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In re Butler

California Court of Appeals, First District, Second Division

May 15, 2015

In re ROY THINNES BUTLER, on Habeas Corpus.

Alameda County Superior Court No. 91694B, Hon. Larry J. Goodman, Trial Judge.

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Jon B. Streeter, Susan J. Harriman, Sharif E. Jacob and Benita A. Brauhmbhatt, under appointments by the Court of Appeal, for Petitioner Roy Thinnes Butler.

Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General, Claudia H. Amaral and Amber N. Wipfler, Deputy Attorneys General, for Respondent The People.


Kline, P.J.

Roy Thinnes Butler, a parole eligible life prisoner, challenged the constitutionality of the process used by the Board of Parole Hearings (Board) to determine whether prisoners such as him are suitable for release on parole. Specifically, he contended that the Board’s practice of deferring the fixing of a prisoner’s base term (which measures individual culpability for the commitment offense) and adjusted base term (which modifies the base term on the basis of factors relating to other offenses) until after he or she is deemed suitable for release, effectively eliminated any meaningful consideration of proportionality in sentencing during the most crucial portion of the parole process, and therefore facilitated imposition of constitutionally excessive punishment.

Before the completion of briefing, the parties settled their dispute by stipulating to an order of this court directing the Board to publicly announce and implement new policies and procedures that would result in the setting of base terms and adjusted base terms at life inmates’ initial parole consideration hearings or, if that hearing had already taken place, at the next hearing resulting in a grant or denial of parole. We have issued that order.

Remaining before the court is petitioner’s motion for an award of reasonable attorney fees under Code of Civil Procedure section 1021.5 (section 1021.5). The motion raises two distinct issues: whether such fees may be awarded under section 1021.5 and, if so, the reasonable amount of such fees.


Claiming that the Board “failed to fix his term at a number of years proportionate to his crime, ” as required by law, Butler’s petition focused on the Board’s regulations and practice of deferring the setting of a base term for a parole eligible life prisoner unless and until he or she is found suitable for release on parole. (Cal. Code Regs., tit. 15 (Regulations), §§ 2282, subd. (a),

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2403, subd. (a).) According to Butler, the challenged practice failed to comport with article I, section 17, of the California Constitution and the Eighth Amendment to the United States Constitution, deprived him and all parole eligible life prisoners a fair parole hearing and the due process guaranteed by the state and federal Constitutions, and obstructed judicial review of claims that the denial of parole resulted in constitutionally excessive punishment.

On January 30, 2012, we ordered the appointment of counsel to represent Butler, investigate and research whether to file a supplemental petition to refine his claim, and determine the need for the discovery Butler sought. On February 11, 2013, we appointed Jon B. Streeter, then a partner in the firm of Keker & Van Nest, counsel for Butler.[1]

On May 28, 2013, appointed counsel filed a supplemental petition for writ of habeas corpus refining the contentions Butler had asserted in his own behalf together with a motion for discovery.[2] We issued an order to show cause on August 9, 2013, but deferred briefing on the constitutional claims until resolution of Butler’s discovery motion. On the same day we issued an order directing the Board to produce some of the materials Butler requested, and directed the parties to meet and confer regarding the remaining requests. On September 9, 2013, after they met and conferred, the parties filed a joint status report.

Several weeks later, after the court conducted an informal discovery conference, counsel for the parties informed the court they wished to commence settlement discussions and requested designation of a justice of another division to facilitate that enterprise. Justice Jim Humes, then a member of Division Four of this court and now Presiding Justice of Division One, agreed to be so designated. Counsel for the parties, as well as the

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executive officer of the Board and its general counsel, participated in three settlement conferences with Justice Humes.

At the final conference, on December 13, 2013, the parties settled the case by stipulating to an order of this court directing, among other things, that: “as soon as is practicable, the Board shall begin implementation of new policies and procedures that will result in the setting of base terms and adjusted base terms for life term inmates at their initial parole consideration hearing, or at the next scheduled parole consideration hearing that results in a grant of parole, a denial of parole, a tie vote, or a stipulated denial of parole.” [3] The stipulation also provided that “the Board will commence rulemaking proceedings designed to memorialize and embody said new policies and procedures.”

On December 16, 2013, upon the request of the parties set forth in their stipulation, this court issued an order directing that “the Board shall, at the next publicly noticed Board meeting, announce a policy of calculating the base term and adjusted base term for all life inmates at the initial parole consideration hearing. The Board will implement this policy on the first day of the calendar month following the aforementioned meeting.”

On October 21, 2014, Butler filed a motion requesting an award of reasonable attorney fees under section 1021.5. The amount sought is $439, 421.65.

The Board maintains the motion is deficient in two respects: that Butler is not entitled to fees “because the ...

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