Opinion
C083738
03-01-2018
JAMES FREDRICK MENEFIELD, Plaintiff and Appellant, v. EDMUND G. BROWN, JR., Individually and as Governor, etc., et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 342016001952304)
This case is about what information the Governor and Board of Parole Hearings (collectively, the board) may consider when determining whether a person convicted of a crime punishable with an indeterminate life sentence is suitable or unsuitable for parole.
Plaintiff James Menefield first contends that California Code of Regulations, title 15, section 2402 (section 2402) conflicts with the text of Penal Code section 3041, subdivision (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, subd. (b)(1).) In addition, he argues that the board's current practice of denying parole to life prisoners based on minor and administrative misconduct violates the due process rights of inmates. We disagree with these contentions and therefore affirm the judgment that followed the sustaining of the board's demurrer to plaintiff's complaint for declaratory and injunctive relief.
All further undesignated section references to regulations are to title 15 of the California Code of Regulations.
LEGAL BACKGROUND
The board's parole decisions are governed by Penal Code section 3041 and section 2402. Penal Code section 3041, subdivision (b)(1) 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 2402 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. (§ 2401, subd. (a).) Section 2402, 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. (§ 2402, subd. (c).) In addition, section 2402 also lists several circumstances related to suitability for parole, such as an inmate's rehabilitative efforts, demonstration of remorse, and the mitigating circumstances of the crime. (§ 2402, subd. (d).)
Section 3314 of the regulations outlines inmate misconduct that is classified as administrative. (See § 3314, subd. (a).) Under section 3314, an inmate charged with an administrative rule violation "does not have the right to call witnesses or to have an investigative employee assigned." (§ 3314, subd. (c).)
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, an inmate serving an indeterminate life sentence, filed a complaint for declaratory and injunctive relief in which he raised three claims challenging how the board reviews an inmate's suitability for parole. Plaintiff argued in his first two claims that section 2402 conflicts with Penal Code section 3041, subdivision (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 the alternative, plaintiff contended in his third claim that the board's practice of denying inmates parole based on institutional misconduct that is documented on a counseling chronology or classified as administrative pursuant to section 3314 is unconstitutional because it violates due process.
The board answered the complaint and filed a motion for judgment on the pleadings on the grounds that plaintiff failed to allege facts sufficient to demonstrate an actual controversy and plaintiff's claim failed as a matter of law. The trial court issued a tentative ruling granting the board's motion for judgment on the pleadings with leave to amend. The court ruled that "the complaint fail[ed] to state an actual, present controversy" and did not "appear to be necessary and proper." The court reasoned that the claim was not ripe or necessary because plaintiff did not allege "facts establishing any likelihood he will actually feel [the] effects" of the board's regulation "at the time of his first parole determination." Further, the court stated that there were "no allegations that his prison disciplinary record contain[ed] citations from the infractions about which he complains." The court concluded that "[a]bsent such allegation, the dispute he presents is hypothetical."
At the hearing on the board's motion, the court affirmed its tentative ruling but gave plaintiff leave to amend. As a result, the trial court did not address plaintiff's claim on the merits.
Plaintiff filed an amended complaint in which he asserted the same claims as in his original complaint. The board demurred to plaintiff's complaint on the grounds that plaintiff failed to allege an actual controversy, declaratory relief was not necessary or proper because he had an adequate remedy by means of a petition for writ of habeas corpus, and his claims failed as a matter of law. At the hearing on the board's demurrer, the court sustained the board's demurrer without leave to amend. Subsequently, the court entered judgment against plaintiff, who timely appealed.
DISCUSSION
I
As A Matter Of Law, Plaintiff Has Established The Existence Of An "Actual
Controversy" Within The Meaning Of Code Of Civil Procedure Section 1060
Plaintiff contends his "amended complaint clearly demonstrates the existence of an actual controversy relating to the proper interpretation of Penal Code [section] 3041, the validity of [section] 2402, and the constitutionality of the [board's] current practice of denying parole to life prisoners based on inherently unreliable documentation of minor and administrative misconduct." We agree.
The purpose of declaratory relief is " 'to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs.' " (Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 884, quoting Travers v. Louden (1967) 254 Cal.App.2d 926, 931.) Moreover, "[i]t 'is to be used in the interests of preventive justice, to declare rights rather than execute them.' " (Environmental Defense Project of Sierra County, at p. 884.)
Under Government Code section 11350, subdivision (a), "[a]ny interested person may obtain a judicial declaration as to the validity of any regulation . . . by bringing an action for declaratory relief in the superior court in accordance with the Code of Civil Procedure." Code of Civil Procedure section 1060 provides that "[a]ny person . . . who desires a declaration of his or her rights or duties with respect to another . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action . . . in the superior court for a declaration of his or her rights . . . . " (Italics added.)
The "actual controversy" language in Code of Civil Procedure section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties. (Sherwyn v. Department of Social Services (1985) 173 Cal.App.3d 52, 58.) "For a probable future controversy to constitute an 'actual controversy,' however, the probable future controversy must be ripe." (Environmental Defense Project of Sierra County v. County of Sierra, supra, 158 Cal.App.4th at p. 885.) A "controversy is 'ripe' when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made." (California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22.) "Whether a claim presents an 'actual controversy' within the meaning of Code of Civil Procedure section 1060 is a question of law that we review de novo." (Environmental Defense Project of Sierra County, at p. 885.)
In determining whether a controversy is ripe, we use a two-pronged test: we determine (1) whether the dispute is sufficiently concrete to make declaratory relief appropriate, and (2) whether the withholding of judicial consideration will result in hardship to the parties. (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171-173.) Under the first prong, the courts will decline to adjudicate a dispute if "the abstract posture of th[e] proceedings makes it difficult to evaluate . . . the issues," if the court is asked to speculate on the resolution of hypothetical situations, or if the case presents a contrived inquiry. (Id. at p. 172.) Typically, however, a regulation is definitive where it is challenged after being promulgated in a formal matter. (Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 502 [holding that a facial attack on "ritualistic slaughter" regulation met "fitness" for review test because issue tendered was "purely legal" and regulation "quite clearly" final because promulgated formally after announcement and public comment]; but see Pacific Legal Foundation, at p. 172 [concluding that the court will not "speculate as to the type of developments for which access conditions might be imposed, and then . . . express an opinion on the validity and proper scope of such hypothetical exactions"].) Similarly, where issues are legally rather than factually oriented, they will likely be considered fit for immediate review. (Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, 1580 [concluding that a challenge to city growth control ordinance met fitness for review test because ordinance might conflict with city's obligation to supply low-income housing].)
Under the second prong, the courts will not intervene merely to settle a difference of opinion; there must be an imminent and significant hardship inherent in further delay. (Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d at pp. 171-173; see Califano v. Sanders (1977) 430 US 99, 105 [51 L.Ed.2d 192, 199] [drug manufacturer confronted dilemma of complying with labeling regulation, thus destroying its existing labels, or facing threat of sanctions for mislabeling].)
In plaintiff's first cause of action, he contends "that Penal Code section 3041(b) does not authorize [the board] to base their [sic] parole decisions on any factor not directly relating to a life prisoner's crime(s) or criminal history, including postconviction prison misconduct." In his second cause of action, he alleges that section 2402 "impermissibly expand[s] the parole release criteria set forth in Penal Code section 3041(b)." In his third cause of action, plaintiff contends that he "has received numerous minor and administrative infractions" throughout his incarceration. He further alleges that "[i]nstitutional misconduct that is documented on a CDCR-128-A Custodial Counseling Chrono, or classified as administrative pursuant to [section] 3314, is inherently unreliable because inmates do not have the right to adequately defend against such allegations, nor is such misconduct subject to judicial review [and] [t]his carries the risk of inmates being subjected to years of additional incarceration because of potentially false, inaccurate information." In short, plaintiff contends that an inmate's due process rights are violated where the board denies parole based on an inmate's history of minor or administrative misconduct.
In this case, the ripeness test is satisfied. Under the first prong, the question before us is not so abstract or theoretical that we should anticipate a better factual scenario. Even the board concedes that plaintiff's claims "are purely legal in nature." In relation to the first two causes of action, the crux of plaintiff's argument is directed toward challenging the text of the regulation that governs parole suitability, not how the regulation will apply to him in the future. As to the third cause of action, although plaintiff will not be eligible for parole until 2021, his argument does not rest on the factual circumstances of a future hypothetical. We need not speculate to determine the constitutionality of the board's current practice of relying on minor and administrative misconduct, which plaintiff's disciplinary record contains, in finding an inmate unsuitable for parole.
Under the second prong, a significant and imminent injury is inherent in further delay. If, as plaintiff contends, he is subject to "the possibility of being subjected to additional years of incarceration based on unlawful policies and practices," undoubtedly he will experience hardship. Thus, on balance, we conclude the complaint is ripe for judicial determination and that an "actual controversy" exists.
II
The Superior Court Abused Its Discretion When It Ruled
That Plaintiff's Claim Was Not "Necessary Or Proper"
The board argues that "the superior court properly exercised its discretion not to issue declaratory relief because [plaintiff] has an adequate and speedy alternate vehicle for seeking relief if the Board were to deny him parole: habeas corpus." Plaintiff contends "the superior court had no reasonable basis for making its determination under Code of Civ. Proc. §1061" and the "trial court abused its discretion when it misinterpreted Code Civ. Proc. §1060 and Gov. Code §11350(a) in its ruling on [the board's] demurrer." In addition, he argues that "[u]nder the current circumstances, a writ of habeas corpus is not an adequate, alternative remedy [and] [t]hus, the superior court abused its discretion under Code Civ. Proc. §1061." We agree.
Under Code of Civil Procedure section 1061, the decision whether to grant declaratory relief is within the discretion of the trial court: "The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances." It is within the trial court's discretion to grant or deny declaratory relief and a reviewing court will not disturb that exercise of discretion absent abuse. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 433 ["[t]he trial court's decision to entertain an action for declaratory relief is reviewable for abuse of discretion"].) "The discretion afforded the trial court is not, however, unlimited." (Mendoza v. County of Tulare (1982) 128 Cal.App.3d 403, 419-420; see also Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 [reasoning that " '[t]he discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown' "].)
The remedy of declarative relief is cumulative and does not restrict any other remedy. (Code Civ. Proc., § 1062.) Moreover, "[t]he mere circumstance that another remedy is available is an insufficient ground for refusing declaratory relief, and doubts regarding the propriety of an action for declaratory relief . . . generally are resolved in favor of granting relief." (Filarsky v. Superior Court, supra, 28 Cal.4th at p. 433; see also Jones v. Robertson (1947) 79 Cal.App.2d 813, 820 [concluding that " 'it must clearly appear that the asserted alternative remedies are available to the plaintiff and that they are speedy and adequate or as well suited to the plaintiff's needs as declaratory relief ' "].) Typically, declaratory relief is used to challenge a regulation adopted by a state agency. (See Gov. Code, § 11350, subd. (a) ["Any interested person may obtain a judicial declaration as to the validity of any regulation or order of repeal by bringing an action for declaratory relief"].)
The writ of habeas corpus is a means to challenge the legality of confinement or to allege unlawful restraint on liberty "under any pretense." (Pen. Code, § 1473, subd. (a).) Additionally, it may be "sought to obtain a declaration and enforcement of a prisoner's rights in confinement." (In re Davis (1979) 25 Cal.3d 384, 387; see also In re Drake (1951) 38 Cal.2d 195, 198 [concluding that "Habeas corpus does not lie to challenge the validity of an anticipated future action nor to secure declaratory relief in advance thereof"].)
Because petitioner bases his argument on the validity of a regulation and challenges the validity of an anticipated future action, rather than the conditions of his current confinement, declaratory relief is both necessary and proper under the circumstances. Indeed, this is precisely the situation that declaratory relief was intended for. In contrast, habeas, which challenges the conditions of confinement, is not an adequate alternative remedy under the circumstances because a habeas claim by plaintiff will not be ripe unless and until his incarceration is actually extended based on the factors he contends are unlawful. In this case, therefore, habeas is not as well tailored to plaintiff's needs as declaratory relief is. (See In re Claudia E. (2008) 163 Cal.App.4th 627, 637 [concluding that "declaratory relief better serves the juvenile dependency system than habeas corpus relief -- a time-consuming process that is inimical to the expedient processing of cases and one which most likely will be impractical in the crowded dependency system"]; see also Mendoza v. County of Tulare, supra, 128 Cal.App.3d at p. 420 [concluding that it was an abuse of discretion for the trial court to sustain respondents' demurrer without leave to amend on the ground that habeas was a more proper alternative].) Thus, we conclude that it was an abuse of discretion to sustain the board's demurrer without leave to amend on the ground that plaintiff has an adequate alternative remedy in habeas.
III
As A Matter Of Law, Plaintiff's Claims Are Without Merit
The trial court did not reach the merits of plaintiff's claim; however, because plaintiff's claims are pure questions of law, "it would be an idle act to reverse the judgment of dismissal for a trial on the merits." (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 24.) Under these circumstances, the reviewing court may consider the merits of the legal controversy, and "the opinion of the reviewing court will constitute the declaration of the legal rights and duties of the parties concerning the matter in controversy." (Ibid.)
Plaintiff has two primary contentions on appeal: (1) section 2402 conflicts with Penal Code section 3041, subdivision (b); and (2) the due process rights of inmates are violated where the board denies parole based on administrative misconduct. For the reasons that follow, plaintiff's claims are without merit.
A
Section 2402 Is Consistent With Penal Code Section 3041 , Subdivision (B)
Plaintiff contends "Penal Code [section] 3041(b) does not authorize the [board] to base their parole decisions on any factor not directly relating to a life prisoner's crime(s) or criminal history, including postconviction prison misconduct." In addition, he argues the board should not base its parole decisions on institutional misconduct not "directly relate[d] to the prisoner's crime(s) or criminal history." Further, in his closely related second cause of action, plaintiff contends that certain factors in section 2402 "impermissibly expand the parole release criteria [in] Penal Code §§ 3041(b) . . . ." We disagree.
The Administrative Procedure Act (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, 1089.) 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.)
Public Law No. 79-404 (June 11, 1946) 60 Statutes at Large 237.
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 [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].)
In assessing 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," the board is guided by section 2402. (In re Prather (2010) 50 Cal.4th 238, 249.) Included in section 2402 is a list of circumstances tending to show unsuitability for parole -- including certain types of commitment offenses, unstable social background, and serious misconduct in prison or jail. (§ 2402, subd. (c).) Section 2402 also contains a separate list of circumstances tending to show suitability for parole -- such as an inmate's rehabilitative efforts and demonstration of remorse, the mitigating circumstances of the crime, and his or her institutional behavior indicating an enhanced ability to function within the law. (§ 2402, subd. (d).) "[T]he regulation explains that the . . . circumstances 'are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.' " (In re Lawrence (2008) 44 Cal.4th 1181, 1203.) "[T]he paramount consideration for . . . the [b]oard . . . under the governing statutes is whether the inmate currently poses a threat to public safety . . . ." (In re Shaputis (2008) 44 Cal.4th 1241, 1254.)
In Lawrence, our Supreme Court observed that "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." (In re Lawrence, supra, 44 Cal.4th at p. 1203.) 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 within the strictures of the law." (Id. at p. 1219.) 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.' [In re] Rosenkrantz [(2002) 29 Cal.4th 616,] 655.]" (In re Lawrence, supra, 44 Cal.4th 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.)
The factors outlining "suitability" and "unsuitability" in section 2402 are well within the scope of Penal Code section 3041, subdivision (b). The core determination of public safety is the current dangerousness of an inmate. The factors outlined in section 2402 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 postincarceration, 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." (In re Lawrence, supra, 44 Cal.4th at p. 1228.) Thus, contrary to plaintiff's argument, the "Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety. (See § 3041; Regs., §§ 2281, 2402.)" (In re Lawrence, supra, 44 Cal.4th at p. 1205.) Therefore, we conclude that the section 2402 is not in conflict with Penal Code section 3041, subdivision (b) and is instead consistent with the mandate of the statute.
Plaintiff contends that "[b]ecause Lawrence never properly considered the claims presented herein, it does not control the outcome of this case." Again, we disagree. Our Supreme Court concluded in Lawrence, "the core determination of 'public safety' under the statute and corresponding regulations involves an assessment of an inmate's current dangerousness." (In re Lawrence, supra, 29 Cal.4th at p. 1205.) Indeed, this conclusion is directly pertinent to the issue of whether section 2402 conflicts with the text of Penal Code section 3041, subdivision (b) because it identifies the legislative mandate of the governing statute.
B
The Board's Consideration Of Administrative
Misconduct Violations Does Not Violate Due Process
Plaintiff contends that "minor misconduct documented on a CDCR 128-A Custodial Counseling Chrono, as well as misconduct that is classified as administrative [misconduct] pursuant to [section 3314] does not possess a sufficient indicia of reliability necessary to support a parole decision in the case of life prisoners." Further, he contends that minor and administrative conduct allegations are "inherently unreliable because prisoners lack the ability to effectively defend against such allegations." Again, we disagree.
In Sandin v. Conner (1995) 515 U.S. 472, 474 [132 L.Ed.2d 418, 424], the United States Supreme Court examined the "circumstances under which state prison regulations afford inmates a liberty interest protected by the Due Process Clause." In Sandin, the plaintiff alleged that Hawaii prison officials had violated due process by refusing to allow him to present witnesses during a disciplinary hearing. (Id. at p. 475 .) The court held "that neither the Hawaii prison regulation in question, nor the Due Process Clause itself, entitled him to [procedural] protections." (Id. at p. 487 [132 L.Ed.2d at p. 431].) The court reasoned that the "decision to release a prisoner rests on a myriad of considerations. And, the prisoner is afforded procedural protection at his parole hearing in order to explain the circumstances behind his misconduct record." (Ibid. [132 L.Ed.2d at p. 432.) In addition, "[n]othing in Hawaii's code requires the parole board to deny parole in the face of a misconduct record or to grant parole in its absence . . . even though misconduct is by regulation a relevant consideration." (Ibid. [132 L.Ed.2d at pp. 431-432].) The court noted that this was not a situation "where the State's action will inevitably affect the duration of his sentence." (Ibid. .) As a result, the court concluded "[t]he chance that a finding of misconduct will alter the balance is simply too attenuated to involve the procedural guarantees of the Due Process Clause." (Ibid. .)
Similar to Sanden, nothing in the governing regulations here requires the board to deny or grant parole based on an absence or presence of minor or administrative misconduct. Also, the situation plaintiff describes is not a case where the state's action will inevitably affect the duration of his sentence. 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." (In re Lawrence, supra, 44 Cal.4th at p. 1219.) As a result, the possibility that a finding of administrative misconduct will alter the balance is too attenuated to invoke the procedural guarantees of the due process clause. Further, the prisoner is afforded procedural protections at his parole hearing in order to explain the circumstances behind his misconduct record. Parole applicants have a due process right "to be free from an arbitrary parole decision, to secure information necessary to prepare for interviews with the Authority, and to something more than mere pro forma consideration." (In re Sturm (1974) 11 Cal.3d 258, 268.) Thus, prisoners are afforded the opportunity to defend against an allegation of minor and administrative misconduct that they deem unreliable.
Accordingly, we conclude that the board's consideration of minor and administrative misconduct when determining a prisoner's suitability for parole does not invoke the procedural guarantees of the due process clause.
DISPOSITION
The judgment is affirmed. Each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Renner, J.