In re Vicks 5/11/11

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In re Vicks 5/11/11

State: California

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

Docket No: D056998

Case Date: 07/21/2011

Preview:Filed 5/11/11

CERTIFIED FOR PUBLICATION

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

In re MICHAEL VICKS on Habeas Corpus.

D056998 (San Diego County Super. Ct. No. CR63419)

Petition for writ of habeas corpus from denial of parole. Relief granted in part. Steve M. Defilippis, under appointment by the Court of Appeal, for Petitioner. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Anya M. Binsacca, Phillip Lindsay and Jennifer G. Ross, Deputy Attorneys General, for Respondent. In 1983, Michael Vicks was convicted of two counts of rape in concert, two counts of forcible oral copulation in concert, three counts of kidnapping, one count of kidnapping to commit robbery, and multiple counts of robbery; many of these convictions included true findings on appended firearm enhancements. Vicks was sentenced to a total term of 37 years 8 months to life. Vicks, now 51 years old, has been incarcerated for more than 28 years.

At Vicks'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 Vicks's prior criminal record, his disciplinary record while incarcerated, his failure to gain insight into the commitment offense, and his psychological evaluation), concluded Vicks was not currently suitable for parole. The BPH further concluded a five-year denial of parole was appropriate under the circumstances. Vicks petitioned the trial court for a writ of habeas corpus, but the court denied the writ, concluding the BPH's decision was supported by some evidence. Vicks then petitioned this court for a writ of habeas corpus. We issued an order to show cause, the People filed a return, and Vicks filed a traverse. Vicks 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 only reliable evidence that he was not currently dangerous. He also asserts the imposition of a five-year deferral, pursuant to the amendments to Penal Code1 section 3041.5, subdivision (b), adopted after the voters approved Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law" (hereafter Marsy's Law), cannot be applied to him without violating 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) 1

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

and In re Shaputis (2008) 44 Cal.4th 1241. We also conclude application of the amendments to Penal Code 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. I FACTS A. The Commitment Offense In 1983, Vicks was convicted of participating in a crime spree in which he and two other defendants employed firearms while committing numerous offenses against multiple victims, including kidnapping and sexually assaulting, as well as robbing, the victims. Because the facts of the crimes support the BPH's determination that the commitment offenses were committed in a particularly heinous, atrocious, or cruel manner (Cal. Code Regs., tit. 15,

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