In re Butler

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

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

To implement this duty, the Board adopted regulations for each indeterminate sentence offense. These regulations expressly rely on and reference section 3041 as enabling authority. (See, e.g., Cal. Code Regs., tit. 15, §§ 2280 [listing section 3041 as a statutory reference], 2400 ["This article

Under this version of the regulatory scheme, the Board begins its assessment of an inmate's earliest possible release date by calculating his or her adjusted base term. These regulations allow the Board to then postpone the release date if the inmate has other convictions ( Cal. Code Regs., tit. 15, §§ 2407 - 2409 ) or to advance it for any postconviction credits the inmate has received. ( Id. , § 2410.) It is this final date that determines when an inmate found suitable for parole may be released. Under these regulations, a parolee cannot be released until the inmate has served at least this amount of time. ( Id. , § 2411, subds. (a), (b); see also In re Vicks (2013) 56 Cal.4th 274 , 313, 153 Cal.Rptr.3d 471 , 295 P.3d 863 .)

In 2012, Butler filed a petition in propria persona for writ of habeas corpus in the First District Court of Appeal. (

hearing at which it found Butler suitable for parole. ( Ibid. ) The Governor did

standard, we consider the court's legal conclusions de novo, and assess its factual findings for substantial evidence. ( Haraguchi v. Superior Court (2008) 43 Cal.4th 706 , 711, 76 Cal.Rptr.3d 250 , 182 P.3d 579 .) We will not reverse the court's application of the law to the facts unless it is "arbitrary and capricious." ( Id. at p. 712, 76 Cal.Rptr.3d 250 , 182 P.3d 579 .) When a

A base term is calculated using matrices that appear in said regulations. For murder, the matrix's horizontal axis presents general

see also id. at p. 850, 39 Cal.Rptr.2d 21 , 890 P.2d 43 ["Here, because the injunction was inconsistent with our decision in Arcadia ... to vacate it was not an abuse of discretion"].) The Board also relies on System Federation No. 91, Railway Employees' Department, AFL-CIO v. Wright (1961) 364 U.S. 642 , 81 S.Ct. 368 , 5 L.Ed.2d 349 . But System Federation also dealt with an injunctive order that conflicted with subsequent legal developments.

This case is different. Although the relevant statutes and regulations have changed since the settlement, the Board faces no direct conflict between the injunctive order and existing statutes. Senate Bill No. 260 and Assembly Bill No. 1308 require that youth offenders be released once found suitable for parole-irrespective of any base term calculations. (Stats. 2013, ch. 312; Stats. 2017, ch. 675.) And

uniform terms" for similar offenses. (Former § 3041, subd. (a).) The Board implemented that statutory mandate by promulgating regulations requiring the calculation of a base term, using a matrix that measured the seriousness of the offense and adjusted for aggravating or mitigating circumstances. ( Dannenberg , supra , 34 Cal.4th at p. 1078, 23 Cal.Rptr.3d 417 , 104 P.3d 783 [noting that the Board promulgated base term calculations "[i]n response" to section 3041's "requirements"].) The Board's policy was to calculate the base term not before parole eligibility, but after he or she was found suitable for parole. The settlement agreement, however, changed the timing of an inmate's base term calculation to his or her initial parole hearing or at his or

Whether changes in the law or circumstances affecting this case require modification of the injunctive order is a question sharply dividing the parties. Postsettlement changes to California's criminal justice system are at issue here, principally the fact that base terms no longer directly control the release date for indeterminately-sentenced inmates. The Board argues that these changes are sufficiently material because they have "emptied base terms of any meaning and function." Butler, by contrast, argues that modification is appropriate only when an injunctive order "conflicts with or violat[es]" current law. And, Butler continues, far from conflicting with these subsequent developments, the settlement order in fact furthers their purpose of reducing the state's prison population.

The Court of Appeal did not modify the injunction order. In continuing to embrace the stipulated agreement as it stood before the recent raft of legal changes, the court observed that the agreement did not directly conflict with the new legal regime and held that the changes in the law were not sufficiently material to warrant modification. Yet in so concluding, the appellate court did not fully consider the extent to which the intervening legal changes have undermined the settlement's foundational assumptions, even if the changes fell short of creating an actual conflict with the settlement.

In its argument, the Board relies on cases involving injunctions that conflict with current law. These cases can be distinguished from what is before us. In Salazar , for example, the trial court entered an injunctive order barring school districts for charging fees for transportation to and from school. ( Salazar , supra , 9 Cal.4th at pp. 844-845, 39 Cal.Rptr.2d 21 , 890 P.2d 43 .) We later held in Arcadia Unified School District v. State Department of Education (1992) 2 Cal.4th 251 , 5 Cal.Rptr.2d 545 , 825 P.2d 438 that charging such fees did not violate the California Constitution. After our decision in Arcadia , the trial court vacated its injunction but the Court of Appeal reversed. ( Salazar , 9 Cal.4th at pp. 848-849, 39 Cal.Rptr.2d 21 , 890 P.2d 43 .) We later reversed the Court of Appeal, reasoning that Arcadia "eliminated the legal basis for the injunction." ( Salazar , 9 Cal.4th at p. 840, 39 Cal.Rptr.2d 21 , 890 P.2d 43 ;

altering the parole regime were significant enough to constitute a material change in the facts, requiring modification of the injunctive order.

We would be compelled to uphold the original injunction if constitutional considerations required the Board to calculate inmates' base terms. And indeed, the Court of Appeal also based its ruling on the motion to modify the injunction on the theory that base terms are necessary to "assure life prisoners will not suffer constitutionally excessive punishment." What we nonetheless find is that, notwithstanding the importance of judicially-articulated constitutional considerations relevant to the Board's functions, there is no constitutional basis to require continued adherence to the injunctive provisions obligating the Board to calculate base terms. We thus hold that the Court of Appeal also abused its discretion in ordering the Board to continue calculating base terms as a constitutional requirement.

An inmate serving an indeterminate sentence has a constitutional right to a sentence not disproportionate to his or her offense. (See In re Lynch (1972) 8 Cal.3d 410 , 424, 105 Cal.Rptr. 217 , 503 P.2d 921 ; Solem v. Helm (1983) 463 U.S. 277 , 284-288, 103 S.Ct. 3001 , 77 L.Ed.2d 637 .) Writing during a time when California imposed indeterminate sentences for most felonies, we noted that the "oft-stated rule that a prisoner has no right to a term fixed at less than maximum ... is ... subject to the overriding constitutionally compelled qualification that the maximum may not be disproportionate to the individual prisoner's offense." ( In re Rodriguez (1975) 14 Cal.3d 639 , 652, 122 Cal.Rptr. 552 , 537 P.2d 384 ). To guard against disproportionate punishment, Rodriguez required the parole authority to set a maximum term of incarceration for each inmate, based on the inmate's culpability (as measured by the circumstances of the offense). ( Ibid. ) Rodriguez required that the parole authority release inmates once they reached their maximum term, even if the authority had not found the

make a similar argument to the one Butler advances now. ( Id. at p. 1096, 23 Cal.Rptr.3d 417 , 104 P.3d 783 ["Dannenberg contends ... that such constitutional considerations impose upon the Board a general obligation to fix actual maximum terms, tailored to individual culpability, for indeterminate life inmates"].) Such a requirement, we explained, was necessary in a largely indeterminate sentencing regime-a regime that "imposed life maximums for a wide

This review of the settlement agreement readily showcases how base terms were relevant in the settlement agreement for a specific reason. To wit: they were relevant in the existing regulatory structure. Indicia from the agreement, as well as the contemporary statutory and regulatory scheme, reveal that the settlement relied on base terms having legal significance within that framework. Specifically, an inmate's calculated release date commenced with his or her adjusted base term, as contemplated in the settlement agreement. When that agreement was drafted, the Board was required by statute to set a provisional "parole release date" founded on "criteria" that would "provide

allocated indeterminate sentences. The postsettlement changes to section 3041, subdivision (a) have not undermined the force of that aspect of the opinion.

In effect, California's current and mostly determinate sentencing laws, along with statutory reforms to the parole process, have all but rendered specific base term calculations for individuals subject to parole determinations unnecessary as a means of ensuring against unconstitutionally excessive punishment. Plainly, defendants retain the ability to perform the base term calculation or something equivalent and submit it to the Board for consideration. Moreover, the Board retains responsibility to take account, in its parole determinations, of public safety concerns that a base term calculation could have illuminated. (See Cal. Code Regs., tit. 15, § 2281, subd. (a) [explaining that the standard for parole suitability is whether "the prisoner will pose an unreasonable risk of danger to society if released from prison"].) For example, the Board was required, in calculating base terms for certain life offenses, to consider factors such as the crime's "threat to the public," as well as mitigating or aggravating circumstances. ( Cal. Code Regs., tit. 15, § 2403, subd. (g).) But it can take account of such concerns without calculating base terms.

The settlement agreement approved by the parties in 2013 required the Board to calculate an inmate's base term at his or her initial parole hearing. At the time the parties ratified that agreement, a calculated base term directly impacted the release date for inmates serving indeterminate life sentences. Not so today. Instead, the release

Dannenberg declined to construe the state Constitution as requiring the Board to set maximum terms, across the board, for the serious offenders currently subject to indeterminate sentences. For good reason: To do otherwise would have effectively undone, without sufficient constitutional justification, the legislative design associated with limited continued use of indeterminate sentences in California for a circumscribed group of offenders. Although Dannenberg did not weaken the constitutional requirement against grossly disproportionate sentences, it made clear that our prior ruling in Rodriguez imposing on the Board a general duty to fix maximum terms for indeterminate sentences was motivated by the more "comprehensive indeterminate sentencing system" that was in effect at that time. ( Dannenberg , supra , 34 Cal.4th at p. 1096, 23 Cal.Rptr.3d 417 , 104 P.3d 783 .) The mostly determinate sentencing regime now in effect reflects the Legislature's design to reduce the number of offenders receiving indeterminate sentences, thereby limiting the possibility that these serious offenders will suffer constitutionally excessive punishment. ( Id. at p. 1097, 23 Cal.Rptr.3d 417 , 104 P.3d 783 .)

Given these changes, we see no reason to nonetheless enshrine base terms as constitutionally required. The Board promulgated base term regulations in response to the Legislature's instruction to establish "criteria" that would promote sentence uniformity for inmates serving lifetime sentences. ( Dannenberg , supra , 34 Cal.4th at pp. 1078-1079, 23 Cal.Rptr.3d 417 , 104 P.3d 783 .) The Board may not, however, release an inmate until the individual no longer poses a threat to "public safety," regardless of any base term calculation. ( Id. at pp. 1083-1084, 23 Cal.Rptr.3d 417 , 104 P.3d 783 .) In fact, we specifically instructed the Board to "eschew term

Butler urges us to eschew Dannenberg 's reasoning because its interpretation construed the prior version of section 3041. Butler is indeed correct that much of the opinion discusses language in former section 3041, subdivision (a) that Senate Bill No. 230 excised. ( Dannenberg , supra , 34 Cal.4th at pp. 1078-1095, 23 Cal.Rptr.3d 417 , 104 P.3d 783 .) But the aforementioned passages from Dannenberg are present in a different portion of the opinion, addressing a distinct constitutional argument that does not depend on the validity of section 3041's previous incarnation. ( Id. at pp. 1096-1098, 23 Cal.Rptr.3d 417 , 104 P.3d 783 .) What we considered in that portion of the opinion was whether the state Constitution required the Board to measure each inmate's culpability for the purpose of guarding against unconstitutionally excessive punishment. We answered in the negative, at least for a regime where only a subset of defendants are

That base terms had some role to play in the sentencing regime strikes us as a "controlling fact[ ]" on which the injunction rested. ( Sontag Chain Stores , supra , 18 Cal.2d at p. 95, 113 P.2d 689 .) Postsettlement legal changes make that controlling fact no longer true. Base terms lack defined statutory significance-and informing inmates of their base terms no longer has an obvious rehabilitative purpose because those terms no longer control the release dates for inmates found suitable for parole. Put another way, the settlement agreement presupposes that base terms form part of the framework for parolee release date calculations. As a result of the changes described above emphasizing the centrality of public safety considerations, base terms are no longer part of that framework. We therefore conclude that the changes in the law constitute a material change in the stipulated order. And we think that this change is sufficiently material to raise substantial doubts as to whether the injunction continues to be "necessary or desirable." ( Union Interchange , supra , 52 Cal.2d at p. 604, 342 P.2d 249 .)

In holding that the postsettlement changes were not material, the Court of Appeal focused on whether the stipulated settlement "conflict[ed]" with the new legal regime. What this approach ignores is that Code of Civil Procedure section 533 provides for modification of an injunctive order not only in instances of conflict but also upon a "material change in the facts." The state's parole regime has changed significantly enough to warrant relieving the Board of its obligations, even in the absence of a direct conflict between the settlement and current law. (See Sontag Chain Stores , supra , 18 Cal.2d at p. 95, 113 P.2d 689 [whether to modify an injunctive

Under the cruel or unusual punishment clause (art. I, § 17) of the California Constitution, there is no question that an inmate sentenced to an indeterminate term cannot be held for a period grossly disproportionate to his or her individual culpability. ( Dannenberg , supra , 34 Cal.4th at p. 1096, 23 Cal.Rptr.3d 417 , 104 P.3d 783 .) Still, in Dannenberg we explained that Rodriguez 's prophylactic measures are not necessarily required in the state's current, mostly determinate sentencing regime. ( Id. at p. 1097, 23 Cal.Rptr.3d 417 , 104 P.3d 783 .) The petitioner in Dannenberg relied on Rodriguez to