In re Butler
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.
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
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.” (
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.,
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.” (
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 (
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
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 parole. (Ibid.) The Governor did not intervene, so Butler was released on parole in June 2014.6 (Ibid.)
In the meantime, the parties began settlement negotiations in the case addressing Butler‘s claim that the Board violated his constitutional rights by declining to calculate his base term. (In re Butler, supra, 236 Cal.App.4th at pp. 1228-1229.) The parties eventually agreed to a settlement in December 2013 that required the Board to calculate an inmate‘s base and adjusted base terms at the inmate‘s initial parole hearing (or, for inmates who already had their initial hearing, at the inmate‘s next scheduled parole hearing). The stipulated order also required the Board to amend its regulations to codify this new approach. The Court of Appeal retained jurisdiction over the case until the amended regulations
In the years since the parties settled the case before us, legislators and the electorate made major changes to California‘s criminal justice system. Three of those changes are potentially relevant to the issues before us. First, Senate Bill No. 260 became effective on January 1, 2014. (Stats. 2013, ch. 312.) Under this law, inmates who committed indeterminate sentence offenses before turning 18 years old would “be paroled regardless of the manner in which the [B]oard set release dates pursuant to subdivision (a) of Section 3041.” (
Second, the Board altered its treatment of certain elderly inmates to comply with a February 2014 federal court order. (See Plata v. Brown (N.D. Cal. Feb. 10, 2014, No. 3:01-cv-01351-JST).) The order required the Board to “[f]inalize and implement” new parole procedures for inmates who are at least 60 years old and who have served sentences of 25 years or more. (Id. at p. 3 ¶4(e).) In response, the Board announced expedited parole hearings for those elderly inmates who
Third — and most significantly –– the Legislature enacted Senate Bill No. 230 in 2015. (Stats. 2015, ch. 470.) This legislation excised the language from former section 3041, subdivision (a) requiring the Board to set parolees’ release dates “in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public” — the very language on which the Board relied in devising the base term system. Senate Bill No. 230 provided instead that “[u]pon a grant of parole, the inmate shall be released subject to all applicable review periods. However, an inmate shall not be released before reaching his or her minimum eligible parole date as set pursuant to Section 3046.” (
The most important aspect of these changes, for present purposes, is that base terms no longer play a defined role in determining the release date for any inmate sentenced to an indeterminate term.
After SB 230 went into effect in January 2016, the Board moved to modify the December 2013 settlement agreement. According to the Board, it should be relieved of its obligations to calculate base terms and promulgate new regulations for calculating base terms at an inmate‘s initial parole hearing. In essence, the Board argued that changes to the statutory scheme eliminated the Board‘s authority or need to calculate base terms. The Court of Appeal denied the motion. It declined to modify the settlement order on the basis that the order “does not conflict” with any subsequent changes to the parole hearing process. The court also reasoned that the calculation of base terms was necessary to “assure life prisoners will not suffer constitutionally excessive punishment.”
We granted the Board‘s petition for review.10 We must now decide whether the changes discussed above are sufficiently material to require modification of the Board‘s obligations to calculate inmates’ base terms.
The parties’ settlement in this case was given effect in an injunctive order over which the Court of Appeal retained jurisdiction. Courts retain power to vacate or modify such orders at any point. (See Sontag Chain Stores Co. v. Superior Court (1941) 18 Cal.2d 92, 94-95 (Sontag Chain Stores) [an injunctive order, “it has uniformly been held, is always subject, upon a proper showing, to modification or dissolution by the court which rendered it“]; see also Union Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 604 (Union Interchange) [“When the decree is continuing in nature, directed at future events, it must be subject to adaptation as events may shape the need“].) A court may “modify or dissolve an injunction . . . upon a showing that there has been a material change in the facts upon which the injunction . . . was granted, that the law upon which the injunction . . . was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction.” (
Whether changes in the law or circumstances affecting this case require modification of the injunctive order is a question sharply dividing the parties. Postsettlement changes to California‘s criminal justice system are at issue here, principally the fact that base terms no longer directly control the release date for indeterminately-sentenced inmates. The Board argues that these changes are sufficiently material because they have “emptied base terms of any meaning and function.” Butler, by contrast, argues that modification is appropriate only when an injunctive order “conflicts with or violat[es]” current law. And, Butler continues, far from conflicting with these subsequent developments, the settlement order in fact furthers their purpose of reducing the state‘s prison population.
The Court of Appeal did not modify the injunction order. In continuing to embrace the stipulated agreement as it stood before the recent raft of legal changes, the court observed that the agreement did not directly conflict with the new legal regime and held that the changes in the law were not sufficiently material to warrant modification. Yet in so concluding, the appellate court did not fully consider the extent to which the intervening legal changes have undermined the settlement‘s foundational assumptions, even if the changes fell short of creating an actual conflict with the settlement.
In its argument, the Board relies on cases involving injunctions that conflict with current law. These cases can be distinguished from what is before us. In Salazar, for example, the trial court entered an injunctive order barring school districts for charging fees for transportation to and from school. (Salazar, supra, 9 Cal.4th at pp. 844-845.) We later held in Arcadia Unified School District v. State Department of Education (1992) 2 Cal.4th 251 that charging such fees did not
This case is different. Although the relevant statutes and regulations have changed since the settlement, the Board faces no direct conflict between the injunctive order and existing statutes. Senate Bill No. 260 and Assembly Bill No. 1308 require that youth offenders be released once found suitable for parole –– irrespective of any base term calculations. (Stats. 2013, ch. 312; Stats. 2017, ch. 675.) And under the Elderly Parole Program, eligible elderly inmates who have served a minimum of 25 years may be released to parole if they are found suitable, regardless of what limit base terms would have otherwise imposed on the inmates’ release dates. Finally, Senate Bill No. 230 requires that an inmate‘s sentence ends once he is found suitable for parole and he has served his statutory minimum term. (Stats. 2015, ch. 470.) The order does not, as in Salazar and Systems Federation, prevent the bound party from doing something that it unquestionably has a right to do under current law. Instead, it requires the Board to do something that no longer has any apparent significance under its own statutes or regulations. For this reason, we think the cases on which the Board relies are inapposite.
But neither does Butler persuade when he contends modification of a continuing injunction requires a conflict between the injunction and current law. To support this argument, Butler cites Firefighters v. City of Cleveland (1986) 478 U.S. 501 (Firefighters). Yet Firefighters is a federal case with no direct relevance to the question before us. It concerned a consent decree, under title VII of the Civil Rights Act of 1964, designed to remedy past racial discrimination in the City of Cleveland‘s fire department. (Id. at pp. 505-508.) What the decree required, among other things, was that the City promote a specific number of minority firefighters to management positions. (Id. at p. 510.) The union representing the firefighters objected, arguing that the decree violated section 706(g) of title VII, which provides that ” ‘[n]o order of the court shall require the . . . promotion of an individual . . . if such individual was refused . . . advancement . . . for any reason other than discrimination on account of race, color, religion’ ” etc. (Firefighters, at p. 514, italics omitted, quoting
Also rejected by the U.S. Supreme Court was the union‘s contention that a consent decree can only order relief that a court could impose itself after trial. (Firefighters, supra, 478 U.S. at p. 525 [a “federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial“]; id. at p. 524.) The court then went on to cabin this conclusion by noting, in language that Butler cites, that courts cannot accept a consent decree that “conflicts with or violates the statute upon which the complaint was based.” (Id. at p. 526.) Even assuming this case sheds any light on the general issue before us, the morsel of it Butler quotes ––
Contrary to what Butler‘s contention implies, flexibility is a touchstone of a court‘s power to modify an injunctive order. (See
Changes of such magnitude are consequential enough to require the settlement agreement‘s modification. Although the new sources of law differ in certain details,12 all three are similar in establishing parole regimes that do not rely on an inmate‘s base term. Together, they create a new legal landscape wherein base terms no longer play a defined role in the Board‘s determination of parolee release dates. This is no trifling change. The terms to which the Board agreed in 2013 were significant, but they were also limited: the Board agreed to calculate, at an earlier time and regardless of suitability for parole, inmates’ base terms — something that the Board‘s regulations anticipated at some point for most inmates subject to indeterminate sentences. Our conclusion might be different if the agreement reflected the parties’ agreement regarding how the Board could comply, for example, with a responsibility to implement judicially-recognized constitutional principles in undertaking statutory parole determinations. But it is clear that the settlement agreement emanated from the then-existing statutory and regulatory structure and embodied, at best, an agnostic reading as to whether base terms had legal significance outside of that structure. The agreement expressly defines “base term” and “adjusted base term” by reference to the regulations that imbued those terms with legal significance. These regulations in turn reference section 3041, the statute that Senate Bill No. 230 amended. (See, e.g.,
This review of the settlement agreement readily showcases how base terms were relevant in the settlement agreement for a specific reason. To wit: they were relevant in the existing regulatory structure. Indicia from the agreement, as well as the contemporary statutory and regulatory scheme, reveal that the settlement relied on base terms having legal significance within that framework. Specifically, an inmate‘s calculated release date commenced with his or her adjusted base term, as contemplated in the settlement agreement. When that agreement was drafted, the Board was required by statute to set a provisional “parole release date” founded on “criteria” that would “provide uniform terms” for similar offenses. (Former § 3041, subd. (a).) The Board implemented that statutory mandate by promulgating regulations requiring the calculation of a base term, using a matrix that measured the seriousness of the offense and adjusted for aggravating or mitigating circumstances. (Dannenberg, supra, 34 Cal.4th at p. 1078 [noting that the Board promulgated base term calculations “[i]n response” to section 3041‘s “requirements“].) The Board‘s policy was to calculate the base term not before parole eligibility, but after he or she was found suitable for parole. The settlement agreement, however, changed the timing of an inmate‘s base term calculation to his or her initial parole hearing or at his or her next scheduled hearing if the initial hearing had already occurred. What the settlement agreement did not alter is the Board‘s underlying statutory and regulatory duty to calculate base terms.
That base terms had some role to play in the sentencing regime strikes us as a “controlling fact[]” on which the injunction rested. (Sontag Chain Stores, supra, 18 Cal.2d at p. 95.) Postsettlement legal changes make that controlling fact no
In holding that the postsettlement changes were not material, the Court of Appeal focused on whether the stipulated settlement “conflict[ed]” with the new legal regime. What this approach ignores is that Code of Civil Procedure section 533 provides for modification of an injunctive order not only in instances of conflict but also upon a “material change in the facts.” The state‘s parole regime has changed significantly enough to warrant relieving the Board of its obligations, even in the absence of a direct conflict between the settlement and current law. (See Sontag Chain Stores, supra, 18 Cal.2d at p. 95 [whether to modify an injunctive order “is determined by the facts and circumstances of each particular case“].) The Court of Appeal erred in failing to recognize that the modified parole regime warranted modification of the injunctive order. A “disposition that rests on an error of law constitutes an abuse of discretion.” (In re Charlisse C. (2008) 45 Cal.4th 145, 159.) In this case, postsettlement developments altering the parole regime were significant enough to constitute a material change in the facts, requiring modification of the injunctive order.
An inmate serving an indeterminate sentence has a constitutional right to a sentence not disproportionate to his or her offense. (See In re Lynch (1972) 8 Cal.3d 410, 424; Solem v. Helm (1983) 463 U.S. 277, 284-288.) Writing during a time when California imposed indeterminate sentences for most felonies, we noted that the “oft-stated rule that a prisoner has no right to a term fixed at less than maximum . . . is . . . subject to the overriding constitutionally compelled qualification that the maximum may not be disproportionate to the individual prisoner‘s offense.” (In re Rodriguez (1975) 14 Cal.3d 639, 652). To guard against disproportionate punishment, Rodriguez required the parole authority to set a maximum term of incarceration for each inmate, based on the inmate‘s culpability (as measured by the circumstances of the offense). (Ibid.) Rodriguez required that the parole authority release inmates once they reached their maximum term, even if the authority had not found the inmate suitable for parole. (Ibid.) Butler relies on Rodriguez to argue that the state Constitution requires the Board to continue setting inmates’ base terms, even after the postsettlement changes.
Dannenberg declined to construe the state Constitution as requiring the Board to set maximum terms, across the board, for the serious offenders currently subject to indeterminate sentences. For good reason: To do otherwise would have effectively undone, without sufficient constitutional justification, the legislative design associated with limited continued use of indeterminate sentences in California for a circumscribed group of offenders. Although Dannenberg did not
Given these changes, we see no reason to nonetheless enshrine base terms as constitutionally required. The Board promulgated base term regulations in response to the Legislature‘s instruction to establish “criteria” that would promote sentence uniformity for inmates serving lifetime sentences. (Dannenberg, supra, 34 Cal.4th at pp. 1078-1079.) The Board may not, however, release an inmate until the individual no longer poses a threat to “public safety,” regardless of any base term calculation. (Id. at pp. 1083-1084.) In fact, we specifically instructed the Board to “eschew term uniformity” if public safety considerations warrant a sentence that went beyond a calculated base term. (Id. at p. 1083, italics omitted.) Thus, base term calculations were designed to set forth an inmate‘s minimum sentence, not to reflect the maximum sentence permitted by the Constitution.13
Nor do base terms function, in a system focusing parole determinations on public safety considerations, as a workable measure of constitutional proportionality. A sentence violates the prohibition against unconstitutionally
Butler urges us to eschew Dannenberg‘s reasoning because its interpretation construed the prior version of section 3041. Butler is indeed correct that much of the opinion discusses language in former section 3041, subdivision (a) that Senate Bill No. 230 excised. (Dannenberg, supra, 34 Cal.4th at pp. 1078-1095.) But the aforementioned passages from Dannenberg are present in a different portion of the opinion, addressing a distinct constitutional argument that does not depend on the validity of section 3041‘s previous incarnation. (Id. at pp. 1096-1098.) What we considered in that portion of the opinion was whether the state Constitution required the Board to measure each inmate‘s culpability for the purpose of guarding against unconstitutionally excessive punishment. We answered in the negative, at least for a regime where only a subset of defendants
In effect, California‘s current and mostly determinate sentencing laws, along with statutory reforms to the parole process, have all but rendered specific base term calculations for individuals subject to parole determinations unnecessary as a means of ensuring against unconstitutionally excessive punishment. Plainly, defendants retain the ability to perform the base term calculation or something equivalent and submit it to the Board for consideration. Moreover, the Board retains responsibility to take account, in its parole determinations, of public safety concerns that a base term calculation could have illuminated. (See
The settlement agreement approved by the parties in 2013 required the Board to calculate an inmate‘s base term at his or her initial parole hearing. At the time the parties ratified that agreement, a calculated base term directly impacted the release date for inmates serving indeterminate life sentences. Not so today. Instead, the release date for indeterminately-sentenced adult inmates — like Butler — is now guided by the date when an inmate has served the statutory minimum term and is found suitable for parole based on statutory public safety-related criteria, subject to limited exception. These changes to California‘s criminal justice system do not diminish the societal interest in avoiding arbitrary parole determinations. They do, however, dictate that base terms no longer directly control the release date for prisoners subject to indeterminate sentences. That these statutory changes are material to these parties’ agreement requires, legally and practically, modification of the injunctive order by the Court of Appeal. Moreover, sentencing in California involves primarily determinate sentences and parole determinations involving public safety considerations –– so specific base term calculations are not a constitutionally necessary measure for guarding inmates serving indeterminate sentences against disproportionate punishment.
We reverse the judgment of the Court of Appeal and order the settlement agreement modified so that the Board of Parole Hearings is relieved of its obligations to calculate base terms and adjusted base terms.
Notes
Butler failed, however, to preserve these issues for our consideration. He did not file a petition for review or assert in his answer to the Board‘s petition that we should address these issues. (See