Richard Gilman v. Edmund Brown, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD M. GILMAN, Nos. 14-15613
Plaintiff-Appellee/Cross-Appellant, 14-15680

v. D.C. No.
2:05-cv-00830-
EDMUND G. BROWN, JR.; JONES LKK-CKD
MOORE, Board of Prison Terms; J.
DAVIS; M. HOCHINO; BOOKER
WELCH, Board of Prison Terms OPINION
Commissioner; SUSAN FISHER; L.
DININNI, Board of Prison Terms
Deputy Commissioner; M. PEREZ;
DENNIS KENNEALLY; NOREEN
BLONIEN, Board of Prison Terms
Deputy Commissioner; BOARD OF
PAROLE HEARINGS,
Defendants-Appellants/Cross-
Appellees.

Appeals from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted
June 15, 2015—San Francisco, California

Filed February 22, 2016
2 GILMAN V. BROWN

Before: Susan P. Graber, Consuelo M. Callahan,
and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

SUMMARY*

Prisoner Civil Rights

The panel reversed the district court’s bench trial
judgment and remanded with instructions to enter judgment
for the State of California in an action brought by California
inmates under 42 U.S.C. § 1983 seeking to enjoin the
application of Propositions 89 and 9, through which
California voters amended the State’s Constitution and Penal
Code pertaining to the State’s parole system.

Proposition 89 amended the California Constitution to
vest in the Governor constitutional authority to reverse,
affirm, or modify the Board of Parole Hearings’ grants of
parole as to inmates convicted of murder. Proposition 9
amended the California Penal Code to increase the default
period of time after which a prisoner would be scheduled for
a parole hearing, after the denial of parole. Plaintiffs asserted
that Proposition 89 and 9 violated the Ex Post Facto Clause
by creating a significant risk that their periods of
incarceration will be longer than they would have been before
the passage of the Propositions.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 GILMAN V. BROWN 3

Addressing the constitutionality of Proposition 89 as
applied to plaintiffs, the panel held that Johnson v. Gomez, 92
F.3d 964, 965 (9th Cir. 1996), controlled the outcome. The
panel determined that there was no evidence that governors
had reversed the Board other than on the basis of the same
factors which the parole authority is required to consider.
Nor did plaintiffs offer evidence showing that they would
have received parole before the enactment of Proposition 89,
and that Proposition 89 changed that result. Therefore, the
panel concluded that Proposition 89 remained only a transfer
of decisionmaking power, which does not violate the Ex Post
Facto Clause.

Addressing plaintiffs’ as-applied challenge to Proposition
9, the panel held that the district court committed legal error
by basing its findings principally on speculation and
inference, rather than on concrete evidence. The panel
concluded that the district court erred by finding that the
Penal Code’s petition to advance process, Cal. Penal Code
§ 3041.5(d)(1), by which inmates can request that the Board
advance the date of their next parole hearing, failed to afford
relief from the classwide risk of lengthened incarceration
posed by Proposition 9. The panel held that the district
court’s findings, viewed under the correct legal standard,
were insufficient to support a conclusion that, on this record,
an as-applied Ex Post Facto Clause violation had occurred.

COUNSEL

Christopher John Rench (argued) and Maria G. Chan, Deputy
Attorneys General, California Department of Justice,
Sacramento, California; Sara Romano, Supervising Deputy
Attorney General, California Department of Justice, San
4 GILMAN V. BROWN

Francisco, California, for Defendants-Appellants/Cross-
Appellees.

Monica Knox (argued), David Miles Porter, and Ann
Catherine McClintock, Assistant Federal Public Defenders,
Federal Public Defender’s Office, Sacramento, California, for
Plaintiff-Appellee/Cross-Appellant.

Mark Zahner, Chief Executive Officer, California District
Attorneys Association, Sacramento, California; Bonnie M.
Dumanis, District Attorney, and Richard J. Sachs, Deputy
District Attorney, San Diego, California, for Amicus Curiae
California District Attorneys Association.

Richard Crane, San Diego, California, as and for pro se
Amicus Curiae.

OPINION

BEA, Circuit Judge:

In California, voters have the power to change criminal-
sentencing law at the ballot box. They can amend statutes and
the state constitution. In 1988 and again in 2008, the voters
exercised this power through the passage of Proposition 89
and then Proposition 9. Proposition 89 amended the
California Constitution to vest in the Governor constitutional
authority to reverse, affirm, or modify grants of parole as to
inmates convicted of murder. Such authority had previously
been vested solely in the Board of Parole Hearings.
Proposition 9 amended the California Penal Code to increase
 GILMAN V. BROWN 5

the default period of time after which a prisoner would be
scheduled for a parole hearing, after the denial of parole.

No party to this action challenges the authority of voters
to make such changes. However, California inmates who
were sentenced to life terms with the possibility of parole for
murders committed before the passage of the two
Propositions, led by Richard Gilman, contend that applying
the Propositions to them creates a significant risk that their
periods of incarceration will be longer than they would have
been before the passage of the Propositions. If the application
of either Proposition creates a significant risk of a longer
period of incarceration, the Proposition violates the Ex Post
Facto Clause of the Federal Constitution. Gilman and two
classes of similarly situated plaintiffs sued under 42 U.S.C.
§ 1983 to enjoin the application of Propositions 89 and 9 as
to them.

After a bench trial, the district court found in favor of the
plaintiffs. As to the class members who were convicted of
crimes committed before the passage of Proposition 89, the
district court enjoined the Governor from imposing a longer
sentence than that required by application of the same factors
the Board of Parole Hearings is required to consider. The
district court further ordered the Board of Parole Hearings,
after denying a class member parole, to schedule that
inmate’s next parole hearing according to the deferral periods
in place before the passage of Proposition 9. We reverse.

I. Facts and Procedural History

Until 1988, the California Board of Parole Hearings
(“Board”) had the exclusive power to make parole decisions.
In 1988, California voters passed Proposition 89, which
6 GILMAN V. BROWN

amended the California Constitution to grant the Governor
the authority to affirm, modify, or reverse decisions of the
Board with respect to inmates convicted of murder.1

In 2008, through another ballot initiative, which did not
affect Proposition 89, California voters changed the parole
scheme again, this time by statutory amendment, in
Proposition 9.2 Before the passage of Proposition 9, prisoners

1
Proposition 89 added, in pertinent part, the following language to Cal.
Const. art. V, § 8:

No decision of the parole authority of this state with
respect to the granting, denial, revocation, or
suspension of parole of a person sentenced to an
indeterminate term upon conviction of murder shall
become effective for a period of 30 days, during which
the Governor may review the decision subject to
procedures provided by statute. The Governor may only
affirm, modify, or reverse the decision of the parole
authority on the basis of the same factors which the
parole authority is required to consider. . . .
2
Proposition 9 amended Cal. Penal Code § 3041.5(b) to read, in
pertinent part:

(3) 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 . . . are such that
consideration of the public and victim’s safety
does not require a more lengthy period of
incarceration for the prisoner than 10 additional
years.
 GILMAN V. BROWN 7

sentenced to life with the possibility of parole received an
annual parole-suitability hearing by default. After denying
such a prisoner parole, if the Board determined that it was not
reasonable to expect that the prisoner would be granted parole
within a year, the Board could schedule the prisoner’s next
parole hearing up to five years later for murderers and up to
two years later for non-murderers. Following the passage of
Proposition 9, after denying such a prisoner parole, the Board
may schedule his next parole hearing fifteen, ten, seven, five,
or three years later (the “deferral periods”).

(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 . . . are such that
consideration of the public and victim’s safety
does not require a more lengthy period of
incarceration 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 . . . are such that 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 incarceration for
the prisoner than seven additional years.

(4) The board may in its discretion, after
considering the views and interests of the victim,
advance a hearing set pursuant to paragraph (3) 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 provided in
paragraph (3).
8 GILMAN V. BROWN

Notwithstanding these deferral periods, Proposition 9
allows an inmate to request that the Board advance the date
of his next parole hearing. To do so, an inmate submits a
petition to advance (“PTA”) setting 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 of the
inmate.” Cal. Penal Code § 3041.5(d)(1). The Board has sole
discretion to grant or deny a PTA; it may also advance an
inmate’s next parole hearing sua sponte. Id. § 3041.5(b)(4),
(d)(2). If the Board denies the inmate’s PTA, the inmate may
not submit another PTA for three years. Id. § 3041.5(d)(3).

In 2005, Gilman and other California inmates convicted
of murders committed before November 2, 1988, sued the
State under 42 U.S.C. § 1983. Gilman alleged that
Proposition 89 retroactively increased the punishments of
class members, in violation of the Ex Post Facto Clause, and
sought to enjoin the enforcement of Proposition 89. In 2009,
Gilman amended and supplemented his complaint to allege
that Proposition 9 also violated the Ex Post Facto Clause. To
that end, he added a subclass composed of inmates who were
convicted of an offense committed on or after November 8,
1988, the date of Proposition 89’s passage, but before
November 4, 2008, the date of Proposition 9’s passage.3

Gilman moved for a preliminary injunction to bar
enforcement of Proposition 9 based on the allegations that it
violated the Ex Post Facto Clause. The district court ruled
that Gilman was likely to succeed on the merits of his claim
and granted the motion. The State filed an interlocutory
appeal and, in a published opinion, we reversed, “[b]ecause

3
We use “Gilman” to refer to all plaintiffs and class members.
 GILMAN V. BROWN 9

on the current record Proposition 9 does not create a
significant risk of prolonging [Gilman’s] incarceration on any
of the theories [he] assert[s], [and] [Gilman] ha[s] not
established that [he is] likely to succeed on the merits of [his]
ex post facto claim.” Gilman v. Schwarzenegger (Gilman I),
638 F.3d 1101, 1111 (9th Cir. 2011).

At a bench trial, as to the Ex Post Facto Clause claim
against Proposition 89, Gilman proffered evidence showing
that between 1991 and 2010 the Governor reversed more than
70% of the Board’s decisions granting parole to prisoners
with murder convictions. The district court found that most
such reversals were related to prisoners “who were already
beyond their ‘life terms,’ so that but for Proposition 89 and
the Governor’s reversal, they would have been released
already.”4

Based on this evidence, the district court found that
Proposition 89 “was passed in order to lengthen the amount
of time class members would spend in prison by creating a
new mechanism for withholding parole, namely, the
governor’s veto” and, “[t]rue to the law’s intentions,
California governors have used [Proposition 89] to withdraw
the possibility of parole from most class members.” The
district court thus held that Proposition 89, as implemented
by California Governors, is a “plain violation of the ex post
facto clause as to those inmates whose crimes were

4
When the Board grants parole to a prisoner sentenced to life with the
possibility of parole, it calculates a release date that depends, in part, on
the crime of conviction and the presence of aggravating or mitigating
factors. See Cal. Code Regs. tit. 15, §§ 2280–2292. The district court
found that most parole grants reversed by the Governor were for prisoners
who continued to be incarcerated beyond the release date calculated by the
Board.
10 GILMAN V. BROWN

committed before Proposition 89.” The district court ordered
the Governor to “refrain from imposing longer sentences on
class members than are called for by application of the same
factors the Board is required to consider, as provided for by
Proposition 89.”

As to Proposition 9, the district court made findings
regarding the comparative frequency of parole hearings, and
comparative rates of parole grants, before and after the
passage of Proposition 9. To do this, the district court relied
on the experience of inmates who had been involved in state
litigation, In re Rutherford, No. SC135399A (Cal. Super. Ct.,
Marin Cty., filed May 26, 2004). In Rutherford, petitioner
Jerry Rutherford was denied parole in 2003 and was
scheduled for a hearing the next year, under the pre-
Proposition 9 statute. The Board did not provide the required
hearing within the year. Rutherford filed a petition in habeas
corpus, in California state court, to challenge the hearing
delay. The state court certified a class of “prisoners serving
indeterminate terms of life with the possibility of parole who
have approached or exceeded their minimum eligible parole
dates without receiving their parole hearings within the time
required.” After class certification, the Board stipulated that
it was not providing timely parole hearings. The Rutherford
class and the State then agreed to a remedial plan to conduct
the hearings. Some Rutherford class members had not
received the hearings to which they were entitled under the
plan when Proposition 9 became effective. Those class
members moved for a preliminary injunction to enjoin the
Board from applying Proposition 9 to them. The application
for a preliminary injunction was settled by stipulation, under
which some prisoners who had already had hearings (after
Proposition 9 but before entry of the stipulation), had been
denied parole, and had their deferral periods calculated under
 GILMAN V. BROWN 11

Proposition 9, were entitled to adjustments of their deferral
periods to conform to the pre-Proposition 9 deferral periods.
Those prisoners who had not received hearings stipulated to
specific deferral periods or to hearings conducted under the
pre-Proposition 9 statute.

The district court then made findings regarding the
efficacy of the PTA process, as “the availability of advance
hearings is relevant to whether the changes in the frequency
of parole hearings create a significant risk that prisoners will
receive a greater punishment.” Gilman I, 638 F.3d at 1108.
The State argued that its PTA process mitigated any risk that
sentences would be unconstitutionally lengthened. The
district court disagreed.

The district court found that, when he reviews a PTA, a
decisionmaker designated by the Board5 analyzes the
petitioner’s asserted change in circumstances or new
information without reference to whether a prisoner has made
“a move from unsuitability to suitability” and that some
prisoners who had become suitable would not be able to
advance their hearings by filing a PTA. That is, the district
court concluded that a PTA’s contention that a prisoner is
now suitable, though he was unsuitable before, is not in itself
considered a change in circumstances. The district court
found that this interpretation meant that some prisoners who
would have been found suitable for parole at their next
suitability hearing under the pre-Proposition 9 version of Cal.

5
Review of PTAs is divided into an initial review and a final review. A
PTA must pass the initial review before a Commissioner or Deputy
Commissioner of the Board conducts a final review. The precise
mechanics of this process changed in 2014, but that change was not a
basis for the district court’s decision.
12 GILMAN V. BROWN

Penal Code § 3041.5(d)(1) were not able to advance their
hearing to less than the three-year deferral period, because
their suitability was not deemed a changed circumstance or
new information, and so an advance hearing was not granted.

The district court pointed to the example of one prisoner,
M. Brodheim, who filed a federal habeas petition on due-
process grounds after the Board had denied him parole; he
claimed that the Board lacked “some evidence” that he was
unsuitable for parole.6 The district court agreed and entered
a conditional writ of habeas corpus, to issue unless Brodheim
were given a parole hearing. The State appealed and, while
the appeal was pending, held a Board hearing, at which the
Board found Brodheim suitable for parole. We subsequently
reversed the judgment which granted the conditional writ on
the ground that the district court erred in its finding that the
Board lacked “some evidence” of Brodheim’s unsuitability
for parole. The Board then vacated its suitability finding and
set Brodheim for a three-year deferral under Proposition 9.
Brodheim filed a PTA, citing his suitability for parole as
found by the Board. The Board denied his PTA on the ground
that there was no evidence of the requisite changed
circumstances or new information, although it had found him
suitable for parole. The district court found Brodheim’s
situation to be evidence that, in some cases, the Board does
not “upon request, schedule advance hearings for prisoners
who become suitable.” Gilman I, 638 F.3d at 1109.

The district court also found that the PTA process did not
prevent a significant risk of lengthened incarceration for
prisoners whose parole determinations hinged on psychiatric

6
Brodheim did not assert that the Board violated the Ex Post Facto
Clause.
 GILMAN V. BROWN 13

evaluations known as the Comprehensive Risk Assessment
(“CRA”) (administered every five years) and the Subsequent
Risk Assessment (“SRA”) (administered before a parole-
suitability hearing) because an SRA could be ordered only in
conjunction with a hearing, not a PTA. Therefore, the district
court reasoned, a prisoner could not show changed
circumstances through his risk assessment, as one would not
be conducted in connection with the PTA.

Similarly, the district court found that the PTA process
would not advance hearings for some prisoners whose PTAs
were written in Spanish, because the decisionmakers assigned
to review the PTAs could not review documents in Spanish
and “could not determine whether the standard had been met
until the documents were translated.” The district court
pointed to one instance in which a PTA was denied on this
ground.

The district court concluded that “the PTA process is not
sufficient to protect inmates from the ex post facto problems
inherent in Proposition 9.” Based on its findings, the district
court ordered the Board to apply the pre-Proposition 9
version of Cal. Penal Code § 3041.5 to class members. The
State appealed the district court’s decision.

II. Standard of Review

We review the district court’s legal conclusions de novo,
its factual findings for clear error, and the scope of the
injunctions for abuse of discretion. Armstrong v. Brown,
768 F.3d 975, 979 (9th Cir. 2014).
14 GILMAN V. BROWN

III. Analysis

A change in law violates the Ex Post Facto Clause of the
Federal Constitution when it “inflicts a greater punishment[]
than the law annexed to the crime, when committed.” Peugh
v. United States, 133 S. Ct. 2072, 2078 (2013) (internal
quotation marks omitted). In Gilman I, we set forth the
relevant inquiry:

Plaintiffs cannot succeed on the merits 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 “demonstrate, 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].”

638 F.3d at 1106 (alterations in original) (quoting Garner v.
Jones, 529 U.S. 244, 255 (2000)). We already rejected
Gilman’s facial challenge to Proposition 9 in Gilman I, and
now Gilman brings an as-applied Ex Post Facto Clause
challenge based on “evidence drawn from Proposition 9’s
practical implementation.” Id.

Although we stated that Gilman must show that the
retroactive application of Proposition 9 “will result in a
longer period of incarceration,” we think it is enough for
Gilman to prove that Proposition 9 “created a significant risk
of increasing his punishment.” Garner, 529 U.S. at 255
(emphasis added). Garner, on which we relied in Gilman I,
used both forms of the test, but ultimately concluded that
 GILMAN V. BROWN 15

“respondent must show that as applied to his own sentence
the law created a significant risk of increasing his
punishment. This remains the issue in the case.” Id. (emphasis
added).7 Moreover, any doubt we may have had on this point
was dispelled by the Supreme Court’s decision in Peugh,

7
Garner presented a situation very similar to this case. In 1982, Robert
Jones was sentenced to a life term for a murder he committed after he
escaped from prison. 529 U.S. at 247. At the time he committed this
crime, Georgia law required the State’s Board of Pardons and Paroles
(“Georgia Board”) to hold parole-suitability hearings every three years
after an initial denial of parole. Id. In 1985, before Jones’s initial parole
hearing, the Georgia Board changed its rules to require periodic
reconsideration of parole “at least every eight years.” Id. Consistent with
this rule change, after the Georgia Board denied Jones parole, it set his
next parole-suitability hearing for eight years later. Id. Jones filed suit
under 42 U.S.C. § 1983 against members of the Georgia Board for
violating the Ex Post Facto Clause. Id. at 248. The district court entered
summary judgment for the defendants. Id. The Eleventh Circuit reversed,
holding that the rule change “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 of the Constitution.” Id. at 249 (internal
quotation marks omitted).

The Supreme Court reversed. “The question is whether the amended
Georgia Rule creates a significant risk of prolonging respondent’s
incarceration. The requisite risk is not inherent in the framework of [the]
amended Rule . . . , and it has not otherwise been demonstrated on the
record.” Id. at 251 (citation omitted). Like Proposition 9, the amended rule
allowed prisoners to request “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.” Id. at 254. The Court ruled that,
“[w]hen the rule [increasing deferral periods] 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.” Id. at 255. The Court held that a prisoner
“must show that as applied to his own sentence the law created a
significant risk of increasing his punishment.” Id.
16 GILMAN V. BROWN

which was decided after Gilman I, and reiterated that “[o]ur
ex post facto cases . . . have focused on whether a change in
law creates a ‘significant risk’ of a higher sentence.” 133 S.
Ct. at 2088.8 That is the correct standard, which we now apply
to Gilman’s challenges to Propositions 89 and 9.

A. Proposition 89

We have already addressed the constitutionality of
Proposition 89 as applied to prisoners who were convicted of
crimes committed before November 2, 1988. In Johnson v.
Gomez, 92 F.3d 964, 965 (9th Cir. 1996), California state
prisoner Robert Johnson was convicted of first-degree murder
in 1977 and given an indeterminate sentence of 25 years to
life. After California voters passed Proposition 89, the Board
found Johnson eligible for parole. Id. Under Proposition 89,
Johnson was not eligible for release until the 30-day period
for gubernatorial review had passed. Id. The Governor
exercised his authority under Proposition 89 and reversed the
grant of parole. Id. Johnson sought state habeas and his
petition was denied. Id. Johnson then filed a federal habeas
petition, which the district court denied. Id. at 966.9

8
Both Garner and Peugh refer to “sufficient risk” and to “significant
risk,” apparently using the terms interchangeably. See Garner, 529 U.S.
at 250, 255; Peugh, 133 S. Ct. at 2083, 2088.
9
Johnson filed his petition before the Anti-Terrorism and Effective
Death Penalty Act of 1996 was passed, so he could have prevailed even
if the state court had not made a “decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court,” or “that was based on an
unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d).
 GILMAN V. BROWN 17

We affirmed. Although we acknowledged that “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,” we held
that this did not violate the Ex Post Facto Clause. Id. at 967.
We ruled that “[t]he law . . . simply removes final parole
decisionmaking authority from the [Board] and places it in
the hands of the governor,” who “must use the same criteria”
as the Board. Id. We also noted that Johnson had not shown
that he would have received parole under the old system and,
therefore, Proposition 89 presented only a speculative risk of
unconstitutionally lengthening his period of incarceration. Id.
at 967–68.

Johnson controls here. The district court found that the
evidence presented at trial showed that Proposition 89, “in
actual practice, is not [a] ‘neutral’ transfer of final decision-
making authority from one decision-maker to another. . . .
[W]hile the governors could use the law to review parole
decisions to ensure that they are accurate and fair, they appear
to have no such concern about decisions that deny parole.”
However, as we noted in Johnson, the Governor must use the
same criteria to determine suitability as does the Board. Id. If
the district court’s finding that “governors have used
[Proposition 89] to tip the scales against parole,” is a finding
that California Governors are not obeying state law, that
finding is clearly erroneous. “Absent a demonstration to the
contrary, we presume [state actors] follow[] . . . statutory
commands.” Garner, 529 U.S. at 256. The district court did
not point to evidence that Governors had reversed the Board
other than “on the basis of the same factors which the parole
authority is required to consider.” Cal. Const. art. V, § 8(b).
Nor did Gilman offer evidence showing that he would have
received parole before the enactment of Proposition 89, and
18 GILMAN V. BROWN

that Proposition 89 changed that result. Therefore,
Proposition 89 remains only a transfer of decisionmaking
power, which does not violate the Ex Post Facto Clause.

The district court erred in finding that Johnson does not
control the outcome of Gilman’s challenge to Proposition 89.
We reverse the district court’s findings and injunction as to
Proposition 89, as to which Gilman is not entitled to relief.10

B. Proposition 9

We turn now to Proposition 9. The parameters for the
district court’s inquiry were set out in Gilman I. In that case,
we reversed the district court’s preliminary injunction against
the enforcement of Proposition 9 because, although
Proposition 9 “appear[ed] to ‘create[] a significant risk of
prolonging [Plaintiffs’] incarceration,’” Gilman I, 638 F.3d at
1108 (second and third alterations in original) (quoting
Garner, 529 U.S. at 251), the PTA process allowed an inmate
to advance his parole hearing if he could demonstrate a
“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. at
1109 (quoting Cal. Penal Code § 3041.5(d)(1)).

At the outset, we note that proving a significant risk of
prolonged incarceration in parole cases requires exacting
evidence. The district court spent many pages of its opinion
establishing, based principally on statistics derived from the
Rutherford litigation, that Proposition 9 likely reduced the
frequency of parole hearings for class members. That result

10
Doing so renders moot Gilman’s cross-appeal as to the scope of
injunctive relief, as Gilman is not entitled to injunctive relief.
 GILMAN V. BROWN 19

is not surprising. However, a decrease in the frequency of
parole hearings—without more—is not sufficient to prove a
significant risk of lengthened incarceration. Id. at 1106. Proof
of that risk is not a speculative inquiry. In California
Department of Corrections v. Morales, 514 U.S. 499, 508–09
(1995), the Supreme Court rejected the argument that a rule
change violates the Ex Post Facto Clause if it “might create
some speculative, attenuated risk of affecting a prisoner’s
actual term of confinement by making it more difficult for
him to make a persuasive case for early release.”
“[C]onjectural effects are insufficient under any threshold we
might establish under the Ex Post Facto Clause.” Id. at 509.

Moreover, Gilman must prove that Proposition 9 creates
a significant risk of lengthened incarceration “within the
whole context of [California’s] parole system,” Garner, 529
U.S. at 252, including the opportunity for relief offered by the
PTA process. In Gilman I, Gilman had urged four reasons
why the PTA process was inadequate on its face to remove a
significant risk of prolonged incarceration. 638 F.3d at
1109–10. We dealt with each one and found that none was
established facially. Id. On remand, to prevail on his Ex Post
Facto Clause claim, Gilman’s task was to prove, by evidence
drawn from Cal. Penal Code § 3041.5(d)(1)’s practical
implementation, that the rule, as applied to him and other
class members, did “not sufficiently reduce the risk of
increased punishment for prisoners.” Id. at 1109–11; see
Garner, 529 U.S. at 255.

To accomplish this task, Gilman marshaled evidence of
grants and denials of PTAs. This evidence included cases in
which (1) the PTA was granted and, at the consequent
advance hearing, parole was granted; (2) the PTA was
granted, but parole was ultimately denied; and (3) the PTA
20 GILMAN V. BROWN

was denied, resulting in no advance hearing. Based on this
evidence, the district court concluded that “[t]he PTA process
is structured such that it fails, in many cases, to afford
inmates a fair opportunity to obtain an advance hearing,” and
it “is not sufficient to protect inmates from the ex post facto
problems inherent in Proposition 9.”11

To reach this conclusion, the district court first reviewed
the PTA process and decided for itself that “the advance
hearing process sometimes works and sometimes does not
work,” because it “appears to deny advance hearings . . . to
those who facially appear to deserve them.” It then found that
certain structural features of the PTA process created
impediments to its proper functioning, rendering the PTA
process illusory for some class members. However, the
district court based these findings largely on speculation and
inference from anecdotal evidence, rather than evidence
drawn from Cal. Penal Code § 3041.5(d)(1)’s practical
implementation proving that the PTA process failed to
alleviate the classwide risk of lengthened incarceration posed
by Proposition 9. See Garner, 529 U.S. at 255; Morales,
511 U.S. at 508–09; Gilman I, 638 F.3d at 1106. Because the

11
The statistics and anecdotes derived from the Rutherford litigation, are
irrelevant to this question, because the inmates covered by the Rutherford
stipulated settlement avoided the PTA process. The district court noted
that several Rutherford petitioners who received parole hearings under the
pre-Proposition 9 scheme were released on parole before they would have
had their next parole hearing under Proposition 9. But those same inmates
might very well have been granted an advance hearing if they had
submitted a PTA. We do not know if those inmates would have achieved
an advance hearing upon PTAs, and neither Gilman nor the district court
made that connection. Any suggestion that Proposition 9 created a
significant risk of lengthened incarceration for those inmates is thus
conjectural.
 GILMAN V. BROWN 21

district court applied the wrong standard, it committed legal
error, and the resulting factual findings are clearly erroneous.
We take each of the district court’s points in turn to
demonstrate the errors in its analysis.

1. Improper Denial of PTAs

In reviewing the PTA process, the district court first
satisfied itself that “the PTA system works at denying
petitions that ought to be denied,” and then turned to the
question “whether it grants petitions that ought to be
granted.” That the district court should so see its task is
curious in light of its (correct) understanding that it “does not
sit to review individual parole decisions.” Notwithstanding
this recognition of its limited review role, the district court
went on to consider whether petitions were denied that “ought
to [have been] granted.”

After reviewing certain case studies, the district court
concluded: “[T]he PTA [process] appears to deny advance
hearings . . . to those who facially appear to deserve them.”
But, to decide who “facially” deserves the grant of a PTA,
one must consider the merits of the grounds upon which the
PTA is made. The question whether those grounds merit the
grant of a PTA—like the question whether to grant parole—is
committed to the sole “unfettered discretion” of the Board. In
re Vicks, 295 P.3d 863, 882 (Cal. 2013); see Cal. Penal Code
§ 3041.5(d)(2); see also Swarthout v. Cooke, 562 U.S. 216,
220 (2011) (per curiam) (discussing the limits of federal
review of a state’s discretionary decisions with respect to the
grant or denial of parole). Indeed, as Garner teaches us, in
reviewing decisions of state parole authorities for potential
Ex Post Facto Clause issues, the question is not whether
“discretion has been changed in its exercise” by changes in
22 GILMAN V. BROWN

parole procedures, but whether discretion “will not be
exercised at all.” 529 U.S. at 254.12 It is undisputed that the
Board did exercise its discretion as to each of the PTAs in
question, granting some and denying others. We conclude
that the district court erred in using its disagreement with the
Board’s decisions about which PTAs ought to have been
granted or denied as a valid basis for finding an Ex Post Facto
Clause violation.13

2. “Amorphous” Burden on Inmates

The district court then identified and examined various
“structural problems” that could account for the Board’s
denial of PTAs. The most troubling problem found by the
district court was that Cal. Penal Code § 3041.5(d)(1) places
a new, additional, and “amorphous” burden on prisoners
seeking an advance hearing—to show a “‘change in

12
We recognize that in Garner, the Georgia Board retained discretion,
after denying parole, to schedule the next parole hearing at any time, and
that here, the Board must schedule its next hearing three years later, at the
soonest. However, the Board retains the power to advance a hearing sua
sponte so that it occurs in less than three years. Cal. Penal Code
§ 3041.5(b)(4). When the Board sets a hearing three years away, and does
not advance that hearing, or when the Board denies a PTA, the Board
necessarily exercises its discretion to deny parole by exercising its
discretion, through individual Commissioners or Deputy Commissioners,
to deny the PTA or advancement of the hearing. Thus, we treat the
Board’s exercise of discretion during the PTA process as an exercise of
discretion as to whether to grant or deny parole within the meaning of
Garner.
13
As we described supra with respect to Proposition 89, the Ex Post
Facto Clause is not violated just because two entities applying the same
criteria arrive at different conclusions regarding parole decisions. That is
all the more true here, because, unlike the Governor, the district court has
no direct oversight of parole or PTA decisions.
 GILMAN V. BROWN 23

circumstances or new information’ . . . before [the Board]
will even consider the question of suitability for parole.” The
district court found that the Board has interpreted the statute
to require a “change in circumstances or new information”
“in a way that separates the ‘change in circumstances or new
information’ from the question of suitability.” (Emphasis
added.) This is an unnatural reading of Cal. Penal Code
§ 3041.5(d)(1), which specifically ties the “change in
circumstances or new information” to that which “establishes
a reasonable likelihood that consideration of the public safety
does not require the additional period of incarceration of the
inmate”; that is, suitability for parole.

Moreover, the evidence in the record favors this
commonsense reading of the statute and runs counter to the
district court’s finding. A non-exclusive list of examples
included in the Board’s training materials suggests that the
Board interprets Cal. Penal Code § 3041.5(d)(1) broadly. To
show new information or a changed circumstance, an inmate
need present only one or more of the building blocks that
could result in a suitability finding, such as an updated parole
plan, a job offer, completion of a substance-abuse-treatment
program, or attainment of an educational certificate. The
Board also requires, as does the statute, that the new
information or changed circumstance “establishes a
reasonable likelihood that consideration of public safety does
not require an additional period of incarceration”—that is,
that the new information or changed circumstance is
reasonably likely to result in a finding of suitability for
parole. In other words, if the Board follows its manual, it will
deny an advance hearing only if it concludes that the inmate
is unlikely to be found suitable for parole in light of all the
24 GILMAN V. BROWN

information presented.14 Such an inmate—one who is likely
unsuitable for parole—by definition is likely not to have
received parole before the enactment of Proposition 9. And an
inmate who was unsuitable a year ago and as to whom
nothing has changed, similarly, was as unlikely to obtain
parole before Proposition 9 as he is after. Cf. Morales,
514 U.S. at 512 (“For these prisoners, the amendment simply
allows the Board to avoid the futility of going through the
motions of reannouncing its denial of parole suitability on a
yearly basis.”).

The district court concluded that the Board separated the
“change in circumstances or new information” from parole
suitability based on “some examples” of PTA denials, in
particular, the denial of prisoner M. Brodheim’s PTA.15

14
Of course, “[a]bsent a demonstration to the contrary, we presume the
Board follows its statutory commands and internal policies in fulfilling its
obligations.” Garner, 529 U.S. at 256.
15
The district court mentioned three other cases. As to prisoner J. Kyne,
the district court discerned that “even under the most skeptical and
jaundiced eye, [Kyne] clearly presents new information and changed
circumstances that addressed his suitability for parole.” Two problems
emerge. First, Cal. Penal Code § 3041.5(d)(1) requires changed
circumstances or new information that establishes the likelihood of
suitability, not that they “address” such suitability. Second, the district
court was again erroneously second-guessing the Board’s decision, see
supra, arrogating to itself the “unfettered discretion” assigned to the Board
by law. Vicks, 295 P.3d at 882; see also Cooke, 562 U.S. at 220.

As to prisoners J. Ferioli and C. Chruniak, the district court
apparently thought that they deserved advance hearings because notations
in their PTA denials suggested that they were “doing well,” even though
the decisionmakers in those cases noted that they did not demonstrate
changed circumstances or new information sufficient to warrant an
advance hearing. If “doing well” since the last denial of parole were
 GILMAN V. BROWN 25

Brodheim did not procure an advance hearing through the
PTA process. He obtained a hearing by successfully
petitioning the district court for a writ of habeas corpus; we
ultimately reversed the decision to grant the writ. While the
appeal of that decision was pending, the Board found
Brodheim suitable for parole but, after we reversed the
improperly granted writ, Brodheim was returned to the same
status as had obtained before the district court’s action. He
then filed a PTA, appending the transcript from the parole
hearing at which he was found suitable for parole, but his
PTA was summarily denied.

It may seem an abuse of discretion to have returned
Brodheim to non-parole status after a hearing had determined
him suitable for parole, even though that hearing was
undeserved. Indeed, Brodheim may have had a state-law
remedy, as Proposition 9 allows PTA denials to be
“review[ed] by a court or magistrate . . . for a manifest abuse
of discretion by the board.” Cal. Penal Code § 3041.5(d)(2).
However, we do not think it is possible to extrapolate from
this single, peculiar example a finding as to how the Board
handled PTAs from Gilman and other class members. The
district court’s inference, based solely on the Brodheim
example, that after Proposition 9, class members face
“incarceration indefinitely, unless the Board finds clear and
convincing evidence of (a) a change in circumstances or new

sufficient grounds to advance a hearing, only inmates misbehaving or not
progressing would be declined advance hearings. The “change in
circumstances” that would entitle murderers and other prisoners sentenced
to life imprisonment to an advance hearing must be “sufficiently
monumental” as to “alter their suitability for release on parole.” Morales,
514 U.S. at 512. Merely “doing well” does not rise to that level. And,
again, it is for the Board, not the district court, to determine whether the
requisite showing has been made to merit an advance hearing.
26 GILMAN V. BROWN

information, and separately, (b) suitability,” is thus
erroneous.

3. Decisions Passed to Next Panel

The district court found that there was a structural barrier
to relief through the PTA process because decisionmakers
denied a few PTAs without explaining whether there was a
reasonable likelihood that further incarceration was not
needed. According to the district court, this “tend[s] to show
that the [Board] viewed certain issues as categorically exempt
from the PTA process, and therefore could only be decided
by panels after the deferral period imposed by the last panel.”

Here, the district court assumed the Board was required
to determine whether an inmate was suitable for parole
whenever he filed a PTA because “that was the only question
[the decisionmaker] had to decide.” The district court did not
consider whether the PTAs it referenced satisfied the
statutory prerequisite: a “change in circumstances or new
information” regarding suitability. Cal. Penal Code
§ 3041.5(d)(1). Indeed, it summarily dismissed the Board’s
finding that the statutory prerequisite had not been met by
labeling the language the decisionmaker checked on the form
order denying the PTA as “boilerplate”:

Denied, after conducting a review of the case
factors and considering the new information
of change in circumstances, the prisoner did
not establish a reasonable likelihood that
consideration of the public and victim’s safety
does not require the additional incarceration.
 GILMAN V. BROWN 27

That the Board may have decided to give additional reasons
for its decision in other portions of its form order does not
mean that the checked box’s language is inadequate to
establish that the Board made a decision on suitability, there
and then. It does not mean that the Board made no decision
as to the PTA by engaging in a “categorical exemption,” as
found by the district court in its claim that the Board had not
exercised its discretion.16

In the example of a “boilerplate” denial cited by the
district court, inmate T. Nguyen’s “reason for denial” was
first that he had not met the “change in circumstance or new
information” requirement regarding suitability, and then that,
not having met the requirement, the next regularly scheduled
panel could consider his parole-suitability factors. The district
court’s reading of Nguyen’s PTA denial was selective and
does not support the inference that requiring further findings
at the next scheduled hearing is evidence that there is a
“categorical exemption” structural barrier to PTA grants,
whereby the Board does not exercise its discretion to deny a

16
Notably, in a different context—habeas review of state convictions
and sentences—we are required to treat a summary denial of a
discretionary appeal as a decision on the merits and determine whether
there exist reasons that could have supported the decision. See Harrington
v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been
presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the
contrary.”). Although habeas jurisprudence has no direct application here,
our review of decisions by state parole authorities, like our review of state
convictions and sentences, is limited and recognizes that state actors have
wide latitude in their decisionmaking.
28 GILMAN V. BROWN

PTA, but simply passes the decision to the next regularly
scheduled hearing.17

4. Lack of Annual Comprehensive Risk Assessments

As to some inmates whose mental condition is a factor as
to their suitability for parole, a psychological report, the
CRA, is prepared only once every five years by State-
employed personnel. Since the CRA is prepared only every
five years, the district court found that a PTA would not be
granted where the inmate had a psychological component to
be evaluated to determine his suitability. It quoted Gilman’s
summation that “any prisoner who is denied parole in part
because of the CRA has no chance of obtaining an advanced
hearing.” This finding was in error for two reasons. First,
nothing prohibits a prisoner from procuring his own CRA
using private resources. Second, the State points out that a
CRA is not required for a PTA; the inmate-petitioner can
address whatever issues were in his previous CRA through a
personal statement to the Board, self-help programming, or
evidence other than a psychological report.

17
To the contrary, Nguyen’s PTA denial and the two others referenced
by the district court suggest that the decisionmaker reviewed the PTAs and
determined that the inmates were not suitable for parole in light of the
reasons given by the Board for denying parole at the prior hearing. Cf.
Morales, 514 U.S. at 507 (holding that a statutory change did not violate
the Ex Post Facto Clause when it “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” and was passed “merely to relieve the Board from the
costly and time-consuming responsibility of scheduling parole hearings for
prisoners who have no reasonable chance of being released” (internal
quotation marks and brackets omitted)).
 GILMAN V. BROWN 29

5. Lack of Translation Services

The district court found a structural defect in the PTA
process based on one inmate’s claim that, after his petition
with some Spanish language documents had passed an initial
review, full review was denied until the documents were
translated. However, the district court noted evidence that
prisoners who need translation services are given such
assistance with their PTAs. Rather than making a finding that
class members were denied translation services, the district
court found no facts to sustain its determination that
translation services are unavailable. Instead, the district court
ruled: “If in fact, no translation services are provided at the
PTA stage, then the PTA process is illusory for those
prisoners who communicate only in Spanish.” (Emphasis
added.) Quite obviously, unless a fact is found to exist, the
supposition that it might exist is not a basis for decision.

6. Conclusions as to the PTA Process

The district court committed legal error by basing its
findings principally on speculation and inference, rather than
concrete evidence demonstrating that the PTA process failed
to afford relief from the classwide risk of lengthened
incarceration posed by Proposition 9. It erred by substituting
its own judgment for the Board’s regarding which PTAs
ought to be granted. And the district court’s findings of
“structural problems” in the PTA process lack sufficient
support in the record. The remaining findings, viewed under
the correct legal standard, are insufficient to support a
conclusion that, on this record, an as-applied Ex Post Facto
Clause violation has occurred. We therefore reverse the
district court’s findings and injunction as to Proposition 9.
30 GILMAN V. BROWN

IV. Conclusion

For these reasons, we reverse the judgment of the district
court and order the district court to enter judgment for the
State of California.

REVERSED and REMANDED with instructions