Opinion
B233050
02-16-2012
In re ESTEBAN VARELAS, on Habeas Corpus.
Michael Satris, under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Phillip Lindsay, Gregory J. Marcot and Charles Chung, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA102365)
PETITION for writ of habeas corpus. Michael J. Farrell, Judge. Petition denied.
Michael Satris, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Phillip Lindsay, Gregory J. Marcot and Charles Chung, Deputy Attorneys General, for Respondent.
In 1995, petitioner Esteban Varelas was convicted by a jury of second degree murder with a personal use of a firearm enhancement. He was sentenced to a term of 15 years to life in prison, plus a determinate term of 4 years. In May 2010, a panel of the Board of Parole Hearings (Board) conducted Varelas's initial parole suitability hearing, found him unsuitable, and deferred his next parole hearing for seven years pursuant to Proposition 9, the "Victim's Bill of Rights Act of 2008: Marsy's Law (hereinafter "Marsy's Law"), Penal Code section 3041.5, subdivision (b)(3). Varelas challenged the Board's decision in a petition for a writ of habeas corpus filed in the superior court, which was denied. He then petitioned this court for relief, urging that various procedural flaws in the hearing violated his due process rights, the Board's decision was not supported by "some evidence" he poses a current threat to public safety, and application of Marsy's Law to his case violates ex post facto principles. We issued an order to show cause and requested the appointment of counsel for petitioner. We now conclude the conduct of the hearing comported with due process; some evidence supported the Board's unsuitability finding; and application of amended section 3041.5 did not offend ex post facto principles.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. May 2010 parole suitability hearing.
In May 2010, the Board conducted Varelas's initial parole hearing, at which the following information was considered.
a. Commitment offense, conviction, and incarceration.
A probation report prepared in 1995 described the commitment offense as follows. On October 2, 1994, Varelas, victim Roberto Palomo, and others were drinking beer outside Varelas's residence. Varelas went inside. Palomo began arguing with another man, Dominguez Ballardes. Varelas became annoyed about the argument and came back outside. He and Palomo fought, and Palomo punched Varelas in the eye, knocking him to the ground. Varelas pulled a .22-caliber pistol from his person and shot at Palomo, hitting him in the torso. Varelas left shortly thereafter. The victim was initially expected to survive his wound, but died early the next morning. Police officers learned Varelas had fled to his sister-in-law's residence in Cambria, where they found him hiding in a closet the day after the murder. Varelas was 28 years old at the time of the crime.
A jury convicted Varelas of second degree murder and found he had personally used a firearm in commission of the offense. (§§ 187, subd. (a), 12022.5.) The trial court sentenced him to 15 years to life in prison for the murder, plus a determinate term of 4 years for the firearm enhancement. Varelas was received by the California Department of Corrections (CDC) on July 17, 1995. His minimum parole eligibility date was June 13, 2011. At the time of the 2010 parole hearing, his first, he had been in prison for almost 15 years, and was 43 years old.
b. Social history.
Varelas was born in Mexico in 1966, the youngest of 10 children. The family was poor, and Varelas worked on his parents' small ranch from a very young age, picking produce and tending cattle. He attended school for only a few months in his youth. His family was "close and loving" and, at the time of the hearing, his parents remained married. Varelas married when he was 17 or 18 years old. In 1987, he entered the United States illegally to find better paying work. He worked in agriculture in the San Luis Obispo area for several years, returning to Mexico every few months to work with his father. Eventually Varelas moved to Los Angeles. His wife came to the United States at an unspecified time after Varelas's arrival. The couple have three children together and remain married. At the time of the murder, Varelas was employed as a painter and was making $800 per month. Other than the commitment offense, Varelas has no criminal history either in the United States or in Mexico. He is subject to an active immigration hold.
The record sometimes reflects that Varelas was the youngest of 12 children, rather than 10.
c. Institutional record.
(i) Disciplinary history.
While incarcerated, Varelas has incurred three "CDC 115s" and two "CDC 128-A's." The three serious rules violations were for his involvement in fights, which CDC officials suspected were related to prison gang activity. The first serious rules violation occurred on August 19, 1997, after a fight involving Varelas broke out during a soccer game. The violation was originally charged as "Mutual Combat" but was reduced to "Behavior Which Could Lead to Violence." A correctional officer reported observing a fight; three other witnesses stated that no fight had actually occurred. Varelas explained at the hearing that a group of inmates had been playing soccer and an officer in the control tower mistakenly thought they were fighting.
A " 'CDC 115' " refers to a rules violation report that documents misconduct that is believed to be a violation of law or is not minor in nature. (In re Roderick (2007) 154 Cal.App.4th 242, 249, fn. 3; Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).) A " 'Custodial Counseling Chrono' " (CDC Form 128-A) documents minor misconduct and counseling provided for it. (In re Roderick, supra, at p. 269, fn. 23; In re Smith (2003) 109 Cal.App.4th 489, 505; Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).)
The two custodial counseling chronos were issued in September 1995 for failing to stand during a mandatory count, and in December 1997 for using a staff restroom with the door locked.
The second serious rules violation occurred on September 29, 2002. Correctional officers observed Varelas and another man chasing a third inmate. When the victim inmate turned around, Varelas and his cohort punched him. Varelas was charged with battery on an inmate without serious injury; the violation was subsequently reduced to the lesser charge of attempted battery without serious injury. Varelas explained at the hearing that other inmates had asked him to "go and beat up another inmate," and threatened to beat him up if he refused. When asked why he had been associating with the men in the first place, Varelas explained that he thought they "were people from [his] hometown." He denied that the other inmates were gang members. He explained, "before . . . I didn't know how to handle myself . . . with different groups in prison. Now I do." "I try to do my program. I have to say hi to the other ones."
The third serious rules violation occurred on December 29, 2003, for participation in a race riot. In that incident, Varelas and a peer were observed striking another inmate with their fists. Several other inmates were also involved in the melee. Varelas pleaded guilty to the violation. He claimed he had been unaware of what was happening. At the hearing he explained, "I went to say hi to another inmate. And then a riot started."
Varelas stated at the hearing, "I take responsibility for those fights. I didn't know how the life in prison was and that's [why] I got three 115s." He denied that any of the three incidents were gang-related and denied being a gang member. Nothing in the record suggests he was involved with gangs prior to his incarceration.
(ii) Institutional programming and education.
Varelas speaks no English, but can converse and express himself well in Spanish. According to a "Comprehensive Risk Assessment" prepared by a licensed psychologist in December 2009 (hereinafter "CRA"), Varelas had "attempted to upgrade educationally by attending Adult Basic Education courses but ha[d] made little progress despite his efforts" and being enrolled for approximately 10 years. Varelas reads, writes, and spells poorly in both Spanish and English. He informed the psychologist that no matter "how hard he tries, he is unable to understand English"; he is also unable to speak "even simple words in English." The psychologist opined that Varelas's "general fund of knowledge" appears poor. "TABE" testing showed a language score of 1.4 and an overall score of 0. However, developmental disability screening "indicated normal cognitive functioning" when given in Spanish, and Varelas does not suffer from an overall developmental disability (mental retardation). The psychologist opined that "the exact nature of his learning problems is unclear." He received average grades while attending Adult Basic Education and certain of his teachers noted his efforts; other teachers opined that Varelas does not appear motivated, or that his interest in education has waned. As of 2009, his teachers indicated he was no longer benefitting from the educational program and had reached a " 'plateau.' "
For example, he is unable to spell his middle name or the name of the town in Mexico where he grew up.
The TABE (tests of adult basic education) score reflects an inmate's educational achievement level. (In re Roderick, supra, 154 Cal.App.4th at p. 252.)
Varelas is employed as a cook in the institution, and his supervisor rated him as "an exceptional worker and . . . very professional." His evaluations in other positions have always been average or above average, and he is described as " 'very motivated.' " As a result of his inability to speak English, he has been unable to complete vocational training programs while incarcerated.
Varelas attended a Life Support Group from 1997 through 2001, and participated in sections on anger management, preparation for a Board appearance, survival in prison, control over your life, spousal and child abuse, and stress management, among others. He also participates in sports and weekly Catholic services.
(iii) Alcohol use and participation in Alcoholics Anonymous.
Varelas began drinking when he was 16 years old, but reportedly did not drink regularly. On the night of the murder, a relative encouraged him to drink and he complied to be social, imbibing six to seven beers, more than usual. Varelas admitted that his consumption of alcohol was related to his commitment of the murder. The psychologist concluded that because the crime was committed when Varelas was under the influence, his alcohol use was considered "a risk related to violent reoffending in the future," even though he was not alcohol dependent. Therefore, a "comprehensive relapse prevention plan is essential to facilitate optimal success in the community."
Varelas claimed to have attended Alcoholics Anonymous (AA) for 10 years while incarcerated. The record reflected only two "chronos" documenting such participation, in 2007 and 2010.
In December 2009, Varelas told the psychologist that he did not have a problem with alcohol abuse and did not believe he needed further treatment in the future. He did not plan to continue attending AA if released. He did not intend to drink in the future. When the psychologist asked Varelas what he had learned in AA, "his response was somewhat vague. He stated that he has been taught many things from others who give their testimonies. He was unable to recall any of the specific steps." Varelas was unable to think of any situations in which he would be tempted to drink alcohol, but stated he no longer felt the need to drink. The psychologist concluded that Varelas "displayed minimal insight into his alcohol abuse. Although he claims to have participated for years in Alcoholics Anonymous groups, he appears to have benefitted only minimally from these groups and has a poor understanding of how these groups can be helpful in maintaining future sobriety. This may be due, in part[,] to his cognitive limitations and/or the fact that these groups were conducted in English and he has virtually no understanding of English. Nonetheless, he reported that he plans to never drink alcohol in the future, which may be enough to assure sobriety. He has not received any [discipline] over the last 14 years for substance use." The psychologist noted, "Although future treatment for his alcohol abuse appears to be important, Mr. Varelas has no particular plan about how to maintain his sobriety or the importance of remaining sober."
At the May 2010 hearing, Varelas admitted he had an alcohol problem. He claimed he was "learning a lot" from AA. However, he was unable to name any of the Twelve Steps besides the first, admission of alcoholism. He explained that prior to his attendance at his current program, only English-language AA meetings were available to him. His relapse plan was to continue attending AA.
(iv) Remorse and insight.
Varelas expressed remorse both to the psychologist and at the May 2010 hearing. He had written a letter to the victim's family asking for forgiveness. He recognized that his actions "destroyed" the victim's family and stated he would give his life if that could restore the victim's life. He acknowledged that if he had not been drinking and had not had the gun, the crime would not have occurred. If faced with the same situation today, he would call police.
Varelas's description of the circumstances of the murder differed in some respects from that given in the probation report and in the unpublished opinion affirming his conviction. (People v. Varelas (Oct. 17, 1996, B095126).)
This circumstance is discussed in more detail where relevant ante.
The psychologist opined that although Varelas had made progress over the preceding five years in custody, his "presentation in the clinical interview . . . suggested that he still has little insight into the causative factors of the life crime."
d. Parole plans.
If paroled, Varelas planned to live with his parents in Mexico, where he would work on the ranch and take care of his parents. He expected that his wife and one of his children would join him. The psychologist opined that Varelas had a "somewhat naïve perspective of the stress he will encounter when he re-integrates into the community. His family is a significant source of support for him during the past 14 years of his incarceration. His hope that his wife and children will return to Mexico with him if he is deported may not actually occur given economic realities. How he will cope with this situation is unclear, since he is counting on them joining him in Mexico." Otherwise, however, the psychologist concluded that Varelas's "plans appear attainable and sufficiently detailed. In addition, his employment plans appear to match his skill set and abilities." The Correctional Counselor who prepared Varelas's Life Prisoner Evaluation likewise found Varelas's plans reasonable. Varelas also presented a letter from a former employer in the United States indicating the company would rehire him if released, as well as a variety of support letters from family and friends. Varelas averred that he does not intend to return to the United States.
e. Risk assessment.
The psychologist estimated Varelas posed a "Low-Moderate" risk for recidivism if released. The CRA summed up: "After weighing all of the data from the available records, the clinical interview, and the risk assessment data, it is opined that Mr. Varelas presents a relatively Low-Moderate Risk for violence in the free community. [¶] Mr. Varelas'[s] risk of violent recidivism would likely increase if he returned to the use of intoxicating substances or possessed a weapon." (Bold in original omitted.) His risk could be decreased if "he examined how he would cope if his wife and children did not relocate to Mexico as he hopes. In addition, it may be helpful for him to more closely examine his alcohol abuse and how to avoid social pressures to drink in the future. A more thorough examination of the fights he has had in prison might also be useful, as this would allow him to accept his portion of responsibility for these behaviors." The psychologist also opined that Varelas did not suffer from mental illness and displayed few predictive factors for recidivism.
The psychologist used three assessment guides to estimate Varelas's future risk for violence: the "Psychopathy Check List-Revised (PCL-R)," the "Historical-Clinical Risk Management-20 (HCR-20)," and the "Level of Service/Case Management Inventory (LS/CMI)." Varelas scored in the "low" range on the first two, and in the medium range on the third.
f. Board's decision.
The Board found Varelas's release would present an unreasonable risk of danger to society, and accordingly found him unsuitable for parole. In support of its decision, the Board cited the following factors: (1) the nature of the commitment offense; (2) his "unstable" history; (3) his history of violent conduct, including possible gang ties, in prison, and his unwillingness to take responsibility for that conduct; (4) his minimization of his role in the crime; (5) his alcohol abuse and his failure to benefit from his participation in AA; (6) his perceived untruthfulness during the hearing; (7) his failure to advance his education; and (8) concerns about his parole plans.
2. Subsequent proceedings.
Varelas challenged the Board's unsuitability finding in a petition for a writ of habeas corpus filed in the superior court on February 8, 2011, which was denied on April 15, 2011. Varelas then petitioned this court for relief, urging that the Board's decision was not supported by "some evidence" that he poses a current threat to public safety. (See In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence); In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis I).) We issued an order to show cause and ordered counsel appointed for petitioner.
DISCUSSION
1. The manner in which the hearing was conducted did not violate Varelas's due process rights.
Preliminarily, we address and reject Varelas's contention that several aspects of the conduct of the suitability hearing violated his due process rights.
In his habeas petition, Varelas asserted that the Board's consideration of the district attorney's presentation at the hearing, including reference to an autopsy report and a police report, was improper. In his Traverse, however, Varelas concedes that the Board properly considered these materials and the district attorney's opposition.
a. Purported failure to provide reasonable accommodation.
Varelas asserts that the Board failed to provide him with reasonable accommodations to allow him to prepare for and meaningfully participate in his parole consideration hearing, in violation of the Armstrong Remedial Plan (Plan). Varelas references section VI(D)(6) of the Plan, which states that certain accommodations "may be available to inmates/parolees with learning disabilities to ensure equal participation in any parole proceedings to the best of the individual's ability[.]" The listed accommodations are: "ADA trained attorney[;] Additional time[;] Audio taped materials[;] Electronic equipment[;] Highlighter pens and markers[;] [and] Staff assistance." Section VI(D)(6) of the Plan also states: "In the event an inmate/parolee with a reading score of 4.0 or less cannot read and comprehend documents in parole proceedings and has not been assigned an attorney or waived appointment of an attorney, staff shall provide reasonable accommodations to ensure effective communication (e.g., staff assistance, electronic readers, and sign language interpreter, etc." (Italics added.) Varelas also points to California Code of Regulations, title 15, section 2251.5, which provides: "(a) No qualified individual with a disability as defined in 42 United States Code (U.S.C.) section 12102 shall, by reason of such disability, be excluded from participation in, or be denied the benefits of, the services, programs or activities of the board, or be subject to discrimination by the board."
In 1994, a class of present and future California state prison inmates and parolees with certain disabilities sued California state officials who were responsible for the operation of the Department of Corrections and the Board of Parole Hearings, challenging the treatment of disabled prisoners and parolees. A series of Ninth Circuit and federal district court decisions concluded that the Americans with Disabilities Act (42 U.S.C. § 12131 et seq.), and the Rehabilitation Act (29 U.S.C. § 794), applied to state prisoners, and that certain policies and procedures employed by the defendants with regard to disabled prisoners and parolees violated the ADA and the RA. (See Armstrong v. Schwarzenegger (9th Cir. 2010) 622 F.3d 1058, 1063.) California authorities produced a remedial plan in January 2001, and in March 2001 the federal district court entered a permanent injunction directing enforcement of that plan. (Ibid.)
Varelas has failed to establish violation of the Plan, the ADA, or title 15, section 2251.5 of the California Code of Regulations. As the Warden points out, it is not clear that Varelas has been diagnosed with a learning disability. The psychologist who evaluated Varelas determined that he did not suffer from a developmental disability, and testing indicated normal cognitive functioning. The psychologist opined that "[t]he exact nature of Mr. Varelas's learning problems is unclear" and recommended further evaluation. Varelas stated at the hearing that he did not suffer from a disability that would make it difficult for him to participate in the hearing.
In any event, Varelas was provided with a Spanish language interpreter at both the suitability hearing and the psychological evaluation. He was represented by counsel at the suitability hearing, and apparently met with him beforehand to prepare. The Presiding Commissioner noted that Varelas's reading score was low, and asked his attorney to assist him with any reading required at the hearing. The attorney agreed, and also confirmed that Varelas's rights had been respected. Varelas fails to specifically identify what additional accommodation he purportedly required, and we discern none.
Varelas also urges that "[t]he tone of the Board's treatment of [him] throughout the hearing was discriminatory, and was in significant [part] prompted by his disabilities." Varelas does not point to specifics in regard to his contention. Our review of the transcript of the hearing has not revealed evidence of bias or discrimination; to the contrary, the panel members appear to have interacted with Varelas in an appropriate manner. Varelas's claims thus lack merit.
In light of our conclusion, we do not address the parties' disagreement regarding whether the remedy for violation of the Armstrong plan is limited to a grievance (see Cal. Code Regs., tit. 15, § 2251.5, subd. (b)) or is cognizable in a habeas proceeding.
b. Purportedly inadequate transcript of proceedings.
Varelas further asserts that the transcript of the hearing is "incomplete," rendering the decision "ambiguous" and "unreliable." Varelas's argument is based on the fact that where certain words were unintelligible to the transcriber, the word "inaudible" was substituted in the transcript. In particular, Varelas points out that when the Presiding Commissioner queried, "Is there any confidential information that we're going to be using today?" the Deputy Commissioner's response was listed as inaudible.
" 'A criminal defendant is indeed entitled to a record on appeal that is adequate to permit meaningful review.' " (People v. Catlin (2001) 26 Cal.4th 81, 166.) Assuming this principle applies in the present context, Varelas has failed to meet his burden of showing the transcript is inadequate. (See People v. Samayoa (1997) 15 Cal.4th 795, 820; People v. Arias (1996) 13 Cal.4th 92, 158.) In most instances, the missing word is readily inferable from the context of the surrounding material. Varelas does not contend confidential information was improperly relied upon or excluded. None of Varelas's contentions in his habeas petition turn upon the content of the missing words. Further, Varelas and his attorney were present at the hearing and must be aware of what was said. The record is sufficient to allow meaningful review.
c. Failure to consider untranslated support letters.
At the hearing, Varelas presented numerous support letters. Five of them—from a family friend, a teacher, a school friend, and two acquaintances or friends—were written in Spanish. The Presiding Commissioner declined to consider them, noting that "[i]t's your [responsibility] to have the letters translated" and the letters had been delivered "late mail." Varelas asserts that the failure to consider the untranslated letters violated his due process rights. He is incorrect. An inmate has the right to present support letters, but they must be "clearly written." (Cal. Code Regs., tit. 15, § 2249.) Varelas offers no authority for the proposition that it is the Board's responsibility to have such letters translated. Moreover, the letters in question apparently arrived too late to allow for translation. In any event, assuming arguendo the Board's failure to consider the letters was improper, Varelas has not established prejudice. He does not identify any crucial information contained in the letters, nor has he shown that the letters pertained to the evidence the Board relied upon to deny parole.
2. The Board's unsuitability finding was supported by some evidence.
a. Applicable legal principles.
We turn, then, to consideration of whether the Board's denial of parole was supported by "some evidence." Pursuant to Penal Code section 3041, subdivision (a), the Board shall normally set a parole release date one year prior to an inmate's minimum eligible parole release date, unless it determines that public safety requires a lengthier period of incarceration. (§ 3041, subd. (b); Shaputis I, supra, 44 Cal.4th at p. 1256; Lawrence, supra, 44 Cal.4th at p. 1204; In re Shippman (2010) 185 Cal.App.4th 446, 454.) Release on parole is the rule, rather than the exception. (In re Jackson (2011) 193 Cal.App.4th 1376, 1384; In re Aguilar (2008) 168 Cal.App.4th 1479, 1486.) When determining whether an inmate is suitable for parole, the Board considers a variety of factors set forth in the pertinent regulations, as well as any additional reliable and relevant information that bears on the inmate's suitability for release. (In re Shaputis (2011) 53 Cal.4th 192, 218-219 (Shaputis II); Lawrence, supra, 44 Cal.4th at p. 1202, fn. 7; Cal. Code Regs., tit. 15, § 2402, subds. (b), (c) & (d).) The "regulatory suitability and unsuitability factors are not intended to function as comprehensive objective standards," but as general guidelines. (Shaputis II, supra, at p. 218; In re Jackson, supra, at p. 1385; In re Reed (2009) 171 Cal.App.4th 1071, 1081.) " '[T]he importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.' " (Shaputis II, supra, at p. 218.)
Circumstances tending to establish unsuitability for parole include that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) has a previous record of violence; (3) has an unstable social history; (4) has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison or jail. (Cal. Code Regs., tit. 15, § 2402, subd. (c); Lawrence, supra, 44 Cal.4th at p. 1202, fn. 7; In re Rosenkrantz (2002) 29 Cal.4th 616, 653-654, 658 (Rosenkrantz).)Circumstances tending to show suitability for parole include that the inmate (1) does not have a juvenile record of assaulting others or committing crimes with the potential of personal harm to victims; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress built up over a long period; (5) committed the crime as a result of Battered Woman Syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release, or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities suggesting an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d); Lawrence, supra, at p. 1203, fn. 8; Rosenkrantz, supra, at p. 654.) Other information to be considered includes "the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Cal. Code Regs., tit. 15, § 2402, subd. (b); Lawrence, supra, at p. 1202 & fn. 6.)
As our Supreme Court has recently emphasized, our review of the Board's decision is highly deferential. (Shaputis II, supra, 53 Cal.4th at pp. 198-199.) A " 'reviewing court focuses [on] . . . "whether there exists "some evidence" demonstrating that an inmate poses a current threat to public safety,' " rather than merely on whether some evidence supports the suitability factors. (Id. at p. 209; In re Prather (2010) 50 Cal.4th 238, 251-252; Lawrence, supra, 44 Cal.4th at p. 1191.) "The executive decision of the Board or the Governor is upheld unless it is arbitrary or procedurally flawed." (Shaputis II, supra, at p. 221.) The decision whether to grant parole is vested in the executive branch, and the scope of judicial review is "narrower in scope than appellate review of a lower court's judgment." (Id. at p. 215.) Review under the " 'some evidence' " standard "is more deferential than substantial evidence review, and may be satisfied by a lesser evidentiary showing." (Id. at p. 210, italics in original.) Only a modicum of evidence is required. (Ibid.; Rosenkrantz, supra, 29 Cal.4th at p. 677; Lawrence, supra, at p. 1233.) On the other hand, the standard " 'certainly is not toothless' " and must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights. (Shaputis II, supra, at p. 215; Lawrence, supra, at p. 1210; In re Criscione (2009) 180 Cal.App.4th 1446, 1458.)
Resolution of conflicts in the evidence and the weight to be given the evidence are matters for the Board, not a reviewing court. (Shaputis II, supra, 53 Cal.4th at p. 210.) The precise manner in which the specified factors are considered and balanced lies within the Board's discretion. (Ibid.)The parole authority's interpretation of the evidence must be upheld if it is reasonable in the sense that it is not arbitrary, and reflects due consideration of the relevant factors. (Id. at p. 212.) It is irrelevant that a court might determine the evidence tending to establish suitability outweighs contrary evidence. (Id. at p. 210; Rosenkrantz, supra, 29 Cal.4th at p. 677; Lawrence, supra, 44 Cal.4th at p. 1204.) It is not the court's role "to decide which evidence in the record is convincing. [Citation.] Only when the evidence reflecting the inmate's present risk to public safety leads to but one conclusion may a court overturn a contrary decision by the Board or the Governor." (Shaputis II, supra, at p. 211.)
b. Application here.
(i) Factors that do not support the Board's unsuitability finding.
At least two of the factors cited by the Board are not supported by the evidence. First, the Board found the crime was especially heinous because it was "carried . . . out in a manner which demonstrated an exceptionally callous disregard for human suffering" and was committed for a trivial reason. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).) The evidence does not support these conclusions. The victim was killed by a single gunshot. In In re Rico (2009) 171 Cal.App.4th 659, abrogated on other grounds in In re Prather, supra, 50 Cal.4th 238, we explained: "Murder necessarily involves some type of traumatic, serious bodily injury. There was no 'infliction of severe trauma not involving immediate death' [citation]," and the single fatal gunshot that killed the victim "cannot be characterized as exceptionally callous." (In re Rico, supra, at p. 682.) Varelas "did not, for example, choose an especially painful or slow method for the killing, did not attempt to prolong or exacerbate the victim's suffering, did not terrorize, taunt, or torment the victim, and did not attempt to prevent him from obtaining aid." (Ibid.) " ' "The measure of atrociousness is not general notions of common decency or social norms, for by that yardstick all murders are atrocious." ' [Citations.]" (Ibid.; see also Lawrence, supra, 44 Cal.4th at p. 1225; In re Gray (2007) 151 Cal.App.4th 379, 404; In re Lee (2006) 143 Cal.App.4th 1400, 1410; In re Barker (2007) 151 Cal.App.4th 346, 373.) Nor can the motive for the crime be fairly characterized as trivial. Varelas shot when he and the victim were engaged in a physical fight, and the victim had punched Varelas and knocked him to the ground. Thus, Varelas's motive, while unlawful and morally reprehensible, was not "trivial" in relationship to the offense. (See In re Roderick, supra, 154 Cal.App.4th at p. 266.) " 'Given the high value our society places upon life, there is no motive for unlawfully taking the life of another human being that could not reasonably be deemed "trivial." ' " (In re Barker, supra, at p. 374; In re Scott (2004) 119 Cal.App.4th 871, 893.)
The Warden argues that because Varelas had, at the time of the 2010 hearing, served only 15 years of his 19-year sentence, "the circumstances of his crime bear directly on the assessment of his current dangerousness." Varelas disagrees. We need not resolve this question because, as discussed ante, we conclude evidence other than the nature of the life crime supported the Board's decision.
Second, the Board mentioned in passing that Varelas had "some unstable history." The Board did not point to any evidence in the record supporting such a finding. The fact that a prisoner has "a history of unstable or tumultuous relationships with others" is a factor that tends to show unsuitability. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(3); Shaputis II, supra, 53 Cal.4th at p. 212, fn. 9; In re Burns (2006) 136 Cal.App.4th 1318, 1328.) Here, the record demonstrated Varelas has always had stable relationships with his family. The psychologist observed, "Prior to incarceration, Mr. Varelas had primarily prosocial social relationships. He was working steadily and raising his family." There was evidence he had once had an affair, and he and his wife had argued in their youth, but the couple had reconciled and there was no showing the relationship was tumultuous. There was no evidence of any other turbulent or contentious relationships. Thus, to the extent the Board intended to cite the unstable social history factor as a basis for its unsuitability finding, its conclusion was unsupported by the record.
It is undisputed that other factors supported a suitability finding. Varelas had no criminal record, other than the commitment offense, has never sexually assaulted another, and has no history of mental problems. (See Cal. Code Regs., tit 15, § 2402.) Varelas's age, 43 at the time of the hearing, also tends to favor a suitability finding. (See In re Palermo (2009) 171 Cal.App.4th 1096, 1109, disapproved on other grounds in In re Prather, supra, 50 Cal.4th at p. 252.)
(ii) Factors supporting the Board's unsuitability finding.
A. Failure to address alcohol abuse.
Other factors cited by the Board, however, established "some evidence" that Varelas's release would constitute a threat to public safety. One of the cited factors was Varelas's failure to address his "problems with alcohol." It was undisputed that Varelas's alcohol use was a major factor in his commission of the crime. The psychologist concluded that his alcohol use was a risk factor related to "violent reoffending in the future" and recommended that a "comprehensive relapse prevention plan [was] essential." Yet the record contains indicia that Varelas had not, by the time of the hearing, satisfactorily dealt with his alcohol abuse. He purportedly attended AA for 10 years, but the record contained documentary evidence of his attendance only since 2007. Moreover, he was unable to describe any of the Twelve Steps except one, or otherwise articulate how AA had assisted him. He arrived at the current facility, where Spanish language AA was offered, in February 2008, over two years before the May 2010 hearing; therefore his failure to benefit from AA cannot be attributed solely to the fact the program was not offered in Spanish at other institutions where he was incarcerated. The psychologist opined that Varelas displayed only "minimal insight into his alcohol abuse."
Moreover, at the December 2009 interview with the psychologist, Varelas opined that he did not have a problem with alcohol abuse and did not believe he needed further treatment. At that time, Varelas had "no particular plan about how to maintain his sobriety or the importance of remaining sober." He simply averred that he would no longer drink. By the time of the hearing approximately five months later, Varelas admitted he had a problem with alcohol abuse and stated he intended to attend AA upon release, but these superficial statements were not supported by any evidence he understood the principles of AA or how to address his alcohol abuse once released. Under these circumstances, the Board's conclusion that Varelas had failed to address his alcohol abuse, an issue relevant to his future criminality, was supported by the record.
B. Disciplinary history.
Some evidence also supports the Board's determination that Varelas's institutional behavior indicated he was unsuitable for parole. The fact an inmate has engaged in serious institutional misconduct while incarcerated may be a circumstance indicating unsuitability. (Cal Code Regs., tit 15, § 2402, subd. (c)(6); In re Bettencourt (2007) 156 Cal.App.4th 780, 805; In re Reed, supra, 171 Cal.App.4th at p. 1084.) Varelas was disciplined for fighting on three occasions, in August 1997, September 2002, and December 29, 2003. Varelas admitted that in the 2002 incident, he and another inmate had attempted to beat up a third inmate on orders from one or more unidentified inmates, a troubling state of affairs. Varelas's involvement in three fights—the precise behavior which led to the murder—between the start of his incarceration in 1995 and the end of 2003 does suggest an inability to control this behavior. As the psychologist pointed out, Varelas's "misbehavior in prison is somewhat difficult to understand given his age and the fact that he was never arrested for these types of problems in the community." It is true that the last incident occurred approximately six and one-half years before the May 2010 hearing. Given the repeated nature of the conduct, and its similarity to the circumstances that led to the commitment offense, however, we cannot say Varelas's disciplinary history is too remote to suggest current dangerousness. (See In re Bettencourt, supra, at p. 805 [the passage of time does not necessarily negate a parole unsuitability factor]; In re Hare (2010) 189 Cal.App.4th 1278, 1294-1295.)
C. Lack of insight.
(i) Additional facts.
The Board also expressed concern about Varelas's lack of insight into the crime, largely based on discrepancies between Varelas's account of the crime at the hearing, and the facts as set forth in the probation report. At the hearing, and in a January 2010 interview with a correctional counselor, Varelas related that his wife's nephew, Ballardes, came to Varelas's apartment and invited him outside to have a few beers. Varelas, Ballardes, and another man had been drinking outside the apartment when a group of seven men whom Varelas did not know arrived and began to attack Varelas without provocation. Varelas was "stunned" and had no idea why the men attacked. One of the attackers punched him, causing him to fall to the ground, and someone kicked him in the face. When the attack continued, he pulled out his handgun and fired it into the air "with the intent to get the group off of him." After he discharged three rounds, he got up, observed his wife and children "in a panic and crying," and fled to a relative's home. He did not know he had shot the victim until someone named El Chino called his wife approximately 10 minutes later. He did not call police because he did not know their number, despite living in the United States for 10 years.
In contrast to that story, the evidence at trial showed that in the early morning hours of October 2, 1994, two groups of men were drinking in front of Varelas's apartment building. Varelas was in one group; the other group included the manager of his apartment building, Almanza. Varelas left for a period. While he was gone, the victim, Palomo, arrived and began drinking with Almanza's group. At some point one of the men in Varelas's group got into an argument with Palomo. The man claimed he had been a student of Palomo's in Mexico and that Palomo used to beat him. The argument became heated and two of the men in Varelas's group wanted to fight Palomo. Palomo did not wish to fight and retreated toward Almanza. Varelas arrived and said to Palomo, "It's with me[.]" Palomo declined to fight with Varelas. As Palomo was walking away, "a fight started between them. Approximately five blows were landed." (People v. Varelas, supra, B095126, at pp. 2-3.) Palomo struck Varelas in the eye and knocked him to the ground. Varelas rose to his knees, pulled a gun, and fired four or five shots at Palomo, who attempted to hide behind a car. (Id. at p. 3.) The medical examiner determined that the fatal shot was to the left side of Palermo's back, and travelled back to front and upwards. (Ibid.)
Varelas testified in his own defense. As we described his testimony: "He claimed he had been drinking with friends in front of the apartment building and that he went home to get money to purchase more beer. When he returned, Palomo was arguing with Varelas's friends. Varelas urged his friends not to fight but Palomo asked, 'What do you have with me?' Palomo struck Varelas, knocked him down and started to kick him. Varelas was in fear for his life and had trouble breathing. Varelas claimed the injury to his eye was caused by one of Palomo's kicks. Varelas produced a gun and shot at Palomo to make him stop kicking him. Varelas testified he did not intend to kill Palomo . . . ." (People v. Varelas, supra, B095126, at p. 4.)
The probation report stated that after his arrest, Varelas told officers that he had been drinking with Ballardes and someone known as Tolico; he went inside his apartment; he heard arguing, looked outside, and observed Ballardes, Tolico, and the victim arguing and fighting; he went back outside and attempted to aid Ballardes, but the victim struck him in the eye. Varelas fell to the ground, became angry, and shot the victim once.
The Board also explored Varelas's explanation of why he had the gun. He explained that he had purchased it the day before the murder for $50, because he thought it was a good buy. He had it with him because he wanted to show it to his nephew. He was "Just being pretty stupid. I didn't know, I knew that there was a big deal and it was cheap[.]" He wanted to take the gun to Mexico to his ranch, even though guns are not allowed in Mexico. When asked why he needed a gun, Varelas replied, "maybe I was stupid, maybe I was curious to have a gun. Basically, I didn't know what I was doing."
(ii) Discussion.
Where an inmate's version of a crime is implausible, physically impossible, or contradicted by the evidence at trial in material respects, courts have not hesitated to find a lack of insight. (See, e.g., Shaputis II, supra, 53 Cal.4th at pp. 201-203, 212-214; In re McClendon (2003) 113 Cal.App.4th 315, 321-322; In re Hernandez (2011) 200 Cal.App.4th 1507, 1515, 1519-1521; In re Smith (2009) 171 Cal.App.4th 1631, 1638; In re Taplett (2010) 188 Cal.App.4th 440, 450; In re Rozzo (2009) 172 Cal.App.4th 40, 61-63.) An inmate's level of insight is a valid factor for the Board's consideration. (Shaputis II, supra, at p. 218.) The "presence or absence of insight is a significant factor in determining whether there is a 'rational nexus' between the inmate's dangerous past behavior and the threat the inmate currently poses to public safety." (Shaputis II, supra, at p. 218.) "[L]lack of insight pertains to the inmate's current state of mind," and therefore bears more immediately on the question of dangerousness than does the nature of the crime. (Id. at p. 219.) Shaputis II recognized that section 5011 prohibits the Board from conditioning parole on an admission of guilt, but nonetheless reasoned that "an implausible denial of guilt may support a finding of current dangerousness, without in any sense requiring the inmate to admit guilt as a condition of parole. In such a case it is not the failure to admit guilt that reflects a lack of insight, but the fact that the denial is factually unsupported or otherwise lacking in credibility." (Id. at p. 216.)
Varelas contends that "research into a relationship between insight, or lack of it, and decreased or increased recidivism, shows that there is none." In support, he cites to numerous studies which he contends support that conclusion. However, "it is not a judicial function to weigh conflicting views in the social or psychological sciences for the purpose of developing rules binding on the executive branch." (Shaputis II, supra, 53 Cal.4th at p. 220.) "These considerations aside, it is difficult to imagine that the Board and the Governor should be required to ignore the inmate's understanding of the crime and the reasons it occurred, or the inmate's insight into other aspects of his or her personal history relating to future criminality. Rational people, in considering the likely behavior of others, or their own future choices, naturally consider past similar circumstances and the reasons for actions taken in those circumstances." (Ibid.)
Here, the Board's conclusion that Varelas lacks insight into the crime is supported by the record and does not violate section 5011's prohibition on requiring an admission of guilt. (See Shaputis II, supra, 53 Cal.4th at p. 216.) A modicum of evidence supported the Board's conclusion that Varelas had minimized his culpability in the murder, demonstrating a lack of insight. Varelas's current account of the crime casts him as an innocent victim, socializing outside his apartment, attacked without provocation by a group of seven men, shooting into the air in self-defense. The Board could reasonably conclude this story was implausible. It was contradicted by the physical evidence that the victim was shot in the back, by a bullet with an upward trajectory. It was also contradicted by eyewitness testimony and Varelas's own earlier statements and testimony. It was therefore reasonable for the Board to conclude Varelas's minimization of the crime demonstrated lack of insight. (See, e.g., In re Hernandez, supra, 200 Cal.App.4th 1512-1519, 1523 [inmate's story that murder was committed by another man was implausible and supported a parole denial where the inmate's account was contradicted by eyewitnesses and evidence he possessed the murder weapon]; see also In re Smith, supra, 171 Cal.App.4th at p. 1638 [inmate's confession and a witness's trial testimony suggested that inmate initiated and was the principal aggressor in attack on her toddler daughter; inmate's subsequent minimization of her role demonstrated lack of insight and was predictive of current dangerousness]; In re Taplett, supra, 188 Cal.App.4th at p. 450 [where inmate pleaded to second degree murder but continued to deny she had the intent to kill, and her description of the circumstances leading to the murder differed markedly from the facts as related by other witnesses, evidence supported conclusion she lacked insight].) The Board was not required to credit Varelas's current description of the crime. (In re Criscione, supra, 180 Cal.App.4th at p. 1458; In re Smith, supra, at p.1638.)
The Board's conclusion is also supported by the psychologist's opinion and Varelas's statements at the hearing. The psychologist opined that Varelas's "presentation in the clinical interview . . . suggested that he still has little insight into the causative factors of the life crime." When asked at the hearing if he had an understanding of how the crime happened, Varelas replied, "Even right now, I don't know what happened. I don't have any problem with anybody." Varelas also displayed little understanding, or candor, regarding the factors that impelled him to arm himself. The explanation that he purchased the gun because it was a good deal was not cogent. It is not clear why an individual who made $800 per month would purchase a gun for $50 unless he had some reason to possess it. Varelas, however, was unable to offer any explanation other than that the gun was a good buy, he was stupid and curious, and wanted to take the gun to a ranch in Mexico where he no longer lived.
"As Shaputis illustrates, a 'lack of insight' into past criminal conduct can reflect an inability to recognize the circumstances that led to the commitment crime; and such an inability can imply that the inmate remains vulnerable to those circumstances and, if confronted by them again, would likely react in a similar way. [Citations.] Thus, an inmate's 'lack of insight' can provide a logical nexus between the gravity of a commitment offense and a finding of current dangerousness." (In re Rodriguez (2011) 193 Cal.App.4th 85, 98.) Such is the case here. As the Board explained, "if you can't explain, and you want to deny, and you want to minimize, and you want to not be credible about what happened, this can happen again. And that's why we see you as a threat to public safety."
Viewing the full record before the Board, the three foregoing factors are supported by the evidence and interrelate to provide a modicum of support for the Board's conclusion that Varelas's release would pose an unreasonable risk of danger to the public. (See Lawrence, supra, 44 Cal.4th at p. 1212; In re Rodriguez, supra, 193 Cal.App.4th at p. 99; In re Criscione, supra, 180 Cal.App.4th at p. 1458.) While the record reflects many factors favoring suitability, it also reflects that Varelas does not currently acknowledge material aspects of his conduct and shows little understanding of the causes for his behavior. He likewise demonstrates little insight into his alcohol abuse, a causative factor of the crime, and has repeatedly engaged in fighting in prison, the very conduct that led to the commitment offense. Under these circumstances, and given the deferential standard of review (Shaputis II, supra, 53 Cal.4th at pp. 198-199, 210, 215), we conclude the Board's decision was supported by some evidence.
Because we conclude that these three factors supported the Board's unsuitability finding, we do not address the remaining factors cited.
3. Contention that the Board's decision was based on a systemic policy.
Varelas urges that a new hearing is required because the Board's denial was the result of a systemic bias against the grant of parole, rather than an individualized assessment of his risk to public safety. Varelas argues that the Board's actual practice is to deny parole at the initial hearing, as well as at subsequent hearings. In support he appends to his Traverse a variety of articles, statistics, and case materials related to other inmates. This court, of course, does not sit as a trier of fact, and is not in a position to gauge the accuracy or relevance of any of these materials, nor is this a class action challenging the general procedures of the Board. To the contrary, our review is limited to the questions of whether Varelas's parole denial was arbitrary or capricious, was based on the Board's individualized consideration of the specified criteria, and was supported by "some evidence." (Shaputis II, supra, 53 Cal.4th at p. 210; Rosenkrantz, supra, 29 Cal.4th at p. 677; Lawrence, supra, 44 Cal.4th at p. 1204.) As the foregoing discussion makes clear, Varelas received the individualized consideration to which he was entitled. The Board's decision was supported by the evidence and was neither arbitrary nor capricious, and the hearing comported with due process.
4. Application of Marsy's Law to Varelas does not violate ex post facto principles.
Varelas next contends that application of Marsy's Law to him to defer his next parole hearing for seven years violates ex post facto principles. We disagree.
The question of whether section 3041.5, as amended by Marsy's Law, can be applied to life inmates convicted before the amendment's effective date without violating the ex post facto clauses of the state and federal Constitutions is currently pending before our Supreme Court. (See, e.g., In re Aragon (2011) 196 Cal.App.4th 483, review granted Sept. 14, 2011, S194673; In re Vicks (2011) 195 Cal.App.4th 475, review granted July 20, 2011, S194129.)
In 2008, the voters enacted Proposition 9, Marsy's Law. Among other things, Marsy's Law amended section 3041.5, subdivision (b)(3), governing the time periods in which subsequent parole hearings are to occur. Before the amendment, section 3041.5 provided for annual parole suitability hearings for inmates who had been denied parole, but allowed the Board discretion to defer subsequent hearings for two years in the case of all prisoners, and up to five years for life-term prisoners convicted of murder, if the Board found it was not reasonable to expect parole would be granted earlier. (Former § 3041.5, subd. (b)(2); see In re Hernandez, supra, 200 Cal.App.4th at p. 1524; In re Lugo (2008) 164 Cal.App.4th 1522, 1536; In re Brown (2002) 97 Cal.App.4th 156, 158-159.) After passage of Marsy's Law, subsequent parole hearings are to be scheduled 15 years after any hearing in which parole is denied, unless the Board finds by clear and convincing evidence that a shorter period of 10, 7, 5, or 3 years is compatible with the public and the victim's safety. (§ 3041.5, subd. (b)(3); In re Hernandez, supra, at p. 1524.)
Section 3041.5, subdivision (b)(3), provides: "The board shall schedule the next hearing, after considering the views and interests of the victim, as follows:
"(A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years.
"(B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than seven additional years.
"(C) Three years, five years, or seven years after any hearing at which parole is denied, because the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years."
Both the California and federal Constitutions prohibit ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) " '[T]he ex post facto clauses of the state and federal Constitutions are "aimed at laws that 'retroactively alter the definition of crimes or increase the punishment for criminal acts.' " ' " (People v. Alford (2007) 42 Cal.4th 749, 755; Collins v. Youngblood(1990) 497 U.S. 37, 43.) A law may also violate ex post facto principles if it creates a " 'sufficient risk' " of increasing the punishment attached to the defendant's crimes. (Himes v. Thompson (9th Cir. 2003) 336 F.3d 848, 854.) Retroactive application of changes in parole laws may in some instances violate this precept, where they create "a significant risk of prolonging [a defendant's] incarceration." (Garner v. Jones (2000) 529 U.S. 244, 250-251 (Garner).)However, "[a] change in the law that merely operates to the disadvantage of the defendant or constitutes a burden is not necessarily ex post facto." (People v. Bailey (2002) 101 Cal.App.4th 238, 243; see John L. v. Superior Court (2004) 33 Cal.4th 158, 181.) California's ex post facto law is analyzed in the same manner as the federal prohibition. (People v. Alford, supra, at p. 755.)
Both the United States Supreme Court and the California Supreme Court have held that statutes increasing the interval between parole hearings do not violate the ex post facto clause. In California Dept. of Corrections v. Morales (1995) 514 U.S. 499 (Morales), the United States Supreme Court held that a 1981 amendment to former section 3041.5 decreasing the frequency of parole suitability hearings did not violate ex post facto principles. The amendment authorized the Board to defer parole suitability hearings for up to three years for inmates who had committed multiple murders, if the Board found it was not reasonable to expect parole would be granted before that. (Morales, supra, at p. 503.) Morales held the controlling inquiry was "whether retroactive application of the change in California law created 'a sufficient risk of increasing the measure of punishment attached to the covered crimes.' " (Garner, supra, 529 U.S. at p. 250;Morales, supra, at p. 509.) The court held it did not. (Morales, supra, at pp. 505, 507.) The amendment did not change the prescribed term, the applicable sentencing range, the formula for obtaining custody credits, the standards for fixing an initial eligibility date, or the criteria for determining suitability for parole. (Id. at pp. 507, 508.) Morales reasoned, "[t]he amendment creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause." (Id. at p. 509.) The amendment affected only a class of prisoners for whom the likelihood of release was remote; it also came into play only after the prisoner was first found unsuitable for parole. (Id. at pp. 510-511.) Moreover, the Board retained authority to tailor the frequency of subsequent hearings to the particular circumstances of the individual prisoner. (Id. at p. 511.)
In Garner, supra, 529 U.S. 244, the Georgia Board of Pardons and Paroles changed the frequency of parole hearings from every three years to up to eight years for inmates serving life sentences. (Id. at p. 247.) After inmate Jones was denied parole and his subsequent hearing was scheduled for eight years later, he brought a civil suit alleging the change in the Board's rules violated the ex post facto clause. Garner found no violation, despite the facts that the new rule resulted in an increase significantly longer than that at issue in Morales, the change applied to all prisoners serving life sentences, and the rule afforded fewer procedural safeguards than that at issue in Morales. (Id. at p. 251.) The court observed that the new rule was "qualified in two important respects." (Id. at p. 254.) First, the Board was given discretion as to how often to set an inmate's date for reconsideration, with eight years as the maximum. Second, the Board's policies permitted expedited parole reviews in the event of a change in circumstances, or if the Board received new information warranting a sooner review. (Ibid.)The Board's stated policy was to set reconsideration hearings only when it was not reasonable to expect parole would be granted during the intervening years. (Ibid.)
In In re Jackson (1985) 39 Cal.3d 464, our Supreme Court found no ex post facto problem with a 1982 amendment to section 3041.5 which allowed the Board to schedule suitability hearings biennially instead of annually. (In re Jackson, supra, at pp. 466-467.) Jackson concluded the amendment "worked only a 'procedural' change in respondent's rights." (Id. at p. 471.) The "amendment did not alter the criteria by which parole suitability is determined," nor did it "change the criteria governing an inmate's release on parole." (Id. at p. 473.) "Most important, the amendment did not entirely deprive an inmate of the right to a parole suitability hearing." Instead, it changed only the frequency with which the Board was required to give the inmate the opportunity to demonstrate parole suitability. (Ibid.)
Applying these principles here, we conclude application of Marsy's Law to Varelas does not violate the ex post facto clause. (See Gilman v. Schwarzenegger (9th Cir. 2011) 638 F.3d 1101, 1106-1111 [concluding, in class action for injunctive relief, that the contention that application of Marsy's Law violated the ex post facto clause was unlikely to succeed on the merits].) Marsy's law did not increase the statutory punishment for murder. It did not increase Varelas's sentence. It did not change the date of Varelas's initial parole hearing, his minimum parole eligibility date, the formula for his accrual of credits, or the parole suitability criteria. It did not entirely deprive him of the right to a parole suitability hearing. (In re Hernandez, supra, 200 Cal.App.4th at p. 1525.) Instead, the amendment changes the administrative method by which a parole release date is set. (See Morales, supra, 514 U.S. at p. 507; In re Brown, supra, 97 Cal.App.4th at p. 160.) The amendments will make parole hearings less frequent, but it is not necessarily the case that more frequent parole hearings result in more frequent parole releases, or shorter periods of incarceration. (See Gilman v. Schwarzenegger, supra, at p. 1108, fn. 6.) Moreover, similar to Garner and Morales, the Board has some discretion to tailor the frequency of hearings to the particular prisoner's circumstances in that it may, when warranted, set a subsequent hearing for three, five, seven, or ten years.
Further, much like the rule in Garner, amended section 3041.5 contains two new qualifying provisions that mitigate the possibility an inmate's incarceration will be prolonged. Subdivision (b)(4) provides that the Board "may in its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided in paragraph (3)." Subdivision (d) allows an inmate to request, once every three years, that the Board exercise its discretion to advance a hearing to an earlier date, if he or she shows in a written request that changed circumstances or new information establish a reasonable likelihood public safety does not require the additional period of incarceration. It is true that the changes wrought by Marsy's Law are more extensive than those in Morales, Garner, and Jackson, in that the "default" deferral period is now 15 years, rather than 1. The inmate now has the burden to establish that changed circumstances warrant an earlier hearing, whereas previously, the Board could defer an annual hearing only if it was not reasonable to expect parole would be granted during the intervening years. Further, the Board apparently lacks discretion to set a one-year deferral period. (See Gilman v. Schwarzenegger, supra, 638 F.3d at p. 1108.) However, the availability of the advance hearings provided by subdivisions (b)(4) and (d) ameliorates the chance that prisoners will actually receive a greater punishment. (Gilman v. Schwarzenegger, supra, at pp. 1108-1109.) These additional procedural safeguards eliminate any ex post facto implications because they minimize or eliminate the significant risk of prolonging an inmate's incarceration. (See Garner, supra, 529 U.S. at p. 254.)
Section 3041.5, subdivision (d), provides: "(1) An inmate may request that the board exercise its discretion to advance a hearing set pursuant to paragraph (3) of subdivision (b) to an earlier date, by submitting a written request to the board, with notice, upon request, and a copy to the victim which shall set forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate.
"(2) The board shall have sole jurisdiction, after considering the views and interests of the victim to determine whether to grant or deny a written request made pursuant to paragraph (1), and its decision shall be subject to review by a court or magistrate only for a manifest abuse of discretion by the board. The board shall have the power to summarily deny a request that does not comply with the provisions of this subdivision or that does not set forth a change in circumstances or new information as required in paragraph (1) that in the judgment of the board is sufficient to justify the action described in paragraph (4) of subdivision (b).
"(3) An inmate may make only one written request as provided in paragraph (1) during each three-year period. Following either a summary denial of a request made pursuant to paragraph (1), or the decision of the board after a hearing described in subdivision (a) to not set a parole date, the inmate shall not be entitled to submit another request for a hearing pursuant to subdivision (a) until a three-year period of time has elapsed from the summary denial or decision of the board."
DISPOSITION
The petition for a writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
KITCHING, J.