Full opinion text
Opinion CANTIL-SAKAUYE, C. J. In 2008, California voters approved Proposition 9, the Victims’ Bill of Rights Act of 2008: Marsy’s Law. The changes enacted by Marsy’s Law became effective immediately; pertinent here are the amendments to Penal Code section 3041.5 that increase the period of time between parole hearings but allow for the advancement of a hearing if a change in circumstances or new information subsequently establishes that there is a reasonable probability the prisoner is suitable for parole. Petitioner Michael D. Vicks (Vicks) contends that application of these new parole procedures to prisoners who committed their crimes prior to the enactment of Marsy’s Law violates the ex post facto clauses of the federal and state Constitutions. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) He challenges the amendments both on their face and as applied to him. For the reasons set forth below, we reject both of his challenges. I. Facts A. The Underlying Crimes In 1983, Vicks was convicted of numerous violent felonies and sentenced to life in prison with the possibility of parole, consecutive to a determinate term of 37 years eight months. According to the appellate opinion affirming the judgment, which the Board of Parole Hearings (Board) referenced during the parole hearing, Vicks and his accomplice engaged in two crime sprees in April 1983. They confronted their first victim as she was putting groceries into her car in a parking lot. Vicks drove the victim’s car, with the victim inside, to a second parking lot where he blocked a parked car. Vicks’s accomplice put a gun to the side of one of two women who were entering the parked car and took both women’s purses. The accomplice then drove the first victim’s car to a third parking lot and blocked another parked car. Vicks got out, pointed a gun at the driver of the parked car, and demanded his wallet and money. Vicks then approached the passengers, a woman and her six-year-old son, put a gun to the woman’s ribs, and ordered her into the first victim’s car. The woman pushed her son into her own car and got into the first victim’s car. After driving for a few minutes, the accomplice stopped the car. The two women, whose heads were covered, were led into a canyon area, where they were separated. Vicks, his accomplice, and a third man were present. The women were repeatedly sexually assaulted. The three men then ran away. Less than two weeks later, Vicks and his accomplice forced two women at gunpoint into a car belonging to one of the women, then blocked a third woman’s car and stole the third woman’s purse. After they drove away, the accomplice placed the hand of one of the women on his erect penis. The two women then fought their way out of the car, hitting the accomplice in the head with his gun during the fight, and leaving their purses behind. That evening, Vicks and his accomplice went to Vicks’s cousin’s apartment. The cousin saw the two looking through women’s purses and removing money from them. The accomplice, whose head was bleeding, said that he and Vicks “had just gotten into a crazy incident.” The accomplice told Vicks’s cousin that he had asked one of the women to orally copulate him, and described a fight that ended with the women’s escape. The cousin drove Vicks and his accomplice onto a freeway where Vicks threw the purses out of the car. When the purses were returned by the police to the victims, one purse contained a paper with the name of Vicks’s cousin on it. The cousin informed the police that Vicks and the accomplice brought the purses to the cousin’s house after the women had jumped out of the car nearby. B. Parole Hearing Vicks began serving his life term on March 13, 2003. His minimum eligible parole date was March 14, 2010, and his initial parole suitability hearing was held on February 3, 2009. Applying section 3041.5 as amended by Marsy’s Law in 2008, the Board found him unsuitable for parole, and further concluded that he should be denied another parole hearing for five years. In announcing the Board’s decision, the presiding commissioner noted that Vicks’s offenses involved “a series of horrific crimes that happened over a very short period. Your position is that it wasn’t you and you did not participate in that, other than finding several of the victim’s purses and failing to turn them in.” The commissioner noted that the Board accepts the facts found in the criminal prosecution, and observed that “[tjhese are the kinds of crimes that psychologically last a lifetime . . . .” He added that “the offense was carried out dispassionately and certainly there was a level of calculation to the execution .... The offense was carried out in a manner that demonstrates disregard for human suffering and the motive was apparently self-gratification and financial gratification as well.” The commissioner stated that Vicks’s prior criminal history “did not weigh heavily into our decision, because it was frankly a long time ago and most of the issues were nonviolent . . . .” He also stated that “you’ve done a marvelous job on yourself,” and “[y]ou have remained in a very good status with regard to your disciplines ...” He explained that “[o]ur biggest concern with you, sir, is your level of insight, it’s difficult for us to measure that when you’ve been convicted and it is a horrific crime in nature and you find yourself not coming to grips in any way, shape or form with that, other than you found yourself in possession of purses.” He added that individuals sometimes have difficulty coming to grips with the kinds of crimes Vicks committed, and that “[i]f that’s what your struggle is, we wish you well, sir.” The commissioner also stated that Vicks needed to reduce some of the ratings in his psychological evaluation. Finally, with respect to the date of Vicks’s next parole suitability hearing, the presiding commissioner stated that the commissioners “discussed at length what we thought would be appropriate and at this point we have reached a conclusion that a five-year denial is the appropriate denial . . . .” Vicks challenged the decision by filing a petition for writ of habeas corpus in San Diego County Superior Court, which the superior court denied on December 10, 2009. Vicks then filed a petition for writ of habeas corpus in the Court of Appeal. On May 11, 2011, following issuance of an order to show cause and briefing, the Court of Appeal, with one justice dissenting, filed an opinion vacating the Board’s order to' the extent the order deferred Vicks’s subsequent parole suitability hearing for five years. The majority concluded that the changes enacted by Marsy’s Law to the scheme for setting parole hearings violate ex post facto principles as applied to prisoners who committed their crimes prior to the enactment of Marsy’s Law. It directed the Board to issue a new order scheduling the hearing in accordance with the provisions of section 3041.5 in effect in 1983, which generally entitled a prisoner to an annual parole hearing but allowed deferrals of no more than three years in specified circumstances. We granted review to address whether section 3041.5, as amended by Marsy’s Law, may be applied to life inmates convicted before the effective date of the amendments without violating the ex post facto clauses of the state and federal Constitutions. H. Discussion A. Marsy’s Law 1. Overview of Marsy’s Law Marsy’s Law, which was enacted by the voters in November 2008, was named after a young woman who was murdered in 1983. (Prop. 9, reprinted at Historical Notes, 1E West’s Ann. Cal. Const. (2012) foll. art. I, § 28, p. 9.) According to the measure’s uncodified findings and declarations (Prop. 9, Findings), following the arrest of Marsy’s murderer, “ ‘. . . Marsy’s mother was shocked to meet him at a local supermarket. . .’ ” after he was released on bail without Marsy’s family’s receiving notice or opportunity to express opposition to his release. (Id.., f 7.) “ ‘Several years after his conviction and sentence to “life in prison,” the parole hearings for his release began. In the first parole hearing, Marsy’s mother suffered a heart attack fighting against his release. Since then Marsy’s family has endured the trauma of frequent parole hearings and constant anxiety that Marsy’s killer would be released.’ ” (Id., 1 8.) The law was “ ‘written on behalf of [Marsy’s family], who were often treated as though they had no rights, and inspired by hundreds of thousands of victims of crime who have experienced the additional pain and frustration of a criminal justice system that too often fails to afford victims even the most basic of rights.’ ” (Id., f 2.) The measure’s findings express a number of grievances, including the failure to build adequate prisons and jails, the early release of inmates “ ‘after serving as little as 10 percent of the sentences imposed’ ” (Prop. 9, Findings, f 4, 1E West’s Ann. Cal. Const., supra, at p. 9), the pain caused victims’ families by frequent parole hearings, the failure of the criminal justice system to give victims “ ‘notice of important hearings in the prosecutions of their criminal wrongdoers, failure to provide them with an opportunity to speak and participate, failure to impose actual and just punishment upon their wrongdoers, and failure to extend to them some measure of finality to the trauma inflicted upon them by their wrongdoers.’ ” (Id., ][ 9; see id., f 5.) Among the measure’s stated purposes are to “ ‘[pjrovide victims with rights to justice and due process’ ” (Prop. 9 Purposes, § 3, ¶ 1, 1E West’s Ann. Cal. Const., supra, at p. 9), and to “ ‘eliminat[e] parole hearings in which there is no likelihood a murderer will be paroled ....’” (Id., ¶ 2.) According to the measure, “ ‘ “Helter Skelter” inmates Bruce Davis and Leslie Van Houghton, two followers of Charles Manson convicted of multiple brutal murders, have had 38 parole hearings during the past 30 years.’ ” (Prop. 9, Findings, | 6.) Marsy’s Law includes both constitutional and statutory amendments. The constitutional provisions recognize various rights of victims of crime and of the people of California, including the right to expect that crimes will be thoroughly investigated, and that criminals will be tried in a timely manner and “sufficiently punished in both the manner and the length of the sentences imposed.” (Cal. Const., art. I, § 28, subd. (a)(5); see id., subd. (a)(4).) The provisions also state that “[l]engthy appeals and other post-judgment proceedings that challenge criminal convictions, frequent and difficult parole hearings that threaten to release criminal offenders, and the ongoing threat that the sentences of criminal wrongdoers will be reduced, prolong the suffering of crime victims for many years after the crimes themselves have been penetrated.” (Id., subd. (a)(6).) The provisions recognize a right of crime victims to notice of and to be present at “all public proceedings ... at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings . . . .” (Id., subd. (b)(7).) They afford a right “[t]o be heard ... at any proceeding . . . involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.” (Id., subd. (b)(8).) They also entitle victims to provide and receive information related to sentencing of a defendant. (Id., subd. (b)(10), (11).) With respect to parole, the provisions afford victims the right “[t]o be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified ... of the parole or other release of the offender.” (Id., subd. (b)(15.) Most of the law’s statutory amendments relate to parole. As described more fully below, Marsy’s Law amended section 3041.5 to increase the time between parole hearings, absent a finding by the Board that an earlier hearing is appropriate. It also amended section 3042 to expand the rights of victims to present information to the Board, and to require the Board to consider the “entire and uninterrupted” statements of victims, their families and their representatives. (§ 3043, subd. (d).) It added section 3044, which specifies that in the event a parolee’s parole is revoked, the parolee shall not be entitled to any procedural rights other than those specified in that section. Finally, it added section 679.026, which requires law enforcement agencies to take specified steps to inform crime victims of their rights under Marsy’s Law. 2. Amendments to section 3041.5 affecting the time within which Vicks’s parole hearing must be held In 1983, at the time Vicks committed the crimes for which he is incarcerated, section 3041.5 required the Board of Prison Terms to provide annual parole hearings following the initial hearing, except that a hearing could be deferred for (1) up to two years “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” or (2) up to three years “if the prisoner has been convicted ... of more than one offense which involves the taking of a life, 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.” (§ 3041.5, subd. (b)(2), as amended by Stats. 1982, ch. 1435, § 1, p. 5474.) Thus, at the time Vicks committed his crimes, he was entitled to an annual parole hearing unless the Board found that it was not reasonable to expect that he would be granted parole in a year, in which case his parole hearing could be deferred for up to two years. As amended in 2008 by Marsy’s Law, section 3041.5 establishes longer deferral periods following the denial of parole than did the statute in 1983. The deferral periods range from a default period of 15 years to a minimum of three years. More specifically, the next hearing is to occur in 15 years, “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.” (§ 3041.5, subd. (b)(3)(A).) If the Board makes such a finding, the next hearing shall be in 10 years unless the Board finds, again by clear and convincing evidence and considering the same criteria and considerations, that a period of more than seven years is not required. (§ 3041.5, subd. (b)(3)(B).) In that event, the next hearing shall be in three, five, or seven years. (§ 3041.5, subd. (b)(3)(C).) The Board is required to “considerQ the views and interests of the victim” before selecting the appropriate deferral period. (§ 3041.5, subd. (b)(3).) Although the amendments mandate longer deferral periods after the Board declines to set a parole date, they also give the Board discretion to advance the date of the next parole suitability hearing “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” by the statutory deferral periods. (§ 3041.5, subd. (b)(4).) In addition, “[a]n inmate may request that the board exercise its discretion to advance a hearing ... to an earlier date, by submitting a written request to the board, with notice, upon request, and a copy to the victim which shall set 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.” (§ 3041.5, subd. (d)(1).) The Board may summarily deny a petition to advance if the petition does not comply with these requirements, or if, in the judgment of the Board, the change in circumstances or new information is insufficient to justify the Board’s exercising its discretion under subdivision (b)(4). (§ 3041.5, subd. (d)(2).) Section 3041.5 does not expressly address what other actions the Board may take in response to a written request, but if the petition sets forth 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 of the inmate,” the Board has authority under subdivision (b)(4) to hold a parole suitability hearing at an earlier date than was set when parole was previously denied. Section 3041.5 provides that “[a]n inmate may make only one written request [to advance a hearing] during each three-year period.” (§ 3041.5, subd. (d)(3).) The three-year period is calculated from one of two start dates: “Following either [1] a summary denial of [an inmate’s] request ... or [2] the decision of the board after a hearing described in subdivision (a) to not set a parole date, the inmate shall not be entitled to submit another request for a hearing pursuant to subdivision (a) until a three-year period of time has elapsed from the summary denial or decision of the board.” (§ 3041.5, subd. (d)(3).) The Court of Appeal interpreted this timing provision “to set a three-year ‘blackout’ period for an inmate to trigger the advanced hearings safeguard, because that section states that ‘[f] olio wing either a summary denial of a request made pursuant to paragraph [(d)(1)], or the decision of the board after a hearing described in [section 3041.5, subdivision (a)] to not set a parole date, the inmate shall not be entitled to submit another request for a hearing pursuant to [section 3041.5, subdivision (a)] until a three-year period of time has elapsed from the summary denial or decision of the board.’ (§ 3041.5, subd. (d)(3), italics added.) Because a regularly scheduled parole suitability hearing results (as it did here) in a ‘decision of the board after a hearing described in [section 3041.5, subdivision (a)] to not set a parole date,’ the statute appears to impose a three-year blackout period for an inmate to petition for an advanced hearing when parole is denied following a regularly scheduled suitability hearing.” We disagree with this interpretation, and conclude that section 3041.5, subdivision (d) does not prohibit an inmate from making a written request to advance a parole suitability hearing within three years after a regularly scheduled hearing at which parole is denied. As noted above, if a written request complies with the statutory requirements and sets forth 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 of the inmate” (§ 3041.5, subd. (d)(1)), the Board presumably will hold a parole suitability hearing at an earlier date than was set when parole was previously denied. Thus, there are two possible outcomes of a written request—denial of the request or an earlier parole hearing. If the request is denied, the inmate may not make another request for three years. Similarly, if the Board holds an earlier parole suitability hearing—“a hearing described in subdivision (a)”—rather than denying the request, and it declines to set a parole date after the hearing, the inmate may not make another request for three years after this more recent decision of the Board. (§ 3041.5, subd. (d)(3).) In light of the reference to “another” request, it appears that subdivision (d)(3) calculates the three-year period from the date on which a request for an earlier hearing is finally resolved, i.e., from (1) the date of the summary denial or (2) the date of the advanced hearing at which the setting of a parole date is again denied. Therefore, a prisoner may make his or her first request for a new hearing at any time following the denial of parole at a regularly scheduled hearing, and then may make another request every three years. B. Prohibition on ex post facto laws The United States Constitution states: “No state shall... pass any . . . ex post facto law . . . .” (U.S. Const., art. I, § 10, cl. 1.) The California Constitution also provides that an “ex post facto law . . . may not be passed.” (Cal. Const., art. I, § 9.) Our California provision provides the same protections and is analyzed in the same manner as the federal provision. (In re Rosenkrantz (2002) 29 Cal.4th 616, 640, fn. 6 [128 Cal.Rptr.2d 104, 59 P.3d 174] (Rosenkrantz).) Therefore, we may look to federal law in analyzing Vicks’s challenge under both the federal and state provisions concerning ex post facto laws. The purpose of the ex post facto doctrine is to ensure fair notice of the conduct that constitutes a crime and of the punishment that may be imposed for a crime. (Rosenkrantz, supra, 29 Cal.4th at p. 638.) Therefore, it is “aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ [Citations.]” (California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 504 [131 L.Ed.2d 588, 115 S.Ct. 1597] (Morales).) “Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of [the prohibition on retroactive increases in punishment], [Citations.] Whether retroactive application of a particular change in parole law respects the prohibition on ex post facto legislation is often a question of particular difficulty when the discretion vested in a parole board is taken into account.” (Garner, supra, 529 U.S. at p. 250.) Two United States Supreme Court opinions are particularly pertinent to our inquiry—Morales, which considered California’s 1981 increase in the potential deferral period between parole suitability hearings, and Gamer, which reviewed Georgia’s increase in its potential deferral period. In each case, the court identified the controlling inquiry as “whether retroactive application of the change . . . created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” (Garner, supra, 529 U.S. at p. 250, quoting Morales, supra, 514 U.S. at p. 509.) As discussed below, however, the high court undertook somewhat different approaches in the two cases in evaluating whether the change created a sufficient risk of increasing a prisoner’s period of incarceration. The analysis in Morales focused on details of California’s 1981 amendment demonstrating that the change was unlikely to result in longer incarceration. In contrast, Gamer focused on the broad discretion held by Georgia’s parole board, a power that includes the authority “to change and adapt based on experience.” (Garner, supra, 529 U.S. at p. 253.) We begin with Morales, supra, 514 U.S. 499. Prior to the 1981 amendment considered in Morales, a prisoner who was denied parole at his or her first parole suitability hearing was entitled to a subsequent suitability hearing annually. The 1981 amendment “authorized the Board to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of ‘more than one offense which involves the taking of a life’ and if 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.’ [Citation.]” (Id. at p. 503.) The high court began its analysis by rejecting the prisoner’s reliance on three cases in which a violation of the ex post facto clause was found: Lindsey v. Washington (1937) 301 U.S. 397 [81 L.Ed. 1182, 57 S.Ct. 797], which addressed a law that altered the sentence for the defendant’s crime from “not more than fifteen years” to a sentence of 15 years; Miller v. Florida (1987) 482 U.S. 423 [96 L.Ed.2d 351, 107 S.Ct. 2446], which addressed an increase in the presumptive sentencing range; and Weaver v. Graham (1981) 450 U.S. 24 [67 L.Ed.2d 17, 101 S.Ct. 960], which addressed a reduction in the credit prisoners earned toward their time served through good behavior in prison. “In contrast to the laws at issue in Lindsey, Weaver, and Miller (which had the purpose and effect of enhancing the range of available prison terms, [citation]), the evident focus of the California amendment was 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. [Citation.] Rather than changing the sentencing range applicable to covered crimes, the 1981 amendment simply ‘alters the method to be followed’ in fixing a parole release date under identical substantive standards. [Citations.]” (Morales, supra, 514 U.S. at pp. 507-508.) The high court also rejected the view that “any legislative change that has any conceivable risk of affecting a prisoner’s punishment” should be held to violate the ex post facto clause. (Morales, supra, 514 U.S. at p. 508.) “Under respondent’s 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 . . . .” (Ibid.) Instead, “the question of what legislative adjustments ‘will be held to be of sufficient moment to transgress the constitutional prohibition’ must be a matter of ‘degree.’ [Citation.] In evaluating the constitutionality [of a change], we must determine whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” (Id. at p. 509.) The court concluded the Board’s new authority to defer hearings created only a speculative possibility of increasing a prisoner’s punishment. “First, the amendment applies only to a class of prisoners for whom the likelihood of release on parole is quite remote” (Morales, supra, 514 U.S. at p. 510), prisoners who had been convicted of “more than one offense which involves the taking of a life.” (§ 3041.5, former subd. (b)(2); Stats. 1981, ch. 1111, § 4, p. 4339.) In support of its conclusion, it cited statistics from our opinion in In re Jackson (1985) 39 Cal.3d 464, 473 [216 Cal.Rptr. 760, 703 P.2d 100], that “90% of all prisoners are found unsuitable for parole at the initial hearing, while 85% are found unsuitable at the second and subsequent hearings. [Citation.] In light of these numbers, the amendment ‘was seen as a means “to relieve the [Board] from the costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no chance of being released.” ’ [Citation.]” (Morales, supra, 514 U.S. at p. 511.) Second, the amendment was carefully tailored to the purpose of reducing the number of futile hearings. The timing of the initial parole suitability hearing remained the same; only after the Board had concluded at a parole hearing that (1) the prisoner was not suitable for parole and (2) it was not reasonable to expect that the prisoner would be suitable for parole in a year would the timing of a prisoner’s hearings be affected. In addition, the Board was required to conduct a full hearing and state the bases of its finding, and there appeared to the high court to be an opportunity for an administrative appeal. “Moreover, the Board retains the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner.” (Morales, supra, 514 U.S. at p. 511.) The court concluded: “In light of the particularized findings required under the amendment and the broad discretion given to the Board, the narrow class of prisoners covered by the amendment cannot reasonably expect that their prospects for early release on parole would be enhanced by the opportunity of annual hearings.” (Id. at p. 512.) In response to the contention that there was a possibility a prisoner would have a change in circumstances that would render him or her suitable for parole earlier than the scheduled hearing, the court stated that Morales had failed “to provide any support for his speculation that the multiple murderers and other prisoners subject to the amendment might experience an unanticipated change that is sufficiently monumental to alter their suitability for release on parole.” (Morales, supra, 514 U.S. at p. 512.) Assuming a prisoner might experience such a change, the court found no basis in the record “for concluding that [such] a prisoner . . . would be precluded from seeking an expedited hearing from the Board.” (Ibid.) On the contrary, this court had suggested in In re Jackson, supra, 39 Cal.3d at page 475, that the Board had discretion to advance a hearing, and the brief of the California Department of Corrections in Morales informed the high court that “the Board’s ‘practice’ is to ‘review for merit any communication from an inmate asking for an earlier suitability hearing ....’” (Morales, supra, at pp. 512-513.) The court concluded that “[a]n expedited hearing by the Board . . . would remove any possibility of harm even under the hypothetical circumstances suggested by [Morales].” (Id. at p. 513.) Finally, the court concluded that “[e]ven if a prisoner were denied an expedited hearing, there is no reason to think that such postponement would extend any prisoner’s actual period of confinement.” (Morales, supra, 514 U.S. at p. 513.) In support of its conclusion, the court cited our explanation in In re Jackson, supra, 39 Cal.3d at page 474, that a finding of suitability for parole rarely leads to a prisoner’s immediate release, and may be followed by years of incarceration until the prisoner serves the minimum period of incarceration required by law. If a prisoner becomes suitable for parole before the next regularly scheduled hearing, “the Board retains the discretion to expedite the release date of such a prisoner. Thus, a prisoner who could show that he was ‘suitable’ for parole two years prior to such a finding by the Board might well be entitled to secure a release date that reflects that fact. Such a prisoner’s ultimate date of release would be entirely unaffected by the change in the timing of suitability hearings.” (Morales, supra, at p. 513.) The high court next addressed the validity of an increase in the period between parole hearings in Garner, supra, 529 U.S. 244. Garner involved a prisoner’s challenge to a change in Georgia’s parole law that allowed that state’s parole board to increase the period of time between parole hearings. At the time the prisoner committed his most recent offense, he was entitled to a parole hearing every three years after his initial denial of parole. Thereafter, the law was changed to require a hearing “ ‘at least every eight years’ ” after the initial denial. (Id. at p. 247.) The court began its analysis by noting several principles it had recognized in Morales, supra, 514 U.S. 499. “[N]ot every retroactive procedural change creating a risk of affecting an inmate’s terms or conditions of confinement is prohibited. [Citation.] The question is ‘a matter of “degree.” ’ [Citation.] The controlling inquiry, we determined, was whether retroactive application of the change in California law created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’ [Citation.]” (Garner, supra, 529 U.S. at p. 250.) The court acknowledged the numerous factors it had identified in support of its conclusion in Morales that California’s decrease in the frequency of parole hearings did not violate the ex post facto clause, but it rejected the prisoner’s focus on the differences between Georgia’s amended parole law and the California law reviewed in Morales, such as Georgia’s longer potential deferral and the application of Georgia’s amendment to all prisoners serving life sentences. “These differences are not dispositive. The question is whether the amended Georgia Rule creates a significant risk of prolonging respondent’s incarceration.” (Garner, supra, 529 U.S. at p. 251.) The court reiterated that “the Ex Post Facto Clause should not be employed for ‘the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures.’ [Citation.] These remain important concerns. The States must have due flexibility in formulating parole procedures and addressing problems associated with confinement and release.” (Id. at p. 252.) The court observed that “[t]he case turns on the operation of the amendment . . . within the whole context of Georgia’s parole system.” (Garner, supra, 529 U.S. at p. 252.) It then reviewed Georgia’s parole suitability criteria, which “illustrate[d] the broad discretion the Parole Board possesses in determining whether an inmate should receive early release.” (Id. at p. 253.) Georgia law required the parole board to consider a prisoner’s good conduct, reading ability, and efficient performance of his or her duties. It provided that “ ‘[n]o inmate shall be placed on parole until and unless the board shall find that there is reasonable probability that ... he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society.’ ” (Id. at p. 252.) The law also prohibited parole unless the board was satisfied that the prisoner would have employment or not otherwise become a public burden. “Only upon a showing that the Board engaged in a ‘gross abuse of discretion’ [could] a prisoner challenge a parole denial in the Georgia courts.” (Id. at p. 253.) The court acknowledged that “[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause . . . ,” but added that, to the extent notice of the potential penalty prior to the commission of an offense is an aspect of ex post facto doctrine, “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. [Citation.] The 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 pp. 253-254.) With respect to the concern that discretion would not be exercised during the longer period between hearings, the court noted that “[t]he law changing the frequency of parole reviews is qualified in two important respects. First, the law vests the Parole Board with discretion as to how often to set an inmate’s date for reconsideration, with eight years for the maximum. [Citation.] Second, 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.’ ” (Garner, supra, 529 U.S. at p. 254.) The court concluded that “[t]hese qualifications permit a more careful and accurate exercise of the discretion the Board has had from the outset. Rather than being required to review cases pro forma, the Board may set reconsideration dates according to the likelihood that a review will result in meaningful considerations as to whether an inmate is suitable for release. The Board’s stated policy is to provide for reconsideration at 8-year intervals ‘when, in the Board’s determination, it is not reasonable to expect that parole would be granted during the intervening years.’ [Citation.] The policy enables the Board to put its resources to better use, to ensure that those prisoners who should receive parole come to its attention. By concentrating its efforts on those cases identified as having a good possibility of early release, the Board’s Rules might result in the release of some prisoners earlier than would have been the case otherwise.” (Garner, supra, 529 U.S. at p. 254.) The court rejected the lower court’s view that it “ ‘seem[ed] certain’ ” some prisoners would remain incarcerated for a longer period than under the previous law. “The standard announced in Morales requires a more rigorous analysis of the level of risk created by the change in law. [Citation.] 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.” (Garner, supra, 529 U.S. at p. 255.) The evidence in the record in Garner did not contain adequate information to determine whether the change in the law had lengthened the prisoner’s time of incarceration. The court also faulted the lower court’s failure to consider the parole board’s internal policy statement. “It is often the case that an agency’s policies and practices will indicate the manner in which it is exercising its discretion.” (Garner, supra, 529 U.S. at p. 256.) It noted that “[i]n Morales, we relied upon the State’s representation that its parole board had a practice of granting inmates’ requests for early review. [Citation.] The policy statement here, by contrast, is a formal, published statement as to how the Board intends to enforce its Rule. It follows a fortiori from Morales that the Court of Appeals should not have disregarded the policy. Absent any demonstration to the contrary from respondent, we respect the Board’s representation that inmates, upon making a showing of a ‘change in their circumstance[s]’ or upon the Board’s receipt of ‘new information,’ may request expedited consideration.” (Id. at pp. 256-257.) Finally, the court noted that the prisoner claimed he had not been allowed sufficient discovery, and stated that “[t]he matter of adequate discovery is one for the Court of Appeals or, as need be, for the District Court in the first instance.” (Garner, supra, 529 U.S. at p. 257.) Therefore, it remanded the case for further proceedings. C. Is there a significant risk the changes will prolong a prisoner’s incarceration? As the court observed in Garner, supra, 529 U.S. at page 252, analysis of whether a change in parole procedures violates ex post facto principles requires consideration of how the change operates within the context of the entire parole system. Therefore, we begin with a review of California’s parole system. 1. California’s parole system The power to grant parole lies with the Board. (§§ 3040, 5075 et seq.) A panel of two or more commissioners or deputy commissioners must meet one year prior to a prisoner’s minimum eligible parole release date to consider whether to set a parole date. “The panel. . . 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.” (§ 3041, subd. (b).) Section 3041 directs the Board to “establish criteria for the setting of parole release dates.” (§ 3041, subd. (a).) Pursuant to this directive, the Board has promulgated regulations identifying circumstances that tend to indicate suitability or unsuitability for release on parole. The circumstances identified in the regulations “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, § 2281, subds. (c), (d).) The Board’s regulations identify six circumstances that tend to indicate unsuitability for release on parole: (1) the commitment offense was committed “in an especially heinous, atrocious or cruel manner,” including factors such as multiple victims, a dispassionate and calculated manner, abuse or defilement of the victim, an exceptionally callous disregard for human suffering, and an inexplicable or trivial motive; (2) a previous record of violence, particularly at an early age; (3) a history of unstable or tumultuous relationships; (4) previous sadistic sexual offenses; (5) a lengthy history of severe mental problems related to the crime; and (6) serious misconduct while incarcerated. (Cal. Code Regs., tit. 15, § 2281, subd. (c).) The regulations identify nine circumstances that tend to show suitability for release on parole: (1) the absence of a juvenile record; (2) a history of reasonably stable relationships with others; (3) actions that tend to demonstrate remorse, including attempting to assist the victim and exhibiting an understanding of the nature and magnitude of the crime; (4) the commission of the crime was “the result of significant stress in [the prisoner’s] life, especially if the stress had built over a long period of time”; (5) the actions were the result of “Battered Woman Syndrome”; (6) the absence of a significant criminal history; (7) “[t]he prisoner’s present age reduces the probability of recidivism”; (8) “[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release”; and (9) activities in prison that “indicate an enhanced ability to function within the law upon release.” (Cal. Code Regs., tit. 15, § 2281, subd. (d).) The Board applies these criteria to “attempt to predict by subjective analysis whether file inmate will be able to live in society without committing additional antisocial acts. [Citation.] ‘The [Board’s] exercise of its broad discretion “involves the deliberate assessment of a wide variety of individualized factors on a case-by-case basis, and the striking of a balance between the interests of the inmate and of the public.” [Citation.]’ [Citation.] ‘The [Board’s] discretion in parole matters has been described as “great” [citation] and “almost unlimited” [citation].’ [Citation.]” (Rosenkrantz, supra, 29 Cal.4th at p. 655.) The Board’s discretion is limited only by the requirements that it provide an individualized consideration of all relevant factors, provide a written statement that sets forth its reasons for denying a parole date, and not render an arbitrary decision. (Ibid.) If the Board determines a prisoner is suitable for parole, it then sets a parole date. “The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude with 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.” (§ 3041, subd. (a).) Pursuant to section 3041, the Board has promulgated regulations that establish criteria for setting parole release dates, including regulations that establish a life prisoner’s “total life term.” (See Cal. Code Regs., tit. 15, §§ 2285-2289.) The Board’s regulations require the panel to set a “base term,” which the panel derives by considering all of the circumstances of the most serious of the life offenses the prisoner committed. The regulations set forth matrices of factors that determine the lower, middle, and upper base terms for particular crimes. “The panel shall impose the middle base term reflected in the matrix .unless the panel finds circumstances in aggravation or mitigation.” (Cal. Code Regs., tit. 15, § 2282, subd. (a); see generally In re Dannenberg (2005) 34 Cal.4th 1061, 1078-1079 [23 Cal.Rptr.3d 417, 104 P.3d 783].) Circumstances in aggravation include such factors as the vulnerability of the victim, whether there was a special relationship of confidence and trust with the victim, and the prisoner’s leadership role in the crime. (Cal. Code Regs., tit. 15, § 2283, subd. (a).) Circumstances in mitigation include such factors as whether the prisoner was induced by others to commit the crime, whether the prisoner tried to help the victim, and whether the crime was committed in unusual circumstances unlikely to reoccur. (Id., § 2284.) After the panel determines the base term through consideration of the matrices and any aggravating or mitigating circumstances, it adds terms for personal use of a firearm and for other offenses, resulting in a total life term. (Id., §§ 2285-2289.) If the prisoner has already served more time than the total life term calculated pursuant to the regulations, the prisoner is to be transferred from prison to parole supervision in the community, but the release date may not be earlier than the period during which the Board and the Governor may review parole decisions, which is described below. (Cal. Code Regs., tit. 15, § 2289; see, e.g., In re Lawrence (2008) 44 Cal.4th 1181, 1199 [82 Cal.Rptr.3d 169, 190 P.3d 535] [appropriate term calculated pursuant to the matrices was less than half of the prisoner’s nearly 24 years in prison]; In re Bush (2008) 161 Cal.App.4th 133, 138-139 [74 Cal.Rptr.3d 256] [prisoner whose base term was 12 years six months had custody credits exceeding 20 years when he was found suitable for parole]; see also Cal. Criminal Law; Procedure and Practice (Cont.Ed.Bar 2011) § 47.46, p. 1555 [“It is very common that when a lifer is found suitable, he or she has already served time under the appropriate matrix.”].) If the prisoner has not yet served the appropriate term calculated pursuant to the regulations, a proposed release date will be set. If that date is 10 months or longer after the hearing at which the prisoner is found suitable for parole, a progress hearing will be held a specified number of months before the parole date to determine whether the parole date should be advanced based upon good conduct in prison. (Cal. Code Regs., tit. 15, § 2269.) The proposed decision becomes final 120 days after the hearing. During the 120-day period, the Board may review the decision. (§ 3041, subd. (b).) “Any person on the hearing panel may request review of any decision regarding parole for an en banc hearing by the board.” (§ 3041, subd. (a).) In addition, by regulation, proposed grants of parole and a random sample of proposed denials of parole must be reviewed by the Board’s chief counsel or a designee. If the chief counsel recommends a modification to the decision that is adverse to the prisoner, the recommendation “shall be referred to the full board for en banc review.” (Cal. Code Regs., tit. 15, § 2041, subd. (h).) The chief counsel may also recommend a new hearing, but “[n]o proposed decision shall be referred for a new hearing without a majority vote of the board following a public hearing.” (Ibid.) “The panel’s decision shall become final. . . unless the board finds that the panel made an error of law, or that the panel’s decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing.” (§ 3041, subd. (b).) Unlike the scheme considered in Morales, supra, 514 U.S. 499, the current scheme does not have provisions for an administrative appeal of a decision denying parole. (Cal. Code Regs., tit. 15, former §§ 2050-2057 [repealed Apr. 15, 2004].) During the 30-day period following finality of the Board’s decision, when the commitment offense is murder, the Governor “may only affirm, modify, or reverse the decision ... on the basis of the same factors which the [Board] is required to consider.” (Cal. Const., art. V, § 8, subd. (b); see § 3041.2.) The Governor’s discretion with respect to parole decisions is as broad as the Board’s discretion. The Governor’s “decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious,” but “[Resolution of any conflicts in the evidence and the weight to be given the evidence” and “the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor . . . .” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) “Although ‘the Governor’s decision must be based upon the same factors that restrict the Board in rendering its parole decision’ [citation], the Governor undertakes an independent, de novo review of the inmate’s suitability for parole [citation]. Thus, the Governor has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety.” (In re Lawrence, supra, 44 Cal.4th 1181, 1204.) The decisions of the Board and of the Governor are subject to the same level of judicial scrutiny: a court inquires whether there is “some evidence” related to the relevant factors that supports the decision. (Rosenkrantz, supra, 29 Cal.4th at pp. 658, 667.) Because “the fundamental consideration in parole decisions is public safety . . .” (In re Lawrence, supra, 44 Cal.4th at p. 1205), “the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings” (id. at p. 1212). “It is settled that under the ‘some evidence’ standard, ‘[o]nly a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of [the Board or] the Governor. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of [the Board or] the Governor .... It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the . . . decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the . . . decision.’ [Citations.]” (In re Shaputis (2011) 53 Cal.4th 192, 210 [134 Cal.Rptr.3d 86, 265 P.3d 253].) 2. Analysis a. Facial challenge With this background, we consider whether Marsy’s Law “creates a significant risk of prolonging [Vicks’s] incarceration.” (Garner, supra, 529 U.S. at p. 251; see Morales, supra, 514 U.S. at p. 509 [“we must determine whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes”].) Marsy’s Law did not change the timing of the first parole suitability hearing, the factors to be considered in deciding whether a prisoner is suitable for parole, the criteria for setting a parole date once a prisoner is found suitable for parole, or the standard of review of parole decisions. As explained above, Marsy’s Law eliminated the requirement that Vicks’s next parole hearing be set annually or deferred at most up to two years if it was not reasonable to expect that the prisoner would be suitable for parole within a year. Instead, Marsy’s Law prohibits the Board, at the time that a prisoner is found unsuitable for parole, from setting a parole hearing sooner than three years after the finding of unsuitability, and mandates that it set the parole hearing 15 years after the finding of unsuitability, “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.” (§ 3041.5, subd. (b)(3)(A).) If the board makes such a finding, the next hearing shall be in 10 years, unless the board finds by clear and convincing evidence that a period of more than seven years is not required. (§ 3041.5, subd. (b)(3)(B).) In that event, the next hearing shall be in seven, five, or three years. (§ 3041.5, subd. (b)(3)(C).) These changes exceed the revisions considered in Morales, supra, 514 U.S. 499. The provisions of Marsy’s Law apply to all life prisoners, whereas the new parole provisions in Morales applied only to those who had killed more than one person, “a class of prisoners for whom the likelihood of release on parole is quite remote.” (Morales, supra, at p. 510.) Marsy’s Law also deprives the Board of discretion at the outset to schedule the "next parole hearing in less than three years, whereas the amendments considered in Morales retained the one-year deferral period unless the Board found that it was not reasonable to expect that the prisoner would be suitable for parole in a year. In addition to shifting the presumption from the shorter deferral period to a longer deferral period, Marsy’s Law imposes a heightened evidentiary standard upon the Board that must be met before it may initially schedule a hearing sooner than the default period of 15 years. As we have noted, however, in Garner, supra, 529 U.S. 244, the Supreme Court rejected the prisoner’s focus on the differences between the changes considered in Morales and the changes in Georgia’s parole scheme challenged in Garner. “These differences are not dispositive. The question is whether the amended Georgia Rule creates a significant risk of prolonging [the prisoner’s] incarceration.” (Garner, supra, at p. 251.) The high court recognized that the broad discretion associated with the function of determining when a prisoner may be released on parole encompasses discretion “to change and adapt based on experience.” (Id. at p. 253.) Thus, the issue is not whether the manner in which discretion is exercised has been changed but whether, “in the period between parole reviews, [discretion] will not be exercised at all.” (Id. at p. 254.) Therefore, we focus on whether the changes in the hearing schedule effected by Marsy’s Law create a significant risk that there will be a period between parole reviews when the elimination of a hearing that would have been required under the former law creates a significant risk of prolonging incarceration. We begin with the increase in the minimum period between regularly scheduled parole hearings. The Board has no discretion, at the time parole is denied, to schedule the next hearing as early as had been allowed by the statutory scheme in effect at the time Vicks committed his crimes. Marsy’s Law does, however, give the Board unfettered discretion to advance the date of the next parole hearing “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” by the statutory deferral periods. (§ 3041.5, subd. (b)(4).) These provisions reflect a judgment that the previous schedule for parole hearings had been overly optimistic with respect to the speed with which prisoners become suitable for parole. Rather than assuming that all prisoners may become suitable for parole within a shorter period of time, Marsy’s Law assumes otherwise and takes a “wait and see” approach. Rather than requiring earlier hearings in all cases regardless' of whether there is a reasonable likelihood the prisoner will be suitable for parole, it authorizes earlier hearings only if there is a reasonable likelihood the prisoner no longer poses a threat to society. The Court of Appeal viewed the authority of the Board to advance hearings sua sponte as inadequate to prevent longer periods of incarceration. In its view, “[b]ecause there is no mechanism by which the [Board] might sua sponte generate new information, or any mechanism by which the [Board] might sua sponte learn of either new information or changed circumstances on which it might act, an inmate who would have obtained a new hearing as early as one year after his or her last hearing must now wait a minimum of three years before obtaining a new hearing. Thus, although sua sponte advanced hearings are nominally available, it appears ‘the rule’s practical implementation . . . will result in a longer period of incarceration than under the earlier rule’ (Garner, supra, 529 U.S. at p. 255) because of the absence of any practical method for triggering this advanced hearing.” The portion of Gamer’s analysis on which the Court of Appeal relied relates to a claim that a change in the law, as applied, creates a significant risk of prolonged incarceration. In connection with a facial challenge, Garner identified the inquiry as whether the requisite risk was “inherent in the framework” of the amended scheme. (Garner, supra, 529 U.S. at p. 251.) If the risk is not inherent in the new scheme, then the risk must be “demonstrated on the record.” (Ibid.) In reiterating these two steps of the analysis, the court stated that “[w]hen the [amended scheme] does not by its own terms show a significant risk, the [challenger] 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 [scheme].” (Id. at p. 255.) Thus, in considering a facial challenge, the court’s focus is on any risk inherent in the statutory scheme rather than on the practical implementation of the scheme. Therefore, in Garner, the court identified as an important aspect of Georgia’s scheme “the Board’s policies [permitting] ‘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 p. 254), but in connection with its facial review, the court did not evaluate whether there were mechanisms that would ensure the Board would become aware of changed circumstances or new information that might give rise to expedited parole reviews. Here, the Board has not described to this court any policies or practices it follows with respect to the exercise of its authority to advance hearings, and counsel were unaware at oral argument of any policies or practices related to the Board’s authority. As explained below, however, our review of the new statutory provisions leads us to conclude that the scheme may function in a manner that mitigates the risk that the Board will fail to exercise its discretion at a point in time when it might have exercised its discretion under the prior scheme and concluded that a prisoner was suitable for parole. Therefore, we conclude that a significant risk of prolonging incarceration “is not inherent in the framework” of the parole system as amended by Marsy’s Law. (Garner, supra, 529 U.S. at p. 251.) First, although Marsy’s Law does not require an internal review or evaluation of whether there is a reasonable probability that a prisoner has become suitable for parole at some interim point in the lengthier deferral period, implicit in the Board’s authority to grant parole (§ 3040) and its authority to advance the date of the next parole suitability hearing “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” (§ 3041.5, subd. (b)(4)), is the authority to direct its staff to review a particular prisoner’s circumstances at any time to determine if there is a reasonable likelihood the prisoner is suitable for parole. For example, if the panel is of the view that the prisoner may be suitable for parole in one year, it may direct staff to conduct an intern