CUÉLLAR, J. —
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
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.
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 [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.)
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 indeterminate sentences. (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 Pen. Code, § 3041 as a statutory reference], 2400 ["This article implements Penal Code section 3041"].) One such set of regulations applies to noncapital murder committed on or after November 8, 1978. (Cal. Code Regs., tit. 15, § 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.
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. (In re Butler (2015) 236 Cal.App.4th 1222, 1227-1228 [187 Cal.Rptr.3d 375].) 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. (In re Butler, at pp. 1227-1228.) The Court of Appeal appointed counsel who assisted Butler in filing a supplemental habeas corpus 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 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.
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 became effective.
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 (2013-2014 Reg. Sess.) 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
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 Senate Bill No. 230 (2015-2016 Reg. Sess.) 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
We granted the Board's petition for review.
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 Dist. v. State Dept. 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.) We then reversed the Court of Appeal, reasoning that Arcadia "eliminated the legal basis for the injunction." (Salazar, 9 Cal.4th at p. 840;
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 (2013-2014 Reg. Sess.) and Assembly Bill No. 1308 (2017-2018 Reg. Sess.) 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 (2015-2016 Reg. Sess.) 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 System 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. Cleveland (1986) 478 U.S. 501 [92 L.Ed.2d 405, 106 S.Ct. 3063] (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 (Pub.L. No. 88-352 (July 2, 1964) 78 Stat. 241), designed to remedy past racial discrimination in the City of Cleveland's fire department. (Firefighters, 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).)
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 — 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.
Changes of such magnitude are consequential enough to require the settlement agreement's modification. Although the new sources of law differ in certain details,
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
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 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 [84 Cal.Rptr.3d 597, 194 P.3d 330].) In this case, postsettlement developments
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.
Under the cruel or unusual punishment clause (Cal. Const., 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
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.) 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
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 (2015-2016 Reg. Sess.) 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. (Dannenberg, 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 are
Cantil-Sakauye, C. J., Chin, J., Corrigan, J., Liu, J., Kruger, J., and Rubin, J.,
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 we should address these issues. (See Cal. Rules of Court, rule 8.504(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 Transportation (2005) 36 Cal.4th 643, 654, fn. 2 [31 Cal.Rptr.3d 147, 115 P.3d 460].)