BUTLER

Petitioner’s Answer Brief on the Merits

Cal.March 21, 2017

S$237014 In the Supreme Court ofthe State of California SUPREME COURT FILED MAR 2 1 2017 Jorge Navarrete Clerk IN RE ROY BUTLER ON HABEAS CORPUS Deputy “cRo\ 8.25/ ?CALIFORNIA COURT OF APPEAL - FIRST APPELLATE DISTRICT - NO. A139411 SUPERIOR COURT OF ALAMEDA - HONORABLE LARRY GOODMAN- NO.91694B ANSWERBRIEF ON THE MERITS KEKER, VAN NEST & PETERS LLP SHARIF JACOB, ESQ.(257546) STEVEN A. HIRSCH,Esq. (171825) ANDREA NILL SANCHEZ, ESQ.(308477) 633 Battery Street San Francisco, California 94111-1809 (415) 391-5400 Telephone (415) 397-7188 Facsimile sjacob@keker.com shirsch@keker.com anillsanchez@keker.com Attorneysfor Roy Butler g COUNSEL PRESS: (800) 3-APPEAL PRINTED ON RECYCLED PAPER es TABLE OF CONTENTS TABLE OF AUTHORITIES... ceescesssssessesscssessesessessssssesessssasessseeseneens iii I. INTRODUCTION........ccccsccssecceseeessesecesecesceeesceesceeseeessesssesseveseseeseeeae 1 I. QUESTION PRESENTED 1.0.0... eeeesesessesecsseseeseeeeseeesseesensensaseeseeseesees 2 TH. BACKGROUND.......ccccccccscccseesceteeeeeenetseeeeresssessenseeesessseesseseensseenene 2 A. Factual Background..........eccececsesceesesceeeeerseesesesesseseseesseensevees 2 1. Basetermsare historically rooted in the Board’s constitutionally mandated responsibility to fix proportionate terMs 2.0...eesesses eee eeeeseeeseeeeeseeees 5 2. Term-setting continuesto be critical for ensuring proportionality of sentences imposed upon inmates serving indeterminate Sentences...eeeeens eees 9 B. Procedural Background .........cece eseeeeecseeeesscesesesseeseseneeees 16 1. Mr. Butler’s Action.........:cc:ccccsscceesseeeesseeneeeseeeeseeenees 16 2. The Board’s contempt of court and motion to MOLLY 0.0... ececceccsecceseeeeneeeceeeseeeteaeseaeeesseensanssessnenesssees 19 TV. STANDARD OF REVIEW 1.0... ce eeeseecessesseessseesseeseesessseesesesseeeaes 24 Vi. ARGUMENT.......ceccccccessessesssreseeceesceseesenseceeeseeeseescesssesassenasnasenaenes 25 A. The Board’s request improperly attempts to modify a Settlement Order although there has been no material changein the underlying law orfacts weesceeeseeeeeeee 25 B. The Settlement Orderis consistent with the plain meaning, history, and policy goals embraced by the legislative refOrM 0.0.2... esse eesesecseesseeeeeeeseceetscsscsssseseenensenee 34 C. The disentitlement doctrine bars the Board from seeking to modify a court order after it has chosen tO diSODEY It...eee eeseeeseeseeseeeeeeeeeeeereetesesesesseeeeeseeeeseeseens 41 D. The Boardis barred from relitigating the merits of the Settlement Order under the law of the case doctrine............ 45 E. The Settlement Order vindicates the California Constitution’s prohibition on cruel or unusual PUNISHMEN 0.0...eeeestes eseseteceeeeneceesenseneeenseesseseessenseesseneees 48 VI. CONCLUSION.......eeeecccccceeseceeeeceeeeeseeeressessacessereaessessceresenessesnenseens 57 CERTIFICATE OF WORD COUNT...cc essecsssssseressssssessesssssssenesssenseneeees 58 DECLARATION OF SERVICE it TABLE OF AUTHORITIES CASES Brown v. Plata, 563 U.S. 493 (2011) ou. eeeseccsescecseeeeseesecesssenseeesseessssssssesserssseeeeseees 15 Cal. State Auto. Ass’n Inter-Ins. Bureau v. Superior Court, 50 Cal. 3d 658 (1990)...eee eescceseeeseetseseseesseesseessesseseeesesssesrenseeess 26 Coleman vy. Schwarzenegger, 922 F. Supp. 2d 882 (E.D. Cal. 2009)..........saseeeseeeeseneseeseeeaeseeees 31, 32 Critzer v. Enos, 187 Cal. App. 4th 1242 (2010)...cccecesccssssssssssenerseresesssessseereees 46 Cunningham v. Cal., 549 U.S. 270 (2007).0...eeccececscccseeseeeeereeseneesseesseseaessessecsscsesseaesesseesaes 10 Gwartz v. Weilert, 231 Cal. App. 4th 750 (2014), reh’g denied (Nov. 18, 2014), review denied (Feb. 18, 2015)... essesesessseessessesscessseesesesensseeseneenes 42 Haraguchi v. Superior Court, 43 Cal. 4th 706 (2008)... cececsessssesessssesseseecscnsensevsssessessesssusenees 24 Howatv. Kansas, 258 U.S. 181 (1922)veececcceesceececeteeeneteneeeeseeesseseeeseesesoessonseasseesenes 44 Inre Butler, 236 Cal. App. 4th 1222 (2015)... eccescssetseteeeeeneneeseenees 19, 28, 47 In re Dannenberg, 34 Cal. 4th 1061 (2005)...cee eeeeeeeeeeereeeeeseeneeeee 5, 9, 36, 51, 52, 55 In re Rodriguez, 14 Cal. 3d 639 (1975)......cccsscceesstecenceneeessecterseesscessesssssessesneeesepassim Knoob v. Knoob, 192 Cal. 95 (1923)... ...eccesceseeeseeetseeteeeseeeseesssersesseessessseseseeeseeseaseaeees 41 Local No. 93, Int’l Ass’n ofFirefighters, AFL-CIO C.L.C.v. City ofCleveland, A478 U.S. 501 (1986) 0... eeeeeeceeeeeceeesaeeeeeesseeeeeene 25, 26, 27, 29, 30, 37 MacPherson v. MacPherson, 13 Cal. 2d 271 (1939)...ee eeeeeeeseeereeesseeseneeeseessssseesesseesnseeneeseees 41 ili People ex rel. Feuer v. Progressive Horizon,Inc., 248 Cal. App. 4th 533, reh’g denied (June 14, 2016), review denied (Sept. 14, 2016)...eessscsssscesssesseeesssssseeseseesseaeses 25 People v. Stanley, 10 Cal. 4th 764 (1995)...cece cceestestscreenessseesesnessenseeessseseeesenesenesenees 46 People v. Wingo, 14 Cal. 3d 169 (1975)... ceeeceeee cceteeeeteeeeeesssaceeeeeeeees 5, 48, 49, 54, 56 Press v. Lucky Stores, Inc., 34 Cal. 3d 311 (1983)...cece ceestcsecssseesseessseecereesesssessseeesseseneneeees 47 Prof'l Engineers v. Dep’t ofTransp., 15 Cal. 4th 543 (1997)...eee cccsssssenseveeeeesereneeeees 24, 25, 26, 52, 53 Rufo v. Inmates ofSuffolk Cty. Jail, 502 U.S. 367 (1992) .....ceeesceene o ceterseeeeterssesseeeeneee 26, 27, 28, 29, 33, 46 Salazar v. Eastin, 9 Cal. 4th 836 (1995)... eeeeee e csscssesesstestesssecessenseeseeeeeees 24, 25, 30, 31 Sargon Enterprises, Inc. v. Univ. ofS. California, 215 Cal. App. 4th 1495 (2013).ceecesssessesssetssesetseeseesssseeenes 45 Serranov. Priest, 20 Cal. 3d 25 (1977) ....ceecesssee occcesssescsssesensssessssseeessssssssssseeesseseesesenes 47 Signal Oil & Gas Co. v. Ashland Oil & Refining Co., AD Cal. 2d 764 (1958)... cece ceestessscsessseseesesssscesseecsessesesenensseeseeenees 44 Stoltenberg v. Ampton Investments, 215 Cal. App. 4th 1225 (2013), as modified (May 6, 2013), as modified on denial ofreh’g Clune 5, 2013)........:cceceseeeeees 42, 44 Sys. Federation No. 91 Ry. Employees’ Dep’t v. Wright, 364 U.S. 642 (1961) oes ocectssteeessesseecssesnseseeassessensassenseeeneseseeses 30 Union Interchange, Inc. v. Savage, 52 Cal. 2d 601 (1959)...eeee cceecseseeeeseseseeenssssseeeseseeseesnsessseeen 25, 28 United States v. Armour & Co., 402 U.S. 673 (1971) w.ccccesccsseee cceesseseessesessesecnessscessssseneessesseeseeeseeesees 27 Vasquez v. State, 45 Cal. 4th 243 (2008), as modified (Dec. 17, 2008).........cece 24 iv CONSTITUTIONS Cal. Const., art... 1, § 7(a) .c..cccececssceseeeeeseneeeeeeseeeeseeesessesssssessessseseesseseeeas 6, 25 Cal. Const, art.1, § 17ccc. ceecccesecesseeeeneeeeecesceseeesesensseeeseesesssteeesesesenee 25, 48 U.S. Const., amend. VIII 00... ccccsccseeseeesseesssceececceensaeeseeeeseseceseaaeseoneneganes 25 U.S. Const., amend. XIV, § 1...ccc ceeeeeceesseeeeeesseesesececseceseersssensscseseeaeeees 25 STATUTES 15 Cal. Admin. Code §§ 2000-2725 (1976)... .eeecessseteseessseseesseeeenenees 9,51 15 Cal. Admin. Code § 2100(a) (1976)... eeeecsseteteesseccesststesseeeeeseees 9,51 Cal. Civ. Proc. Code § 533 ......eeccceecesesrecsreesessessseeccesessssesesesssesesasessseneanaeees 26 Cal. Civ. Proc. Code § 1021.5 oo.eee eeseseeecesseceserscessssseeseseseseesesseeseeesees 47 Cal. Gov’t Code § 11346.3 ......cccceeecessessecseeesesseeeceseasnssesssssseseseseseeeeeenaeees 33 Cal. Penal Code § 187 ...cccccssccscscceseceesescecesecseceseecseesseessessessscsnsessseessasnees 17 Cal. Penal Code § 190(a).........ccesseesssceeseesereeeeseeesssesesssessesesssseeeeeeeees 11, 54 Cal. Penal Code § 190(C).........ccesessesscessccecesreeeseeesssssecssssnseessersesessesessesones 11 Cal. Penal Code § 191.5(d) oo.eeeeeeeceeeesseeesseeecsscnscsecensressseesssenssneeesgs 12 Cal. Penal Code § 209()........cccscceseseeesceeerseseeseeeseeseesseeeseessseeeeseeeeees 12, 54 Cal. Penal Code § 219 occ ccccccescescsseseeeeeeseeeseseeesessesessserseeesssseseseeseees 12, 54 Cal. Penal Code § 1168(b) .......eccececeeeeeesseteeesseesssessceessesesesssssensssasesseeeones 10 Cal. Penal Code §§ 1170 ef 86.0... .eceeceeecscstssseesssesessessssscesseersesensesesseueeseeaes 9 Cal. Penal Code § 1170(a).......ccccscscesecescecseneeeseeeseeeessevsesessssssssscsseeasaesessoees 37 Cal. Penal Code § 1170(D) ......ccceceeceescescsseeeeeeesetensessssesesseessensessseeaeneeeases 10 Cal. Penal Code § 3041 oo... cccceceeeeeeeeeeeeeeeseseeeseeseeees 21, 35, 37, 51, 52, 55 Cal. Penal Code § 3041(a) 0.0... eeecseessssssssssseesenseeeeseeseenees 10, 34, 35, 38, 52 Cal. Penal Code § 3041(b) 0.0... ceeeeessseeceesecesseeeeeesssesessesesssresseesseeeseeneeee 52 Cal. Penal Code § 3046(C).......:ccccscecseecseesceseeseseaeeesesssessseseesscssenseaeesseeeses 35 Cal. Penal Code § 3051 oo... ccceeccecsessseseeeseeseeeeseeeeeseesecseeeeeeseesssanesensssuaaege 20 Cal. Penal Code § 3051 (a).......cessseseeceeseseesssessssseesessessessseseaseseesaeesesensnneenes 35 REGULATIONS Cal. Code Regs.tit. 15, §§ 2280-2292 oooeeeesesessseesseseenseseteeseseeeeseneeees 11 Cal. Code Regs.tit. 15, § 2282(8) veeeeesssscssscsseesssessecessenssseesseseneeeasenee 12 Cal. Code Regs.tit. 15, §§ 2400-2411 oeseeteeseesseeetseetseeneneneennenes 11 Cal. Code Regs.tit. 15, § 2403(a) occecccessessetseteeseeeneeteeseeeseeenees 12, 13 Cal. Code Regs.tit. 15, § 2403(C) oeceessssscccsssssssssecssseesssessseneeeneeeneens 13 Cal. Code Regs. tit. 15, § 241108) vocececseseessecsseseeseeeneessenseeneesseseneeneens 1 Cal. Code Regs.tit. 15, §§ 2420-2429.1 occ ccescesesssseeeeeseeetesesesteesseseeees 11 Cal. Code Regs.tit. 15, § 2423eceeceecscssetsecssessessessesssessessessenseeseeesenee 11 Cal. Code Regs.tit. 15, §§ 2430-2439.)oeeseesceeteetseneeeteeenssensenes 11 Cal. Code Regs. tit. 15, § 3000... ecccsesscceerseneeesesseeseenseeeenseesseensenee 15 OTHER AUTHORITIES 1917 Cal. Stat. 665 .ooccccccccccccsesseseccesseeesceseceseeensceseerssessesessssescnessoeseseseneaee 5 1929 Cal. Stat. 1930 ...cccccccscsscseseeeereeeeeesesseesessesssessesessesrsnssssseesseeseneseaeas 5 1935 Cal. Stat. 1700 oo... ccccccssccsesssceecsceeeeeseteeseeesessecseesesessesssesesseueesssseseeee 5 1941 Cal. Stat. 1083 oc.cccccesececcseeeeeeeseeeeseecsessecsseseseseesessasssecsesensenese 5,6 Cal. Prac. Guide Civ. App. & WYits 0... ccccccesssesseseeeseensensessensesenesensenee 45 Kara Dansky, Understanding California Sentencing, 43 U.S.F. L. Rev. 45, 64 (2008) oo... eeeeseecseeseteeeeeseesseeseseees 6, 10, 15 Sentencing: Parole, 2015 Cal. Legis. Serv. Ch. 470 (S.B. 230)... ceccsseessseeseeeeeeeees 20, 35 Sentencing: Parole, 2015 Cal. Legis. Serv. Ch. 471 (S.B. 261) (codified at Cal. Penal Code § 3051) w..ceeceeeeseeeeeesestseeeseeneees 20 Youth Offender Parole Hearings, 2013 Cal. Legis. Serv. Ch. 312 (S.B. 260) (codified at Cal. Pen. Code, § 3051)............. 20, 35, 38, 44 Vi 1. INTRODUCTION The Board of Parole Hearings (“the Board”) has seized on inapplicable statutory reforms and an unrelated federal court order in an attempt to evade compliance with its court-ordered obligations. There has been no changein the law to justify modifying the Settlement Order. The relief sought in the Settlement Order vindicated Roy Butler’s constitutional claims. Nothing about the Constitution has changed since the Board agreed to settle the matter. Nordo the statutory amendments cited by the Board conflict with the relief to which it voluntarily assented. The new legislation cited by the Board doesnot prohibit the calculation ofbase terms. Indeed,atoral argument below, the Board admitted that “the statute does not explicitly preclude the Board from setting base terms.” Tr. of Oral Argumentat 25 (33:05-33:11), May 31, 2016. Becausethere is no conflict between the legislation as amendedand the Settlement Order, the Court of Appeal was well within its discretion to deny the Board’s motion to modify. The Board’s attemptto relitigate the merits of Mr. Butler’s claims1s barred not only by its settlement of those claims, but also by its subsequent conduct. After the Board voluntarily settled the case, the Board willfully and knowingly began to flout its provisions. The Board did not move to modify the order until after Mr. Butler informedit that he intended to ask the Court ofAppeal to hold the Board in contempt. The disentitlement doctrine bars the Board from seeking to modify a court orderafter it has chosen to disobey it. The Boardis also barred from relitigating the merits of the Settlement Order underthe law ofthe case. In resolving Mr. Butler’s motion for attorneys’ fees, the Court ofAppeal decided that Mr. Butler’s claims vindicated the California Constitution’s prohibition on cruel or unusual punishments. The Board chose not to appeal from that decision. Therefore, it cannot, in this petition for review, seek to rehash that same issue. The Board’s appeal is procedurally defective, and, in any event, lacks merit. Therefore, Mr. Butler respectfully requests that this Court affirm the Court ofAppeal’s denial of the Board’s motion to modify. II. QUESTION PRESENTED Maya party, while openly flouting a consent decree, seek to modify it by relitigating the merits of the underlying actionit settled? Iii, BACKGROUND A. Factual Background Thetruly pertinent facts in this appeal are simply these: The parties entered into a settlement that was judicially approved in a Stipulated Order, which the Board then flouted for years in contempt of court and now seeks to undo based on a spurious claim that the law has changed. But the Order is based on the constitutional prohibition against excessive punishment, and that prohibition hasn’t changed oneiota. That’s enoughto decidethis case. Wenevertheless provide below brief history ofhow and why the Stipulated Order came to be. The issue is when and how the Board sets “base terms”—a case-by-case determination of the longest sentence that would be constitutionally proportionate to an inmate’s individual culpability. The broad outline of the story is that, with respect to inmates under indeterminate sentences—andtherearestill many ofthem—the Board has vacillated between a right way of doing things and a wrong way of doing things. The right way is for the Board to set an inmate’s base term promptly after he is imprisoned. The wrong wayis to defer setting base terms until late in the game, whenthe inmate is granted parole. That way is wrong for three compelling reasons: (1) the inmate serves most of his sentence without any idea ofwhen he will be freed, which is not only cruel but also so destructive of morale as to undermine prison discipline; (2) a base term doesn’t serve its constitutional function if the Board only determines it— possibly years too late—whenthe inmateis finally granted parole; and (3) the Board panel has no way ofknowing whether denying parole will result in an unconstitutionally lengthy period of imprisonment. This Court put an end to the wrong way of doing thingsin its 1975 decision in Rodriguez, whichfaulted the Board for having abdicatedits constitutionally based responsibility to set base terms—thatis, setting base terms the wrong way. California’s subsequent enactmentofa determinate- sentencing scheme mooted Rodriguez’s teachings as to many crimes; but a broad rangeofcrimesstill remained subject to indeterminate sentencing, including many crimes for which the maximum punishmentwaslife. Jn re Rodriguez, 14 Cal. 3d 639, 646 (1975). Nevertheless, the Board inexplicably concluded that Rodriguez no longer governed evenasto those crimes. Soon the Board had reverted to setting base terms the wrong way. Mr. Butler’s suit successfully challenged the Board’s unconstitutional backsliding. In the Stipulated Order, the Board agreed that Rodriguez’s constitutional protections extend to inmates under indeterminate sentences. The right way was back—in theory. But not in practice, because the Board simply disregarded the Order. Andthen it got caught. Now that it is plainly in contemptofcourt, the Board wants to undo the Order and return the sentencing system to its pre- Rodriguez state of unconstitutionality. Below,wetell this story in moredetail. 1. Basetermsare historically rooted in the Board’s constitutionally mandated responsibility to fix proportionate terms. Base termsfirst arose during a period in California’s history when all defendants in the state were sentenced to an indeterminate amount of time. Underthe Indeterminate Sentencing Law (“ISL”) in effect before 1977, no governmentbodyset parole dates for inmates and “prisoners had no idea whentheir confinement would end, until the momentthe parole authority decided they were ready for release.” In re Dannenberg, 34 Cal. 4th 1061, 1077 (2005). Between 1917 and 1935, the ISL required the Board’s predecessor agency—the Adult Authority'—1o “determineafter the expiration of the minimum term of imprisonment . . . what length of time, if any, [an inmate] shall be confined.” 1917 Cal. Stat. 665, § 1; see also 1929 Cal. Stat. 1930, § 1(1); 1935 Cal. Stat. 1700, § 1.1. In effect, the ISL required the Board to “promptly and irrevocably fix the maximum term of a prisoner,” a function that we will refer to as “term fixing” or “term setting.” People v. Wingo, 14 Cal. 3d 169, 184 (1975) (Clark, J., concurring in part and dissentingin part). However, in 1941, the Legislature amended the ISL, removing from the Code any reference to the Adult Authority’s term-fixing responsibility. See 1941 Cal. Stat. 1083, §§ 13, 15. The elimination of term-fixing left the ! For the sake ofclarity, we will refer to the agency andits predecessor as “the Board.” Board with broad discretion to determine how long an inmate could be imprisoned. Jd. § 3020. In effect, the Board no longer wasstatutorily required to fix termsatall, let alone to consider whether those terms should be set at anything less than the maximum oflife imprisonment. Rodriguez, 14 Cal. 3d at 646. The Board’s unfettered discretion becamea cause for concern as “[jJust about everyone with a stake in the system arguedthat the lack of transparency in sentencing was a problem.” Kara Dansky, Understanding California Sentencing, 43 U.S.F. L. Rev. 45, 64 (2008). As a result, the Board came under“intense pressure from the public to make sentences more uniform andless excessive.” Jd. at 65. This Court addressed those concernsin its 1975 decision in Rodriguez. There the Court held that, to survive scrutiny under the Eighth Amendmentand its California constitutional counterpart,” the ISL must be read to require that the Boardinitially “fix terms within the statutory range that are not disproportionate to the culpability of the individual offender.” Rodriguez, 14 Cal.3d at 652. The Court dubbedthis “fixed, constitutionally proportionate, term”the “primary term’”and noted that the “primary term must reflect the circumstances existing at the time ofthe offense.”Id. (emphasis added). 2 See Cal. Const., Art.. I, § 7(a). But the Court hastened to add that the Board had another, “independent”statutory responsibility apart from term-fixing—namely, a responsibility to make discretionary decisions about granting parole and about adjusting the primary term—both of which are based on the prisoner’s conduct in prison, efforts toward rehabilitation, ability to conform to the termsofparole, and readinessto “lead a crime-free life in society.” Jd. Unlike initial term-fixing, the Board’s fulfillment of this second responsibility was “based in large measure on occurrences subsequentto the commission ofthe offense.” Jd. (emphasis added). The Court foundthat, in the case before it, the Board “appear[ed] not to have recognizedthis distinction” between its term-fixing and parole- granting responsibilities. Jd. at 653. As a result, when the Board decided to deny Rodriguez parole—a decision that the Court did not review*—the Board mistakenly thought that its job was done and therefore either had “failed to fulfill its obligation to fix [Rodriguez’s] term at a numberof years proportionate to his offense, or, having impliedly fixedit at life, [had] imposed excessive punishment on him.” Jd. Undertaking the task that the Board had ducked, the Court concludedthat the 22 years of imprisonment served by Rodriguez were “excessive and disproportionate punishment” given his individual culpability; and the Court ordered him released. Jd. 3 See id. at 651, 656. The Court also took aim at a numberofpractices that had evolved due to the Board’s failure to distinguish between its term-fixing and parole- granting responsibilities—e.g.: The Board would fix a prisoner’s primary term only when he appeared before a panel of the Boardfor his parole application to be considered; and if, like Rodriguez, the prisoner were denied parole, the Board typically gave no further consideration to determining his term. Jd. at 646. Whenthe Board did grant a tentative parole date, it also fixed the numberofyears ofthe term and the numberto be served on parole if the prisoner was not discharged earlier; but when parole was suspended, revoked, or rescinded, the Board routinely refixed the term to match the statutory maximum andleft it at maximum until a new parole date was granted. Id. The Board immediately grasped Rodriguez’s constitutional significance and moved to implementit. In Chairman’s Directive No. 75/30, the Board’s chairman clarified that term-fixing and parole-granting procedures“are different in significant respects, and should not be confused.” Roy Butler’s Mot. for Judicial Notice, March 20, 2017, Ex. A at 1. The directive provided that “[a] primary term [would] be fixed for each offense in conformance with the[] procedures and guidelines”laid out 8 therein. /d.. To achieve that aim, the directive instructed Board officials to “fix the base term” and “adjust the base term.” Jd. at 3, 5. Adopting Rodriguez’s nomenclature, the directive referred to the adjusted base term as the “primary term.”Jd. at 6. The Board went on to promulgate regulations implementing these requirements. See 15 Cal. Admin. Code §§ 2000-2725 (1976). Those regulations established that “the primary term is the maximum period of time which is constitutionally proportionate to the individual’s culpability for the crime.” 15 Cal. Admin. Code § 2100(a) (1976). 2. Term-setting continuesto be critical for ensuring proportionality of sentences imposed upon inmates serving indeterminate sentences. The ISL soon “cameinto disfavor for many reasons[,]” including the fact that it: “(1) failed to fit the punishment to the crime and (2) gave inmates no advance hopeofa fixed date for release, thus actually promoting disciplinary problems within the prisons.” Dannenberg, 34 Cal. 4th at 1088. In 1976, the Legislature replaced the ISL with the Determinate Sentencing Law (“DSL”), Cal. Penal Code §§ 1170 et seg. The DSL— which remainsin effect today—replaced indeterminate sentencing with fixed-term sentences for most crimes. The DSL categorized most offenses into five degrees of seriousness, each ofwhich wasassignedthree definite terms, or “triads,” for the sentencing judge to choose from.‘ See Cal. Penal Code § 1170(b); see also Dansky at 67. But defendants convicted of certain enumerated felonies continue to be subject to the indeterminate sentencing regime. Cal Penal Code § 1168(b). Despite this fact, in a July 26, 1979 memothat wouldlater becomecentral to the Board’s argumentsinthislitigation, the Board Chairman unilaterally and inexplicably decided that Rodriguez “appears to have been rendered obsolete.” See Roy Butler’s Mot. for Judicial Notice, March20, 2017,:Ex. B at 3. The memocited “the changedstructure of life sentences,” presumably referring to the passage of the DSL,to justify its conclusion that Rodriguez “is no longer applicable.” Jd. But the memo made no mention ofany ofthe offenses that remained unaffected by the DSLand continued to be punishable by indeterminate life sentences with the possibility of parole. No judicial decision or legislative act ever has endorsed the memo’s erroneous conclusion that Rodriguez is a deadletter. Despite the memo’s dismissal ofRodriguez, the Board never stopped fixing termsaltogether. Instead, the Board turned to former California Penal Code Section § 3041(a)}—which required the Boardto set and 4 The U.S. Supreme Court found the imposition of the upper term to be unconstitutional. Cunningham v. Cal., 549 U.S. 270 (2007). In response, the California Legislature enacted Senate Bill 40, which amended the DSL by vestingtrial judges with discretion to choose which ofthe three triad sentences to impose. See Dansky at 70. 10 establish criteria for setting release dates—for authority to fix terms for inmates with indeterminate sentences. See Opening Br. on the Merits (“Opening Br.”), Jan. 17, 2017 at 3-4. The Board additionally promulgated new regulations requiring the calculation of base terms.° See Cal. Code Regs.tit. 15, §§ 2280-2292, 2400-2411, 2420-2429.1, 2430-2439.1. Today, for inmates who receive indeterminate sentences, term-fixing is no less important under the DSL than it was under the ISL. The seriousness of the offenses subject to indeterminate life sentences is wide- ranging. Thoseoffenses include crimes spanning from first® and second- degree murder’ to gross vehicular manslaughter committed by someone > The new regulations no longer employ the language “primary term.” See Cal. Code Regs.tit. 15, § 2423. A primary term is the equivalent of whatis now referred to as the “adjusted base term,” which constitutes the base term after it has been adjusted for enhancements provided by the Board’s new regulations. See Stip. and Order Regarding Settlement, (“Settlement Order’) Dec. 16, 2013 4 3. ® California Penal Code § 190(a) proscribes: Every person guilty of murderin the first degree shall be punished by death, imprisonmentin the state prison for life without the possibility of parole, or imprisonmentin the state prison for a term of 25 years to life. 7 UnderCalifornia Penal Code §190(c), “{e]very person guilty of murderin the second degree shall be punished by imprisonmentin the state prison for a term of 15 yearsto life.” 11 with prior convictions while intoxicated,® kidnapping for ransom that does not result in bodily harm,’ and nonfatal train wrecking.'° Inmates convicted of crimes that remain punishable by indeterminate sentencesstill rely on the Board’s term-fixing procedures to protect them against unconstitutionally disproportionate sentences. Current regulations provide that “[t]he [parole] panel shall set a base term for each life prisoner who is found suitable for parole.” Cal. Code Regs.tit. 15, § 2282(a). The base term is established “solely on the gravity of the base offense, taking into accountall of the circumstancesofthat crime.” Jd. This involvesthree steps. First, as further explained below, the panel must use “the appropriate matrix ofbase terms”set forth in the regulations. Jd. at § 2403(a). 8 California Penal Code §191.5(d) prescribes a sentence of 15 yearsto life for gross vehicular manslaughter whenthe person has previously been convicted of certain related offenses. 9 California Penal Code § 209(a) providesthat: Any person whoseizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away anotherperson.. . shall be punished by imprisonmentin the state prison for life with the possibility of parole in cases where no such person suffers death or bodily harm. !0 California Penal Code § 219 prescribes a sentence of “imprisonmentin the state prison for life with the possibility of parole” “where no person suffers death as a proximate result” of train wrecking, which includes unlawfully “throw[ing] out a switch, remov[ing] a rail, or plac[ing] any obstruction on any railroad with the intention of derailing any passenger, freight or othertrain, car or engine and thusderail[ing] the same.” 12 Second,the panel must “impose the middle base term reflected in the matrix unless[it] finds circumstances in aggravation or mitigation.” Jd. Third, the base term may be adjusted for “postconviction credit.” Cal. Code Regs., tit.15 § 2411(a). An example of the matrix for second-degree murders committed on or after November8, 1978 is shown below: B. Director Second DegreeMurder A. indinect Virsint Conerfiaaion C. Sewre Tremma Penal Code 199 Ga years and Victim died ofconsan Death weeslencet immedinn: Death wesobed does ant conviction eplated to the act of ovcunsitasot inet fremn severe (ema crodis0speowides§ 2410) he priscoer but was act from commelbating inflicted with Ginetty senna’ by from thevicdor, ¢.g.,victn inmeeslay; pioconwiey Initiated orkadgoaded =a cg,shockproducing te cows ace taeet attack, 2 crimes partecs ‘victis acting a: muiltipls acunlly didte Kiliag, Gchenssof selloxpropaty. sallicsed = oe {a the 1 Participating Victin 15-16-17 16-17-18 1-119 ‘Vict was scccunpliceor cthorwiee ienplicased in2criminal ant with heprisoner ores nretuktofwhich the ¢§-. crane partect, drag ox, PrineRetasioushiy 16-17-18 LFriBald 19-19-20 Vein wescivpeal nmncberLenteve ‘whichcombediynotion er actweuhing dow. shall socbeanilized Ifvicdsn a andlor 8 tocommitRied pal person TILNePrierReletionahdy 1h18-19 (§-19-28 19-20-21 ‘Victionhad Titleorpopesca sacs Gant,wan relnéndto the: ‘Ofanother craze, 9g. deathofvictira Garingrobbery. ‘Pape, OF felewy. Id. § 2403(c). The vertical axis correlates with the relationship between the inmate and the victim. Id. The horizontal axis contains three categories that track the aggravating circumstances of the commitment offense. Jd. The panelis required to “impose the middle base term reflected in the matrix unless the panel finds circumstances in aggravation or mitigation.” Jd. § 2403(a). 13 Asfor the timing of the base-term calculation, the Board’s dismissal ofRodriguez as a historical relic predictably resulted in a return to the very practices that this Court condemnedin that case. Up until entry of the Settlement Order in this case, the Board’s accepted practice had become, once again, to defer calculating an inmate’s base term until he was found suitable for parole. See Opening Br.at 6. Despite the Legislature’s best attempts to reform California’ s criminal-justice system by enacting the DSL,the state continues to face the lack of transparency, hopelessness, and other problemsthat plaguedit during the ISL era. In addition, the Board’s continuing abdicationofits responsibility to fix primary terms can only have contributed to prison overcrowding that undermines the humanity and effectiveness of California’s punishment system. As one scholar noted decades into the DSLregime: California’s current punishment system is marked by overcrowded and inhumaneprisons; experts and public officials who agree that reducing our reliance on incarceration would be a sensible approach to prison overcrowding but who are reluctant to say so publicly; a general agreement that there are some people in prison who could safely be released and some dangerous individuals who needto be kept from society; an enormous corrections budget; people leaving prison in worse shape than when they entered; an unacceptable degree of unwarranted disparity in sentencing, especially with respect to race and class but also with respect to geography; and the fact that crimestill happens. 14 Sadly, this characterization accurately describes the California of 1850, the California at any time during the 1900s, and the California of today. Dansky at 85. The U.S. Supreme Court recognized in a decision upholding a court-mandated prison population limit that the “degree of overcrowding in California’s prisons is exceptional.” Brown v. Plata, 563 U.S. 493, 502 (2011). These concernsare especially pressing for California’s “lifer” prison population. As of July 2012, there were 25,680 inmates serving sentences of life with the possibility of parole in California—19,995 ofwhom the California Static Risk Assessment (“CSRA”)'! assessed as “low risk” and 9,000 ofwhom werepast their Minimum Eligible Parole Date (“MEPD”).!? See Supp. Habeas Pet. App’x, Ex. Z § 47. Meanwhile, the numberoflife- term prisoners has doubled as a percentage of the overall California prison population, from 8% in 1990 to 20% in 2010.Jd., Ex. X at A00243. Overall, there is only an 18% probability that the Board will grant a lifer parole. ld. 'l The CSRA is the California Department of Corrections and Rehabilitation’s scientifically validated risk-assessment instrument. See Pet’r’s App’x in Support of Supp. Pet. for Writ ofHabeas Corpus(Supp. HabeasPet. App’x””) May 28, 2013, Ex. X. 12 An MEPDis “the earliest date on which an Indeterminate Sentence Law or life prisoner may legally be released on parole.” Cal. Code Regs.tit. 15, § 3000 (2016). 15 Together, these facts compel the conclusion that “far toolittle attention has been givento the prison population serving life sentences with the possibility of parole under older indeterminate sentencing principles.” Id. at A00242. Base-term calculations remain one ofthe few mechanisms in place to discourage the Board from holding these prisoners in an overloaded penal system for longer than whatis constitutionally proportionate to their crimes. B. Procedural Background 1. Mr. Butler’s Action This case arises out of one inmate’s attempt to improve California’s term-setting proceduresforlife prisoners. In 1988, Roy Butler pleaded guilty to second-degree murder of a man whowasseverely and regularly beating one of his close female friends while she was pregnant. See Supp. Pet. for Writ of Habeas Corpus (““Supp. Habeas Pet.””), May 28, 2013 at 44 16-20. Mr. Butler confessed to being an accessory to the fatal stabbing of the victim. His role consisted ofhiding in the bathroom with a kitchen knife while another man carried outthe killing. Jd. {J 16, 23. The California Department of Corrections (“CDC”) recommendedto the Superior Court that he only receive probation based on his “insignificant record” and minorrole in the offense. Jd. 4925-26. It concluded, “[t]here is no evidencethat he identifies with delinquent values, and he is not viewed as a threat to the community.” Jd. § 26. Nonetheless, on August 9, 1988, the 16 court chose to sentence Mr. Butler to a term of 15 yearsto life for second- degree murderin violation of California Penal Code § 187. Thereafter, the Board repeatedly found Mr. Butler to be unsuitable for parole on five occasions, citing lack of insight and unsatisfactory post-release plans. Jd. 44 63, 80. Mr. Butler filed a pro per Petition for Writ of Habeas Corpusin the Court of Appeal, First Appellate District on December 10, 2012. See Pet. for Writ of Habeas Corpus, Dec. 10, 2012. His appeal raised two claims: (1) the Board’s denial of parole was supported by insufficient evidence in his individual case; and (2) the Board’s practice of deferring the calculation of base terms until it deemed the inmate suitable for parole violated the Eighth and Fourteenth Amendments and the California Constitution’s parallel prohibitions. Jd. The Court ofAppeal appointed counsel for Mr. Butler and bifurcated his supplemental habeaspetition into two separate cases. See Ct. ofAppeal Order, Aug. 7, 2013. Mr. Butler’s individual claim remained the subject of case number A137273, while the base-term claim was assigned to case number A139411. The Court ofAppeal granted his petition as to the former claim and remandedit to the Board for another hearing. In re Butler, 224 Cal. App. 4th 469, 491, ordered not to be officially published (June 11, 2014). On April 25, 2014—after Mr. Butler had served over two decades in prison—the Board found him suitable for parole and approvedhis release. See Pet’r’s Opp. to Resp’t’s Mot. to 17 Modify Order Regarding Stip. Settlement (“Mot. to Modify Opp.”), Mar. 1, 2016, Jacob Decl., Ex. E at 0162. Forthefirst time, it also provided him with a base-term calculation of 17 years—nine years less than the 26 he had already served. Jd. at 0172. Meanwhile,the parties to this action were concurrently litigating Mr. Butler’s constitutional claims. In that matter, the parties ultimately held three settlement conferences before Justice Jim Humesstarting on November20, 2013. The Board, through its Executive Office and Chief Counsel, participated in each of the settlement conferences before Justice Humes.Stip. and Order Regarding Settlement, (“Settlement Order”) Dec. 16, 2013 at 1. On December 13, 2013, the parties signed a settlement agreementstipulating to the terms of a Proposed Orderthat resolved Mr. Butler’s base-term claim on terms described below. The Court ofAppeal entered the Settlement Order on December 16, 2013. The Settlement Order requires the Board to endits practice of waiting to calculate base terms until an inmate is foundsuitable for parole. Instead, the Board agreed to set base terms and to adjust base termsforlife prisonersattheir initial parole hearing, or at the next scheduled hearing. See Settlement Order, {§ 3-4. The Settlement Order also directs the Board to amendits regulations to reflect the new policies and proceduresset forth in the Settlement Order “‘as soon as reasonably practicable.” Id. {¥ 5, 7. 18 The District Attorneys of San Diego and Sacramento Counties intervened to challenge the Settlement Order, asking this Court to transfer the action to itself in April 2014. Notably, both Mr. Butler and the Board opposedthe request to transfer. This Court denied the applications on July 30, 2014. See Cal. Supreme Ct. Order, No. $217611, Jul. 30, 2014. On May 15, 2015, the Court of Appeal granted Mr. Butler’s request for attorneys’ fees after establishing that the Settlement Order confers a significant benefit on a large class of persons—specifically,life prisoners. See In re Butler, 236 Cal. App. 4th 1222, 1244 (2015). The court’s opinion affirmed the constitutional underpinnings of the Settlement Order.It determinedthat “the base term and adjusted base term relate to proportionality, and can serve as useful indicators ofwhether denial of parole will result in constitutionally excessive punishment.” Jd. at 1237. Once again, the District Attorney of San Diego County submitted a request in July 2015 asking this Court to either grant review or depublish the attorneys’ fees opinion. Mr. Butler opposed the request. The Board took no position. This Court denied review and depublication on October 28, 2015. See Cal. Supreme Ct. Order, No. S227750, Oct. 28, 2015. 2. The Board’s contempt of court and motion to modify During the two years after the lower court entered the Settlement Order, the Board did not contact the Court or opposing counsel about ongoing compliance with Settlement Order—despite the occurrenceofall 19 the legal challenges that the Board now cites as grounds for modifying the Order(i.e., the passage of S.B. 260 in 2013, the entry of the Coleman v. Brown orderin early 2014, and the enactment of S.B. 261 and 230 one year later). See Youth Offender Parole Hearings, 2013 Cal. Legis. Serv. Ch. 312 (S.B. 260) (codified at Cal. Pen. Code, § 3051); Sentencing: Parole, 2015 Cal. Legis. Serv. Ch. 471 (S.B. 261) (codified at Cal. Penal Code § 3051); Sentencing: Parole, 2015 Cal. Legis. Serv. Ch. 470 (S.B. 230); see also Coleman v. Brown, Case No.3:01-cv-01351-THE, Dkt. No. 2766 (N.D.C.A) (“Coleman Order”). Instead, the Board simply stopped calculating base terms for youth offenders and elderly inmates as a matter of formal policy, in violation of the Settlement Order. See Decl. ofAndrea Nill Sanchez Charging the Cal. Board of Parole Hrgs. With Contempt (“Nill Sanchez Contempt Decl.”’) Aug. 15, 2016 4 29. Between March 5, 2014 and February 15, 2016, the Boardroutinely failed to calculate base termsfor eligible life-term inmates, including hundredsofparole hearings that qualified as neither youth nor elderly. Jd. 4 21-26. The Board also failed to complete the rulemaking process as required by the Settlement Order. Jd. J 32-36. Although the Board approvedthe proposed regulatory changes on August 18, 2014, former Board Chief Counsel Howard Moseley later informed the Board that the regulations would need to be revised and resubmitted for anothervote. 20 See Nill Sanchez Contempt Decl. 4 32-34. The Board never took any further action with respect to the regulations.'> Jd. 36. The Board also never sought permission from the Court to modify its obligations under the Settlement Order until Mr. Butler’s attorney contacted opposing counsel concerningallegations that it was violating the Settlement Order.'4 See Decl. of Sharif E. Jacob in Supp. of Pet’r’s Unopposed App. for Ext. of Time Exs. A-B, Feb. 3, 2016. In response, the Board filed a motion to modify the Settlement Order. In its brief, the Board argued that the Legislature stripped the Board of its authority to calculate base terms under the Settlement Order by amending California Penal Code § 3041 with the passage of Senate Bills 230, 260, and 261. See Resp’t’s Mot. to Modify Order Regarding Stip. Settlement (“Mot. to Modify”), Jan. 28, 2016 at 11-14. The Board also claimed that the Coleman Ordersimilarly preventsit from calculating base terms for inmates who qualify as elderly offenders. See Resp’t’s Reply to '3 On October 21, 2016, the Court ofAppeal stayed the Settlement Order’s rulemaking requirements pendingresolution of the Board’s petition for review. See Order, Oct. 21, 2016. '4 Mr. Butler first became aware that the Board might have violated the Settlement Order when defense attorney Susan L. Jordan informed Mr. Butler’s counsel on September 9, 2015 that the Board had determinedthat one of Jordan’s clients was ineligible to receive his base-term calculation. See Nill Sanchez Contempt Decl. § 28. Counsel for Mr. Butler contacted the Board after counsel’s investigation confirmed that the Board was routinely violating the Settlement Order by failing to calculate base terms for elderly inmates and youth offenders as a matterofpolicy. Jd. {] 29-30. 21 Mot. to Modify, March 18, 2016 at 11. In response, the Board urged the Court ofAppeal to modify the Settlement Order to require thatalllife prisoners be notified of their MEPDattheir initial parole consideration hearing, instead of the base term as the Settlement Order presently requires. See Resp’t’s Mot. to Modify at 6. The Board erroneously reasoned that the MEPD“is now the functional equivalent of the base term.” Jd. The Court ofAppeal denied the Board’s motion on July 27, 2016. The court’s decision rejected the Board’s attempt to evadeits Settlement Orderobligations, finding that no relevant change had been madeto the law. The court determinedthat “the Board’s authority to set base terms and adjusted base termsis entirely unimpaired by any of the changesin the law posited by the Board as depriving it of the authority to set base and adjusted base terms.” See Order Denying Resp’t’s Mot. to Modify Order Regarding Stip. Settlement (“Mot. to Modify Order”), July 27, 2016 at 4. Specifically, “the stipulated order does not conflict with section 3041 by precluding the Board from releasing prisoners who have been granted parole but have not reached their base terms.” Jd. at 6. The Court also concludedthatthe Settlement Order is consistent with the objectives of the Coleman Order.Id. at 12. The Court found that the “purpose of the settlement and stipulated orderis to alter the parole process so that the setting of the base term and adjusted base term are nolonger deferred until after the grant ofparole 22 (which may belong after the adjusted base term) but fixedatthe initial parole hearing, so that parole officials can know at the time they decide whether to grant or deny parole whether denial might result in punishment disproportionate to the individual culpability of the life prisoner.” Jd. at 7. By arguing otherwise, “the Board is confusing its base term fixing obligations—addressedin the settlement agreement—withits parole- granting authority, which SB 230 addressed.”Jd. at6. Given the Board’s fundamental misunderstanding of the Settlement Order’s purpose of promoting constitutionally proportionate sentences, the court was also compelled to remind it of the function that base terms play— namely, “to indicate whether the denial of parole might result in constitutionally excessive punishment.” Jd. at 7 (emphasis added). The court clarified that “[t]he Board’s authority to set base terms does notarise underany ofthe statutes amended by SB 260 but under our order, to which it stipulated, which facilitates enforcement of the cruel and/or unusual punishmentprovisions of the federal and state Constitutionsthat protect all life prisoners.” Jd. at 10. Approximately three weeks after the Court ofAppeal issued its decision, Mr. Butler sought to hold the Board in contemptof court for violations of the Settlement Order. See Nill Sanchez Contempt Decl. Mr. Butler’s request is still awaiting adjudication. On September 2, 2016,the Board filed its petition for review ofthe Court of Appeal’s decision 23 denying its motion to modify. Pet. for Review, Sept. 2. 2016. On November 16, 2016, this Court granted review as to whether the Board mustcalculate base terms underthe Settlement Agreementin light of the purely statutory reforms the Board has invoked. Order, Nov. 16. 2016. The answeris that no changein the law has occurredthat justifies releasing the Board ofits court-ordered obligations. IV. STANDARD OF REVIEW It is a “universally followed” rule that whether to grant, modify, or dissolve an injunction “rests in the sound discretion” of the lower court “upon a consideration ofall the particular circumstances of each individual case.” Salazar v. Eastin, 9 Cal. 4th 836, 849-50 (1995). The Settlement Orderat issue in this case consists of “[a] stipulated injunction approved by a court and entered as a judgment,” andis otherwise known as a consent decree. Vasquez v. State, 45 Cal. 4th 243, 260 (2008), as modified (Dec. 17, 2008)(citations omitted). Accordingly, the Court ofAppeal’s decision to deny the Board’s request to modify the Settlement Order is reviewed for an abuse ofdiscretion.' See id.; see also Prof’l Engineers v. Dep’t ofTransp., 15 Cal. 4th 543, 562 (1997). 15 The Board suggests that some aspects of the Court ofAppeal’s decision may be subject to de novo review. Opening Br. at 14. However,thefirst case it cites deals solely with the standard ofreview applicable to a decision to grant or deny a motion to recuse, which is not remotely related to the issues involvedin this case. See Haraguchi v. Superior Court, 43 Cal. 4th 706, 711 (2008). The Board is unable to pointto a single California 24 Vv. ARGUMENT A. The Board’s request improperly attempts to modify a Settlement Orderalthough there has been no material changein the underlying law orfacts. A motion to modify a consent decree based on a change in the law presents a simple question: has the law upon which the complaint was based changedso that the decree now “conflicts with or violate[es]” current law? Local No. 93, Int’l Ass’n ofFirefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 526 (1986). Here, the answeris clear. Mr. Butler’s claims, as set forth in his petition, sought to vindicate the constitutional rights of inmates under the state and federal due-process clauses!® and the state and federal proscriptions againstcruelor unusual punishment.!” And nothingin the Federal or California Constitutions has changed since the Board stipulated to the Settlement Order. That is the Supreme Court opinion applying the de novo standard in cases involving the modification or dissolution of an injunction or consent decree. At most, it relies on a Court of Appeal decision which uphelda trial court’s denial of a requestto dissolve an injunction,stating that only “pure questions of law,” such as the interpretation of a statute, are reviewed de novo. People ex rel. Feuer v. Progressive Horizon, Inc., 248 Cal. App. 4th 533, 540, reh’g denied (June 14, 2016), review denied (Sept. 14, 2016) (emphasis added). Indeed, as a matter ofpractice, a lower court’s decision whether to modify or dissolve an injunction is generally upheld. See e.g., Prof] Engineers, 15 Cal. 4th at 562; Union Interchange, Inc. v. Savage, 52 Cal. 2d 601, 606 (1959); Salazar, 9 Cal. 4th at 850. 16 Cal. Const., art. I, § 7(a); U.S. Const., amend. XIV, § 1. 171J.S. Const., amend. VIII; Cal. Const., art.1, § 17. See Supp. HabeasPet. at 34, 55-59, 65-72; see also Mot. for Request for Award of Reasonable Att’y’s Fees and Supp. Decl., October 22, 2014 at 2, 11-13. 25 beginning and end of this Court’s inquiry. The time to litigate the constitutional basis for the claims the Board settled has passed. Theparties to this case agree that a court may only modify a consent decree or injunction whenthere has been a “material change”in the facts or law upon whichit was granted, or when “the ends ofjustice would be served.” Cal. Civ. Proc. Code § 533; see also Opening Br.at 13. A consent decree may not “conflict[] with or violate the [source of law] upon which the complaint was based.” Local No. 93, Int’l Ass’n ofFirefighters, AFL- CIO C.L.C., 478 U.S.at 526. Indeed, if a law conflicts with the California Constitution, that law—notthe injunction—is invalid. See Prof’l Engineers, 15 Cal. 4th at 572. However, a court is not “barred from entering a consent decree merely because the decree provides broaderrelief than the court could have awardedaftera trial.” Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C., 478 U.S.at 525. “In a stipulated judgment, or consent decree, litigants voluntarily terminate a lawsuit by assenting to specified terms, which the court agrees to enforce as a judgment.” Cal. State Auto. Ass’n Inter-Ins. Bureau v. Superior Court, 50 Cal. 3d 658, 663 (1990). “As the high court has recognized, stipulated judgments bear the earmarks both ofjudgments entered after litigation and contracts derived through mutual agreement ...” (citing Local No. 93, Int’l Ass’n ofFirefighters, AFL-CIO C.L.C., 478 U.S. at 519); accord Rufo v. Inmates ofSuffolk Cty. Jail, 502 26 U.S. 367, 378 (1992) (explaining that a consent decree represents “an agreementofthe parties”that is partially contractual in nature). “It is an agreementthat the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.” Id. “(T]he voluntary nature of a consent decreeis its most fundamental characteristic.” Local No. 93, Int’! Ass’n ofFirefighters, AFL-CIO C.L.C., 478 U.S. at 521-22. “Consent decrees are entered into by parties to a case after careful negotiation has produced agreementon their precise terms.” Id. at 522 (quoting United States v. Armour & Co., 402 U.S. 673, 681-82 (1971)). “Naturally, the agreement reached normally embodies a compromise; in exchange for the saving ofcost and elimination ofrisk, the parties each give up something they might have won had they proceeded with thelitigation.” Local No. 93, Int’l Ass’n ofFirefighters, AFL-CIO C.L.C., 478 U.S. at 522 (quoting Armour & Co., 402 U.S. at 681-82). “[I]t is the agreementofthe parties, rather than the force of the law upon which the complaint wasoriginally based, that creates the obligations embodiedin a consent decree.” Local No. 93, Int’] Ass’n ofFirefighters, AFL-CIO C.L.C., 478 U.S.at 522. While courts have someflexibility in considering requests for modification, “a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants 27 revision of the decree.” Rufo, 502 U.S. at 383 (emphasis added). Even if the moving party has metits burden, the court must also determine “whether the proposed modification is suitably tailored to the changed circumstance.” Id. at 391. Any modification shall not “create or perpetuate a constitutional violation.” Jd.; see also Union Interchange, Inc. v. Savage, 52 Cal. 2d 601, 606 (1959) (upholding trial court’s refusal to dissolve a temporary injunction where there was “substantial doubt as to the constitutionality of the statute” at issue). Since the beginning of this case, the Court ofAppeal has interpreted Mr. Butler’s claim as a constitutional one, describing it as challenging “the Board’s practice of deferring calculation of inmates’ base terms until after a finding of suitability for parole result[ing] in petitioner serving a sentence constitutionally disproportionate to the crime he committed.” See Ct. of Appeal Order, Aug. 7, 2013; see also In re Butler, 236 Cal. App. 4th at 1237. Indeed, the Boarditself stipulated that Mr. Butler’s supplemental habeaspetition was a “systemic, constitutional challenge to the Board’s base term setting practices.” Settlement Order at 1 (emphasis added). Therefore, the Board cannot show that the law that forms the basis for the Settlement Order has changedat all—muchless in a way that conflicts with the relief it provides. Unable to point to any change in the federal or state constitutions, the Board instead insists that “/egislative revisions to the parole system 28 have ... emptied base terms of any meaningor function.” Opening Br. at 15 (emphasis added). The Board seeks to modify the Settlement Order because its requirements “lack any statutory basis or point under current law;” and the Board further concludesthat “[t]he stipulated order cannot be reconciled with this new statutory structure.” Jd. at 1, 15 (emphases added). But Mr. Butler never presented a statutory claim against the Board. Moreover, no principle of law prevents the parties from agreeing to—and the Court from enforcing—a consent decree that provides reliefbeyond that provided for by statute. See Local No. 93, Int'l Ass’n ofFirefighters, AFL- CIO C.L.C., 478 U.S. at 526. Thus, the fact that the California Penal Code has changedis irrelevant for purposes of evaluating whether a changein the law underlying the Settlement Order has taken place. Instead of arguing that the Constitution has changed, the Board argues that the Constitution does not mandate the reliefthat Butler obtained after litigating the action and negotiating the settlement agreement. But that is irrelevant. After stipulating to the Settlement Order, the Board cannot evade it by arguing that Mr. Butler’s constitutional claims lacked merit. A clarification in the law does not “automatically open[] the door for relitigation of the merits of every affected consent decree[,]” as that “would underminethe finality of such agreements and could serve as a disincentive to negotiation of settlements in institutional reform litigation.” Rufo, 502 USS.at 389. 29 The cases that the Board cites in support of its argument actually buttress Mr. Butler’s position. For example, in Wright, the U.S. Supreme Court overturned a lower court’s denial of a request to modify a consent decree. Unlike the present case, constitutional considerations were not implicated. Indeed, as Mr. Butler has consistently advocated, the Court determined the law upon which the consent decree was granted (the Railway Labor Act) by looking at the complaint. Sys. Federation No. 91 Ry. Employees’ Dep’t v. Wright, 364 U.S. 642, 643 (1961). The consent decree prohibited union-shop agreements.Jd. at 645-646. At the time of the complaint, the Railway Labor Act also prohibited union-shop agreements. Id. After the consent decree was entered, Congress passed a law permitting union-shop agreements. Jd. at 644. As the Supreme Court explained, “the consent decree [was] incompatible with the terms of the Act.” Local No. 93, Int’l Ass ’n ofFirefighters, AFL-CIO C.L.C., 478 U.S. at 527. Because there was a direct conflict between the statute upon whichthe reliefwas granted and the relief itself, modification was appropriate. Here, the authority upon which the Settlement Order was based has not even changed—muchless comeinto conflict with the Order. Norhas any court reinterpreted the constitutional provisions that underpin the Settlement Order’s requirements, as was the case in Salazarv. Eastin—anothercase on which the Board mistakenlyrelies. In that case, this Court approved the dissolution of an injunction which prohibited any 30 charge for school transportation. Salazar, 9 Cal. 4th at 850. The injunction was based on the lower court’s determination that the statute violated the free-school and equal-protection provisions of the California constitution. Id. Yet, following a contrary decision from this Court which heldthe statute to be constitutional, “the assumptions about the law upon whichthe injunction was based” changed in such a waythat justified vacating the injunction.Id. Here, by contrast, the Board cites no intervening case law clarifying the constitutional principles on which the Settlement Order is based." At most, the Board claimsthat it was forced to “restructure[ | the parole process”for elderly inmates following the issuance of the federal court order in Coleman v. Brown on February 10, 2014. The Coleman Order was issued by a three-judge district-court panel mandating the reduction of California’s prison population. See Case No. 3:01-cv-01351-THE, Dkt. No. 2766 (N.D.Cal.). The Coleman Orderis part of the remedy afforded to federal-court plaintiffs who challenged the constitutionality of medical and mental-health care available to California prison inmates. See Colemanv. Schwarzenegger, 922 F. Supp. 2d 882, 888 (E.D. Cal. 2009). The Coleman 18 The Boardincorrectly states that the Court upheld the lowercourt’s decision to modify the injunction. See Opening Br. at 17. Instead, it upheld the denialofthe plaintiff's request to modify the injunction. Salazar, 9 Cal. 4th at 851. 31 Order did not adjudicate the types of claims that Mr. Butler asserted and, indeed, has nothing to do with base terms. Nowherein its brief does the Board attempt to explain how the Coleman Order could conflict with the Board’s obligations under the Settlement Order. Indeed, if anything, the Settlement Order would only promote the aims of the Coleman Order by reducing the numberoflife- term prisoners whoare held beyondtheir base term.!? The Board likewise never identifies any change in the underlying facts that could justify modifying the Settlement Order. Instead, the Board argues that it would be “inequitable to continue to bind the Boardto the stipulated order.” Opening Br. at 15. According to the Board, the Settlement Order will “create unnecessary and unjustified practical difficulties, public expense, and confusion[,]” citing in part the “idle act of setting base terms” and necessary rulemaking process. Jd. at 19. Yetit is undisputed that the Board can calculate a base term in less than five minutes. See Mot. to Modify Opp., Jacob Decl. Ex. E at 0172 (110:7-9); Tr. of Oral Argument at 5 (5:33-5:54), May 31, 2016.7° And the Board already 19 At most, the Board arguesthat it would be required to create new base- term matrices “each time the Legislature (or the voters) alters minimum eligible parole dates.” Opening Br. at 19. The Board providesno basis for this projection and in any event cannot obtain a Settlement Order modification based on a vaguely anticipated change in the law. 0 Mr. Butler has prepared a transcript of the oral argument hearing for the convenience of the Court, but does not seek its admission into the record. Mr. Butler therefore provides parallel citations to the location in the Court 32 has drafted a version of the implementing regulations. See Nill Sanchez Contempt Decl. § 29(i). The required fiscal-impact assessmentofthe Settlement Order is unlikely to involve a complex or burdensomeanalysis, because fixing base terms is quick and automated. See Cal. Gov’t Code § 11346.3 (requiring state agencies to “assess the potential for adverse economic impact” of any administrative regulation) (emphasis added). Putting aside the inaccuracy of these factual claims, “modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.” See Rufo, 502 U.S.at 385. All of the facts the Board cites as compelling a modification of the Settlement Order existed when the Board stipulatedtoit. Nothing about the Board’s proposal is “suitably tailored” to the changed circumstancesit alleges to have occurred, as the Board is required to show. See Rufo, 502 U.S. at 391 (Once a moving party has metits burden of establishing either a change in fact or in law warranting modification of a consent decree, the district court should determine whetherthe proposed modification is suitably tailored to the changed circumstance.”). In its brief, the Board only vaguely alludesto its proposed modification: that it be allowed to inform inmates of their MEPDin lieu of their base term calculation. Opening Br. at 11. For two reasons, the MEPD ofAppeal’s audio recording of the argument at which the cited statements can be located. Mr. Butler has lodged a copy of the recording with this Court. 33 is not a substitute for the base-term calculation. First, by the Board’s own admission, the MEPD amounts to nothing more than the minimum statutory sentence, less good-timecredits for certain convictions. See OpeningBr. at 9 n.3. In other words, the MEPD merely specifies the earliest time at which aninmate may bereleased. It does not specify the maximum sentencethat is proportionate to the inmate’s crime. Second,the Board’s proposal would render the Settlement Order superfluousas the Board already has a statutory duty to provide inmates with their MEPDs. See Cal. Penal Code § 3041(a)(1). Ultimately, the legal standard governing modification of a consent decree doesnotcall for an inquiry into the merits ofthe Settlement Order. The Board’s motion to modify the Settlement Order is based on nothing more than its refusal to recognize the fundamental constitutional principles underlying the Settlement Order. But that is not enough to justify modifying its terms. B. The Settlement Orderis consistent with the plain meaning, history, and policy goals embraced bythelegislative reforms. In addition to being irrelevant, the Board’s argumentthat a change in the Penal Code requires modification of the Settlement Order lacks merit. The Board’s argumentis based on three legislative reforms enacted through the passage of S.B. 260, 261, and 230. Two monthsbefore the Court ofAppeal entered the Settlement Order at the end of 2013, the 34 California Legislature passed S.B. 260, which the Governorlater signed. »21 must beS.B. 260 provides that inmates qualifying as “youth offenders released once the Board finds them suitable for parole, regardless of their MEPD.Youth Offender Parole Hearings, 2013 Cal. Legis. Serv. Ch. 312 (S.B. 260) (codified at Cal. Penal Code § 3046(c)). One year later, in 2014, the California Legislature passed S.B. 261, which expandedthe scope of S.B. 260 to apply to inmates who committed specified crimes when they were under age 23 instead of 18. Jd. at § 3051(a)(1). That sameyear, the California Legislature also approved S.B. 230, whichappliesto all inmates whoare not youth offenders. S.B. 230 amended Penal Code § 3041 to require the Board to release an inmate “Tulpon a grantofparole.””* Sentencing: Parole, 2015 Cal. Legis. Serv. Ch. 470 (S.B. 230). The difference between the youth-offenderbills and S.B. 230 is that inmates covered by the latter will not be released before reaching their MEPDs./d.(codified at Cal. Penal Code § 3041(a)(4)). *1 Under S.B. 260, a “youth offender”is an inmate who committed certain crimes before the age of eighteen. See Youth Offender Parole Hearings, 2013 Cal. Legis. Serv. Ch. 312 (S.B. 260) (codified at Cal. Penal Code § 3051). _ 2 Former Cal. Penal Code § 3041(a) previously stated that “[{o]ne year prior to the inmate’s minimum eligible parole release date . . . [the Board] shall normally set a parole release date.”It also required the Board to “establish criteria for the setting of parole release dates.”Jd. 35 As explained in Part V.A, supra, modification is only justified where the law upon which a consent decree was granted has changed in such a waythat it conflicts with the decree itself. But the Board admitted at oral argumentbelow that “the statute does not explicitly preclude the Board from setting base terms.” Tr. of Oral Argumentat 25, (33:05-33:11) May 31, 2016. Indeed, the amended Penal Codeis not only consistent with the Settlement Order; both items are wholly complimentary in that they help address the problem ofprison overcrowding. Therefore, the Court of Appealacted entirely within its discretion when it denied the Board’s motion to modify. Notably, nowherein its brief does the Board actually conduct a formal statutory analysis, a necessary predicate to any showing of inconsistency between the amendments and the Settlement Order. In construing statutes such as the Penal Code, courts “strive to ascertain and effectuate the Legislature’s intent.” Jn re Dannenberg, 34 Cal. 4th 1061, 1081 (2005) (quotation marks and citation omitted). First, a court should examine the wordsofthe statute itself according to their plain and contextual meaning. Jd. (citation omitted). Second,if the statutory language is ambiguous, a court will look to its legislative history. Jd. (citation omitted). Finally, a court may consider the public policy consequencesof a certain interpretation. Jd. at 1082 (citations omitted). 36 Noneofthe legislative or judicial reforms havealtered the fundamentalintent of the DSL, the purpose of which is to promote “public safety achieved through punishment, rehabilitation, and restorative justice.” Cal. Penal Code § 1170(a)(1). The Legislature has unambiguously found and declared that “this purpose is best served by termsthat are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.” Jd. (emphasis added). To the extent the Board claims it now lacks the explicit authority to set base terms because § 3041 no longerdirects it to set release dates, § 1170(a)(1) of the Penal Code itself, together with the language of the Settlement Order, serve as ample sources of authority upholding the Board’s powerto calculate base terms. See Settlement Order § 5 (directing the board to “initiate the process to amendits regulations to reflect the base term setting practices described in this order”); see also Local No. 93, Int’l Ass’n ofFirefighters, AFL-CIO C.L.C., 478 U.S. at 522 (“[I]t is the parties’ agreementthat serves as the source of the court’s authority to enter any [consent] judgmentatall.”’) The calculation of base terms not only advances proportionality in accordance with the stated purpose of the DSL,it is also compatible with the plain meaning of the most recent legislative reforms. As to the youth offender bills, their stated purposeis to “create a process by which growth and maturity ofyouthful offenders can be assessed and a meaningful 37 opportunity for release established.” Youth Offender Parole Hearings, 2013 Cal. Legis. Serv. Ch. 312 (S.B. 260). S.B. 260 now requires the Board to release youth offenders found suitable for parole, whether or not they have served their MEPDsor base terms. See Cal. Penal Code § 3046(c)). Similarly, S.B. 230 amendedthe law to instruct the Board to release inmates upon a grantofparole. See id. § 3041(a)(4). On their face, the statutes are solely concerned with what happensafter an inmate is found suitable for parole. They are silent as to the term-fixing responsibilities and proportionality considerations that must take place prior to any suitability determination. Thelegislative history confirms the unambiguous wording ofthe statutes. At no point did a single lawmakerindicate an intent to eliminate base terms as a measure for proportionality. Instead, in passing S.B. 260, the Legislature was seeking to address the potential flood of habeas petitions on cruel and unusual punishment grounds by “inmates serving extended prison terms who were convicted as minors” in the wake ofrecent case law. Mot. to Modify Opp., Jacob Decl. Ex. A at 0042. The Legislature soughtto craft a “viable mechanism”for reviewing such cases, amending the law to accountfor the fact that a youth offender who has spent a “substantial period of incarceration and can show maturity and 38 improvement.””> Id. at 0047. Nonetheless, the legislative history of S.B. 261 expressly acknowledgedthat it is not intended as any guarantee of parole. ** And while nothingin the legislative history for the youth offender bills implicates the Settlement Order, base terms calculations can play a critical role in facilitating judicial review of habeas claims not addressed by S.B. 260 or 261. See Rodriguez, 14 Cal. 3d at 654 n.18 (“Prompt term- fixing will not only relieve the courts of the burden ofreviewing repeated complaints by prisoners whose terms have not been fixed, but will also make possible the type of meaningful review of [Board] actions to which prisonersare entitled.”’). The Board argues without support that, in enacting S.B. 230,“the Legislature was awareofthe settlement in this case whenit decided to dismantle the base-term system.” Opening Br. at 18. However, nowhere in the legislative history of S.B. 230 does a representative decry base terms as a useful measure ofproportionality for inmates who haverepeatedly been 3 The Legislature later passed S.B. 261 to expand the youth offender parole process. See Mot. to Modify Opp., Jacob Decl. Ex. B. *4 The legislative history of S.B. 261 states: To be clear: SB 261 is by no meansa “free ticket” for release. There is no mandate to a reduced sentenceor release on parole . . . there is no guarantee for a grant of parole. The Board still has to examine each inmate’s suitability for parole, the criteriafor which this bill does not change. See Mot. to Modify Opp., Jacob Decl. Ex. B at 0052 (emphasis added). 39 denied parole. The Legislature did demonstrate an awarenessthat the Board wasimproperly using base termsto justify holding inmates for a longer period of time that is necessary. Its reference to base terms waslimited to a critique ofhow “term calculations can extend oralter an individual’s sentence, creating a system ofback-end sentencing in which a judge’s sentence maybearlittle resemblance to the actual time an individual serves undercorrectional control.” See Mot. to Modify Opp., Jacob Decl. Ex. C at 0055. The Settlement Order, however, does not support this practice. Quite the contrary, it was intended to discourage (if not prohibit) the continued imprisonmentof inmates past their base term. Its implementationis entirely consistent with the stated purpose of S.B. 230, whichis to “ensure[] that once the Board of Parole Hearings determines that an inmateis eligible, suitable, and safe for parole, the implementation of that decision is expedited.” Jd. at 0054. The policy consequences of the Board’s interpretation of the legislative reforms as conflicting with its term-setting responsibilities are severe. The Settlement Order furthers the overarchinglegislative goal of curbing the prolonged incarceration of individuals who haveservedtheir time and pose no danger to society. Without it, the Board will stop fixing terms altogether and inmates whoare denied parole will continue to languish in prison with no sense ofwhether or whentheir continued 40 incarceration is constitutionally excessive. Moreover, the courts—in reviewing habeas petitions—will be deprived of the Board’s own calculation of the proportionate sentence for the crimes. In sum,the legislative reforms the Board pointsto all relate to the Board’s parole-granting authority. The Settlement Order does not require the Board to continue to incarcerate inmates whoare suitable for parole because they have not reachedtheir base terms; it simply requires the Board to calculate base terms. By conflating its statutory parole-granting powers with its constitutional duty to consider proportionality, the Board repeats the same error of its predecessor in Rodriguez: It “has not distinguishedits responsibility to fix the primary term ofprisoners . . . from its parole- granting function.” 14 Cal. 3d at 653. C. The disentitlement doctrine bars the Board from seeking to modify a court order after it has chosen to disobeyit. Long before it moved to modify the Settlement Order, the Board knowingly and voluntarily began to disobey the provisions it now seeks to excise. Pursuant to the disentitlement doctrine, a party “cannot, with right or reason, ask the aid or assistance of this [C]ourt in hearing [its] demands while [it] stands in an attitude of contemptto the legal orders and processes ofthe courts of this state which [it] seeks to avoid through the intervention of an appealto this tribunal.” Knoob v. Knoob, 192 Cal. 95, 97 (1923); accord MacPherson v. MacPherson, 13 Cal. 2d 271, 277 (1939). 4] This Court has the inherent power to dismiss an appeal by a party that refuses to comply with a lower court order. See id.; see also Gwariz v. Weilert, 231 Cal. App. 4th 750, 757 (2014), reh’g denied (Nov. 18, 2014), review denied (Feb. 18, 2015)(citing Stoltenberg v. Ampton Investments, 215 Cal. App. 4th 1225, 1229 (2013), as modified (May 6, 2013), as modified on denial ofreh’g (June 5, 2013)). Courts have applied the doctrine in a wide array of cases, including matters where a judgment debtor frustrated efforts to enforce the judgment, parties willfully refused to respond to postjudgmentinterrogatories, and where an appellant disobeyed a prejudgmentorder requiring the deposit of partnership funds into a trustee account. See Gwartz, 231 Cal. App. 4th at 758 (listing cases). Dismissal of an appealis justified so long as the appellant has “willfully disobeyed the lower court’s orders or engaged in obstructive tactics”—a formal judgment of contemptis not necessary. Id. at 757-758 (citing Stoltenberg, 215 Cal. App.4th at 1230). The Board’s contemptofthe Settlement Order is well documented. After a lengthy investigation, Mr. Butler discovered over 1,600 violations of the Settlement Order. Nill Sanchez Contempt Decl. 7 21-26. And the violations stand undisputed. Indeed, the Board has admitted that it did not calculate base terms for youthful offenders and elderly inmates. Seeid. § 29(iii). Ofthe 1,641 parole hearings where the Board did not conduct a base term calculation, 676 qualified as youth offender hearings and 466 as 42 elderly parole hearings, respectively. Jd. § 25. Mr. Butler’s investigation discovered that the Board failed to calculate a base term in approximately 500 regular hearings as well, approximately thirty percentofits documentedviolations. Jd. J 26. The Board knowingly and voluntarily chose to disobey the Settlement Order’s requirements withoutfirst seeking permission or even providing notice to the parties or the Court. Its violations were largely the product of a formal, deliberate policy that directly conflicts with the requirements of the Settlement Order. Jd. §§ 27-29. As far back as May 2014, the Board distributed proposed regulations at an executive board meeting affirmatively directing hearing panels not to select a base term or calculate an adjusted base term for youth offenders. Jd. § 29(4). Furthermore, its rulemaking efforts implementing the Settlement Order stalled in August 2014. Jd. ¢ 36 . It is unclear when or whether the Board would have even moved to modify the Settlement Order had Mr. Butler not learned of its violations and sentit a letter threatening to seek that the Board be held in contempt. See Id. fj 30-31; see also Tr. of Oral Argument at 45 (1:00:57-1:01:19; 1:02:20-1:02:34) May 31, 2016 (Kline, P.J. : “T musttell you, personally, []I’m kind of offended at[] what’s happenedhere. What[] I’m hearing from Mr. Jacob—and maybethis is wrong—is you just ignored the settlement. And belatedly moved to modify it after you realized there was going to be a contempt proceeding. . . Mr. Kinney: Mr. Jacob is 43 correct that with regard to youth offenders and inmates underthe elderly parole program,[] through the three-judge panel, the boardis not[] setting—orcalculating base terms for those individuals.”’). This appeal is an open attempt by the Board to remove from the Settlement Order the provisions it violated. Not only could the Board have anticipated someofthe legislative reforms that took place, SB 260 passed the Legislature before the Settlkement Order was even entered. Youth Offender Parole Hearings, 2013 Cal. Legis. Serv. Ch. 312 (S.B. 260) (codified at Cal. Penal Code, § 3051). The disentitlement doctrine was developed to prevent precisely that sort of abuse of the Court’s process. See Stoltenberg, 215 Cal. App. 4th at 1230. see also Signal Oil & Gas Co. v. Ashland Oil & Refining Co., 49 Cal. 2d 764, 776 n.6 (1958) (“It is for the court of first instance to determine the question of the validity ofthe law, and until its decision is reversed for error by orderly review,either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.”) (quoting Howat v. Kansas, 258 U.S. 181, 189-190 (1922)). Rather than modify the Board’s obligations to conform to its contempt, the Court should continue enforcing the Settlement Order and hold the Board responsible forits failure to comply with its requirements. 44 D. The Board is barred from relitigating the merits of the Settlement Order underthe law of the case doctrine. A motion to modify a consent decree is not an opportunity to relitigate the constitutional claims that underlie the decree. See supra Part V.A.But even if it were, the Board’s challenge is now barred by law ofthe case. The Board’s request for modification revolves entirely aroundits premisethat “the Board’s obligations under the stipulated order are not grounded in the Constitution.” See Opening Br. at 21. However,that issue has been squarely decided by the lower court in proceedings that the Board left unchallenged on two separate occasions. The Board is barred from using a motion to modify as a vehicle for revisiting the Court ofAppeal’s prior decisions. Underthe law ofthe case doctrine, “the decision of an appellate court, stating a rule of law necessary to the decision ofthe case, conclusively establishes that rule and makesit determinative ofthe rights of the sameparties in any subsequentretrial or appeal in the same case.” Sargon Enterprises, Inc. v. Univ. ofS. California, 215 Cal. App. 4th 1495, 1505 (2013) (internal quotation marks andcitation omitted); see also Cal. Prac. Guide Civ. App. & Writs Ch. 14-D § 14:172. The law ofthe case doctrine binds the Supreme Court to the legal findings of a previous appeal before the Court ofAppeal in the same case, even where the Supreme Court 45 may concludethat the Court ofAppeal opinion was erroneous. See People v. Stanley, 10 Cal. 4th 764, 786 (1995). The Board expressly opposed thefirst opportunity to review the merits of the Settlement Order. In requesting transfer to the Supreme Court of the Settlement Order, Sacramento County District Attorney Jan Scully madethe samestatutory arguments the Board presents today. See Ltr. from Jan Scully, District Att’y to Cal. Supreme Ct., April 23, 2014 (“This [settlement] order conflicts with the legislative direction contained in Penal Code section 3041, subdivision (b)[.]’’). However, the Board opposed her request, arguing that “the Court ofAppeal has held that comparable orders granting motions to enforce settlement. . . are final orders because they ‘dispose[] of the litigation’ and leave the court with ‘nothing . . . to do other than enforce its order.’” See Resp’t’s Answer to Request for Transfer May 15, 2014 at 3 (quoting Critzer v. Enos, 187 Cal. App. 4th 1242, 1252 (2010)). Notably, by that time, S.B. 260 was already in effect and the Coleman Orderhad been issued. See Rufo, 502 U.S. at 385 (1992) (“Ifit is clear that a party anticipated changing conditions that would make performanceofthe decree more onerousbut nevertheless agreed to the decree, that party would haveto satisfy a heavy burden to convince a court that it agreed to the decree in good faith, made a reasonable effort to comply with the decree, and should be relieved of the undertaking... ”). 46 The Board also chose not to seek review of the Court ofAppeal’s opinion awarding Mr. Butler attorneys’ fees. In deciding the motion, the court had to determine whether the Settlement Order resulted in the “enforcement of an important right affecting the public interest[.]” Cal. Civ. Proc. Code § 1021.5. In opposition to Mr. Butler’s motion for attorneys’ fees, the Board arguedthat a right to a base term calculation at he initial parole suitability hearing “did not exist until the settlement went into effect.” Resp’t’s Opp. to Mot. to Att’y Fees, November5, 2014 at 4. The Court ofAppeal squarely rejected the Board’s position, determining that the Settlement Order vindicated the constitutional rights the Board once again claims it does not. See Jn re Butler, 236 Cal. App.4th at 1230, 1233- 1235 (explaining that the Board’s arguments “ignore[] the role the base and adjusted base terms play in promoting proportionality, which is both constitutionally mandated and an express goal of the DSL”); see also Press v. Lucky Stores, Inc., 34 Cal. 3d 311, 318 (1983) (holdingthat litigation that vindicates rights “of constitutional stature”satisfy the public interest element of Cal. Civ. Proc. Code § 1021.5) (quoting Serrano v. Priest, 20 Cal. 3d 25, 46 n.18 (1977)). The Board, however, never sought reconsideration, Supreme Court review, or even depublication of the Court ofAppeal’s opinion.”° 25 On October 28, 2015, the Supreme Court declined a third-party requestto review or depublish the decision. See Cal. Supreme Ct. Order, 47 The merits of the Settlement Order—having already been decided in a prior appeal—are not subject to review in this case. Following two foregone opportunities to seek review, the Settlement Order’s constitutional significance has becomethe law of the case. The Board cannot use a motion to modify to sidestep established issues in this case that it failed to appeal at the propertime. E. The Settlement Order vindicates the California Constitution’s prohibition on cruel or unusual punishment. Even if the Board could relitigate the underlying merits of Mr. Butler’s constitutional claims after settling them, Mr. Butler should prevail. Article 1, section 17, of the California Constitution mandates the Board imprison every parole-eligible life inmate for no longer than the term proportionalto his or her crime. See Rodriguez, 14 Cal. 3d at 650. The Board cannot escapeits constitutional obligation to fix a term proportionate to an inmate’s offense. That obligation extends as far back as the final years of the DSL, whenthis Court affirmed that the Board must fix termsso that no life prisonerin its custody serves a constitutionally excessive period of time. Starting with Wingo, 14 Cal. 3d at 182, the Supreme Court stated that inmates have a “vested right” in ensuring their termsare fixed proportionately to their offense. It therefore held that “judicial review must No. 8227750, Oct. 28, 2015. 48 await an initial determination by the [Board] of the proper term in the individual case.” Jd. at 183. One monthlater, in Rodriguez, this Court detailed the Board’s term-fixing responsibility. The Board’s argumentthat “base terms have no constitutional significance” flouts Rodriguez. Opening Br. at 21. In Rodriguez, the Supreme Court qualified the “oft-stated rule that a prisoner has no right to a term fixed at less than maximum[.]” Rodriguez, 14 Cal. 3d at 652. That rule is “subject to the overriding constitutionally compelled qualification that the maximum maynotbe disproportionate to the individual prisoner’s offense.” Jd. In order to discharge that duty, the Court held that the Board has a “basic term-fixing responsibility,” which requires setting terms “within the statutory range that are not disproportionate to the culpability of the individual offender.” Jd. Specifically, the Board has a constitutional duty to assure both that inmates “will have their terms fixed at a numberof years proportionate to their individual culpability,” and “that their terms will be fixed with sufficient promptness to permit any requested review of their proportionality to be accomplished before the affected individuals have been imprisoned beyond the constitutionally permitted term.”Jd. (citation omitted). The Court explained that the Board’s term-setting responsibility is different from its parole-granting authority. Jd. at 652-653. The latteris concerned with an inmate’s conduct after imprisonment, and allows the 49 Board to keep the inmate for up to the full term if he poses a dangerto society, or to reduce his term if he rehabilitates in prison. Jd. at 652. The former “must reflect the circumstances existing at the time of the offense.” Id. That is so because the California Constitution requires the Board to “fulfill its obligation to fix petitioner’s term at a numberofyears proportionate to his offense.” Jd. at 653. Whereit fails to fix any term atall, the Board “impliedly” fixes the term at life, which constitutes “excessive punishment”if a life sentence is disproportionate to the conviction offense. Id. Finally, the Rodriguez Court explained that term-setting also facilitates judicial review of the numeroushabeaspetitions brought by prisoners who “believe[] their continued imprisonmentto be constitutionally impermissible” but lack the “necessary supporting data.” Jd. at 654 n.18. The Board’s argumentthat base terms have no constitutional significance also contradicts its own prior guidance provided in Chairman’s Directive No. 75/30.”° As explained in Part III.A.1,, the Board issued that Directive in response to Rodriguez. The purposeofthe Directive was toset forth detailed procedures for setting the primary term, or adjusted base term. See Roy Butler’s Mot. for Judicial Notice, March 20, 2017, Ex. A. The agency ultimately promulgated regulations requiringit to fix a 6 The Board’s argument that base terms represent a minimum sentencefail for the same reason. See Opening Br. at 21-22. As the Court below explained, “[t]he base term has never been considered the minimum term a prisoner mustserve;its function is to indicate the point at which a prison term becomesconstitutionally excessive.” Mot. to Modify Orderat 6. 50 “primary term,” which consisted of a “base term and adjustments.” See 15 Cal. Admin. Code §§ 2000-2725 (1976); see also App’x of Pet’r’s Opp.to Resp’t’s Mot. to Modify, Tab 5, March 1, 2016. The agency’s own regulations noted that “the primary term is the maximum period of time whichis constitutionally proportionate to the individual’s culpability for the crime.” 15 Cal. Admin. Code § 2100(a) (1976). Despite the Board’s argumentto the contrary, the term-fixing mandate ofRodriguez continues to be good law. Although the Court issued the decision during the ISL era, nothing in subsequent case law or the opinion itself suggests that it does not still apply to the many prisoners who continue to be sentenced to indeterminate terms. See supra Part III.A. To the contrary, in Dannenberg,this Court affirmedthe principle that “no prisoner can be held for a period grossly disproportionate to his or her individual culpability for the commitmentoffense.” 34 Cal. 4th at 1096. Citing Rodriguez, it further explained that “[s]uch excessive confinement, wehaveheld,violates the cruel or unusual punishmentclause(art. I, § 17) of the California Constitution.” Jd. (citing Rodriguez, 14 Cal.3d at 646— 656). Much ofDannenberg’s reasoning has now been rendered obsolete by the amendments to California Penal Code § 3041. Dannenberg was primarily concerned with reconciling the public safety and uniformity provisions of California Penal Code § 3041. Those provisions are no longer 51 part ofthe statute following the passage of SB 230.”” In fact, the Dannenberg court granted review to the following limited question: Whether the Board was required to undertake a base term calculation prior to finding a suitability of parole under § 3041 of the California Penal Code. Id. at 1077. The Court’s holding waslimited to the determination that “[t]he wordsofsection 3041 strongly suggest that the public-safety provision of subdivision (b) takes precedence over the ‘uniform terms’ principle of subdivision (a).” Jd. at 1082. Now that the “uniform terms”provision has been removed from § 3041, Dannenberg’s holdingofferslittle guidance.”® Thus, even if the legislative changes conflict with the Settlement Order— which they do not—no changein the Penal Code could relieve the Board of its constitutional obligation to fix a term proportionate to an inmate’s offense. For example, in Professional Engineers v. Department of - Transportation, the Supreme Court found that intervening legislation that contradicted a constitutional requirement did not justify dissolving or 27 At the time, § 3041 both required the Board to set a parole release date “in a mannerthat will provide uniform terms” unless the Board determined that the inmate is presently unsuitable for the fixing of a parole date based on a finding that public safety required a longer sentence.Jd. at 1079 (citing former Cal. Penal Code § 3041(a)(b)). 8 Even ifDannenberg’s statutory analysis of the now-deleted portion of § 3041 retained vitality, it provides no justification for the modification that the Board seeks. Dannenberg merely indicated that the Legislature intended to allow the Board to “postpone”the fixing of a term subjectto the prohibition on disproportionate sentences. 34 Cal. 4th at 1090. Here, the Boardis not asking to postponethe setting of base terms. Its proposed modifications to the Settlement Order abandonthe practice entirely. 52 otherwise modifying the injunction in question. 15 Cal. 4th 543. In that case, the enjoined party similarly argued that certain legislative changes “underminedthe trial court’s injunction and related orders and justified their dissolution.” Jd. at 555. This Court soundly rejected the argument, reasoning that it would not“disregard three decades ofjurisprudence applying and construing the constitutional provision”at issue. Jd. at 567. The court recognized that, although it must “give legislative findings great weight and should uphold them unless unreasonable or arbitrary, [it] also must enforce the provisions of our Constitution and may notlightly disregard or blink at a clear constitutional mandate.” Jd. at 569 (internal citations and alterations omitted). Asto the Board’s critique of the Settlement Orderas a “judicially imposed remedy] that interfere[s] with the Board’s discretion to determine parole suitability,” Opening Br. at 29, the Constitution—notthe Settlement Order—compels the Board to consider proportionality. The Settlement Order merely requires the Board to calculate base terms, which in turn do not dictate, but inform the proportionality inquiry that the Boardis constitutionally required to undertake. The Board’s proposed modification—which would allow it to stop calculating base terms entirely—could fomenta constitutional crisis. “[A] sentence may be unconstitutionally excessive either because the [Board] has fixed a term disproportionate to the offense or, in some circumstances, 53 because no term whateverhas beenset.” Wingo, 14 Cal. 3d at 182. If the Board’s proposed modification were adopted, the courts would be required to presumethat every parole-eligible life inmate whoraises a disproportionate sentence claim will be held to a life term, and to adjudicate their claims subject to that presumption. Rodriguez, 14 Cal. 3d at 653. The Board’s suggestion that every parole-eligible life inmate could be constitutionally imprisoned for life cannot withstand even the most cursory examination of the range of conviction offenses ofthose inmates. An individual convicted offirst-degree murderin cold blood plainly merits a different sentence than an inmate found guilty of kidnapping someone without causing death or serious bodily harm or one whoplaced an obstruction in a railroad path that did not fatally hurt anyone. See Cal. Penal Code § 190(a); § 209(a); § 219. Indeed, the circumstances of Mr. Butler’s own conviction undermine the Board’s suggestion that it can constitutionally render the possibility of parole meaningless for every single one of the 9,315 life prisoners who—as of thefiling of Mr. Butler’s supplemental petition—had served sentences beyond their minimum eligible parole dates. Supp. Habeas Pet. App’x. Ex. Z (Decl. of Austin) J 24. Although Mr. Butler was convicted of second degree murder, a serious crime, the murderitselfwas committed by an accomplice while Mr. Butler was hiding in the bathroom outof fear. Supp. HabeasPet. {¥ 20, 23. While no one applauds Mr. Butler’s actions, at 54 sentencing the State of California itself argued that probation was the appropriate sentence for his crime. Jd. § 65. The Board’s suggestionthatit does not have to even consider the proportionality of the crime to the period of imprisonmentit imposes cannot be reconciled with the Constitution’s prohibition on disproportionate sentences. The Board should not be permitted to regress back to the days when it gave inmates “no advance hope”oftheir release dates and failed to fit a punishmentto their crimes. See Dannenberg, 34 Cal. 4th at 1088. Not only would this promote disciplinary problems, see id., it is likely the courts would have to grapple with the fallout in the form of an increased load of habeaspetitions. See Rodriguez, 14 Cal. 3d at 654 n.18 (“Prompt term- fixing will not only relieve the courts of the burden of reviewing repeated complaints by prisoners whose terms havenot been fixed, but will also makepossible the type of meaningful review of [Board] actions to which prisonersare entitled.”). 7° 9 The Board’s “separation-of-powers concerns” are unfounded. See Opening Br. at 29. The Board arguesthat the judiciary may not impose limits on its ability to determine parole suitability. Just as it did in Rodriguez, the Board confusesits term-fixing obligations with its parole- granting authority. 14 Cal. 3d at 652. The Board’s parole-granting authority is set out in Cal. Penal Code § 3041. The Board’s term-fixing obligations are mandated by the Constitution. /d. at 652; see also Inre Dannenberg, 34 Cal. 4th at 1096 (“[E]ven if sentenced to a life-maximum term, no prisoner can be held for a period grossly disproportionate to his or her individual culpability for the commitmentoffense.”’). This Court’s vigilant enforcement of the Constitution against the Executive does not implicate separation ofpower concerns—indeedit is the Court’s solemn duty. 55 Ultimately, the Board’s interpretation of the statutory reforms would set California back by several decades andplace the parole system on a collision course with the federal and state constitutions. Before the DSL’s passage, this Court proclaimed that a purely indeterminate sentencing schemethat does not take into account proportionality is unconstitutional. See Wingo, 14 Cal. 3d at 182; see also Rodriguez, 14 Cal. 3d at 652. The passage of the DSL mayhave eliminated the practice of indeterminate sentencing for most defendants,but it left the status quo largely intact for those convicted of certain enumerated crimes. Simply because there are fewer ofthem than there were when Rodriguez was decided does not diminish their right to a sentence that fits their crime. The Board’s prior term-setting practice permitted the violation of this right. The Settlement Order ensures the Board considers proportionality at a meaningful stage of the parole process as a meansofcorrecting an injustice that will otherwise repeatitself. 56 VI. CONCLUSION For the foregoing reasons, Mr. Butler respectfully requests that the Court affirm the Court ofAppeal’s decision denying the Board’s motion to amend. Respectfully submitted, Dated: March 20, 2017 KEKER, VAN NEST & PETERS LLP SHARIF E. JACOB Attorneys for ROY BUTLER By Appointmentofthe Court of Appealofthe First Appellate District 57 CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court 8.504(a), 8.504(d)(1) and 8.204(c)(1), and in reliance upon the word countfeature of the software used, I certify that the attached ANSWER BRIEF ON THE MERITS contains 13,817 words, excluding parts not required to be counted under Rule 8.204(c)(3). Dated: March 20, 2017 = SHARIF E. JACOB 58 State of California ) Proofof Service by: County of Los Angeles ) v US Postal Service ) Federal Express J, Stephen Moore , declare that I am not a party to the action, am over 18 years of age and my business address is: 631 S Olive Street, Suite 600, Los Angeles, California 90014. 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