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In re Butler

Supreme Court of California

April 2, 2018

In re ROY BUTLER on Habeas Corpus.

         Ct.App. 1/2 A139411

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

          Keker & Van Nest, Keker, Van Nest & Peters, Jon B. Streeter, Susan J. Harriman, Benita A. Brauhmbhatt, Sharif E. Jacob, Steven A. Hirsch and Andrea Nill Sanchez for Petitioner Roy Thinnes Butler.

          Heidi L. Rummel, Michael J. Brennan, Anna Faircloth Feingold and Rebecca Brown for USC Gould School of Law Post-Conviction Justice Project as Amicus Curiae on behalf of Petitioner Roy Thinnes Butler.

          William Vogel and Aubrey Grant as Amici Curiae on behalf of Petitioner Roy Thinnes Butler.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Edward C. DuMont, State Solicitor General, Gerald A. Engler, Chief Assistant Attorney General, Jennifer A. Neill and Phillip J. Lindsay, Assistant Attorneys General, Aimee Feinberg, Deputy State Solicitor General, Samuel P. Siegel, Associate Deputy State Solicitor General, Claudia H. Amaral, Amber N. Wipfler, Sara J. Romano and Brian C. Kinney, Deputy Attorneys General, for Respondent the People.

          Mark Zahner; and Richard J. Sachs, Deputy District Attorney (San Diego) for California District Attorneys Association as Amicus Curiae on behalf of Respondent the People.

          CUÉLLAR, J.

         People convicted of noncapital murder and certain other criminal offenses in California serve indeterminate sentences that run from a minimum number of years to life, making release possible before the end of their life. The Board of Parole Hearings (the Board) decides, subject to relevant statutory provisions and review by the Governor, whether such prisoners are suitable for release. This case concerns the interaction of those statutory provisions with a settlement agreement arising from litigation about the Board's procedures. While serving an indeterminate prison term, Roy Butler filed a petition for writ of habeas corpus on December 12, 2012, alleging in part that the Board had a responsibility to avoid parole determinations leading to grossly disproportionate prison terms. In 2013, petitioner Roy Butler and respondent, the Board, agreed to a settlement requiring the Board to calculate the “base terms” of an inmate serving an indeterminate sentence for use at the inmate's initial parole hearing. At the time of the settlement agreement, “base terms” governed the earliest possible release date for inmates serving indeterminate sentences. Since then, changes to California's criminal justice system have altered the relevant statutory landscape, such that “base terms” no longer govern the release date of inmates subject to indeterminate sentences.

         The question before us is whether those statutory developments warrant modification of the settlement order to relieve the Board of any separate obligation to calculate “base terms” under the agreement. The Court of Appeal concluded the answer was no, so the settlement order could remain in force despite the statutory changes. We disagree. The settlement agreement was premised on the idea that “base terms” played some role -- defined by statute -- in determining release dates for those sentenced to indeterminate terms. Given this premise, the elimination of “base term” calculations from any such role is a sufficiently material change that it not only justifies - but in this case, requires - modification of the settlement by the Court of Appeal.

         The Court of Appeal also concluded that specific “base term” calculations were necessary to assure life prisoners would not suffer constitutionally excessive punishment. Here too, we differ with the appellate court. Base term calculations no longer play a role in the public safety assessments undertaken by the Board to determine the release dates for inmates sentenced to indeterminate terms, and are not designed or obviously well-suited as a tool for avoiding unconstitutionally long terms of incarceration. And, at least to some extent, these inmates are protected against disproportionate punishment through other means, such as provisions ending indeterminate sentences when individuals have served the statutory minimum term and have been found suitable for release. In light of the state's current sentencing regime and the existence of parole procedures focusing on public safety determinations, the Board is not constitutionally required to continue calculating base terms as required in the settlement order. Accordingly, we reverse the Court of Appeal.

         I.

         Petitioner Roy Butler was convicted of second degree murder in 1988.What Butler told detectives at the time of his arrest is that he and acquaintance Lanzester Hymes decided to attack Richard Davis because Davis had been abusing his girlfriend Jane Woods, a friend of Butler's. On September 28, 1987, Butler and Hymes armed themselves with knives and went to the apartment that Davis, Hymes, and Woods shared. According to Butler, he was hiding inside the bathroom when Hymes fatally stabbed Davis. After Butler pleaded guilty, he received a sentence of 15 years to life. Butler became eligible for parole in 1997, but the parole authority denied his application for parole at that hearing and at several subsequent hearings. After the Board denied his application at a hearing in February 2012, Butler filed a petition for writ of habeas corpus, which led to the case before us.

         Prior to 1977, California used an “indeterminate” sentencing regime for the vast majority of felonies. (In re Dannenberg (2005) 34 Cal.4th 1061, 1077 (Dannenberg).) Under this system, courts “imposed a statutory sentence expressed as a range between a minimum and maximum period of confinement - often life imprisonment - the offender must serve.” (Ibid.) The state agency in charge of parole (then called the Adult Authority) had exclusive control over the period of incarceration the inmate actually served, so inmates had no idea when they would be released. (Id. at pp. 1077, 1089.)

         The state largely abandoned this system when it adopted a mostly “determinate” sentencing regime in 1976. (Dannenberg, supra, 34 Cal.4th at p. 1078.) Now, most felonies are subject to defined terms of confinement. But certain serious offenses, including noncapital murder, remain subject to indeterminate sentences. (Ibid.)[1] The sentence of 15 years to life Butler received in 1988 is an example of this type of punishment. For inmates serving indeterminate sentences, the parole authority (now called the Board of Parole Hearings) continues to determine the end of their period of incarceration via a determination that the inmate is suitable for parole. (See generally Pen. Code, § 3041.) [2] The standard for parole suitability is whether the inmate “will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2281, subd. (a).)

         When this action commenced, a previous version of section 3041 governed the Board's authority to set release dates for indeterminately-sentenced offenders. (Former § 3041; see also Dannenberg, supra, 34 Cal.4th at pp. 1078-1079 [describing this version of the statute].) Subdivision (a) of that statute directed the Board to set parolees' release dates “in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public.” (Former § 3041, subd. (a).) The statute further directed the Board, when setting release dates, to “consider the number of victims of the crime... and other factors in mitigation or aggravation of the crime.” (Ibid.)

         To implement this duty, the Board adopted regulations for each indeterminate sentence offense. These regulations expressly rely on and reference section 3041 as enabling authority. (See, e.g., Cal. Code Regs., tit. 15, §§ 2280 [listing section 3041 as a statutory reference], 2400 [“This article implements Penal Code section 3041”].) One such set of regulations applies to noncapital murder committed on or after November 8, 1978. (Id., § 2400 et seq.; Dannenberg, supra, 34 Cal.4th at pp. 1078-1079.) Under the regulations, the Board is required to “set a base term for each life prisoner who is found suitable for parole.” (Cal. Code Regs., tit. 15, § 2403, subd. (a).) In accordance with the regulations, the Board must determine that an inmate is suitable for parole before setting that inmate's base term. (Id., § 2402, subd. (a) [“The panel shall first determine whether the life prisoner is suitable for release on parole”]; see also Dannenberg, supra, 34 Cal.4th at pp. 1079-1080.)

         A base term is calculated using matrices that appear in said regulations. For murder, the matrix's horizontal axis presents general descriptions of the cause of the victim's death.[3] The vertical axis lists possible descriptions of the relationship between the inmate and victim.[4] The first step in calculating the base term is to determine which intersection of the horizontal and vertical axes is “most closely related to the circumstances of the crime.” (Cal. Code Regs., tit. 15, § 2403, subd. (a).) Each intersection then lists three alternative sentences - a lower, middle, and upper base term. For example, a second degree murder committed after November 8, 1978, through a “Direct” mechanism and against a victim with whom the inmate had a “Prior Relationship” would yield base term alternatives of 17, 18, or 19 years. (Id., § 2403, subd. (c).) The Board's regulations require it to select the middle term unless it finds circumstances in mitigation or aggravation (as defined elsewhere in the regulations). (Id., § 2403, subd. (a).) A finding that mitigating circumstances exist leads to the selection of the lower base term, while a finding of aggravating circumstances leads to the selection of the upper base term. (Id., §§ 2404, subd. (a), 2405, subd. (a).) The Board then modifies an inmate's base term for any enhancements related to the offense (such as use of a firearm), leading to the inmate's so-called “adjusted base term.” (Id., § 2406.)

         Under this version of the regulatory scheme, the Board begins its assessment of an inmate's earliest possible release date by calculating his or her adjusted base term. These regulations allow the Board to then postpone the release date if the inmate has other convictions (Cal. Code Regs., tit. 15, §§ 2407-2409) or to advance it for any postconviction credits the inmate has received. (Id., § 2410.) It is this final date that determines when an inmate found suitable for parole may be released. Under these regulations, a parolee cannot be released until the inmate has served at least this amount of time. (Id., § 2411, subds. (a), (b); see also In re Vicks (2013) 56 Cal.4th 274, 313.)

         In 2012, Butler filed a petition in propria persona for writ of habeas corpus in the First District Court of Appeal. (In re Butler (2015) 236 Cal.App.4th 1222, 1227-1228.) Among other contentions, Butler argued that the Board violated the state and federal Constitutions through its policy of deferring the calculation of an inmate's base term until it found the inmate suitable for parole. (Ibid.) The Court of Appeal appointed counsel who assisted Butler in filing a supplemental habeas petition. (Id. at p. 1228.) The supplemental petition reiterated Butler's constitutional argument and added a separate claim arguing that insufficient evidence supported the Board's denial of parole in Butler's case. (Id. at p. 1228 & fn. 2.) The Court of Appeal bifurcated the action into two separate cases; one concerned whether sufficient evidence supported denial of parole in Butler's case, while the other addressed the constitutionality of deferring base term calculations. (Ibid.) The Court of Appeal eventually issued orders to show cause in both cases. (Id. at p. 1228.)

         In the case dedicated to Butler's challenge of the Board's determination that he was unsuitable for parole, the Court of Appeal ultimately granted habeas corpus relief.[5] (In re Butler, supra, 236 Cal.App.4th at p. 1228, fn. 2.) On remand, the Board vacated its earlier denial of parole and held a new hearing at which it found Butler suitable for ...


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