when
petitioner accompanied him to retrieve the tapes. Because
petitioner had taken the keys to Joey’s automobile, however,
Joey telephoned their father, who drove to the beach house
and spoke with petitioner. Petitioner surrendered Joey’s keys
to his father. Before Redman and Joey left, Redman stated
to petitioner’s father that he and Joey had observed
petitioner with another male who had his pants down.

The next morning, petitioner insisted to his father that he
was heterosexual and that Redman and Joey had lied.
Petitioner’s father, very upset by the possibility that
petitioner might be gay, broke down and cried during the
conversation with petitioner. Petitioner and Joey had
decided that Joey would inform their father that the entire
incident had been a joke, and Joey recanted his story
concerning petitioner’s homosexual conduct. Redman,

App. 7

having been summoned by the boys’ father, modified his
story regarding what he had observed the previous evening,
but petitioner’s father gradually realized that petitioner was
gay. He confronted petitioner and angrily questioned him
regarding his activities and contacts. Petitioner gathered his
possessions and left the house, sleeping in his automobile
that night.

On Monday, June 24, petitioner went to a shooting range
and rented an Uzi semiautomatic nine-millimeter carbine.
Petitioner testified that he had planned to kill himself at the
shooting range, but then decided to use the gun to teach
Redman a lesson. After shooting the weapon on the firing
range for 10 or 15 minutes, petitioner stated to the manager
that he wished to purchase an Uzi and did not want to wait
for it to be ordered. When the manager refused to sell him
the weapon he had rented, petitioner left. Also on Monday,
petitioner visited a sporting goods store and arranged to
purchase an Uzi that would be available on Wednesday, June
26.

Petitioner was employed at a restaurant and worked there
during this period. On Tuesday, June 25, petitioner stated to
a coworker that he had purchased a gun and was planning to
kill his brother. Petitioner also informed another coworker
that Redman and Joey had humiliated petitioner and that he
was obtaining a gun. *629

On Wednesday, June 26, petitioner obtained the Uzi he
had ordered and purchased 250 rounds of ammunition.
Petitioner testified that he telephoned Redman that night,
but Redman hung up on him. Petitioner thought that he might
use the Uzi to force Redman to recant what he had told

App. 8

petitioner’s father regarding petitioner’s sexual activities.
On Thursday, having telephoned two individuals who knew
Redman, petitioner succeeded in learning where Redman
resided. Petitioner again telephoned Redman, who refused
to recant his statements regarding petitioner’s sexual
orientation.

On Thursday night, petitioner traveled to the condominium
complex where Redman resided and unsuccessfully
attempted to locate Redman’s vehicle. Petitioner spent the
night in his own automobile near the complex. The next
morning, June 28, when Redman was driving away from his
home, petitioner used his vehicle to block Redman’s vehicle
and confronted Redman, who asked petitioner what he
wanted. Holding the Uzi, which was loaded and ready to be
fired, petitioner responded, “I think you know what I want.”
According to petitioner, Redman called him a “faggot” and
said petitioner was in a lot of trouble. Petitioner twice asked
Redman to accompany him to petitioner’s home to recant
what Redman had said. Redman responded, “I’m not going
anywhere with you, you goddam faggot.” When Redman
asked petitioner what he was going to do with the weapon,
petitioner stated that he was going to use it to damage
Redman’s car. Redman reiterated that he would not go
anywhere with petitioner. Petitioner then pointed the gun at
Redman and began shooting. Redman sustained at least 10
gunshot wounds, including six wounds to the head. There
was evidence that the Uzi had been fired at very close range.
Redman died from the shooting.

Petitioner walked away from the body and entered his
vehicle, still pointing the weapon at Redman. In a telephone
conversation that morning with Joey, petitioner cried and

App. 9

stated that he had done something terrible to Redman. That
evening, petitioner telephoned a deputy sheriff who also had
been petitioner’s teacher at school. In this conversation,
which was recorded, petitioner admitted the shooting and
expressed attitudes ranging from remorse to defiance.

In the weeks following the shooting incident, petitioner
traveled to various towns in northern California and Oregon,
spending time with friends. Approximately one month after
the shooting, petitioner, accompanied by his attorney,
surrendered to the investigating deputy sheriff. Petitioner
was charged with murder (Pen. Code, § 187), and the
complaint also alleged that petitioner personally used a
firearm in the commission of that offense (id., § 12022.5).

At trial the defense presented expert testimony indicating
that the dramatic disclosure of petitioner’s sexual
orientation, and his father’s reaction to it, *630 caused
petitioner to suffer extreme stress and emotional turmoil,
which impaired his ability to think rationally during the week
preceding his commission of the crime and, in particular, at
the time of the crime. Although a defense expert testified
that in his opinion petitioner had not planned to kill Redman
during the week preceding commission of the crime, the
expert further testified that petitioner might have possessed
the intent to kill Redman at the time of the crime.

The jury was instructed on first degree murder, second
degree murder, and voluntary manslaughter. As stated above,
the jury found petitioner guilty of second degree murder
and found true the allegation regarding use of a firearm.

App. 10

The proceedings related to petitioner’s application for
parole have been protracted. We summarize the pertinent
events and proceedings, relying in part upon the history set
forth in the Court of Appeal’s decision in In re Rosenkrantz
(2000) 80 Cal.App.4th 409, 413-423 [95 Cal.Rptr.2d 279]
(Rosenkrantz II) as well as the Court of Appeal’s opinion in
the present case.

1

At petitioner’s first parole hearing in December 1994,
the Board set his minimum parole eligibility date as January
23, 1996. At a parole suitability hearing in June 1996, the
Board’s hearing panel found petitioner suitable for parole
and recommended a release date. Its decision relied upon
the circumstances that petitioner (1) had no juvenile record
or criminal history aside from the offense of which he was
convicted, (2) had a stable social history, (3) excelled in
school, (4) had no involvement with drugs or alcohol and
no gang involvement, (5) required only one more semester
of classes before receiving a bachelor of arts degree, (6)
participated in extensive self-help and therapy programming
to understand why he had reacted violently in committing
the offense, (7) committed the crime as a result of
significant stress in his life, (8) had realistic parole plans,
including a job offer and very strong family support, (9)
engaged in no disciplinary misconduct while in prison, (10)
showed signs of remorse, and (11) accepted responsibility
for his criminal behavior. In addition, the trial judge and the
district attorney had expressed support for granting parole
to petitioner, and the psychological report prepared for the
Board was positive.

App. 11

A review panel of the Board disapproved the hearing
panel’s recommendation of a release date, however, and
identified issues in need of further *631 review. For
example, the review panel observed that petitioner’s version
of the altercation at the beach house differed from the
version of events recounted by his brother Joey, suggesting
that petitioner might have attempted to portray the events in
a light more favorable to himself. In addition, the review
panel stated that investigatory reports suggested petitioner
had planned the killing and had threatened Redman the day
before the murder, and that after the murder petitioner had
threatened Redman’s family and had stated to another
individual that petitioner “did society a favor.”

In December 1996, a rehearing panel of the Board also
found that petitioner was not suitable for parole. This panel
considered a letter from the investigating homicide
detective, which addressed some of the points in the review
panel’s decision and reflected the detective’s view that
petitioner should be paroled. The detective stated that when
investigating the crime, he had found a knife on Redman’s
body. The detective also expressed his opinion that
statements by Redman’s mother, relating that petitioner had
made threatening phone calls before his arrest, were
unreliable. The decision of the rehearing panel to deny
parole was based primarily upon its assessment that
petitioner’s offense was committed in a dispassionate and
calculated manner, and that petitioner therefore would pose
an unreasonable risk of danger to society if released.

Another parole suitability hearing was conducted in August
1997. In addition to information received at the prior
hearings, the Board considered a current recommendation
for parole from petitioner’s correctional counselor, a

App. 12

psychological evaluation prepared for the Board that was
favorable to petitioner, several letters of support, and
information indicating that the district attorney was not
opposed to parole. The Board again concluded that petitioner
was not suitable for parole-despite positive factors similar
to those supporting the June 1996 finding of parole
suitability-because of the circumstances of the offense and
because petitioner had not participated sufficiently in
beneficial self-help and therapy programming.

The next parole hearing was held in August 1998. Ina
progress report, petitioner’s conduct in prison was described
as exceptional. By a vote of two to one, petitioner’s request
for a finding of parole suitability again was denied on the
ground that the offense was carried out in a manner that
exhibited a callous disregard for the life and suffering of
another, and that petitioner therefore would pose an
unreasonable risk of danger to society if released.

Meanwhile, petitioner had filed a petition for writ of
habeas corpus seeking review of the parole suitability
decisions rendered by the Board in *632 December 1996
and August 1997. In April 1999, the superior court issued
an order granting the petition. The court observed that the
Board had denied parole primarily because it determined
that the offense was dispassionate, calculated, and carried
out in a manner that exhibited a callous disregard for human
life. According to the court, these findings were inconsistent
with the evidence and with the jury’s implicit findings in the
prior criminal action that petitioner did not plan,
premeditate, or deliberate the murder. The superior court’s
order stated that unless evidence of changed circumstances
or new information was presented to the Board, the Board

App. 13

was required to set a parole date for petitioner commensurate
with his conviction for second degree murder-and not with
the offense of first degree murder. The trial court also found
that two commissioners who had participated in the Board’s
parole decision were biased against petitioner and should
not participate in the parole hearing. The Board appealed
from the superior court’s April 1999 order granting the
petition for writ of habeas corpus.

While the appeal was pending, the Board complied with
the superior court’s order and conducted a parole suitability
hearing in September 1999. The Board considered current
letters in support of petitioner from the trial judge who
presided over his criminal trial, from a captain in the sheriff’s
department homicide division, from the investigating deputy,
and from Redman’s grandmother. The panel nonetheless
found petitioner unsuitable for parole, again determining
that the positive aspects of petitioner’s behavior did not
outweigh the circumstance that the offense was carried out
in an especially cruel or callous manner, in a dispassionate
or calculated manner (such as an execution-style murder),
and in a manner demonstratiu * an exceptionally callous
disregard for human suffering. Nevertheless, believing that
the superior court’s order required it to set a parole date,
the Board granted parole but declined to set a release date
pending an opportunity for the Governor to exercise his
authority to review the decision.

In November 1999, the Governor invoked his authority
pursuant to article V, section 8(b), to reverse the Board’s
decision to grant parole. The Governor stated that the Board’s
finding of suitability was based solely upon the superior

App. 14

court’s order, which then was still pending on appeal. [FN2]

In January 2000, the superior court ordered the Board to
hold a new suitability hearing within 60 days, to find
petitioner suitable for parole, and to set a parole date
commensurate with his conviction for second degree
murder. The Board filed a petition for writ of mandate
seeking to set aside the superior court’s order. The Court of
Appeal issued an order to show *633 cause and consolidated
the writ proceeding with the Board’s appeal from the April
1999 order of the superior court.

In Rosenkrantz IT, supra, 80 Cal.App.4th 409, the Court
of Appeal affirmed the superior court’s April 1999 order
requiring the Board to set a parole date for petitioner
commensurate with his conviction of second degree
murder, unless new information was presented to the Board.
The appellate court determined that the factual
determinations underlying the Board’s finding of parole
unsuitability were not supported by any evidence. For
example, the Court of Appeal found no evidence that
petitioner displayed an exceptionally callous disregard for
human suffering or that his crime involved an execution-
style murder. Like the superior court, the Court of Appeal
relied in part upon the circumstance that petitioner had been
acquitted of first degree murder. The Court of Appeal also
found there was no evidence indicating that petitioner
required additional therapy in order to cope with stress in a
nondestructive manner or not to pose a threat to others. With

FN2 The propriety of the Governor’s November 1999 decision
reversing the Board’s decision granting parole is not before us in the
present case.

App. 15

regard to the Board’s writ petition challenging the superior
court’s order requiring the Board to find petitioner suitable
for parole, the appellate court considered the matter not
ripe for decision, because the Board had not yet “satisfied
the spirit” of the superior court’s April 1999 order requiring
a new suitability hearing. (/d. at p.427.) The Court of Appeal
ordered the Board “to schedule and commence a new
suitability hearing ... and to render a new determination in
strict accordance with both the letter and the spirit of the
views expressed in this opinion.” (/d. at p. 429.) In the course
of its decision in Rosenkrantz II, the Court of Appeal
emphasized “that the superior court will retain jurisdiction
over this matter, and that it will have the power to enforce
this order as well as its own orders, by contempt or by such
other means as it deems appropriate under the
circumstances.” (/d. at p. 428.)

2

We finally summarize the most recent proceedings that
directly gave rise to the present dispute.

In accordance with the decision in Rosenkrantz II, supra,
80 Cal.App.4th 409,the Board held a new parole suitability
hearing in June 2000. At this hearing, a representative of
the district attorney’s office stated that the district attorney
now was opposed to parole. In addition, letters from the
sheriff’s department expressed opposition to parole, as did
a letter written by the victim’s father. The hearing panel
found, among other things, that petitioner had committed
the crime as the result of significant stress in his life, that
he had shown remorse and had accepted responsibility for
his *634 crime, and that his most recent psychological
report demonstrated that he presented a very low risk for

App. 16

* future violence and that he clearly was not a criminally
oriented individual. The Board found petitioner suitable for
parole and determined that he would not pose an unreasonable
risk of danger to society or a threat to public safety if released
from prison. The Board made clear, however, that had it
not been constrained by the order of the superior court, it
would have reached a different decision.

In October 2000, again exercising his authority pursuant
to article V, section 8(b), the Governor reversed the Board’s
finding of suitability. Ina 12-page written decision, which
we shall describe in more detail below, the Governor stated
that in his view petitioner would pose a significant risk of
danger to society if released from prison. The Governor
determined that the murder committed by petitioner was
not a spontaneous crime, but rather was preceded by “a full
week of careful preparation, rehearsal and execution.” The
Governor stated that the stress petitioner experienced
regarding the disclosure of his sexual orientation “does not
minimize the viciousness of this murder.” Furthermore,
according to the Governor, petitioner demonstrated a lack
of remorse by affirming his violent act after the crime was
committed, attempting to mitigate his role in the crme,
portraying himself as a victim, lying about numerous aspects
of the murder, and not taking full responsibility for the
crime. The Governor stated that petitioner “should be
grateful that he was not convicted of first degree murder,”
because there appears to have been ample evidence to
support such a conviction. The Governor concluded that
petitioner’s good behavior and accomplishments in prison
did not outweigh the circumstances of the crime, and that
petitioner “has not served sufficient time in prison for this
very serious crime.”

App. 17

In November 2000, petitioner filed an amended petition
for writ of habeas corpus in which he challenged the
Governor’s reversal of the Board’s decision granting parole.
The Governor filed a motion to disqualify (Code Civ. Proc.,
§ 170.6) the Honorable Kathryn Stoltz, who had presided
over the prior habeas corpus proceeding in which petitioner
had been granted relief. Judge Stoltz struck the challenge as
untimely, but the Court of Appeal reversed that order. The
appellate court, in an unpublished, divided decision (Davis
v. Superior Court (Rosenkrantz) (Feb. 22, 2001, B146421)
(Rosenkrantz III)), determined that petitioner’s amended
petition constituted an entirely new proceeding in which the
Governor had appeared as a party for the first time and in
which petitioner challenged the Governor’s independent
parole decision. According to the Court of Appeal, the
proceeding did not constitute a continuation of the earlier
proceedings in which the superior court had reviewed the
Board’s parole decision. Therefore, the appellate court
directed the superior court to grant the Governor’s motion
to disqualify *635 the judge pursuant to Code of Civil
Procedure section 170.6 and to assign the case to another
judge for all purposes.

On remand before a different judge, the superior court
held an evidentiary hearing and, in June 2001, granted the
petition for writ of habeas corpus. The trial court determined
that due process of law required the Governor’s parole
decision to be supported by some evidence, and that the
materials reviewed by the Governor did not include any
evidence supporting his decision. The trial court therefore
ordered that petitioner be released on parole forthwith. As
an alternative ground for its order, the superior court found

App. 18

that petitioner was denied an individualized determination
of his suitability for parole, because the Governor had
adopted an unconstitutional blanket policy of denying parole
to prisoners serving indeterminate-term-to-life sentences.
This policy, the court determined, indicated that the
Governor was biased against murderers as a class. [FN3]

The Governor appealed from the superior court’s decision
and sought a stay of the order requiring petitioner’s release.
The Court of Appeal denied the request for a stay, but this
court stayed the order pending the final determination of
the Governor’s appeal. In another divided decision, the Court
of Appeal affirmed the superior court’s order granting the
petition for writ of habeas corpus and requiring petitioner’s
release on parole. (Jn re Rosenkrantz (2002) 95 Cal.App.4th
358 [116 Cal.Rptr.2d 69], review granted May 1, 2002,
S104701 (Rosenkrantz IV).) The majority opinion in
Rosenkraniz IV concluded that the superior court possessed
jurisdiction to review the Governor’s decision in order to
determine whether it was supported by some evidence. The
appellate court rejected the Governor’s contention that the
separation of powers doctrine precluded the judicial branch
from reviewing his decision to reverse the Board’s
determination that petitioner should be paroled. The court
further determined that such a decision by a governor must
be based upon the same record that was before the Board

FN3 Although the superior court ruled in petitioner’s favor on the
above two issues, that court rejected petitioner’s separate claim that
the Governor’s exercise of the review authority granted by article V,
section8(b), constituted a violation of the ex post facto clause. As we
shall explain, although petitioner did not timely present the ex post
facto claim in the proceedings now pending before us, we address
this issue below. (See post, at pp. 636-652.)

App. 19

and upon the same factors the Board was required to
consider. Because the Court of Appeal had held in
Rosenkraniz II that there was no evidence supporting the
Board’s finding that petitioner was not suitable for parole,
the appellate court concluded that the doctrine of law of the
case established the absence of any evidence supporting the
Governor’s finding that petitioner was not suitable for parole.
Accordingly, the Court of Appeal held in Rosenkrantz IV
that the Governor’s decision did not afford petitioner due
process of law. *636

The author of the majority opinion of the Court of Appeal
decision in Rosenkrantz IV also authored a concurring
opinion stating that sufficient evidence had been presented
to support the superior court’s finding that the Governor had
adopted a policy of not granting parole to individuals
convicted of murder and sentenced to an indeterminate term.
The concurrence agreed with the trial court that this policy
precluded the individualized determination of parole
suitability required by due process of law. With regard to the
application of the law of the case doctrine, the concurring
opinion expressed the view that the underlying habeas corpus
proceeding was the same proceeding considered in
Rosenkranz Il, despite the addition of the Governor as a party.

The dissenting opinion in Rosenkrantz IV concluded that the
law of the case doctrine did not apply, because, as established
in Rosenkraniz IIT, the habeas corpus proceeding under review
constituted an entirely new proceeding in which the Governor
had appeared for the first time. The dissent further determined
that even if the law of the case doctrine applied under the
circumstances, the statements in Rosenkrantz I] that there was
no evidence supporting a finding of parole unsuitability were

App. 20

dicta. Furthermore, the dissent disagreed with the conclusion
in Rosenkrantz II that the circumstances of the commitment
offense that would have supported a first degree murder
conviction could not be considered in determining suitability
for parole. The dissenting opinion found that the Governor
properly had considered the relevant factors and that his
decision was supported by some evidence. Finally, the dissent
found the evidence insufficient to support the trial court’s
finding that the Governor has a blanket policy of denying parole
to murderers.

We granted the Governor’s petition for review and granted
petitioner’s motion to expedite the appeal. Our stay of the
order that required petitioner’s release remains in effect.

il

Before addressing the principal issue upon which we
granted review-i.e., whether a decision issued by the
Governor denying or granting parole is subject to judicial
review, and, if so, under what standard-we consider a separate
issue that petitioner belatedly has brought before the court.
Although petitioner did not timely raise the point in his
answer to the Governor’s petition for review, in his brief on
the merits filed in this court petitioner requests that we
nonetheless consider a threshold question that logically
precedes the question of whether the Governor’s decision
is subject to judicial review-namely, whether it was
constitutionally permissible for *637 the Governor to have
exercised the review authority afforded by article V, section
8(b), in this case at all. Petitioner argues in this regard that
because he committed the underlying offense in 1985, prior
to the adoption of article V, section 8(b), in 1988, the
Governor’s denial of parole pursuant to the review authority

App. 21

afforded by article V, section 8(b), constitutes a violation
of the ex post facto provisions of the federal and state
Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, §
9.) (1a) Petitioner maintains that application of article V,
section 8(b), improperly permitted the Governor to extend
petitioner’s incarceration retroactively (by denying parole)
after the Board-which had the final say on parole prior to
the adoption of article V, section 8(b)-had decided in favor
of granting parole.

Although we could decline to address the ex post facto
claim because the issue was not timely presented (see Cal.
Rules of Court, rule 28(e)), we conclude that it is appropriate
to exercise our discretion to resolve this issue, because the
ex post facto question is an important one that affects not
only the present case but numerous other pending matters,
and because we conclude that the issue properly may be
decided as a matter of law. Under the circumstances, we
believe that the administration of justice would not be served
by leaving this issue unresolved at this juncture. At our
request, the parties have filed supplemental briefs addressing
the ex post facto question.

A

At the outset, we observe that petitioner is not in the best
position to claim that article V, section 8(b), has worked
unfairly to his disadvantage by permitting the Governor to
substitute his determination as to petitioner’s suitability for
parole for the evaluation of petitioner’s suitability reached
by the Board. As the factual recitation set forth above
indicates, in this case the Board, exercising its own judgment
and discretion, determined- largely on the basis of the nature
and circumstances of the offense-that petitioner was not

App. 22

yet suitable for parole. It was only under the compulsion of
the appellate court’s decision in Rosenkraniz II, supra, 80
Cal.App.4th 409, finding that the Board’s decision denying
parole was not supported by any evidence and ordering the
Board- under the threat of contempt-to grant parole, that
the Board ultimately issued a decision granting parole to
petitioner. [FN4] Accordingly, from a realistic perspective,
petitioner cannot maintain persuasively that in this instance
article V, section 8(b), has resulted in the denial of *638
parole of an individual whom the Board, in the exercise of
its independent judgment, has determined is suitable for
parole. |
B

The flaw in petitioner’s ex post facto claim, however, is
not confined to the particular circumstances of this case.
Article V, section 8(b), was added to the California
Constitution in 1988, and for nearly a decade and a half
California governors have exercised the authority afforded
by this provision to reverse parole decisions involving well
over 100 murderers, virtually all of whom committed their
crimes prior to the adoption of this constitutional provision.

FN4 The circumstance that the narole board acted under compulsion
is underscored by the appellate court’s inclusion of the following
unusual (and, in our view, questionable) language in its decision in
Rosenkrantz II, threatening the members of the parole board wiw
contempt: “We anticipate that the Board will find Rosenkrantz suitable
for release on parole and that a parole date will be set. We emphasize,
however, that the superior court will retain jurisdiction over this matter,
and that it will have the power to enforce this order as well as its own
orders, by contempt or by such other means as it deems appropriate
under the circumstances.” (Rosenkrantz II, supra, 80 Cal.App.4th
409, 428.)

App. 23

[FN5] Were petitioner’s ex post facto argument correct,
every gubernatorial reversal of a Board decision granting
parole in these cases would have been constitutionally
flawed. It would be surprising, to say the least, to discover
such a fundamental constitutional problem at this late date.
As we shall see, however, petitioner’s ex post facto claim is
not meritorious. The governing authorities establish that the
type of procedural change implemented by article V, section
8(b)-i.e., a change that simply created a new level of review,
within the executive branch, of parole decisions concerning a
specified category of prisoners (thereby changing the identity
of the ultimate decision maker within the executive branch
for such parole decisions), but that did not change the
substantive standard governing the grant or denial of parole-
is not the type of change to which the ex post facto clause
applies.

We begin with an overview of the purpose and reach of the
ex post facto clause. In People v. Frazer (1999) 21 Cal.4th
737, 754 [88 Cal.Rptr.2d 312, 982 P.2d 180], we explained
that “[t]he ban on ex post facto legislation stems from the
excesses of colonial rulers in using retrospective legislation
as a means of political warfare and retribution. [Citations. } It
ensures the citizenry has ‘fair warning’ of the conduct

FNS5 An article in the September 24, 2002, edition of the San
Francisco Daily Journal reported that, as of that date, Governor Davis
had reversed 117 decisions granting parole tc convicted murderers
and kidnappers. (Blumberg, Panel Finds No Objection to
Governor's Parole Policy, S.F. Daily J. (Sept. 24, 2002) p. 1.) An
article in the Los Angeles Times reported that Governor Wilson
rejected 20 parole recommendations during his tenure. (Lesher, Davis
Takes Hard Line on Parole for Killers, L.A. Times (Apr. 9, 1999)
p. A-3.)

App. 24

proscribed by law and of the penalties imposed for violating
those proscriptions. [Citations.] In this way, individuals are
free to act in reliance on the law without fear that their conduct
will be made punishable in a ‘vindictive’ or ‘arbitrary’ fashion
after it has occurred. [Citation.]” (Fn. omitted.)

In Collins v. Youngblood (1990) 497 U.S. 37 [110 S.Ct.
2715, 111 L.Ed.2d 30] (Collins), the United States Supreme
Court undertook a comprehensive *639 review of the history
and scope of the federal constitutional ex post facto clause in
evaluating an ex post facto challenge to a change in Texas law,
enacted after the crime at issue was committed, that for the
first time authorized a court in that state to reform an improper
jury verdict in a criminal proceeding rather than require a
remand for a new trial. In analyzing the ex post facto claim in
Collins, the high court observed that early opinions of the
United States Supreme Court accurately had explained that
the phrase “ ‘ex post facto law’ was a term of art with an
established meaning at the time of the framing of the
Constitution. [Citations.]” (/d. at p.41 [110 S.Ct. at p.2718].)
As the court in Collins noted (id. at pp. 41-42 [110 S.Ct. at
pp. 2718-2719]), that established meaning was first set forth
in Justice Chase’s opinion in Calder v. Bull (1798) 3 U.S. (3
Dall.) 386, 390- 391 [1 L.Ed. 648, 651], and later was
summarized in Beazell v. Ohio (1925) 269 U.S. 167, 169-
170 [46 S.Ct. 68, 68, 70 L.Ed. 216]: “It is settled, by decisions
of this Court so well known that their citation may be
dispensed with, that any statute [1] which punishes as a crime
an act previously committed, which was innocent when done;
[2] which makes more burdensome the punishment for a crime,
after its commission, or [3] which deprives one charged with
crime of any defense available according to law at the time
when the act was committed, is prohibited as ex post facto.”

App. 25

The court in Collins acknowledged that there was some
disparity in United States Supreme Court decisions applying
the ex post facto clause over the years, and that on occasion
the court had interpreted the clause not only as directed at
those types of legislative changes that fell within the specific
categories set forth in Calder and Beazell but more broadly
as encompassing any change that “ ‘alters the situation of a
party to his disadvantage’ “ (Collins, supra, 497 U.S. at p. 46
[110 S.Ct. at p. 2721]) or that deprives a criminal defendant
of a “ ‘substantial right involved in his liberty.’ “ (/d. at p. 47
[110 S.Ct. at pp. 2721-2722], quoting Kring v. Missouri
(1883) 107 U.S. 221 [2 S.Ct. 443, 27 L.Ed. 506] (Kring),
and Thompson v. Utah (1898) 170 U.S. 343 [18 S.Ct. 620,
42 L.Ed. 1061] (Thompson).) Finding that the broader
characterization of the ex post facto clause reflected in Kring
and Thompson was inconsistent with the origin and intended
scope of this constitutional provision, the court in Collins
explicitly overruled Kring and Thompson (Collins, supra,
497 US. at pp. 50, 52 [110 S.Ct. at pp. 2723, 2724]), and
reaffirmed that “[t]he Beazell formulation is faithful to our
best knowledge of the original understanding of the Ex Post
Facto Clause.” (Id. at p. 43 [110 S.Ct. at p.2719].) The court
in Collins then restated the scope of the prohibition
established by the ex post facto clause more concisely as
follows: “Legislatures may not retroactively alter the
definition of crimes or increase the punishment for criminal
acts.” (Ibid., italics added.) (2) Since its 1990 decision in
Collins, the high court consistently has adhered to its *640
holding in Collins that the ex post facto clause is directed
only to changes in law that (1) retroactively alter the definition
of a crime or (2) retroactively increase the punishment for
criminal acts. (See, e.g., California Dept. of Corrections v.
Morales (1995) 514 U.S. 499, 506, fn. 3 [115 S.Ct. 1597,

App. 26

1602, 131 L.Ed.2d 588] (Morales) [“After Collins, the focus
of the ex post facto inquiry is not on whether a legislative
change produces some ambiguous sort of ‘disadvantage,’ ...
but on whether any such change alters the definition of criminal
conduct or increases the penalty by which a crime is
punishable.”}; Lynce v. Mathis (1997) 519 U.S. 433, 441 [117
S.Ct. 891, 895-896, 137 L.Ed.2d 63].) [FN6]

(1b) In this case, petitioner does not argue that the
enactment of article V, section 8(b), “altered the definition”
of any crime, but he asserts that the provision “increased
the punishment” for his offense. Under the ordinary
meaning of this language, however, it cannot reasonably be
said that the adoption of article V, section 8(b), increased
the punishment for petitioner’s offense. At the time
petitioner committed the underlying offense, second degree
murder was punishable by a sentence of imprisonment from
15 years to life (with the possibility of parole), and after
the adoption of article V, section 8(b), the term of
petitioner’s sentence remains imprisonment from 15 years
to life (with the possibility of parole). Furthermore, article
V, section 8(b), did not make any changes in the substantive
standard that governs the determination of petitioner’s

FN6 Past cases establish that the ex post facto clause set forth
in the California Constitution (Cal. Const., art. I, § 9) embodies
the same protection afforded by the federal ex post facto clause. 4
(See, e.g., Tapia v. Superior Court (1991) 53 Cal.3d 282, 295- :
297 [279 Cal.Rptr. 592, 807 P.2d 434]; People v. Frazer, supra, q
21 Cal.4th 737, 754, fn. 15.) Our decision in Frazer makes it clear
that the analysis in Collins regarding the proper scope of the federal
ex post facto clause applies as well to the scope of the California ex
post facto clause. (See Frazer, supra, 21 Cal.4th at p. 754 et seq.

[analyzing and applying Collins}.)

App. 27

suitability for parole; indeed, article V, section 8(b),
explicitly provides that the Governor, in reviewing the parole
board’s decision, is to apply the same factors as the Board.
The only change effected by article V, section 8(b), is the
institution of an additional level of discretionary review of
the Board’s decision granting or denying parole, resulting
merely in a change in the identity of the entity or official
within the executive branch that may make the ultimate
decision on parole. Prior to the adoption of article V, section
8(b), the only reasonable expectation that an individual in
petitioner’s position would have had with regard to
punishment was that he or she would receive a sentence of
15 years to life imprisonment and that, after serving the
minimum term, he or she would be entitled to have a public
official exercise discretion with regard to his or her
suitability for parole under then existing standards. Such an
individual in petitioner’s position had no reasonable
expectation regarding the identity of the person or persons
who would exercise discretion in evaluating his or her
suitability *641 for parole, or that the person or persons
who would make such a decision would not change over time.
Accordingly, under the ordinary meaning of the controlling
language in Collins, it appears clear that the application of
the procedure set forth in article V, section 8(b), to an
individual who committed a criminal offense prior to its
enactment does not increase the punishment for such crime.

Petitioner has not cited any case in which a provision
4 comparable to article V, section 8(b), has been held to
constitute an increase in punishment for purposes of the ex
post facto clause. In past decisions, the United States
Supreme Court has found the ex post facto clause applicable
to (1) a provision that increased the minimum sentence a

App. 28

trial court could impose for an offense (Lindsey v.
- Washington (1937) 301 U.S. 397 [57 S.Ct. 797, 81 L.Ed.
1182]), (2) a provision that altered, to a prisoner’s detriment,
the substantive standard that was applied in determining the
“gain time” credit that a prisoner could earn in prison to
reduce his term of imprisonment (Weaver v. Graham (1981)
450 U.S. 24 [101 S.Ct. 960, 67 L.Ed.2d 17]), (3) a provision
that increased the “presumptive sentencing range” for an
offense committed prior to its adoption (Miller v. Florida
(1987) 482 U.S. 423 [107 S.Ct. 2446, 96 L.Ed.2d 351]),
and (4) a provision that retroactively cancelled
“overcrowding credits” that had been awarded to a prisoner,
resulting in the reimprisonment of the prisoner after he had
been released from prison (Lynce v. Mathis, supra, 519
U.S. 433). The high court, however, never has found a
provision similar to article V, section 8(b), to constitute
the type of measure to which the ex post facto clause applies.

Furthermore, petitioner’s claim that the ex post facto
clause prohibits the Governor from exercising the authority
afforded by article V, section 8(b), in any case in which a
prisoner committed the underlying offense prior to the
adoption of that provision, has been squarely and uniformly
rejected by each of the prior California and federal decisions
that have addressed the issue.

Just a few years after article V, section 8(b), was added to
the state Constitution, the same ex post facto claim that is
advanced by petitioner in this case was presented to the
Court of Appeal in Jn re Arafiles (1992) 6 Cal.App.4th 1467
[8 Cal.Rptr.2d 492] (Arafiles), certiorari denied (1993) 507
U.S. 934 [113 S.Ct. 1321, 122 L.Ed.2d 707]. In analyzing
the ex post facto contention, the court in Arafiles observed

App. 29

that “[a]pplication of section 8(b) to [petitioner] has not
changed and cannot change the quantum of punishment
' annexed to his crime when he was convicted. Indeed, nothing
within section 8(b) empowers the Governor to increase
petitioner’s sentence. Section 8(b) simply allows for an
additional level of discretionary review of parole decisions
regarding murderers serving an indeterminate life sentence.
*642 Such an adjustment to the procedure for reviewing
parole release decisions is collateral to the penalty itself.
Section 8(b) is not ex post facto as applied to petitioner.”
(6 Cal.App.4th at pp. 1484-1485.)

it oe, arn me SACHA SRE

The court in Arafiles found support for its conclusion in
the United States Supreme Court’s decision in Mallett v.
North Carolina (1901) 181 U.S. 589 [21 S.Ct. 730, 45
L.Ed. 1015] (Mallett). In Mallett, two defendants who had
been convicted in a state criminal trial had appealed their
convictions to the state appellate court, which had ruled in
their favor and ordered a new trial. At the time the defendants
committed their offense, the People had no right to appeal
from an appellate court decision granting a new trial to a
criminal defendant, but-while the appeal in Mallett was
pending-legislation was enacted granting the prosecution the
right to appeal such a decision of the lower appellate court
to the state supreme court. In Mallett, after the prosecutor
exercised this right, the state supreme court reversed the
lower appellate court decision and remanded the case to
the trial court for execution of the original sentence. The
defendants then sought relief in the United States Supreme
Court, contending that the new state law granting the
prosecution the right to appeal to the state supreme court
violated the ex post facto clause when applied tc a defendant
who committed his crime before the new law was enacted.

App. 30

In its decision in Mallett, supra, 181 U.S. 589, the United
~ States Supreme Court emphatically rejected the defendants’
ex post facto claim, explaining that, as stated by the North
Carolina Supreme Court, “ ‘defendants had no “ vested rights”
in the remedies and methods of procedure in trials for crime.
They cannot be said to have committed this crime relying
upon the fact that there was no appeal given the state in such
cases.” “ (Id. at p. 593 [21 S.Ct. at p. 732].) “ ‘So far as mere
modes of procedure are concerned a party has no more right,
in a criminal than in a civil action, to insist that his case
shall be disposed of under the law in force when the act to
be investigated is charged to have taken place.’ “ (/d. at pp.
596-597 [21 S.Ct. at p. 733].) Thus, the high court concluded
in Mallett that the type of procedural provision involved in
that case-i.e., the addition of a new level of review of a
decision favorable to a criminal defendant that could work
to the defendant’s detriment (and that actually did operate
to the defendants’ detriment in Mallett itself)-was not the
type of procedural change that fell within the aegis of the
ex post facto clause.

After discussing the high court’s holding in Mallett, the
court in Arafiles concluded that “[i]f allowing for higher court
review of intermediate appellate court decisions does not
violate ex post facto proscriptions, we fail to see how allowing
for executive review of parole decisions can be otherwise.”
(Arafiles, supra, 6 Cal.App.4th 1467, 1486.) *643

Four years after the Court of Appeal rendered its decision
in Arafiles, an identical ex post facto challenge to article V,
section 8(b), came before the federal Ninth Circuit Court
of Appeals in Johnson v. Gomez (9th Cir. 1996) 92 F.3d
964 (Johnson), certiorari denied (1997) 520 U.S. 1242

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App. 31

[117 S.Ct. 1848, 137 L.Ed.2d 1050]. The court in Johnson,
after reviewing a number of leading ex post facto cases
decided by the United States Supreme Court-including
Mallett, supra, 181 U.S. 589, Dobbert v. Florida (1977)
432 U.S. 282 [97 S.Ct. 2290, 53 L.Ed.2d 344] (Dobbert),
and Collins, supra, 497 U.S. 37 [FN7] -agreed with Arafiles
that application of article V, section 8(b), to a prisoner who
had committed his or her offense prior to the enactment of
that provision did not violate the ex post facto clause.

In the course of its decision, the court in Johnson
addressed the contention that the reasoning of the United
States Supreme Court’s then recent ex post facto decision
in Morales, supra, 514 U.S. 499, supported the conclusion
that article V, section 8(b), could not be applied retroactively
on the ground that this new constitutional provision was
intended to, and in practice would, increase the amount of
time a prisoner would remain in prison. In rejecting this
contention, the court in Johnson explained: “Johnson argues
that, unlike the administrative convenience purpose of the
law in Morales, the purpose and effect of the law here is to
lengthen prison terms by making it more difficult for
convicted murderers with indeterminate sentences to be
released on parole. However, the law itself is neutral
inasmuch as it gives the governor power to either affirm or

FN7 The Mallett and Collins decisions have been described above.
(See, ante, at pp. 638-639, 642.) In Dobbert, the high court held that a
change in state law that gave the trial court and the state’s highest court,
rather than the jury, the final say on whether the death penalty was to be
imposed in a particular case, could be applied retroactively to a defendant
who committed his offense prior to the enactment of the new provision,
without violating the ex post facto clause. (Dobbert, supra, 432 U.S. at
pp. 292-294 [97 S.Ct. at pp. 2297- 2299].)

App. 32

reverse a [Board’s] granting or denial of parole. Moreover,
- the governor must use the same criteria as the [Board]. The
law, therefore, simply removes final parole decisionmaking
authority from the [Board] and places it in the hands of the
governor. We cannot materially distinguish this change in
the law from that at issue in Mallett v. North Carolina .... In
Mallett, the Court found no ex post facto violation where
the new law allowed for higher court review of intermediate
court decisions, even though the petitioner would have been
entitled to a final intermediate court decision at the time of
his crime. [Citation.] We therefore conclude that the
application of [article V, section 8(b)] to authorize the
governor’s review of Johnson’s grant of parole did not
violate the Ex Post Facto Clause.” (Johnson, supra, 92 F.3d
at p. 967.)

In sum, the courts in Arafiles, supra, 6 Cal.App.4th 1467,
and in Johnson, supra, 92 F.3d 964, after reviewing the
governing United States Supreme *644 Court opinions
interpreting the ex post facto clause, found that the type of
procedural change effected by the adoption of article V,
section 8(b)-i.e., the addition of a new level of review of
parole decisions and a change in the identity of the ultimate
decision maker, without a change in any substantive standard-
did not constitute an “increase in punishment” and was not
the type of procedural change that fell within the prohibition
of the ex post facto clause. [FN8]

FN8 Although petitioner has not cited or relied upon the case, we
are aware of one state court decision that holds that a provision
requiring gubernatorial approval of a parole board’s grant of parole
may not apply retroactively in light of the ex post facto doctrine. In
Gluckstern v. Sutton (1990) 319 Md. 634 [574 A.2d 898] (Sutton),
certiorari denied sub nom. Henneberry v. Sutton (1990) 498 U.S.

App. 33

Although the decisions in Arafiles and Johnson never have
been overruled or questioned, petitioner contends that both
decisions are inconsistent with the United States Supreme

950 [111 S.Ct. 369, 112 L.Ed.2d 331], the Maryland Court of Appeals
held that, under the federal and Maryland ex post facto clauses
(which Maryland cases had interpreted to have the same meaning
(574 A.2d at p. 913)), a statutory change requiring gubernatorial
approval of an administrative board’s grant of parole to a prisoner
who had been sentenced to a term of life imprisonment could not be
applied to an individual who had committed his offense prior to the
enactment. In reaching this conclusion, however, the court in Sutton
relied prominently upon the line of United States Supreme Court
cases, beginning with Kring, supra, 107 U.S. 221, that had interpreted
the ex post facto clause broadly to apply to “ ‘ “any law passed after
the commission of an offense which ... ‘in relation to that offense,
or its consequences, alters the situation of a party to his
disadvantage.’ “ ‘ “ (Sutton, supra, 574 A.2d at p. 913, quoting
Kring, supra,107 U.S. at p. 235 [2 S.Ct. at p. 455] [italics added in
Sutton].) The decision in Sutton was decided on June 7, 1990, two
weeks prior to the United States Supreme Court’s decision in Collins,
supra, 497 U.S. 37, which was rendered on June 21, 1990. As
discussed above (ante, p. 639), in Collins the United States Supreme
Court specifically overruled Kring and disapproved the broad
statement of the ex post facto clause enunciated in that decision.
(Collins, supra, 497 U.S. at p. 50 [110 S.Ct. at p. 2723].) Because
the court in Sutton applied an expansive version of the ex post facto
clause that subsequently has been disavowed by both the United
States Supreme Court and this court (see People v. Fraser, supra,
21 Cal.4th 737, 754-765), we believe the holding of Sutton is fatally
flawed. (See also Alston v. Robinson (D.Md. 1992) 791 F.Supp.
569, 593, fn. 46, affd. sub nom. Doyle v. Robinson (4th Cir. 1994)
19 F.3d 10 [“Sutton constitutes an expansive reading of the ex post
facto clause which the Supreme Court would seemingly no longer
sanction”].) Moreover, to the extent that the decision in Sutton does
not depend upon the applicability of the broad ex post facto standard
articulated in Kring, supra, 107 U.S. at p. 235 [2 S.Ct. at pp. 454-
455], we nonetheless find the decision unpersuasive, for the reasons
discussed above.

App. 34

Court’s more recent decision in Garner v. Jones (2000)

~§29 U.S. 244 [120 S.Ct. 1362, 146 L.Ed.2d 236] (Garner)
and for that reason should not be followed. As we shall
explain, however, the high court’s decision in Garner did
not involve a legislative or constitutional provision even
remotely similar to article V, section 8(b), and nothing in
Garner questions either the validity of the Arafiles and
Johnson decisions themselves or the high court decisions
upon which the opinions in Arafiles and Johnson relied.
Accordingly, we conclude that petitioner’s reliance upon
Garner is misplaced. *645

The decision in Garner, supra, 529 U.S. 244, involved an
interpretation and application of the high court’s earlier
decision in Morales, supra, 514 U.S. 499, and a review of
the Morales decision is helpful to a proper understanding
of the court’s subsequent decision in Garner. The
controversy in Morales arose out of the application of a
California statute that authorized the Board, in the case of
prisoners who had been convicted of more than one murder,
to decrease the frequency with which parole suitability
hearings for such prisoners were to be held-from once every
year to as infrequently as once every three years-if the Board
found, based upon the circumstances of the particular
prisoner, that it was not reasonable to expect that parole
would be granted at an earlier hearing. The issue before the
United States Supreme Court in Morales was whether the
new California statute could be applied to prisoners who
had committed their crimes before the enactment of the
new statute, or whether such-an application of the new statute
was barred by the ex post facto clause.

In analyzing the issue, the court in Morales began by

App. 35

observing that in Collins, supra, 497 U.S. 37, 41 [110 S.Ct.
2715, 2718- 2719], the court had reaffirmed that “the Ex
Post Facto Clause incorporated ‘a term of art with an
established meaning at the time of the Constitution’ “
(Morales, supra, 514 U.S. at p. 504 [115 S.Ct. at p. 1601])
and that, in accordance with this original understanding, “the
Clause is aimed at laws that ‘retroactively alter the definition
of crimes or increase the punishment for criminal acts.’ “
(Ibid.) The court in Morales then explained that the
California statute at issue clearly effected no change in the
| definition of a prisoner’s crime, and that the only question
4 was whether the statute increased the punishment attached
to the prisoner’s offense.

DS RL Ie ME PS

In contending that the statute did increase his punishment,
the defendant in Morales relied upon the line of Supreme
Court cases, noted above, which held that a legislature could
not increase or stiffen the standard of punishment applicable
to crimes that have already been committed. (See Lindsey
v. Washington, supra, 301 U.S. 397 [ex post facto clause
prohibits application of new statute increasing the minimum
term that could be imposed for offense]; Weaver v. Graham,
supra, 450 U.S. 24 [ex post facto clause prohibits a state
from retroactively altering the substantive “formula” used
to calculate a defendant’s time of confinement]; Miller v.
Florida, supra, 482 U.S. 423 [same].) The court in
Morales, however, found those cases inapposite, pointing
out that the statute at issue in Morales did not affect a
prisoner’s sentence, “left unchanged the substantive formula
for securing any reductions” to the sentencing range, and
“had no effect on the standards for fixing a prisoner’s initial
date for ‘eligibility’ for parole ... or for determining his
‘suitability’ for parole and setting his release date ....”

RS ene i

App. 36

(Morales, supra, 514 U.S. at p. 507 [115 S.Ct. at p. 1602].)
*646

The court in Morales, supra, 514 U.S. 499, observed that
the only change made by the statute in question was to
introduce “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.” (Morales, supra, 514 U.S. at
p. 507 [115 S.Ct. at p. 1602].) Although the defendant in
Morales urged the court to hold “that the Ex Post Facto
Clause forbids any legislative change that has any
conceivable risk of affecting a prisoner’s punishment,” the
court rejected that contention, explaining that under such
an approach “the judiciary would be charged under the Ex
Post Facto Clause with the micromanagement of an endless
array of legislative adjustments to parole and sentencing
procedures, including such innocuous adjustments as
changes to the membership of the Board of Prison Terms
....” (Id. at p. 508 [115 S.Ct. at pp. 1602- 1603], italics added.)

Observing that “[w]e have previously 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 [ex post facto]
prohibition” (Morales, supra, 514 U.S. at p. 509 [115 S.Ct.
at p. 1603]), the court in Morales concluded that it had “no
occasion to do so [in that case, because the statute at issue
there] create[d] only the most speculative and attenuated
possibility of producing the prohibited effect of increasing
the measure of punishment for covered crimes” (ibid.),
inasmuch as the statute “applie[d] only to a class of prisoners

App. 37

for whom the likelihood of release on parole is quite
remote,” the Board “retain[ed] the authority to tailor the
frequency of subsequent suitability hearings to the particular
circumstances of the individual prisoner,” and a prisoner
was not precluded from seeking an expedited hearing should
he or she experience a drastic change of circumstances. (/d.
at pp. 510-512 [115 S.Ct. at pp. 1603-1604].) Under these
circumstances, the court in Morales held that the retroactive
application of the California statute did not violate the ex
post facto clause. (/d. at p. 514 [115 S.Ct. at pp. 1605- 1606].)

As noted, the more recent decision in Garner, supra, 529
U.S. 244, upon which petitioner in this case heavily relies,
arose in the wake of Morales. Like Morales, Garner involved
the validity, under the ex post facto clause, of applying a
new policy reducing the frequency of parole release hearings
for a prisoner who committed his crime before the new
policy was promulgated. In Garner, the Georgia Board of
Pardons and Paroles was required under Georgia law initially
to consider parole for an inmate serving a life term after
the inmate had served seven years. At the time the prisoner
in Garner committed his offense, the governing
administrative rules required the board to reconsider parole
every three years thereafter. At a time *647 subsequent to
the prisoner’s commission of his offense, the board amended
its rules to provide that “ ‘[r]econsideration of those inmates
serving life sentences who have been denied parole shall
take place at least every eight years.’ “ (Id. at p. 247 [120
S.Ct. at p. 1366].) In Garner, the issue presented was whether
this change in policy constitutionally could be applied to
the prisoner in that case under the ex post facto clause.

The federal court of appeals had concluded in Garner that

App. 38

the amended Georgia rule was distinguishable in material
respects from the California statute upheld in Morales, and
held that retroactive application of the new Georgia policy
was barred by the ex post facto clause. (Jones v. Garner
(11th Cir. 1999) 164 F.3d 589.) In reaching its conclusion,
the court of appeals relied in part on the circumstance that
the Georgia rule applied to a much broader class of
prisoners- all prisoners serving a life term-than the
California statute at issue in Morales, sweeping within its
reach “many inmates who can expect at some point to be
paroled” (164 F.3d at p. 594) and thus, in the appellate court’s
view, “seems certain to ensure that some number of inmates
will find the length of their incarceration extended in
violation of the Ex Post Facto Clause ....” (Id. at p. 595.)
Further, the court of appeals emphasized that “[e]ight years
is a long time” and that “[m]uch can happen in the course of
eight years to affect the determination that an inmate would
be suitable for parole.” (/bid.) Although the court of appeals
recognized that the parole board policy permitted the board
to reconsider a parole denial at any time upon a showing of
a change in circumstances or upon the board’s receipt of
new information, the court of appeals found that policy
insufficient because it was not embodied in a formal
regulation and thus was both easily changed and not
enforceable.

The United States Supreme Court granted certiorari in
Garner, supra, 529 U.S. 244, and reversed the decision of
the court of appeals. Although the high court in Garner
acknowledged the differences between the Georgia law and
the California statute at issue in Morales, the high court
concluded that “[t]hese differences are not dispositive” and
stated that “[t]he question is whether the amended Georgia

App. 39

Rule creates a significant risk of prolonging respondent’s
incarceration.” (529 U.S. at p. 251 [120 S.Ct. at p. 1368].)

After describing the considerable discretion exercised by
the parole board under Georgia law in determining whether
a prisoner should be granted parole (Garner, supra, 529
U.S. at pp. 252-253 [120 S.Ct. at pp. 1368-1369]) and at
the same time making clear that “[t]he presence of discretion
does not displace the protections of the Ex Post Facto
Clause” (id. at p. 253 [120 S.Ct. at p. 1369]), the court in
Garner went on to observe that “to the extent there inheres
in ex post facto doctrine some idea of actual or constructive
notice to *648 the criminal before commission of the
offense of the penalty for the transgression [citation], we
can say 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.
The idea of discretion is that it has the capacity, and the
obligation, to change and adapt based on experience. New
insights into the accuracy of predictions about the offense
and the risk of recidivism consequent upon the offender’s
release, along with a complex of other factors, will inform
parole decisions.” (Jbid., italics added.)

The court in Garner then went on to identify what it
viewed as the gist of the prisoner’s claim that a reduction in
the frequency of parole hearings amounted to an ex post
facto violation, explaining: “The essence of respondent's
Case, as we see it, is not that discretion [relating to the
grant of parole] has been changed in its exercise but that,
in the period between parole reviews, it [i.e., discretion]
will not be exercised at all.” (Garner, supra, 529 U.S. at p.
254 [120 S.Ct. at p. 1369], italics added.)

App. 40

Addressing that claim-i.., the contention that application
of the new parole board policy violated the ex post facto clause
because in the extended period between parole reviews the
board’s discretion to determine whether the prisoner was
ready for parole would not be exercised at all-the court in
Garner rejected the contention, emphasizing first that the
governing regulations vested the parole board “with discretion
as to how often to set an inmate’s date for reconsideration,
with eight years for the maximum” (Garner, supra, 529 U.S.
at p. 254 [120 S.Ct. at p. 1369]) and, second, that “the Board’s
policies permit ‘expedited parole reviews in the event of a
change in their circumstance or where the Board receives
new information that would warrant a sooner review.’ “ (Ibid.)
Given these qualifications embodied within the change in
policy, the court in Garner disagreed with the court of
appeals’ supposition that the new rule “ ‘seems certain’ to
result in some prisoners serving extended periods of
incarceration.” (/d. at p. 255 [120 S.Ct. at p. 1370].)

Nonetheless, the court in Garner left open the possibility
that the petitioner in that case could establish on remand that
the new policy permitting the significant postponement of
parole hearing dates should be treated as an increase in
punishment for purposes of the ex post facto clause. The court
in Garner stated in this regard: “When the rule does not by
its own terms show a significant risk, the respondent 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....
In the case before us, respondent must show that as applied
to his own sentence the law created a *649 significant risk of
increasing his punishment.” (Garner, supra, 529 US. at p.

ro eeneery A

App. 41

255 [120 S.Ct. at p. 1370].) The court remanded the case to
the lower courts for proceedings consistent with its opinion.
(Id. at p. 257 [120 S.Ct. at p. 1371].)

Relying upon the high court’s language in Garner quoted
above, petitioner contends that the question whether the
application of article V, section 8(b), in the case before us
violates the ex post facto clause turns upon whether
“application [of the provision] 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].) Because prior to
the adoption of article V, section 8(b), a decision of the
Board granting parole was final and would result in a
prisoner’s release from confinement, under petitioner’s
reading of Garner it would appear that application of article
V, section 8(b), would violate the ex post facto clause in
every case in which the Governor reverses a Board decision
granting parole of an individual who committed his or her
offense prior to the adoption of the constitutional provision,
because in each such case it could be said that application
of the provision would result in a longer period of
incarceration for the particular prisoner than under the
earlier rule. And this result would follow under petitioner’s
reading of Garner without regard to the number or
percentage of times a particular Governor upheld or reversed
Board decisions granting parole, because even if a Governor
only rarely exercised the authority granted by article V,
section 8(b), to reverse a decision granting parole, in any
instance in which the Governor did reverse a grant of parole,
it could be said that retroactive application of article V,
section 8(b) “result[ed] 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].) Indeed, were the language from

App. 42

Garner, upon which petitioner relies, to be viewed as
establishing a new, generally applicable ex post facto
standard for any legislative modification affecting the parole
process, as petitioner’s argument suggests, virtually any
procedural change in the parole process-” including such
innocuous adjustments as changes to the membership of the
Board” (Morales, supra, 514 U.S. at p. 508 [115 S.Ct. at p.
1603]) or minor revisions of evidentiary rules in parole
hearings- would fall within the prohibition of the ex post
facto clause in any instance in which the procedural change
resulted in the denial of parole, because in any such case it
could be said that application of the new rule “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 extremely broad scope and wide- ranging implications
of petitioner’s reading of Garner make it evident, in our
view, that petitioner improperly has taken the language of
Garner out of context and seeks to have that *650 language
applied in a manner never intended by the high court. As we
have seen, the court in Garner articulated the language in
question as a means of determining whether application of
a new provision or change in policy that reduces the

frequency at which parole hearings must be held violates
the ex post facto clause. A revision that significantly delays
the date when the relevant state authority considers the
parole eligibility of a prisoner is analogous to a substantive
provision increasing the minimum period of time a
defendant must be imprisoned before parole even may be
considered. (As we have seen, the court in Garner adverted
to this point, explaining that “[t]he essence of respondent’s
case, as we see it, is not that discretion has been changed in
its exercise but that, in the period between parole reviews,

App. 43

it will not be exercised at all.” (Garner, supra, 529 U.S. at
p. 254 [120 S.Ct. at p. 1369].))

Because a provision that reduces the frequency of parole
hearings is at least potentially comparable to a provision
that increases the minimum term of a sentence, a measure
that extends the time between parole hearings is one that
reasonably might be characterized as bringing about an
increase in sentence to which the ex post facto clause
might apply. At the same time, however, the Morales and
Garner decisions recognize that a rule reducing the
frequency of parole hearings may contain qualifying
provisions that minimize or eliminate the risk that the new
policy actually will result in an increase in sentence for
any prisoner. Accordingly, the court in Garner determined
that when such a provision “does not by its own terms”
(Garner, supra, 529 U.S. at p. 255 [120 S.Ct. at p. 1370])
create a significant risk that a prisoner’s sentence will be
increased, the prisoner may establish that application of
the provision will violate the ex post facto clause, by
demonstrating through “evidence drawn from the rule’s
practical implementation ... that [the rule’s] retroactive
application will result in a longer period of incarceration
than under the earlier rule.” (Jbid.) There is nothing in
Garner, however, suggesting that this standard was intended
to apply to a provision, unlike a measure reducing the
frequency of parole hearings, that cannot reasonably be
viewed as falling within the category of legislative
measures that increase the punishment for a crime.

The nature of the procedural changes embodied in article
V, section 8(b), is entirely different from that of the changes
involved in Garner and Morales. Article V, section 8(b),

App. 44

does not reduce the frequency with which parole hearings
are held or parole decisions are made. The only change made
by article V, section 8(b), is the institution of a new level of
review of parole decisions (and a resulting change in the
identity of the entity within the executive branch that makes
the ultimate decision on parole suitability). As the decisions
in Arafiles and Johnson indicate, the opinions of the United
*651 States Supreme Court make it clear that this type of
change in procedure is not the type of change addressed by
the ex post facto clause. (See Mallett, supra, 181 U.S. 589;
Dobbert, supra, 432 U.S. 282.) Nothing in Garner raises
any question as to the continued viability of those past
decisions, or suggests that a procedural provision
establishing a new level of review of parole decisions within
the executive branch effects an increase in a prisoner’s

sentence so as to fall within the prohibition of the ex post
facto clause. [FN9]

FN9 Although the high court in Collins noted that “by simply labeling
a law ‘procedural,’ a legislature does not thereby immunize it from
scrutiny under the Ex Post Facto Clause” (Collins, supra, 497 U.S.
at p. 46 [110 S.Ct. at p. 2721]), Collins did not suggest that the
circumstance that a change is procedural rather than substantive has
no bearing on the ex post facto question. In Lynce v. Mathis, supra,
519 U.S. 433-a post- Collins decision-the high court, in rejecting a
lower court’s conclusion that the revocation of a certain category of
prison-time credits at issue in that case properly could be characterized
as “procedural” and thus not violative of the ex post facto clause,
reaffirmed the high court’s pre- Collins pronouncement in Dobbert,
supra, 432 U.S. 282, “that a procedural statute [that does not fall
within the reach of the ex post facto clause] is one that ‘simply alter(s}
the methods employed in determining’ whether th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1254%3A1. Public record. Not legal advice.