Gilman v. Schwarzenegger ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD M. GILMAN, JAMES 
MASONER, RICHARD W. BROWN,
CHRIS FOWLER, EDWARD STEWART,
MARIO MARQUEZ, RICHARD LEWIS,
and GLORIA OLSON,
Plaintiffs-Appellees,
v. No. 10-15471
D.C. No.
ARNOLD SCHWARZENEGGER,
Governor of California; ROBERT  2:05-cv-00830-
DOYLE, Chairman of the Board of LKK-GGH
Parole Hearings; ALL OPINION
COMMISSIONERS OF THE BOARD OF
PAROLE HEARINGS; ALL DEPUTY
COMMISSIONERS OF THE BOARD OF
PAROLE HEARINGS WHO HEAR LIFER
CASES,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
August 12, 2010—San Francisco, California
Filed December 6, 2010
Before: Susan P. Graber, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
19495
19498 GILMAN v. SCHWARZENEGGER
COUNSEL
Terence J. Cassidy, Michael W. Pott (argued), and Thomas L.
Riordan, Porter Scott, Sacramento, California, for the
defendants-appellants.
Daniel J. Broderick, Federal Defender, and David Porter and
Monica Knox (argued), Assistant Federal Defenders, Sacra-
mento, California, for the plaintiffs-appellees.
OPINION
BEA, Circuit Judge:
Plaintiffs are eight California life-term prisoners who repre-
sent a class of similarly situated California prisoners. They
allege that Proposition 9, the “Victims’ Bill of Rights Act of
2008: Marsy’s Law,” which modifies the availability and fre-
quency of parole hearings, violates the Ex Post Facto Clause
of the United States Constitution. The district court held that
Plaintiffs were likely to succeed on the merits of their claim.
We hold that the district court abused its discretion and, there-
fore, reverse.
The California Prison Parole Scheme
The California Board of Parole Hearings (“Board”) has
“the power to allow prisoners imprisoned in the state prisons
GILMAN v. SCHWARZENEGGER 19499
. . . to go upon parole outside the prison walls and enclo-
sures.” Cal. Penal Code § 3040 (2010). California prisoners
who are serving sentences of life with the possibility of parole
are not eligible for parole until they have served the greater
of a term of seven years or “[a] term as established pursuant
to any other provision of law that establishes a minimum term
or minimum period of confinement.” Id. § 3046(a).
The Board is required to conduct a prisoner’s first parole
hearing one year prior to the prisoner’s minimum eligible
parole release date. Id. § 3041(a). At the hearing, a panel—
two or more commissioners or deputy commissioners of the
Board—must first determine whether the prisoner is “suit-
able” for parole. See id. § 3041(b). The panel must find a pris-
oner suitable for parole and set a parole 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 incarcera-
tion for this individual, and that a parole date, there-
fore, cannot be fixed at this meeting.
Id. The panel’s “fundamental consideration in parole deci-
sions is public safety.” In re Lawrence, 190 P.3d 535, 549
(Cal. 2008). “[T]he core determination of ‘public safety’ . . .
involves an assessment of an inmate’s current dangerous-
ness.” Id.1 The Governor may review and affirm, modify, or
reverse a panel’s suitability determination. Cal. Const. art. V,
§ 8(b); Cal. Penal Code § 3041.2. But, the Governor’s review
must be based on the same factors the Board is required to
consider. Cal. Const. art. V, § 8(b).
1
In California, “some evidence” of future dangerousness is required to
deny parole. Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010) (en
banc).
19500 GILMAN v. SCHWARZENEGGER
If the panel determines that the prisoner is unsuitable for
parole at the time of the hearing, the panel must set the date
for the prisoner’s next parole hearing. Cal. Penal Code
§ 3041.5(a)(6). At the next hearing, a panel determines
whether intervening changes have rendered the prisoner suit-
able for parole. Id. § 3041.5(c).
The Deferral Process Before and After Proposition 9
Before Proposition 9 was enacted, the length of the deferral
was determined by California Penal Code § 3041.5(b)(2).
That section provided:
The board shall hear each case annually . . . , except
the board may schedule the next hearing no later
than the following:
(A) Two years after any hearing at which
parole is denied if the board finds that it is
not reasonable to expect that parole would
be granted at a hearing during the following
year and states the bases for the finding.
(B) Up to five years after any hearing at
which parole is denied if the prisoner has
been convicted of murder, and the board
finds that it is not reasonable to expect that
parole would be granted at a hearing during
the following years and states the bases for
the finding in writing.
Cal. Penal Code § 3041.5(b)(2) (2008) (emphasis added). In
2007, 35% of prisoners who were denied parole received
deferrals of one year, 32% received deferrals of two years,
and 33% received deferrals of three years or more. In 2008,
these percentages were 40, 33, and 27, respectively.2
2
The 2008 statistics do not include data from parole hearings conducted
after December 10, when Proposition 9 was implemented.
GILMAN v. SCHWARZENEGGER 19501
Proposition 9 significantly changed the law governing
deferral periods.3 The relevant changes were codified in Cali-
fornia Penal Code § 3041.5(b)(3) and provide:
The board shall schedule the next hearing, after
considering the views and interests of the victim, as
follows:
(A) Fifteen years after any hearing at which
parole is denied, unless the board finds by
clear and convincing evidence that the
criteria relevant to the setting of parole
release dates enumerated in subdivision (a)
of Section 3041 are such that consideration
of the public and victim’s safety does not
require a more lengthy period of incarcera-
tion for the prisoner than 10 additional
years.
(B) Ten years after any hearing at which
parole is denied, unless the board finds by
clear and convincing evidence that the
criteria relevant to the setting of parole
release dates enumerated in subdivision (a)
of Section 3041 are such that consideration
of the public and victim’s safety does not
require a more lengthy period of incarcera-
tion for the prisoner than seven additional
years.
(C) Three years, five years, or seven years
after any hearing at which parole is denied,
because the criteria relevant to the setting
of parole release dates enumerated in subdi-
vision (a) of Section 3041 are such that
3
No changes were made to the basis for determining suitability or the
Governor’s role in the parole process.
19502 GILMAN v. SCHWARZENEGGER
consideration of the public and victim’s
safety requires a more lengthy period of
incarceration for the prisoner, but does not
require a more lengthy period of incarcera-
tion for the prisoner than seven additional
years.
Cal. Penal Code § 3041.5(b)(3) (2010) (emphasis added).
The most significant changes are as follows: the minimum
deferral period is increased from one year to three years, the
maximum deferral period is increased from five years to fif-
teen years, and the default deferral period is changed from
one year to fifteen years. See id. Further, the burden to impose
a deferral period other than the default period increased.
Before Proposition 9 was enacted, the deferral period was one
year unless the Board found it was unreasonable to expect the
prisoner would become suitable for parole within one year.
Cal. Penal Code § 3041.5(b)(2) (2008). After Proposition 9,
the deferral period is fifteen years unless the Board finds by
clear and convincing evidence that the prisoner will be suit-
able for parole in ten years, in which case the deferral period
is ten years. Cal. Penal Code § 3041.5(b)(3)(A)-(B) (2010). If
the Board finds by clear and convincing evidence that the
prisoner will be suitable for parole in seven years, the Board
has discretion to set a three-, five-, or seven-year deferral
period. Id. § 3041.5(b)(3)(B)-(C).
Proposition 9 also amended the law governing parole defer-
ral periods by authorizing the Board to advance a hearing
date. The Board may exercise its discretion to hold an
advance hearing sua sponte or at the request of a prisoner.
“The board may in its discretion . . . advance a hearing . . .
to an earlier date, when a change in circumstances or new
information establishes a reasonable likelihood that consider-
ation of the public and victim’s safety does not require the
additional period of incarceration of the prisoner . . . .” Id.
§ 3041.5(b)(4). Also, a prisoner may request an advance hear-
GILMAN v. SCHWARZENEGGER 19503
ing by submitting a written request that “set[s] forth the
change in circumstances or new information that establishes
a reasonable likelihood that consideration of the public safety
does not require the additional period of incarceration.” Id.
§ 3041.5(d)(1). A prisoner is limited to one such request every
three years. Id. § 3041.5(d)(3). Although the minimum defer-
ral period is three years, there is no minimum period the
Board must wait before it holds an advance hearing. See id.
§ 3041.5(b)(4).
Plaintiffs filed suit against the state in federal court under
42 U.S.C. § 1983. The only claim relevant to this appeal is
Plaintiffs’ claim that Proposition 9 violated their rights under
the Ex Post Facto Clause of the United States Constitution.
Plaintiffs filed a motion for a preliminary injunction to pre-
vent the Board from enforcing Proposition 9’s amended defer-
ral periods.4 On February 4, 2010, the district court granted
Plaintiffs’ motion for a preliminary injunction. On March 3,
2010, the state timely appealed. On April 7, 2010, the district
court entered an order staying the preliminary injunction
solely as to Plaintiff Gilman.
I
[1] “A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 24-25 (2008). “A preliminary
injunction is an ‘extraordinary and drastic remedy’; it is never
awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90
(2008) (citations omitted).
4
Because class certification was on appeal, the motion for preliminary
injunction was evaluated and granted only as to the named Plaintiffs. The
district court’s order which certified the class was subsequently affirmed
on appeal.
19504 GILMAN v. SCHWARZENEGGER
This court reviews for an abuse of discretion a district
court’s decision to grant or deny a preliminary injunction.
Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d
644, 651 (9th Cir. 2009). A two-part test is used to determine
whether the district court abused its discretion. United States
v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc).
First, this court must “determine de novo whether the [dis-
trict] court identified the correct legal rule to apply to the
relief requested.” Id. at 1262. A district court necessarily
abused its discretion if it applied the incorrect legal standard.
Id. at 1261. Second, if the district court applied the correct
legal standard, this court will reverse only when “the [district]
court’s application of the correct legal standard was (1) illogi-
cal, (2) implausible, or (3) without support in inferences that
may be drawn from the facts in the record.” Id. at 1262 (inter-
nal quotation marks omitted).
II
[2] “The States are prohibited from enacting an ex post
facto law.” Garner v. Jones, 529 U.S. 244, 249 (2000) (citing
U.S. Const. art. I, § 10, cl. 1).5 “One function of the Ex Post
Facto Clause is to bar enactments which, by retroactive oper-
ation, increase the punishment for a crime after its commis-
sion.” Id. Although retroactive changes in laws governing
parole of inmates may violate the Ex Post Facto Clause, “not
every retroactive procedural change creating a risk of affect-
ing an inmate’s terms or conditions of confinement is prohib-
ited.” Id. at 250. A retroactive procedural change violates the
Ex Post Facto Clause when it “creates a significant risk of
prolonging [an inmate’s] incarceration.” Id. at 251 (emphasis
added). A “speculative” or “attenuated” risk of prolonging
incarceration is insufficient to establish a violation of the Ex
Post Facto Clause. Cal. Dep’t of Corr. v. Morales, 514 U.S.
499, 509 (1995). Thus, Plaintiffs cannot succeed on the merits
5
The Ex Post Facto Clause applies to the states directly: “No State shall
. . . pass any . . . ex post facto Law . . . .” U.S. Const. art. I, § 10, cl. 1.
GILMAN v. SCHWARZENEGGER 19505
of their ex post facto claim unless (1) Proposition 9, on its
face, created a significant risk of increasing the punishment of
California life-term inmates, or (2) Plaintiffs can “demon-
strate, by evidence drawn from [Proposition 9’s] practical
implementation . . . , that its retroactive application will result
in a longer period of incarceration than under the [prior law].”
Garner, 529 U.S. at 255.
In Morales, the Supreme Court upheld the constitutionality
of a statutory change to the laws that governed California
parole hearings. 514 U.S. at 501-02. There, the California leg-
islature decreased the frequency of parole hearings for
inmates convicted of multiple murders—from every year to
up to every three years. Id. at 503. The Court explained the
amendment did not increase the statutory punishment for any
particular offense, did not change the date of inmates’ initial
parole hearings, and did not change the standard by which the
Board determined whether inmates were suitable for parole.
Id. at 507. The amendment simply “introduced 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.”
Id. This change did not violate the Ex Post Facto Clause
because it did not “produce[ ] a sufficient risk of increasing
the measure of punishment attached to the covered crimes.”
Id. at 509. The change “applie[d] only to a class of prisoners[,
murderers of multiple victims,] for whom the likelihood of
release on parole [was] quite remote,” id. at 510; the fre-
quency of an inmate’s hearings was not affected unless the
Board concluded “ ‘it [was] not reasonable to expect that
parole would be granted at a hearing during the following
years,’ ” id. at 511 (quoting Cal. Penal Code § 3041.5(b)(2)
(1982)); and the Board retained the authority to schedule
annual hearings, id. Thus, the decrease in the frequency of
parole hearings “create[d] only the most speculative and
attenuated possibility of producing the prohibited effect of
increasing the measure of punishment for covered crimes.” Id.19506 GILMAN v. SCHWARZENEGGER
at 509. Further, inmates who received two- or three-year
deferrals were not prohibited from requesting advance hear-
ings based on changed circumstances that affected their suit-
ability for parole. Id. at 512.
In Garner, the Georgia Board of Pardons (“Board”)
changed the frequency of parole hearings from every three
years to up to every eight years for inmates serving life sen-
tences. 529 U.S. at 247. Jones, who was serving two life sen-
tences for murder, was denied parole at his first parole
hearing. Id. The Board scheduled his next parole hearing for
eight years later. Id. Jones sued the Board in federal court
under 42 U.S.C. § 1983 and alleged the Board’s amendment
violated the Ex Post Facto Clause. Id. at 248. The district
court granted summary judgment to the Board. Id. The Elev-
enth Circuit reversed because the amendment “ ‘seem[ed] cer-
tain’ to result in some prisoners serving extended periods of
incarceration.” Id. at 255. The Eleventh Circuit distinguished
the case from Morales because the change made by the Geor-
gia Board (1) applied to a broader class of inmates (i.e., all
life-term inmates), some of whom could expect to be paroled
at some point; (2) allowed the Board to delay subsequent
hearings for up to eight years, instead of three years; and (3)
did not require the Board to state the bases for finding there
was no reasonable probability the inmate would become suit-
able for parole before the next hearing. Id. at 249.
The Supreme Court reversed and remanded. Id. at 257. The
Court rejected Jones’s contention that the amendment elimi-
nated the Board’s exercise of discretion between scheduled
parole hearings on the basis that the changes to the frequency
of parole hearings were “qualified in two important respects.”
Id. at 254. “First, the law vests the Parole Board with discre-
tion as to how often to set an inmate’s date for reconsidera-
tion, with eight years for the maximum.” Id. The Board’s
policy provides that it will set the duration between parole
hearings at more than three years only if “it is not reasonable
to expect that parole would be granted during the intervening
GILMAN v. SCHWARZENEGGER 19507
years.” Id. “Second, the Board’s policies permit expedited
parole reviews in the event of a change in [an inmate’s] cir-
cumstance or where the Board receives new information that
would warrant a sooner review.” Id. (internal quotation marks
omitted). The Court concluded that the amendment “[did] not
by its own terms show a significant risk [of increasing Jones’s
punishment].” Id. at 255. Thus, Jones was required to “dem-
onstrate, by evidence drawn from the rule’s practical imple-
mentation by the [Board], that its retroactive application will
result in a longer period of incarceration than under the earlier
rule.” Id. Because there was insufficient evidence in the
record to determine whether the amendment “created a signif-
icant risk of increased punishment for [Jones],” the Court
remanded the case. Id. at 257.
[3] Here, as in Morales and Garner, Proposition 9 did not
increase the statutory punishment for any particular offense,
did not change the date of inmates’ initial parole hearings, and
did not change the standard by which the Board determined
whether inmates were suitable for parole. However, the
changes to the frequency of parole hearings here are more
extensive than the change in either Morales or Garner. First,
Proposition 9 increased the maximum deferral period from
five years to fifteen years. This change is similar to the
change in Morales (i.e., tripled from one year to three years)
and the change in Garner (i.e., from three years to eight
years). Second, Proposition 9 increased the minimum deferral
period from one year to three years. Third, Proposition 9
changed the default deferral period from one year to fifteen
years. Fourth, Proposition 9 altered the burden to impose a
deferral period other than the default period. Before Proposi-
tion 9, the deferral period was one year unless the Board
found it was unreasonable to expect the prisoner would be
suitable for parole in one year. After Proposition 9, the defer-
ral period is fifteen years unless the Board finds by clear and
convincing evidence that the prisoner will be suitable for
parole in ten years, in which case the deferral period is ten
years. If the Board finds by clear and convincing evidence
19508 GILMAN v. SCHWARZENEGGER
that the prisoner will be suitable for parole in seven years, the
Board has discretion to set the deferral period at three, five,
or seven years. Neither Morales nor Garner involved a
change to the minimum deferral period, the default deferral
period, or the burden to impose a deferral period other than
the default period.
[4] In both Morales and Garner, even after the changes to
the laws governing the frequency of parole hearings, the
Board retained discretion to set subsequent parole hearings at
the same frequency as it would have before the changes to the
law. But here, Proposition 9 eliminated the Board’s discretion
to set a one-year deferral period, even if the Board were to
find by clear and convincing evidence that a prisoner would
be suitable for parole in one year. In the two years before
Proposition 9 was implemented, approximately two-thirds of
prisoners received deferral periods of one or two years. Now,
all prisoners will receive deferral periods of at least three
years. Further, the Board must set a fifteen-year deferral
period unless it finds by clear and convincing evidence that
the prisoner will be suitable for parole in ten years or less.
Thus, the changes required by Proposition 9 appear to
“create[ ] a significant risk of prolonging [Plaintiffs’] incar-
ceration.” Garner, 529 U.S. at 251.6
Even assuming, without deciding, that the statutory
changes decreasing the frequency of scheduled hearings
would create a risk of prolonged incarceration, the availability
6
This conclusion, however, assumes that more frequent parole hearings
produce more frequent grants of parole, rather than more frequent denials
of parole. It is true that more frequent hearings give a prisoner earlier
opportunities at being paroled; however, Plaintiffs produced no evidence
to support a finding that more frequent parole hearings result in more fre-
quent grants of parole. Indeed, the assumption that more frequent parole
hearings produce more frequent grants of parole is belied by the situations
of several of the named Plaintiffs in this case, who were subject to
repeated one- and two-year deferrals. These prisoners would not have
served shorter prison terms just because of more frequent parole hearings.
GILMAN v. SCHWARZENEGGER 19509
of advance hearings is relevant to whether the changes in the
frequency of parole hearings create a significant risk that pris-
oners will receive a greater punishment. Garner, 529 U.S. at
256-57;7 Morales, 514 U.S. at 512. In Morales, the prisoner
contended “there [was] some chance that the amendment
might . . . produce an increased term of confinement for some
prisoners who might experience a change of circumstances
that could render them suitable for parole during the period
between their hearings.” 514 U.S. at 512. The Court rejected
this contention and explained that, even if it assumed such a
change of circumstances, “there is no reason to conclude that
the amendment will have any effect on any prisoner’s actual
term of confinement, for the current record provides no basis
for concluding that a prisoner who experiences a drastic
change of circumstances would be precluded from seeking an
expedited hearing from the Board.” Id. Even though such
expedited hearings were not provided by statute or regulation,
the Court relied on the Board’s “practice” of “review[ing] for
merit any communication from an inmate asking for an earlier
suitability hearing.” Id. As the Court explained, “[a]n expe-
dited hearing by the Board . . . would remove any possibility
of harm” to prisoners who experienced changes in circum-
stances between hearings. Id. at 513 (emphasis added).
[5] Here, advance hearings are explicitly made available
7
In Garner, the Board adopted a policy that permitted inmates, “upon
a showing of a change in their circumstance or where the Board receives
new information, to receive expedited reconsideration for parole.” 529
U.S. at 248 (citation and internal quotation marks omitted). The Court held
that the Board’s internal policy statement was relevant to whether changes
to the frequency of parole hearings violated the Ex Post Facto Clause. Id.
at 256. As the Court explained, “policy statements, along with the Board’s
actual practices, provide important instruction as to how the Board inter-
prets its enabling statute and regulations, and therefore whether, as a mat-
ter of fact, the amendment to [the Board’s rules] created a significant risk
of increased punishment.” Id. “Absent a demonstration to the contrary,
[courts must] presume the Board follows its statutory commands and inter-
nal policies in fulfilling its obligations.” Id.19510 GILMAN v. SCHWARZENEGGER
by statute: “The board may in its discretion . . . advance a
hearing . . . to an earlier date, when a change in circumstances
or new information establishes a reasonable likelihood that
consideration of the public and victim’s safety does not
require the additional period of incarceration of the prisoner.”
Cal. Penal Code § 3041.5(b)(4). The Board may exercise its
discretion to hold an advance hearing sua sponte or at the
request of a prisoner. A prisoner may request an advance
hearing by submitting a written request that “set[s] forth the
change in circumstances or new information that establishes
a reasonable likelihood that consideration of the public safety
does not require the additional period of incarceration.” Id.§ 3041.5(d)(1). The Board’s decision to deny a prisoner’s
request for an advance hearing is subject to judicial review.
Id. § 3041.5(d)(2). Here, as in Morales, an advance hearing
by the Board “would remove any possibility of harm” to pris-
oners because they would not be required to wait a minimum
of three years for a hearing. 514 U.S. at 513.
Plaintiffs provide four reasons why the advance hearings do
not sufficiently reduce the risk of increased punishment for
prisoners. None of these reasons is persuasive.
Plaintiffs’ first reason is that the decision to grant a prison-
er’s request for an advance hearing is entirely discretionary.
Neither a change in circumstances nor new information
requires the Board to hold an advance hearing. However,
absent evidence to the contrary, this court must presume the
Board will exercise its discretion in a manner consistent with
the Ex Post Facto Clause. See Garner, 529 U.S. at 256(“Absent a demonstration to the contrary, we presume the
Board follows its statutory commands and internal policies in
fulfilling its obligations.”). Plaintiffs have adduced no evi-
dence that the Board has denied a request for an advance
hearing where a prisoner has shown a change in circum-
stances or new evidence. In fact, Plaintiffs have adduced no
evidence that the Board has denied a request for an advance
hearing for any reason. Thus, this court must presume that the
GILMAN v. SCHWARZENEGGER 19511
Board will, upon request, schedule advance hearings for pris-
oners who become suitable for parole prior to their scheduled
hearings.
Plaintiffs’ second reason is that “there is no mechanism or
procedure in place for the Board to initiate a review or to
accept, consider or rule on a prisoner’s request [for an
advance hearing].” We are not persuaded. Section
3041.5(d)(1) allows a prisoner to request an advance hearing,
and § 3041.5(b)(4) allows the Board to advance a hearing
based on a change in circumstances or new information. Fur-
ther, in Morales, no statute or regulation provided for advance
hearings, yet the Court relied on the fact that the Board—the
same Board involved in this case—had a practice of review-
ing inmates’ requests for earlier parole hearings. 514 U.S. at
512. If the Board were able to review inmates’ requests for
advance hearings before such hearings were explicitly autho-
rized by statute, there is no reason to believe that the Board
is no longer capable of handling such requests. Indeed, just
the contrary is true now that statutory authorization has sup-
planted mere practice. Further, Plaintiffs have adduced no evi-
dence that the Board has denied or failed to respond to
requests for advance hearings.
[6] Plaintiffs’ third reason is that the district court con-
cluded that “there will necessarily be a delay between any
meritorious request for an advance hearing and the grant of
such hearing, and Plaintiffs contend, with some evidence, that
this delay will likely exceed a year.” This conclusion is not
supported by the evidence in the record. Plaintiffs rely in part
on the fact that the Board’s decision to deny parole does not
become final for four months. But Plaintiffs cite no authority
that requires a prisoner to wait until the Board’s decision is
final before he requests an advance hearing based on changed
circumstances or new information. Other steps may also delay
an advance hearing once a request has been made: the Board
must solicit the views of the victim or next of kin before it
grants a request for an advance hearing, Cal. Penal Code
19512 GILMAN v. SCHWARZENEGGER
§ 3041.5(b)(4), (d)(2); the Board must consider the merits of
the request, id. § 3041.5(b)(4); and, if the Board grants the
request, it must provide 90 days’ notice to the victim or next
of kin before it holds the hearing, id. § 3043(a)(1). But Plain-
tiffs fail to explain how these statutory requirements make it
“virtually impossible” for a prisoner to receive an advance
hearing within one year of the denial of parole—the previous
default deferral period. The speculative and attenuated risk
that an advance hearing will not be held within one year of a
request is insufficient to establish an ex post facto violation.
See Morales, 514 U.S. at 508-09.
Plaintiffs’ fourth reason is that they will be unable to estab-
lish changed circumstances or new information with respect
to static factors such as the circumstances of the commitment
offense or prior criminal history. Plaintiffs are correct that
those static factors will not change; but a prisoner’s suitability
for parole may change even though static factors remain
unchanged. For example, the passage of time is a change in
circumstances that may affect a prisoner’s suitability for
parole (i.e., the prisoner’s current dangerousness) even though
his prior criminal history has not changed. See Lawrence, 190
P.3d at 560 (holding that the passage of time is a factor the
Board must consider when it determines whether a prisoner is
currently dangerous and, thus, unsuitable for parole). Plain-
tiffs also contend that they will be unable to establish changed
circumstances or new information with respect to intangible
factors such as the failure to accept responsibility or the lack
of sufficient remorse. But, just as a prisoner must explain his
acceptance of responsibility and convey his remorse at a
parole hearing, a prisoner can, in a request for an advance
hearing, explain that he has accepted full responsibility for his
crime and convey his remorse.
[7] There were no facts in the record from which the dis-
trict court could infer that Proposition 9 created a significant
risk of prolonging Plaintiffs’ incarceration; thus, the district
court abused its discretion. See Hinkson, 585 F.3d at 1262
GILMAN v. SCHWARZENEGGER 19513
(holding that a trial court abuses its discretion when its appli-
cation of the correct legal standard was “without support in
inferences that may be drawn from the facts in the record”).
Because Proposition 9 does not create a significant risk of
prolonging Plaintiffs’ incarceration on any of the theories
asserted by Plaintiffs, they are unlikely to succeed on the mer-
its of their ex post facto claim. Therefore, we reverse the dis-
trict court’s order that granted Plaintiffs’ motion for a
preliminary injunction.
REVERSED.