In re Butler

Filed 4/2/18

IN THE SUPREME COURT OF CALIFORNIA

)

)

In re ROY BUTLER )

) S237014

)

on Habeas Corpus. ) Ct.App. 1/2 A139411

)

) Alameda County

____________________________________) Super. Ct. No. 91694B

People convicted of noncapital murder and certain other criminal offenses

in California serve indeterminate sentences that run from a minimum number of

years to life, making release possible before the end of their life. The Board of

Parole Hearings (the Board) decides, subject to relevant statutory provisions and

review by the Governor, whether such prisoners are suitable for release. This case

concerns the interaction of those statutory provisions with a settlement agreement

arising from litigation about the Board’s procedures. While serving an

indeterminate prison term, Roy Butler filed a petition for writ of habeas corpus on

December 12, 2012, alleging in part that the Board had a responsibility to avoid

parole determinations leading to grossly disproportionate prison terms. In 2013,

petitioner Roy Butler and respondent, the Board, agreed to a settlement requiring

the Board to calculate the “base terms” of an inmate serving an indeterminate

sentence for use at the inmate’s initial parole hearing. At the time of the

settlement agreement, “base terms” governed the earliest possible release date for

inmates serving indeterminate sentences. Since then, changes to California’s

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criminal justice system have altered the relevant statutory landscape, such that

“base terms” no longer govern the release date of inmates subject to indeterminate

sentences.

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.

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I.

Petitioner Roy Butler was convicted of second degree murder in 1988.

What Butler told detectives at the time of his arrest is that he and acquaintance

Lanzester Hymes decided to attack Richard Davis because Davis had been abusing

his girlfriend Jane Woods, a friend of Butler’s. On September 28, 1987, Butler

and Hymes armed themselves with knives and went to the apartment that Davis,

Hymes, and Woods shared. According to Butler, he was hiding inside the

bathroom when Hymes fatally stabbed Davis. After Butler pleaded guilty, he

received a sentence of 15 years to life. Butler became eligible for parole in 1997,

but the parole authority denied his application for parole at that hearing and at

several subsequent hearings. After the Board denied his application at a hearing in

February 2012, Butler filed a petition for writ of habeas corpus, which led to the

case before us.

Prior to 1977, California used an “indeterminate” sentencing regime for the

vast majority of felonies. (In re Dannenberg (2005) 34 Cal.4th 1061, 1077

(Dannenberg).) Under this system, courts “imposed a statutory sentence

expressed as a range between a minimum and maximum period of confinement —

often life imprisonment — the offender must serve.” (Ibid.) The state agency in

charge of parole (then called the Adult Authority) had exclusive control over the

period of incarceration the inmate actually served, so inmates had no idea when

they would be released. (Id. at pp. 1077, 1089.)

The state largely abandoned this system when it adopted a mostly

“determinate” sentencing regime in 1976. (Dannenberg, supra, 34 Cal.4th at p.

1078.) Now, most felonies are subject to defined terms of confinement. But

certain serious offenses, including noncapital murder, remain subject to

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indeterminate sentences. (Ibid.)1 The sentence of 15 years to life Butler received

in 1988 is an example of this type of punishment. For inmates serving

indeterminate sentences, the parole authority (now called the Board of Parole

Hearings) continues to determine the end of their period of incarceration via a

determination that the inmate is suitable for parole. (See generally Pen. Code,

§ 3041.) 2 The standard for parole suitability is whether the inmate “will pose an

unreasonable risk of danger to society if released from prison.” (Cal. Code Regs.,

tit. 15, § 2281, subd. (a).)

When this action commenced, a previous version of section 3041 governed

the Board’s authority to set release dates for indeterminately-sentenced offenders.

(Former § 3041; see also Dannenberg, supra, 34 Cal.4th at pp. 1078-1079

[describing this version of the statute].) Subdivision (a) of that statute directed the

Board to set parolees’ release dates “in a manner that will provide uniform terms

for offenses of similar gravity and magnitude in respect to their threat to the

public.” (Former § 3041, subd. (a).) The statute further directed the Board, when

setting release dates, to “consider the number of victims of the crime . . . and other

factors in mitigation or aggravation of the crime.” (Ibid.)

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 implements

1 Indeterminate sentences of life imprisonment are also authorized for some

felonies less serious than murder under, for example, the Three Strikes Law. (See

Pen. Code, §§ 667.5, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A); see also, e.g., id.,

§12022.53, subd. (d) [25 years-to-life enhancement for causing great bodily injury

or death by discharge of firearm in course of certain felonies].)

2 All subsequent statutory citations are to the Penal Code, unless otherwise

noted.

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Penal Code section 3041”].) One such set of regulations applies to noncapital

murder committed on or after November 8, 1978. (Id., § 2400 et seq.;

Dannenberg, supra, 34 Cal.4th at pp. 1078-1079.) Under the regulations, the

Board is required to “set a base term for each life prisoner who is found suitable

for parole.” (Cal. Code Regs., tit. 15, § 2403, subd. (a).) In accordance with the

regulations, the Board must determine that an inmate is suitable for parole before

setting that inmate’s base term. (Id., § 2402, subd. (a) [“The panel shall first

determine whether the life prisoner is suitable for release on parole”]; see also

Dannenberg, supra, 34 Cal.4th at pp. 1079-1080.)

A base term is calculated using matrices that appear in said regulations.

For murder, the matrix’s horizontal axis presents general descriptions of the cause

of the victim’s death.3 The vertical axis lists possible descriptions of the

relationship between the inmate and victim.4 The first step in calculating the base

term is to determine which intersection of the horizontal and vertical axes is “most

closely related to the circumstances of the crime.” (Cal. Code Regs., tit. 15,

§ 2403, subd. (a).) Each intersection then lists three alternative sentences — a

lower, middle, and upper base term. For example, a second degree murder

committed after November 8, 1978, through a “Direct” mechanism and against a

victim with whom the inmate had a “Prior Relationship” would yield base term

alternatives of 17, 18, or 19 years. (Id., § 2403, subd. (c).) The Board’s

3 For example, the categories on the horizontal axis of the matrix for second

degree murders committed after November 8, 1978, range from “Indirect” (e.g.,

“shock producing heart attack”) to “Direct or Victim Contribution” (e.g., “[d]eath

was almost immediate”) to “Severe Trauma” (e.g., “beating, clubbing”). (Cal.

Code Regs., tit. 15, § 2403, subd. (c).)

4 Here, the categories for second degree murder committed after November

8, 1978, range from “Participating Victim” (e.g., “[v]ictim was accomplice”) to

“Prior Relationship” to “No Prior Relationship.” (Cal. Code Regs., tit. 15,

§ 2403, subd. (c).)

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regulations require it to select the middle term unless it finds circumstances in

mitigation or aggravation (as defined elsewhere in the regulations). (Id., § 2403,

subd. (a).) A finding that mitigating circumstances exist leads to the selection of

the lower base term, while a finding of aggravating circumstances leads to the

selection of the upper base term. (Id., §§ 2404, subd. (a), 2405, subd. (a).) The

Board then modifies an inmate’s base term for any enhancements related to the

offense (such as use of a firearm), leading to the inmate’s so-called “adjusted base

term.” (Id., § 2406.)

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.)

In 2012, Butler filed a petition in propria persona for writ of habeas corpus

in the First District Court of Appeal. (In re Butler (2015) 236 Cal.App.4th 1222,

1227-1228.) Among other contentions, Butler argued that the Board violated the

state and federal Constitutions through its policy of deferring the calculation of an

inmate’s base term until it found the inmate suitable for parole. (Ibid.) The Court

of Appeal appointed counsel who assisted Butler in filing a supplemental habeas

petition. (Id. at p. 1228.) The supplemental petition reiterated Butler’s

constitutional argument and added a separate claim arguing that insufficient

evidence supported the Board’s denial of parole in Butler’s case. (Id. at p. 1228 &

fn. 2.) The Court of Appeal bifurcated the action into two separate cases; one

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concerned whether sufficient evidence supported denial of parole in Butler’s case,

while the other addressed the constitutionality of deferring base term calculations.

(Ibid.) The Court of Appeal eventually issued orders to show cause in both cases.

(Id. at p. 1228.)

In the case dedicated to Butler’s challenge of the Board’s determination that

he was unsuitable for parole, the Court of Appeal ultimately granted habeas corpus

relief.5 (In re Butler, supra, 236 Cal.App.4th at p. 1228, fn. 2.) On remand, the

Board vacated its earlier denial of parole and held a new hearing at which it found

Butler suitable for parole. (Ibid.) The Governor did not intervene, so Butler was

released on parole in June 2014.6 (Ibid.)

In the meantime, the parties began settlement negotiations in the case

addressing Butler’s claim that the Board violated his constitutional rights by

declining to calculate his base term. (In re Butler, supra, 236 Cal.App.4th at pp.

1228-1229.) The parties eventually agreed to a settlement in December 2013 that

required the Board to calculate an inmate’s base and adjusted base terms at the

inmate’s initial parole hearing (or, for inmates who already had their initial

hearing, at the inmate’s next scheduled parole hearing). The stipulated order also

required the Board to amend its regulations to codify this new approach. The

Court of Appeal retained jurisdiction over the case until the amended regulations

5 We ordered to depublish the Court of Appeal opinion granting Butler

habeas corpus relief. (In re Butler, S217457, Supreme Ct. Mins., June 11, 2014.)

6 For good reason, neither side argues that this case became moot once Butler

was released. The parties agreed to settle Butler’s suit regarding base term

calculations before Butler was released. Thus, his subsequent release has not

mooted this action. A judgment is not moot if it “affects [the parties’] rights in the

future.” (Eye Dog Foundation v. State Board of Guide Dogs for Blind (1967) 67

Cal.2d 536, 542.) The settlement continues to bind the Board and thus affect its

future rights and obligations.

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became effective.7 Later, the Court of Appeal granted Butler’s request for

attorney fees under Code of Civil Procedure section 1021.5. (Butler, 236

Cal.App.4th at p. 1230.) The attorneys’ fees opinion discussed in some detail the

Court of Appeal’s theory about the constitutional significance of base terms. (Id.

at p. 1235-1245.) The Board did not petition for review.

In the years since the parties settled the case before us, legislators and the

electorate made major changes to California’s criminal justice system. Three of

those changes are potentially relevant to the issues before us. First, Senate Bill

No. 260 became effective on January 1, 2014. (Stats. 2013, ch. 312.) Under this

law, inmates who committed indeterminate sentence offenses before turning 18

years old would “be paroled regardless of the manner in which the [B]oard set

release dates pursuant to subdivision (a) of Section 3041.” (§ 3046, subd. (c).)

The result is that youth offenders are released once found suitable for parole,

regardless of the minimum sentence that the offender’s base term would otherwise

provide. In 2018, the Legislature extended the benefits of Senate Bill No. 260 to

inmates who committed offenses at 25 years of age or younger. (Stats. 2017, ch.

675.)

Second, the Board altered its treatment of certain elderly inmates to comply

with a February 2014 federal court order. (See Plata v. Brown (N.D. Cal. Feb. 10,

2014, No. 3:01-cv-01351-JST).) The order required the Board to “[f]inalize and

implement” new parole procedures for inmates who are at least 60 years old and

who have served sentences of 25 years or more. (Id. at p. 3 ¶4(e).) In response,

the Board announced expedited parole hearings for those elderly inmates who

7 The Board has never promulgated the regulations that it agreed to enact in

the settlement. After the Board filed its petition for review, the Court of Appeal

stayed the Board’s rulemaking obligations under the settlement agreement.

8

have served a minimum of 25 years and a new policy of considering an inmate’s

advanced age, long-term confinement, and diminished physical condition in

determining their suitability for parole. (See Board of Parole Hearings, Cal. Dept.

of Corrections and Rehabilitation, Elderly Parole Program (June 16, 2014) p. 2.)8

Accordingly, as of June 2014, elderly inmates are also paroled upon a finding of

suitability, regardless of what limit base terms would otherwise impose on the

inmates’ release dates.

Third — and most significantly –– the Legislature enacted Senate Bill No.

230 in 2015. (Stats. 2015, ch. 470.) This legislation excised the language from

former section 3041, subdivision (a) requiring the Board to set parolees’ release

dates “in a manner that will provide uniform terms for offenses of similar gravity

and magnitude with respect to their threat to the public” — the very language on

which the Board relied in devising the base term system. Senate Bill No. 230

provided instead that “[u]pon a grant of parole, the inmate shall be released subject

to all applicable review periods. However, an inmate shall not be released before

reaching his or her minimum eligible parole date as set pursuant to Section 3046.”

(§ 3041, subd. (a)(4); Stats. 2015, ch. 470, § 1.) In turn, section 3046 provides that

an inmate shall not be released until the inmate has served the greater of (1) seven

years, or (2) a minimum term set by relevant statute, if one exists.9 (§ 3046, subd.

(a).) Because of this legislation, base terms no longer control the release date for

nonyouthful, nonelderly inmates either. Instead, those inmates’ indeterminate

terms end when the inmate is both (1) found suitable for parole and (2) has served

8 The Legislature recently codified these procedures under the Elderly Parole

Program. (See Pen. Code, § 3055.)

9 For example, the minimum term for second degree murder is either 15, 20,

or 25 years, depending on the circumstances of the offense. (§ 190, subds. (a), (b),

(d).)

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their statutory minimum term (subject, of course, to the Board’s internal review

procedures and the Governor’s power to reverse a grant of parole or request

further review (see §§ 3041, subd. (b), 3041.1, 3041.2)).

The most important aspect of these changes, for present purposes, is that

base terms no longer play a defined role in determining the release date for any

inmate sentenced to an indeterminate term.

After SB 230 went into effect in January 2016, the Board moved to modify

the December 2013 settlement agreement. According to the Board, it should be

relieved of its obligations to calculate base terms and promulgate new regulations

for calculating base terms at an inmate’s initial parole hearing. In essence, the

Board argued that changes to the statutory scheme eliminated the Board’s

authority or need to calculate base terms. The Court of Appeal denied the motion.

It declined to modify the settlement order on the basis that the order “does not

conflict” with any subsequent changes to the parole hearing process. The court

also reasoned that the calculation of base terms was necessary to “assure life

prisoners will not suffer constitutionally excessive punishment.”

We granted the Board’s petition for review.10 We must now decide

whether the changes discussed above are sufficiently material to require

modification of the Board’s obligations to calculate inmates’ base terms.

10 Butler argues we should dismiss our grant of review to penalize the Board

for, according to Butler, willfully violating the settlement order. (See Gwartz v.

Weilert (2014) 231 Cal.App.4th 750, 757 [“An appellate court has the inherent

power to dismiss an appeal by a party that refuses to comply with a lower court

order”].) He also asserts that modification of the consent decree would violate the

law of the case doctrine. (See People v. Gray (2005) 37 Cal.4th 168, 196

[explaining that the law of the case doctrine “generally precludes multiple

appellate review of the same issue in a single case”].)

Butler failed, however, to preserve these issues for our consideration. He

did not file a petition for review or assert in his answer to the Board’s petition that

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II.

The parties’ settlement in this case was given effect in an injunctive order

over which the Court of Appeal retained jurisdiction. Courts retain power to

vacate or modify such orders at any point. (See Sontag Chain Stores Co. v.

Superior Court (1941) 18 Cal.2d 92, 94-95 (Sontag Chain Stores) [an injunctive

order, “it has uniformly been held, is always subject, upon a proper showing, to

modification or dissolution by the court which rendered it”]; see also Union

Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 604 (Union Interchange)

[“When the decree is continuing in nature, directed at future events, it must be

subject to adaptation as events may shape the need”].) A court may “modify or

dissolve an injunction . . . upon a showing that there has been a material change in

the facts upon which the injunction . . . was granted, that the law upon which the

injunction . . . was granted has changed, or that the ends of justice would be served

by the modification or dissolution of the injunction.” (Code Civ. Proc., § 533.)

When a lower court rules on a motion to modify or vacate an injunctive order, we

review it for abuse of discretion. (Salazar v. Eastin (1995) 9 Cal.4th 836, 850

(Salazar).) Under this 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.) We will not reverse the court’s

application of the law to the facts unless it is “arbitrary and capricious.” (Id. at p.

712.) When a court decides not to modify an order despite a material change in

the law fundamentally undermining the presumptions underlying the parties’

acceptance of a settlement agreement, its decision ordinarily constitutes an abuse

we should address these issues. (See Cal. Rules of Court, rule 28.1(c).) It is true

that Butler did raise them in his answer to the petition for review, but only as a

reason why the case did not warrant our review. Bringing up such an issue in this

manner does not adequately preserve it for our review. (See Scottsdale Ins. Co. v.

MV Transp. (2005) 36 Cal.4th 643, 654, fn.2.)

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of discretion. (See Welsch v. Goswick (1982) 130 Cal.App.3d 398, 408-409

[holding that the trial court abused its discretion in failing to modify a stipulated

injunctive order following a material change in the law].)

Whether changes in the law or circumstances affecting this case require

modification of the injunctive order is a question sharply dividing the parties.

Postsettlement changes to California’s criminal justice system are at issue here,

principally the fact that base terms no longer directly control the release date for

indeterminately-sentenced inmates. The Board argues that these changes are

sufficiently material because they have “emptied base terms of any meaning and

function.” Butler, by contrast, argues that modification is appropriate only when

an injunctive order “conflicts with or violat[es]” current law. And, Butler

continues, far from conflicting with these subsequent developments, the settlement

order in fact furthers their purpose of reducing the state’s prison population.

The Court of Appeal did not modify the injunction order. In continuing to

embrace the stipulated agreement as it stood before the recent raft of legal

changes, the court observed that the agreement did not directly conflict with the

new legal regime and held that the changes in the law were not sufficiently

material to warrant modification. Yet in so concluding, the appellate court did not

fully consider the extent to which the intervening legal changes have undermined

the settlement’s foundational assumptions, even if the changes fell short of

creating an actual conflict with the settlement.

In its argument, the Board relies on cases involving injunctions that conflict

with current law. These cases can be distinguished from what is before us. In

Salazar, for example, the trial court entered an injunctive order barring school

districts for charging fees for transportation to and from school. (Salazar, supra, 9

Cal.4th at pp. 844-845.) We later held in Arcadia Unified School District v. State

Department of Education (1992) 2 Cal.4th 251 that charging such fees did not

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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.) We later reversed the Court of Appeal, reasoning that Arcadia

“eliminated the legal basis for the injunction.” (Salazar, 9 Cal.4th at p. 840; see

also id. at p. 850 [“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 Systems Federation No. 91, Railway Employees’ Department, AFL-CIO v.

Wright (1961) 364 U.S. 642. But Systems 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 under the Elderly Parole Program, eligible elderly inmates who have

served a minimum of 25 years may be released to parole if they are found suitable,

regardless of what limit base terms would have otherwise imposed on the inmates’

release dates. Finally, Senate Bill No. 230 requires that an inmate’s sentence ends

once he is found suitable for parole and he has served his statutory minimum term.

(Stats. 2015, ch. 470.) The order does not, as in Salazar and Systems Federation,

prevent the bound party from doing something that it unquestionably has a right to

do under current law. Instead, it requires the Board to do something that no longer

has any apparent significance under its own statutes or regulations. For this

reason, we think the cases on which the Board relies are inapposite.

But neither does Butler persuade when he contends modification of a

continuing injunction requires a conflict between the injunction and current law.

To support this argument, Butler cites Firefighters v. City of Cleveland (1986) 478

13

U.S. 501 (Firefighters). Yet Firefighters is a federal case with no direct relevance

to the question before us. It concerned a consent decree, under title VII of the

Civil Rights Act of 1964, designed to remedy past racial discrimination in the City

of Cleveland’s fire department. (Id. at pp. 505-508.) What the decree required,

among other things, was that the City promote a specific number of minority

firefighters to management positions. (Id. at p. 510.) The union representing the

firefighters objected, arguing that the decree violated section 706(g) of title VII,

which provides that “ ‘[n]o order of the court shall require the . . . promotion of an

individual . . . if such individual was refused . . . advancement . . . for any reason

other than discrimination on account of race, color, religion’ ” etc. (Firefighters,

at p. 514, italics omitted, quoting 42 U.S.C. § 2000e-5 (g).)11 The U.S. Supreme

Court rejected the argument, holding that consent decrees do not qualify as

“ ‘order[s] of the court’ ” under section 706(g) because parties enter into them

voluntarily. (Id. at p. 519; id. at pp. 521-522.)

Also rejected by the U.S. Supreme Court was the union’s contention that a

consent decree can only order relief that a court could impose itself after trial.

(Firefighters, supra, 478 U.S. at p. 525 [a “federal court is not necessarily barred

from entering a consent decree merely because the decree provides broader relief

than the court could have awarded after a trial”]; id. at p. 524.) The court then

went on to cabin this conclusion by noting, in language that Butler cites, that

courts cannot accept a consent decree that “conflicts with or violates the statute

upon which the complaint was based.” (Id. at p. 526.) Even assuming this case

sheds any light on the general issue before us, the morsel of it Butler quotes ––

11 The thrust of the union’s objection was that the consent decree would

require the City to promote some minority firefighters who had not themselves

been denied a promotion for discriminatory reasons. (Firefighters, supra, 478

U.S. at p. 514.)

14

read in context –– does not announce a standard for modification of an injunctive

order. In light of the case’s procedural posture, it is quite clear the Firefighters

court simply reiterated a more general principle underlying injunctive relief: that

consent decrees should be consistent with governing law.

Contrary to what Butler’s contention implies, flexibility is a touchstone of a

court’s power to modify an injunctive order. (See Code Civ. Proc., § 533

[allowing for modification based on “a material change in the facts” or even

simply because “the ends of justice would be served by the modification”]; see

also Sontag Chain Stores, supra, 18 Cal.2d at p. 95 [describing courts’ power to

modify injunctive orders as “an inherent one,” the exercise of which “is

determined by the facts and circumstances of each particular case, with a view to

administering justice between the litigants”].) Of course, statutory changes having

only a tenuous bearing on a settlement agreement do not necessarily give rise to a

requirement to modify the agreement. (See Professional Engineers v. Department

of Transportation (1997) 15 Cal.4th 543, 574 [holding that the trial court did not

abuse its discretion when it failed to modify the initially-imposed terms of an

injunction despite subsequent legislative changes].) Where modification of a

consent decree is neither foreclosed because of constitutional considerations nor

required because of sufficiently important changed circumstances, a court with

jurisdiction over a consent decree has discretion to decide whether to modify the

consent decree in light of the particular circumstances of the case. Given the

nature and extent of statutory changes at issue, however, the relevant inquiry is

therefore whether the statutory changes made since entry of the stipulated

judgment are sufficiently material not only to permit, but in this case to require,

modification of that judgment. (Sontag Chain Stores, supra, 18 Cal.2d at p. 95.)

In arguing that they are, the Board cites three changes: new rules for youth

offenders (Senate Bill No. 260 and Assembly Bill No. 1308); the federal court

15

order relating to elderly inmates; and Senate Bill No. 230, which eliminated the

statutory language on which the Board relied in devising base terms.

Changes of such magnitude are consequential enough to require the

settlement agreement’s modification. Although the new sources of law differ in

certain details,12 all three are similar in establishing parole regimes that do not rely

on an inmate’s base term. Together, they create a new legal landscape wherein

base terms no longer play a defined role in the Board’s determination of parolee

release dates. This is no trifling change. The terms to which the Board agreed in

2013 were significant, but they were also limited: the Board agreed to calculate, at

an earlier time and regardless of suitability for parole, inmates’ base terms —

something that the Board’s regulations anticipated at some point for most inmates

subject to indeterminate sentences. Our conclusion might be different if the

agreement reflected the parties’ agreement regarding how the Board could

comply, for example, with a responsibility to implement judicially-recognized

constitutional principles in undertaking statutory parole determinations. But it is

clear that the settlement agreement emanated from the then-existing statutory and

regulatory structure and embodied, at best, an agnostic reading as to whether base

terms had legal significance outside of that structure. The agreement expressly

defines “base term” and “adjusted base term” by reference to the regulations that

imbued those terms with legal significance. These regulations in turn reference

section 3041, the statute that Senate Bill No. 230 amended. (See, e.g., Cal. Code

Regs., tit. 15, § 2400 [“This article implements Penal Code section 3041”].) By

citing these regulations, the settlement evinces an agreement that base terms have

legal significance because they were pivotal in determining release dates for

12 For example, youth offenders are exempt from Senate Bill No. 230’s

requirement that inmates found suitable for parole nonetheless serve a statutorily-

prescribed minimum sentence. (See § 3046, subd. (c).)

16

indeterminately-sentenced inmates. And advising inmates of their base terms had

the salutary rehabilitative effect of informing each inmate of his or her earliest

possible release date, if found suitable for parole.

This review of the settlement agreement readily showcases how base terms

were relevant in the settlement agreement for a specific reason. To wit: they were

relevant in the existing regulatory structure. Indicia from the agreement, as well

as the contemporary statutory and regulatory scheme, reveal that the settlement

relied on base terms having legal significance within that framework.

Specifically, an inmate’s calculated release date commenced with his or her

adjusted base term, as contemplated in the settlement agreement. When that

agreement was drafted, the Board was required by statute to set a provisional

“parole release date” founded on “criteria” that would “provide uniform terms” for

similar offenses. (Former § 3041, subd. (a).) The Board implemented that

statutory mandate by promulgating regulations requiring the calculation of a base

term, using a matrix that measured the seriousness of the offense and adjusted for

aggravating or mitigating circumstances. (Dannenberg, supra, 34 Cal.4th at p.

1078 [noting that the Board promulgated base term calculations “[i]n response” to

section 3041’s “requirements”].) The Board’s policy was to calculate the base

term not before parole eligibility, but after he or she was found suitable for parole.

The settlement agreement, however, changed the timing of an inmate’s base term

calculation to his or her initial parole hearing or at his or her next scheduled

hearing if the initial hearing had already occurred. What the settlement agreement

did not alter is the Board’s underlying statutory and regulatory duty to calculate

base terms.

That base terms had some role to play in the sentencing regime strikes us as

a “controlling fact[]” on which the injunction rested. (Sontag Chain Stores, supra,

18 Cal.2d at p. 95.) Postsettlement legal changes make that controlling fact no

17

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.)

In holding that the postsettlement changes were not material, the Court of

Appeal focused on whether the stipulated settlement “conflict[ed]” with the new

legal regime. What this approach ignores is that Code of Civil Procedure section

533 provides for modification of an injunctive order not only in instances of

conflict but also upon a “material change in the facts.” The state’s parole regime

has changed significantly enough to warrant relieving the Board of its obligations,

even in the absence of a direct conflict between the settlement and current law.

(See Sontag Chain Stores, supra, 18 Cal.2d at p. 95 [whether to modify an

injunctive order “is determined by the facts and circumstances of each particular

case”].) The Court of Appeal erred in failing to recognize that the modified parole

regime warranted modification of the injunctive order. A “disposition that rests on

an error of law constitutes an abuse of discretion.” (In re Charlisse C. (2008) 45

Cal.4th 145, 159.) In this case, postsettlement developments altering the parole

regime were significant enough to constitute a material change in the facts,

requiring modification of the injunctive order.

18

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; Solem v. Helm (1983) 463 U.S. 277, 284-288.) Writing during a

time when California imposed indeterminate sentences for most felonies, we noted

that the “oft-stated rule that a prisoner has no right to a term fixed at less than

maximum . . . is . . . subject to the overriding constitutionally compelled

qualification that the maximum may not be disproportionate to the individual

prisoner’s offense.” (In re Rodriguez (1975) 14 Cal.3d 639, 652). To guard

against disproportionate punishment, Rodriguez required the parole authority to set

a maximum term of incarceration for each inmate, based on the inmate’s

culpability (as measured by the circumstances of the offense). (Ibid.) Rodriguez

required that the parole authority release inmates once they reached their

maximum term, even if the authority had not found the inmate suitable for parole.

(Ibid.) Butler relies on Rodriguez to argue that the state Constitution requires the

Board to continue setting inmates’ base terms, even after the postsettlement

changes.

19

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.) 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.) The

petitioner in Dannenberg relied on Rodriguez to make a similar argument to the

one Butler advances now. (Id. at p. 1096 [“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 range of offenses, serious and less serious.” (Ibid.) But it was not

constitutionally required for the “narrower category” of serious offenders who

receive indeterminate sentences under current law. (Id. at p. 1097.) Because of

their culpability, there is a “diminish[ed] possibility” that these serious offenders

will suffer constitutionally excessive punishment. (Ibid.) We also emphasized

that inmates may bring their claims directly to court through petitions for habeas

corpus if they “believe, because of the particular circumstances of their crimes,

that their confinements have become constitutionally excessive as a result.” (Id. at

p. 1098.)

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

20

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.) 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.)

Given these changes, we see no reason to nonetheless enshrine base terms

as constitutionally required. The Board promulgated base term regulations in

response to the Legislature’s instruction to establish “criteria” that would promote

sentence uniformity for inmates serving lifetime sentences. (Dannenberg, supra,

34 Cal.4th at pp. 1078-1079.) The Board may not, however, release an inmate

until the individual no longer poses a threat to “public safety,” regardless of any

base term calculation. (Id. at pp. 1083-1084.) In fact, we specifically instructed

the Board to “eschew term uniformity” if public safety considerations warrant a

sentence that went beyond a calculated base term. (Id. at p. 1083, italics omitted.)

Thus, base term calculations were designed to set forth an inmate’s minimum

sentence, not to reflect the maximum sentence permitted by the Constitution.13

Nor do base terms function, in a system focusing parole determinations on

public safety considerations, as a workable measure of constitutional

proportionality. A sentence violates the prohibition against unconstitutionally

13 In its July 27, 2016 order denying the motion to modify the stipulated

agreement, the Court of Appeal also recognized that base terms do not represent

inmates’ maximum terms of incarceration (acknowledging that “the base term no

longer represents the maximum term that can actually be imposed on a life

prisoner”).

21

disproportionate sentences only if it is so disproportionate that it “shocks the

conscience.” (In re Lynch, supra, 8 Cal.3d at p. 424.) Courts engage in a broad,

fact-specific inquiry when assessing constitutional proportionality claims,

considering the “totality of the circumstances surrounding the commission of the

offense.” (People v. Dillon (1983) 34 Cal.3d 441, 479.) Calculating base terms,

in contrast, is best understood as an exercise designed to promote sentencing

uniformity in the absence of other safeguards. (Dannenberg, supra, 34 Cal.4th at

pp. 1078-1079). And the two-factor matrix method used to calculate a base term,

for example, does not significantly address factors relating to the offender, such as

“his age, prior criminality, personal characteristics, and state of mind.” (Dillon,

supra, 34 Cal.3d at p. 479.) Calculating a base term does not serve as a judgment

on constitutional proportionality. Moreover, the Board has discretion to increase

the length of terms set forth in a base term calculation based on policy

considerations. (Dannenberg, supra, at p. 1094, fn.15.) So a base term

calculation is, at best, ill-suited to serve as a measure for assessing a sentence’s

constitutional proportionality.

Butler urges us to eschew Dannenberg’s reasoning because its

interpretation construed the prior version of section 3041. Butler is indeed correct

that much of the opinion discusses language in former section 3041, subdivision

(a) that Senate Bill No. 230 excised. (Dannenberg, supra, 34 Cal.4th at pp. 1078-

1095.) But the aforementioned passages from Dannenberg are present in a

different portion of the opinion, addressing a distinct constitutional argument that

does not depend on the validity of section 3041’s previous incarnation. (Id. at pp.

1096-1098.) What we considered in that portion of the opinion was whether the

state Constitution required the Board to measure each inmate’s culpability for the

purpose of guarding against unconstitutionally excessive punishment. We

answered in the negative, at least for a regime where only a subset of defendants

22

are 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.

23

III.

The settlement agreement approved by the parties in 2013 required the

Board to calculate an inmate’s base term at his or her initial parole hearing. At the

time the parties ratified that agreement, a calculated base term directly impacted

the release date for inmates serving indeterminate life sentences. Not so today.

Instead, the release date for indeterminately-sentenced adult inmates — like Butler

— is now guided by the date when an inmate has served the statutory minimum

term and is found suitable for parole based on statutory public safety-related

criteria, subject to limited exception. These changes to California’s criminal

justice system do not diminish the societal interest in avoiding arbitrary parole

determinations. They do, however, dictate that base terms no longer directly

control the release date for prisoners subject to indeterminate sentences. That

these statutory changes are material to these parties’ agreement requires, legally

and practically, modification of the injunctive order by the Court of Appeal.

Moreover, sentencing in California involves primarily determinate sentences and

parole determinations involving public safety considerations –– so specific base

term calculations are not a constitutionally necessary measure for guarding

inmates serving indeterminate sentences against disproportionate punishment.

We reverse the judgment of the Court of Appeal and order the settlement

agreement modified so that the Board of Parole Hearings is relieved of its

obligations to calculate base terms and adjusted base terms.

CUÉLLAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

RUBIN, J.*

* Associate Justice of the Court of Appeal, Second Appellate District, Division Eight,

assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

24

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Butler

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 236 Cal.App.4th 1222

Rehearing Granted

__________________________________________________________________________________

Opinion No. S237014

Date Filed: April 2, 2018

__________________________________________________________________________________

Court: Superior

County: Alameda

Judge: Larry J. Goodman

__________________________________________________________________________________

Counsel:

Keker & Van Nest, Keker, Van Nest & Peters, Jon B. Streeter, Susan J. Harriman, Benita A. Brauhmbhatt,

Sharif E. Jacob, Steven A. Hirsch and Andrea Nill Sanchez for Petitioner Roy Thinnes Butler.

Heidi L. Rummel, Michael J. Brennan, Anna Faircloth Feingold and Rebecca Brown for USC Gould

School of Law Post-Conviction Justice Project as Amicus Curiae on behalf of Petitioner Roy Thinnes

Butler.

William Vogel and Aubrey Grant as Amici Curiae on behalf of Petitioner Roy Thinnes Butler.

Kamala D. Harris and Xavier Becerra, Attorneys General, Edward C. DuMont, State Solicitor General,

Gerald A. Engler, Chief Assistant Attorney General, Jennifer A. Neill and Phillip J. Lindsay, Assistant

Attorneys General, Aimee Feinberg, Deputy State Solicitor General, Samuel P. Siegel, Associate Deputy

State Solicitor General, Claudia H. Amaral, Amber N. Wipfler, Sara J. Romano and Brian C. Kinney,

Deputy Attorneys General, for Respondent the People.

Mark Zahner; and Richard J. Sachs, Deputy District Attorney (San Diego) for California District Attorneys

Association as Amicus Curiae on behalf of Respondent the People.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Sharif E. Jacob

Keker, Van Nest & Peters

633 Battery Street

San Francisco, CA 94111-1809

(415) 391-5400

Aimee Feinberg

Deputy State Solicitor General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5255