Morales v. California Department of Corrections
Opinion of the Court
Jose Morales appeals the district court’s denial of his petition for a writ of habeas corpus. We affirm in part and reverse in part.
I. BACKGROUND
In 1971, Morales was convicted for the first degree murder of his girlfriend. When she was found, it was discovered that her thumb had been cut off. After being transferred to a half-way house in April 1980, he married a woman who had visited him during his incarceration. In May, Morales was paroled; his wife disappeared two months later. Approximately two weeks after she disappeared, her hand was discovered on the Hollywood Freeway in Los Angeles. Her body was never recovered.
Morales pleaded nolo contendere to the second degree murder of his wife and was sentenced to an imprisonment term of fifteen years to life. His earliest parole eligibility
II. DISCUSSION
A. The Ex Post Facto Clause
Critical to the understanding of Morales’ ex post facto claim is an understanding of the evolution of California’s law regarding parole hearings. “Between 1972 and 1977, it was the judicially approved policy of California that prisoners should be accorded an annual parole suitability review, except that in extreme cases the review could be every two or three years.” Connor v. Estelle, 981 F.2d 1032, 1034 (9th Cir. 1992) (per curiam) (quotations omitted). During this time period, criminals were sentenced pursuant to California’s Indeterminate Sentencing Law (ISL). Id. at 1033. In 1977, the California Legislature replaced the ISL with the Determinate Sentencing Law (DSL). The DSL mandated annual parole hearings, Cal.Penal Code § 3041.5(b)(2) (1976), until it was amended in 1981 to allow the Board to decide, in particular situations, to defer a parole hearing for up to three years when the inmate’s crime involved multiple murders. The DSL was again amended in 1982 to grant the Board the power to defer parole hearings for all crimes. See Watson v. Estelle, 886 F.2d 1093, 1094-95 & n. 1 (9th Cir. 1989) (discussing evolution of this aspect of the DSL).
Article I, section 10 of the Constitution prohibits the states from passing ex post facto laws. The implications of this clause are unusually clear:
“It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.”
Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925)) (emphasis added). A law violates the restriction if it is applied retrospectively and implicates these well-known concerns. Id., 497 U.S. at 46, 110 S.Ct. at 2721.
The respondents advance two primary arguments to support the retrospective application of the 1981 amendment. First, they argue that the change is merely procedural; second, they argue the change does not adversely affect Morales. We reject both contentions.
A purely procedural change in the law, even if applied retroactively, does not violate the ex post facto clause. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). A procedural change is one that alters the method used to make a determination; for instance, as in Dobbert, a statute that changes the role of the judge and jury in determining whether the death penalty should be imposed, id. at 293-94, 97 S.Ct. at 2298-99; or, as in Collins, a statute allowing an appellate court to reform an improper verdict instead of requiring a new trial. 497 U.S. at 52, 110 S.Ct. at 2724. However, a law that violates the core concerns of the ex post facto clause “is not merely procedural, even if the statute takes a seemingly procedural form.” Weaver, 450 U.S. at 29 n. 12, 101 S.Ct. at 965 n. 12. The DSL’s 1981 amendments do not simply change the procedures used to determine whether prisoners are entitled to parole or the methods used to insure compliance with the terms of parole; they eliminate the possibility of parole altogether in the period between hearings. Cf. Roller v. Cavanaugh, 984 F.2d 120, 124 (4th Cir.), cert. dismissed, — U.S. -, 114 S.Ct. 593, 126 L.Ed.2d 409 (1993).
The respondents also contend the changes do not adversely affect Morales because it is unlikely that he would be granted parole within three years. This is irrelevant to the inquiry; Morales’ claim does not depend on being able to demonstrate that he would have received parole sooner if he were granted annual parole hearings. See Flemming v. Oregon Bd. of Parole, 998 F.2d 721, 724-25 (9th Cir. 1993). It also does not matter that Morales lacks a vested right in parole or a particular parole date. “The presence or absence of an affirmative, enforceable right is not relevant.... Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S. at 30, 101 S.Ct. at 965.
B. The Denial of Parole
The Board found Morales unsuitable for parole because he has an unstable and criminal history, his crime was particularly cruel and atrocious, he still represented a threat to others, and he needed further psychiatric counseling and treatment. Morales contends the Board violated his due process rights by relying on a probation report that contained inaccuracies.
C. Improper Sentencing
Morales details the evolution of California’s sentencing statutes relative to second degree murder. Although Morales’ due process rights would be violated if he were sentenced to a term greater than permitted by law, Marzano v. Kincheloe, 915 F.2d 549, 552 (9th Cir. 1990), Morales fails to explain how his sentence of fifteen years to life is greater than that permitted by the statute then in effect, which called for this very
III. CONCLUSION
At the time Morales committed his crime, the punishment for that crime included annual parole hearings. Accordingly, the retrospective application of a law allowing parole hearings to be delayed for up to three years is an ex post facto law in violation of the Constitution. The district court’s judgment to the contrary is reversed with instructions to enter judgment in Morales’ favor and requiring the Board to comply with the law as it existed at the time Morales’ crime was committed.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
.The Supreme Court actually referred to the clause’s "core concerns" as those identified by Justice Chase in Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798). Collins, 497 U.S. at 41-42, 110 S.Ct. at 2718-19. However, the Court went on to describe the Beazell formulation as a proper "summary,” id. at 42, 110 S.Ct. at 2719; we refer to it instead of Calder in the interest of brevity.
. This point differentiates this case from Connor and Watson. In both cases, the petitioners committed their crimes before the DSL was passed. Connor, 981 F.2d at 1034; Watson, 886 F.2d at 1096.
. These two questions are really opposite sides of the same coin. A law that is procedural, by definition, will not implicate the core concerns of the ex post facto clause, see Collins, 497 U.S. at 45, 110 S.Ct. at 2720; on the other hand, a law
. Warden and other cases cited herein address the ex post facto clause as it applies to Congress, U.S. Const. art. I, § 9; however, the analysis is the same under both clauses.
. We are told that the California courts have ruled that this change in the law is procedural, see In re Jackson, 39 Cal.3d 464, 216 Cal.Rptr. 760, 764, 703 P.2d 100, 105 (1985); Morris v. Castro, 166 Cal.App.3d 33, 39-40, 212 Cal.Rptr. 299, 303-04 (1985), and that we should defer to this “finding.” Terming a statute “procedural” does not make it so, Collins, 497 U.S. at 46, 110 S.Ct. at 2721; we thus do not think this is a factual inquiry. To be sure, we must defer to the
. Morales also argues that dismembering an already-dead body is not torture, relying on People v. Franc, 218 Cal.App.3d 588, 594—95 267 Cal.Rptr. 109, 112-13 (1990). Though this claim may be trae (an issue we need not decide), dismembering a corpse may be considered evidence of a cruel, heinous, or atrocious crime. Moreover, nothing in the record clearly indicates when the dismemberment in this case occurred.
. Some representative samples of the alleged inaccuracies include his national origin, his mother’s national origin, the degree of planning involved in his crime, and a claim that he forged a diploma.
. Nothing in this opinion should be viewed as an opinion on the wisdom or advisability of releasing Morales on parole.
Reference
- Full Case Name
- Jose Ramon MORALES, a/k/a Pablo Jose Ramon Morales v. CALIFORNIA DEPARTMENT OF CORRECTIONS E.R. Meyers, Warden Attorney General of the State of California Board of Prison Terms
- Cited By
- 6 cases
- Status
- Published