In re Thompkins 2/15/12 CA4/1

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State: California

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

Docket No: D060171

Case Date: 05/23/2012

Preview:Filed 2/15/12

CERTIFIED FOR PARTIAL PUBLICATION COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re RUFUS THOMPKINS on Habeas Corpus.

D060171 (San Diego County Super. Ct. Nos. CR76417 and HC17675)

Petition for writ of habeas corpus. Petition denied.

Appellate Defenders, Inc. and Rich Pfeiffer, under appointment of the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Jennifer Neill, Acting Senior Assistant Attorney General, Phillip Lindsay and Kathleen R. Walton, Deputy Attorneys General, for Respondent.

In 2009, the Board of Parole Hearings (BPH) found petitioner Rufus Thompkins unsuitable for parole and scheduled his next parole hearing, pursuant to the minimum

Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts III, IV, and the concurring and dissenting opinion.

deferral term permitted under the amendments to Penal Code1 section 3041.5 (adopted by the passage of Proposition 9, the Victim's Bill of Rights Act of 2008: Marsy's Law (hereafter Marsy's Law)), to be in 2012. Thompkins later applied for an "advanced" hearing date, which the BPH ultimately denied. In Thompkins's petition for writ of habeas corpus, he argues the mode by which the BPH disposed of his petition for an "advanced" hearing date denied him procedural due process, and that denial of the advanced hearing was an abuse of discretion. In Thompkins's supplemental petition, he argues application of Marsy's Law to him violates ex post facto principles. I FACTUAL AND PROCEDURAL BACKGROUND A. Facts In 1986, petitioner Rufus Thompkins shot and killed his wife and wounded her boyfriend with a firearm. In 1988, a jury convicted Thompkins of the first degree murder of his wife, assault with a deadly weapon on her boyfriend, and burglary. Thompkins was sentenced to 27 years to life, and has been imprisoned for more than 25 years. (In re Thompkins (May 27, 2008, D050679) [nonpub. opn.].) During his imprisonment, he has largely avoided serious disciplinary actions, but the BPH found him unsuitable for parole at several hearings, including the most recent hearing in August 2009.

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Statutory references are to the Penal Code unless otherwise specified. 2

B. The Challenged BPH Action At the 2009 hearing, after finding Thompkins unsuitable for parole, the BPH set his next parole hearing for the minimum deferral term permitted under the amendments to section 3041.5 and ordered he not be considered for parole for another three years. However, one year later, Thompkins applied under section 3041.5, subdivision (d), to advance his parole hearing, asserting there were changed circumstances (in the form of an August 16, 2010 report by Dr. A. L. Matthews describing Thompkins's psychological progress) that required the BPH to advance his parole hearing date. Thompkins was notified he was scheduled for a November 2, 2010 "Petition to Advance Hearing," and that the BPH ordered a "full review" of his request for an advanced parole hearing. However, the BPH (apparently after conducting a full review of Thompkins's application) ultimately denied his application to advance his parole hearing. In the order denying Thompkins's application to advance his parole hearing, the BPH found he had not established a reasonable likelihood that considerations of public safety and the victim's interests did not require the additional three years of incarceration. The order denying the advanced parole hearing stated the newly submitted information (the new psychological evaluation) did not address the concerns stated by the BPH in its 2009 denial of parole about his history of domestic violence. Neither Thompkins nor his attorney were permitted to attend the hearing at which his application to advance his parole hearing was considered.

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C. The Writ Proceedings Thompkins petitioned the trial court for a writ of habeas corpus asserting the order denying the advanced parole hearing should be vacated on two separate grounds. Thompkins argued he was denied procedural due process because he was entitled to be personally present and to have an attorney present when the application to advance his parole hearing date was considered, but was denied those rights. He also apparently contended, on the merits, that it was an abuse of discretion for the BPH to conclude the newly submitted information had not established a reasonable likelihood that considerations of public safety and the victim's interests did not require the additional three years of incarceration. The trial court denied Thompkins's petition, and he then filed a petition for writ of habeas corpus in this court asserting the order denying the advanced parole hearing should be vacated on the same two grounds. This court issued an order to show cause, appointed counsel for Thompkins, and authorized Thompkins to file a supplemental petition for writ of habeas corpus. His supplemental petition reasserted the original arguments seeking relief and raised, for the first time, the argument that Thompkins should have been given a parole hearing on the one-year anniversary date of the 2009 denial because application of Marsy's Law's threeyear deferral provisions violates ex post facto protections on their face and as applied by the BPH. The People dispute that Thompkins was entitled to participate in the BPH's process of considering his application for an advanced parole hearing date, and dispute that the decision denying an advanced parole hearing was an abuse of the broad 4

discretion granted by the statutory scheme to the BPH under the advanced parole hearing provisions of section 3041.5. The People argue Thompkins may not interpose any ex post facto contest to Marsy's Law because it is not properly before this court, it is untimely, it is "successive," and because principles of comity should be applied to defer to a pending federal class action raising the same issue. The People also argue, on the merits, that application of Marsy's Law's three-year deferral provisions does not violate ex post facto protections either facially or as applied by the BPH. In the published portion of this opinion, we conclude Thompkins was not entitled to a separate hearing on his request for advancement. We also conclude the BPH did not abuse its discretion in denying Thompkins's request for advancement of his next parole hearing. In the unpublished portion of this opinion, we will reject Thompkins's claim that application of Marsy's Law to him violates his ex post facto protections. II THOMPKINS'S CHALLENGE TO ORDER DENYING ADVANCEMENT When the BPH denied parole to Thompkins in 2009, it ordered a three-year deferral under section 3041.5, subdivision (b)(3)(C), before Thompkins would again be considered for parole at his next parole hearing. Thompkins, contending new information or changed circumstances justified an earlier parole hearing, applied one year later to advance the date for his new parole hearing. The manner in which the BPH considered his application, as well as the decision on that application, was challenged in Thompkins's original writ petition. 5

A. The Former Law The commitment offenses occurred in 1986. At that time, section 3041.5 provided that when an inmate was denied parole he or she was entitled to have the matter reviewed annually at a subsequent parole hearing. However, that law gave discretion to the BPH to defer the subsequent parole hearing for two years (for all life sentence prisoners) or three years (for life sentence prisoners who had committed multiple murders) if the BPH found it was not reasonable to expect that parole would be granted sooner than two or three years, respectively.2 (See Stats. 1982, ch. 1435,

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