In re Butler

• Decision Date: 15 May 2015
• Docket Number: A139411
• Citation: 236 Cal.App.4th 1222,187 Cal.Rptr.3d 375
• Parties: IN RE Roy Thinnes BUTLER, on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

236 Cal.App.4th 1222

187 Cal.Rptr.3d 375

IN RE Roy Thinnes BUTLER, on Habeas Corpus.

A139411

Court of Appeal, First District, Division 2, California.

Filed May 15, 2015

Attorneys for Petitioner: Keker & Van Nest LLP, Under appointment by the Court of Appeal, Jon B. Streeter, Susan J. Harriman, Sharif E. Jacob, Benita A. Brauhmbhatt

Attorneys for Respondent: Office of the Attorney General, Kamala D. Harris, Attorney General of California, Jennifer A. Neill, Senior Assistant Attorney General, Claudia H. Amaral, Supervising Deputy Attorney General, Amber N. Wipfler, Deputy Attorney General

Opinion

Kline, P.J.Roy Thinnes Butler, a parole-eligible life prisoner, challenged the constitutionality of the process used by the Board of Parole Hearings (Board) to determine whether prisoners such as him are suitable for release on parole. Specifically, he contended that the Board's practice of deferring the fixing of a prisoner's base term (which measures individual culpability for the commitment offense) and adjusted base term (which modifies the base term on the basis of factors relating to other offenses) until after he or she is deemed suitable for release, effectively eliminated any meaningful consideration of proportionality in sentencing during the most crucial portion of the parole process, and therefore facilitated imposition of constitutionally excessive punishment.

Before the completion of briefing, the parties settled their dispute by stipulating to an order of this court directing the Board to publicly announce and implement new policies and procedures that would result in the setting of base terms and adjusted base terms at life inmates' initial parole consideration hearings or, if that hearing had already taken place, at the next hearing resulting in a grant or denial of parole. We have issued that order.

Remaining before the court is petitioner's motion for an award of reasonable attorney fees under Code of Civil Procedure section 1021.5 (section 1021.5 ). The motion raises two distinct issues: whether such fees may be awarded under section 1021.5 and, if so, the reasonable amount of such fees.

BACKGROUND

Claiming that the Board “failed to fix his term at a number of years proportionate to his crime,” as required by law, Butler's petition focused on the Board's regulations and practice of deferring the setting of a base term for a parole eligible life prisoner unless and until after he or she is found suitable for release on parole. (Cal.Code Regs., tit. 15 (Regs.), §§ 2282, subd. (a), 2403, subd. (a).) According to Butler, the challenged practice failed to comport with article I, section 17, of the California Constitution and the Eighth Amendment to the United States Constitution, deprived him and all parole eligible life prisoners a fair parole hearing and the due process guaranteed by the state and federal Constitutions, and obstructed judicial review of claims that the denial of parole resulted in constitutionally excessive punishment.

On January 30, 2012, we ordered the appointment of counsel to represent Butler, investigate and research whether to file a supplemental petition to refine his claim, and determine the need for the discovery Butler sought. On February 11, 2013, we appointed Jon B. Streeter, then a partner in the firm of Keker & Van Nest, counsel for Butler.¹

On May 28, 2013, appointed counsel filed a supplemental petition for writ of habeas corpus refining the contentions Butler had asserted in his own behalf together with a motion for discovery.² We issued an order to show cause on August 9, 2013, but deferred briefing on the constitutional claims until resolution of Butler's discovery motion. On the same day we issued an order directing the Board to produce some of the materials Butler requested and directed the parties to meet and confer regarding the remaining requests. On September 9, 2013, after they met and conferred, the parties filed a joint status report.

Several weeks later, after the court conducted an informal discovery conference, counsel for the parties informed the court they wished to commence settlement discussions and requested designation of a justice of another division to facilitate that enterprise. Justice Jim Humes, then a member of Division Four of this court and now Presiding Justice of Division One, agreed to be so designated. Counsel for the parties, as well as the executive officer of the Board and its general counsel, participated in three settlement conferences with Justice Humes.

At the final conference, on December 13, 2013, the parties settled the case by stipulating to an order of this court directing, among other things, that: “as soon as is practicable, the Board shall begin implementation of new policies and procedures that will result in the setting of base terms and adjusted base terms for life term inmates at their initial parole consideration hearing, or at the next scheduled parole consideration hearing that results in a grant of parole, a denial of parole, a tie vote, or a stipulated denial of parole.”³

The stipulation also provided that “the Board will commence rulemaking proceedings designed to memorialize and embody said new policies and procedures.”

On December 16, 2013, upon the request of the parties set forth in their stipulation, this court issued an order directing that “the Board shall, at the next publicly noticed Board meeting, announce a policy of calculating the base term and adjusted base term for all life inmates at the initial parole consideration hearing. The Board will implement this policy on the first day of the calendar month following the aforementioned meeting.”

On October 21, 2014, Butler filed a motion requesting an award of reasonable attorneys' fees under section 1021.5. The amount sought is $439,421.65.

The Board maintains the motion is deficient in two respects: that Butler is not entitled to fees “because the settlement agreement did not result in the enforcement of an important right affecting the public interest,” as required by section 1021.5, and that, even if he is entitled to fees under the statute, the amount Butler requests is unreasonable. We disagree with the Attorney General's first contention, but agree with the second.

I.

Butler Is Entitled to an Award of Fees Under Section 1021.5

As material, section 1021.5 provides that “a court may award attorneys' fees to a successful party ... in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (§ 1021.5.) “ ‘The determination that the public policy vindicated is one of constitutional stature ... establishes the first of the ... elements requisite to the award (i.e., the relative societal importance of the public policy vindicated).’ ” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318, 193 Cal.Rptr. 900, 667 P.2d 704, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 46, fn. 18, 141 Cal.Rptr. 315, 569 P.2d 1303.) Moreover, the California Supreme Court has recognized that prisoners' constitutional rights “reflect strong public policies, any institutional violation of which of necessity affects a large number of persons, most of whom are ill equipped by education, training, or financial ability to initiate and adequately prosecute legal actions to vindicate those rights without the assistance of counsel.” (In re Head (1986) 42 Cal.3d 223, 229, 228 Cal.Rptr. 184, 721 P.2d 65.)

“[R]elief obtained through a settlement may qualify a [litigant] as the prevailing party, even in the presence of a stipulation disclaiming liability on the merits.” (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, at p. 1345, 39 Cal.Rptr.3d 550 ) “The critical fact is the impact of the action, not the manner of its resolution.” (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 685, 186 Cal.Rptr. 589, 652 P.2d 437.) It is also undisputed that prison inmates who successfully challenge in habeas corpus proceedings the procedures they are subjected to by prison authorities may be awarded attorney fees under section 1021.5. (In re Head, supra, 42 Cal.3d 223, 228 Cal.Rptr. 184, 721 P.2d 65.)

The controversy in this case thus comes down to whether “a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons.” (§ 1021.5.) The parties' fundamental disagreement is over the role of the “base term” and “adjusted base term” in the sentencing scheme prescribed by the determinate sentence law (DSL) (Pen.Code, § 1170, et seq. ), and the practical significance of prompt term-setting.

A.

The Competing Contentions of the Parties

The penal purpose of the DSL and the sentencing principles it is built upon are set forth in the statute's opening sentences: “The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.” (Pen.Code, § 1170, subd. (a)(1).) Proportionality refers to individual culpability based on the circumstances of a particular crime (In re Dannenberg (2005) 34 Cal.4th 1061, 1096, 23 Cal.Rptr.3d 417, 104 P.3d 783 (Dannenberg )), while uniformity, as indicated in Penal Code section 1170, refers to a comparison between offenders committing similar offenses in similar circumstances. Butler believes the base and adjusted base terms referred to in the settlement are the measure of the proportionality in sentencing the DSL was designed to achieve...