In re Butler

Decision Date02 April 2018
Docket NumberS237014
CourtCalifornia Supreme Court
Parties IN RE Roy BUTLER on Habeas Corpus.

4 Cal.5th 728
413 P.3d 1178
230 Cal.Rptr.3d 736

IN RE Roy BUTLER on Habeas Corpus.


Supreme Court of California

Filed April 2, 2018

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, San Francisco, for Petitioner Roy Thinnes Butler.

Heidi L. Rummel, Michael J. Brennan, Costa Mesa, 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, Tarzana, 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.


413 P.3d 1180
230 Cal.Rptr.3d 738
4 Cal.5th 731

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

4 Cal.5th 732

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 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.

4 Cal.5th 733


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

230 Cal.Rptr.3d 739

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

413 P.3d 1181

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, 23 Cal.Rptr.3d 417, 104 P.3d 783 ( 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, 23 Cal.Rptr.3d 417, 104 P.3d 783.)

The state largely abandoned this system when it adopted a mostly "determinate" sentencing regime in 1976. (Dannenberg , supra , 34 Cal.4th at p. 1078, 23 Cal.Rptr.3d 417, 104 P.3d 783.) Now, most felonies are subject to defined terms of confinement. But certain serious offenses, including noncapital murder, remain subject to 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).)

4 Cal.5th 734

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, 23 Cal.Rptr.3d 417, 104 P.3d 783 [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

230 Cal.Rptr.3d 740

implements 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, 23 Cal.Rptr.3d 417, 104 P.3d 783.) 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...

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