In Re Lugo

Dist, A114111, Div. Three. July A1 18706. First 2008.] [Nos.

In re INEZ TITO LUGO et al. on Habeas Corpus.

Counsel Brown, Jr., General, Bill and Edmund G. Jo Graves Lockyer Attorneys Mary General, and David S. Chief Assistant Julie Garland and Chaney, Attorneys Grunder, General, Neill, Frances T. Assistant Jennifer A. Thomas J. Attorneys Patterson, East, McClain, Rochelle C. Patricia Heim and Webber Damon G. General, for Deputy Attorneys Appellant People. Office,

Prison Law Donald Uncommon Law and Keith Wattley Specter; Respondents.

Opinion McGUINESS, P. rise to these consolidated giving The proceeding J. with a habeas filed began enough appeals simply corpus petition claimed who his had not been conducted suitability hearing prisoner time within the in the Penal Code.1 From that modest beginning, specified into under California transmogrified something proceeding unprecedented action on behalf of life prisoners law—a habeas class corpus parole-eligible has a role as overseer of the Board of Parole in which the trial court assumed far afield of the (Board) on a of matters Hearings range simple complaint to seek relief. motivated the original petitioner specified. otherwise All further references are to the Penal Code unless erred by limiting the Board claims the trial court improperly

On appeal, to state “a significant and the Board Board’s inherent discretion requiring for more than a decision to deny parole in circumstances” change justifying The further contends a denial. Board one-year one year following prior with of their the trial court erred it to inmates provide transcripts requiring $10 date or face sanctions of within 30 hearings days hearing the Board claims the trial for each day delayed transcript. Finally, per class when it chose to the fees awarded to abused its discretion multiply counsel a factor of 1.5. the trial court’s

We affirm the order fees but reverse awarding attorney orders as relate to denials and they multiyear hearing transcripts. Background

Factual Procedural habeas On Rutherford filed an in May Jerry propria persona Rutherford, at in the Marin Court. petition County prisoner corpus Superior sentence, Quentin San State Prison who was serving seven-year-to-life that he had been denial of on given one-year February complained 25, 2003, but that the Board had failed to conduct his subsequent parole date, consideration within one of that in violation of his due hearing year 3041.5, (b)(2). and section subdivision The trial court issued process rights cause, return, order to show directed the Board to file a and appointed Prison Law Office to Rutherford in connection with his represent petition.2 General filed a return on behalf of the Board. other Attorney Among General contended the action should be dismissed as things, Attorney because, filed, next moot at time the return was Rutherford’s consideration had been scheduled. already

Rutherford filed a the Board’s return with a notice of motion along reply had to take motion for class certification. Because his parole hearing yet Rutherford denied the issue in the was moot. He petition place, presented scheduled, that, even the court further if his took as argued place should still because it was address issue untimely parole acting respondent The named in the trial court action is the warden of San Quentin challenges Department State Prison. Because the case actions of the of Corrections (Department), Hearings, proper respon Rehabilitation which includes the Board of Parole acting secretary Department. dent For the sake of under sections 1474 and 1477 is appeal, at on we simplicity subject and because the Board is the of the orders that are issue “the Board.” respondent shall in most instances refer to the as of while capable review. With to the repetition evading judicial class respect issue, certification Rutherford contended the court was to issue required “broad relief on behalf of him and all situated prospective” similarly life entitled to a He prisoners timely consideration that the hearing. argued “current piecemeal approach resolving over timeliness” disputes was insufficient and a waste of resources. judicial motion,

The Board the class certification other opposed arguing among treatment, that habeas things are not for class corpus proceedings appropriate judicial intervention was unwarranted in light legislative action intended to reduce the and the did parole hearing backlog, class not meet putative criteria for certification. In its cited Board an order opposition, denying another, relief in similar habeas that came before a different corpus petition trial judge on the Marin County Court. That trial offered the Superior judge observation, which following well to this action: “The adminis- might apply trative and and the problems delays scheme which makes the statutory a function of the executive branch operations clearly [Board] have created a government, morass uniquely judicial inappropriate resolution.”

The trial court Rutherford’s motion for class certification on granted November The 2004. court defined the class as all prisoners serving indeterminate terms of life with the have who possibility ap- or exceeded their minimum proached dates without eligible parole receiving time their within the parole hearings sections 3041 and 3041.5. In required by this we shall refer to the certified class as opinion, prisoner collectively petitioners. class, certification of the the Board that it was not

Following stipulated consideration as the Penal Code. providing timely parole required After the Board but failed to reduce the attempted largely hearing backlog, the court for a granted writ habeas petitioners’ application corpus by dated 2006. The trial court found that the was February hearing backlog at an rate” and cited “increasing alarming testimony attributing delays The court concluded that “the antiquated procedures inadequate staffing. of individual for writs of remedy individual judges granting applications habeas corpus ordered cannot address this adequately problem.” to “take time Board immediate measures with the comply limits for the Prison Law Office as class holding parole hearings,” appointed counsel for directed notice to class counsel petitioners, prepare give class, intention to a remedial that would be its expressed adopt plan of the substantial deference “as intrusive as minimally possible” light file The court’s order also directed class counsel to given Department. a noticed motion for reasonable fees. issues, filed a statement joint disputed March the parties

On the stipulated and a remedial The approved procedures, plan. stipulated in relevant The provide the following day. stipulated procedures procedures with the on compliance the Board shall file a progress report part Under every days. stipulated procedures, remedial at least once plan or relief lawby equity” are authorized to move “for any permitted petitioners issue any not with the Board’s response to the extent are satisfied they The specify with the remedial plan. procedures raised about its compliance of its orders and further to enforce the terms that the court retains jurisdiction had been backlog be until the hearing indicate the matter will not dismissed at or and remained hearings reduced more than 5 of monthly to not percent months. below that level for twelve consecutive to eliminate The remedial proposed plan required Department of the within 18 months of the court’s approval backlog parole hearings statewide, networked scheduling and to a implement plan develop tracking suitability hearings. system parole issues identified concerned multiyear One disputed parties Petitioners denials of a denial of following one-year parole.3 parole previous Board should not further consideration deny took the that the position two, three, four, or in cases in which inmates had years previously five denial, circum- absent a significant change received a one-year parole individual decisions should stances. The Board’s was that position should not be bound by left to the discretion of the hearing panel, on the issue briefing decisions of The submitted further prior panels. parties denials a denial. multiyear following one-year denials to multiyear Petitioners that the Board “seems to be argued using” claimed reduce the As for its hearing backlog. support position, petitioners in the were who had been denied for one year past that some prisoners there In the Board out was denials.4 receiving multiyear opposition, pointed a denial multiyear its commissioners had ever given no evidence Further, the Board issue argued in order to reduce the hearing backlog. consideration not related to the timeliness of parole denials was multiyear The Board also not before the court. therefore was properly in circumstances it to state a significant change contended that requiring suitability hearing multiyear denial is that the next scheduled consequence of a 3041.5, contrast, (b)(2).) (See By years. subd. not be conducted for another two to five § will (Ibid.) denial, one-year a the matter is heard on an annual basis. when the Board issues poll” questionnaires “lifer com supported Petitioners their contention with 16 unverified multiyear one-year subsequently denials who received pleted previously 16 inmates issued most, multiyear prior denials have followed At the record contains evidence that some denials. evidentiary matter because the 16 one-year showing questionable as an denials. Even polls lifer submitted to the trial court unverified. justifying denial multiyear following one-year denial would improperly restrict the Board’s discretion.

On class counsel filed a motion April for an award of attorney $58,460 fees, fees. Class counsel as reasonable sought amount attorney that class counsel should be of at argued factor least 1.5 in multiplied by Serrano v. Priest of factors described in light 20 Cal.3d 49 1303], P.2d that would a fee Cal.Rptr. enhancement. Al- justify motion, the Board the fee though it did not opposed contest class counsel’s $58,460 contention that constituted reasonable fees for the services provided. Instead, the Board contended that no was and that fee multiplier justified any $58,460. award should be limited to 5, 2006, order dated

By May the trial court ruled on a number of disputed issues, the including handling denials and class counsel’s multiyear request denials, for fees. On the issue of attorney the court ordered the multiyear Board “not to further consideration for more than the deny one in year case of who have been prisoners formerly denied for one in the absence year, circumstances, of a in significant change which must be stated on the record.” motion, At the on the the trial court hearing had observed that petitioners offered “some anecdotal evidence” that were prisoners being given multiyear motion, denials with no justification offered. With fee regard attorney the court noted that the Board did not class counsel’s for fees dispute request $58,460. in the amount of The court found that class counsel was entitled to an enhanced fee based on the factors identified in class counsel’s moving Priest, Serrano v. as well as the factors identified in papers 20 Cal.3d 25. The court found that a of 1.5 was and therefore multiplier appropriate $83,174.49.5 arrived at an enhanced fee amount of in costs and Adding enhanced (which fees associated with the fee motion itself were not attorney $90,203.72, the 1.5 the fee and by cost award totaled multiplier), attorney which the court ordered the Board to to the Prison Law Office forthwith. pay 5, 2006,

The court’s order also Inez Tito as the class May Lugo appointed Rutherford, in had died who representative place original petitioner Jerry since the commencement litigation. 5, 2006, (case June

On the Board filed notice of timely appeal 5, 2006, A114111) No. from the court’s order. At the May request Board, a writ of enforcement of the granted stayed we supersedeas 5, 2006, of the trial court’s consider- following portions May pending (1) ation of the the Board “not to further deny appeal: paragraph directing $58,460, subtracting by taking undisputed The fee was calculated fee amount of out the ($3,010.34), already directly County paid amount to class counsel Marin and then $83,174.49. ($55,449.66) multiplying remaining unpaid fees 1.5 to arrive at who have the case of prisoners than one in year consideration for more in a significant change the absence of for one year, been denied

formerly record”; circumstances, the application on the which must be stated fee award. of the attorney in the computation the 1.5 multiplier the court to submit reports continued Throughout parties remediating that had been made toward concerning progress raised petitioners In a status filed November hearing backlog. report Board was not time that the in the litigation complaint first manner.6 Petition- timely to inmates in a hearing transcripts providing parole months for their transcripts were waiting ers some argued prisoners the Board (b), claimed they requires of section subdivision spite Petitioners of the days hearing. within 30 hearing transcript provide a barrier to that the delay receiving transcripts “presents complained attach a of the access to the courts because must they copy prisoners’ file to challenge writ of habeas they may corpus transcript petition decision.” Petitioners did not suggest purported any aspect consid- timely had on backlog any bearing provision transcript eration hearings. 16, 2006, the Board’s told attorney

At a status conference on November but backlog made to reduce the being transcript court efforts were that the was argued timely hearing transcripts beyond also provision to the issue as follows: of this The court reacted litigation. initially scope “Well, we have with the overdue it’s—it’s kind of same problem be, on the books that this is how it’s to We have laws hearings. say supposed reasons, The court and the for all kinds of aren’t it.” doing Respondents, (b), a to a right stated that under section subdivision an inmate “has hearing within 30 The court held that the issue of delayed transcript days.” because a was of the court’s jurisdiction within transcripts purview furnished to the inmate. The is not unless hearing transcript complete don’t court of a Zen If there’s no we transcript, “It’s sort explained: concept: so, and whether it whether there was a and if what hearing, happened, know was done properly.” the Board estimates hearings, regarding

At status subsequent provided with the when the would be eliminated. Dissatisfied backlog transcript in a brief filed argued toward eliminating backlog, petitioners progress 6 brought attention of the trial reflects that the issue was first appeal The record on 18, 2006, incarcerated at Soledad State September prisoner a letter dated from County Monterey Superior filed in the prisoner corpus petition Prison. The attached a habeas hearing behalf of a delay receiving transcript his on objected Court in which he to letter, sending he was the court putative prisoners. prisoner class of In the cover stated dealing delay “already the court was with the BPH on copy petition of his because hearings.” 1534 27, 2007, that the Board

April should be ordered to reduce the transcript within backlog The Board days. responded by stating was taking that, eliminate the appropriate steps but noted transcript backlog in event, there is no requirement transcripts inmates provided date, within 30 days section citing (b) subdivision and a decision of the First District Court of in In re Bode (1999) Appeal Bode, Cal.App.4th (Bode). In Division Five of this 536] court held that there is no deadline 30-day statutory a life providing with a of a prisoner (Bode, transcript parole hearing. at supra, Cal.App.4th 1003.) The p. court in Bode appellate held the 30-day in section requirement (b) subdivision was designed before the protect release of public a prisoner by giving members of the access to public parole hearing (Bode, transcripts. 1003.) at The trial court below considered the issue at a transcript backlog held on May 2007. The court asked if the Board wished to address whether “aren’t entitled to prisoners really within 30 transcripts days.” Board’s attorney that Bode had responded by arguing decided the already issue and that the under that only requirement case was that inmates be with a provided “within a transcript reasonable amount of time to allow them adverse in their challenge any ruling consideration hearing.” issue, At the conclusion of on the the court argument ordered the transcript eliminated June backlog further ordered that a sanction of $10 day would be per per delayed transcript that date. The imposed following court further its order with expounded upon as follows: respect prisoners, “As far as when should be I’ve read the prisoners getting Bode transcripts, case, it, however, I have great for the Justices who authored respect it’s my 3042[, (b) that reading are to Respondents prepare [section] subdivision] within 30 of the ... I believe transcripts days hearing. are prisoners [][] members of the I don’t think members of the have a or public. greater public lesser to those than So the right transcripts prisoners. arguments prisoners are not entitled to those within legally 30 is an I with. days argument disagree It’s of the statutes that my reading entitled.” they

No formal order was entered held on signed following hearing May reads, 2007. The minute order from in “The court hearing pertinent part: states are to issue 30 after days Prisoners are members of transcripts hearing. $10 the public. Commencing 6/1/07 late is per day per transcript [szc] ordered.” 30, 2007, (case

On the Board filed a notice May of timely appeal A118706) No. from the trial court’s minute order. At the May Board’s we a writ of request, granted supersedeas stayed following

1535 of trial order consideration appeal: court’s provisions pending backlog by eliminate the transcript that the Board (1) the requirement 15, 2007; penalty $10 of a (2) per day transcript per June imposition 15, 2007; (3) the requirement after June delayed transcripts inmates within 30 days Board provide transcripts date. motion, in case we consolidated appeal

On the court’s own No. for the purposes with the in case A118706 No. A114111 appeal and decision. argument

Discussion

I. denials Multiyear erred it not to further by ordering deny

The Board contends the trial court who had consideration for more than one the case year prisoners been denied for one in the absence of a formerly year, significant change court’s limits the unlawfully circumstances. The Board order argues We Board’s discretion. agree. Ordinarily, order the nature of an when we challenged is in injunction. relief, trial court the deferential

review a we granting injunctive apply (2005) (See of discretion v. Cotton 126 ReadyLink abuse standard. Healthcare will be 720].) A decision reversed Cal.App.4th [24 the bounds of reason or for an abuse of discretion when exceeds only rests with the (Ibid.) uncontradicted evidence. The burden disregards party However, (Ibid.) an to make a clear of abuse. challenging injunction showing legal, the issue raised on such concerning injunction purely when appeal or of a statute constitutional interpretation as proper application (2004) Grove (See our review is de novo. Vov. Garden provision, City of issues always Cal.App.4th Cal.Rptr.3d 257] [9 [constitutional novo]; de Assn. Upland City Upland reviewed Police v. Officers on based injunction Cal.Rptr.3d 629] [when facts, review is de court’s light undisputed trial interpretation novo].)

Here, Board are in that claims the legal the issues raised the by purely and order section 3041.5 violates separation powers court’s contravenes issues do legal found in the Constitution. These purely California principles the the court evaluated evidence not us to determine whether properly require Instead, in the need for relief.7 the whether determining issue is the only court’s form of relief violates state law. De is novo review therefore appropriate.8

Parole consideration governed section 3040 et procedures by seq. Jackson, (In and re to all inmates not a apply determinate sentence. serving supra, 39 Cal.3d at 468.) If the p. Board concludes a that a following hearing life prisoner eligible who is for not suitable for on is release the parole parole, next to consider hearing suitability scheduled for the parole normally (Ibid.; 3041.5, following (b)(2).) subd. We the year. have used term § refer “one-year denial” to to such a circumstance. 3041.5,

Section (b)(2) subdivision affords Board discretion under denials,” certain to circumstances issue case in which the next “multiyear scheduled be hearing may scheduled no later than parole following: “(A) Two years any after at which is denied board hearing parole if the finds that it is not reasonable to that would be at expect a granted hearing during and states the bases for the following year (B) finding. Up [][] five years after at which is denied any hearing if the has been prisoner murder, convicted of and the board finds that it is not reasonable expect that be at granted would a and during following years states the bases for the If the finding board defers five writing. years, central file shall be prisoner’s reviewed commissioner by deputy within three at time the commissioner direct that a years may deputy 7 The issue before whether the statutory us is trial court’s order is inconsistent law and with separation may violates the constitutional While it powers. evidentiary be true that showing by any designed petitioners offered is insufficient to remedial support order enforce (see ante), issuing multiyear analysis standards for our denials fn. would be insufficient and incomplete solely vacate ground if we were to the trial court’s on the is insufficient there Instead, evidentiary requested light support ongoing relief. nature of this matter, clarify particular by we that the form of ordered relief trial court inconsistent Board, with the upon relevant statute intrudes afforded irrespective discretion the state of the evidence. We have may no occasion to consider whether and what extent relief afforded in a case be rights in which an inmate demonstrated a violation persistent large has of constitutional court, persons. numbers of Petitioners made no such claim in the but instead constitutional trial argued acting Board effect that the was in a manner constituted an abuse of discretion although appeal, petitioners violated On make references to standards. several brief, process” they legal “due showing purported in their have not offered a factual or (Cf. actions taken the Board rise to the level of a constitutional violation. In re Jackson Cal.Rptr. 39 Cal.3d fn. 12 703 P.2d 100] [while opportunity important right, multiyear eligibility to be heard is denials do not affect only frequency hearings, safeguards guarantee but contains statute founded].) postponement decision will well matter, analysis As a would be no different under the abuse of practical and result standard, misinterprets discretion the law and discretion because trial court abuses its when it City Upland, proceeds (Upland in a authorized law. Police v. manner not Assn. Officers 1301.) at

1537 be notified in writing be held within one The shall year. prisoner The adopt procedures the commissioner’s decision. board shall deputy two and five years.” relate to the for between criteria setting Thus, the Board who is for eligible parole, with life respect prisoner 3041.5, (§ are if certain conditions met. deny for two may up years parole (b)(2)(A).) subd. to a life convicted prisoner With respect parole-eligible murder, if conditions the Board for to five certain may years deny parole up (Id., case, on (b)(2)(B).) are met. In either limitations only subd. are it is reasonable (1) finding the Board’s discretion that it must make a not next leading would be expect granted years up parole its The (2) must state the for decision. Board parole hearing, grounds a significant change statute no that the Board must find contains requirement denial a denial. following one-year circumstances a justifying multiyear state Our Court has held that the Board must its reasons Supreme a one issuing denial in a decision from the multiyear separate denying parole. (In Jackson, re 478.) at Board’s to defer supra, 39 Cal.3d The decision p. annual consideration the same criteria used guided by 2270, 15, (d); see (Cal. determine Code tit. subd. suitability. Regs., § id., 2281; 1318, 1326 In re Burns (2006) 136 Cal.App.4th Cal.Rptr.3d § [40 1].) The not be reasons for the next scheduled need postponing parole hearing (In re different from the reasons completely denying parole suitability. Burns, Rather, 1326.) is an supra, 136 at Cal.App.4th only requirement p. In re (Ibid.; identification of reasons that see also justify postponement. Jackson, 479.) Cal.3d supra, 39 at p. nature, determination its should prisoner whether

“By released as decision. on an executive branch generally regarded decision, it, The discretion implicit expressly [Citations.] (In re Morrall (2002) 102 committed to the executive branch. [Citations.]” V, 8; Const., 391]; 287 also Cal. art. Cal.App.4th see Cal.Rptr.2d § [125 et et seq., seq.) §§

The has been as Board’s discretion in matters described parole-related (In re Cal.4th and “almost unlimited.” “great” Rosenkrantz Nevertheless, 174].) 59 P.3d requirement proce the broad discretionary dural due some limitations process places upon (Ibid.) authorized of the Board. branch is to review judicial powers Board, review, such “the conducting factual basis of a decision of the but in whether some evidence in the record before the Board only may inquire (Id. added.) The decision to . . . .” at italics supports deny parole Board “some evidence” standard of review consideration of a governs decision hearing by issuing multiyear next scheduled postpone Burns, In re (See 1327-1329.) denial. at pp. of separation is embodied in the powers principle California Constitution, III, which as follows in article section provides 3: “The powers executive, government state Persons legislative, judicial. charged with the exercise of one not may exercise either others as power except “ this permitted by Constitution.” ‘The doctrine limits separation powers of one of the three authority branches of to to government arrogate itself (In the core functions of another branch. re [Citations.]’ [Citation.]” Rosenkrantz, 662.) at supra, 29 Cal.4th the doctrine Although is not intended one branch from prohibit action that affect taking might those branch, another the doctrine is violated when actions of one branch “defeat or the inherent of another materially impair functions branch. [Cita (Ibid.) Intrusions into the judiciary executive branch’s realm of tion.]” (See matters violate may separation powers. Hornung v. Superior Court 382] [court inmate allowing their commissioners question regarding parole-related decision violated process separation powers].)

Here, the court’s order the inherent discretion materially impairs 3041.5, Under the Board. section it is within Board’s discre completely tion issue a denial a denial multiyear one-year even if no following occurred, significant change circumstances has so as at least long some evidence the decision. The court’s order the Board supports deprives of that discretion.

There are a of situations in which the issuance of a variety multiyear a following denial denial be the lack of one-year might appropriate despite at in circumstances. For an earlier at any significant change example, denial, Board issued a there have been one-year evidence might a denial the Board discretion a multiyear but exercised its not to issue support denial. in the statute the Board to issue multiyear Nothing applicable requires 3041.5, (§ (b)(2).) a denial if the evidence. subd. multiyear justified by Stated a differently, denial does not reflect an affirmative one-year necessarily the Board that it is reasonable to believe will be finding by granted one year.

Another situation in which issue might multiyear appropriate denial denial is a case in which a of the Board following one-year panel concludes that the was mistaken in issuing only previous panel one-year Different denial. decision makers exercise their discretion in different may but that their or does not mean decisions are ways, necessarily arbitrary cannot be tethered to A discretion evidentiary panel’s lacking support. of a decision discretionary prior panel.9 more than order is that it does in the court’s

A fundamental infirmity a postponement that the Board state some evidence supporting just require case, when a In an individual next hearing. an inmate’s scheduled parole a multiyear a denial one-year challenges who received petitioner previously a result of the due were violated as rights denial and claims his process date, limited the court’s review is of his next scheduled parole postponement the Board’s If findings.10 whether some evidence determining supports but nonethe of parole court finds some evidence support postponement in circumstances” the Board to state a “significant change less requires denial, order the court’s following one-year a denial a justifying multiyear review, intrude be the standard of upon would violate improper, here because the trial Board’s discretion. The result is no different simply “If a form of court certified a class of life prisoners. specific parole-eligible individuals, unavailable to them relief is foreclosed to claimants as it remains Boston, First even if into a class.” v. Credit Suisse they congregate (Feitelberg 997, 592].) (2005) LLC 134 1018 Cal.App.4th Cal.Rptr.3d [36 because the Petitioners that the trial court’s decision is argue justified part Board has failed to to the criteria for a relating setting adopt procedures between two and five as it was years, purportedly required subsequent 11 3041.5, (b)(2)(B), enacted (§ to do enacted in subd. by legislation 1994.* 1, However, 2833-2834.) Stats. ch. the lack of detailed pp. § criteria a denial from a denial does not distinguishing five-year two-year If the court’s material of the Board’s inherent discretion. support impairment enact or regulations the concern were that the Board had failed to detailed denials, action would be to governing multiyear appropriate procedures 9 one-year multiyear consistently If an inmate received denials of and then received denial, multiyear might justified closely scrutinizing issuing a court the decision denial However, evidence is all supported to ensure that it is some evidence in the record. some required. supporting need to additional evidence its panel point is A Board not departure discretionary panels. from the decisions of earlier 10 subjective a parole An individual Board member’s motivation for decision is irrelevant (Cf. Landgate, Inc. v. provided uphold there some evidence to the decision. is California Coastal Com. [reviewing P.2d Cal.Rptr.2d 17 Cal.4th [73 1188] may explore subjective agency not motivations for an decision but must instead conduct objective agency’s findings].) inquiry supporting of the evidence brief, determining In it established criteria in reply its Board contends strike this multiyear appropriate. whether a denial of Petitioners have moved to brief, arguing this as well as several others were reply discussion from the Board’s issue reply. reply raised for the first time on Petitioners also seek to strike from the brief improperly right challenges argument to the evidence and the Board’s there is no constitutional hearings. allegedly on raised for timely parole Because our decision does not turn these issues brief, reply deny time in we the motion to strike as moot. first the Board’s the Board Alvarado v. Selma Convalescent Hospital (See to do so. compel 1292, 1306, (2007) 153 fn. 5 250].) We conclude that the trial court’s order as relates to a multiyear denial denial following one-year violates the separation and intrudes powers the inherent discretion upon afforded to the Board to decide matters. II. Hearing transcript backlog

The Board the trial challenges court’s May relating the order transcript backlog, contending to case law contrary establishing that section 3042 does not the Board to require provide parole hearing within 30 transcripts prisoners date. The Board days further contends the order is because addresses an issue not improper properly before the court in this habeas corpus proceeding. we

Initially, contention the reject petitioners’ Board waived its objections to this order from the by failing November 2006 at which appeal hearing the court declared the of to be timely provision within the transcripts purview of the case. An order that merely to a later preliminary judgment or final In re Levine (See order is not Marriage (1994) appealable. 28 Cal.App.4th of 585, 589 order it had to take Cal.Rptr.2d finding authority [33 559] [court’s certain actions not The Board appealable].) its at properly preserved objection the November 2006 hearing from a order that appealed subsequent affected the substantive of the rights parties. Bode, 1002,

In supra, 74 our in Division Five Cal.App.4th colleagues 3042, of (b) this court held that section subdivision of members requires not must be public, prisoners, of provided transcript hearing parole (Bode, within 30 of the supra, days hearing.12 1003.) 74 at Cal.App.4th p. There no deadline for a life 30-day with a providing prisoner (Ibid.) hearing The Board that the trial court’s transcript. argues May 2007 3042, (b) section subdivision and is to the misinterprets contrary in Bode. holding minimum,

At a order is challenged order could be read ambiguous. 3042, to direct with the mandate of section simply compliance (b), subdivision which the Board to make requires transcripts 12 Although the Bode recognized right have a due prisoners process to receive a (Bode, 1007, hearing transcript reasonably timely in a Cal.App.4th fashion 74 at 2), right fn. 30-day statutory providing constitutional is distinct from the deadline for Bode, transcripts public. petitioner’s to members of the In the court concluded that rights due process receipt transcript constitutional were satisfied of the (Id. 2.) days hearing. pp. within 68 of the at fn.

1541 the hearing.” from the date of no later than 30 days “available public Bode at the order, the trial court with reading complied Under this the case. On the holding same time it with disagreement expressed hand, at odds directly could be read to result other the court’s order compel inmates within with Bode by directing to affected delivery transcripts the wisdom of of whether the trial court questions 30-day period. Regardless Bode, court under it is bound to follow the decision of appellate Sales, Inc. Court (1962) 57 (Auto Superior v. Equity of stare decisis. principle 321, 937].) P.2d Cal.2d Cal.Rptr. [20 Bode, however, order violates We need not decide whether trial court’s reason to reverse the order because there is an even more compelling the court’s order addressing hearing backlog. Simply put, transcript before it in this habeas proceeding, addressed issue not properly corpus is limited to the timely hearings. which provision define the

In a habeas pleadings corpus proceeding, parties’ (Board Prison Terms v. Court Superior (2005) issues. Terms).) (Board Prison The “petition Cal.Rptr.3d [31 70] launch the into the legality serves primarily judicial inquiry v. Romero (People restraints on the . . . .” liberty petitioner’s personal return, “The 388].) 8 Cal.4th 883 P.2d ‘be custody, must facts the allege establishing legality petitioner’s comes the and is to the ‘analogous principal pleading’ complaint [citation] 738-739, (Id. omitted.) the a civil at fn. proceeding’ Upon pp. [citations].” return, of the written the file a filing may commonly petitioner response, “ traverse, known or controvert ‘may any as in which petitioner deny return, of the material facts or matters set forth in the or except thereof, or fact to show either that his or sufficiency allege any imprisonment (Id. at unlawful, detention is or that he is entitled to his discharge.’ [Citation.]” 739.) the return that the issues are joined and the traverse p. through “[I]t (Ibid.) in a of a writ of habeas corpus proceeding. “[Issuance [Citations.]” but nonetheless habeas or an order to show cause is an intermediate corpus grant vital in the whether court should step determining process The function of the writ or affirmative relief that the has requested. petitioner of fact are to be framed and order is to ‘institute a which issues proceeding decided.’ The issuance of either the writ of habeas or corpus [Citation.] Thus, . . . the writ or order order to show cause creates ‘cause[]’ [citations]. traverse) and issues are the return and joined (through means (Id. 740.) determined.” at the need for an evidentiary hearing p. be addressed not extend may

“Under this issues to process, Thus, in the habeas alleged petition. respondent claims beyond corpus a habeas Similarly, not additional issues in its return. raise may [Citation.] [][] 1542 (Board not raise additional corpus petitioner may issues in the traverse.” Terms,

Prison supra, 1235.) at “To Cal.App.4th bring additional p. court, claims before the must obtain leave to file a petitioner supplemental (Ibid.) for writ of habeas petition “If the corpus. superior [Citation.]” leave grants to amend or and the files a supplement petition petitioner that adds new claims not supplemental petition raised in the habeas original the trial court then determine corpus petition, may which of the claims states facie case for prima habeas relief and issue an order to corpus appropriate show cause. The must to the order to show cause respondent respond claims, a return that filing addresses the facie which the prima petitioner in a traverse. The issues are then may reply in accordance properly joined (Id. with the well-established rules habeas at governing corpus procedure.” 1240.) p.

Therefore, a court not may issue order to show cause that adds new claims not raised in or in an allegations or supported by original supplemental Terms, Board Prison (See habeas at corpus petition. 1239.) Even when claims are raised a habeas properly by way corpus or a filed petition with the court’s the court supplemental petition permission, not may grant relief unless it first issues an order to show cause or a typically (In re Olson writ of (2007) habeas corpus.13 149 Cal.App.4th [57 284].) In the of an Cal.Rptr.3d absence order to show cause or writ of facts, court, habeas “there are no issues or cause” before the corpus, relief ais unless the custodian granting nullity has petitioner’s stipu- (Ibid.) lated to the truth factual and to the relief. allegations requested Furthermore, issues, when an order to show cause claims are limited to those in the that form the alleged basis of court’s order to show petition (In re Lawley cause. 42 Cal.4th “ 891].) P.3d ‘is limited to the claims the court proceeding [that] (Ibid., determined stated a facie case for relief.’ initially prima [Citation.]” omitted.) fn. framed the

As habeas the sole claim at issue in original corpus petition, this case is that the Board failed to has consideration provide timely parole to inmates as under the Penal Code. None of the initial hearings required discuss section or even allude to a concern the about pleadings timely Not the issue is not raised in the provision hearing transcripts. surprisingly, cause, the order to show the order the habeas granting corpus petition, Furthermore, the remedial no has or motion been stipulated procedures, plan. made to or amend the habeas to include supplement original corpus petition in a claims related to The issue first came status hearing parole transcripts. up may grant issuing corpus A cause of habeas court relief without show or writ allegations only petitioner’s “stipulate[s] petition’s when the to the truth of the custodian Romero, 7.) (People v. fn. requested to the relief.” 8 Cal.4th at the its order habeas granting nine months after court issued

hearing Therefore, was never backlog the issue of transcript corpus petition. in a before the court. Even if the issue had been raised supplemental properly cause or habeas the trial court never issued an order to show corpus petition, backlog. writ of habeas addressed to the issue corpus transcript backlog, Without such an order or writ directed to the issue of the transcript the court could not relief addressed to issue. grant properly that hearing We with the trial court’s conclusion disagree transcripts the case. A is not hearing are within purview transcript required has taken order to know whether a consideration timely place. it had relation to whether any Petitioners raised issue not because initially conducted, the alleged were but instead because parole hearings being timely affected a delay receiving right challenge transcript prisoner’s decision. Whether are is an timely entirely transcripts prepared fashion, different issue from whether conducted in a hearings being timely them a different set of issues and As petitioners presents complexities. selves stated in a filed in the trial court on this case May pleading 3041.5, (a), whether Penal Code section subdivision “address[es] (b)(2), subdivision timelines on board for imposed mandatory holding consideration Petitioners the “remedial hearings.” acknowledged plan only this concerns relief with the aim of ensuring timely prospective [in case] (Italics added.) in the future.” Petitioners contend habeas this “unique” corpus proceeding permits to raise new after the initial round of As issues parties pleadings. support contention, this cite the the court giving petitioners parties’ stipulation to enforce its orders. also ongoing jurisdiction distinguish They attempt case, cases “traditional” habeas from this de- addressing corpus procedure scribed as in recent class action habeas “perhaps only proceeding California “involves issues history,” according petitioners continue to as remedial unfolds.” develop process contention, do

Contrary petitioners’ stipulated procedures parties’ not afford the matter the may to issue orders on authority parties raise, no matter its how tenuous connection timely provision The Board could seek further orders from hearings. stipulated petitioners the trial court if the Board was not making steady, significant progress or not with the reducing hearing backlog, complying stipulated proce- dures or remedial did not the court to address permit plan. stipulation issues unrelated to the hearing backlog. are that the class

We unaware of for contention any support petitioners’ action nature of this somehow the trial habeas corpus proceeding permits court to address unrelated the remedial issues as unfolds. developing process To the there is no believe that reason to “traditional” habeas contrary, corpus are to a habeas class action.14 procedures inapplicable corpus The court’s 2007 order is because it was May especially problematic entered in the of a context class action. There is no indication named habeas class Inez Tito suffered corpus representative—currently Lugo—has of his receive a There not any right is deprivation timely hearing transcript. correlation between who members of class necessarily any prisoners for whom have not been The prisoners timely transcripts prepared. affects without to whether transcript backlog presumably regard prisoners their have been held. The court’s order hearings timely addressing limited is not to class members—those life whose transcript backlog prisoners have been delayed—but to address with purports backlog respect to all inmates in state who receive a consideration hearing, prison of their in the class. The order a sanction irrespective assessing membership $10 for every day delay preparation every parole hearing did not create a subclass whom sanction transcript petitioners and thus would to an untold number of applies presumably apply prisoners California’s vast correctional Not does the order throughout system. only new raise issues its that were not concerning implementation carefully scrutinized, but the notice that there Board was never was given potential in this with the Board that the litigation. such We consequence agree was not in a manner that the court issue raised these proceedings permitted Hence, 10, relief. the order of May to entertain an for such broad application the extent must be vacated to relates to preparation hearing transcripts.

III. Attorney multiplier fees

The Board contends the trial court erred a 1.5 by applying multiplier order fees to class counsel for We review an awarding petitioners. attorney Priest, (Serrano v. fees for abuse of discretion. awarding attorney 49; Inc. v. Drexler Group, PLCM (2000) 22 Cal.4th Cal.3d at the best 511].) P.2d “The trial court is judge court, and while its judgment value of services rendered in its professional review, that determination unless we are to our we will not disturb subject basis of only convinced that it is clearly wrong. proper [Citations.] award if the amount awarded is reversal of the amount of an fees attorney or that it shocks the conscience suggests passion so small large class, challenged certifying prisoner we Because the Board has not the trial court’s matter. corpus certification in this habeas propriety have no occasion to consider of class (See Cal.Rptr. 543 P.2d 607] [class In 15 Cal.3d fn. 3 [126 re Walters already corpus procedure unnecessary corpus proceeding because habeas certification in habeas individuals].) similarly rights of situated general procedural declaration of provides vehicle

1545 (Akins Enterprise influenced the determination. v. prejudice [Citation.]” Rent-A-Car 1127, Co. 448].) (2000) 1134 Cal.Rptr.2d 79 Cal.App.4th [94 review, court did deferential we conclude the trial this standard Applying not abuse its discretion. fee in California with setting inquiry ordinarily begins

“[T]he ‘lodestar,’ i.e., the number of hours reasonably expended multiplied held that a reasonable rate. ‘California courts have hourly consistently time on a and the reasonable value of that time is case computation spent fundamental to a determination of an fee award.’ attorneys’ appropriate The reasonable rate is that in the hourly community prevailing [Citation.] similar work. The lodestar then be based on figure may adjusted, [Citations.] case, consideration of factors in order to fix the fee at the fair specific (PLCM Inc. v. Group, market value for the services legal provided. [Citation.]” Drexler, 1095.) 22 Cal.4th at supra, p. Priest, in Serrano v. calculated,

As once the lodestar has been explained or downward based on may adjusted “(1) factors upward including involved, of the novelty difficulty the skill questions displayed them; (2) the extent to which the nature of the presenting litigation precluded other (3) nature of the fee employment by attorneys; contingent award, both from of view of eventual on the merits and the point victory award; (4) of view of point establishing for an the fact that an eligibility award the state against (5) would fall the fact ultimately upon taxpayers; that the received attorneys and charitable for the question public funding involved; (6) law suits here purpose bringing character the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations (7) the fact they employed; that in the court’s view the two law had firms involved approximately Priest, (Serrano v. share in the equal success litigation.” Cal.3d at omitted.) fn. set of This factors is illustrative and does only not constitute an exhaustive list of all relevant considerations that may justify an exercise of discretion to increase or decrease the amount. judicial lodestar (Thayer Wells Bank Fargo v. (2001) Cal.Rptr.2d [112 284].) of adjusting the lodestar is to “fix a fee at the fair market purpose effect, determines,

value for the action. In the court particular retrospectively, whether involved a risk or litigation contingent extraordinary required legal skill of the unadorned lodestar in order justifying augmentation (Ketchum v. Moses fair market rate for such services.” approximate 735].) 24 Cal.4th 17 P.3d The Board does not the calculation of the lodestar amount but dispute 1.5, instead claims the trial court abused its discretion by using multiplier the lodestar amount 50 In of its effectively increasing by support percent. amount, 1.5 lodestar court cited the applying multiplier counsel; “the following: results obtained that members of Petitioner by class have had taken that their overdue already insure steps held; the defendants have been because of this promptly litigation, required, to meet their duties of with the public enforcing complying requirements Code; of Penal it’s this case would have been highly unlikely certified as a class action had it not been for Petitioner’s counsel’s involve- matter; ment in and commitment that the monies awarded will not inure to the individual benefit Petitioner’s counsel but will be used for order, In its written the court fee stated nonprofit purposes.” attorney award is in because “vindicated an statu- justified part petitioners important interest.” tory right affecting public v. Serrano Priest

We with the Board that cited in agree many of factors the lodestar amount in this case. The did weigh against enhancing litigation was, fact, not involve a risk. The Prison Law Office in contingent by paid case, Marin rate. In for its work on the albeit at modest County hourly addition, the enhanced fee award fall the shoulders of ultimately will upon California taxpayers.

Nevertheless, the trial court did a number of factors that identify properly an to the lodestar. The court found that fees support adjustment upward will be awarded for the benefit of a and not organization nonprofit addition, individual In the court attorneys by organization. employed effect, achieved by the statewide results recognized, pursuing matter as a class action resulted from class counsel’s skills and legal Moses, (See Ketchum v. 24 at can Cal.4th 1139 persistence. [court award see also multiplier exceptional quality representation]; 553, DaimlerChrysler Corp. Graham v. (2004) 34 Cal.4th 582 Cal.Rptr.3d [21 when justified exceptional 101 P.3d multiplier 140] [enhancement benefit].) effort produces exceptional

Mindful that the trial is the best arbiter of the value of judge professional court, the trial we cannot the court was say clearly wrong service rendered in Furthermore, amount 50 a multi when it increased lodestar percent. to those seen reported of 1.5 is not plier large comparison typically Services, LLC v. Franchise Tax Bd. Northwest Energetic (See cases. California (2008) [reversing multiplier 882 Cal.App.4th Cal.Rptr.3d [71 642] Inc. Wershba v. 16]; (2001) Apple Computer, [110 City two to four or even higher]; can from range [multipliers 145] Raiders Oakland v. Oakland 85-86 Cal.App.3d 2.34].) [affirming multiplier Cal.Rptr. 606]

Disposition

The trial order of is affirmed with May respect court’s the extent it the Board “not to fee award but is reversed to attorney requires further consideration for more than one in the case deny year in the absence of a who have been denied for one formerly year, prisoners circumstances, stated on the record.” The which must be significant change trial court’s order of to the extent it relates to the is reversed May for the untimely or preparation parole hearing transcripts imposes penalties of such transcripts. preparation

Jenkins, J., concurred. POLLAK, J., in arises out of which Concurring. This appeal proceedings the trial court has in the acted to correct deficiencies adminis- long-standing tration of California’s and the violation of the parole system recurring statutory constitutional of innumerable inmates. To the limited rights put issues that are by this in their this presented appeal proper perspective, concurrence will set out more With fully history those proceedings. to the three issues that are raised from the the trial court respect rulings many has made in these extended and I in the ongoing join majority proceedings, fee award. I concur in the of the opinion affirming attorney disposition denials, but write to concerning multiyear parole separately empha- size that what here is a record that the remedial order lacking supports entered the trial court. Because the record does not remedial justify any order, circumstances we have no occasion to under consider whether not established in the record the would be I present remedy justified. particular also concur in the trial court order disposition concerning timely preparation but add a few words to transcripts, emphasize the trial court order reversing on we do not procedural grounds address whether inmates have the to insist on with prison right compliance 3042, (b), Penal Code1 section subdivision nor do we condone the failure to with time comply statutory constraints. history

Procedural The action was commenced in 2004 when generating appeal May Jerry Rutherford, was then term of seven who indeterminate serving prison life, filed a for a writ that what years of habeas petition corpus alleging Terms, was the Board of Prison now the Board of Parole formerly Hearings (the Board), had failed to schedule a timely suitability hearing 3041.5, (b)(2). he was entitled under section subdivision The factual however, the course far predicate begins of these explaining proceedings, earlier. All are references Penal Code unless otherwise indicated. 2001, court,

In to an earlier April superior response petition Rutherford had filed that the Board had not scheduled timely his alleging found the Board to be in violation of the suitability hearing, prior parole (In re statute and ordered it to convene Rutherford’s within 120 days. 2001, SC118989A).) Ct. Marin No. Rutherford’s (Super. County, Rutherford 2000, not In March the state’s Office of the case was unusual. Inspector found, of the Board and reviewing General issued report operations other the Board’s following: “statutory among things, despite responsibil- are conducted in a ensuring hearings timely ity proper manner,” the Board’s cases is identifying scheduling hearing “process to ensure that are and are handled on a hearings managed inadequate properly result, basis.” As a the Board’s is so timely “backlog hearings large most of the to information According delinquent. [][]... institutions, from on June from the increased compiled backlog on June staff backlog 1999. projects [B]oard 1,050 June Because of the most of the backlog, increase to 2000. than months.” The General are more six hearings delinquent by Inspector recommended that the Board the resources “immediately begin acquiring and “increase establish a centralized for cases” the system tracking hearing measures are available day number one case unless other hearings by per later, the A the Office of year to reduce more backlog quickly.” April the Board of Prison the General issued a Review of “Follow-Up Inspector found, Terms.” The other that the Board’s among things, followup report indeterminate con- hearings for and sentence “system identifying scheduling and, therefore, that tinues to be cannot assurance antiquated provide adequate such and conducted with reasonable hearings managed prompt- properly reduce the and that the Board had “not taken measures to any proactive ness” indeterminate until which continued to hearings, grow sentence backlog the ch. implementation [Senate Bill] [Stats. 131].” reflects, the record numerous habeas this time During period, present were hearings the denial of alleging timely parole suitability corpus petitions all, In if not courts state. throughout many, filed granted superior cases, the that because section recurring argument these courts rejected inmates were is rather than directory mandatory, petitioning 3041.5 In March 33 inmates in a habeas joined corpus entitled to no relief. (In re Sanders Ct. (Super. filed in the Marin Court County Superior petition SC118698A)) that all were denied being No. County, alleging Marin In broad corrective relief.2 respond- timely suitability hearings requesting a state-wide currently General acknowledged ing, Attorney “[t]here there were As of hearings. July consideration backlog However, 1,908 among General Attorney argued, cases.” backlogged peti added as unsuccessfully requested to be Sixty-one subsequently additional inmates being timely hearings were not conducted. tioners because their Bill enacting that the was in the Senate things, Legislature process

other as a result of (2001-2002 Sess.) largely No. 778 as Reg. urgency legislation, to be eliminated in 21 months.” which “the [hearing] backlog expected law, “as court denied the Sanders’ petition After the bill became superior moot,” Prison Terms a that the new “law the Board of observing provides $31,000,000 fiscal and the year of over for the current budget augmentation could more than double the to make authority hearing panel changes rate eliminate the of overdue No backlog hearings. judicially ordered could have been as effective as remedy appears [Senate Bill] will be in with the dealing problem.”3

When Rutherford filed his three after years May petition, (2001-2002 Sess.), the had Reg. backlog enactment of Senate Bill No. 778 1,630 cases not been corrected. To the as of June 2004 there were contrary, which a to the ulti- testimony was overdue. parole hearing According case, at the in this as of 2005 the mately evidentiary hearing August presented 3,200 and, had backlog cases the new had grown although legislation commissioners reduced the number of to conduct a necessary hearing, Board had reduced the number of commissioners conducted each week from 21 to to Rutherford’s Attorney 16. General responded petition court, cases, advising as it had done in other regularly subsequent Rutherford, Board had scheduled filing petition that the action be moot. The General dismissed as requesting Attorney cases, also that it made in other argument repeated regularly time limits were and “cannot be read to directory impose the Board a mandatory suitability to duty upon provide subsequent parole within a and in hearing time.” Rutherford the dismissal specific opposed class, addition filed a motion to a certification is certify arguing “[c]lass because interest in a declaration of his necessary petitioner’s rights identical all life entitled to interests of consideration prisoners and because the current to hearings, resolving piecemeal approach disputes over timeliness is insufficient and a waste of resources.” judicial 29, 2004, motion,

On November the court a class granted certifying “all defined as indeterminate terms of life with the prisoners serving possibil- minimum and who have or exceeded the ity eligible parole, approached 3 problems delays It in this that the court that the and and was order stated “administrative operations clearly scheme which makes the of the Board of Prison Terms government, uniquely inappropriate function of the executive branch of have created a morass state, “Nevertheless, judicial they justifiable have been of resolution.” The court went on to prisoners people good concern to the affected and to the faith within the Board of Prison have, General, along Attorney communicating everyone’s probably Terms who with the been genuine effect a unacceptable quo distress over status those in Sacramento who could noted, remedy.” “genuine remedy” had been As the court went on to conclude that a legislatively provided. 1550 dates without within the time receiving parole hearings required by

Penal Code and from federal Citing authority both courts §3041 §3041.5.” (9th 1987) Cox v. Cir. F.2d action (e.g., McCarthy 829 804-805 class [“a lie in habeas and from state v. may courts Wilson corpus”]) (e.g., Superior (1987) 131]; Court 194 1262 v. Cal.App.3d Cal.Rptr. [240 Mendoza County (1982) Tulare Cal.App.3d Cal.Rptr. [180 347] [“a trial court habeas or class may grant relief’ corpus petitioners ‘prospective redress at correctional facilities. recurring deprivations rights [Citation.] The writ is an effective and thus versatile means which to by remedy used”]; violations of and has been so v. persistent rights, Rhyne prisoners’ 807, 811, 312]), Court Municipal Cal.App.3d Cal.Rptr. the trial court held that is a corpus class action habeas petition proper “[a] method to rights obtain declaration and enforcement of as petitioner’s confinement, well conditions his as as the of others rights similarly situated.” General had the motion for class Although Attorney opposed he certification on several did not seek review of the trial grounds, appellate and, court’s order at the oral in the argument acknowledged present appeal, that he did not order.4 question propriety certification, the and in negotiated class

Following parties April entered a Overdue Parole Consideration Regarding Hearings” “Stipulation The recited that which the court entered as an order. order stipulation “Penal Code 3041 and the Board of sections 3041.5 Prison Terms require life with consideration at least one hearings year provide prisoners and, denied, at to their minimum dates if prior eligible parole intervals thereafter. are not yearly currently meeting specified Respondents time among things, these frames.” other stipulation provided, 6, 2005, June the Board would “a streamlined develop psychological with risk assessment tool to used conjunction subsequent parole Life consideration and “a Prisoner hearings” plan provide completed interviews far attorney-client Evaluation Reports, attorney appointments, scheduled consideration to allow another advance of enough if the for the first inmate is or inmate to be scheduled postponed that, the Board would canceled reason” September appeal, there is propriety the of the class certification order is not before us on this Since necessary corpus because a habeas no occasion to consider whether class certification was general rights of procedure provides procedural vehicle for a declaration of the itself 738, 744, (See Cal.Rptr. similarly re 15 Cal.3d fn. 3 situated individuals. In Walters 239, However, 607].) arising may require from the class certification potential 543 P.2d issues period during specify or clarification. The class as defined does not a time future correction timely hearing, membership so that in the class which class members must have been denied may inmates are constantly changing questions precisely arise as to which presumably is give court did not class members the proceedings. bound the outcome of these The class, may timely parole denied opt to out of the create issues if inmates opportunity corpus petitions. hearings seek to file their own habeas

“submit a detailed to eliminate the of overdue consider- plan backlog ation to the hearings conduct future within time hearings the would “eliminate of overdue consideration periods” backlog the hearings within 18 months of court the endorsing September plan to eliminate the backlog.”

The court granted joint for additional continuances of eviden- requests relief, for hearing on the habeas tiary application corpus permit continuing between the The came on for negotiations ultimately parties. petition in January 2006. The court heard from testimony Michael Keith Brady, task force for the California project manager of Department Rutherford Rehabilitation, Corrections and and from Dennis for Kenneally, responsible Board, evidence, oversight at the in management received exhibits heard oral and, submission, after argument the matter under on taking February 2006, entered an “Order Granting for Writ of Application Habeas Corpus.” recites, The order in part, “Having carefully reviewed evidence in this case, the court finds the conclusion that inescapable respondents are failing furnish timely eligibility hearings prisoners serving indeterminate sentences, and that the backlog such overdue hearings increasing at an alarming rate.” The court it found “noteworthy that in In re July, [in Sanders, No. estimated that the respondents backlog SC118698A] Instead, later, would eliminated in 21 months. 55 months has backlog eliminated, not been but rather has increased by 55%.” The court further observed that “Mr. Kenneally of overdue acknowledged problem but testified that commissioner vacancies for reason it. He primary estimated that if the Governor’s draft budget without on change adopted subject the Board funding Parole Hearings, backlog will be eliminated in 14 months. This prediction echoes the inaccurate prediction (Fn. concludes, back in respondents omitted.) 2001.” July The recitation “Petitioner has demonstrated to this court’s satisfaction remedy individual judges individual for writs of granting habeas applications corpus Indeed, cannot address this at a in adequately problem. this on August admitted their respondents will policy they comply with the mandate of if and when an only inmate seeks [Penal Code] §3041.5 otherwise, and obtains relief habeas conceded corpus; respondents they will continue do what they have done which has resulted past, in a overdue backlog of hearings totaling 3200. Petitioner has also [f] convinced this court that allowing to address respondents this problem by what have done in the not doing they past will fail solve the only problem, Indeed, it will exacerbate it. when ‘three strikes’ inmates become both eligible sides this issue parole, agree that on the pressure board will increase logarithmically.” 2006 order the Board take February directs “to immediate mea- sures to with the comply statutory time limits for holding hearings, parole circumstances,” the Law as Prison Office class barring appoints exceptional a the of counsel and orders to file motion to determine amount their petitioner class, fees, notice to the states intention “to a adopt directs its attorney which effectuating minimally this order in a fashion is as intrusive plan to substantial deference to the as in order accord possible, [California of interest in a correctional legitimate managing Department Correction’s] and counsel “to confer and a to facility,” agree plan implement directs upon order, of to the court within 30 this agreement days court’s and report date, a directed they order. cannot on parties agree If plan, to, a that the were submit or statement plan agreed parties part unable to on of remedial agree any aspect plan.” order, further engaged negotiations Pursuant this parties to the Procedures and Remedial Plan” for elimi- submitted court “Stipulated of which called efforts and hearing backlog, much for nating continuing addition, of issues In advised the court six on oversight. parties issues, only had unable to The fifth of these one agree. been they to a that is on was as follows: challenged rise decision giving appeal, not to is that the court should order respondents deny “Petitioners’ position two, three, four five years further or cases consideration parole of only one-year who received denials previously parole involving prisoners is that change position absent a in circumstances. significant Respondents’ left of the hearing panel, individual decisions must be discretion bound the decisions panels.” and that the should not be panel prior resolving additional the court issued an order six briefing, Following issues, As on the fee motion. issue of attorney reserved and also ruling denials, the are ordered not to court ruled: multiyear “Respondents case than one in the year further consideration more deny for one in the absence of a who have been denied formerly year, prisoners circumstances, on the record.” As which must stated change in significant fees, of 1.5 to lodestar applied stipulated the court attorney multiplier $55,449.66, motion, and a total of costs and fees for the fee awarded added $90,203.72.5 Tito as order substituted Inez class Additionally, Lugo this Rutherford, had class original Jerry since representative, representative, this order filed a notice of from timely died. appeal Respondents enforce- (No. A114111), staying this court issued supersedeas writ and the denials concerning multiyear ment of the order of the portions fee to the award. multiplier attorney 1.5 application $58,460, computed on an agreed was entitled to a base fee of petitioner Respondents amount, $3,010.34 County to the of Marin for the hourly this was ordered reimbursed basis. Of balance multiplier applied was then already paid counsel. petitioner’s fees had $5,050 $55,449.66. $1,979.23 as fees in connection with in costs Petitioner was awarded motion, multiplier applied. was the fee to which no

1553 2006, to continued submit to the court Throughout parties reports that had been toward concerning progress remediating made 9, 2006, a backlog. In a status filed November raised hearing report petitioner that not to hearing Board was complaint providing parole transcripts inmates in a argued manner. Petitioner that some were timely prisoners 3042, of waiting (b), months their in section subdivision transcripts spite which claimed the Board to a within they requires hearing provide transcript 30 of the Petitioner that in days hearing. delay receiving complained barrier access to the courts transcripts “presents prisoners’ they because must attach a of the hearing any for writ of habeas copy petition transcript file of they may challenge decision.” corpus any hearing aspect 16, 2006, At a status conference on November the Board’s attorney told the court that efforts were made being to reduce but transcript backlog also that the argued was timely provision hearing beyond the transcripts scope litigation. this The court reacted to the issue as follows: initially “Well, it’s—it’s kind of the same we have with the overdue problem be, haveWe laws hearings. on books that this is how it’s say supposed reasons, and the for all kinds of aren’t respondents, it.” The court ruled doing that the issue was delayed hearing within the of the purview transcripts court’s jurisdiction because hearing not unless complete is furnished to the inmate. transcript

At hearings, status the Board subsequent estimates provided regarding 27, when the would be transcript backlog eliminated. In a brief filed April 2007, petitioner argued Board should be ordered to reduce the backlog within 30 transcript days. Board that was responded taking that, to eliminate the appropriate steps but backlog noted transcript event, there no statutory requirement transcripts inmates provided date, 3042, within 30 of the hearing (b) days citing section subdivision the decision of another division of In re Bode (1999) this 74 The issue at a on was argued [88 536]. at the May conclusion court ordered the transcript eliminated backlog by June and further ordered that a sanction $10 per day per delayed would be transcript after date. No imposed reads, formal order was but the signed entered minute order from “The court pertinent states are to issue 30 after part: transcripts days [¿ic: Prisoners are hearing. members 6/1/07 Commencing public. $10 late per day per is ordered.” transcript 6/15/07] Multiyear denials

Parole consideration 3040 et procedures governed by section seq. (In re Jackson to all inmates not apply serving determinate sentence. 100].) P.2d If the Cal.3d Board Cal.Rptr. for a that a life who is following eligible concludes hearing prisoner parole release the next to consider not suitable for on parole, hearing parole (Ibid.; 3041.5, following scheduled the suitability normally year. § the is referred to as a (b)(2).) subd. In such circumstances denial ordinarily denial.” “one-year 3041.5, (b)(2) the under

Section subdivision affords Board discretion denials,” to in case the next “multiyear certain circumstances issue be no later than the hearing following: scheduled scheduled parole may if the finds “(A) Two after at which is denied board years any hearing parole a that would be at parole granted hearing that it is not reasonable to expect (B) the the to the and states bases for following year finding. Up during [][] been five at which is denied if the has years parole prisoner after hearing murder, and the board that it is not reasonable to expect convicted of finds be at a the granted during following years that would hearing five the for the If the board defers finding writing. hearing states bases be the central file shall reviewed commissioner prisoner’s by years, deputy three at which time the commissioner direct that may within years deputy be be shall notified prisoner writing held within one hearing year. that decision. The board shall adopt procedures the commissioner’s deputy five to criteria for the between two and setting hearing years.” relate the the has denials as an using multiyear Petitioner Board been argues In the trial backlog. unethical” means of the reducing hearing “unlawful and with 16 “lifer unverified polls,” question- this contention they supported (two denials 16 inmates issued completed by previously one-year naires was were the Board but whose release granted by whom actually were denied with their Governor) overturned the who subsequently by claims or more later. Petitioner years next scheduled two hearing for these inmates no denials multiyear Board provided explanation denials, an and that in the absence of had received one-year who previously inference were be drawn is that the subsequent hearings explanation, The infer- backlog. to reduce the hearing deferred one beyond year simply that the argues, passage now fact ence is strengthened, petitioner than suitable for more rather less parole. time renders inmate normally 536, 546-547; 2008) In re Roderick (9th 512 F.3d v. Cir. (Hayward Marshall Moreover, 16].) 276-278 deferring amended to authorize that when the statute was out points petitioner also Board to five the statute years, required hearings up subsequent between the criteria for setting that relate to “adopt procedures 3041.5, (b)(2)(B), subd. amended Stats. (§ two and five years” 2833), ch. no such yet criteria have been § adopted.6 “[I]n court, criteria,” absence of such to the trial “the Board petitioner argued seems using availability multi-year denial address Board in the short term.” The backlog argued response that “absent evidence that was petitioner’s showing entirely speculative this tactic is being used reduce improperly backlog, would be for the Court to restrict the Board’s determina- improper discretionary parole added.) (Italics tions in any way." tack,

On General Attorney takes a somewhat different appeal, arguing that the means the trial sought court to the Board’s remedy circumvention perceived of violates the necessarily requirements Ill, Const., 3; In re (Cal. constitutional of separation powers. art. § 616, 104, (2002) Cal.4th Rosenkrantz 29 661-662 59 P.3d Cal.Rptr.2d [128 174].) that, General if the Attorney argues even Board were deferring reason, consideration subsequent parole hearings for impermissible invades the that discretion section 3041.5 confers on the Board by that there in significant be “a circum- imposing requirement change before stances" for one denying consideration more than to a parole year However, who been had denied prisoner formerly only single for we year. need decide not here whether such a would be if the Board remedy justified were such a because the fails pursuing record to establish this has policy, been the Board’s practice. is an grant parole integral intended part penological system

“[A] to those convicted crime to into as help integrate constructive society as individuals soon as alleviate cost of them possible maintaining in 451, (People Vickers (1972) custodial facilities . . . .” v. 8 Cal.3d 458 [105 305, 1313]; 503 P.2d see also Morrissey Brewer v. 408 Cal.Rptr. (1972) U.S. 6 court, reply In argues “fully its brief in this the Board time complied” for the first that it imposed by with the mandate the statute in when it amended Code 1995 California 15, Regulations, (d). title section 2270 to add provides, subdivision This subdivision in “In part, panel may relevant cases in deny subsequent parole hearing which the for more than year, one it shall utilize specified the criteria 2281 or applicable. sections 2402 as It shall specific findings stating make written the bases for the decision the subsequent to defer four, two, three, suitability years.” for or five Sections 2281 and of title 15 2402 Regulations California Code of determining list are to be circumstances considered parole suitability. refusing parole The reasons “necessarily for to set a date need not (In completely different from the for excepting reasons an inmate’s case from annual review” re Jackson, 479) regulations Cal.3d and it held 39 at has been that “the Board’s they deny invalid extent that allow it same rely to on the reasons to and to [not] 1318, (In (2006) 1326, hearing” defer the next re Burns 136 Cal.App.4th Cal.Rptr.3d fn. 3 [40 Nonetheless, 1]). referring other the regulations specifying tending than to the circumstances 2270, suitability (d) unsuitability parole, show for section subdivision contains no criteria determining whether an found to be should be inmate unsuitable denied a for more two, three, year, determining than much one less for whether denial should be for four or years. five 1556 484,

471, 2593].) 3041, 477 “Under section subdivi- L.Ed.2d 92 S.Ct. [33 rule, (a), (In is the than re sion release on rather Smith exception.” 343, 655].) (2003) 114 351 Notwithstanding [7 on the Board to determine when an inmate meets broad discretion conferred “create him or her the standards legislative entitling parole, standards release are entitled under the Due interests in liberty protection 369, (Board (1987) v. Allen 482 U.S. 371 Process Clause.” Pardons [96 303, 2415]; L.Ed.2d Nebraska Penal Inmates 107 S.Ct. see v. Greenholtz 1, 668, 2100].) It has (1979) 442 11 L.Ed.2d 99 S.Ct. been long U.S. [60 that “a has the eligible right California recognized prisoner (In his . . re duly therefor and to have considered . .” apply application 600, 200].) (1967) 66 Cal.2d P.2d Schoengarth Cal.Rptr. [57 on not have a be released “Although prisoner may right parole, parole (In due re cannot be withheld unless means consonant with process.” P.2d 997].) Minnis Cal.3d As Cal.Rptr. Rosenkrantz, In re its decisions California Court reiterated in Supreme past in the “make clear that the due embodied requirement procedural process Const., I, (a)) (Cal. art. subd. some places California Constitution § In of the Board. re Sturm authority limitations the broad upon discretionary [In 361, 11 521 P.2d we found in (1974)] prior Cal.3d 258 Cal.Rptr. [113 97] to be rights ‘a limited of of cognizance parole applicants California decisions decision, an to secure to necessary free from information arbitrary parole [Board], to more mere for with the than something pro interviews prepare ” Rosenkrantz, 655; at see (In re Cal.4th supra, p. forma consideration.’ 29 683.) at also id. p. ‘the to be of due process opportunity

“A fundamental requirement at a meaningful It is an which must be granted heard.’ opportunity [Citation.] 545, (1965) a v. 380 U.S. (Armstrong time and in manner.” meaningful Manzo 62, 1187]; (2008) Litmon 162 see v. 552 L.Ed.2d 85 S.Ct. People [14 383, 122].) that the Were it demonstrated 395 [76 the of deferring impermissible Board is a pursuing policy to take correc- obliged of the the court would be backlog, reducing purpose arbitrary Authority to correct tive action. “The basic available remedy acted on Authority, to Adult [referring formerly parole applications] the Sturm, 269.) Cal.3d (In re 11 at supra, p. action is the writ of habeas corpus.” stated, traditionally has it “has its accepted responsi- As our Court Supreme a from implementing to vested with discretion authority an bility prevent of enacting the motive for system which defeat legislative would policy Minnis, 645.) (In re 7 Cal.3d at laws.” the

However, relief on the nature of form and of scope depend proper 402 (1971) v. Education (Swann the evidence. Board shown by violation case, 554, with equity 91 S.Ct. U.S. 16 L.Ed.2d 1267] [“As [28 Without a clear remedy.”].) of the determines the scope nature violation in from understanding precise agency policy departs respects restrictions, and constitutional it is not to determine possible extent of the less whether remedy be much such may appropriate, would remedy intrude exercise of unjustifiably upon legitimate Board’s prerogatives. Certainly may justified remedying persistent violation constitutional numbers of rights large persons on what an limits otherwise would be within discretion of imposing id. at are offending (See executive authorities agency. pp. [“School charged with broad to formulate and educa- traditionally power implement If, however, tional . .” affirmative . . in their policy “school authorities fail schools], obligations desegregate judicial bemay invoked. Once authority [to shown, a right and a have violation been of a district court’s scope broad, to equitable powers remedy wrongs is for breadth and past flexibility Hutto v. remedies”]; inherent Finney U.S. equitable L.Ed.2d 98 S.Ct. state Department Corrections and 2565] [while violations, Rehabilitation has primary constitutional responsibility curing where the had been department given repeated opportunities remedy cells, cruel and unusual conditions in the isolation the court had authority enter “a to insure the risk of comprehensive against inadequate compliance”]; Oregon Advocacy Center v. Mink (9th 2003) Cir. F.3d 1101 mental hospital’s significant, ongoing [state violations substantive and due procedural process, by delays admitting criminal defend- incapacitated treatment, ants for evaluation were sufficient support injunction requiring admit such defendants seven hospital within of a trial days trial].) court’s finding of to stand incapacity

Nevertheless, unnecessary the limits of explore judicial appropriate relief because in this the case for such relief is any While predicate lacking. the present record raise the the may question whether Board has been deferring parole hearings to reduce the the is simply hearing backlog, record most, insufficient to answer it. At the record contains evidence that some multiyear denials have followed denials. Even that prior one-year showing matter, questionable as an since the evidentiary 16 lifer submitted to the polls however, trial court were unverified. More those fail documents importantly, denials, to show whether the Board the reasons for extended gave separate much less there whether was or was not an evidentiary basis for those reasons. Section 3041.5 that the Board state in its explicitly requires writing reasons for a denial and multiyear there is in the record that nothing indicates Jackson, In re that it to (See has failed do so. at Cal.3d 477-480.) pp. The record before the trial court does contain the not record any the 16 to the lifer refer or of parole any other polls in which it is contended that there was impermissible While multiyear denial. that the Board has not petitioner argues any provided for the reflected explanation multiyear denials the 16 lifer it not polls, was to do The court assume the Board to its burden so. not that may failing Code, (Evid. 664.) with the statute. If claims that the comply petitioner § Board has been it is his burden to the evidence acting unlawfully present Moreover, Board evidence to the establishing that fact. the has presented In “Have that commis- you found some contrary. response question, on the denials in order to reduce giving sioners board out multiple-year the number of in the Michael task backlog?,” Brady, cases Rutherford answered, testified there “Absolutely force not.” that project manager, Brady each that year has been an increase in the total number of parole hearings increase for a increase in the number this has been responsible proportional events, denials. In all in marked contrast to substantial multiyear failure to provide timely evidence Board’s unquestioned establishing there that denials are multiyear is no evidence hearings, competent showing a one used as reduce the While would being subterfuge backlog. expect to be reason for a denial for an inmate good there imposing multiyear denial, a in this no basis found entitled to there is record one-year previously reasons that the Board has not found announced concluding adequate is, therefore, no basis when for more than one There denying year. remedial order to enforce standard designed prescribed by would be at a statute—that is not reasonable to expect granted Thus, agree I that on basis of hearing during following year. before the Board further deny record us the order not directing have more than one in the case of who year consideration for prisoners circum- year change been denied for one “without formerly significant must stances” be vacated. backlog

Hearing transcript entered the court on The Board also challenges May of the delay transcripts with in the continuing preparation respect hear (b) of all transcripts Section subdivision hearings. provides the office the Board of Prison Terms “shall be filed and maintained in ings the date no than 30 from days and shall be made available later public 3041.5, (a)(4) hearing.” prisoner Section subdivision provides all record of and receive request stenographic “shall permitted for an order submission of Following petitioner’s request proceedings.” the court reduce the within transcript backlog days, Board to directing least of issue—at as Here’s the the “Okay. history transcripts ruled follows: counsel, 2006, December, Attorney the Board’s the recent In history. the the General, to cured by said the of was backlog transcripts going that cured, the has not been It’s now January, May, backlog end of 2007. the had the to contract with because Board misfortune since—allegedly [(J[] ball. That—whatever that transcript transcription company dropped is, remedy. remedied. It’s not hard to hasn’t been the situation problem I can do the job. and send them to who somebody those Send—get tapes

1559 15th, isn’t, to expect be remedied June and if it backlog by sanction of $10 per day, per to be and I’m to transcript, going imposed, going have status on this issue on hearing June 20th.” I with the

Initially, that the Board did not waive agree majority its opinion objections this order by failing November 2006 appeal following at which hearing the court declared the to be timely provision transcripts In re Marriage Levine within the (See of the purview case. 585, 559].) Cal.App.4th I also the timeliness agree was not transcript preparation before court in these properly proceed- There ings. be a loose may connection between the denial of timely parole and the failure to timely prepare transcripts parole hearings, because both delay inmate’s ability an eventual challenge judicially Nonetheless, denial the Board. a hearing is not transcript required in order to know whether a timely consideration has taken and, as in the place explained majority opinion, necessary to address steps in these transcript backlog were not followed. proceedings I am not with the trial unsympathetic court’s reaction to another apparent instance in which the Board—for whatever reason—was persistently failing However, with a comply statutory timeline. while I can the trial appreciate court’s efforts to prod with compliance requirements affecting rights I many must people, agree that the issue was not raised in properly and, these proceedings the reasons mentioned in the majority opinion, the order entered is particularly troublesome because entered in the context of a class action. I

Finally, wish to emphasize this court’s conclusion does not imply agreement with the contention that a action an inmate to proper enforce Bode, In re with compliance section (b) subdivision precluded by supra, 1002. I agree with the that the majority opinion trial court’s order is ambiguous that it is not clear whether the court intended to only require preparation filing within transcripts days, as required by section (b), subdivision or delivery transcripts the affected inmate within the 30-day Bode relates The decision in period. Bode, to the latter. only In an inmate did not receive the of his transcript until parole hearing after days the hearing, although was transcript and filed prepared within the 30-day period section prescribed by (b). subdivision The court rejected inmate’s contention that the failure to deliver the record to the inmate within the 30-day violated his period rights under section (b). subdivision The court held that this section is access to the before an transcript intended to ensure that has public no deadline for the on that section 3041.5 imposes inmate is released parole, inmate, due only and that process requires delivery transcript “in fashion.” reasonably timely be delivered to the that the transcript prisoner the Bode 2.) includes (74 Although at fn. opinion Cal.App.4th p. in favor of the (b) a right statement that section subdivision “create[s] (id. 1006), that an inmate at the court did not hold not the prisoner” p. public, of section a member of the entitled to enforce provisions is not public that a (b). that there is no copy subdivision It held only requirement within the 30-day period. be delivered to the inmate of the transcript 1006.) (74 at

Case Details

Case Name: In Re Lugo

Court Name: California Court of Appeal

Date Published: Jul 21, 2008

Citation: 80 Cal. Rptr. 3d 521

Docket Number: A114111, A118706

Court Abbreviation: Cal. Ct. App.