Superior Court: Alameda County, No. 91694B Larry J. Goodman
& 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.
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
William Vogel and Aubrey Grant as Amici Curiae on behalf of
Petitioner Roy Thinnes Butler.
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.
Zahner; and Richard J. Sachs, Deputy District Attorney (San
Diego) for California District Attorneys Association as
Amicus Curiae on behalf of Respondent the 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.
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.
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.
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.
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.)
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.) 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.)
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).)
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.”
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.)
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. The vertical axis lists possible
descriptions of the relationship between the inmate and
victim. 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.)
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.)
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
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. (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