Opinion
C081668
11-15-2017
VINCENT BOBO, Plaintiff and Respondent, v. BOARD OF PAROLE HEARINGS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201580002012CUWMGDS)
This case is about the validity of a regulation governing factors the Board of Parole Hearings (the board) can consider when determining whether a person convicted of a crime punishable with an indeterminate life sentence is suitable or unsuitable for parole: California Code of Regulations, title 15, section 2281 (section 2281). Section 2281 outlines the various circumstances that demonstrate a life-term inmate's "suitability" or "unsuitability" for release.
All further undesignated references to regulations are to title 15 of the California Code of Regulations. --------
In challenging the validity of the regulation, petitioner Vincent Bobo contends section 2281 conflicts with the text of Penal Code section 3041, subdivision (b) (section 3041(b)) because the regulation allows the board to consider factors other than "the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses" in determining parole suitability. (Pen. Code, § 3041(b)(1).)
The trial court dismissed petitioner's writ petition challenging section 2281 on the basis that he failed to state a claim for relief because the regulation is consistent with Penal Code section 3041(b). We agree and therefore affirm.
LEGAL BACKGROUND
The board's parole decisions are governed by section 2281 and Penal Code section 3041. Penal Code section 3041(b) provides that a release date must be set "unless [the board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration." Section 2281 sets forth the factors to be considered by the board in carrying out the mandate of the statute. The regulation is intended to guide the board's evaluation of whether the inmate poses "an unreasonable risk of danger to society if released from prison" and thus whether he or she is suitable for parole. (§ 2281, subd. (a).) Section 2281, subdivision (b) requires the board to consider all "relevant, reliable information" in determining suitability for parole, including, among other things, the inmate's social history, past and present mental state, and institutional behavior. The regulation also lists several circumstances relating to unsuitability for parole, such as the heinous, atrocious, or cruel nature of the crime, an unstable social background, or serious misconduct in prison or jail. (§ 2281, subd. (c).) In addition, section 2281 also lists several circumstances related to suitability of parole, such as an inmate's rehabilitative efforts, demonstration of remorse, and the mitigating circumstances of the crime. (§ 2281, subd. (d).)
FACTUAL AND PROCEDURAL BACKGROUND
In February 2015, petitioner, a life inmate, filed a petition for writ of mandate in the trial court challenging the validity of section 2281. Petitioner's challenge was based on the contention that section 2281 violates the Administrative Procedure Act (APA) (Gov. Code, §11340 et seq.) because section 2281 is inconsistent and in conflict with the text of Penal Code section 3041(b). Petitioner argued that section 2281 conflicts with Penal Code section 3041(b) because the regulation allows the board to consider factors other than the timing and gravity of the current or past convicted offense or offenses in determining parole suitability.
In November 2015, the board demurred to the petition on the ground that petitioner failed to plead sufficient facts to state a claim for relief.
The trial court ruled that "when evaluating whether an inmate continues to pose a threat to public safety, the [b]oard must consider all relevant factors, not just the gravity of the convicted offense(s)." The court reasoned that our "Supreme Court has indicated that the focus of parole decision[s] is 'public safety' [and] [t]he core determination of 'public safety' under the statute involves an assessment of an inmate's 'current dangerousness.' " This assessment involves inquiring into "whether the circumstances of the commitment offense, when considered in light of other facts, such as the inmate's subsequent behavior and current mental state, are such that they continue to be predictive of current dangerousness." Further, our Supreme Court has consistently "applied the [b]oard's regulations in determining an inmate's suitability for parole" and has "expressly held that the [b]oard must consider the factors enumerated in the [b]oard's regulations in determining whether an inmate is suitable for parole." As a result, the trial court sustained the board's demurrer to petitioner's claim without leave to amend. Accordingly, the court entered judgment against petitioner. Petitioner filed a timely notice of appeal.
DISCUSSION
Petitioner contends the trial court erroneously sustained the demurrer to his claim that section 2281 is inconsistent with Penal Code section 3041(b), arguing that "both the language of [Penal Code] section 3041(b) and [our] Supreme Court's construction thereof, . . . emphasize that the [b]oard's 'consideration of the public safety' must focus on the circumstances of the inmate's crime, alone, and that those circumstances must, themselves, be extreme in order to justify the denial of a parole release date." We disagree.
The APA requires that "[w]henever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute." (Gov. Code, §11342.2.) " 'Consistency' means being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law." (Gov. Code, § 11349, subd. (d).) A regulation is in conflict with the statute when it "alters or amends the governing statute or case law, or enlarges or impairs its scope." (Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 108, disapproved of on separate grounds by Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086.) In other words, "the question is whether the regulation is within the scope of the authority conferred; if it is not, it is void." (Communities for a Better Environment, at p. 108.)
When, as here, the propriety of a regulation is challenged on the ground that it is in conflict with the governing statute or exceeds the law-making authority delegated by the legislature, "the issue of statutory construction is a question of law on which a court exercises independent judgment." (Western States Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 415; see also Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 11, fn. 4 [reasoning that "[t]he court, not the agency, has 'final responsibility for the interpretation of the law' under which the regulation was issued"].) Under this standard, "the judiciary independently reviews the administrative regulation for consistency with controlling law." (Communities for a Better Environment v. California Resources Agency, supra, 103 Cal.App.4th at p. 108.) On the other hand, "[a]n administrative agency is not limited to the exact provisions of a statute in adopting regulations to enforce its mandate [and] '[t]he absence of any specific [statutory] provisions regarding the regulation of [an issue] does not mean that such a regulation exceeds statutory authority . . . .' " (Ford Dealers Assn. v. Department of Motor Vehicles (1982) 32 Cal.3d 347, 362-363 [concluding that regulations promulgated by the Department of Motor Vehicles that placed limits on advertising and sales by car dealers were valid in order to " ' "fill up the details" ' " of the statutory scheme prohibiting distribution of false or misleading statements to public, even though the governing statute was silent as to rulemaking authority].)
To support his argument that section 2281 is inconsistent with Penal Code section 3041(b), petitioner cites In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz) and In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg). Petitioner purports to draw from Dannenberg and Rosenkrantz the rule that "the [b]oard's 'consideration of public safety' must focus on the circumstances of the inmate's crime, alone, and that those circumstances must, themselves, be extreme in order to justify the denial of a parole release date." But neither Dannenberg nor Rosenkrantz states, or supports, such a rule.
In Rosenkrantz, our Supreme Court held that "[t]he nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole." (Rosenkrantz, supra, 29 Cal.4th at p. 682.) The court also observed, however, that when parole is denied based upon the circumstances of the offense, a due process violation may occur "where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense." (Id. at p. 683.) Thus, the court concluded that " 'a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.' " (Ibid.)
In Dannenberg, our Supreme Court confirmed that "[w]hen the Board bases unsuitability on the circumstances of the commitment offense, it must cite 'some evidence' of aggravating facts beyond the minimum elements of that offense. (Rosenkrantz, supra, 29 Cal.4th 616, 658, 683.)" (Dannenberg, supra, 34 Cal.4th at pp. 1095-1096, fn. 16.) Our Supreme Court also clarified that its discussion in Rosenkrantz, "including [the] use of the phrase 'particularly egregious,' conveyed only that the violence or viciousness of the inmate's crime must be more than minimally necessary to convict him of the offense for which he is confined." (Id. at p. 1095, quoting Rosenkrantz, supra, 29 Cal.4th at p. 683.)
In neither case did our Supreme Court hold that the board must focus only on the circumstances of the inmate's crime and may deny a parole date only when the circumstances of the crime are egregious. In contrast to petitioner's argument, the "Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety (see § 3041; Regs., §§ 2281, 2402), and . . . Rosenkrantz and Dannenberg emphasize[] this point." (In re Lawrence (2008) 44 Cal.4th 1181, 1205 (Lawrence).) Moreover, as our Supreme Court observed in Lawrence, "the core determination of 'public safety' under the statute and corresponding regulations involves an assessment of an inmate's current dangerousness," not the inmate's crime alone. (Ibid.) Indeed, accepting petitioner's interpretation of the governing statute and case law would render the regulation inconsistent with Penal Code section 3041(b) because it would allow the board to review only the crime and the inmate's criminal history. However, this interpretation is contrary to what our Supreme Court has actually held. We conclude that the regulation is in harmony with, and not in conflict with, controlling Supreme Court precedent.
Petitioner contends "the trial court erred in relying on [Rosenkrantz and Lawrence] to reach its conclusion because . . . [they] are not authority for the question [petitioner] presents in the present case: Whether Regulations [sic] 2281 conflicts with its enabling statute, [Penal Code] section 3041(b); as the court, in either of those cases, did not consider that issue." We disagree.
As set forth above, Rosenkrantz recognized that the principal consideration for the board under the governing statutes is whether the inmate currently poses a threat to public safety and thus may not be released on parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, 682-683.) Moreover, as our Supreme Court observed in Lawrence, "the core determination of 'public safety' under the statute and corresponding regulations involves an assessment of an inmate's current dangerousness." (Lawrence, supra, 29 Cal.4th at p. 1205.) Indeed, both of these propositions are directly pertinent to the issue of whether section 2281 conflicts with the text of Penal Code section 3041(b) because they identify the legislative mandate of the governing statute. Therefore, Rosenkrantz and Lawrence are both persuasive authority on the issue presented in this case.
In addition, petitioner argues that Penal Code section 3041(b) established a mandatory parole release date for life term inmates and enumerated certain exceptions to that rule -- namely, that the board may refuse to grant parole only where it "determines that the gravity of the current convicted offense . . . or the timing and gravity of current or past convicted offense or offenses, is such that the consideration of public safety requires a more lengthy period of incarceration." (Pen. Code, § 3041(b).) Relying on the legal maxim expressio unius exclusion alterius, petitioner contends that by specifying these exceptions, the Legislature implicitly precluded the board from creating additional exceptions. Specifically, he contends that "[w]ith no express authorization having been conferred by Penal Code section 3041(b), the [board] lacked the authority to arbitrarily deprive any life prisoner convicted of crimes in which the timing and gravity is not extreme and, therefore, does not raise public safety concerns of the statute's mandatory release date." Additionally, he argues "[n]o statute authorizes the [board] to exempt parole applicants convicted of crimes in which the timing and gravity are not extreme and that, when considered in isolation, do not raise public safety concerns, from the mandatory parole release date setting requirement in subdivision (b) of Penal Code, section 3041." Again, we disagree.
As observed in Lawrence, "when evaluating whether an inmate continues to pose a threat to public safety, both the Board and the Governor must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation." (Lawrence, supra, 44 Cal.4th at p. 1219.) Moreover, "in directing the Board to consider the statutory factors relevant to suitability, many of which relate to postconviction conduct and rehabilitation, the Legislature explicitly recognized that the inmate's threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living the strictures of the law." (Ibid.) The court in Lawrence concluded that the " Legislature considered the passage of time -- and the attendant changes in a prisoner's maturity, understanding, and mental state -- to be highly probative to the determination of current dangerousness." (Id. at pp. 1219-1220.) The court reasoned that "the factors [are] relevant to predicting 'whether the inmate will be able to live in society without committing additional antisocial acts.' (Rosenkrantz, supra, 29 Cal.4th at p. 655.)" (Lawrence, at pp. 1205-1206.) Consequently, "[i]t is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (Id. at p. 1212.) Additionally, the "factors are designed to guide an assessment of the inmate's threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate. (Regs., § 2281, subds. (c), (d); Rosenkrantz, supra, 29 Cal.4th at p. 655.)" (Lawrence, supra, 44 Cal.4th at p. 1206.)
The factors outlining "suitability" and "unsuitability" in section 2281 are well within the scope of Penal Code section 3041(b). The core determination of public safety required by Penal Code section 3041(b) depends on the current dangerousness of an inmate. The factors outlined in section 2281 help the board assess the current dangerousness of an inmate in relation to the timing and gravity of current or past convicted offenses. For instance, where an "inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct post incarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide 'some evidence' of current dangerousness even decades after commission of the offense." (Lawrence, supra, 44 Cal.4th at p. 1228.) Therefore, we conclude that the section 2281 is not in conflict with section 3041(b) and is instead consistent with the mandate of the statute.
Petitioner contends the trial court erred in relying on Lawrence because "the trial court overlooked the fact that, in Lawrence, the California Supreme Court did not exercise its independent judgment when it interpreted [Penal Code] Section 3041, but rather deferred to the Board[']s interpretation of the statute by applying the 'highly deferential "some evidence" standard of review.' " Petitioner suggests "[the case] the trial court . . . should have turned to in deciding whether [section] 2281 conflicts with Penal Code Section 3041(b) is In re Dannenberg, supra, 34 Cal.4th 1061." He argues that in Dannenberg, the court construed Penal Code section 3041(b) to mean "that the Board's determination of an inmate's parole suitability must be based upon certain facts, namely, ' "the gravity of the current convicted offense . . . or the timing and gravity of current or past convicted offense or offenses." ' " We disagree.
Petitioner's interpretation of Lawrence and Dannenberg is incorrect. Nowhere in Lawrence did the Supreme Court apply a deferential standard of review in relation to the board's interpretation of 3041(b). Thus, the trial court did not err in relying on Lawrence. As for Dannenberg, in that case the court stated that Penal Code section 3041(b) "provides that a parole release date shall be set 'unless [the Board] determines' that the inmate is presently unsuitable for the fixing of a parole date, i.e., that 'the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.' " (Dannenberg, supra, 34 Cal.4th at p. 1079.) Nowhere did the court in Dannenberg state that a parole suitability determination must be based exclusively on the gravity of the current convicted offense or the timing and gravity of current or past convicted offense or offenses. (Id. at pp. 1082-1083.) For this reason, petitioner's reading of Dannenberg is incorrect, and as a result his argument is without merit. Accordingly, petitioner cannot show that the challenged regulation or our Supreme Court's interpretation thereof is in conflict with Penal Code section 3041(b).
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Renner, J.