In re Brown
In re RODNEY BROWN on Habeas Corpus
- Area
- criminal
- Panel
- Patricia D. Benke (author)
Analysis
The trial court (Board of Prison Terms) denied parole and set the next hearing for five years under Penal Code section 3041.5, subdivision (b)(2)(B). The Court of Appeal denied the writ of habeas corpus, holding that the 1994 amendment allowing five-year deferrals for any murder conviction applies to the petitioner despite his 1986 conviction.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
The Board's determination that the petitioner is not suitable for parole and that the next hearing may be deferred for five years under Penal Code section 3041.5, subdivision (b)(2)(B).“By its clear language, the Legislature has declared the current five-year period controls in all cases involving any murder conviction.” | de novo | correct | agree with court The court correctly applied the principle that changes to administrative parole procedures do not constitute ex post facto violations, as they do not increase the statutory maximum sentence or alter the definition of the crime. The legislative history confirms the 1990 window period did not protect single-murder convicts from the 1994 amendment. |
Authorities
- relied: In re Lance W. (1985) 37 Cal.3d 873 — Statutory interpretation should follow the clear language of the legislature.
- relied: Cal. Dept. of Corrections v. Morales (1995) 514 U.S. 499 — Changes to parole procedures that do not increase the maximum sentence do not violate the Ex Post Facto Clause.
- relied: In re Jackson (1985) 39 Cal.3d 464 — Administrative changes to parole eligibility procedures are not ex post facto violations.
The appellate opinion: sound — The opinion is sound because it correctly distinguishes between substantive criminal law changes and administrative parole procedures, relying on established ex post facto jurisprudence. It accurately traces the legislative history to show the petitioner was never covered by the 1990 window period protections.
How this analysis was made · dispute it
unusual dispositionThe Board of Prison Terms found petitioner, serving 15 years to life for a single 1986 second degree murder, unsuitable for parole and deferred his next parole consideration hearing for five years under Penal Code section 3041.5, subdivision (b)(2)(B) as amended in 1994. On original habeas corpus, the Court of Appeal held the uncodified 1990 window-period provision never applied to petitioner, that the 1994 five-year deferral provision applies to all murder convictions, and that its application does not violate ex post facto principles, and denied the petition.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Board's application of the five-year parole hearing deferral under section 3041.5, subdivision (b)(2)(B) (1994 version) to petitioner notwithstanding the uncodified 1990 window-period provision limiting the 1990 amendments to offenses committed before July 1, 1977 or on or after January 1, 1991“The history of section 3041.5 reveals there is no argument by which petitioner can bring himself within the protection of the window period since the only prisoners ever entitled to that protection were those in the category of multiple murder convictions” | de novo | correct | agree with court The question is one of statutory construction reviewed independently. The court traces the text of the 1986, 1990 and 1994 versions and correctly notes the 1990 window period by its own terms applied only to 'the amendments to Section 3041.5 ... made by this act,' i.e., the 1990 act, which added only a five-year deferral for multiple murderers. Petitioner, convicted of one murder, was never within the class the 1990 amendments affected, and the 1994 act contained no comparable limitation. The reading follows the plain language. |
Board's retroactive application of the 1994 five-year deferral provision to a prisoner whose offense predated the amendment, over an implied ex post facto objection“Only the administrative method by which a parole release date is set has been altered and as such, the five-year parole hearing period is proper.” | de novo | correct | agree with court The court relies on Morales and In re Jackson, both of which upheld earlier amendments to section 3041.5 lengthening intervals between parole hearings against ex post facto challenge. The result is consistent with those authorities. The analysis is brief, however: Morales rested on findings that the deferral applied to a narrow class, required a finding that parole was unlikely, and allowed advancement of hearings, and the court here does not examine whether the 1994 provision, which applies to all murderers, shares those features or creates a sufficient risk of increased punishment. The conclusion is defensible but the reasoning is conclusory. |
Authorities
- relied: In re Lance W. (1985) 37 Cal.3d 873 — Courts give effect to the clear language of an enactment as the best indicator of legislative intent.
- relied: California Dept. of Corrections v. Morales (1995) 514 U.S. 499 — Amendment to section 3041.5 allowing the Board to defer parole hearings for multiple murderers for up to three years did not violate the ex post facto clause because it created no significant risk of increasing punishment.
- relied: In re Jackson (1985) 39 Cal.3d 464 — Retroactive application of the 1981 amendments to section 3041.5 permitting less frequent parole hearings did not violate ex post facto principles because they altered procedure rather than the punishment for the crime.
The appellate opinion: sound with gaps — The statutory-history analysis is careful and correctly reads the 1990 window period as limited to the 1990 act, which never applied to a single-murder prisoner, so the 1994 provision governs. The ex post facto discussion is conclusory, labeling the change 'administrative' without applying Morales's risk-of-increased-punishment inquiry to a provision now reaching all murderers rather than only multiple murderers.
Opinion — Benke
Opinion
BENKE, Acting P. J.In 1986, petitioner Rodney Brown was sentenced to a prison term of 15 years to life following a guilty plea to one count of second degree murder. In September 1999 the Board of Prison Terms (Board) determined petitioner was not suitable for parole. The Board also determined it was not reasonable to expect petitioner would be suitable for parole release in the next five years. Petitioner seeks a writ of habeas corpus setting aside the Board’s decision. In doing so, he does not contest the sufficiency of the evidence to support the Board’s denial of parole. Rather, he argues Penal Code section 3041.5, subdivision (b)(2)(B),1 which allows *158the deferral of parole consideration hearings for five years upon a murder conviction, does not apply to him.
I
The History of Section 3041.5
Prior to 1990, section 3041.5, subdivision (b)(2), provided that where, following a parole hearing, a prisoner had been denied a parole date, the Board was required to send the prisoner a written statement setting forth the reasons for denial and suggesting activities which might benefit him while in prison. Thereafter, the Board was required to hear that prisoner’s case annually, except that the Board was permitted to schedule the next hearing “no later than (A) two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding or, (B) three years after any hearing at which parole is denied if the prisoner has been convicted, in the same or different proceedings, of more than one offense which involves the taking of a life, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding.” (Stats. 1986, ch. 248, § 166, pp. 1267-1268.)
In 1990 the Legislature amended section 3041.5. The Legislature left intact the annual parole review procedure in subdivision (b)(2) and its two-year exception in subdivision (b)(2)(A). It also left intact the three-year exception of subdivision (b)(2)(B) for prisoners who had been convicted of more than one criminal homicide. It added subdivision (b)(2)(C), which provided that the Board could defer a parole hearing for up to five years if the prisoner had “been convicted, in the same or different proceedings, of more than two murders.” (Stats. 1990, ch. 1053, § 1, pp. 4380-4381.) As part of the same session, the Legislature created a window period, which provided: “The amendments to Section 3041.5 of the Penal Code made by this act shall be applicable only to offenses committed before July 1, 1977, or on or after January 1, 1991.” (Stats. 1990, ch. 1053, § 2, p. 4381.) The window period made in 1990 was not codified.
In 1994 the Legislature again amended section 3041.5. By these amendments, the annual parole review procedure set in subdivision (b)(2) was left untouched, as was its two-year exception in subdivision (b)(2)(A). Subdivision (b)(2)(B) and (C) were deleted. A newly written subdivision (b)(2)(B) was added and now provides for parole hearing periods of up to five years “if the prisoner has been convicted of murder.”
*159II
Applicability of the Uncodified 1990 Law to Petitioner
Petitioner contends the 1994 amendment to section 3041.5, which creates a five-year parole hearing exception for any single conviction of murder, does not apply to him. He reasons that because his conviction for murder occurred in 1986, section 2 of the uncodified law provides a window period by which his parole hearing dates cannot be set at five years. We do not agree.
The history of section 3041.5 reveals petitioner was never within a class of prisoners affected by the 1990 uncodified amendments. Prior to the amendments made in 1990, section 3041.5 required annual parole hearings. The two exceptions were a two-year review period if the Board determined parole would not reasonably be set the following year, and a three-year review period for more than one offense involving criminal homicide. Because petitioner’s conviction was for one murder, under pre-1991 law he was entitled to annual reviews, at most extended by one additional year.
In 1990 the Legislature amended section 3041.5 by adding subdivision (b)(2)(C), which permitted a five-year extension for parole hearings where the prisoner had been convicted of more than one murder. Again, this new five-year extension could not apply to petitioner because he had been convicted of only one murder.
In 1994 the Legislature again amended section 3041.5. Again it left intact the one-year review period extendable by one additional year. It eliminated the three-year extension for multiple criminal homicides and the five-year extension for multiple murders, which had been created by the 1990 amendments. It added a five-year extension for any single murder conviction.
The history of section 3041.5 reveals there is no argument by which petitioner can bring himself within the protection of the window period since the only prisoners ever entitled to that protection were those in the category of multiple murder convictions, a category eliminated by the 1994 amendments to section 3041.5.
Ill
Application of the 1994 Amendment to Petitioner
The question remains whether petitioner’s parole review hearings may be set for periods up to five years pursuant to the current version of section *1603041.5, subdivision (b)(2)(B), or whether the pre-1994 law, which set his parole hearings at a maximum of two years, controls.
By its clear language, the Legislature has declared the current five-year period controls in all cases involving any murder conviction. (See In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744].) The window period created by Statutes 1990, chapter 1053, section 2, page 4381, applied to only the 1990 amendment and not to the 1994 amendment to section 3041.5. Moreover, there is no bar to its application to petitioner. The amendments resulting in the current version of section 3041.5 effect no change in petitioner’s crime. Nor do they increase sentences statutorily assigned to the crime of murder. Only the administrative method by which a parole release date is set has been altered and as such, the five-year parole hearing period is proper. (Cal. Dept. of Corrections v. Morales (1995) 514 U.S. 499 [115 S.Ct. 1597, 131 L.Ed.2d 588]; In re Jackson (1985) 39 Cal.3d 464 [216 Cal.Rptr. 760, 703 P.2d 100].)
The petition is denied.
Nares, J., and McDonald, J., concurred.
All further statutory references are to the Penal Code unless otherwise specified.
Cites, in this corpus
- In Re Jackson Crim. 24381 · 1985-08-08
- People v. Lance W. Crim. 23551 · 1985-02-01