*1 Jan. S111029. [No. 2005.]
In re JOHN E. DANNENBERG on Habeas Corpus.
Counsel Anderson, General, Attorney Chief Assistant Robert R. Attorney Bill Lockyer, Crown, General, General, Gifford, Allen R. Attorney D. Assistant Paul General, D. and Matthew Duncan Lee Susan Acting Assistant Attorney General, Mandelbaum, People. Attorneys Appellant Deputy Palmer, Dumanis, Head (San M. Attorney Diego), George Bonnie M. District Sachs, J. District Deputy Attorney; Richard Attorney, District Deputy as Amicus Attorneys David LaBahn for California District Association R. Curiae on behalf Appellant People. Court, Kahn, under Supreme Respondent
Kathleen appointment E. Dannenberg. John
Opinion murderer, we BAXTER, J. degree this a consider involving case second In a (Board BPT) determine that how the Board of Prison Terms or may sentence, an life served minimum having “indeterminate” prisoner statute, of confinement is nonetheless unsuitable presently period required for the of a date because the setting gravity fixed release The issue is safety. offense indicates a continuing danger inmate’s a date on after ground only whether the Board refuse this and against crime others of similar against gravity offender’s evaluating “matrices,” and offense its own uniform-term is concluding particu- standards, or it need conduct whether larly by those egregious comparative that the inmate is a after it determines only such comparative analysis suitable for parole. a life for the second Dannenberg years
John E. sentence of 15 serving wife, a his He beat her with pipe murder of committed in 1985. Thereafter, she drowned in bathtub. wrench a domestic during argument. However, insis- this is unclear. Exactly Dannenberg’s how happened despite that, denials, circumstances while she was tent an inference permit underwater, head or forced her from the helpless beating, Dannenberg placed there, died. it until she least allowed to remain occasions, In as on declined several the Board to grant prior release date. The Board concluded that Dannenberg Dannenberg’s crime thus indicated him continuing public danger, making presently unsuitable for because murder was and cruel” parole, “especially callous and was committed for a trivial reason. its formal Following long-standing the Board made its determination its policy, unsuitability by confining *9 crime, examination to the circumstances of without particular Dannenberg’s homicides, offense other or his the Board’s own measuring against against uniform-term norms for second murderers. of Court held that the Board Appeal proceeded incorrectly. Construing statute, 3041,1
the Penal section the once pertinent Code court ruled that an indeterminate life reaches the minimum Board prisoner parole eligibility, release, must set a fixed date for to the of “uniform parole pursuant principle terms” due for crimes of similar and with gravity, regard for the statutory offense, minimum for the it term inmate’s finds the crime unless prisoner’s egregious” comparison in to other the class. “particularly same offenses of the court remanded the a new Accordingly, hearing case for under parole standards. proper (a)
We conclude that the Court of While erred. subdivision of Appeal (i.e., life-maximum) 3041 states that indeterminate life sentencees crimes, should for “normally” receive “uniform” dates similar subdivi parole sion (b) that this “unless determines” that provides policy applies [the Board] a cannot be release date set because the crime presently particular offender’s and/or “public criminal raise concerns further history safety” requiring (Italics added.) indefinite incarceration. in the states or Nothing statute the Board evaluate suggests that must the case under standards of term before its a date on uniformity exercising authority deny grounds parole the offender’s a particular criminality presents continuing public danger.
Indeed, law, under other the Board cannot a date provisions grant parole to a the life-maximum without concerns prisoner considering expressed by victims, families, interested their law enforcement persons, including case, officials in the that still too involved this particular offender committed, virtue of the he or scheduled dangerous, by crimes she has to be date, a a the may release. If Board does set Governor panel parole request full did review the Board on not consider grounds fully panel in a full crime’s which case Board gravity, safety, majority murderer, must vote to decision. In case of a uphold panel’s overturn a on basis the Board could have grant Governor any scheme, whole, it. The as a deny statutory used to viewed thus clearly Penal statutory All unlabeled references are to the Code. subsequent above the inmate’s suitability a life individual prisoner’s elevates date. of a fixed and “uniform” early setting expectancy Moreover, and the Board’s attention to section 3041 recent despite specific Board’s long- not disturbed the Legislature has parole procedures, must suitability of individual formal determination policy standing The Legislature a “uniform” release date. setting precede of the statute. the Board’s interpretation therefore to have appears accepted Board, traditional its exercising we conclude that Accordingly, discretion, consider in each discrete case safety broad may protect public crime individu life-maximum dangerous prisoner’s ing implications the minimum elements of While the Board must factors point beyond ally. committed, need no further it engage the crime for which the inmate facts of offense analysis concluding particular before comparative *10 unsafe, time, The to fix a release. BPT make it that date for prisoner’s all in and the inmate receives consti determining unsuitability, acts properly due, rights, the Board provides requisite tutional if process procedural standards, “some relevant and renders a decision by applies supported evidence.” course, that is may beyond
Of no inmate be period imprisoned commitment But to the offense offenses. constitutionally proportionate will to those offenses and offenders currently limitation serious rarely apply statute Its by to life-maximum subject potential application imprisonment. BPT, occasional individual cases does not under the current require scheme, release all life statutory to set fixed dates for those prisoners except are crimes most the same class. “egregious” whose others of compared Instead, concludes, the Board do decline to so in an individual case if it may evidence, of a grounds on relevant support grant Life believe that date is for reasons inmates who premature public safety. Board them the Constitu beyond such decisions have confined the time kept claims tion allows for their criminal conduct take their particular court.
Here the conclusion that remains too Dannenberg dangerous Board’s cmel, and and commit- because his offense was callous was especially reason, elements of ted for a trivial relied facts minimum upon beyond murder, some evidence. Board’s second supported .and decision to thus with the law. deny parole comports the Court
We will therefore reverse judgment Appeal. FACTS AND PROCEDURAL BACKGROUND In Dannenberg was convicted a of second jury degree murder and was sentenced to the term of prescribed (§ to life years (a)). With allowance for credits, and applicable conduct pretrial his mini- prison mum eligible release date was June 1996. In parole hearings 1994, conducted in and the Board declined to set an actual release date for Dannenberg, each time on the relying primarily nature of the murder itself to find him unsuitable. presently here,
In the 1999 at issue proceeding, the Board considered the following offense, circumstances of the commitment drawn from a staff report prepared in 1994 for initial Dannenberg’s parole hearing:2
Dannenberg his wife severe experienced domestic difficulties for a number of had years. They sought marriage and the victim counseling, had been seen by psychiatric personnel complaints violence to her including and her children. 15, 1985, a.m.,
On May around 9:00 law enforcement authorities were summoned to the bathroom, home in Los couple’s Altos Hills. In a they found the victim’s body,' over the side of the draped bathtub with her head underwater in the tub. had several Dannenberg scratches on his body, deep bite mark on neck, his left middle finger, cuts on his and face. An eyelid, disclosed autopsy cuts, abrasions, victim’s had body various *11 wounds, puncture consistent with hit being on numerous occasions. One of the wounds matched the aof markings wrench. The half-pound pipe autopsy concluded report the although victim had been hit times on the many head, the cause of death was drowning.
Dannenberg gave investigating officers the following account: Around 7:00 a.m., he was a bath for drawing his son when he noticed debris in the drain that could cause a He clog. a procured wrench and a pipe screwdriver to fix a leaky time[,] toilet valve. this he “During said evidently something to his wife” about the drain. She came into the bathroom and the picked up screwdriver. A heated ensued. argument that she Screaming “wanted him dead,” the victim arm, the jabbed screwdriver at his and Dannenberg, cutting clawed and scratched his forearm with her tried fingernails. Dannenberg first report The in question is entitled Life Prisoner Evaluation-Initial Parole Consideration Hearing. Dannenberg’s The chairman of parole panel stated that this was the source of text, the upon by panel rendering facts relied the its decision. As indicated in the panel the testimony Dannenberg also heard from leading himself about the events to his wife’s death. Then wrench with his bare hands. he picked up pipe
to defend himself she to on of the head. When continued and hit the once the side victim head,” to him, and she fell he “hit her a more times on advance on couple he out.” When “and have passed the floor. himself Dannenberg collapsed awoke, He called but could not find one. then he the victim’s checked pulse, 911. Dannenberg. from testimony
The also heard extensive live 1999 parole panel both he and the victim following He testified additional details: As to back, floor, her still holding the victim was on lying on collapsed her, screwdriver, her arms. She Dannenberg kneeling and was over pinning relax, his and then her feet shoulders against seemed but suddenly placed and fell the floor. He knocked back the bathroom door against was pushed. that, until he saw the victim on the lying edge After he remembered nothing tub. A floor where had lain. There of blood covered the she pool previously wall. Dannenberg also blood her head and smeared on the was considerable on him, first, could not because his curled underneath were legs, asleep. move condition, not notice From his low and in a dazed he did the victim’s position, was and tried to her head in the water. he reached over take Eventually pulse, feet, bedroom, could went to but not feel He then to his his anything. struggled and called fire within a few minutes but responded 911. department determined that the victim dead and did not to resuscitate her. try
A must lain on the member noted that the victim have floor panel quite accumulate, while for of blood to have a hard going such “so we’re pool then and [lay] time that she there and crawled into believing got up see how doesn’t bathtub after she bled out all over the floor. Do you make a lot of sense?” Citing
In denied his wife in tub. response, Dannenberg placing Dannenberg evidence of blood on underside of the bathtub spout, own, tried to rise her reiterated his trial that the victim must have on theory tub, wash had climbed “and either tried to herself or edge over her her face in the water and got jerked attempted get up slipped head and hit her head on the and then went down up again spout *12 the evidence he trial demon- drowned.” insisted Dannenberg presented not her into the tub without walking strated that he could have moved floor, blood on a mess” of the murder scene. “making the bathroom thus “a minute estimate that he was unconscious for Citing Dannenberg’s only tub, one member or so” before the victim over the seeing draped panel that noted the coro- Dannenberg how she could drown quickly. questioned through trial “that can be instantaneous drowning ner’s death testimony by called something where laryngospasm you ... to inhale and apparently try water and get you out go immediately.”
In his to the argument panel, remorse Dannenberg expressed for causing death, his her, wife’s but he denied he intended to kill either or beating He stressed he had drowning. been on a prosecuted theory first degree murder, premeditated murder, but was convicted only second which might involve only malice. implied According Dannenberg, prosecutor told the that the jury circumstances of the victim’s death could never be certain, known for and the General conceded on Attorney appeal death by drowning was This unexpected. permanent he uncertainty, urged, was not a basis for denial of parole. that, offense, noted
Dannenberg for the commitment he except had no criminal or drug He that history. urged he had accepted responsibility his actions, that stating his wife “would in all likelihood not have died if I had not that, hit her that He morning.” out while in pointed he had prison, free, remained and had discipline all pursued recommended voca- therapy, tional training, He cited his self-help programs. college degrees mathematics and engineering, his decades of in electronics. He expertise indicated he had several offers of housing, sufficient assets to liquid support himself, an offer of employment, to start a water plans conservation business.
Dannenberg’s May 1999 evaluation psychological also described him aas facts, model prisoner. Accepting Dannenberg’s version of the the evaluation surmised that the murder was a one-time extreme response Dannenberg’s stress and fear of his wife’s while she was armed rage with the screwdriver. assessments, In line with previous the evaluation diagnosed Dannenberg as no of mental showing signs or emotional disorder and concluded he presented a low risk of further violence.
In oral its that ruling Dannenberg unsuitable for presently parole, stated that “the panel reason is the commitment primary offense itself.” The found that the panel murder was committed “in an cruel or callous especially manner,” and was carried out in a way “demonstrates an exceptionally callous disregard human suffering.” For support, panel “reified] on the partially which autopsy indicated that the victim was report[,] repeat- head, struck in the edly and at some the victim . . . was or fell point pushed into the bathtub full of water and the eventual cause of death was drown- Moreover, found, . ing. . .” crime the motive for the panel “was trivial in relation to the offense.” inexplicable very While concluding consider,” “there no factors to psychiatric asserted that panel [were] *13 understand, discuss, face, and cope in order to needs “the prisoner therapy made, the is prisoner manner. Until progress in a nondestructive with stress and a threat to others.” continues to be unpredictable two be for would hearing postponed that the next ruling Separately the Additionally, panel opined, cited similar considerations. the years, panel . . . and for the crime full “needs to Dannenberg accept responsibility for that.” to minimize his responsibility discontinue his attempts remedies, filed Dannenberg petition administrative After his exhausting The asserted in the Marin Court.3 County Superior petition for habeas corpus murder, that, second (1) degree been convicted having only implied-malice first to admit refusing express-malice he was denied wrongly date, (see (b) (section 5011(b)) setting parole murder § [in crime]), (2) no and there was BPT not admission of guilt any require reliable, so as to overcome evidence of his current dangerousness, affirmative 3041, to set a (a) under subdivision of section the Board’s duty, presumptive date for release on parole. after an cause. On May
The court issued an order to show superior the relief. It found no basis for the Board’s court evidentiary hearing, granted unsuitable, on grounds safety, determination that was Dannenberg for an otherwise date. mandatory parole follows; and court had no criminal history
The reasoned as Dannenberg had wife’s death. His record and postrelease shown remorse for his prison emotional were Prison found no mental or plans exemplary. psychologists disorder, Nor could unsuitabil- and there was no evidence he needed therapy. itself, there based offense because be on the nature commitment ity BPT, Woodford, J. S. Warden of petition Hepburn, The named Dave Chair of the Prison, Attorney by the “respondents.” legal representation San With California as Quentin General, court. litigated Hepburn superior the in the and Woodford in the case was names of However, order, granting hearing specified under superior court’s ultimate a new discussion, standards, post), (see appeal directed On from this order was Board itself. Woodford, Dannenberg’s while as Attorney Appeal General observed to the Court of custodian, the Board technically corpus proceeding, in the habeas proper “respondent” noted, Attorney “for the sake of party directly Accordingly, itself was the affected. General perspective.” Board’s The clarity, appeal solely convenience we address this from the case, affirming the need judgment, and its Appeal accepted Court of this characterization of problem proper party parole hearing, a new was also directed to the Board alone. Dannenberg “petitioner,” is the complicated by identification further the fact that while original habeas Attorney “respondents,” are the parties represented by General Appeal in the Court of Attorney “appellants” clients were the corpus proceeding, General’s court, “respondent” appellate in both “petitioner” Dannenberg this while is the and the hereafter, opposing parties simply to the Accordingly, courts. for convenience we refer Dannenberg and the or the BPT. Board *14 1076 cruel,
was no evidence that crime and was callous or indiffer- Dannenberg’s ent to human and all second murders. suffering, beyond any degree Finally, the Board’s reliance on failure to full for Dannenberg’s accept responsibility 5011(b). his crime violated section
The court ordered the Board to conduct a new no later than parole hearing that, 2000. The court at this the Board August hearing, “anticipated” would set a date absent circumstances or evidence not changed to the of previously Referring Board’s “matrices” “base terms” for presented. murderers, second the court concluded that the circumstances of 17, 18, crime indicated a date Dannenberg’s or 19 after the years date of the 1985).4 commitment offense With allowance for (May credits, conduct the court calculated this date applicable February 1998. District, Three,
The Court of for the First Division Appeal Appellate affirmed in reversed its own decision in part part. Applying intervening In (Ramirez), re (2001) Ramirez Cal.App.4th Cal.Rptr.2d [114 381] the Court of reasoned as follows: The of the determinate Appeal principle terms, (DSL) law that sentencing similar crimes should receive similar followed to indeterminate life by period parole, applies prisoners, murderers, (a). virtue of section subdivision This statute including dates, commands that life “shall receive release prisoners normally” calculated to sentence for offenses of similar provide uniformity gravity Hence, when a life magnitude. determining suitability, prisoner’s parole Board must or her crime first his other similar offenses of compare against class, the same into account the minimum term to which the inmate taking was sentenced. The Board not continue to find an inmate unsuitable (b), under section subdivision whether the term he considering without or she is is to the seriousness of the commitment serving disproportionate offense, and to the terms served for other similar crimes. The commitment will offense if it justify finding unsuitability only particularly these standards. The Board erred to conduct such a egregious by failing before unsuitable. comparative analysis finding Dannenberg court, Like the the Court of concluded that there was no superior Appeal evidence for the Board’s needed Court finding Dannenberg therapy. insisting also the Board could not agreed penalize Dannenberg Appeal however, he did not In two the Court of drown his wife. respects, Appeal why court concluded that release date must be superior It is not clear only Dannenberg jailed calculated from the date of the crime. This would make sense if conviction, bail, bail, trial, day, pending and was held without or failed to make his same sentencing. the Board’s “primary analyzed court had ruled that the improperly superior First, the offense: of the commitment the gravity reason” denying parole, that, are committed all murders concluded because lower court wrongly *15 his or on malice, grounds cannot be denied parole a murderer second Second, below the court callous and cruel. her crime was exceptionally to reach a particular to direct the Board the evidence reweighed improperly held, the Board must the Court of contrary, Appeal result on remand. On for under proper Dannenberg’s suitability parole be allowed to reconsider standards. 3041, review, it defer may any that under section Board sought urging
The determines until after it or uniformity consideration of term proportionality review, limited to for We granted that a life inmate is suitable parole. . . . . to . a . suitability hearing pursuant “At following question: 3041, in a . . . generally engage comparative must the Board and offenses of similar gravity with analysis proportionality respect in setting term matrices used Board and consider base magnitude [,] the basis of the circum- and a date on deny solely release dates or egregious, the offense when the offense is only particularly stances of he for because the Board first determine whether inmate is suitable in a or a threat to longer safety engage proportionality she no for We turn to if it finds the inmate suitable analysis only parole?” question.5
DISCUSSION 1977, sentenc an “indeterminate” For decades before California employed a sentence statutory expressed for felonies. The court ing system imposed life of confinement—often between a minimum and maximum range period of incar An inmate’s actual period offender must serve. imprisonment—the exclusive control of ceration within this was under the range focused, for the which not on authority, appropriate punishment primarily, offense, During toward rehabilitation. but on the offender’s original progress set, had no idea when were not most of this dates period, parole prisoners end, decided authority confinement would until the moment the parole their 86, (1999) v. (See 21 Cal.4th People were for release. they ready Jefferson 893, & Taugher, Cassou (Jefferson); P.2d 94-95 Cal.Rptr.2d 441] [86 (1978) 9 The New Numbers Game Determinate in Sentencing California: (Cassou & Taugher).) Pacific L.J. 6-16 briefs of the regard by amicus curiae acknowledge provided in this We assistance Association, Neil Darrow People, and inmates Attorneys support in California District Ellis, Dannenberg. support J. Nathan DSL, The abandoned this DSL adopted largely system. the Legislature’s that “the implemented finding purpose imprisonment crime is “best punishment,” goal served terms to the proportionate offense,” seriousness for sentence provision “uniform[ity]” (§ similar (a)(1).) offenses. DSL, alternative,
Under the most felonies are now in the subject, two, three, to three (for terms of four precise years or or example, years, three, five, or (the seven The court selects one of years). these alternatives lower, middle, term) (§ when the sentence. upper imposing subds. (a)(3), (b); Jefferson, supra, see 21 Cal.4th The offender must serve term, credits, walls, this entire less sentence within but then applicable prison *16 3000, must be released for a (§ (b); further subd. period supervised parole. 5, see Cassou & Taugher, supra, 9 26.) Pacific LJ.
However, offenders, certain serious murderers including “noncapital” (i.e., those murderers not death or life punishable by without remain parole), to indeterminate sentences. indeterminate subject These sentencees serve may to life in but become up prison, they eligible for consideration after parole 86, (See minimum Jefferson, supra, serving terms of confinement. 21 Cal.4th law, 92-93.) As under life inmates’ actual prior confinement within periods are decided an executive statutory range This parole agency. agency, Corrections, an arm of the (See is Department now known as the BPT. §
Section 3041 addresses how the Board is to make decisions parole that, indeterminate (a) life inmates. Subdivision one before provides year date, minimum prisoner’s eligible Board shall meet with the parole panel inmate, date,” “shall set release and shall do so “in a normally parole manner that will uniform terms for of similar provide offenses gravity magnitude to their threat to the The release date also must respect public.” with the rules that the Judicial Council issue and “comply sentencing information relevant to the any sentencing release dates.” setting The Board must “establish criteria for the release dates and setting so shall consider the number of victims of the crime . . . and doing other factors in or mitigation crime.” aggravation
In to these the Board has response requirements, regulations adopted the various of indeterminate life inmates. One set of these covering categories their regulations murderers who committed applies specifically noncapital 15, 8, (Cal. on or after crimes November 1978. Code tit. Regs., § set release date to have a is found suitable If such a murderer et seq.)6 the inmate’s (a), the regulations specify under section subdivision tit. (Cal. Regs., term.” Code a “base calculating date to be set release is determine where calculation is to in the (a).) subd. The first step § seriousness, on a biaxial fits, in terms of its relative murder the particular middle, lower, (Ibid.) The matrix specifies of factual variables. “matrix” murderers For second each matrix category. “base terms” for upper life, from “base terms” range these of 15 years sentences serving statutory 19, 20, or 21 15, 16, years matrix category or 17 for the least serious years (Id., 2403, (c).) subd. for the most serious. § selected, the Board must impose matrix category
Once the proper not circumstances mitigating it finds aggravating the middle term unless 15, 2403, (a).) If tit. subd. (Cal. in the matrix. Code Regs., accounted for § circumstances, base “shall the lower it mitigating impose Board finds (id., middle base term” or another term shorter than the § term circumstances, it (a)); “may upper if it finds aggravating impose subd. (id., middle base term” term or another term than the longer § base (a)).7 However, the circumstances (b) of section 3041 specifies subdivision life inmate’s release on need under which a date for an indeterminate *17 be set (b) that a release date shall not be fixed. Subdivision provides parole for the that the inmate is unsuitable “unless determines” presently [the Board] date, i.e., offense of a that “the of the current convicted gravity fixing parole offenses, convicted offense or or or the of current or gravity past timing offenses, a more the safety is such that consideration requires of date, individual, that a for this period parole incarceration lengthy of therefore, (Italics added.) cannot be at this meeting.” fixed indeterminate life sen serving
The murderers regulations governing inmate’s that determination of an individual tences have long provided 6 law, enacted, immediately originally prior had provided, When the DSL was it as murder, degree by parole, death or life without punishment punishable for a first other than one (seven minimum); the years newly provided also “straight a term of life” DSL life, murder, years would be a determinate degree previously for five to punishment second 1976, 1139, 133, 190, five, six, (Former by ch. years. § as amended Stats. § term of or seven 719, 1, 5028, 1973, 5098; 1976, 1124, 1, ch. p. § and Stats. p. compare Stats. ch. § 1297-1298.) for second murder Legislature penalty The later increased the pp. 579, 2, 1978, five, seven, 190, (Former p. amended Stats. ch. years. § or 11 § However, 7, at the General adopted an initiative measure Proposition under section 7, 1978, degree murder was increased to penalty noncapital for first Election of November life, years to life. degree murder was increased to 15 years penalty and the for second 190, day. (See (a).) following effective the The initiative measure became current subd. § otherwise, regulations allow the Board Though Dannenberg suggests it is not clear that upper term or the lower term set forth in the matrix. to fix a release date above below (b) under suitability any subdivision must parole precede effort to aset release date under the uniform-term of section parole principles worded, (a). subdivision As that “the currently regulations specify determine shall whether the life is suitable for release on panel prisoner first served, time Regardless life shall be found parole. length prisoner unsuitable for and denied if in the judgment panel prisoner will an unreasonable risk of if released from pose danger society prison.” 15, 2402, (Cal. (a), added.) Code tit. subd. italics Regs., § Under this if the circumstances of a murder policy, particular the Board that the it who committed is too persuade prisoner presently date, a fixed dangerous grant release Board may deny parole released, without when the inmate will deciding be without considering how the actual of confinement with those prisoner’s period compare served others who committed similar crimes. do set detailed standards and criteria for regulations determining
whether a murderer an indeterminate life sentence is suitable for parole. (Cal. Code tit. Regs., (b)-(d).) subds. Among specified § circumstances of the commitment offense that “tend to indicate unsuitability for release” are that “the committed the offense in an prisoner especially heinous, (Id., 2402, (c)(1).) atrocious or cruel manner.” to be subd. Factors § “the considered this include that offense was carried out in a regard manner which demonstrates an callous for human disregard exceptionally (id., 2402, crime (c)(1)(D)) subd. and that “the for the suffering” motive § (id., trivial in relation to the offense” inexplicable very § (c)(1)(E)). This in which the determination effort suitability any procedure, precedes date, to calculate a release been in the law. has noted case Both long we and the Courts of have described the Appeal consistently parole process for indeterminate life as one in which is within suitability prisoners *18 discretion, informed and a date Board’s must first be found before parole 176, 783, (In (1982) is set. re Stanworth 33 Cal.3d 183 654 Cal.Rptr. [187 rules, P.2d both and determina- suitability pre-1976 post-1976 1311] [under date]; (1983) tion of In re Duarte 143 precedes setting Cal.App.3d 943, 3041, “the left a Legislature 948 Cal.Rptr. [193 176] [under ‘consideration of the as the fundamental criterion in safety’ assessing public 1017, (2001) see also In re Caswell 1026 suitability”]; 92 Cal.App.4th [112 determine has “exclusive Cal.Rptr.2d authority” suitability; 462] [Board date, while Board sets a release must be denied ... if the “normally” “parole in its discretion determines that the would an unreason- panel prisoner pose released”]; (1983) re able risk of if In Seabock 140 danger society com- 29, Legislature’s “primary Cal.Rptr. 310] [while Cal.App.3d [189 date, that mandate set a release exception mand” is that Board “shall” Board”].) of discretionary one within solely power “is to its own recent Nonetheless, adhering the instant Court of Appeal, 549, Board Ramirez, concluded in supra, Cal.App.4th decision review after its only case-specific term uniformity errs by considering In is safe for release on parole. indeterminate life inmate it that the persuades view, (b) of (a) and reconciliation of subdivisions the Court of Appeal’s Thus, the Court (a) receive precedence. section 3041 that subdivision requires concluded, for a murderer the issue of addressing when Appeal term, the inmate’s (1) the Board must compare a life-maximum serving first confinement for the statutory with the minimum actual of confinement period offense, served others who have commit- and with the actual confinements firm, crimes, “uniform” release date (2) must set a ted similar thereupon (3) and may deny not unless it finds the exception applicable, public-safety threat to continuing on the commitment offense reflects grounds parole, in the offense is safety, particularly egregious comparison unless others. court, view. They and the in this echo this dissenting
Dannenberg, opinion effect, life inmate’s that the Board must schedule an indeterminate suggest, offenses, uniform terms for similar release on within the parole, parameters offense, it and of a inmate’s brutality unless finds callousness particular that the case falls and/or other indicia of his so extreme dangerousness, in the regulations. outside “base term” formulas set forth (a) (b) of section The tension between the commands in subdivisions (See the DSL. Cassou & Taugher, 3041 has been noted since inception Nonetheless, 86-87.) we conclude that the Court Pacific L.J. supra, 9 re- have the priorities dissent Appeal, Dannenberg, misperceived and other governing flected section 3041 statutes parole. ‘ statute, effectuate the strive to ascertain and
“In “we construing “generally intent.” Because statutory language pro Legislature’s [Citations.] [citations], we turn to the the most reliable indicator” of that intent vide^] themselves, and ordinary meanings” words them their “usual giving (2000) . . .’ v. Castenada 23 Cal.4th them in context. construing (People contains no 278].) 3 P.3d ‘If the language 746-747 Cal.Rptr.2d [97 said, it and the meant what Legislature plain we ambiguity, presume (2000) 23 Cal.4th of the statute v. Robles meaning governs.’ (People however, If, 176].) statutory 5 P.3d Cal.Rptr.2d [99 *19 construction, we can of more than one reasonable language susceptible and to rules maxims of construction (ibid.) legislative history look to 1082 657, (2003) 390, v. Reed 31 Cal.4th 663 74
(Mejia P.3d Cal.Rptr.3d [3 166] ‘. . . The court [(Mejia)]). consider the of an may impact interpretation [also] on for “where public policy, uncertainty exists consideration should be given ’ to the that will flow (Ibid., from consequences particular interpretation.” Inc. Fair quoting Dyna-Med, (1987) v. & Com. 43 Employment Housing 1379, 67, Cal.3d 1387 743 P.2d Cal.Rptr. [(Dyna-Med)].)" [241 1323] 792, (2004) 290, v. Smith 32 Cal.4th (People 797-798 86 P.3d Cal.Rptr.3d [11 348].) intended,
In our effort to divine what the we Legislature consider not its internal written of the bill’s only meaning expressions “ but also ‘the wider historical circumstances of enact purpose, [the bill’s] ” 657, 663, ment.’ 31 (Mejia, Cal.4th supra, Dyna-Med, 43 quoting supra, 1379, 1387.) Cal.3d When interpreting legislation particu- lar, that, we the traditional the Board regard understanding once has consid criteria, ered all relevant information and its over decisions is authority “ Indeed, broad. extremely discretion in matters has ‘[Board’s] ” “almost been described as unlimited” “great” [citation] [citation].’ 616, 104, (In (2002) re Cal.4th 655 P.3d 29 59 Cal.Rptr.2d [128 Rosenkrantz 894, (Rosenkrantz), (1988) In re Powell 45 Cal.3d quoting 902 174] [248 431, 881].) P.2d 755 Cal.Rptr. while we take ultimate
Finally, for the responsibility interpretation statute, of a we accord to the significant weight respect long-standing construction of a law agency charged its enforcement. (E.g., 699, (2003) Sharon v.S. Court 31 Cal.4th 436 Superior Cal.Rptr.3d [2 554]; 73 P.3d Yamaha (1998) America v. State Bd. Corp. Equalization 1031].) 19 Cal.4th 12 P.2d 960 This is true Cal.Rptr.2d particularly [78 when the Legislature, aware of the established administrative presumably construction, has therein its implied acquiescence by amending governing statute in that do not disturb the Yamaha ways agency’s (E.g., Corp. policy. (1999) America v. Bd. State 353 Equalization Cal.App.4th [86 of Cal.Rptr.2d 362]; (1992) Thornton v. Carlson Cal.App.4th [6 375].) Cal.Rptr.2d these we first note the obvious. words of section
Applying principles, (b) of subdivision takes strongly suggest public-safety provision (a). over the “uniform terms” of subdivision The statute precedence principle that of a “uniform” release date shall expressly fixing provides indeterminate occur unless the Board finds the life inmate on unsuitable grounds safety.” “public (b)
Subdivision of section 3041 states that the determination of suitability shall be based “the of the current convicted offense ... or the gravity upon *20 But and current or convicted offense or offenses.” of timing gravity past evaluation, that, must (b) in this the Board making subdivision does not say life serving the actual of confinement with others inmate’s compare period crimes, in any similar that it must consider term uniformity terms for Indeed, (b) otherwise by subdivision indicates respect. providing by determination should focus risk suitability safety upon posed thus (Ibid.) “this individual.” The and structure of section 3041 language term most that the Board need in logically convey engage comparative criteria, determines, it first analysis only pertinent applying if for danger, inmate no is thus suitable presents public safety parole. like the Court of stresses that the “uniform terms” Dannenberg, Appeal, (a), in section subdivision the fundamental language premise parallels i.e., (a)(1), determinate subdivision of sentencing expressed crime that “the of for which is is purpose imprisonment punishment,” purpose “best served terms to the seriousness of the offense with proportionate for sentences of offenders the same provision uniformity committing Thus, asserted, offense under similar circumstances.” it is has Legislature a into the realm of indeterminate life sentences the of imported philosophy incarceration, fixed and uniform intended period simply punishment offense, to the commitment Board has proportionate presumptive obligation to set life inmates’ release dates accordingly. determinate
The intended to Legislature clearly sentencing some apply (See life-maximum inmates. principles generally Jefferson, supra, offenders, 95-96.) Cal.4th But the is not For most analogy complete. terms, DSL fixed and requires uniform set the court the time of conviction, and release on by mandatory parole. purpose followed confinement for such offenders is prison punishment simply proportionate similar crimes. criminals, murderers,
But for certain serious including noncapital Legislature has retained sentences of imprisonment life, subject when, ever, of sooner release on The decision about if each possibility parole. end, such inmate’s confinement will and the prison actually period parole, if will remains in the hands of the correctional any, actually begin, authority, deferred a minimum until the inmate has served already required confinement. period prison the individual life inmate’s
When the time comes to evaluate authorized—indeed, for release on BPT is suitability required—to parole, for similar eschew term based on similar uniformity, simply punishment crimes, in the in the case. Under this safety interest of public particular (Cassou 86), Pacific L.J. scheme & “hybrid” sentencing Taugher, supra, outset, warrant, at the offense was so serious as to *21 an inmate whose time denied whatever during maximum term of life in be parole prison, of the “this individual” “consideration by the Board deems for required 3041, added.) (§ (b), subd. italics public safety.” from of flows unsuitability pertinent So as the Board’s long finding criteria, before the Board evidence” in the record and is “some by supported 616, concern (Rosenkrantz, 658), the supra, overriding statutory Cal.4th the indetermi any in the individual case safety trumps expectancy public with those served life have in a term of comparative equality nate inmate may not the Board to Section 3041 does require other similar offenders. by of believes the reasonably gravity an inmate’s release when it schedule such to the continuing danger simply the commitment offense indicates public, exceed that of the confinement will not ensure that the of inmate’s length crimes. others who committed similar we read the of language in this is confirmed when regard
Our conclusion context. Other governing parole section 3041 in its statutory provisions and after both before decisions for indeterminate life prisoners—adopted the notion that the determination enactment of section 3041—buttress the safety involves a assessment of public suitability paramount offender, analysis without to a regard comparative risk by particular posed other by of similar offenses committed persons.
Thus, be hearing that notice of a long the statutes have required conviction, including to local officials connected to inmate’s given matter, trial the inmate’s attorney, who tried the district judge prosecuting (a).) (§ subd. agency. and the law enforcement investigating attorney, material from forward to the Board any unprivileged The judge may . . . “that is to the or sentencing pertinent question inmate’s trial proceeding (Id., (f)(2).) The Board . subd. whether the . . Board should grant parole.” these by and recommendations submitted consider the statements must officials, . . . that order granting denying parole and must “enter on its (§ considered it.” and recommendations have been statements [such] (f)(3).) (c); subd. see also § at the voters part Proposition Under section adopted Election, 8, 1982, their next of kin who have so victims or June Primary hearing, appear, be notified of a are entitled to pending requested crime concerning views reasonably “to express adequately [their] statements, “and these The Board must consider and the person responsible.” would . . . whether person pose include in its a statement shall report (Ibid.) on if released safety parole.” threat to public has also section enactment of the Legislature adopted Since 3043.5, Under in Parole Act of 1984. the Condit-Nolan Public Participation statute, to any in the or denial of grant this interested “any person of views in . . . shall have the to submit a statement right support prisoner Board, whether deciding or in to the granting parole. opposition review all information received from release the on shall person parole, of all current and convicted gravity timing past to insure public and to insure that the safety offenses have been consideration given adequate review, been considered. of its has adequately Upon completion all include in its a statement that it has reviewed shall report [B]oard *22 information received from the and conclusion as to whether the its public would a threat to the if released on safety parole.” person pose public 3043.5, (§ (b); (f)(3).) see also subd. §
The obvious of these statutes is to that Board has purpose guarantee each individual addressed the fully releasing public safety implications inmate it decides to do so. on parole statutory life-maximum before that on this be “considered” requirement public input subject necessarily influential, that it be and even decisive in cases. may implies appropriate must, None of the relevant laws states or the Board or implies may, unless discount safety concerns voiced interested public persons inmate’s crime is so as to fall outside the Board’s egregious exceptionally Indeed, “uniform terms” formulae. the Board cannot its perform “public if it must start and formulaic input” “public safety” obligations by calculating dates, “uniform” release from parole prohibited denying parole except to inmates whose crimes are outside the norm. demonstrably 3041.1, statute,
Similar to which considerations another 1984 section apply the Governor to review of decision a Board empowers any panel request to or grant to a life inmate. “The Governor shall state reason deny parole or reasons for the and whether the is based on a safety request, request concern, a may concern that the of current or convicted offenses gravity past (Ibid.) consideration, have been or on other factors.” When given inadequate Board, bank, the Governor a must sitting makes such the full request, decision, review the and “a vote in favor of a by majority parole (Ibid.) current Board members shall be to grant required parole.” 3041.1, Under to review of a right Governor’s request cases, is not limited to the most and he is not grant “egregious” parole or show that the commitment offense is allege “particularly required Nonetheless, the full Board must standards. egregious” by comparative bank, thereafter accede to a for review in gubernatorial request cannot be Board. granted vote of the entire majority except upon in section 3041.1 that the Board’s members must
Nothing suggests more substantially vote in unless the inmate’s offense is favor Indeed, than most of the same class. it would seriously serious others a full Board undercut the Governor’s unconditional statutory right require if, concern that had decision majority public safety prompted despite act, the Board the hearing Governor to was required rubber-stamp panel’s decision, inmate, and to affirm a release date for a life dangerous potentially unless it found that the commitment offense was egregious” by “particularly to other similar offenses. comparison the enactment of section the Governor give
Measures since adopted for murderers such At the Dannenberg. even over greater power Election, the voters November General adopted Proposition V, (b) which added subdivision to article section 8 of the California Constitu- (§ 3041.2), the tion. Under this and its provision, implementing legislation Governor, Board, after the record before examining applying consider, affirm, same factors the Board is or reverse modify, required on a murder a Board order sentence. granting denying parole authori- All these laws first emphasize responsibility *23 release, and, ties is to evaluate the of an individual inmate for suitability safe assessment, to take into account all information and making pertinent victims, about case from inmate’s officials input particular familiar with his or her criminal and other members of background, who have an interest in the or denial of to this grant prisoner. public parole that the Board must look This is responsibility incompatible premise matrices, to term to the Board’s own term or to length, primarily comparative offense, the minimum term for the and cannot retain a inmate’s statutory risk, life as a unless it finds he or she falls dangerous safety prisoner, public rigid outside those parameters. the Court of and the members of this court
Dannenberg, dissenting Appeal, (a) out that subdivision They themselves our conclusion. array against point date, fix a to normally” of section 3041 the Board “shall says parole pursuant (b) con- (italics added), of term and that subdivision uniformity principles it finds that consider- safety firms the Board “shall” do so “unless” asserted, in the case. This it is wording, ations such action prevent particular release, the distinct clear that “uniform” influenced in part by makes offense, the inmate’s is the mandatory minimum term set statute for by 3041, date (§ (a)), while the refusal to set a release “norm[]” terms, which, are be in comparative exceptional. must reserved cases Ramirez, it, Board’s to authority As “the supra, 94 549 Cal.App.4th put inmate’s current or make an based on the of a life term gravity past exception
1087 ‘normally’ the rule that offenses should not so as to swallow operate Otherwise, destroy be the Board’s would case-by-case rulings granted. 3041, (a), . . . subdivision and also contemplated by proportionality statutes, which distinct terms of life without possibility murder by provide life, and kinds 25 and 15 to life for various years years degrees parole, Rosenkrantz, 570; Cal.4th supra, of murder. see also p. [Citation.]” (Id. 616, view, meaning In our this far overstates interpretation statute’s words.
The word “shall” in a statute is deemed generally mandatory (e.g., Common Cause v. Board Supervisors (1989) Cal.3d [261 610]), 777 P.2d but that is not conclusive. (E.g., Cal.Rptr. presumption People Superior Court (Zamudio) v. (2000) 23 Cal.4th 194 [96 686].) P.2d In section “shall” is not used in an Cal.Rptr.2d Instead, (a) absolute sense. the word is qualified in subdivision “nor by word not mally”—a is further limited susceptible precise application8—and “unless,” the rule that the Board should not (b) in subdivision followed set a release date if “consideration of the public safety” requires lengthier incarceration for the inmate. particular
Thus, the mandatory duty belies the statutory language notion of to set inmates, release date for all indeterminate life or for such any particular Indeed, our of section 3041 would be the same if the prisoner. reading omitted had Legislature (a), word from “normally” subdivision qualifying and had that the Board “shall” set a “uniform” release simply provided “unless,” date (b), to subdivision it concludes that a pursuant longer period confinement is warranted for “this individual” concerns by public safety from the arising circumstances of the commitment offense prisoner’s criminal history. most natural and reasonable either way rproead (a) version is that does not (b) subdivision if only subdivision applies apply, *24 Board, and that the before a life-maximum unsuitable under finding prisoner (b), (a) subdivision need not determine if subdivision might otherwise apply. 3041, (a) The word as in “normally,” used subdivision of section denote a or be a legislative uniform release dates would assumption, hope, typical 8, But, ante). (see or common result for indeterminate life inmates fn. as we seen, have an and Legislature safety” provided express “public exception 8 (2002 ed.) Dictionary pertinently Webster’s Third New International most “normal” defines to, norm, mle, according constituting, deviating as “2: principle” or not from an established or (id.., 1540, 2), relating conforming long-mn “5: expectations p. and to or ...” col. and COMMONLY, “normally” degree” as “1: in a normal manner: to a normal and “2: USU (id., circumstances; 2-3). ALLY . . . : in normal under normal conditions” cols. The American with, (4th 2000) Heritage Dictionary pertinently Conforming ed. most defines “normal" as “1. to, (Id., norm, standard, level, 1199, adhering constituting pattern, type; typical.” p. or 2.) col. 1088 Moreover, both within the Board’s broad discretion. that determination
placed indicated, and the have otherwise in multiple ways, voters Legislature any that the Board not schedule the release of life- their concern abiding 3041, A conclusion that section maximum who is still prisoner dangerous. date, (a), subdivision ever the Board to fix such prisoner’s parole requires factually under of the term Board’s “uniformity],” despite principles of the inmate’s crime belief that the circumstances supported particular clear indicate a would contravene this continuing danger policy.9 in was enacted further The historical circumstances which section 3041 effect, illuminate the statute’s its use including phrase purpose above, (Id., (a).) date.” As indicated “shall set a release normally convicted felons received under the almost all sentencing regime, pre-1977 terms, (Cassou indeterminate often with short mínimums and life máximums. 6-9.) Pacific L.J. Within this broad range, & 9 Taugher, supra, to “determine and was unbridled authority given virtually statutory power redetermine, after the actual commencement of the what imprisonment, time, (former 3020), and if such shall be length any, person imprisoned” § walls and “to ... to outside go prison allow prisoners upon parole time, 3040). (§ authority’s enclosures” Over it became practice it defer decisions until term-length “developed simply parole-release ‘ready go each individual feeling prisoner case] [in ” (Cassou & at Taugher, home.’ supra, p. Not the least were This came into disfavor for reasons. system many (2) the crime and (1) gave that it failed to fit the complaints punishment release, a fixed date for thus actually promoting inmates no advance hope with the within the disenchantment Increasing problems, prisons. disciplinary indeterminate of Senate Bill No. scheme led to introduction sentencing which, 42), after a tortuous (1975-1976 Sess.) (Senate legisla- Bill No. Reg. (Cassou & Pacific L.J. supra, tive became the DSL. Taugher, process, 6-13.)10 concurring dissenting opinion attention called to Chief Justice Bird’s Our There, arguing that
People
Allen
(1986)
P.2d
v.
Cal.Rptr.
1089
ad
and administrative developments,
court decisions
Contemporaneous
law,
further influenced
sentencing
in the indeterminate
dressing problems
First,
(as the
Authority
42.
the Adult
Senate Bill No.
final
shape
the reformers’
own to meet some of
known)
was then
acted on its
authority
was
[1975],
creating
Directive 75/20
issued
“In
Chairman’s
criticisms.
April
and factors. Following
on listed ranges
dates based
setting
structure
directive,
to abolish the practice
numerous
were conducted
hearings
this
dates for almost
and to establish fixed parole
a decision on
deferring
5, 14.)
L.J.
Taugher, supra,
(Cassou &
Pacific
all inmates.”
v.
(1975)
In re (1975) 14 Cal.3d 537 P.2d Rodriguez Cal.Rptr. [122 384] sentences, (Rodriguez) expanded upon the constitutional proportionality under the indeterminate and the Adult Authority’s term-fixing responsibilities, There, received the sentence of one statutory law. an inmate had sentencing conduct a child to life for a incident of lewd and lascivious year single upon a (§ 288). disability under 14 The evidence indicated his developmental and he factor in the offense. His conduct was exemplary, prime prison had in for 22 exhibited no traits of inherent Yet he been criminality. prison of his term length without a decision the Adult about years Authority or his readiness for parole. Rodriguez held that a life- Wingo, an to that
By analysis parallel constitutionally maximum sentence for lewd conduct could be disproportion- bar, said Rodriguez, In the case at ate to an individual offender’s culpability. Moreover, the 22 had was excessive. the inmate served years already reasoned, because of the of “as Rodriguez general applied” dispro- problem law, that must be con- under the indeterminate law sentencing portionality for all actual maximum terms requiring strued as the Adult to set Authority 165, 1-100, (See original ch. adjusted provisions §§ law. Stats. numerous Assembly 639-680.) July Bill operative also became on 1977. pp. “cleanup” bill 666-667), (see pp. Stats. ch. § No. made minor revisions to section 3041 section, since, language ways the statute’s to that then or have altered but no amendments to the issue before us. pertinent *26 1090
inmates, to their Rodriguez individual stressed proportionate culpability. term, the Adult to fix an inmate’s maximum Authority’s responsibility 3020, derived from former section was distinct from its under section power 3040 to decide if and when the for conditional release. ready prisoner Thus, concluded, the inmate who had made in Rodriguez good progress term, fixed could be before the end of his maximum prison granted parole the Adult but in event be of must released Authority, any upon expiration 639, 646-653.) that maximum term. 14 Cal.3d (Rodriguez, supra, (1976) in In re 1030 Finally, January Stanley Cal.App.3d [126 held that the Adult Chairman’s Authority regulations, Cal.Rptr. 524] 75/20, Directive were invalid because based the release dates for they parole indeterminate sentencees the nature of the commit “primarily upon principle offense, ment mathematical increments for additional supplemented by pre 1038.) (Stanley, commitment offenses.” at This the Court supra, approach, p. said, of violated Adult to consider all factors Appeal Authority’s duty relevant to the In re (1972) inmate’s for Minnis suitability parole. Citing 997], the Cal.3d 639 498 P.2d Court of indicated Appeal Cal.Rptr. [102 that, law, under the indeterminate these factors sentencing promi pre-1977 included the and nently inmate’s conduct his postcommitment progress 1039-1041.) toward rehabilitation. (Stanley, supra, pp. DSL, of with its fixed terms followed
Adoption statutory by mandatory of resolved these issues of felons. parole, many regard majority But the standards remained for those term-setting problem parole who, DSL, serious offenders under the would retain indeterminate life- maximum sentences. Section 3041 “for first time sought [to establish] ... (Pamas consideration” for these offenders. specific procedures Salerno, Behind, & Substance and the New Determi- Impact Influence (1978) nate in L.Rev. Law 11 U.C. Davis Sentencing California
In section combined the Legislature term-setting partially had under law. Rodriguez functions described as separate prior dates, (a), Under firm release fixed in advance under subdivision offenses, similar would define the uniform incarceration for principles (See actual life Jefferson, supra, terms imprisonment eligible prisoners. 86, 95-96.) But made clear that the (b)of 21 Cal.4th subdivision statute would have the an individual authority duty, express power case, date, of a firm release and thus to continue fixing postpone sentence, indeterminate status within his or her life-maximum if it inmate’s crime or criminal history found circumstances prisoner’s above, As nothing risk to presented continuing public safety. explained now, then the Board must the offender’s crime says compare *27 determination, and other statutes estab- that parole with others before making case.11 each life for safety prisoner’s lish the concern public paramount long- the Board’s own with Our of section 3041 comports interpretation above, Regula- indicated the Board’s of the statute. As standing construction life that, a indeterminate for considering particular tions when parole specify inmate, a base term and shall set suitability the Board shall determine first deemed suitable for date) the is (thus a release establishing prisoner parole if 2403, 15, 2402, see also (a), (a); subd. (Cal. tit. subd. Code Regs., parole. §§ 2432, 2433, id., 2422, 2423, (a), (a).) The (a), subd. subd. (a), subd. §§ determining the Board is to consider in numerous factors regulations specify suitable—i.e., the nature including safe—for parole, whether the prisoner However, they criminal history. of the commitment offense and the offender’s determine an individual inmate’s indicate that the Board must nowhere class, of the same or to reference to other offenders suitability by 2402, (b)-(d); (Id., minimum offense. subds. term for inmate’s statutory § 2432, id., 2422, (b)-(d), (b)-(d).) see also subds. subds. §§ numerous amendments to California’s In more than 25 years, despite laws, not disturbed the Board’s has sentencing Legislature Under the in this fundamental regard. particular of section 3041 interpretation circumstances, thus evidence that the has Legislature we find persuasive in the Board’s construction. acquiesced 2001, attention to issues raised this
In indicated its close Legislature Senate Bill statute when it substantial amendments to section 3041. adopted 778), Senator (2001-2002 Sess.) (Senate No. 778 Bill No. Reg. sponsored by Burton, 3041, (b). (d) added to section and modified subdivision subdivision 2001, 131, (d) the Board (Stats. §2.) sought ch. New subdivision help legislative history 3041 do not undermine our drafting progress The and written of section 2, 1974, simply originally on December Senate Bill No. construction. As introduced 1168, sentencing indeterminate law. As proposed technical amendments to section basic 17, 1975, sentencing as a determinate amended the Senate on March the bill took new form version, would meet provided In that an indeterminate sentencee scheme. this section date, panel at time the year eligible parole the minimum which parole panel with a one before date, “may decline” to set a date if normally” panel set a release but that “shall risks, safety if the inmate’s mental history presented public inmate’s offense or criminal Amend, 281.) (Sen. Sen. Bill No. Mar. incompetence prevented § such action. version, 7, 1975, to near its current Assembly August amendment of altered section 3041 An date “shall set . . . language provision that a release “may [be] decline” with replacing that history are such that the inmate’s offense or criminal parole panel finds unless” Amend, (Assem. Bill to Sen. safety requires longer incarceration. consideration of the 7, 1975, 7, 1975, added the current August amendment also Aug. No. § uniformity, to formal pursuant principles that dates be set under requirement release criteria, We ground denying parole. incompetence as a sentencing and eliminated mental authority that the original provision draft’s difference between see no substantive reasons, date, decline,” provision the current to set a release “may specified specified preclude reasons that action. authority shall set a date “unless” for an hearings by clear inmates up backlog awaiting parole providing, 31, 2003, December could ending hearing panels emergency period consist of two one “full” commissioner only only persons, participating.12 (b)
Senate Bill also altered of section 3041—a No. 778 subdivision Then, now, subdivision issue in this case. directly (a) on the “any hearing subdivision provided part person panel *28 to the full Board for an en review of decision request any regarding parole review, a in favor banc In case of a vote of full hearing. majority [Board] is to to Without grant any altering parole required parole prisoner.” (a), (b) (1) that subdivision the bill added to subdivision language provide an inmate suitable for is final unless over- a decision finding parole panel (2) a decision may turned the full Board within 120 such by days, panel (a) after not be overturned and ordered reheard the full Board by except decision, with the who in the consultation commissioners participated panel vote, (c) that (b) a taken after a by hearing, findings majority upon fact, committed material errors of law or or because of material new panel information on the inmate’s bearing suitability. of Senate Bill No. 778 indicates that new section legislative history (d) subdivision was anecdotal information that by backlog inspired 2,000,
of inmates with overdue had more than hearings grown causing in individual with the result that inmates with one-year delays hearings, were two for their next years so-called denials one-year waiting parole (See, of Sen. Bill analysis Assem. Com. on Pub. hearings. e.g., Safety, 21, 2001, 5; (2001-2002 Sess.) amended June Assem. No. 778 as Reg. p. (2001-2002 Reg. Com. on of Sen. Bill No. 778 analysis Appropriations, 21, 2001, Sess.) 2.) June as amended p. (b),
The amendment subdivision to Senator according Burton, information . . . that is “anecdotal prompted by [the Board] a favorable decisions referring suitability re-hearing by parole than the that determined This is suitability. other hearing panel panel decided that done without the commissioners who being consulting guidelines inmate was suitable for does have parole. [While] [the Board] Board, . . being review of a decision the entire . this process (Assem. Safety, analysis Com. on Pub. re-hearing by-passed by process.” 21, 2001, 6; (2001-2002 Sess.) amended June p. Sen. Bill No. 778 Reg. (2001-2002 of Sen. Bill No. 778 Assem. Com. on analysis Appropriations, Sess.) as amended June Reg. p. (a) only of “full” provides panels otherwise that must consist Subdivision of section 3041 commissioners, panel. on each with at least two “full” commissioners “deputy”
or which examined the
Thus, process recently Legislature for the reviewed, and it altered process conducted and were hearings life to indeterminate additional protection of providing purpose apparent received who have hearings, overdue for inmates who were favorable however, areas, in these its concern Despite determinations. suitability to the effect regulations the Board’s to countermand nothing did Legislature (2) date is set a release (1) an inmate must be suitable before found safety as a public find an inmate unsuitable for parole, hearing panel confinement, offense, risk, or his resulting period his without comparing (b) to subdivision appears amendment contrary, other cases. On to assume that mode of procedure.13 agrees that the Legislature not conclusive evidence
Mere inaction is a statute. But construction of and judicial administrative long-standing we believe related subjects, attention to closely recent Legislature’s given at issue Board the well-established against policy that its failure to intervene the legislative have divined indicator that we properly here is significant 434, 445-446 *29 11 Cal.4th (See, (1995) e.g., People Martinez [45 intent. v. & Housing Fair Employment Robinson v. 905, 1037]; P.2d 903 Cal.Rptr.2d 782, 235, 226, 825 P.2d & fn. 7 Com. (1992) Cal.Rptr.2d 767] 2 Cal.4th [5 of an administrative legislative acceptance that the doctrine of [noting “is construction agency be where may construction of statute applied to know of be may presumed that the long standing Legislature one of such it”].)14 the Court of accepting implications
We also note the adverse public policy intercase compari- In the first place, by requiring of interpretation. Appeal’s matter, like backlogs it would contribute significantly sons in every parole 30, 2001, July and became effective signed law on Bill No. 778 was into Senate that, above, under authority then confirmed immediately. all available appellate As indicated 3041, setting a “uniform” suitability precede the of finding of individual must section 549, Ramirez, case to cast supra, published appellate the first Cal.App.4th date. release 12, later, four months on December decided until more than premise, doubt on this was not in, Hence, acquiesced Ramirez’s Legislature approved, there can be no claim 2001. interpretation of section 3041. consistently interpreted the Board has Dannenberg premise takes issue with 1977, 1978, cites, versions and 1979 supplies, superseded He section 3041 in this manner. However, these documents regulations prisoners. life the Board’s for indeterminate of identically current to the regulations are not worded argument. Though superseded belie his version, other, that a determination of principle they advance the consistent or to each offender, shall the offense and safety factors individual suitability parole, for based on (See Regs., uniformity. Cal. Code principles under any a release date precede effort to set id., 228-229; 2280-2283, 77, 28, Register 15, pp. Reg. Register No. former §§ tit. Cal. Notice id., 2280-2283, 230-230.1; Register No. former pp. former §§ No. 2280-2281, 230.1-230.2.) pp. §§ the one Senate Bill No. 778 sought to alleviate. Such a seems process likely to convert each into a proceeding review of comparative every proceeding.15
Even more the Court of significantly, construction could force the Appeal’s Board to schedule the release of inmates life-maximum serving statutory offenders, now reserved for sentences-—penalties serious murder- including the Board’s ers—despite reasonable belief that the circumstances of particular their commitment offenses indicated a risk to the at continuing community above, For the large. reasons set forth we multiple are convinced the did Legislature not wish section 3041 to in that operate way. otherwise,
Though
dissent contends
our conclusion does not contravene
Rosenkrantz, supra,
In that regard, offense, alone, we noted that “the nature of the prisoner’s can constitute a sufficient basis for (Rosenkrantz, denying parole. [Citations.]” 616, 682.) 29 Cal.4th supra, While neither the Board nor the Governor may offenses, said, a blanket adopt no-parole we “the policy particular [parole] authority properly may weigh heavily violence used and the (Id., amount of viciousness shown a defendant.” at p.
However, cautioned, we sole reliance on the commitment offense might, cases, violate particular (a)’s subdivision that a provision parole date “shall be set” under normally “uniform term” thus principles, might also contravene the inmate’s constitutionally protected expectation parole. occur, We that such a explained violation could “for where no example[,] circumstances of the offense could be reasonably considered more aggravated or violent than the minimum to sustain a necessary conviction for that 15The Board’s uniform-term systematize “matrices” are an effort to such comparisons to Still, degree. some every single the decision where might appropriate inmate’s case fit on the matrix, aggravating and what mitigating might distinguish factors it from other cases in category, that matrix would require judgment already considerable new effort and from hearing panels. overburdened subject, suggests On a related the 15-to-21-year dissent that if the Board believes the terms contemplated by the current degree protect “matrix” for second murderers are too brief to public safety, may agree it amend the matrix. We step. Board is free to take this But acknowledged the authority regard statutory obligation Board’s in this does not detract from its independently suitability to the deciding assess of each individual candidate before to set a release date for that inmate. Ramirez, (Rosenkrantz, 683.) supra, 29 Cal.4th supra, Quoting
offense.” that, 549, 570, to the we in order suggested Cal.App.4th prevent rule from the swallowing determinations authority’s suitability case-by-case be an offense must be “normally” granted, “particularly that should 683.) at (Rosenkrantz, supra, to the denial of p. egregious” justify parole. out, Rosenkrantz, had stressed “circumstances In we the Governor pointed . . acts egregious offense . that involve particularly petitioner’s [the] degree to a conviction for second necessary minimum sustain beyond the nature of murder. the Governor could consider Accordingly, properly (Rosenkrantz, 683.) Cal.4th offense denying supra, parole.” must did not subordinate say parole authority routinely Rosenkrantz matrices, to term” otherwise suitability refer its “base or uniformity, in a a deeming of similar offenses before engage analysis comparative unsuitable, life on to receive inmate particular grounds public safety, discussion, date. of the phrase Our our use including “particularly or viciousness of the inmate’s egregious,” conveyed only violence crime must be the offense minimally more than to convict him of necessary (Rosenkrantz, which he is confined. Cal.4th supra, 29
Here, Rosenkrantz, as in circumstances parole authority pointed the inmate’s minimum offense elements of suggesting beyond viciousness noted, second murder. As the Board reacted with extreme Dannenberg and sustained a domestic violence to He struck blows argument. multiple head his wife’s wrench. “fell or was she then pipe Bleeding profusely, water, into a full of where she he pushed” Though bathtub drowned. it, that, vehemently denied the evidence an inference while permitted victim from her her head in injuries, Dannenberg placed helpless water, left it there her until was dead. The assisting least without she its parole panel’s Dannenberg skepticism showed reasonable questions that, about his surmise while he was unconscious their during struggle, briefly tub, faucet, the victim under the accidentally crawled to her face placed struck her head and fell water. on into the tap,
Thus, (Rosenkrantz, there Cal.4th was “some evidence” clearly supra, 616, 658) to the Board’s crime was Dannenberg’s determination support cruel,” disregard callous and showed “an callous “especially exceptionally *31 human and was to the “trivial” suffering,” disproportionate provocation. Rosenkrantz, the use the committed Accordingly, under Board could murder unsuitable, to find him for Dannenberg safety, as a basis reasons of by to receive a firm release date.16 parole 16 ignores Legislature’s The dissent our construction of intended insists section murders,
distinctions, among degree purposes punishment, of between first and second Moreover, aggravated degree. suggests and less within we more murders each dissent course,
Of even term, if sentenced to a life-maximum no prisoner can be held for a grossly period disproportionate his or her individual confinement, for the commitment culpability offense. Such excessive we have held, I, violates the cruel or unusual (art. 17) clause punishment § California 639, 646-656; Constitution. (Rodriguez, 14 Cal.3d supra, Wingo, 169, Thus, supra, 175-183.) Cal.3d we acknowledge, (b) retention, subdivision cannot authorize such an inmate’s even for reasons of this public safety, beyond constitutional maximum of confinement. period
However—and though Dannenberg contends do otherwise—we not be- lieve, scheme, under the current statutory that such constitutional consider- ations the Board a impose upon general actual obligation fix maximum terms, tailored to individual for indeterminate culpability, life inmates. Our prior ruling had parole authority such a general was influenced duty the nature and of provisions the more indeterminate comprehensive sentencing then in effect. system above,
As noted this scheme most convicted prior subjected felons to a broad between their disparity minimum and statutory maximum periods confinement, and it offenses, life imposed máximums for a wide range Moreover, serious and less serious. scheme statutory vaguely empowered authority both to fix an parole inmate’s actual maximum term and to grant untethered, permit pro review, forma denials that are judicial insulated from effective contravening thus rights California life inmates’ due process individualized consideration. however, we have explained, As apply Board must detailed evaluating standards when (See whether an individual inmate public safety is unsuitable for on grounds. § (b); Regs., 2402.) Cal. Code tit. When unsuitability § the Board bases on the offense, circumstances of the commitment it must cite “some evidence” aggravating facts beyond (Rosenkrantz, 616, 658, the minimum elements supra, 29 Cal.4th offense. Here, the Board adhered to these The parole panel limits. conducted a hearing, substantial giving its close Dannenberg’s testimony attention to panel clearly in his own behalf. The then reasons, above, articulated its concluding described that the evidence indicated an “especially callous and cruel” murder. There can be little doubt that the supportable inferences suggest drawn the panel beyond callousness degree minimum elements of second murder. seen, always As we have the Board enjoyed has broad parole discretion with deferential judicial oversight. But these principles deny well-established do not due process. On the contrary, they define and expectancy limit the from life sentence to which due n process (See post.) interests attach. fn. Finally, wrongly dangerous the dissent insinuates murderers sentenced to indeterminate life terms are entitled to earlier simply release because their convictions are in second degree. rather than the contrary, authority may first On the the parole credit evidence suggesting greater the inmate degree committed a of the offense than his or her conviction (Rosenkrantz, supra, evidences. Cal.4th [parole authority may 678-679 credit evidence only that one deliberation].) convicted of second murder acted premeditation
1097 Nonetheless, deferring had authority practice earlier adopted parole. result, the release. As a until it deemed the inmate ready all such decisions being a were large prisoners number California arose possibility crimes—a to for their individual situation excessive punishment exposed maximum by in many simply fixing could cases authority remedy terms. to challenges held that “cruel or unusual
Accordingly, Wingo punishment” authority’s individual indeterminate sentences should await the parole prompt each 14 Cal.3d (Wingo, supra, actual maximum term in case. fixing 169, 183.) a further ruled that the to set Rodriguez authority required sentencee, tailored or her maximum term for indeterminate to his every 639, 651-653.) 14 (Rodriguez, individual Cal.3d supra, culpability. Different current In contrast with the considerations under law. apply prior situation, the number of now life-maximum serving indeterminate persons sentences, substantial, while but a fraction of California’s prison popula- And, tion. the former which life máximums for unlike system, imposed offenses, broad the current scheme such sentences for range of reserves Moreover, we much narrower of serious crimes offenders.17 category have 3041 the Board to an indeter- instructs set explained, expressly in life date—the of term-setting minate release prisoner’s parole equivalent such cases—unless it finds that the nature of the inmate’s offense aggravated criminal raises safety longer considerations history warranting incarceration for that inmate. All these factors possibility diminish refusal, (b), to Board’s under section subdivision set release dates in individual cases will in the de result facto of constitution- imposition excessive ally or will overwhelm the courts’ to assess punishment, ability claims of constitutional disproportionality.
As ‘one we indicated Cal.3d Wingo, supra, “traditionally has his right who is convicted no vested to determination of legally Moreover, ‘a defendant under an sentence less than maximum’ [citation]. indeterminate has no “vested his sentence fixed at right” sentence have than term first other less prescribed by [parole authority] any period “or ’ ‘It uniformly the maximum statute.” has sentence provided [Citations.] held is in effect a sentence for been that the indeterminate sentence legal 86, 92-93, 2; also, Jefferson, supra, (See, e.g., & e.g., 21 Cal.4th fn. see offenses listed 1170.12, (e)(2)(A), (c)(2)(A) prior [felony subd. conviction two or more subd. §§ convictions; life]; 667.51, (d) years more subd. felony up § serious or violent to 25 or [lewd sex upon specified child under 14 with two convictions prior and lascivious conduct offenses; life]; years specified committed [specified sex offenses under § 667.61 circumstances; years]; aggravating imprisonment parole eligibility life with no for 15 or 25 12022.53, bodily (d) great [personal intentional infliction firearm death or § felonies; life].) years injury specified in commission of serious *33 1098 [citation],
maximum term’ subject only to ameliorative power (Id. to set [parole authority] Indeed, a lesser term. 182.) at p. [Citations.]” “ ‘it is fundamental to indeterminate sentence law that such every [an] sentence is for the maximum [statutory] unless . . . the [parole] authority acts to afix shorter term. The act authority may just as validly by considering case and then to reduce the declining term as an order entering reducing ” 182-183; (Id. it . . . .’ Rosenkrantz, 616, see also pp. Cal.4th supra, 29 655; Minnis, In re supra, Cal.3d indicated,
As the current statute case, requires Board to act in each date, either by setting release to by expressly declining do so for reasons of Constitutional public safety. are thus rights adequately protected that those by holding indeterminate life who have prisoners been denied dates, believe, and who because of the particular circumstances of their crimes, that their confinements have become constitutionally excessive as a result, their may bring claims directly court by for habeas petitions corpus. clause, of the cruel or Implementation unusual punishment as construed in Wingo Board, Rodriguez, lawj does not require under current to set premature who, release dates for current believes, life-maximum it prisoners present risks. public safety makes no Dannenberg direct claim that the he behind approximately years has bars is spent constitutionally dispropor- tionate to his second murder. degree when,
We therefore hold that the Board proceeded lawfully without murders, crime comparing Dannenberg’s to other second its base matrices, term offense, or to the minimum term statutory for that prison Board found him unsuitable to receive a fixed and “uniform” release date by to some evidence that the pointing particular circumstances of his crime— circumstances beyond minimum elements of his conviction—indicated exceptional callousness and with trivial cruelty provocation, thus sug gested he remains a danger public safety.18 court,
In his brief on the merits in this has Dannenberg also urged Board erred denial by basing its on its conclusion that he parole, part, 18 Our conclusion that California’s statutes allow the Board to find unsuitability engaging without in a comparative analysis of applying other offenses or “uniform term” case, principles, and that the Dannenberg’s Board adhered to state law in disposes also of his contention that he process rights arising was denied federal due protected liberty from his interest, (See, and expectation, in a “uniform” Board Pardons v. e.g., release date. Rosenkrantz, Allen (1987) 2415]; supra, 482 U.S. L.Ed.2d 107 S.Ct. [96 29 Cal.4th 616, 661.) concedes, Dannenberg liberty As he expectation only has such interest and provides extent that state law argument it. Aside from his that the Board’s decision lacked the support “some evidence”—a contention we have rejected—Dannenberg does not contend he any procedural was denied rights he constitutionally was due in the course the Board’s (Cf„ In re Sturm (1974) e.g., decision. 11 Cal.3d 265-272 Cal.Rptr. 521 P.2d [113 97]; (9th v. Duncan 2002) 903-912.) Cir. McQuillion 306 F.3d . . . and discontinue his full for the crime
“needs to accept responsibility reference, for that.” The Board’s efforts to minimize his responsibility that, notes, he while to his continued insistence Dannenberg apparently wrench, in motion thus setting struck his wife blows with the pipe repeated death, her he did not cause or facilitate directly events that led to her *34 for admit he drowned his wife as basis his refusal to drowning. By using 5011(b), which the Board violated section denying Dannenberg urges, parole, dates, an setting that the Board “shall not when provides require, admission of crime for which an inmate was committed.”19 guilt any
We need not consider the technical validity Dannenberg’s argument, the was harmless. It we conclude that error Board this any respect take manifest that the Board’s reference to failure to Dannenberg’s appears the was to its decision and did not affect outcome. responsibility peripheral Thus, in its oral made clear that the ruling parole panel and reason” for its denial was the callous “primary ruling exceptionally Indeed, cruel nature of the it not clear that the commitment offense itself. is decision to at that extent on any 1999 time was deny parole premised failure to full his role in his wife’s Dannenberg’s accept responsibility death.
In its 1999 first denied the circum- ruling, citing only panel parole, stances of commitment offense and need for further Dannenberg’s Then, decision,” in a self-described further found therapy. “separate panel it was not reasonable to would be sooner than two granted expect parole 3041.5, (See hence. years (b)(2)(A) Board denying may parole, § [after later, one, states, schedule next hearing two rather than if it years that it is unreasonable to would be supporting findings, granted expect parole decision, during In of this latter cited following year].) support panel offense, the nature of the need for further Dannenberg’s “programming” and his failure to full (apparently, therapy), validity accept responsibility. decision to defer a new for two is not panel’s hearing years before us. consideration, The Board insists this issue preserved has not been for our because Dannenberg (see did petition not raise it in his answer to the for review Cal. Rules of Board’s Court, 28(a)(2)), fairly rule and it is scope not within the of the issues set forth in our order (id., 29(a)(1), (b)(1), (2)). granting Dannenberg review rule question But we whether raise, answer,
required upon prevailed superior in his an issue which he both in the court Appeal, losing and in the Court of and which the in all courts party point Board—the on petition opportunity respond below—did not include in its for review. The Board had the on court, Dannenberg’s though the merits to claim reply opted in its brief in this it not to do so. Moreover, straight Appeal’s judgment—thus we are reluctant to issue a reversal of the Court of effectively reinstating denying parole—without examining upon the Board’s order all bases claimed, below, Dannenberg which has We both here that the Board’s order is defective. Dannenberg’s argument. therefore address decision, a flaw in its
We authority’s despite uphold if the made clear it would have reached same has findings, authority Rosenkrantz, (See Cal.4th decision even absent error. supra, view, we conclude that Accordingly, In our the Board has done so here. mistake, not its decision denying the instant if does invalidate any, panel’s of the Board’s order. does not reinstatement parole, preclude
DISPOSITION Ramirez, is reversed. In re supra, The Court of Appeal’s judgment the views to the extent it conflicts with Cal.App.4th disapproved in this expressed opinion. Chin, J., J., J., Brown, concurred. C.
George, *35 murder, E. MORENO, J. of which John degree dissent. Second petitioner I convicted, a crime. But as is its nature serious Dannenberg very stands below, that convicted of the relevant statute mandates people explained the and At normally granted second murder be considered for degree parole. least, (Board) that the Board of Prison Terms not the statute mandates very the Yet the the has committed murder. because deny parole solely prisoner the Board to do that. And decision would majority’s today permit precisely the and individualized safety the does so in name though majority public Rather, decisions, in fact advances neither goal. the majority opinion parole rubber the the the judicial stamping position majority adopts requires decisions, be. might no matter how unfounded or unjust they Board’s is, notes, Code section the a tension between Penal majority There as 3041(b)). (b)1 (hereinafter 3041(a) and section (a) subdivisions and section the in a statute ‘is ascertain construing But “the function of court simply therein, not to insert and declare what is in terms or in substance contained omitted, inserted; are and where there or to omit what has been what has been is, be if or such construction possible, several provisions particulars, Proc., 1858.)” (Ventura (Code Civ. will effect to all.’ give § adopted (1997) Retirement 16 Cal.4th Assn. v. Board County Deputy Sheriffs’ this 891].) P.2d fails majority perform 940 492 Cal.Rptr.2d [66 function, much of section discounting result by ignoring basic its reaching 3041(a). 3041(a)’s statement that that section concludes majority
Specifically, that will date ... in a manner set a release normally the Board “shall parole in magnitude and gravity terms similar provide for offenses of uniform unless otherwise indicated. statutory are to the Penal Code All references (italics added) meaning, has no real their threat to the public” respect release that uniform or hope, is more than nothing “legislative assumption, ante, or common result.” (Maj. opn., p. dates would be a typical effect, holds, can mean “almost that “normally” The majority accordingly dates be mandate that statutory and the can disregard parole never” Board Instead, of the offense. in relation to the magnitude set proportionally 3041(b) that is governed by advances the the Board majority position 3041(a). 3041(b) provides, pertinent to the exclusion of section Section a release date unless it determines “The or board shall set part: panel offenses, or the timing gravity of the current convicted offense or gravity offenses, that consideration of of current or convicted offense or is such past of incarceration for this a more safety lengthy period requires individual, date, therefore, fixed at meeting.” and that a cannot be this should why Legislature What does not and cannot majority explain a method of go through describing extensively granting parole trouble of uncharacteris- that the Board “shall” out if this statute carry expresses—very for a more than a tically Legislature—nothing “hope.” uniform, In addition to section 3041’s mandate to set proportional parole dates, terms minimum before release has established Legislature be in the of second murder and granted, years degree case generally (a).) (§ in the case of first murder. In so years degree noncapital has made the doing, Legislature judgment implicitly term, minimum least serious be at that second murders should set degree for more second murders should be set aggravated *36 3041(b) But under the of section accordingly. majority’s following position 3041(a), without reference the need concern itself with the any to Board not Thus, free to relative offense. the Board gravity underlying appears the first and second degree erase fundamental distinction between legislative murder, and to the convicted of the latter to serve as routinely compel person much time one the convicted of former. re below, in In
The Court of and the opinion Ramirez Appeal’s opinion (Ramirez), forth the (2001) set 94 549 Cal.App.4th Cal.Rptr.2d [114 381] effect, that as we most sensible to the scheme way statutory gives interpret must, 3041(a) the Board to to the entire statute. Because section requires uniform, and to establish a set dates for life “normally” prisoners, parole safety, that is of setting scheme for proportional parole protective 3041(b) an to section must be understood as providing exception 3041(a) in the circumstance when the of the offense is so gravity “abnormal” 3041(a). to section that a date cannot be set aggravated pursuant parole (Ramirez, supra, 569-570.) at Cal.App.4th pp. 94 is that
One that makes the thing majority’s opinion particularly perplexing which the now majority repudiates, we endorsed this recently very position, 1102
in In re (2002) Cal.4th 616 P.3d 29 59 Rosenkrantz Cal.Rptr.2d [128 Justice, court, (Rosenkrantz). As the Chief for the stated: “In writing 174] circumstances, some a denial of based the nature of the offense parole upon alone rise to the level of a due violation—for where might example process no circumstances of the offense could be considered more reasonably aggra vated or violent than the minimum a conviction necessary sustain for offense. Denial of under these circumstances would be inconsistent parole with the that a date be ‘in a shall set statutory requirement parole normally manner that will uniform of gravity terms offenses similar provide Code, (Pen. to their threat to the . . .’ magnitude respect public. § (a).) ‘The Board’s to make an authority exception requirement [to of based on the of a life term inmate’s current or setting parole gravity date] offenses should not so as to swallow rule is past operate Otherwise, to be would “normally” granted. case-by-case rulings Board’s Penal Code section subdi destroy by proportionality contemplated statutes, (a), vision and also the murder of which distinct terms provide life, life without of and 15 to life years possibility parole, years Code, Therefore, [(J[] (Pen. various and kinds of murder. et degrees seq.) § a life term offense or other offenses an indeterminate sentence any underlying (In re must be the denial of a date.’ egregious particularly justify Ramirez, 570.)” (Rosenkrantz, supra, at Cal.4th supra, Cal.App.4th p. 683.) at p. minimize It majority attempts significance Rosenkrantz. discussion, “Our
states: our use of the including phrase ‘particularly egre- that the violence or viciousness of the inmate’s crime gious,’ conveyed only him minimally necessary to convict be more than must offense for ante, which he is confined.” But more than we said (Maj. opn., p. “ above, that. As indicated we stated: ‘The Board’s to make an authority based on the exception requirement setting gravity [to date] so as to a life term inmate’s current or offenses should not past operate Otherwise, “normally” swallow rule that to be granted. destroy proportionality contemplated would Board’s case-by-case rulings ” (Rosenkrantz, supra, 29 (a) Penal Code section subdivision . . . .’ *37 added.)2 Cal.4th at italics p.
The standard is not inconsistent with the statute only majority’s pertinent Rosenkrantz, it not articulate a workable standard of judicial does home in which it deals with the review. This deficit is brought by way that means “the Having egregious” case before us. concluded “particularly 2 se, Rosenkrantz, offense, per we found that certain circumstances of the constituted In murders, i.e., degree there was considerable egregious comparison conduct in to other second a premeditation evidence that the crime was committed with and deliberation sufficient for (Rosenkrantz, supra, 678-679.) pp. at finding degree of first murder. 29 Cal.4th
1103 minimally must be more than or viciousness of the inmate’s crime violence confined,” he is (maj. opn., him of the offense for which necessary convict ante, the facts of the case. “As 1095.) at to review majority p. proceeds noted, and sustained violence to the Board reacted with extreme Dannenberg wife’s head with a pipe a He struck blows to his argument. domestic multiple into a bathtub full wrench. she then ‘fell or was pushed’ Bleeding profusely, it, water, denied the evidence where she drowned. he Though vehemently that, from her injuries, an inference while victim helpless permitted water, in the at least left it there without her head or Dannenberg placed ante, 1095.) The her until at (Maj. she was dead.....” assisting opn., p states, “Thus, then there was ‘some evidence’ clearly majority conclusorily: (Rosenkrantz, 658) Cal.4th the Board’s determina- supra, support cruel,’ ‘an tion that crime was callous showed Dannenberg’s ‘especially callous for human and was disregard suffering,’ exceptionally disproportion- ante, 1095.) ate to the ‘trivial’ at (Maj. provocation.” opn., p. it
This conclusion raises more than provides unexplained questions murder answers. What is it about these that make this second degree facts How is the Board to determine what facts particularly egregious? that constitute murder? How is a court to review egregious particularly clue, determination? The no because the of a majority gives us concept crime “more than to convict being minimally necessary prisoner] [a ante, 1095) offense for which he is confined” at (maj. opn., p. essentially Second murder is an abstraction that consists of meaningless. degree certain legal elements. Particular second murders have that fit degree facts within these elements. These facts are never “necessary” “minimally murder, to convict of a necessary”3 someone second because we can degree other facts that would also lead to a second murder always imagine degree Furthermore, facts, conviction. these because are facts about a second they murder, will almost involve the defendant degree invariably acting violently, and, if cruelly, out of out of acting provocation, greatly proportion (otherwise the have been convicted of defendant would provocation self-defense). or exonerated If the Board labels a manslaughter through second murder callous and cruel” and “an degree exhibiting “especially callous for human then recites exceptionally disregard suffering,” But, majority phrase “minimally necessary” It is from plucks true Rosenkrantz. above, quoted phrase passage recognizes in a the Board’s appears Rosenkrantz (Rosenkrantz, supra, obligation normally, uniformly proportionally set dates. 683.) p. meaning Cal.4th at court in that context was that unmistakable Rosenkrantz degree denial of a second murder commitment offense cannot itself be the basis for the murder, second “particularly egregious” it is so that “the Board’s unless case-by-case destroy rulings proportionality contemplated Penal Code [would not] Ramirez, (Rosenkrantz, supra, (a) p. quoting . . . .” at subdivision 29 Cal.4th words, supra, necessary” Cal.App.4th p. phrase “minimally In other makes Rosenkrantz, in the not when it is taken out of context sense context in which it is used but *38 by majority. the case, and, facts of the there for a court to review that on any way finding is occasion, it untrue? The no answer. Its to find majority provides explicit answer to be “no.” implicit appears the Board
The abolition of review whenever majority’s judicial implicit the contravenes the bases its denial decision on commitment offense parole limited but due of significant rights process parole applicants required I, Const., 7, (a).) has (Cal. California Constitution. art. As court § “ an has the ‘to have his explained, applicant right, application [parole] of all relevant considered” based an individualized consideration “duly upon ” 655, (Rosenkrantz, factors.’ Cal.4th at In re Minnis supra, 29 p. quoting words, 749, 997].) other (1972) 7 Cal.3d P.2d In Cal.Rptr. [102 must be more than mere forma given “something pro parole application (In (1974) re 11 Cal.3d consideration.” Sturm Cal.Rptr. [113 (Sturm).) 521 P.2d As we have stated: “Under time-honored of principles 97] law, common ... to ‘due consideration’ right parole applicant’s unless there also exists a remedy against cannot exist sense any practical Cranch) (See (1803) (1 their v. Madison 5 U.S. abrogation. Marbury Hence, 60].) to due right 161-163 L.Ed. our prior recognition [2 consideration of rise to a concomitant necessarily gives parole applications (Sturm, 268-269.) It was the supra, to an available right remedy.” pp. due and the need for an rights of a recognition parole applicant’s process reaffirm that effective for their violation that led this court to remedy recently “some denial decision could not be sustained unless supported parole 655-658.) (Rosenkrantz, evidence.” Cal.4th at supra, 29 pp.
Under the if the Board majority’s approach, gives parole applicant of the and then labeling mere forma facts case consideration—reciting pro nonethe- actions callous and cruel”—a court will “especially applicant’s The banishment of judicial less be Board’s decision. obliged uphold means the judiciary review from the under these circumstances parole process due rudimentary rights will be disabled from even most enforcing process of parole applicants. individualized, due that the Board not be may giving
The possibility In consideration to is more than hypothetical. parole applicants on because the Board no life were released parole, partly example, prisoners (Legis. analysis to an estimated 18 granted Analyst’s prisoners 2,000 Bill, D-59) suitability out of about Budget 2000-2001 p. 24, 2005]), Jan. hearings (<http://www.bpt.ca.gov/caseload_stats.asp> [as because the then Gover- less than 1 of those eligible, partly percent even stringent nor’s more parole policy. understandable, but troubling. Board’s reluctance to grant immediate and his
Denial of incur the wrath prisoner *39 the incur to a who reoffends will But granting parole prisoner supporters. Pin on New Hope Convicts Simerman, (See of at society large. disapproval Governor, 22, risks 2004) the [discussing Times (Aug. political Contra Costa therefore have little to gain The Board’s commissioners of granting parole].) the and accordingly, and much to lose by granting parole, potentially is to the decision to forma consideration give only parole incentive pro more essen- review all the This incentive makes strong. meaningful judicial tial. means of section 3041’s
The its justifies holding by majority primarily to excuse the safety concern with But overriding safety. using public 3041(a) under section Board’s failure to with its mandate statutory comply First, 3041(a) at itself makes misses the mark for least two reasons. section central, “uniform that the terms for offenses concerns public safety dictating and “in to their threat to of similar be calibrated gravity magnitude” respect words, determined In the that for those other has public.” Legislature murder without convicted of second murder first degree degree special circumstances, uniform of dates can and setting proportional, parole in a manner consistent with public safety. Although should be accomplished a suit there are other individualized considerations to prisoner’s pertaining behavior in his threat such as his ability public safety, (see tit. his after and his Cal. Code prison, plans age Regs., prison, 2402), 3041(a) it is clear that the commission of a second from section § to other degree murder that is not second exceptional respect a date. murders does not a basis for set failing provide itself words, In other the Board’s regulation no one is challenging validity served, time that a life shall be found “regardless length prisoner if unsuitable for and denied in the judgment panel prisoner will an unreasonable risk of if released from danger society prison.” pose (Cal. (a).) Code is denied a tit. But when Regs., prisoner § offense, date as a result of the seriousness of the commitment solely he and all the evidence to the fact that is no longer postcommitment points 3041(a) that (b) dictates commitment danger society, offense be in to other offenses of the same egregious particularly comparison there no indication contrary, class. to the is Despite majority’s profession least, manner will in the nor safety this proceeding compromise public believed it would. indication any Legislature Second, had other safety Legislature although public paramount, concerns, of the legislative which the in its discussion majority suggests which section 3041 is a of the determinate law of history sentencing part. indeterminate no sentence inmates “gave There was the concern release, date thus actually disciplinary advance of a fixed hope promoting ante, within the Cassou & (Maj. citing problems prisons.” opn., p. Game Determinate New Numbers Sentencing Taugher, California: (1978) 6-13.) L.J. no doubt a concern with 9 Pacific There was also *40 of to in someone who has money sums expending large taxpayer keep prison served his and little to the as well as humanitarian sentence risk poses public, and uniformly granting concerns. scheme of legislative normally dates to those convicted of second murder reflects this degree legislative Board, concerns, the of various which the balancing majority, following ignores.
It endorses the Board’s majority way the perhaps possible the result release because it seeks to avoid undesirable conducting parole I do not believe such mass release mass release of convicted murderers. First, like or it will occur for several reasons. anything approach Ramirez, Court of below and in is to remand to Appeal quite properly, manner, in a to set a necessarily Board to it to correct not require proceed date, in have done. release as the trial court this case would Second, and more the Board is still a deal of fundamentally, given great under the Court of the statute. Its power Appeal’s interpretation power First, 3041(a) it broad gives rulemaking comes from two sources. uniform, for release dates. The Board has authority setting proportional parole mandate, a it although established matrix that to appears comply not use that matrix for determinations. The suitability does Ramirez court and the Court of below used the matrix because it reflects the Appeal uniform, at a release date Board’s own effort establishing proportional parole 3041(a). with the intent But the Board is free to scheme consistent of section matrix if it believes that the sentences reasonably given amend current murderers, therein, are too from 15 to 21 for second years degree ranging Second, the Board has the authority interpret brief to protect public. discretion, Here it is afforded subject its regulations. again, great apply standard, that it not evidence” as well as to the constraint “some only Ramirez, supra, (See manner. in an arbitrary capricious proceed Third, noted, be numerous 563-564.) there are and will Cal.App.4th pp. be legitimately in which the Board’s decision will suitability instances offense, such as on matters other than the commitment based whole part (See Regs., and lack of realistic Cal. Code misconduct parole plans. prison 15, 2402.) tit. § commitment ranking
It should be emphasized gravity fact, own the Board its already task. In extraordinary applies offense is no matrix to determine the seriousness of the offense when it sets a parole matrix, (Cal. date. Code tit. Under the Board’s Regs., § murder an indirect cause like a heart second from example, resulting attack, and in which the victim was an would rank among accomplice, crimes, least serious while a murder “calculated to induce terror in the victim” that was committed someone with no personal relationship victim, Moreover, (Ibid.) would rank the most serious. this kind of among of an ranking offense based on factors is what aggravating mitigating (See trial are judges routinely asked do in decisions. making sentencing Ct., (b); Cal. Rules of Rules for Criminal in the Cases Superior § Court, rule 4.413 base terms in determinate sen- determining [factors id., tences]; rules 4.420-4.423 for determining eligibility for proba- [factors *41 tion].) There is no reason to believe Board would be unable to fulfill its statutory obligation.
The majority argues that taken the Court of in this approach by Appeal case and in would “intercase in require every comparisons Ramirez matter” that “would contribute .... Such a significantly backlogs process seems to convert each likely into a proceeding every review of comparative ante, at proceeding.” (Maj. 1093-1094.) I opn., Intercase pp. disagree. 3041, are not comparisons by section nor are inherent required they of 1170, review principle judicial (Cf. of parole suitability decisions. former § (f), 1977, 165, 15, as amended by Stats. ch. 649 p. [requiring § comparative review of determinate sentences].) All that is mandated is for Board to follow its own regulations ranking relative of the crime gravity committed, according aggravating and mitigating circumstances that the course, Board 3041, itself has defined. Of under of any interpretation a is free prisoner that he argue or she should be granted based on parole granted But cases. as there is comparable long some evidence that the Board has with its own reasonable complied regulations, its decision a date denying should be upheld.
Several additional made arguments merit brief mention. majority First, the majority argues legislative acquiescence, particularly regard the 2001 amendments to section 3041 that certain adopted procedural changes to deal with the large in the backlog parole hearing system. Legislative reed,” clear, is the acquiescence “weak when it proverbial is or can be except that a implied, particular administrative construction of a statute has come to the Legislature’s (See attention. Robinson v. Fair & Employment Housing (1992) Com. 2 Cal.4th 235 fn. 7 767].) 825 P.2d In Cal.Rptr.2d [5 Robinson, for was example, Legislature to be aware of certain presumed and Housing of the Fair Employment decisions precedential, published (Ibid.) The issue raised this case—whether prisoner Commission. precise date in accordance with section be denied the of setting could that was not 3041(a) egregious on a commitment offense particularly based not the of subject to other of the same class—was when offenses compared it at the end of decision until discussed administrative or Ramirez any judicial It is significant the enactment of the 2001 amendments. after decision, of no formal of no other Court Appeal disapproved Ramirez Rather, decision, rule. it and no administrative disapproved administrative There is no in the case before it. an administrative implicated practice on that focusing Legislature practice reason to believe particular to section 3041. amendments or amendments when it enacted prior Second, administrative interpretation. deference to majority argues or regulation is that administrative argument practice short to this response stand, exer and courts must statute cannot authorizing inconsistent with its the administrative to determine whether cise their independent judgment Assn, with statute. (California or regulation complies agency’s practice 1, 11 Rank Providers v. (1990) 51 Cal.3d Psychology Cal.Rptr. [270 Moreover, the statutory when 2].) owing P.2d deference particularly (See Yamaha Corp. administrative agency expertise. implicates interpretation Bd. (1998) Cal.4th 12-13 Equalization America v. State [78 *42 that the Board exhibits 1031].) There is no indication P.2d Cal.Rptr.2d a threat to public which constitute regarding prisoners expertise particular case, fact, the record In this are otherwise suitable for parole. safety who of the findings experts the un contradicted disregarded shows the Board had Mr. Dannenberg. evaluated
Third, notification to several statutes requiring discusses majority them for and hearing opportunity input various of a providing parties parole that laws concludes that “these emphasize decisions. The majority on parole of suitability is to evaluate the authorities the first responsibility parole ante, 1086.) But at . . . .” (Maj. opn, an individual p. inmate for release safe hand Board about on the one requiring there is nothing incompatible is a commitment offense particu- when defining follow its own regulations the Board to consider hand allowing and on the other larly egregious, information determina- suitability to a parole relevant provided following the Board about Nor is there anything incompatible tion. Indeed, as decision. of the Board’s 3041(a) review and gubernatorial Governor, Board, clear, not deny parole like the makes Rosenkrantz egregious.” that is not offense “particularly on a commitment based solely (Rosenkrantz, Cal.4th at supra, p. case, I court and the of
Turning to with the trial Court present agree the Board’s determination of for Dannenberg’s unsuitability Appeal cannot be sustained. As the Court of below “The Board stated: Appeal makes no its decision with reference to the gravity attempt justify murders, crime as with other or the Dannenberg’s second compared Thus, of the term he has served. the denial of a release proportionality date for in the failed to sense the Board Dannenberg arbitrary apply (Ramirez, it. controlling legal facts before principles [Citations.] supra, 94 Cal.App.4th 571.)” p.
Moreover, record is not unblemished in terms Dannenberg’s only present infractions, but also showed of contribu- disciplinary many signs positive tion to the in which he prison community lived—including being helpful staff, resource to other and the electrical in San prisoners fixing prison wiring Prison, Quentin with an inmate education commit- volunteering advisory tee and a Jewish religious His advanced education in group prisoners. (61 electrical advanced engineering, at the time the trial court consid- years ered his habeas now), realistic corpus consis- petition, parole plans, evaluations, favorable tently all psychological weigh his favor. facts, In it light these is understandable that the Board some sought reason other than the commitment offense to the denial justify release date. It found this in the declaration that boilerplate Dannenberg face, discuss, needed more “to therapy understand with stress in a cope concluded, nondestructive manner.” As the trial court this finding “entirely Indeed, without foundation in the record. all the evidence is to the contrary.” not, This hole in the gaping Board’s of its decision does as the explanation remarked, Court of below Appeal confidence that the Board “inspire judicial has given the more than mere parole application ‘something forma pro ” consideration.’ sum,
In has Legislature established a to obtain system prisoners *43 uniform, to a parole according proportional system the Board. designed by This court has recognized constitutional to due right applicant’s mandate, consideration. The Board has failed to with that statutory comply and the constitutional one as well. The perhaps majority this court’s places on that failure. Because imprimatur nature of the there parole process, is more than a little risk the Board’s will at times deny power be exercised in an and arbitrary manner. Failure to capricious grant lives, where is due wastes human not mention considerable tax dollars, that, concerns along safety, motivated unquestionably Legislature when it enacted section 3041. This court should not abdicate its to ensure that the Board lives to its responsibility constitu- up statutory tional obligations. of the Court of
I would therefore affirm judgment Appeal.
Kennard, J., J., concurred. Werdegar, 23, 2005. was denied rehearing February petition Appellant’s J., J., Moemo, J., Kennard, were of Werdegar, opinion should be granted. petition