In re Reed 7/25/11 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D058592

Case Date: 10/12/2011

Preview:Filed 7/25/11 In re Reed CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re MELVIN R. REED, JR. on Habeas Corpus.

D058592 (San Diego County Super. Ct. No. SCD114255)

Petition for Writ of Habeas Corpus, Howard H. Shore, Judge. Relief granted in part. In 1996, Melvin Reed was convicted of assault on a child resulting in death and was sentenced to a prison term of 15 years to life. Reed, now 34 years old, has been incarcerated for more than 15 years. At Reed's first parole hearing, the Board of Parole Hearings (BPH) found him unsuitable for parole. The BPH found the commitment offense was particularly egregious under many indices and, considering numerous other factors (including Reed's prior criminal record, his disciplinary record while incarcerated, his failure to gain insight into the commitment offense, and his psychological evaluation), Reed was not currently

suitable for parole. The BPH further concluded a 10-year denial of parole was appropriate under the circumstances. Reed petitioned the trial court for writ of habeas corpus, but the court denied the writ, concluding the BPH's decision was supported by some evidence. Reed then petitioned this court for a writ of habeas corpus. We issued an order to show cause, the People filed a return, and Reed filed a traverse. Reed asserts the BPH's decision to deny parole violated due process because its conclusion that he posed an unreasonable risk of danger to society if released on parole was contrary to the evidence that he was not currently dangerous. He also asserts the amendments to Penal Code section 3041.5, subdivision (b),1 adopted after the voters approved Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law" (Ballot Pamp., Gen. Elec. (Nov. 4, 2008) text of Prop. 9, p. 128, hereafter Marsy's Law), when applied to him violates ex post facto principles. We conclude the BPH's decision to deny parole was supported by some evidence, pursuant to the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241. However, we conclude application of the amendments to section 3041.5, subdivision (b), to inmates whose commitment offense was committed prior to the effective date of Marsy's Law violates ex post facto principles.

1

All statutory references are to the Penal Code unless otherwise specified. 2

I FACTS A. The Commitment Offense In 1996, Reed was convicted of physically assaulting a child resulting in the child's death. Reed was under the influence of drugs when the child, his girlfriend's 17month old son, woke Reed with his crying. Reed struck the child in the abdomen with such force that his liver was forced against his spine, lacerating the liver and causing death. Because the facts of the crime support the BPH's determination that the commitment offense was particularly heinous, atrocious, or cruel (Cal. Code Regs., tit. 15,

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