California Court of Appeal Jun 7, 2013 No. D058592AUnpublished
Filed 6/7/13 In re Reed CA4/1 Opinion following order vacating prior opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re MELVIN R. REED, JR. D058592
on (San Diego County Super. Ct. No. SCD114255) Habeas Corpus.
Petition for Writ of Habeas Corpus, Howard H. Shore, Judge. Relief denied.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, Phillip Lindsay and Michael Rhoads, Deputy Attorneys General, for Respondent
and Real Party in Interest.
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 36 years old, has been
incarcerated for more than 17 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 asserted (1) 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, and (2) 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 violated ex
post facto principles.
In our original opinion, filed July 25, 2011, we concluded that, although there was
sufficient evidence from which the BPH could have concluded Reed was not currently
suitable for parole, the scheduling of Reed's next suitability hearing under the 10-year
provision pursuant to the amendments to section 3041.5, subdivision (b), violated ex post
1 All statutory references are to the Penal Code unless otherwise specified. 2
facto principles. Accordingly, we affirmed in part and reversed in part. However, the
Supreme Court granted the People's petition for review and, by its subsequent order of
May 1, 2013, the Supreme Court has directed that we vacate our decision and reconsider
the cause in light of In re Vicks (2013) 56 Cal.4th 274. Our original opinion is vacated
and replaced by this opinion.
We reaffirm our original conclusion that 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 Vicks compels us to reject Reed's claim that 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.
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 17-
month 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.
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15, § 2402, subd. (b)),2 and Reed does not dispute that this aspect of the BPH's
determination is supported by the requisite level of evidence, we do not further detail the
commitment offense.
B. Reed's Criminal Background
Reed had a prior juvenile criminal history of both violent and nonviolent offenses.
C. Reed's Disciplinary Record in Prison
During his time in prison, Reed received numerous "CDC 115's," the latest of
which was in 2004, and many of those violations involved violence. During his time in
prison, he has also received several "CDC 128's." "[A] CDC 115 documents misconduct
believed to be a violation of law which is not minor in nature. A form 128 documents
incidents of minor misconduct." (In re Gray (2007) 151 Cal.App.4th 379, 389.)
D. Reed's Psychological Evaluation
A psychologist evaluated Reed and his report was received by the BPH without
objection. The psychologist interviewed Reed and, based on the interview, concluded
Reed did not have insight into the factors that led to his conduct, was unable to express
genuine remorse for his conduct, and had not availed himself of the opportunities in
2 Factors supporting the finding that the crime was committed "in an especially heinous, atrocious or cruel manner" (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)), include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense. 4
prison to acquire insight or develop the empathy for others necessary to function
appropriately in society.
The psychologist also evaluated Reed's potential for violence under two separate
empirically-based assessment guides,3 and evaluated Reed's general risk of recidivism
under another empirically based-assessment guide.4 Reed's PCL-R score placed him in
the "moderately high range" for future violence, and the tests suggested tendencies
Failure to Accept Responsibility for Own Actions . . . ." Reed's score on the HCR-20
placed him in the "moderately high" risk category for violent recidivism. The LS/CMI
placed him in the "high" category for risk of recidivism. The psychologist concluded,
based on his clinical assessment and the empirical guides, that Reed presented a
"relatively [h]igh risk for violence in the free community."
E. Reed's Rehabilitative Efforts
Reed's participation in institutional programming and self-help groups was
sporadic, and his educational and vocational training was sparse.
3 The guides used to assess Reed's potential for violence were the Psychopathy Checklist-Revised (PCL-R) and the History-Clinical-Risk Management-20 (HCR-20).
4 The guide used to assess Reed's general risk of recidivism was the Level of Service/Case Management Inventory (LS/CMI). 5
F. Parole Plans
The evidence supports the BPH's conclusion that Reed's parole plans were "non-
existent": he had not identified a facility willing to accept him on release, had no job
arranged, and had no letters offering financial or other support on his release from prison.
II
HISTORY OF PROCEEDINGS
A. The BPH Proceedings
Reed's minimum eligible parole date was in 2010. At his 2009 parole hearing, the
BPH considered Reed's testimony, as well as the written reports, and concluded he was
unsuitable for parole because he posed an unreasonable risk of danger to society if
released. The BPH relied on the facts of the crime, his prior criminal record, his current
level of insight into or acceptance of responsibility for the crime, his disciplinary record
while in prison, his psychological evaluation, his limited programming while
incarcerated, and his lack of parole plans to conclude he was not currently suitable for
parole. The BPH scheduled Reed's next parole eligibility hearing 10 years from his 2009
hearing pursuant to section 3041.5, subdivision (b)(3)(C).
B. The Habeas Proceedings
Reed filed a petition for writ of habeas corpus in the San Diego County Superior
Court, which denied the petition, finding there was some evidence to support the BPH's
decision. Reed then petitioned this court for a writ of habeas corpus.
6
III
LEGAL STANDARDS
A. The Parole Decision
The decision whether to grant parole is a subjective determination (In re
Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a
number of factors, some objective, identified in section 3041 and the BPH's regulations.
(Cal. Code Regs., tit. 15, §§ 2281, 2402.) In making the suitability determination, the
We conclude the BPH's unsuitability determination is supported by some
evidence, and therefore affirm its determination on the issue of Reed's current
unsuitability for parole.
V
ANALYSIS OF EX POST FACTO CHALLENGE
The BPH concluded a 10-year deferral before Reed would again be considered for
parole, as permitted under section 3041.5, subdivision (b)(3), was appropriate. Reed
argues applying the amendments to section 3041.5, subdivision (b), which implement
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aspects of Marsy's Law to permit the 10-year deferral, to him would violate ex post facto
principles.
In Vicks, the Supreme Court considered whether application of the amendments to
section 3041.5, subdivision (b), which implement aspects of Marsy's Law to permit
longer deferrals of subsequent suitability hearings, would violate ex post facto principles
if applied to prisoners whose crimes predated that law, and found no constitutional
infirmity existed. Because of Vicks, we reject Reed's challenge to the BPH's 2009 order
insofar as it scheduled Reed's next parole hearing according to the standards and
procedures of section 3041.5, as amended pursuant to Marsy's Law.
DISPOSITION
The relief requested in Reed's petition for a writ of habeas corpus is denied.
McDONALD, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
14
AI Brief
AI-generated · verify before citing
Holding. The court held that the Board of Parole Hearings' decision to deny parole was supported by some evidence of current dangerousness and that applying the Marsy's Law amendments to Penal Code section 3041.5 regarding parole deferral periods does not violate ex post facto principles.
Issues
Whether the Board of Parole Hearings' decision to deny parole was supported by some evidence of current dangerousness.
Whether the application of Marsy's Law amendments to Penal Code section 3041.5, allowing for 10-year parole deferrals, violates ex post facto principles for inmates whose crimes predated the law.
Disposition. denied
Quotations verified verbatim against the opinion
“We conclude the BPH's unsuitability determination is supported by some evidence, and therefore affirm its determination on the issue of Reed's current unsuitability for parole.”
“Because of Vicks, we reject Reed's challenge to the BPH's 2009 order insofar as it scheduled Reed's next parole hearing according to the standards and procedures of section 3041.5, as amended pursuant to Marsy's Law.”