In re ROBERT ROSENKRANTZ on Habeas Corpus, 29 Cal. 4th 616

Opinion GEORGE, C. J. In 1986, petitioner Robert Rosenkrantz was convicted of second degree murder and was sentenced to an indeterminate term of imprisonment for 15 years to life, plus two years because of his use of a firearm in the commission of the offense. In June 2000, after several hearings before the Board of Prison Terms (the Board) and rulings by the superior court and the Court of Appeal, the Board, in compliance with the mandate of an earlier judicial decision, found petitioner suitable for parole and set a parole date.

The Governor, however, found petitioner unsuitable for parole and reversed the Board’s decision. In a petition for writ of habeas corpus, petitioner challenged on several grounds the Governor’s decision denying parole. The superior court granted the petition after concluding that there was no evidence supporting the Governor’s decision, and that the Governor’s decision was based upon an impermissible general policy of automatically denying parole to prisoners convicted of murder.

The Court of Appeal affirmed the judgment rendered by the superior court, concluding that the law of the case doctrine supported the superior court’s determination that there was no evidence to support the Governor’s decision. We granted review primarily to consider whether a decision of the Governor finding a prisoner unsuitable for parole is subject to judicial review and, if so, under what standard.

After review was granted, petitioner requested this court to address an additional, threshold issue that petitioner had not timely presented to us—namely, whether the Governor’s review of the Board’s decision in this case is barred by the ex post facto clause of the federal and state Constitutions, because

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section 8, subdivision (

b) of the California Constitution (hereafter

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section 8(b))—the provision that grants the Governor the authority to review the Board’s parole decisions in a case such as this—was adopted in 1988, after petitioner had committed the underlying offense. Although we are not required to address this belatedly presented issue, we conclude that it is appropriate to consider and resolve the ex post facto question in this case.

As we shall explain, in conformity with the views of each of the state and federal courts that previously has addressed this ex post facto question, we conclude that petitioner’s ex post facto claim lacks merit and that the Governor’s review of the Board’s parole decision in this case did not violate the ex post facto clause of the federal or state Constitution.

With respect to the principal issue upon which we granted review, we conclude that a Governor’s decision granting or denying parole is subject to a limited judicial review to determine only whether the decision is supported by “some evidence.” As we shall explain,

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section 8(b), does not grant a Governor unfettered discretion over parole matters, but rather explicitly requires his or her parole decision to be based upon the same factors that the Board is required to consider. At the time

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section 8(b), was adopted, it was established under California law that although the Board exercises broad discretion in determining whether to rescind parole, such decisions are subject to a form of limited judicial review to ensure that they are supported by at least “some evidence.” (In re Powell (1988) 45 Cal.3d 894, 904 [248 Cal.Rptr. 431, 755 P.2d 881] (Powell).) We conclude that a Governor’s decisions under

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section 8(b), are subject to this same type of limited judicial review, and that under this standard a court is authorized to review the factual basis of the Governor’s decision only to determine whether it is supported by some evidence relevant to the factors the Governor is required to consider under

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section 8(b). This limited judicial review of a gubernatorial parole decision, for the purpose of determining whether it is supported by some evidence, does not usurp the executive’s discretionary authority over parole matters or otherwise violate the separation of powers doctrine. Rather, such review simply ensures that parole decisions are supported by a modicum of evidence and are not arbitrary and capricious.

With regard to the Governor’s decision in the present case, we conclude initially that the Court of Appeal erred in concluding that the law of the case doctrine establishes that the Governor’s decision is not supported by some evidence. The prior appeal that was deemed by the appellate court to constitute the law of the case involved a different case, different parties, and a different underlying decision denying parole, and therefore does not support application of the law of the case doctrine.

In addition, after conducting our own review of the Governor’s decision (set forth in a 12-page document) reversing the Board’s action granting parole to petitioner, we conclude that the Governor’s decision in this case is supported by some evidence in the record, and further that the record does not support the trial court’s finding that the Governor’s decision in petitioner’s case resulted from a blanket policy of denying parole in all cases in which a prisoner has been convicted of murder.

Accordingly, we shall reverse the judgment of the Court of Appeal in favor of petitioner and shall direct that the requested writ of habeas corpus be denied. I A In 1986, petitioner was convicted of second degree murder and was sentenced to an indeterminate term of 15 years to life, plus two additional years because the jury found true an allegation that he personally used a firearm in the commission of the offense. On appeal, the Court of Appeal affirmed petitioner’s judgment of conviction. (People v.

Rosenkrantz (1988) 198 Cal.App.3d 1187 [244 Cal.Rptr. 403] (Rosenkrantz I).) Because resolution of the issues in the present case depends in part upon a consideration of the circumstances of the offense and the particular verdicts rendered in petitioner’s trial, we begin by summarizing the facts of the crime as set forth in Rosenkranz I. (Id. at pp. 1191-1199.) Additional details regarding the circumstances of the crime and petitioner’s subsequent conduct will be discussed in connection with our analysis of the contentions of the parties.

At the time of the offense, petitioner was 18 years of age and resided with his parents and two brothers in Calabasas in Los Angeles County. Petitioner testified that he knew at an early age that he was gay but also knew that this circumstance was unacceptable to his family—particularly to his father, whom he idolized. Petitioner pretended to be heterosexual but secretly was able to communicate with and meet other gay teenagers. Petitioner’s brother Joey, then 16 years of age, suspected that petitioner was gay and shared this suspicion with Steven Redman, Joey’s 17-year-old friend.

According to petitioner, Redman was a bully and was preoccupied with hatred of homosexuals, and Joey also disliked such individuals. By eavesdropping on petitioner’s telephone conversations, Joey learned that petitioner planned to meet another young male at the family’s beach house on the evening petitioner graduated from high school—Friday, June 21, 1985. Redman suggested that he and Joey go to the beach house that night to investigate and gather information concerning petitioner’s sexual orientation.

Upon arriving at the beach house, Redman and Joey looked through a window and observed petitioner, two other males, and one female drinking and watching television. When petitioner and his male companion entered a bedroom, and Joey and Redman no longer could view petitioner’s activities, Joey wanted to leave. Redman, however, decided that he would run into the house and take photographs. Before he did so, Redman and Joey retrieved a flashlight and a stun gun from Joey’s automobile.

Joey unlocked the door to the house and Redman kicked it in, shouting, “Get the fuck out of here you faggots.” A physical confrontation ensued in which Joey burned petitioner’s hands by firing the stun gun, Redman struck petitioner several times with the flashlight, petitioner’s companion punched Redman, and petitioner burned Joey on the face after having gained control of the stun gun. Petitioner’s nose was broken during the altercation.

The fighting ceased when petitioner’s other friends intervened, but petitioner then obtained a BB gun from his automobile and attempted to prevent Redman and Joey from leaving the house. Joey stated that he had recorded telephone calls confirming petitioner’s homosexuality, and that the tapes were in his automobile. Joey managed to escape when petitioner accompanied him to retrieve the tapes. Because petitioner had taken the keys to Joey’s automobile, however, Joey telephoned their father, who drove to the beach house and spoke with petitioner. Petitioner surrendered Joey’s keys to his father.

Before Redman and Joey left, Redman stated to petitioner’s father that he and Joey had observed petitioner with another male who had his pants down. The next morning, petitioner insisted to his father that he was heterosexual and that Redman and Joey had lied. Petitioner’s father, very upset by the possibility that petitioner might be gay, broke down and cried during the conversation with petitioner. Petitioner and Joey had decided that Joey would inform their father that the entire incident had been a joke, and Joey recanted his story concerning petitioner’s homosexual conduct.

Redman, having been summoned by the boys’ father, modified his story regarding what he had observed the previous evening, but petitioner’s father gradually realized that petitioner was gay. He confronted petitioner and angrily questioned him regarding his activities and contacts. Petitioner gathered his possessions and left the house, sleeping in his automobile that night. On Monday, June 24, petitioner went to a shooting range and rented an Uzi semiautomatic nine-millimeter carbine.

Petitioner testified that he had planned to kill himself at the shooting range, but then decided to use the gun to teach Redman a lesson. After shooting the weapon on the firing range for 10 or 15 minutes, petitioner stated to the manager that he wished to purchase an Uzi and did not want to wait for it to be ordered. When the manager refused to sell him the weapon he had rented, petitioner left. Also on Monday, petitioner visited a sporting goods store and arranged to purchase an Uzi that would be available on Wednesday, June 26. Petitioner was employed at a restaurant and worked there during this period.

On Tuesday, June 25, petitioner stated to a coworker that he had purchased a gun and was planning to kill his brother. Petitioner also informed another coworker that Redman and Joey had humiliated petitioner and that he was obtaining a gun. On Wednesday, June 26, petitioner obtained the Uzi he had ordered and purchased 250 rounds of ammunition. Petitioner testified that he telephoned Redman that night, but Redman hung up on him. Petitioner thought that he might use the Uzi to force Redman to recant what he had told petitioner’s father regarding petitioner’s sexual activities.

On Thursday, having telephoned two individuals who knew Redman, petitioner succeeded in learning where Redman resided. Petitioner again telephoned Redman, who refused to recant his statements regarding petitioner’s sexual orientation. On Thursday night, petitioner traveled to the condominium complex where Redman resided and unsuccessfully attempted to locate Redman’s vehicle. Petitioner spent the night in his own automobile near the complex.

The next morning, June 28, when Redman was driving away from his home, petitioner used his vehicle to block Redman’s vehicle and confronted Red-man, who asked petitioner what he wanted. Holding the Uzi, which was loaded and ready to be fired, petitioner responded, “I think you know what I want.” According to petitioner, Redman called him a “faggot” and said petitioner was in a lot of trouble. Petitioner twice asked Redman to accompany him to petitioner’s home to recant what Redman had said.

Redman responded, “I’m not going anywhere with you, you goddam faggot.” When Redman asked petitioner what he was going to do with the weapon, petitioner stated that he was going to use it to damage Redman’s car. Redman reiterated that he would not go anywhere with petitioner. Petitioner then pointed the gun at Redman and began shooting. Redman sustained at least 10 gunshot wounds, including six wounds to the head. There was evidence that the Uzi had been fired at very close range. Redman died from the shooting. Petitioner walked away from the body and entered his vehicle, still pointing the weapon at Redman.

In a telephone conversation that morning with Joey, petitioner cried and stated that he had done something terrible to Redman. That evening, petitioner telephoned a deputy sheriff who also had been petitioner’s teacher at school. In this conversation, which was recorded, petitioner admitted the shooting and expressed attitudes ranging from remorse to defiance. In the weeks following the shooting incident, petitioner traveled to various towns in northern California and Oregon, spending time with friends.

Approximately one month after the shooting, petitioner, accompanied by his attorney, surrendered to the investigating deputy sheriff. Petitioner was charged with murder (Pen. Code, § 187), and the complaint also alleged that petitioner personally used a firearm in the commission of that offense (id., § 12022.5).

At trial the defense presented expert testimony indicating that the dramatic disclosure of petitioner’s sexual orientation, and his father’s reaction to it, caused petitioner to suffer extreme stress and emotional turmoil, which impaired his ability to think rationally during the week preceding his commission of the crime and, in particular, at the time of the crime.

Although a defense expert testified that in his opinion petitioner had not planned to kill Redman during the week preceding commission of the crime, the expert further testified that petitioner might have possessed the intent to kill Redman at the time of the crime. The jury was instructed on first degree murder, second degree murder, and voluntary manslaughter. As stated above, the jury found petitioner guilty of second degree murder and found true the allegation regarding use of a firearm. B The proceedings related to petitioner’s application for parole have been protracted.

We summarize the pertinent events and proceedings, relying in part upon the history set forth in the Court of Appeal’s decision in In re Rosenkrantz (2000) 80 Cal.App.4th 409, 413-423 [95 Cal.Rptr.2d 279] (Rosenkrantz II) as well as the Court of Appeal’s opinion in the present case. 1 At petitioner’s first parole hearing in December 1994, the Board set his minimum parole eligibility date as January 23, 1996. At a parole suitability hearing in June 1996, the Board’s hearing panel found petitioner suitable for parole and recommended a release date.

Its decision relied upon the circumstances that petitioner (1) had no juvenile record or criminal history aside from the offense of which he was convicted, (2) had a stable social history, (3) excelled in school, (4) had no involvement with drugs or alcohol and no gang involvement, (5) required only one more semester of classes before receiving a bachelor of arts degree, (6) participated in extensive self-help and therapy programming to understand why he had reacted violently in committing the offense, (7) committed the crime as a result of significant stress in his life, (8) had realistic parole plans, including a job offer and very strong family support, (9) engaged in no disciplinary misconduct while in prison, (10) showed signs of remorse, and (11) accepted responsibility for his criminal behavior.

In addition, the trial judge and the district attorney had expressed support for granting parole to petitioner, and the psychological report prepared for the Board was positive. A review panel of the Board disapproved the hearing panel’s recommendation of a release date, however, and identified issues in need of further review. For example, the review panel observed that petitioner’s version of the altercation at the beach house differed from the version of events recounted by his brother Joey, suggesting that petitioner might have attempted to portray the events in a light more favorable to himself.

In addition, the review panel stated that investigatory reports suggested petitioner had planned the killing and had threatened Redman the day before the murder, and that after the murder petitioner had threatened Redman’s family and had stated to another individual that petitioner “did society a favor.” In December 1996, a rehearing panel of the Board also found that petitioner was not suitable for parole. This panel considered a letter from the investigating homicide detective, which addressed some of the points in the review panel’s decision and reflected the detective’s view that petitioner should be paroled.

The detective stated that when investigating the crime, he had found a knife on Redman’s body. The detective also expressed his opinion that statements by Redman’s mother, relating that petitioner had made threatening phone calls before his arrest, were unreliable. The decision of the rehearing panel to deny parole was based primarily upon its assessment that petitioner’s offense was committed in a dispassionate and calculated manner, and that petitioner therefore would pose an unreasonable risk of danger to society if released. Another parole suitability hearing was conducted in August 1997.

In addition to information received at the prior hearings, the Board considered a current recommendation for parole from petitioner’s correctional counselor, a psychological evaluation prepared for the Board that was favorable to petitioner, several letters of support, and information indicating that the district attorney was not opposed to parole.

The Board again concluded that petitioner was not suitable for parole—despite positive factors similar to those supporting the June 1996 finding of parole suitability—because of the circumstances of the offense and because petitioner had not participated sufficiently in beneficial self-help and therapy programming. The next parole hearing was held in August 1998. In a progress report, petitioner’s conduct in prison was described as exceptional.

By a vote of two to one, petitioner’s request for a finding of parole suitability again was denied on the ground that the offense was carried out in a manner that exhibited a callous disregard for the life and suffering of another, and that petitioner therefore would pose an unreasonable risk of danger to society if released. Meanwhile, petitioner had filed a petition for writ of habeas corpus seeking review of the parole suitability decisions rendered by the Board in December 1996 and August 1997. In April 1999, the superior court issued an order granting the petition.

The court observed that the Board had denied parole primarily because it determined that the offense was dispassionate, calculated, and carried out in a manner that exhibited a callous disregard for human life. According to the court, these findings were inconsistent with the evidence and with the jury’s implicit findings in the prior criminal action that petitioner did not plan, premeditate, or deliberate the murder.

The superior court’s order stated that unless evidence of changed circumstances or new information was presented to the Board, the Board was required to set a parole date for petitioner commensurate with his conviction for second degree murder—and not with the offense of first degree murder. The trial court also found that two commissioners who had participated in the Board’s parole decision were biased against petitioner and should not participate in the parole hearing. The Board appealed from the superior court’s April 1999 order granting the petition for writ of habeas corpus.

While the appeal was pending, the Board complied with the superior court’s order and conducted a parole suitability hearing in September 1999. The Board considered current letters in support of petitioner from the trial judge who presided over his criminal trial, from a captain in the sheriffs department homicide division, from the investigating deputy, and from Redman’s grandmother.

The panel nonetheless found petitioner unsuitable for parole, again determining that the positive aspects of petitioner’s behavior did not outweigh the circumstance that the offense was carried out in an especially cruel or callous manner, in a dispassionate or calculated manner (such as an execution-style murder), and in a manner demonstrating an exceptionally callous disregard for human suffering.

Nevertheless, believing that the superior court’s order required it to set a parole date, the Board granted parole but declined to set a release date pending an opportunity for the Governor to exercise his authority to review the decision. In November 1999, the Governor invoked his authority pursuant to

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section 8(b), to reverse the Board’s decision to grant parole. The Governor stated that the Board’s finding of suitability was based solely upon the superior court’s order, which then was still pending on appeal. In January 2000, the superior court ordered the Board to hold a new suitability hearing within 60 days, to find petitioner suitable for parole, and to set a parole date commensurate with his conviction for second degree murder. The Board filed a petition for writ of mandate seeking to set aside the superior court’s order.

The Court of Appeal issued an order to show cause and consolidated the writ proceeding with the Board’s appeal from the April 1999 order of the superior court. In Rosenkrantz II, supra, 80 Cal.App.4th 409, the Court of Appeal affirmed the superior court’s April 1999 order requiring the Board to set a parole date for petitioner commensurate with his conviction of second degree murder, unless new information was presented to the Board. The appellate court determined that the factual determinations underlying the Board’s finding of parole unsuitability were not supported by any evidence.

For example, the Court of Appeal found no evidence that petitioner displayed an exceptionally callous disregard for human suffering or that his crime involved an execution-style murder. Like the superior court, the Court of Appeal relied in part upon the circumstance that petitioner had been acquitted of first degree murder. The Court of Appeal also found there was no evidence indicating that petitioner required additional therapy in order to cope with stress in a nondestructive manner or not to pose a threat to others.

With regard to the Board’s writ petition challenging the superior court’s order requiring the Board to find petitioner suitable for parole, the appellate court considered the matter not ripe for decision, because the Board had not yet “satisfied the spirit” of the superior court’s April 1999 order requiring a new suitability hearing. (Id. at p. 427.) The Court of Appeal ordered the Board “to

schedule and commence a new suitability hearing . . . and to render a new determination in strict accordance with both the letter and the spirit of the views expressed in this opinion.” (Id. at p. 429.) In the course of its decision in Rosenkrantz II, the Court of Appeal emphasized “that the superior court will retain jurisdiction over this matter, and that it will have the power to enforce this order as well as its own orders, by contempt or by such other means as it deems appropriate under the circumstances.” (Id. at p. 428.) 2 We finally summarize the most recent proceedings that directly gave rise to the present dispute.

In accordance with the decision in Rosenkrantz II, supra, 80 Cal.App.4th 409, the Board held a new parole suitability hearing in June 2000. At this hearing, a representative of the district attorney’s office stated that the district attorney now was opposed to parole. In addition, letters from the sheriff’s department expressed opposition to parole, as did a letter written by the victim’s father.

The hearing panel found, among other things, that petitioner had committed the crime as the result of significant stress in his life, that he had shown remorse and had accepted responsibility for his crime, and that his most recent psychological report demonstrated that he presented a very low risk for future violence and that he clearly was not a criminally oriented individual. The Board found petitioner suitable for parole and determined that he would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison.

The Board made clear, however, that had it not been constrained by the order of the superior court, it would have reached a different decision. In October 2000, again exercising his authority pursuant to

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section 8(b), the Governor reversed the Board’s finding of suitability. In a 12-page written decision, which we shall describe in more detail below, the Governor stated that in his view petitioner would pose a significant risk of danger to society if released from prison.

The Governor determined that the murder committed by petitioner was not a spontaneous crime, but rather was preceded by “a full week of careful preparation, rehearsal and execution.” The Governor stated that the stress petitioner experienced regarding the disclosure of his sexual orientation “does not minimize the viciousness of this murder.” Furthermore, according to the Governor, petitioner demonstrated a lack of remorse by affirming his violent act after the crime was committed, attempting to mitigate his role in the crime, portraying himself as a victim, lying about numerous aspects of the murder, and not taking full responsibility for the crime.

The Governor stated that petitioner “should be grateful that he was not convicted of first degree murder,” because there appears to have been ample evidence to support such a conviction. The Governor concluded that petitioner’s good behavior and accomplishments in prison did not outweigh the circumstances of the crime, and that petitioner “has not served sufficient time in prison for this very serious crime.” In November 2000, petitioner filed an amended petition for writ of habeas corpus in which he challenged the Governor’s reversal of the Board’s decision granting parole.

The Governor filed a motion to disqualify (Code Civ. Proc., § 170.6) the Honorable Kathryn Stoltz, who had presided over the prior habeas corpus proceeding in which petitioner had been granted relief. Judge Stoltz struck the challenge as untimely, but the Court of Appeal reversed that order. The appellate court, in an unpublished, divided decision (Davis v.

Superior Court (Rosenkrantz) (Feb. 22, 2001, B146421) (Rosenkrantz III)), determined that petitioner’s amended petition constituted an entirely new proceeding in which the Governor had appeared as a party for the first time and in which petitioner challenged the Governor’s independent parole decision. According to the Court of Appeal, the proceeding did not constitute a continuation of the earlier proceedings in which the superior court had reviewed the Board’s parole decision.

Therefore, the appellate court directed the superior court to grant the Governor’s motion to disqualify the judge pursuant to Code of Civil Procedure

section 170.6 and to assign the case to another judge for all purposes. On remand before a different judge, the superior court held an evidentiary hearing and, in June 2001, granted the petition for writ of habeas corpus. The trial court determined that due process of law required the Governor’s parole decision to be supported by some evidence, and that the materials reviewed by the Governor did not include any evidence supporting his decision. The trial court therefore ordered that petitioner be released on parole forthwith.

As an alternative ground for its order, the superior court found that petitioner was denied an individualized determination of his suitability for parole, because the Governor had adopted an unconstitutional blanket policy of denying parole to prisoners serving indeterminate-term-to-life sentences. This policy, the court determined, indicated that the Governor was biased against murderers as a class. The Governor appealed from the superior court’s decision and sought a stay of the order requiring petitioner’s release.

The Court of Appeal denied the request for a stay, but this court stayed the order pending the final determination of the Governor’s appeal.

In another divided decision, the Court of Appeal affirmed the superior court’s order granting the petition for writ of habeas corpus and requiring petitioner’s release on parole. (In re Rosenkrantz (2002) 95 Cal.App.4th 358 [116 Cal.Rptr.2d 69], review granted May 1, 2002, S104701 (Rosenkrantz IV).) The majority opinion in Rosenkrantz IV concluded that the superior court possessed jurisdiction to review the Governor’s decision in order to determine whether it was supported by some evidence.

The appellate court rejected the Governor’s contention that the separation of powers doctrine precluded the judicial branch from reviewing his decision to reverse the Board’s determination that petitioner should be paroled. The court further determined that such a decision by a Governor must be based upon the same record that was before the Board and upon the same factors the Board was required to consider.

Because the Court of Appeal had held in Rosenkrantz II that there was no evidence supporting the Board’s finding that petitioner was not suitable for parole, the appellate court concluded that the doctrine of law of the case established the absence of any evidence supporting the Governor’s finding that petitioner was not suitable for parole. Accordingly, the Court of Appeal held in Rosenkrantz IV that the Governor’s decision did not afford petitioner due process of law.

The author of the majority opinion of the Court of Appeal decision in Rosenkrantz IV also authored a concurring opinion stating that sufficient evidence had been presented to support the superior court’s finding that the Governor had adopted a policy of not granting parole to individuals convicted of murder and sentenced to an indeterminate term. The concurrence agreed with the trial court that this policy precluded the individualized determination of parole suitability required by due process of law.

With regard to the application of the law of the case doctrine, the concurring opinion expressed the view that the underlying habeas corpus proceeding was the same proceeding considered in Rosenkrantz II, despite the addition of the Governor as a party. The dissenting opinion in Rosenkrantz IV concluded that the law of the case doctrine did not apply, because, as established in Rosenkrantz III, the habeas corpus proceeding under review constituted an entirely new proceeding in which the Governor had appeared for the first time.

The dissent further determined that even if the law of the case doctrine applied under the circumstances, the statements in Rosenkrantz II that there was no evidence supporting a finding of parole unsuitability were dicta. Furthermore, the dissent disagreed with the conclusion in Rosenkrantz II that the circumstances of the commitment offense that would have supported a first degree murder conviction could not be considered in determining suitability for parole. The dissenting opinion found that the Governor properly had considered the relevant factors and that his decision was supported by some evidence.

Finally, the dissent found the evidence insufficient to support the trial court’s finding that the Governor has a blanket policy of denying parole to murderers. We granted the Governor’s petition for review and granted petitioner’s motion to expedite the appeal. Our stay of the order that required petitioner’s release remains in effect.

II Before addressing the principal issue upon which we granted review—i.e., whether a decision issued by the Governor denying or granting parole is subject to judicial review, and, if so, under what standard—we consider a separate issue that petitioner belatedly has brought before the court.

Although petitioner did not timely raise the point in his answer to the Governor’s petition for review, in his brief on the merits filed in this court petitioner requests that we nonetheless consider a threshold question that logically precedes the question of whether the Governor’s decision is subject to judicial review—namely, whether it was constitutionally permissible for the Governor to have exercised the review authority afforded by

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section 8(b), in this case at all. Petitioner argues in this regard that because he committed the underlying offense in 1985, prior to the adoption of

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section 8(b), in 1988, the Governor’s denial of parole pursuant to the review authority afforded by

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section 8(b), constitutes a violation of the ex post facto provisions of the federal and state Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) Petitioner maintains that application of

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section 8(b), improperly permitted the Governor to extend petitioner’s incarceration retroactively (by denying parole) after the Board—which had the final say on parole prior to the adoption of

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section 8(b)—had decided in favor of granting parole. Although we could decline to address the ex post facto claim because the issue was not timely presented (see Cal. Rules of Court, rule 28(e)), we conclude that it is appropriate to exercise our discretion to resolve this issue, because the ex post facto question is an important one that affects not only the present case but numerous other pending matters, and because we conclude that the issue properly may be decided as a matter of law.

Under the circumstances, we believe that the administration of justice would not be served by leaving this issue unresolved at this juncture. At our request, the parties have filed supplemental briefs addressing the ex post facto question. A At the outset, we observe that petitioner is not in the best position to claim that

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section 8(b), has worked unfairly to his disadvantage by permitting the Governor to substitute his determination as to petitioner’s suitability for parole for the evaluation of petitioner’s suitability reached by the Board. As the factual recitation set forth above indicates, in this case the Board, exercising its own judgment and discretion, determined—largely on the basis of the nature and circumstances of the offense—that petitioner was not yet suitable for parole.

It was only under the compulsion of the appellate court’s decision in Rosenkrantz II, supra, 80 Cal.App.4th 409, finding that the Board’s decision denying parole was not supported by any evidence and ordering the Board—under the threat of contempt—to grant parole, that the Board ultimately issued a decision granting parole to petitioner. Accordingly, from a realistic perspective, petitioner cannot maintain persuasively that in this instance

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section 8(b), has resulted in the denial of parole of an individual whom the Board, in the exercise of its independent judgment, has determined is suitable for parole. B The flaw in petitioner’s ex post facto claim, however, is not confined to the particular circumstances of this case.

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section 8(b), was added to the California Constitution in 1988, and for nearly a decade and a half California Governors have exercised the authority afforded by this provision to reverse parole decisions involving well over 100 murderers, virtually all of whom committed their crimes prior to the adoption of this constitutional provision. Were petitioner’s ex post facto argument correct, every gubernatorial reversal of a Board decision granting parole in these cases would have been constitutionally flawed.

It would be surprising, to say the least, to discover such a fundamental constitutional problem at this late date. As we shall see, however, petitioner’s ex post facto claim is not meritorious. The governing authorities establish that the type of procedural change implemented by

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section 8(b)—i.e., a change that simply created a new level of review, within the executive branch, of parole decisions concerning a specified category of prisoners (thereby changing the identity of the ultimate decision maker within the executive branch for such parole decisions), but that did not change the substantive standard governing the grant or denial of parole—is not the type of change to which the ex post facto clause applies. We begin with an overview of the purpose and reach of the ex post facto clause. In People v.

Frazer (1999) 21 Cal.4th 737, 754 [88 Cal.Rptr.2d 312, 982 P.2d 180], we explained that “[t]he ban on ex post facto legislation stems from the excesses of colonial rulers in using retrospective legislation as a means of political warfare and retribution. [Citations.] It ensures the citizenry has ‘fair warning’ of the conduct proscribed by law and of the penalties imposed for violating those proscriptions. [Citations.] In this way, individuals are free to act in reliance on the law without fear that their conduct will be made punishable in a ‘vindictive’ or ‘arbitrary’ fashion after it has occurred. [Citation.]” (Fn. omitted.) In Collins v.

Youngblood (1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30] (Collins), the United States Supreme Court undertook a comprehensive review of the history and scope of the federal constitutional ex post facto clause in evaluating an ex post facto challenge to a change in Texas law, enacted after the crime at issue was committed, that for the first time authorized a court in that state to reform an improper jury verdict in a criminal proceeding rather than require a remand for a new trial.

In analyzing the ex post facto claim in Collins, the high court observed that early opinions of the United States Supreme Court accurately had explained that the phrase “ ex post facto law’ was a term of art with an established meaning at the time of the framing of the Constitution. [Citations.]” (Id. at p. 41 [110 S.Ct. at p. 2718].) As the court in Collins noted (id. at pp. 41-42 [110 S.Ct. at pp. 2718-2719]), that established meaning was first set forth in Justice Chase’s opinion in Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390-391 [1 L.Ed. 648, 651], and later was summarized in Beazell v.

Ohio (1925) 269 U.S. 167, 169-170 [46 S.Ct. 68, 68, 70 L.Ed. 216]: “It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute [1] which punishes as a crime

an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] 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.” The court in Collins acknowledged that there was some disparity in United States Supreme Court decisions applying the ex post facto clause over the years, and that on occasion the court had interpreted the clause not only as directed at those types of legislative changes that fell within the specific categories set forth in Colder and Beazell but more broadly as encompassing any change that “ ‘alters the situation of a party to his disadvantage’ ” (Collins, supra, 497 U.S. at p. 46 [110 S.Ct. at p. 2721]) or that deprives a criminal defendant of a “ ‘substantial right involved in his liberty.’ ” (Id. at p. 47 [110 S.Ct. at pp. 2721-2722], quoting Kring v.

Missouri (1883) 107 U.S. 221 [2 S.Ct. 443, 27 L.Ed. 506] (Kring), and Thompson v.

Utah (1898) 170 U.S. 343 [18 S.Ct. 620, 42 L.Ed. 1061] (Thompson)) Finding that the broader characterization of the ex post facto clause reflected in Kring and Thompson was inconsistent with the origin and intended scope of this constitutional provision, the court in Collins explicitly overruled Kring and Thompson (Collins, supra, 491 U.S. at pp. 50, 52 [110 S.Ct. at pp. 2723, 2724]), and reaffirmed that “[t]he Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause.” (Id. at p. 43 [110 S.Ct. at p. 2719].) The court in Collins then restated the scope of the prohibition established by the ex post facto clause more concisely as follows: “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Ibid., italics added.) Since its 1990 decision in Collins, the high court consistently has adhered to its holding in Collins that the ex post facto clause is directed only to changes in law that (1) retroactively alter the definition of a crime or (2) retroactively increase the punishment for criminal acts. (See, e.g., California Dept. of Corrections v.

Morales (1995) 514 U.S. 499, 506, fn. 3 [115 S.Ct. 1597, 1602, 131 L.Ed.2d 588] (Morales) [“After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.”]; Lynce v. Mathis (1997) 519 U.S. 433, 441 [117 S.Ct. 891, 895-896, 137 L.Ed.2d 63].) In this case, petitioner does not argue that the enactment of

article V,

section 8(b), “altered the definition” of any crime, but he asserts that the provision “increased the punishment” for his offense. Under the ordinary meaning of this language, however, it cannot reasonably be said that the adoption of

article V,

section 8(b), increased the punishment for petitioner’s offense. At the time petitioner committed the underlying offense, second degree murder was punishable by a sentence of imprisonment from 15 years to life (with the possibility of parole), and after the adoption of

article V,

section 8(b), the term of petitioner’s sentence remains imprisonment from 15 years to life (with the possibility of parole). Furthermore,

article V,

section 8(b), did not make any changes in the substantive standard that governs the determination of petitioner’s suitability for parole; indeed,

article V,

section 8(b), explicitly provides that the Governor, in reviewing the parole board’s decision, is to apply the same factors as the Board. The only change effected by

article V,

section 8(b), is the institution of an additional level of discretionary review of the Board’s decision granting or denying parole, resulting merely in a change in the identity of the entity or official within the executive branch that may make the ultimate decision on parole. Prior to the adoption of

article V,

section 8(b), the only reasonable expectation that an individual in petitioner’s position would have had with regard to punishment was that he or she would receive a sentence of 15 years to life imprisonment and that, after serving the minimum term, he or she would be entitled to have a public official exercise discretion with regard to his or her suitability for parole under then existing standards.

Such an individual in petitioner’s position had no reasonable expectation regarding the identity of the person or persons who would exercise discretion in evaluating his or her suitability for parole, or that the person or persons who would make such a decision would not change over time. Accordingly, under the ordinary meaning of the controlling language in Collins, it appears clear that the application of the procedure set forth in

article V,

section 8(b), to an individual who committed a criminal offense prior to its enactment does not increase the punishment for such crime. Petitioner has not cited any case in which a provision comparable to

article V,

section 8(b), has been held to constitute an increase in punishment for purposes of the ex post facto clause. In past decisions, the United States Supreme Court has found the ex post facto clause applicable to (1) a provision that increased the minimum sentence a trial court could impose for an offense (Lindsey v. Washington (1937) 301 U.S. 397 [57 S.Ct. 797, 81 L.Ed. 1182]), (2) a provision that altered, to a prisoner’s detriment, the substantive standard that was applied in determining the “gain time” credit that a prisoner could earn in prison to reduce his term of imprisonment (Weaver v.

Graham (1981) 450 U.S. 24 [101 S.Ct. 960, 67 L.Ed.2d 17]), (3) a provision that increased the “presumptive sentencing range” for an offense committed prior to its adoption (Miller v. Florida (1987) 482 U.S. 423 [107 S.Ct. 2446, 96 L.Ed.2d 351]), and (4) a provision that retroactively cancelled “overcrowding credits” that had been awarded to a prisoner, resulting in the reimprisonment of the prisoner after he had been released from prison (Lynce v. Mathis, supra, 519 U.S. 433). The high court, however, never has found a provision similar to

article V,

section 8(b), to constitute the type of measure to which the ex post facto clause applies. Furthermore, petitioner’s claim that the ex post facto clause prohibits the Governor from exercising the authority afforded by

article V,

section 8(b), in any case in which a prisoner committed the underlying offense prior to the adoption of that provision, has been squarely and uniformly rejected by each of the prior California and federal decisions that have addressed the issue. Just a few years after

article V,

section 8(b), was added to the state Constitution, the same ex post facto claim that is advanced by petitioner in this case was presented to the Court of Appeal in In re Arafiles (1992) 6 Cal.App.4th 1467 [8 Cal.Rptr.2d 492] (Arafiles), certiorari denied (1993) 507 U.S. 934 [113 S.Ct. 1321, 122 L.Ed.2d 707]. In analyzing the ex post facto contention, the court in Arafiles observed that “[application of

section 8(

b) to [petitioner] has not changed and cannot change the quantum of punishment annexed to his crime when he was convicted. Indeed, nothing within

section 8(

b) empowers the Governor to increase petitioner’s sentence.

Section 8(

b) simply allows for an additional level of discretionary review of parole decisions regarding murderers serving an indeterminate life sentence. Such an adjustment to the procedure for reviewing parole release decisions is collateral to the penalty itself.

Section 8(

b) is not ex post facto as applied to petitioner.” (6 Cal.App.4th at pp. 1484-1485.) The court in Arafiles found support for its conclusion in the United States Supreme Court’s decision in Mallett v. North Carolina (1901) 181 U.S. 589 [21 S.Ct. 730, 45 L.Ed. 1015] (Mallett). In Mallett, two defendants who had been convicted in a state criminal trial had appealed their convictions to the state appellate court, which had ruled in their favor and ordered a new trial.

At the time the defendants committed their offense, the People had no right to appeal from an appellate court decision granting a new trial to a criminal defendant, but—while the appeal in Mallett was pending—legislation was enacted granting the prosecution the right to appeal such a decision of the lower appellate court to the state supreme court. In Mallett, after the prosecutor exercised this right, the state supreme court reversed the lower appellate court decision and remanded the case to the trial court for execution of the original sentence.

The defendants then sought relief in the United States Supreme Court, contending that the new state law granting the prosecution the right to appeal to the state supreme court violated the ex post facto clause when applied to a defendant who committed his crime before the new law was enacted. In its decision in Mallett, supra, 181 U.S. 589, the United States Supreme Court emphatically rejected the defendants’ ex post facto claim, explaining that, as stated by the North Carolina Supreme Court, “ ‘defendants had no “vested rights” in the remedies and methods of procedure in trials for crime.

They cannot be said to have committed this crime relying upon the fact that there was no appeal given the state in such cases.’ ” (Id. at p. 593 [21 S.Ct. at p. 732].) “ ‘So far as mere modes of procedure are concerned a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place.’ ” (Id. at pp. 596-597 [21 S.Ct. at p. 733].) Thus, the high court concluded in Mallett that the type of procedural provision involved in that case—i.e., the addition of a new level of review of a decision favorable to a criminal defendant that could work to the defendant’s detriment (and that actually did operate to the defendants’ detriment in Mallett itself)—was not the type of procedural change that fell within the aegis of the ex post facto clause.

After discussing the high court’s holding in Mallett, the court in Arafiles concluded that “[i]f allowing for higher court review of intermediate appellate court decisions does not violate ex post facto proscriptions, we fail to see how allowing for executive review of parole decisions can be otherwise.” (Arafiles, supra, 6 Cal.App.4th 1467, 1486.) Four years after the Court of Appeal rendered its decision in Arafiles, an identical ex post facto challenge to

article V,

section 8(b), came before the federal Ninth Circuit Court of Appeals in Johnson v. Gomez (9th Cir. 1996) 92 F.3d 964 (Johnson), certiorari denied (1997) 520 U.S. 1242 [117 S.Ct. 1848, 137 L.Ed.2d 1050], The court in Johnson, after reviewing a number of leading ex post facto cases decided by the United States Supreme Court— including Mallett, supra, 181 U.S. 589, Dobbert v. Florida (1977) 432 U.S. 282 [97 S.Ct. 2290, 53 L.Ed.2d 344] (Dobbert), and Collins, supra, 497 U.S. 37 —agreed with Arafiles that application of

article V,

section 8(b), to a prisoner who had committed his or her offense prior to the enactment of that provision did not violate the ex post facto clause. In the course of its decision, the court in Johnson addressed the contention that the reasoning of the United States Supreme Court’s then recent ex post facto decision in Morales, supra, 514 U.S. 499, supported the conclusion that

article V,

section 8(b), could not be applied retroactively on the ground that this new constitutional provision was intended to, and in practice would, increase the amount of time a prisoner would remain in prison. In rejecting this contention, the court in Johnson explained: “Johnson argues that, unlike the administrative convenience purpose of the law in Morales, the purpose and effect of the law here is to lengthen prison terms by making it more difficult for convicted murderers with indeterminate sentences to be released on parole.

However, the law itself is neutral inasmuch as it gives the governor power to either affirm or reverse a [Board’s] granting or denial of parole. Moreover, the governor must use the same criteria as the [Board], The law, therefore, simply removes final parole decisionmaking authority from the [Board] and places it in the hands of the governor. We cannot materially distinguish this change in the law from that at issue in Mallett v. North Carolina ....

In Mallett, the Court found no ex post facto violation where the new law allowed for higher court review of intermediate court decisions, even though the petitioner would have been entitled to a final intermediate court decision at the time of his crime. [Citation.] We therefore conclude that the application of [article V,

section 8(b)] to authorize the governor’s review of Johnson’s grant of parole did not violate the Ex Post Facto Clause.” (Johnson, supra, 92 F.3d at p. 967.) In sum, the courts in Arafiles, supra, 6 Cal.App.4th 1467, and in Johnson, supra, 92 F.3d 964, after reviewing the governing United States Supreme Court opinions interpreting the ex post facto clause, found that the type of procedural change effected by the adoption of

article V,

section 8(b)—i.e., the addition of a new level of review of parole decisions and a change in the identity of the ultimate decision maker, without a change in any substantive standard—did not constitute an “increase in punishment” and was not the type of procedural change that fell within the prohibition of the ex post facto clause. Although the decisions in Arafiles and Johnson never have been overruled or questioned, petitioner contends that both decisions are inconsistent with the United States Supreme Court’s more recent decision in Garner v.

Jones (2000) 529 U.S. 244 [120 S.Ct. 1362, 146 L.Ed.2d 236] (Garner) and for that reason should not be followed. As we shall explain, however, the high court’s decision in Garner did not involve a legislative or constitutional provision even remotely similar to

article V,

section 8(b), and nothing in Gamer questions either the validity of the Arafiles and Johnson decisions themselves or the high court decisions upon which the opinions in Arafiles and Johnson relied. Accordingly, we conclude that petitioner’s reliance upon Garner is misplaced. The decision in Garner, supra, 529 U.S. 244, involved an

interpretation and application of the high court’s earlier decision in Morales, supra, 514 U.S. 499, and a review of the Morales decision is helpful to a proper understanding of the court’s subsequent decision in Garner.

The controversy in Morales arose out of the application of a California statute that authorized the Board, in the case of prisoners who had been convicted of more than one murder, to decrease the frequency with which parole suitability hearings for such prisoners were to be held—from once every year to as infrequently as once every three years—if the Board found, based upon the circumstances of the particular prisoner, that it was not reasonable to expect that parole would be granted at an earlier hearing.

The issue before the United States Supreme Court in Morales was whether the new California statute could be applied to prisoners who had committed their crimes before the enactment of the new statute, or whether such an application of the new statute was barred by the ex post facto clause.

In analyzing the issue, the court in Morales began by observing that in Collins, supra, 497 U.S. 37, 41 [110 S.Ct. 2715, 2718-2719], the court had reaffirmed that “the Ex Post Facto Clause incorporated ‘a term of art with an established meaning at the time of the Constitution’ ” (Morales, supra, 514 U.S. at p. 504 [115 S.Ct. at p. 1601]) and that, in accordance with this original understanding, “the Clause is aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” (Ibid.) The court in Morales then explained that the California statute at issue clearly effected no change in the definition of a prisoner’s crime, and that the only question was whether the statute increased the punishment attached to the prisoner’s offense.

In contending that the statute did increase his punishment, the defendant in Morales relied upon the line of Supreme Court cases, noted above, which held that a legislature could not increase or stiffen the standard of punishment applicable to crimes that have already been committed. (See Lindsey v. Washington, supra, 301 U.S. 397 [ex post facto clause prohibits application of new statute increasing the minimum term that could be imposed for offense]; Weaver v.

Graham, supra, 450 U.S. 24 [ex post facto clause prohibits a state from retroactively altering the substantive “formula” used to calculate a defendant’s time of confinement]; Miller v.

Florida, supra, 482 U.S. 423 [same].) The court in Morales, however, found those cases inapposite, pointing out that the statute at issue in Morales did not affect a prisoner’s sentence, “left unchanged the substantive formula for securing any reductions” to the sentencing range, and “had no effect on the standards for fixing a prisoner’s initial date for ‘eligibility’ for parole ... or for determining his ‘suitability’ for parole and setting his release date . . . .” (Morales, supra, 514 U.S. at p. 507 [115 S.Ct. at p. 1602].) The court in Morales, supra, 514 U.S. 499, observed that the only change made by the statute in question was to introduce “the possibility that after the initial parole hearing, the Board would not have to hold another hearing the very next year, or the year after that, if it found no reasonable probability that respondent would be deemed suitable for parole in the interim period.” (Morales, supra, 514 U.S. at p. 507 [115 S.Ct. at p. 1602].) Although the defendant in Morales urged the court to hold “that the Ex Post Facto Clause forbids any legislative change that has any conceivable risk of affecting a prisoner’s punishment,” the court rejected that contention, explaining that under such an approach “the judiciary would be charged under the Ex Post Facto Clause with the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures, including such innocuous adjustments as changes to the membership of the Board of Prison Terms . . . .” (Id. at p. 508 [115 S.Ct. at pp. 1602-1603], italics added.) Observing that “[w]e have previously declined to articulate a single ‘formula’ for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional [ex post facto] prohibition” (Morales, supra, 514 U.S. at p. 509 [115 S.Ct. at p. 1603]), the court in Morales concluded that it had “no occasion to do so [in that case, because the statute at issue there] create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes” (ibid.), inasmuch as the statute “applie[d] only to a class of prisoners for whom the likelihood of release on parole is quite remote,” the Board “retain[ed] the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner,” and a prisoner was not precluded from seeking an expedited hearing should he or she experience a drastic change of circumstances. (Id. at pp. 510-512 [115 S.Ct. at pp. 1603-1604].) Under these circumstances, the court in Morales held that the retroactive application of the California statute did not violate the ex post facto clause. (Id. at p. 514 [115 S.Ct. at pp. 1605-1606].) As noted, the more recent decision in Garner, supra, 529 U.S. 244, upon which petitioner in this case heavily relies, arose in the wake of Morales.

Like Morales, Gamer involved the validity, under the ex post facto clause, of applying a new policy reducing the frequency of parole release hearings for a prisoner who committed his crime before the new policy was promulgated. In Garner, the Georgia Board of Pardons and Paroles was required under Georgia law initially to consider parole for an inmate serving a life term after the inmate had served seven years. At the time the prisoner in Garner committed his offense, the governing administrative rules required the board to reconsider parole every three years thereafter.

At a time subsequent to the prisoner’s commission of his offense, the board amended its rules to provide that “ ‘[reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years.’ ” (Id. at p. 247 [120 S.Ct. at p. 1366].) In Garner, the issue presented was whether this change in policy constitutionally could be applied to the prisoner in that case under the ex post facto clause.

The federal court of appeals had concluded in Garner that the amended Georgia rule was distinguishable in material respects from the California statute upheld in Morales, and held that retroactive application of the new Georgia policy was barred by the ex post facto clause. (Jones v.

Garner (11th Cir. 1999) 164 F.3d 589.) In reaching its conclusion, the court of appeals relied in part on the circumstance that the Georgia rule applied to a much broader class of prisoners—all prisoners serving a life term—than the California statute at issue in Morales, sweeping within its reach “many inmates who can expect at some point to be paroled” (164 F.3d at p. 594) and thus, in the appellate court’s view, “seems certain to ensure that some number of inmates will find the length of their incarceration extended in violation of the Ex Post Facto Clause . . . .” (Id. at p. 595.) Further, the court of appeals emphasized that “[e]ight years is a long time” and that “[m]uch can happen in the course of eight years to affect the determination that an inmate would be suitable for parole.” (Ibid.) Although the court of appeals recognized that the parole board policy permitted the board to reconsider a parole denial at any time upon a showing of a change in circumstances or upon the board’s receipt of new information, the court of appeals found that policy insufficient because it was not embodied in a formal regulation and thus was both easily changed and not enforceable.

The United States Supreme Court granted certiorari in Garner, supra, 529 U.S. 244, and reversed the decision of the court of appeals.

Although the high court in Garner acknowledged the differences between the Georgia law and the California statute at issue in Morales, the high court concluded that “[t]hese differences are not dispositive” and stated that “[t]he question is whether the amended Georgia Rule creates a significant risk of prolonging respondent’s incarceration.” (529 U.S. at p. 251 [120 S.Ct. at p. 1368].) After describing the considerable discretion exercised by the parole board under Georgia law in determining whether a prisoner should be granted parole (Garner, supra, 529 U.S. at pp. 252-253 [120 S.Ct. at pp. 1368-1369]) and at the same time making clear that “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause” (id. at p. 253 [120 S.Ct. at p. 1369]), the court in Gamer went on to observe that “to the extent there inheres in ex post facto doctrine some idea of actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression [citation], we can say with some assurance that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised.

The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience.

New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender’s release, along with a complex of other factors, will inform parole decisions.” (Ibid., italics added.) The court in Garner then went on to identify what it viewed as the gist of the prisoner’s claim that a reduction in the frequency of parole hearings amounted to an ex post facto violation, explaining: “The essence of respondent’s case, as we see it, is not that discretion [relating to the grant of parole] has been changed in its exercise but that, in the period between parole reviews, it [i.e., discretion] will not be exercised at all." (Garner, supra, 529 U.S. at p. 254 [120 S.Ct. at p. 1369], italics added.) Addressing that claim—i.e., the contention that application of the new parole board policy violated the ex post facto clause because in the extended period between parole reviews the board’s discretion to determine whether the prisoner was ready for parole would not be exercised at all—the court in Garner rejected the contention, emphasizing first that the governing regulations vested the parole board “with discretion as to how often to set an inmate’s date for reconsideration, with eight years for the maximum” (Garner, supra, 529 U.S. at p. 254 [120 S.Ct. at p. 1369]) and, second, that “the Board’s policies permit ‘expedited parole reviews in the event of a change in their circumstance or where the Board receives new information that would warrant a sooner review.’” (Ibid.) Given these qualifications embodied within the change in policy, the court in Garner disagreed with the court of appeals’ supposition that the new rule “ ‘seems certain’ to result in some prisoners serving extended periods of incarceration.” (Id. at p. 255 [120 S.Ct. at p. 1370].) Nonetheless, the court in Garner left open the possibility that the petitioner in that case could establish on remand that the new policy permitting the significant postponement of parole hearing dates should be treated as an increase in punishment for purposes of the ex post facto clause.

The court in Garner stated in this regard: “When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule. ...

In the case before us, respondent must show that as applied to his own sentence the law created a significant risk of increasing his punishment.” (Garner, supra, 529 U.S. at p. 255 [120 S.Ct. at p. 1370].) The court remanded the case to the lower courts for proceedings consistent with its opinion. (Id. at p. 257 [120 S.Ct. at p. 1371].) Relying upon the high court’s language in Garner quoted above, petitioner contends that the question whether the application of

article V,

section 8(b), in the case before us violates the ex post facto clause turns upon whether “application [of the provision] will result in a longer period of incarceration than under the earlier rule.” (Garner, supra, 529 U.S. at p. 255 [120 S.Ct. at p. 1370].) Because prior to the adoption of

article V,

section 8(b), a decision of the Board granting parole was final and would result in a prisoner’s release from confinement, under petitioner’s reading of Garner it would appear that application of

article V,

section 8(b), would violate the ex post facto clause in every case in which the Governor reverses a Board decision granting parole of an individual who committed his or her offense prior to the adoption of the constitutional provision, because in each such case it could be said that application of the provision would result in a longer period of incarceration for the particular prisoner than under the earlier rule. And this result would follow under petitioner’s reading of Garner without regard to the number or percentage of times a particular Governor upheld or reversed Board decisions granting parole, because even if a Governor only rarely exercised the authority granted by

article V,

section 8(b), to reverse a decision granting parole, in any instance in which the Governor did reverse a grant of parole, it could be said that retroactive application of

article V,

section 8(b) “resulted] in a longer period of incarceration than under the earlier rule.” (Garner, supra, 529 U.S. at p. 255 [120 S.Ct. at p. 1370].) Indeed, were the language from Garner, upon which petitioner relies, to be viewed as establishing a new, generally applicable ex post facto standard for any legislative modification affecting the parole process, as petitioner’s argument suggests, virtually any procedural change in the parole process— “including such innocuous adjustments as changes to the membership of the Board” (Morales, supra, 514 U.S. at p. 508 [115 S.Ct. at p. 1603]) or minor revisions of evidentiary rules in parole hearings—would fall within the prohibition of the ex post facto clause in any instance in which the procedural change resulted in the denial of parole, because in any such case it could be said that application of the new rule “will result in a longer period of incarceration than under the earlier rule.” (Garner, supra, 529 U.S. at p. 255 [120 S.Ct. at p. 1370].) The extremely broad scope and wide-ranging implications of petitioner’s reading of Garner make it evident, in our view, that petitioner improperly has taken the language of Garner out of context and seeks to have that language applied in a manner never intended by the high court.

As we have seen, the court in Garner articulated the language in question as a means of determining whether application of a new provision or change in policy that reduces the frequency at which parole hearings must be held violates the ex post facto clause.

A revision that significantly delays the date when the relevant state authority considers the parole eligibility of a prisoner is analogous to a substantive provision increasing the minimum period of time a defendant must be imprisoned before parole even may be considered. (As we have seen, the court in Garner adverted to this point, explaining that “[t]he essence of respondent’s case, as we see it, is not that discretion has been changed in its exercise but that, in the period between parole reviews, it will not be exercised at all.” (Garner, supra, 529 U.S. at p. 254 [120 S.Ct. at p. 1369].)) Because a provision that reduces the frequency of parole hearings is at least potentially comparable to a provision that increases the minimum term of a sentence, a measure that extends the time between parole hearings is one that reasonably might be characterized as bringing about an increase in sentence to which the ex post facto clause might apply.

At the same time, however, the Morales and Garner decisions recognize that a rule reducing the frequency of parole hearings may contain qualifying provisions that minimize or eliminate the risk that the new policy actually will result in an increase in sentence for any prisoner.

Accordingly, the court in Garner determined that when such a provision “does not by its own terms” (Garner, supra, 529 U.S. at p. 255 [120 S.Ct. at p. 1370]) create a significant risk that a prisoner’s sentence will be increased, the prisoner may establish that application of the provision will violate the ex post facto clause, by demonstrating through “evidence drawn from the rule’s practical implementation . . . that [the rule’s] retroactive application will result in a longer period of incarceration than under the earlier rule.” (Ibid.) There is nothing in Garner, however, suggesting that this standard was intended to apply to a provision, unlike a measure reducing the frequency of parole hearings, that cannot reasonably be viewed as falling within the category of legislative measures that increase the punishment for a crime.

The nature of the procedural changes embodied in

article V,

section 8(b), is entirely different from that of the changes involved in Garner and Morales.

Article V,

section 8(b), does not reduce the frequency with which parole hearings are held or parole decisions are made. The only change made by

article V,

section 8(b), is the institution of a new level of review of parole decisions (and a resulting change in the identity of the entity within the executive branch that makes the ultimate decision on parole suitability).

As the decisions in Arafiles and Johnson indicate, the opinions of the United States Supreme Court make it clear that this type of change in procedure is not the type of change addressed by the ex post facto clause. (See Mallett, supra, 181 U.S. 589; Dobbert, supra, 432 U.S. 282.) Nothing in Gamer raises any question as to the continued viability of those past decisions, or suggests that a procedural provision establishing a new level of review of parole decisions within the executive branch effects an increase in a prisoner’s sentence so as to fall within the prohibition of the ex post facto clause.

In advancing his ex post facto claim, petitioner makes much of the circumstance that the record in this case establishes that the current Governor has utilized the authority afforded by

article V,

section 8(b), to deny parole in a large number of cases in which the Board has determined that the prisoner is suitable for parole. But the circumstance that in a significant number of cases a particular Governor may reach a judgment different from that of the Board, with regard to a prisoner’s parole suitability, does not provide any support for the claim that the application of

article V,

section 8(b), violates the ex post facto doctrine. A similar reduction in the numbers or percentage of prisoners who are granted parole might well result from a change in the composition of the members of the Board itself, but petitioner does not—and properly could not—suggest that such a change in the Board’s composition or in the person holding the office of Governor would raise any ex post facto question.

As already noted, an individual who commits a crime has no reasonable expectation that his or her suitability for parole will be determined by the particular individuals who happen to exercise authority over parole decisions at the time the individual commits the crime. Accordingly, the circumstance that the Governor, in reviewing the Board’s decisions, frequently may disagree with the Board’s determination that a prisoner is suitable for parole, does not transform the review procedure of

article V,

section 8(b), into an unconstitutional ex post facto law. In sum, we conclude that petitioner’s ex post facto claim lacks merit. Ill Having determined that the Governor’s exercise of the authority afforded by

article V,

section 8(b), in this case did not violate the ex post facto clause, we reach the principal issue upon which we granted review. In analyzing the Governor’s contention that the judiciary is not authorized to review the merits of a Governor’s decision affirming, reversing, or modifying a parole decision of the Board, we believe that it is helpful first to consider the proper extent of judicial review of the Board’s decisions granting or denying parole.

Although this court has not previously had occasion to address the judicial review standard that applies to a Board decision granting or denying parole, we specifically have held that the “some evidence” standard of review applies to a Board decision rescinding a parole date (Powell, supra, 45 Cal.3d 894, 903-904), and a number of recent Court of Appeal decisions have determined that this same standard also applies to a Board decision granting or denying parole.

As we shall explain, we agree with the holding of these appellate decisions that under California law the factual basis for a Board decision granting or denying parole is subject to a limited judicial review under the “some evidence” standard of review. A We begin with a brief review of the applicable California statutes and regulations governing parole decisions by the Board. The governing statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and fix release dates. (Pen. Code, §§ 3040, 5075 et seq.) Penal Code

section 3041 provides that with regard to prisoners sentenced to indeterminate prison terms, one year prior to the inmate’s minimum eligible parole release date, the Board “shall normally set a parole date . . . in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates.” (Pen.

Code, § 3041, subd. (a).) In addition, the statute provides that the Board “shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.” (Id., § 3041, subd. (b).) Furthermore, the statute directs the Board to “establish criteria for the setting of parole release dates.” (Pen.

Code, § 3041, subd. (a).) The Board’s criteria for setting parole dates for individuals convicted of murder committed after 1978, as in the present case, are set forth in title 15, division 2,

chapter 3,

article 11 of the California Code of Regulations. Pursuant to

section 2401 of title 15 of these regulations: “A parole date shall be denied if the prisoner is found unsuitable for parole under

Section 2402(c). A parole date shall be set if the prisoner is found suitable for parole under

Section 2402(d).” (Italics added.) According to the applicable regulation, circumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal.

Code Regs., tit. 15, § 2402, subd. (c).) The regulation further provides that circumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Cal.

Code Regs., tit. 15, § 2402, subd. (d).) Finally, the regulation explains that the foregoing circumstances “are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) In sum, the governing statute provides that the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. (Pen.

Code, § 3041, subd. (b).) And as set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after considering the circumstances enumerated in

section 2402 of the regulations, that the prisoner is unsuitable for parole. (Cal. Code Regs., tit. 15, § 2401.) Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation. B Although we have not previously addressed the question of the appropriate standard of judicial review of the Board’s decisions denying or granting parole, our past decisions do shed considerable light on that issue.

To begin with, our prior decisions characterize proceedings before the Board as informal, in contrast to judicial or formal administrative proceedings. (Powell, supra, 45 Cal.3d 894, 904; In re Sturm (1974) 11 Cal.3d 258, 267 [113 Cal.Rptr. 361, 521 P.2d 97] (Sturm)) We have explained that parole release decisions concern an inmate’s anticipation or hope of freedom, and entail the Board’s attempt to predic

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