Filed 1/24/05
IN THE SUPREME COURT OF CALIFORNIA
In re
S111029
JOHN E. DANNENBERG
Ct.App. 1/3 A095299
on Habeas Corpus.
) Marin
County
Super. Ct. No. SC112688A
In this case involving a second degree murderer, we consider how the
Board of Prison Terms (Board or BPT) may determine that a prisoner with an
“indeterminate” life sentence, having served the minimum period of confinement
required by statute, is nonetheless presently unsuitable for the setting of a fixed
parole release date because the gravity of the inmate’s offense indicates a
continuing danger to public safety. The issue is whether the Board may refuse a
parole date on this ground only after evaluating the offender’s crime against others
of similar gravity and against its own uniform-term “matrices,” and concluding
that the offense is particularly egregious by those comparative standards, or
whether it need conduct such a comparative analysis only after it determines that
the inmate is suitable for parole.
John E. Dannenberg is serving a sentence of 15 years to life for the second
degree murder of his wife, committed in 1985. He beat her with a pipe wrench
during a domestic argument. Thereafter, she drowned in the bathtub. Exactly
how this happened is unclear. However, despite Dannenberg’s insistent denials,
the circumstances permit an inference that, while she was helpless from the
1
beating, Dannenberg placed or forced her head under water, or at least allowed it
to remain there, until she died.
In 1999, as on several prior occasions, the Board declined to grant
Dannenberg a parole release date. The Board concluded that Dannenberg’s crime
indicated a continuing public danger, thus making him presently unsuitable for
parole, because the murder was “especially callous and cruel” and was committed
for a trivial reason. Following its long-standing formal policy, the Board made its
unsuitability determination by confining its examination to the particular
circumstances of Dannenberg’s crime, without measuring his offense against other
homicides, or against the Board’s own uniform-term norms for second degree
murderers.
The Court of Appeal held that the Board proceeded incorrectly. Construing
the pertinent statute, Penal Code section 3041,1 the court ruled that once an
indeterminate life prisoner reaches minimum parole eligibility, the Board must set
a fixed date for parole release, pursuant to the principle of “uniform terms” for
crimes of similar gravity, and with due regard for the statutory minimum term for
the inmate’s offense, unless it finds the prisoner’s crime “particularly egregious”
in comparison to other offenses of the same class. Accordingly, the court
remanded the case for a new parole hearing under proper standards.
We conclude that the Court of Appeal erred. While subdivision (a) of
section 3041 states that indeterminate life (i.e., life-maximum) sentencees should
“normally” receive “uniform” parole dates for similar crimes, subdivision (b)
provides that this policy applies “unless [the Board] determines” that a release date
cannot presently be set because the particular offender’s crime and/or criminal
1
All subsequent unlabeled statutory references are to the Penal Code.
2
history raise “public safety” concerns requiring further indefinite incarceration.
(Italics added.) Nothing in the statute states or suggests that the Board must
evaluate the case under standards of term uniformity before exercising its
authority to deny a parole date on grounds the particular offender’s criminality
presents a continuing public danger.
Indeed, under other provisions of law, the Board cannot grant a parole date
to a life-maximum prisoner without considering the concerns expressed by
interested persons, including victims, their families, and law enforcement officials
involved in the case, that this particular offender is still too dangerous, by virtue
of the crimes he or she has committed, to be scheduled for release. If a Board
panel does set a parole date, the Governor may request review by the full Board on
grounds that the panel did not fully consider the crime’s gravity, or public safety,
in which case a majority of the full Board must vote to uphold the panel’s
decision. In the case of a murderer, the Governor may overturn a grant of parole
on any basis the Board could have used to deny it. The statutory scheme, viewed
as a whole, thus clearly elevates a life prisoner’s individual suitability for parole
above the inmate’s expectancy in early setting of a fixed and “uniform” parole
date.
Moreover, despite recent specific attention to section 3041 and the Board’s
parole procedures, the Legislature has not disturbed the Board’s long-standing
formal policy that a determination of individual suitability must precede the
setting of a “uniform” parole release date. The Legislature therefore appears to
have accepted the Board’s interpretation of the statute.
Accordingly, we conclude that the Board, exercising its traditional broad
discretion, may protect public safety in each discrete case by considering the
dangerous implications of a life-maximum prisoner’s crime individually. While
the Board must point to factors beyond the minimum elements of the crime for
3
which the inmate was committed, it need engage in no further comparative
analysis before concluding that the particular facts of the offense make it unsafe, at
that time, to fix a date for the prisoner’s release. The BPT acts properly in
determining unsuitability, and the inmate receives all constitutional process due, if
the Board provides the requisite procedural rights, applies relevant standards, and
renders a decision supported by “some evidence.”
Of course, no inmate may be imprisoned beyond a period that is
constitutionally proportionate to the commitment offense or offenses. But that
limitation will rarely apply to those serious offenses and offenders currently
subject by statute to life-maximum imprisonment. Its potential application in
occasional individual cases does not require the BPT, under the current statutory
scheme, to set fixed release dates for all life prisoners except those whose crimes
are most “egregious” compared to others of the same class. Instead, the Board
may decline to do so in an individual case if it concludes, on relevant grounds with
support in the evidence, that the grant of a parole date is premature for reasons of
public safety. Life inmates who believe that such Board decisions have kept them
confined beyond the time the Constitution allows for their particular criminal
conduct may take their claims to court.
Here the Board’s conclusion that Dannenberg remains too dangerous for
parole because his offense was especially callous and cruel, and was committed
for a trivial reason, relied upon facts beyond the minimum elements of second
degree murder, and was supported by some evidence. The Board’s decision to
deny parole thus comports with the law.
We will therefore reverse the judgment of the Court of Appeal.
FACTS AND PROCEDURAL BACKGROUND
In 1986, Dannenberg was convicted by a jury of second degree murder and
was sentenced to the prescribed term of 15 years to life (§ 190, subd. (a)). With
4
allowance for applicable pretrial and prison conduct credits, his minimum eligible
parole release date was June 25, 1996. In parole hearings conducted in 1994,
1997, and 1999, the Board declined to set an actual parole release date for
Dannenberg, each time relying primarily on the nature of the murder itself to find
him presently unsuitable.
In the 1999 proceeding, at issue here, the Board considered the following
circumstances of the commitment offense, drawn from a staff report prepared in
1994 for his initial parole hearing:2
Dannenberg and his wife experienced severe domestic difficulties for a
number of years. They had sought marriage counseling, and the victim had been
seen by psychiatric personnel for complaints including violence toward herself
and her children.
On May 15, 1985, around 9:00 a.m., law enforcement authorities were
summoned to the couple’s home in Los Altos Hills. In a bathroom, they found the
victim’s body, draped over the side of the bathtub with her head under water in the
tub. Dannenberg had several scratches on his body, a deep bite mark on his left
middle finger, and cuts on his neck, eyelid, and face. An autopsy disclosed that
the victim’s body had various cuts, abrasions, and puncture wounds, consistent
with being hit on numerous occasions. One of the wounds matched the markings
of a half-pound pipe wrench. The autopsy report concluded that although the
victim had been hit many times on the head, the cause of death was drowning.
2
The report in question is entitled Life Prisoner Evaluation-Initial Parole
Consideration Hearing. The chairman of Dannenberg’s 1999 parole panel stated
that this was the source of the facts relied upon by the panel in rendering its
decision. As indicated in the text, the panel also heard testimony from
Dannenberg himself about the events leading to his wife’s death.
5
Dannenberg gave investigating officers the following account: Around
7:00 a.m., he was drawing a bath for his son when he noticed debris in the drain
that could cause a clog. He procured a pipe wrench and a screwdriver to fix a
leaky toilet valve. “During this time[,] he evidently said something to his wife”
about the drain. She came into the bathroom and picked up the screwdriver. A
heated argument ensued. Screaming that she “wanted him dead,” the victim
jabbed the screwdriver at Dannenberg, cutting his arm, and clawed and scratched
his forearm with her fingernails. Dannenberg first tried to defend himself with his
bare hands. Then he picked up the pipe wrench and hit the victim once on the side
of the head. When she continued to advance on him, he “hit her a couple more
times on the head,” and she fell to the floor. Dannenberg himself collapsed “and
may have passed out.” When he awoke, he checked the victim’s pulse, but could
not find one. He then called 911.
The 1999 parole panel also heard extensive live testimony from
Dannenberg. He testified to the following additional details: As both he and the
victim collapsed on the floor, the victim was lying on her back, still holding the
screwdriver, and Dannenberg was kneeling over her, pinning her arms. She
seemed to relax, but then suddenly placed her feet against his shoulders and
pushed. He was knocked back against the bathroom door and fell to the floor.
After that, he remembered nothing until he saw the victim lying on the edge of the
tub. A pool of blood covered the floor where she had previously lain. There was
also considerable blood on her head, and smeared on the wall. Dannenberg could
not move at first, because his legs, curled underneath him, were asleep. From his
low position, and in a dazed condition, he did not notice the victim’s head was in
the water. Eventually he reached over and tried to take her pulse, but could not
feel anything. He then struggled to his feet, went to his bedroom, and called 911.
6
The fire department responded within a few minutes, but determined that the
victim was dead and did not try to resuscitate her.
A panel member noted that the victim must have lain on the floor quite a
while for such a pool of blood to accumulate, “[s]o we’re going to have a hard
time believing that she [lay] there and then got up and crawled into the bathtub
after she bled out all over the floor. Do you see how that doesn’t make a lot of
sense?”
In response, Dannenberg denied placing his wife in the tub. Citing
evidence of blood on the underside of the bathtub spout, Dannenberg reiterated his
trial theory that the victim must have tried to rise on her own, climbed over the
edge of the tub, “and either tried to wash herself or had attempted to get up and
slipped and got her face in the water and jerked her head up and hit her head on
the spout and then went down again and drowned.” Dannenberg insisted the
evidence he presented at trial demonstrated that he could not have moved her into
the tub without walking in the blood on the bathroom floor, thus “making a mess”
of the murder scene.
Citing Dannenberg’s estimate that he was only unconscious for “a minute
or so” before seeing the victim draped over the tub, one panel member questioned
how she could drown that quickly. Dannenberg noted the coroner’s trial
testimony “that death by drowning can be instantaneous through something called
a laryngospasm where you apparently try . . . to inhale and get water and you go
out immediately.”
In his argument to the panel, Dannenberg expressed remorse for causing his
wife’s death, but he denied he intended to kill her, either by beating or by
drowning. He stressed he had been prosecuted on a theory of first degree
premeditated murder, but was convicted only of second degree murder, which
might involve only implied malice. According to Dannenberg, the prosecutor told
7
the jury that the circumstances of the victim’s death could never be known for
certain, and the Attorney General conceded on appeal that the death by drowning
was unexpected. This permanent uncertainty, he urged, was not a basis for denial
of parole.
Dannenberg noted that, except for the commitment offense, he had no
criminal or drug history. He urged that he had accepted responsibility of his
actions, stating that his wife “would in all likelihood not have died if I had not hit
her that morning.” He pointed out that, while in prison, he had remained
discipline free, and had pursued all recommended therapy, vocational training, and
self-help programs. He cited his college degrees in mathematics and engineering,
and his decades of expertise in electronics. He indicated he had several offers of
housing, sufficient liquid assets to support himself, an offer of employment, and
plans to start a water conservation business.
Dannenberg’s May 1999 psychological evaluation also described him as a
model prisoner. Accepting Dannenberg’s version of the facts, the evaluation
surmised that the murder was a one-time response to Dannenberg’s extreme stress
and fear of his wife’s rage while she was armed with the screwdriver. In line with
previous assessments, the evaluation diagnosed Dannenberg as showing no signs
of mental or emotional disorder and concluded he presented a low risk of further
violence.
In its oral ruling that Dannenberg was presently unsuitable for parole, the
panel stated that “the primary reason is the commitment offense itself.” The panel
found that the murder was committed “in an especially cruel or callous manner,”
and was carried out in a way that “demonstrates an exceptionally callous disregard
for human suffering.” For support, the panel “rel[ied] partially on the autopsy
report[,] which indicated that the victim was repeatedly struck in the head, and at
some point the victim . . . was pushed or fell into the bathtub full of water and the
8
eventual cause of death was drowning. . . .” Moreover, the panel found, the
motive for the crime “was inexplicable or very trivial in relation to the offense.”
While concluding that “there [were] no psychiatric factors to consider,” the panel
asserted that “[t]he prisoner needs therapy in order to face, discuss, understand,
and cope with stress in a nondestructive manner. Until progress is made, the
prisoner continues to be unpredictable and a threat to others.”
Separately ruling that the next parole hearing would be postponed for two
years, the panel cited similar considerations. Additionally, the panel opined,
Dannenberg “needs to accept full responsibility for the crime . . . and discontinue
his attempts to minimize his responsibility for that.”
After exhausting his administrative remedies, Dannenberg filed a petition
for habeas corpus in the Marin County Superior Court.3 The petition asserted that,
(1) having been convicted only of implied-malice second degree murder, he was
3
The petition named Dave Hepburn, Chair of the BPT, and J. S. Woodford,
Warden of San Quentin Prison, as “respondents.” With legal representation by the
California Attorney General, the case was litigated in the names of Hepburn and
Woodford in the superior court. However, the superior court’s ultimate order,
granting a new parole hearing under specified standards, was directed to the Board
itself. On appeal from this order (see discussion, post), the Attorney General
observed to the Court of Appeal that while Woodford, as Dannenberg’s custodian,
was technically the proper “respondent” in the habeas corpus proceeding, the
Board itself was the party directly affected. Accordingly, the Attorney General
noted, “for the sake of convenience and clarity, we address this appeal solely from
the Board’s perspective.” The Court of Appeal accepted this characterization of
the case, and its judgment, affirming the need for a new parole hearing, was also
directed to the Board alone. The problem of proper party identification is further
complicated by the fact that while Dannenberg is the “petitioner,” and the parties
represented by the Attorney General are the “respondents,” in the original habeas
corpus proceeding, the Attorney General’s clients were the “appellants” in the
Court of Appeal and the “petitioner” in this court, while Dannenberg is the
“respondent” in both appellate courts. Accordingly, for convenience hereafter,
we refer to the opposing parties simply as Dannenberg and the Board or the BPT.
9
wrongly denied parole for refusing to admit express-malice first degree murder
(see § 5011, subd. (b) (section 5011(b)) [in setting parole date, BPT may not
require admission of guilt to any crime]), and (2) there was no reliable, affirmative
evidence of his current dangerousness, so as to overcome the Board’s presumptive
duty, under subdivision (a) of section 3041, to set a date for release on parole.
The superior court issued an order to show cause. On May 8, 2001, after an
evidentiary hearing, the court granted relief. It found no basis for the Board’s
determination that Dannenberg was unsuitable, on grounds of public safety, for an
otherwise mandatory parole date.
The court reasoned as follows: Dannenberg had no criminal history and
had shown remorse for his wife’s death. His prison record and post-release plans
were exemplary. Prison psychologists found no mental or emotional disorder, and
there was no evidence he needed therapy. Nor could unsuitability be based on the
nature of the commitment offense itself, because there was no evidence that
Dannenberg’s crime was callous and cruel, or indifferent to human suffering,
beyond any and all second degree murders. Finally, the Board’s reliance on
Dannenberg’s failure to accept full responsibility for his crime violated section
5011(b).
The court ordered the Board to conduct a new parole hearing no later than
August 17, 2000. The court “anticipate[d]” that, at this hearing, the Board would
set a parole date absent changed circumstances or evidence not previously
presented. Referring to the Board’s “matrices” of “base terms” for second degree
murderers, the court concluded that the circumstances of Dannenberg’s crime
indicated a parole date of 17, 18, or 19 years after the date of the commitment
10
offense (May 15, 1985).4 With allowance for applicable conduct credits, the court
calculated this date as February 15, 1998.
The Court of Appeal for the First Appellate District, Division Three,
affirmed in part and reversed in part. Applying its own intervening decision in
In re Ramirez (2001) 94 Cal.App.4th 549 (Ramirez), the Court of Appeal reasoned
as follows: The principle of the determinate sentencing law (DSL) that similar
crimes should receive similar terms, followed by a period of parole, applies to
indeterminate life prisoners, including murderers, by virtue of section 3041,
subdivision (a). This statute commands that life prisoners “shall normally” receive
parole release dates, calculated to provide sentence uniformity for offenses of
similar gravity and magnitude. Hence, when determining a life prisoner’s parole
suitability, the Board must first compare his or her crime against other similar
offenses of the same class, taking into account the minimum term to which the
inmate was sentenced. The Board may not continue to find an inmate unsuitable
under section 3041, subdivision (b), without considering whether the term he or
she is serving is disproportionate to the seriousness of the commitment offense,
and to the terms served for other similar crimes. The commitment offense will
justify a finding of unsuitability only if it is particularly egregious by these
standards. The Board erred by failing to conduct such a comparative analysis
before finding Dannenberg unsuitable.
Like the superior court, the Court of Appeal concluded that there was no
evidence for the Board’s finding that Dannenberg needed therapy. The Court of
4
It is not clear why the superior court concluded that the parole release date
must be calculated from the date of the crime. This would make sense only if
Dannenberg was jailed that same day, and was held without bail, or failed to make
bail, pending his trial, conviction, and sentencing.
11
Appeal also agreed the Board could not penalize Dannenberg for insisting he did
not drown his wife. In two respects, however, the Court of Appeal ruled that the
superior court had improperly analyzed the Board’s “primary reason” for denying
parole, the gravity of the commitment offense: First, the lower court wrongly
concluded that, because all murders are committed with malice, a second degree
murderer cannot be denied parole on grounds his or her crime was exceptionally
callous and cruel. Second, the court below improperly reweighed the evidence to
direct the Board to reach a particular result on remand. On the contrary, the Court
of Appeal held, the Board must be allowed to reconsider Dannenberg’s suitability
for parole under proper standards.
The Board sought review, urging that under section 3041, it may defer any
consideration of term proportionality or uniformity until after it determines that a
life inmate is suitable for parole. We granted review, limited to the following
question: “At a parole suitability hearing . . . pursuant to . . . section 3041, must
the Board . . . generally engage in a comparative proportionality analysis with
respect to offenses of similar gravity and magnitude and consider base term
matrices used by the Board in setting release dates[,] and deny a parole date solely
on the basis of the circumstances of the offense only when the offense is
particularly egregious, or may the Board first determine whether the inmate is
suitable for parole because he or she is no longer a threat to public safety and
engage in a proportionality analysis only if it finds the inmate suitable for parole?”
We turn to that question.5
5
We acknowledge the assistance provided in this regard by amicus curiae
briefs of the California District Attorneys Association, in support of the People,
and inmates Neil Darrow and Nathan J. Ellis, in support of Dannenberg.
12
DISCUSSION
For decades before 1977, California employed an “indeterminate”
sentencing system for felonies. The court imposed a statutory sentence expressed
as a range between a minimum and maximum period of confinement—often life
imprisonment—the offender must serve. An inmate’s actual period of
incarceration within this range was under the exclusive control of the parole
authority, which focused primarily, not on the appropriate punishment for the
original offense, but on the offender’s progress toward rehabilitation. During most
of this period, parole dates were not set, and prisoners had no idea when their
confinement would end, until the moment the parole authority decided they were
ready for release. (See People v. Jefferson (1999) 21 Cal.4th 86, 94-95
(Jefferson); Cassou & Taugher, Determinate Sentencing in California: The New
Numbers Game (1978) 9 Pacific L.J. 5, 6-16 (Cassou & Taugher).)
The DSL, adopted in 1976, largely abandoned this system. The DSL
implemented the Legislature’s finding that “the purpose of imprisonment for crime
is punishment,” a goal “best served by terms proportionate to the seriousness of
the offense,” with provision for sentence “uniform[ity]” for similar offenses.
(§ 1170, subd. (a)(1).)
Under the DSL, most felonies are now subject, in the alternative, to three
precise terms of years (for example, two, three, or four years, or three, five, or
seven years). The court selects one of these alternatives (the lower, middle, or
upper term) when imposing the sentence. (§ 1170, subds. (a)(3), (b); see
Jefferson, supra, 21 Cal.4th 86, 95.) The offender must serve this entire term, less
applicable sentence credits, within prison walls, but then must be released for a
further period of supervised parole. (§ 3000, subd. (b); see Cassou & Taugher,
supra, 9 Pacific L.J. 5, 26.)
13
However, certain serious offenders, including “noncapital” murderers (i.e.,
those murderers not punishable by death or life without parole), remain subject to
indeterminate sentences. These indeterminate sentencees may serve up to life in
prison, but they become eligible for parole consideration after serving minimum
terms of confinement. (See Jefferson, supra, 21 Cal.4th 86, 92-93.) As under
prior law, life inmates’ actual confinement periods within the statutory range are
decided by an executive parole agency. This agency, an arm of the Department of
Corrections, is now known as the BPT. (See § 3040.)
Section 3041 addresses how the Board is to make parole decisions for
indeterminate life inmates. Subdivision (a) provides that, one year before the
prisoner’s minimum eligible parole date, a Board panel shall meet with the inmate,
“shall normally set a parole release date,” and shall do so “in a manner that will
provide uniform terms for offenses of similar gravity and magnitude in respect to
their threat to the public.” The release date also must “comply with the sentencing
rules that the Judicial Council may issue and any sentencing information relevant
to the setting of parole release dates.” The Board must “establish criteria for the
setting of parole release dates and in doing so shall consider the number of victims
of the crime . . . and other factors in mitigation or aggravation of the crime.”
In response to these requirements, the Board has adopted regulations
covering the various categories of indeterminate life inmates. One set of these
regulations applies specifically to noncapital murderers who committed their
crimes on or after November 8, 1978. (Cal. Code Regs., tit. 15, § 2400 et seq.)6 If
6
When the DSL was originally enacted, it provided, as had immediately
prior law, that the punishment for a first degree murder, other than one punishable
by death or life without parole, was a term of “straight life” (seven years
minimum); the DSL also newly provided that the punishment for second degree
murder, previously five years to life, would be a determinate term of five, six, or
(Footnote continued on next page.)
14
such a murderer is found suitable to have a parole release date set under section
3041, subdivision (a), the regulations specify that the inmate’s release date is to be
set by calculating a “base term.” (Cal. Code Regs., tit. 15, § 2403(a).) The first
step in the calculation is to determine where the particular murder fits, in terms of
its relative seriousness, on a bi-axial “matrix” of factual variables. (Ibid.) The
matrix specifies lower, middle, and upper “base terms” for each matrix category.
For second degree murderers, serving statutory sentences of 15 years to life, these
“base terms” range from 15, 16, or 17 years for the least serious matrix category to
19, 20, or 21 years for the most serious. (Id., § 2403(c).)
Once the proper matrix category is selected, the Board must impose the
middle term unless it finds aggravating or mitigating circumstances not accounted
for in the matrix. (Cal. Code Regs., tit. 15, § 2403(a).) If the Board finds
mitigating circumstances, it “shall impose the lower base term or another term
shorter than the middle base term” (id., § 2405(a)); if it finds aggravating
circumstances, it “may impose the upper base term or another term longer than the
middle base term” (id., § 2404(a)).7
(Footnote continued from previous page.)
seven years. (Former § 190, as amended by Stats. 1976, ch. 1139, § 133, p. 5098;
compare Stats. 1976, ch. 1124, § 1, p. 5028, and Stats. 1973, ch. 719, § 1,
pp. 1297-1298.) The Legislature later increased the penalty for second degree
murder to five, seven, or eleven years. (Former § 190, as amended by Stats. 1978,
ch. 579, § 2, p. 1981.) However, under section 2 of Proposition 7, an initiative
measure adopted at the General Election of November 7, 1978, the penalty for
noncapital first degree murder was increased to 25 years to life, and the penalty for
second degree murder was increased to 15 years to life. (See current § 190,
subd. (a).) The initiative measure became effective the following day.
7
Though Dannenberg suggests otherwise, it is not clear that the regulations
allow the Board to fix a release date above the upper term or below the lower term
set forth in the matrix.
15
However, subdivision (b) of section 3041 specifies the circumstances under
which a date for an indeterminate life inmate’s release on parole need not be fixed.
Subdivision (b) provides that a parole release date shall be set “unless [the Board]
determines” that the inmate is presently unsuitable for the fixing of a parole date,
i.e., that “the gravity of the current convicted offense or offenses, or the timing and
gravity of current or past convicted offense or offenses, is such that consideration
of the public safety requires a more lengthy period of incarceration for this
individual, and that a parole date, therefore, cannot be fixed at this meeting.”
(Italics added.)
The regulations governing murderers serving indeterminate life sentences
have long provided that determination of an individual inmate’s suitability for
parole under section 3041, subdivision (b) must precede any effort to set a parole
release date under the uniform-term principles of section 3041, subdivision (a).
As currently worded, the regulations specify that “[t]he panel shall first determine
whether the life prisoner is suitable for release on parole. Regardless of the length
of time served, a life prisoner shall be found unsuitable for and denied parole if in
the judgment of the panel the prisoner will pose an unreasonable risk of danger to
society if released from prison.” (Cal. Code Regs., tit. 15, § 2402(a), italics
added.)
Under this policy, if the circumstances of a particular murder persuade the
Board that the prisoner who committed it is presently too dangerous to grant a
fixed parole release date, the Board may deny parole without deciding when the
inmate will be released, and without considering how the prisoner’s actual period
of confinement may compare with those served by others who committed similar
crimes.
The regulations do set detailed standards and criteria for determining
whether a murderer with an indeterminate life sentence is suitable for parole.
16
(Cal. Code Regs., tit. 15, § 2402(b)-(d).) Among the specified circumstances of
the commitment offense that “tend to indicate unsuitability for release” are that
“[t]he prisoner committed the offense in an especially heinous, atrocious, or cruel
manner.” (Id., § 2402(c)(1).) Factors to be considered in this regard include that
“[t]he offense was carried out in a manner which demonstrates an exceptionally
callous disregard for human suffering” (id., § 2402(c)(1)(D)) and that “[t]he
motive for the crime is inexplicable or very trivial in relation to the offense” (id.,
§ 2402(c)(1)(E)).
This procedure, in which the suitability determination precedes any effort
to calculate a parole release date, has long been noted in the case law. Both we
and the Courts of Appeal have consistently described the parole process for
indeterminate life prisoners as one in which suitability for parole is within the
Board’s informed discretion, and must first be found before a parole date is set.
(In re Stanworth (1982) 33 Cal.3d 176, 183 [under both pre-1976 and post-1976
rules, suitability determination precedes setting of parole date]; In re Duarte
(1983) 143 Cal.App.3d 943, 948 [under section 3041, “the Legislature left a
‘consideration of the public safety’ as the fundamental criterion in assessing
suitability”]; see also In re Caswell (2001) 92 Cal.App.4th 1017, 1026 [Board has
“exclusive authority” to determine suitability; while Board “normally” sets a
release date, “[p]arole must be denied . . . if the panel in its discretion determines
that the prisoner would pose an unreasonable risk or danger to society if
released”]; In re Seabock (1983) 140 Cal.App.3d 29, 38 [while Legislature’s
“primary command” is that Board “shall” set a release date, the exception to that
mandate “is one solely within the discretionary power of the Board”].)
Nonetheless, the instant Court of Appeal, adhering to its own recent
decision in Ramirez, supra, 94 Cal.App.4th 549, concluded that the Board errs by
considering term uniformity only after its case-specific review persuades it that the
17
indeterminate life inmate is safe for release on parole. In the Court of Appeal’s
view, reconciliation of subdivisions (a) and (b) of section 3041 requires that
subdivision (a) receive precedence. Thus, the Court of Appeal concluded, when
addressing the issue of parole for a murderer serving a life-maximum term, the
Board (1) must first compare the inmate’s actual period of confinement with the
minimum statutory confinement for the offense, and with the actual confinements
served by others who have committed similar crimes, (2) must thereupon set a
firm, “uniform” release date unless it finds the public-safety exception applicable,
and (3) may not deny parole, on grounds the commitment offense reflects a
continuing threat to public safety, unless the offense is particularly egregious in
comparison to others.
Dannenberg, and the dissenting opinion in this court, echo this view. They
suggest, in effect, that the Board must schedule an indeterminate life inmate’s
release on parole, within the parameters of uniform terms for similar offenses,
unless it finds the callousness and brutality of a particular inmate’s offense, and/or
other indicia of his dangerousness, so extreme that the case falls outside the “base
term” formulas set forth in the regulations.
The tension between the commands in subdivisions (a) and (b) of section
3041 has been noted since the inception of the DSL. (See Cassou & Taugher,
supra, 9 Pacific L.J. 5, 86-87.) Nonetheless, we conclude that the Court of
Appeal, Dannenberg, and the dissent have misperceived the priorities reflected in
section 3041 and other statutes governing parole.
“In construing a statute, ‘ “we strive to ascertain and effectuate the
Legislature’s intent.” [Citations.] Because statutory language “generally
provide[s] the most reliable indicator” of that intent [citations], we turn to the
words themselves, giving them their “usual and ordinary meanings” and
construing them in context . . . .’ (People v. Castenada (2000) 23 Cal.4th 743,
18
746-747.) ‘If the language contains no ambiguity, we presume the Legislature
meant what it said, and the plain meaning of the statute governs.’ (People v.
Robles (2000) 23 Cal.4th 1106, 1111.) If, however, the statutory language is
susceptible of more than one reasonable construction, we can look to legislative
history (ibid.) and to rules or maxims of construction (Mejia v. Reed (2003)
31 Cal.4th 657, 663 [(Mejia)]). ‘. . . [T]he court may [also] consider the impact of
an interpretation on public policy, for “[w]here uncertainty exists consideration
should be given to the consequences that will flow from a particular
interpretation.” ’ (Ibid., quoting Dyna-Med, Inc. v. Fair Employment & Housing
Com. (1987) 43 Cal.3d 1379, 1387 [(Dyna-Med)].)” (People v. Smith (2004)
32 Cal.4th 792, 797-798.)
In our effort to divine what the Legislature intended, we may consider not
only its internal written expressions of the bill’s meaning and purpose, but also
“ ‘the wider historical circumstances of [the bill’s] enactment.’ ” (Mejia, supra,
31 Cal.4th 657, 663, quoting Dyna-Med, supra, 43 Cal.3d 1379, 1387.) When
interpreting parole legislation in particular, we regard the traditional understanding
that, once the Board has considered all relevant information and criteria, its
authority over parole decisions is extremely broad. Indeed, the “ ‘[Board’s]
discretion in parole matters has been described as “great” [citation] and “almost
unlimited” [citation].’ ” (In re Rosenkrantz (2002) 29 Cal.4th 616, 655
(Rosenkrantz), quoting In re Powell (1988) 45 Cal.3d 894, 902.)
Finally, while we take ultimate responsibility for the interpretation of a
statute, we accord significant weight and respect to the longstanding construction
of a law by the agency charged with its enforcement. (E.g., Sharon S. v. Superior
Court (2003) 31 Cal.4th 417, 436; Yamaha Corp. of America v. State Bd. of
Equalization (1998) 19 Cal.4th 1, 12.) This is particularly true when the
Legislature, presumably aware of the established administrative construction, has
19
implied its acquiescence therein by amending the governing statute in ways that
do not disturb the agency’s policy. (E.g., Yamaha Corp. of America v. State Bd. of
Equalization (1999) 73 Cal.App.4th 338, 353; Thornton v. Carlson (1992)
4 Cal.App.4th 1249, 1257.)
Applying these principles, we first note the obvious. The words of section
3041 strongly suggest that the public-safety provision of subdivision (b) takes
precedence over the “uniform terms” principle of subdivision (a). The statute
expressly provides that the fixing of a “uniform” parole release date shall occur
unless the Board finds the indeterminate life inmate unsuitable on grounds of
“public safety.”
Subdivision (b) of section 3041 states that the determination of suitability
shall be based upon “the gravity of the current convicted offense . . . or the timing
and gravity of current or past convicted offense or offenses.” But subdivision (b)
does not say that, in making this evaluation, the Board must compare the inmate’s
actual period of confinement with others serving life terms for similar crimes, or
that it must consider term uniformity in any respect. Indeed, subdivision (b)
indicates otherwise by providing that the suitability determination should focus
upon the public safety risk posed by “this individual.” (Ibid.) The language and
structure of section 3041 thus most logically convey that the Board need engage in
comparative term analysis only if it first determines, applying the pertinent criteria,
that the inmate presents no public safety danger, and is thus suitable for parole.
Dannenberg, like the Court of Appeal, stresses that the “uniform terms”
language in section 3041, subdivision (a), parallels the fundamental premise of
determinate sentencing expressed in section 1170, subdivision (a)(1), i.e., that “the
purpose of imprisonment for crime is punishment,” which purpose is “best served
by terms proportionate to the seriousness of the offense with provision for
uniformity in the sentences of offenders committing the same offense under
20
similar circumstances.” Thus, it is asserted, the Legislature has imported into the
realm of indeterminate life sentences the philosophy of a fixed and uniform period
of incarceration, intended simply as punishment proportionate to the commitment
offense, and the Board has a presumptive obligation to set life inmates’ parole
release dates accordingly.
The Legislature clearly intended to apply some determinate sentencing
principles to life-maximum inmates. (See generally Jefferson, supra, 21 Cal.4th
86, 95-96.) But the analogy is not complete. For most offenders, the DSL
requires fixed and uniform terms, set by the court at the time of conviction, and
followed by mandatory release on parole. The purpose of prison confinement for
such offenders is simply proportionate punishment for similar crimes.
But for certain serious criminals, including noncapital murderers, the
Legislature has retained sentences of imprisonment for life, subject to the
possibility of sooner release on parole. The decision about when, if ever, each
such inmate’s prison confinement will actually end, and the period of parole, if
any, will actually begin, remains in the hands of the correctional authority, and is
deferred until the inmate has already served a minimum required period of prison
confinement.
When the time comes to evaluate the individual life inmate’s suitability for
release on parole, the BPT is authorized—indeed, required—to eschew term
uniformity, based simply on similar punishment for similar crimes, in the interest
of public safety in the particular case. Under this “hybrid” sentencing scheme
(Cassou & Taugher, supra, 9 Pacific L.J. 5, 86), an inmate whose offense was so
serious as to warrant, at the outset, a maximum term of life in prison, may be
denied parole during whatever time the Board deems required for “this individual”
by “consideration of the public safety.” (§ 3041, subd. (b), italics added.)
21
So long as the Board’s finding of unsuitability flows from pertinent criteria,
and is supported by “some evidence” in the record before the Board (Rosenkrantz,
supra, 29 Cal.4th 616, 658), the overriding statutory concern for public safety in
the individual case trumps any expectancy the indeterminate life inmate may have
in a term of comparative equality with those served by other similar offenders.
Section 3041 does not require the Board to schedule such an inmate’s release
when it reasonably believes the gravity of the commitment offense indicates a
continuing danger to the public, simply to ensure that the length of the inmate’s
confinement will not exceed that of others who committed similar crimes.
Our conclusion in this regard is confirmed when we read the language of
section 3041 in its statutory context. Other provisions governing parole decisions
for indeterminate life prisoners—adopted both before and after enactment of
section 3041—buttress the notion that the determination of suitability for parole
involves a paramount assessment of the public safety risk posed by the particular
offender, without regard to a comparative analysis of similar offenses committed
by other persons.
Thus, the statutes have long required that notice of a parole hearing be
given to local officials connected to the inmate’s conviction, including the judge
who tried the matter, the prosecuting district attorney, the inmate’s trial attorney,
and the investigating law enforcement agency. (§ 3042, subd. (a).) The judge
may forward to the Board any unprivileged material from the inmate’s trial or
sentencing proceeding “that is pertinent to the question . . . whether the . . .
[B]oard should grant parole.” (Id., subd. (f)(2).) The Board must consider the
statements and recommendations submitted by these officials, and must “enter on
its order granting or denying parole . . . that [such] statements and
recommendations have been considered by it.” (§ 3046, subd. (c); see also
§ 3042, subd. (f)(3).)
22
Under section 3043, adopted by the voters as part of Proposition 8 at the
June 8, 1982, Primary Election, victims or their next of kin who have so requested
are entitled to be notified of a pending parole hearing, to appear, and “to
adequately and reasonably express [their] views concerning the crime and the
person responsible.” The Board must consider these statements, “and shall
include in its report a statement . . . whether the person would pose a threat to
public safety if released on parole.” (Ibid.)
Since enactment of section 3041, the Legislature has also adopted section
3043.5, the Condit-Nolan Public Participation in Parole Act of 1984. Under this
statute, “[a]ny person interested in the grant or denial of parole to any prisoner . . .
shall have the right to submit a statement of views in support of or in opposition to
the granting of parole. The [B]oard, in deciding whether to release the person on
parole, shall review all information received from the public to insure that the
gravity and timing of all current and past convicted offenses have been given
adequate consideration and to insure that the safety of the public has been
adequately considered. Upon completion of its review, the [B]oard shall include
in its report a statement that it has reviewed all information received from the
public and its conclusion as to whether the person would pose a threat to the
public safety if released on parole.” (§ 3043.5, subd. (b); see also § 3042,
subd. (f)(3).)
The obvious purpose of these statutes is to guarantee that the Board has
fully addressed the public safety implications of releasing each individual life-
maximum inmate on parole before it decides to do so. The statutory requirement
that public input on this subject be “considered” necessarily implies that it may be
influential, and even decisive in appropriate cases. None of the relevant laws
states or implies that the Board must, or may, discount the public safety concerns
voiced by interested persons unless the inmate’s crime is so exceptionally
23
egregious as to fall outside the Board’s “uniform terms” formulae. Indeed, the
Board cannot perform its “public input” and “public safety” obligations if it must
start by calculating formulaic “uniform” parole release dates, and is prohibited
from denying parole except to inmates whose crimes are demonstrably outside the
norm.
Similar considerations apply to another 1984 statute, section 3041.1, which
empowers the Governor to request review of any decision by a Board panel to
grant or deny parole to a life inmate. “The Governor shall state the reason or
reasons for the request, and whether the request is based on a public safety
concern, a concern that the gravity of current or past convicted offenses may have
been given inadequate consideration, or on other factors.” (Ibid.) When the
Governor makes such a request, the full Board, sitting en banc, must review the
decision, and “a vote in favor of parole by a majority of the current [B]oard
members shall be required to grant parole.” (Ibid.)
Under section 3041.1, the Governor’s right to request review of a grant of
parole is not limited to the most “egregious” cases, and he is not required to allege
or show that the commitment offense is “particularly egregious” by comparative
standards. Nonetheless, the full Board must accede to a gubernatorial request for
review en banc, and parole thereafter cannot be granted except upon a majority
vote of the entire Board.
Nothing in section 3041.1 suggests that the Board’s members must vote in
favor of parole unless the inmate’s offense is substantially more serious than most
others of the same class. Indeed, it would seriously undercut the Governor’s
unconditional statutory right to require a full Board majority decision if, despite a
public safety concern that had prompted the Governor to act, the Board was
required to rubber-stamp the hearing panel’s decision, and to affirm a release date
24
for a potentially dangerous life inmate, unless it found that the commitment
offense was “particularly egregious” by comparison to other similar offenses.
Measures adopted since the enactment of section 3041 give the Governor
even greater power over parole for murderers such as Dannenberg. At the
November 8, 1988, General Election, the voters adopted Proposition 89, which
added subdivision (b) to article V, section 8 of the California Constitution. Under
this provision, and its implementing legislation (§ 3041.2), the Governor, after
examining the record before the Board, and applying the same factors the Board is
required to consider, may affirm, modify, or reverse a Board order granting or
denying parole on a murder sentence.
All these laws emphasize that the first responsibility of the parole
authorities is to evaluate the suitability of an individual inmate for safe release,
and, in making that assessment, to take into account all pertinent information and
input about the particular case from the inmate’s victims, the officials familiar
with his or her criminal background, and other members of the public who have an
interest in the grant or denial of parole to this prisoner. This responsibility is
incompatible with the premise that the Board must look primarily to comparative
term length, to the Board’s own term matrices, or to the minimum statutory term
for the inmate’s offense, and cannot retain a dangerous life prisoner, as a public
safety risk, unless it finds he or she falls outside those rigid parameters.
Dannenberg, the Court of Appeal, and the dissenting members of this court
array themselves against our conclusion. They point out that subdivision (a) of
section 3041 says the Board “shall normally” fix a parole date, pursuant to
principles of term uniformity (italics added), and that subdivision (b) confirms the
Board “shall” do so “unless” it finds that public safety considerations prevent such
action in the particular case. This wording, it is asserted, makes clear that
“uniform” parole release, influenced in part by the distinct minimum term set by
25
statute for the inmate’s offense, is the mandatory “norm[ ]” (§ 3041, subd. (a))
while the refusal to set a parole release date must be reserved for cases which, in
comparative terms, are exceptional.
As Ramirez, supra, 94 Cal.App.4th 549 put it, “[t]he Board’s authority to
make an exception based on the gravity of a life term inmate’s current or past
offenses should not operate so as to swallow the rule that parole is ‘normally’ to
be granted. Otherwise, the Board’s case-by-case rulings would destroy the
proportionality contemplated by . . . section 3041, subdivision (a), and also by the
murder statutes, which provide distinct terms of life without possibility of parole,
25 years to life, and 15 years to life for various degrees and kinds of murder.
[Citation.]” (Id. at p. 570; see also Rosenkrantz, supra, 29 Cal.4th 616, 683.) In
our view, this interpretation far overstates the meaning of the statute’s words.
The word “shall” in a statute is generally deemed mandatory (e.g., Common
Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443), but that presumption is
not conclusive. (E.g., People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183,
194 (Zamudio).) In section 3041, “shall” is not used in an absolute sense. Instead,
the word is qualified in subdivision (a) by “normally”—a word not susceptible to
precise application8—and is further limited in subdivision (b) by “unless,”
8
Webster’s Third New International Dictionary (2002 ed.) most pertinently
defines “normal” as “2: according to, constituting, or not deviating from an
established norm, rule, or principle” and “5: “relating to or conforming with long-
run expectations . . . ” (id., at p. 1540, col. 2), and “normally” as “1: in a normal
manner: to a normal degree” and “2: COMMONLY, USUALLY . . . : in normal
circumstances; under normal conditions” (id., cols. 2-3). The American Heritage
Dictionary (4th ed. 2000) most pertinently defines “normal” as “1. Conforming
with, adhering to, or constituting a norm, standard, pattern, level, or type; typical.”
(Id., at p. 1199, col. 2.)
26
followed by the rule that the Board should not set a release date if “consideration
of the public safety” requires lengthier incarceration for the particular inmate.
Thus, the statutory language belies the notion of a mandatory duty to set a
release date for all indeterminate life inmates, or for any particular such prisoner.
Indeed, our reading of section 3041 would be the same if the Legislature had
omitted the qualifying word “normally” from subdivision (a), and had simply
provided that the Board “shall” set a “uniform” parole release date “unless,”
pursuant to subdivision (b), it concludes that a longer period of confinement is
warranted for “this individual” by public safety concerns arising from the
circumstances of the prisoner’s commitment offense or criminal history. The most
natural and reasonable way to read either version is that subdivision (a) applies
only if subdivision (b) does not apply, and that the Board, before finding a life-
maximum prisoner unsuitable under subdivision (b), need not determine if
subdivision (a) might otherwise apply.
The word “normally,” as used in subdivision (a) of section 3041, may
denote a legislative assumption, or hope, that uniform release dates would be a
typical or common result for indetermine life inmates (see fn. 8, ante). But, as we
have seen, the Legislature provided an express “public safety” exception and
placed that determination within the Board’s broad discretion. Moreover, both the
Legislature and the voters have otherwise indicated, in multiple ways, their
abiding concern that the Board not schedule the release any life-maximum
prisoner who is still dangerous. A conclusion that section 3041, subdivision (a),
ever requires the Board to fix such a prisoner’s parole date, under principles of
term “uniform[ity],” despite the Board’s factually supported belief that the
27
particular circumstances of the inmate’s crime indicate a continuing public danger
would contravene this clear policy.9
The historical circumstances in which section 3041 was enacted further
illuminate the statute’s purpose and effect, including its use of the phrase “shall
normally set a parole release date.” (Id., subd. (a).) As indicated above, under the
pre-1977 sentencing regime, almost all convicted felons received indeterminate
terms, often with short minimums and life maximums. (Cassou & Taugher, supra,
9 Pacific L.J. 5, 6-9.) Within this broad range, the parole authority was given
virtually unbridled statutory power to “determine and redetermine, after the actual
commencement of the imprisonment, what length of time, if any, such person shall
be imprisoned” (former § 3020), and “to allow prisoners . . . to go upon parole
outside the prison walls and enclosures” (§ 3040). Over time, it became the parole
authority’s practice simply to defer term-length and parole-release decisions until
it “developed the feeling [in each individual case] that the prisoner was ‘ready to
go home.’ ” (Cassou & Taugher, supra, at p. 9.)
This system came into disfavor for many reasons. Not the least were
complaints that it (1) failed to fit the punishment to the crime and (2) gave inmates
no advance hope of a fixed date for release, thus actually promoting disciplinary
9
Our attention is called to Chief Justice Bird’s concurring and dissenting
opinion in People v. Allen (1986) 42 Cal.3d 1222. There, arguing that persons
sentenced to death are entitled, as a matter of equal protection, to comparative
sentence review, the author observed that both DSL sentencees (under former
subdivision (f)(1) of section 1170) and indeterminate life prisoners (under section
3401, subdivision (a)) received some form of such review, which “guarantee” had
been implemented, in the latter instance, by the Board’s parole regulations. (Allen,
supra, at p. 1295, fn. 5 (conc. & dis. opn. of Bird, C.J.).) The opinion was not
directly concerned with the interaction between subdivisions (a) and (b) of section
3041, and did not discuss that interplay. Hence, it has no persuasive force here.
28
problems within the prisons. Increasing disenchantment with the indeterminate
sentencing scheme led to the introduction of Senate Bill No. 42 (1975-1976 Reg.
Sess.) (Senate Bill No. 42), which, after a tortuous legislative process, became the
DSL. (Cassou & Taugher, supra, 9 Pacific L.J. 5, 6-13.)10
Contemporaneous court decisions and administrative developments,
addressing problems in the indeterminate sentencing law, further influenced the
final shape of Senate Bill No. 42. First, the Adult Authority (as the parole
authority was then known) acted on its own to meet some of the reformers’
criticisms. “In April [1975], Chairman’s Directive 75/20 was issued creating a
structure for setting parole dates based on listed ranges and factors. Following this
directive, numerous hearings were conducted to abolish the practice of deferring a
decision on parole and to establish fixed parole dates for almost all inmates.”
(Cassou & Taugher, supra, 9 Pacific L.J. 5, 14.)
Then the courts entered the arena. People v. Wingo (1975) 14 Cal.3d 169
(Wingo), held that, depending on the particular circumstances of the offense, a
life-maximum sentence for assault with force likely to produce great bodily injury
(§ 245, subd. (a)) might be so grossly disproportionate as to violate the cruel or
unusual punishment clause of the California Constitution. (Wingo, supra, at
pp. 175-180.) However, Wingo ruled, a constitutional challenge to the
10
Senate Bill No. 42 was passed by the 1976 Legislature, and was slated to
become operative on July 1, 1977. In its 1977 session, the Legislature enacted, as
an urgency matter, Assembly Bill No. 476 (1977-1978 Reg. Sess.), a so-called
cleanup measure that modified and adjusted numerous provisions of the original
law. (See Stats. 1977, ch. 165, §§ 1-100, pp. 639-680.) The “cleanup” bill also
became operative on July 1, 1977. Assembly Bill No. 476 made minor revisions
to section 3041 (see Stats. 1977, ch. 165, § 45, pp. 666-667), but no amendments
to that section, then or since, have altered the statute’s language in ways pertinent
to the issue before us.
29
proportionality of an individual indeterminate sentence should await the Adult
Authority’s fixing of an actual release date for the inmate. If such a date was
promptly set, Wingo concluded, proportionality would be measured by that date,
rather than the statutory maximum. (Id. at p. 183.)
In re Rodriguez (1975) 14 Cal.3d 639 (Rodriguez) expanded upon the
constitutional proportionality of sentences, and the Adult Authority’s term-fixing
responsibilities, under the indeterminate sentencing law. There, an inmate had
received the statutory sentence of one year to life for a single incident of lewd and
lascivious conduct upon a child under 14 (§ 288). The evidence indicated his
developmental disability was a prime factor in the offense. His prison conduct
was exemplary, and he exhibited no traits of inherent criminality. Yet he had been
in prison for 22 years without a decision by the Adult Authority about the length
of his term or his readiness for parole.
By an analysis parallel to that in Wingo, Rodriguez held that a life-
maximum sentence for lewd conduct could be constitutionally disproportionate to
an individual offender’s culpability. In the case at bar, said Rodriguez, the 22
years the inmate had already served was excessive. Moreover, Rodriguez
reasoned, because of the general problem of “as applied” disproportionality under
the indeterminate sentencing law, that law must be construed as requiring the
Adult Authority to set actual maximum terms for all inmates, proportionate to
their individual culpability. Rodriguez stressed that the Adult Authority’s
responsibility to fix an inmate’s maximum term, derived from former section
3020, was distinct from its power under section 3040 to decide if and when the
prisoner was ready for conditional release. Thus, Rodriguez concluded, the inmate
who had made good progress in prison could be granted parole before the end of
his maximum term, as fixed by the Adult Authority, but in any event must be
30
released upon expiration of that maximum term. (Rodriguez, supra, 14 Cal.3d
639, 646-653.)
Finally, in January 1976, In re Stanley (1976) 54 Cal.App.3d 1030 held that
the 1975 Adult Authority regulations, Chairman’s Directive 75/20, were invalid
because they based the parole release dates for indeterminate sentencees
“primarily upon the nature of the principle commitment offense, supplemented by
mathematical increments for additional precommitment offenses.” (Stanley,
supra, at p. 1038.) This approach, the Court of Appeal said, violated the Adult
Authority’s duty to consider all factors relevant to the inmate’s suitability for
parole. Citing In re Minnis (1972) 7 Cal.3d 639, the Court of Appeal indicated
that, under the pre-1977 indeterminate sentencing law, these factors prominently
included the inmate’s post-commitment conduct and his progress toward
rehabilitation. (Stanley, supra, at pp. 1039-1041.)
Adoption of the DSL, with its fixed statutory terms followed by mandatory
parole, resolved many of these issues with regard to the majority of felons. But
the problem of parole and term-setting standards remained for those serious
offenders who, under the DSL, would retain indeterminate life-maximum
sentences. Section 3041 sought “for the first time [to establish] specific
procedures . . . for parole consideration” for these offenders. (Parnas & Salerno,
The Influence Behind, Substance and Impact of the New Determinate Sentencing
Law in California (1978) 11 U.C. Davis L.Rev. 29, 33.)
In section 3041, the Legislature partially combined the term-setting and
parole functions Rodriguez had described as separate under prior law. Under
subdivision (a), firm parole release dates, fixed in advance under principles of
uniform incarceration for similar offenses, would define the actual terms of
imprisonment for eligible life prisoners. (See Jefferson, supra, 21 Cal.4th 86, 95-
96.) But subdivision (b) of the statute made clear that the parole authority would
31
have the express power and duty, in an individual case, to postpone the fixing of a
firm release date, and thus to continue the inmate’s indeterminate status within his
or her life-maximum sentence, if it found that the circumstances of the prisoner’s
crime or criminal history presented a continuing risk to public safety. As
explained above, nothing in section 3041, then or now, says the Board must
compare the offender’s crime with others before making that determination, and
other parole statutes establish the paramount concern for public safety in each life
prisoner’s case.11
Our interpretation of section 3041 comports with the Board’s own
longstanding construction of the statute. As indicated above, the Board’s
Regulations specify that, when considering parole for a particular indeterminate
11
The drafting progress and written legislative history of section 3041 do not
undermine our construction. As originally introduced on December 2, 1974,
Senate Bill No. 42 simply proposed technical amendments to section 1168, the
basic indeterminate sentencing law. As amended by the Senate on March 17,
1975, the bill took new form as a determinate sentencing scheme. In this version,
section 3041 provided that an indeterminate sentencee would meet with a parole
panel one year before the minimum eligible parole date, at which time the panel
“shall normally” set a release date, but that the panel “may decline” to set a date if
the inmate’s offense or criminal history presented public safety risks, or if the
inmate’s mental incompetence prevented such action. (Sen. Amend. to Sen. Bill
No. 42 (Mar. 17, 1975), § 281.) An Assembly amendment of August 7, 1975,
altered section 3041 to near its current version, replacing the “may decline”
language with a provision that a release date “shall [be] set . . . unless” the parole
panel finds that the inmate’s offense or criminal history are such that consideration
of the public safety requires longer incarceration. The August 7, 1975,
amendment also added the current requirement that release dates be set under
principles of uniformity, pursuant to formal sentencing criteria, and eliminated
mental incompetence as a ground for denying parole. (Assem. Amend. to Sen.
Bill No. 42 (Aug. 7, 1975), § 281.) We see no substantive difference between the
original draft’s provision that the parole authority “may decline,” for specified
reasons, to set a release date, and the current provision that the parole authority
shall set a date “unless” specified reasons preclude that action.
32
life inmate, the Board shall first determine suitability and shall set a base term
(thus establishing a parole release date) if the prisoner is deemed suitable for
parole. (Cal. Code Regs., tit. 15, §§ 2402(a), 2403(a); see also id., §§ 2422(a),
2423(a), 2432(a), 2433(a).) The regulations specify numerous factors the Board is
to consider in determining whether the prisoner is suitable—i.e., safe—for parole,
including the nature of the commitment offense and the offender’s criminal
history. However, they nowhere indicate that the Board must determine an
individual inmate’s suitability by reference to other offenders of the same class, or
to the minimum statutory term for the inmate’s offense. (Id., § 2402(b)-(d); see
also id., §§ 2422(b)-(d), 2432(b)-(d).)
In more than 25 years, despite numerous amendments to California’s
sentencing and parole laws, the Legislature has not disturbed the Board’s
interpretation of section 3041 in this fundamental regard. Under the particular
circumstances, we find persuasive evidence that the Legislature has thus
acquiesced in the Board’s construction.
In 2001, the Legislature indicated its close attention to issues raised by this
statute when it adopted substantial amendments to section 3041. Senate Bill No.
778 (2001-2002 Reg. Sess.) (Senate Bill No. 778), sponsored by Senator Burton,
added subdivision (d) to section 3041, and modified subdivision (b). (Stats. 2001,
ch. 131, § 2.) New subdivision (d) sought to help the Board clear up a backlog of
inmates awaiting parole hearings by providing, for an emergency period ending
December 31, 2003, that hearing panels could consist of only two persons, with
only one “full” parole commissioner participating.12
12
Subdivision (a) of section 3041 otherwise provides that panels must consist
only of “full” or “deputy” commissioners, with at least two “full” commissioners
on each panel.
33
Senate Bill No. 778 also altered subdivision (b) of section 3041—a
subdivision directly at issue in this case. Then, as now, section 3041, subdivision
(a) provided in part that “[a]ny person on the hearing panel may request review of
any decision regarding parole to the full [B]oard for an en banc hearing. In case of
a review, a majority vote of the full [Board] in favor of parole is required to grant
parole to any prisoner.” Without altering subdivision (a), the bill added language
to subdivision (b) to provide that (1) a panel decision finding an inmate suitable
for parole is final unless overturned by the full Board within 120 days, and
(2) such a panel decision may not be overturned and ordered reheard by the full
Board except (a) after consultation with the commissioners who participated in the
panel decision, (b) by a majority vote, taken after a public hearing, and (c) upon
findings that the panel committed material errors of law or fact, or because of
material new information bearing on the inmate’s suitability.
The legislative history of Senate Bill No. 778 indicates that new
subdivision (d) was inspired by anecdotal information that the backlog of inmates
with overdue hearings had grown to 2,000, causing more than one-year delays in
individual hearings, with the result that inmates with so-called one-year denials
were waiting two years for their next parole hearings. (See, e.g., Assem. Com. on
Pub. Safety, analysis of Sen. Bill No. 778 (2001-2002 Reg. Sess.) as amended
June 21, 2001, p. 5; Assem. Com. on Appropriations, analysis of Sen. Bill No. 778
(2001-2002 Reg. Sess.) as amended June 21, 2001, p. 2.)
The amendment to subdivision (b), according to Senator Burton, was
prompted by “[a]necdotal information . . . that [the Board] is referring
favorable parole suitability decisions for re-hearing by a parole hearing panel
other than the panel that determined parole suitability. This is being done
without consulting the commissioners who decided that the inmate was
suitable for parole. [While] [the Board] does have guidelines for review of a
34
parole decision by the entire Board, . . . this process is being by-passed by the
re-hearing process.” (Assem. Com. on Pub. Safety, analysis of Sen. Bill No.
778 (2001-2002 Reg. Sess.) as amended June 21, 2001, p. 6; Assem. Com. on
Appropriations, analysis of Sen. Bill No. 778 (2001-2002 Reg. Sess.) as
amended June 21, 2001, p. 4.)
Thus, the Legislature recently examined the process by which parole
hearings were conducted and reviewed, and it altered that process for the apparent
purpose of providing additional protection to indeterminate life inmates who were
overdue for hearings, or who have received favorable suitability determinations.
Despite its concern in these areas, however, the Legislature did nothing to
countermand the Board’s regulations to the effect that (1) an inmate must be found
suitable before a release date is set and (2) a hearing panel may find an inmate
unsuitable for parole, as a public safety risk, without comparing his offense, or his
resulting period of confinement, to other cases. On the contrary, the 2001
amendment to subdivision (b) appears to assume that mode of procedure.13
Mere inaction is not conclusive evidence that the Legislature agrees with
long-standing administrative and judicial construction of a statute. But given the
Legislature’s recent attention to closely related subjects, we believe that its failure
to intervene against the well-established Board policy at issue here is a significant
indicator that we have properly divined the legislative intent. (See, e.g., People v.
13
Senate Bill No. 778 was signed into law on July 30, 2001, and became
effective immediately. As indicated above, all available appellate authority then
confirmed that, under section 3041, a finding of individual suitability must
precede the setting of a “uniform” parole release date. Ramirez, supra,
94 Cal.App.4th 549, the first published appellate case to cast doubt on this
premise, was not decided until more than four months later, on December 12,
2001. Hence, there can be no claim that the Legislature approved, or acquiesced
in, Ramirez’s interpretation of section 3041.
35
Martinez (1995) 11 Cal.4th 434, 445-446; Robinson v. Fair Employment &
Housing Com. (1992) 2 Cal.4th 226, 235, & fn. 7 [noting that the doctrine of
legislative acceptance of an administrative construction of a statute may be applied
where the agency construction “is one of such long standing that the Legislature
may be presumed to know of it”].)14
We also note the adverse public policy implications of accepting the Court
of Appeal’s interpretation. In the first place, by requiring intercase comparisons in
every parole matter, it would contribute significantly to backlogs like the one
Senate Bill No. 778 sought to alleviate. Such a process seems likely to convert
each proceeding into a comparative review of every proceeding.15
14
Dannenberg takes issue with the premise that the Board has consistently
interpreted section 3041 in this manner. He supplies, and cites, superseded 1977,
1978, and 1979 versions of the Board’s parole regulations for indeterminate life
prisoners. However, these documents belie his argument. Though the superseded
regulations are not worded identically to the current version, or to each other, they
advance the consistent principle that a determination of suitability for parole,
based on public safety factors individual to the offense and offender, shall precede
any effort to set a release date under principles of uniformity. (See Cal. Code
Regs., tit. 15, Cal. Reg. Notice Register 77, No. 28, former §§ 2280-2283,
pp. 228-229; id., Register 78, No. 14, former §§ 2280-2283, pp. 230-230.1; id.,
Register 79, No. 24, former §§ 2280-2281, pp. 230.1-230.2.)
15
The Board’s uniform-term “matrices” are an effort to systematize such
comparisons to some degree. Still, the decision where every single inmate’s case
might fit on the appropriate matrix, and what aggravating and mitigating factors
might distinguish it from other cases in that matrix category, would require
considerable new effort and judgment from already overburdened hearing panels.
On a related subject, the dissent suggests that if the Board believes the 15-
to-21-year terms contemplated by the current “matrix” for second degree
murderers are too brief to protect public safety, it may amend the matrix. We
agree that the Board is free to take this step. But the Board’s acknowledged
authority in this regard does not detract from its statutory obligation to
independently assess the suitability of each individual parole candidate before
deciding to set a release date for that inmate.
36
Even more significantly, the Court of Appeal’s construction could force the
Board to schedule the release of inmates serving statutory life-maximum
sentences—penalties now reserved for serious offenders, including murderers—
despite the Board’s reasonable belief that the particular circumstances of their
commitment offenses indicated a continuing risk to the community at large. For
the multiple reasons set forth above, we are convinced the Legislature did not wish
section 3041 to operate in that way.
Though the dissent contends otherwise, our conclusion does not contravene
Rosenkrantz, supra, 29 Cal.4th 616. There we addressed the scope of the
Governor’s authority, under article V, section 8, subdivision (b) of the California
Constitution, to reverse the Board’s grant of parole to an inmate serving an
indeterminate life sentence for murder. Among other things, we stressed that,
although the Governor may make an independent decision on the record, he is
limited, in determining the inmate’s suitability for parole, to “the same
considerations that inform the Board’s decision.” (Rosenkrantz, supra, at p. 661.)
In that regard, we noted that “[t]he nature of the prisoner’s offense, alone,
can constitute a sufficient basis for denying parole. [Citations.]” (Rosenkrantz,
supra, 29 Cal.4th 616, 682.) While neither the Board nor the Governor may adopt
a blanket no-parole policy for particular offenses, we said, “the [parole] authority
properly may weigh heavily the degree of violence used and the amount of
viciousness shown by a defendant.” (Id., at p. 683.)
However, we cautioned, sole reliance on the commitment offense might, in
particular cases, violate section 3041, subdivision (a)’s provision that a parole date
“shall normally be set” under “uniform term” principles, and might thus also
contravene the inmate’s constitutionally protected expectation of parole. We
explained that such a violation could occur, “for example[,] where no
circumstances of the offense reasonably could be considered more aggravated or
37
violent than the minimum necessary to sustain a conviction for that offense.”
(Rosenkrantz, supra, 29 Cal.4th 616, 683.) Quoting Ramirez, supra,
94 Cal.App.4th 549, at page 570, we suggested that, in order to prevent the parole
authority’s case-by-case suitability determinations from swallowing the rule that
parole should “normally” be granted, an offense must be “particularly egregious”
to justify the denial of parole. (Rosenkrantz, supra, at p. 683.)
In the case at bar, we pointed out, the Governor had stressed
“circumstances of [the] petitioner’s offense . . . that involve particularly egregious
acts beyond the minimum necessary to sustain a conviction for second degree
murder. Accordingly, the Governor properly could consider the nature of the
offense in denying parole.” (Rosenkrantz, supra, 29 Cal.4th 616, 683.)
Rosenkrantz did not say the parole authority must routinely subordinate
suitability to uniformity, refer to its “base term” matrices, or otherwise engage in a
comparative analysis of similar offenses before deeming a particular life inmate
unsuitable, on grounds of public safety, to receive a parole date. Our discussion,
including our use of the phrase “particularly egregious,” conveyed only that the
violence or viciousness of the inmate’s crime must be more than minimally
necessary to convict him of the offense for which he is confined. (Rosenkrantz,
supra, 29 Cal.4th 616, 683.)
Here, as in Rosenkrantz, the parole authority pointed to circumstances of
the inmate’s offense suggesting viciousness beyond the minimum elements of
second degree murder. As the Board noted, Dannenberg reacted with extreme and
sustained violence to a domestic argument. He struck multiple blows to his wife’s
head with a pipe wrench. Bleeding profusely, she then “fell or was pushed” into a
bathtub full of water, where she drowned. Though he vehemently denied it, the
evidence permitted an inference that, while the victim was helpless from her
injuries, Dannenberg placed her head in the water, or at least left it there without
38
assisting her until she was dead. The parole panel’s questions to Dannenberg
showed its reasonable skepticism about his surmise that, while he was briefly
unconscious during their struggle, the victim crawled to the tub, placed her face
under the faucet, accidentally struck her head on the tap, and fell into the water.
Thus, there clearly was “some evidence” (Rosenkrantz, supra, 29 Cal.4th
616, 658) to support the Board’s determination that Dannenberg’s crime was
“especially callous and cruel,” showed “an exceptionally callous disregard for
human suffering,” and was disproportionate to the “trivial” provocation.
Accordingly, under Rosenkrantz, the Board could use the murder committed by
Dannenberg as a basis to find him unsuitable, for reasons of public safety, to
receive a firm parole release date.16
16
The dissent insists our construction of section 3041 ignores the
Legislature’s intended distinctions, for purposes of punishment, between first and
second degree murders, and among more and less aggravated murders within each
degree. Moreover, the dissent suggests we permit untethered, pro forma parole
denials that are insulated from effective judicial review, thus contravening
California life inmates’ due process rights to individualized parole consideration.
As we have explained, however, the Board must apply detailed standards
when evaluating whether an individual inmate is unsuitable for parole on public
safety grounds. (See § 3041, subd. (b); Cal.Code Regs., tit. 15, § 2402.) When
the Board bases unsuitability on the circumstances of the commitment offense, it
must cite “some evidence” of aggravating facts beyond the minimum elements of
that offense. (Rosenkrantz, supra, 29 Cal.4th 616, 658, 683.)
Here, the Board adhered to these limits. The parole panel conducted a
substantial hearing, giving its close attention to Dannenberg’s testimony in his
own behalf. The panel then clearly articulated its reasons, described above, for
concluding that the evidence indicated an “especially callous and cruel” murder.
There can be little doubt that the supportable inferences drawn by the panel
suggest callousness beyond the minimum elements of second degree murder.
As we have seen, the Board has always enjoyed broad parole discretion
with deferential judicial oversight. But these well-established principles do not
(Footnote continued on next page.)
39
Of course, even 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 commitment offense. Such excessive confinement, we have held, violates the
cruel or unusual punishment clause (art. I, § 17) of the California Constitution.
(Rodriguez, supra, 14 Cal.3d 639, 646-656; Wingo, supra, 14 Cal.3d 169, 175-
183.) Thus, we acknowledge, section 3041, subdivision (b) cannot authorize such
an inmate’s retention, even for reasons of public safety, beyond this constitutional
maximum period of confinement.
However—and though Dannenberg contends otherwise—we do not
believe, under the current statutory scheme, that such constitutional considerations
impose upon the Board a general obligation to fix actual maximum terms, tailored
to individual culpability, for indeterminate life inmates. Our prior ruling that the
parole authority had such a general duty was influenced by the nature and
provisions of the more comprehensive indeterminate sentencing system then in
effect.
As noted above, this prior scheme subjected most convicted felons to a
broad disparity between their statutory minimum and maximum periods of
(Footnote continued from previous page.)
deny due process. On the contrary, they define and limit the expectancy in parole
from a life sentence to which due process interests attach. (See fn. 19, post.)
Finally, the dissent wrongly insinuates that dangerous murderers sentenced
to indeterminate life terms are entitled to earlier release simply because their
convictions are in the second rather than the first degree. On the contrary, the
parole authority may credit evidence suggesting the inmate committed a greater
degree of the offense than his or her conviction evidences. (Rosenkrantz, supra,
29 Cal.4th 616, 678-679 [parole authority may credit evidence that one convicted
only of second degree murder acted with premeditation and deliberation].)
40
confinement, and it imposed life maximums for a wide range of offenses, serious
and less serious. Moreover, the statutory scheme vaguely empowered the parole
authority both to fix an inmate’s actual maximum term and to grant earlier parole.
Nonetheless, the authority had adopted the practice of deferring all such decisions
until it deemed the inmate ready for release. As a result, the possibility arose that
a large number of California prisoners were being exposed to excessive
punishment for their individual crimes—a situation the parole authority could
remedy in many cases simply by fixing maximum terms.
Accordingly, Wingo held that “cruel or unusual punishment” challenges to
individual indeterminate sentences should await the parole authority’s prompt
fixing of the actual maximum term in each case. (Wingo, supra, 14 Cal.3d 169,
183.) Rodriguez further ruled that the authority was required to set a maximum
term for every indeterminate sentencee, tailored to his or her individual
culpability. (Rodriguez, supra, 14 Cal.3d 639, 651-653.)
Different considerations apply under current law. In contrast with the prior
situation, the number of persons now serving indeterminate life-maximum
sentences, while substantial, is but a fraction of California’s prison population.
And, unlike the former system, which imposed life maximums for a broad range
of offenses, the current scheme reserves such sentences for a much narrower
category of serious crimes and offenders.17 Moreover, as we have explained,
17 (See, e.g., offenses listed in Jefferson, supra, 21 Cal.4th 86, 92-93, & fn. 2;
see also, e.g., §§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A) [felony conviction
with two or more prior serious or violent felony convictions; up to 25 or more
years to life]; § 667.51, subd. (d) [lewd and lascivious conduct upon child under
14 with two prior convictions for specified sex offenses; 15 years to life]; § 667.61
[specified sex offenses committed under specified aggravating circumstances; life
imprisonment with no parole eligibility for 15 or 25 years]; § 12022.53, subd. (d)
(Footnote continued on next page.)
41
section 3041 expressly instructs the Board to set an indeterminate life prisoner’s
parole release date—the equivalent of term-setting in such cases—unless it finds
that the aggravated nature of the inmate’s offense or criminal history raises public
safety considerations warranting longer incarceration for that inmate. All these
factors diminish the possibility that the Board’s refusal, under section 3041,
subdivision (b), to set parole release dates in individual cases will result in the de
facto imposition of constitutionally excessive punishment, or will overwhelm the
courts’ ability to assess claims of constitutional disproportionality.
As we indicated in Wingo, supra, 14 Cal.3d 169, “traditionally ‘[o]ne who
is legally convicted has no vested right to the determination of his sentence at less
than maximum’ [citation]. Moreover, ‘a defendant under an indeterminate
sentence has no “vested right” to have his sentence fixed at the term first
prescribed by the [parole authority] “or any other period less than the maximum
sentence provided by statute.” ’ [Citations.] ‘It has uniformly been held that the
indeterminate sentence is in legal effect a sentence for the maximum term’
[citation], subject only to the ameliorative power of the [parole authority] to set a
lesser term. [Citations.]” (Id. at p. 182.) Indeed, “ ‘[i]t is fundamental to [an]
indeterminate sentence law that every such sentence is for the [statutory]
maximum unless the [parole] [a]uthority acts to fix a shorter term. The [a]uthority
may act just as validly by considering the case and then declining to reduce the
term as by entering an order reducing it . . . .’ ” (Id. at pp. 182-183; see also
Rosenkrantz, supra, 29 Cal.4th 616, 655; In re Minnis, supra, 7 Cal.3d 639, 646.)
(Footnote continued from previous page.)
[personal and intentional infliction by firearm of death or great bodily injury in
commission of specified serious felonies; 25 years to life].)
42
As indicated, the current statute requires the Board to act in each case,
either by setting a parole release date, or by expressly declining to do so for
reasons of public safety. Constitutional rights are thus adequately protected by
holding that those indeterminate life prisoners who have been denied parole dates,
and who believe, because of the particular circumstances of their crimes, that their
confinements have become constitutionally excessive as a result, may bring their
claims directly to court by petitions for habeas corpus. Implementation of the
cruel or unusual punishment clause, as construed in Wingo and Rodriguez, does
not require the Board, under current law, to set premature release dates for current
life-maximum prisoners who, it believes, present public safety risks. Dannenberg
makes no direct claim that the approximately 18 years he has spent behind bars is
constitutionally disproportionate to his second degree murder.
We therefore hold that the Board proceeded lawfully when, without
comparing Dannenberg’s crime to other second degree murders, to its base term
matrices, or to the minimum statutory prison term for that offense, the Board
found him unsuitable to receive a fixed and “uniform” release date by pointing to
some evidence that the particular circumstances of his crime—circumstances
beyond the minimum elements of his conviction—indicated exceptional
callousness and cruelty with trivial provocation, and thus suggested he remains a
danger to public safety.18
18
Our conclusion that California’s parole statutes allow the Board to find
unsuitability without engaging in a comparative analysis of other offenses or
applying “uniform term” principles, and that the Board adhered to state law in
Dannenberg’s case, also disposes of his contention that he was denied federal due
process rights arising from his protected liberty interest, and expectation, in a
“uniform” parole release date. (See, e.g., Board of Pardons v. Allen (1987)
482 U.S. 369; Rosenkrantz, supra, 29 Cal.4th 616, 661.) As Dannenberg
concedes, he has such a liberty interest and expectation only to the extent that state
(Footnote continued on next page.)
43
In his brief on the merits in this court, Dannenberg has also urged that the
Board erred by basing its denial of parole, in part, on its conclusion that he “needs
to accept full responsibility for the crime . . . and discontinue his efforts to
minimize his responsibility for that.” The Board’s reference, as Dannenberg
notes, was apparently to his continued insistence that, while he struck his wife
repeated blows with the pipe wrench, thus setting in motion events that led to her
death, he did not directly cause or facilitate her drowning. By using his refusal to
admit he drowned his wife as a basis for denying parole, Dannenberg urges, the
Board violated section 5011(b), which provides that the Board “shall not require,
when setting parole dates, an admission of guilt to any crime for which an inmate
was committed.”19
(Footnote continued from previous page.)
law provides it. Aside from his argument that the Board’s decision lacked the
support of “some evidence”—a contention we have rejected—Dannenberg does
not contend he was denied any procedural rights he was constitutionally due in
the course of the Board’s decision. (Cf., e.g., In re Sturm (1974) 11 Cal.3d 258,
265-272; McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895, 903-912.)
19
The Board insists this issue has not been preserved for our consideration,
because Dannenberg did not raise it in his answer to the Board’s petition for
review (see Cal. Rules of Court, rule 28(a)(2)), and it is not fairly within the scope
of the issues set forth in our order granting review (id., rule 29(a)(1), (b)(1), (2)).
But we question whether Dannenberg was required to raise, in his answer, an issue
upon which he prevailed both in the superior court and in the Court of Appeal, and
which the Board—the losing party on the point in all courts below—did not
include in its petition for review. The Board had the opportunity to respond on the
merits to Dannenberg’s claim in its reply brief in this court, though it opted not to
do so. Moreover, we are reluctant to issue a straight reversal of the Court of
Appeal’s judgment—thus effectively reinstating the Board’s order denying
parole—without examining all bases upon which Dannenberg has claimed, both
here and below, that the Board’s order is defective. We therefore address
Dannenberg’s argument.
44
We need not consider the technical validity of Dannenberg’s argument, for
we conclude that any error by the Board in this respect was harmless. It appears
manifest that the Board’s reference to Dannenberg’s failure to take responsibility
was peripheral to its decision, and did not affect the outcome.
Thus, in its oral ruling in 1999, the parole panel made clear that the
“primary reason” for its denial ruling was the exceptionally callous and cruel
nature of the commitment offense itself. Indeed, it is not clear that the 1999
decision to deny parole at that time was premised to any extent on Dannenberg’s
failure to accept full responsibility for his role in his wife’s death.
In its 1999 ruling, the panel first denied parole, citing only the
circumstances of the commitment offense and Dannenberg’s need for further
therapy. Then, in a self-described “separate decision,” the panel further found it
was not reasonable to expect parole would be granted sooner than two years
hence. (See § 3041.5, subd. (b)(2)(A) [after denying parole, Board may schedule
next hearing two years later, rather than one, if it states, with supporting findings,
that it is unreasonable to expect parole would be granted during the following
year].) In support of this latter decision, the panel cited the nature of the offense,
Dannenberg’s need for further “programming” (apparently, therapy), and his
failure to accept full responsibility. The validity of the panel’s decision to defer a
new parole hearing for two years is not before us.
We may uphold the parole authority’s decision, despite a flaw in its
findings, if the authority has made clear it would have reached the same decision
even absent the error. (See Rosenkrantz, supra, 29 Cal.4th 616, 677, 682.) In our
view, the Board has done so here. Accordingly, we conclude that the instant
panel’s mistake, if any, does not invalidate its decision denying parole, and does
not preclude reinstatement of the Board’s order.
45
DISPOSITION
The Court of Appeal’s judgment is reversed. In re Ramirez, supra,
94 Cal.App.4th 549, is disapproved to the extent it conflicts with the views
expressed in this opinion.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
CHIN, J.
BROWN, J.
46
DISSENTING OPINION BY MORENO, J.
I dissent. Second degree murder, of which petitioner John E. Dannenberg
stands convicted, is by its very nature a serious crime. But as explained below, the
relevant statute mandates that people convicted of second degree murder be
considered for and normally granted parole. At the very least, the statute
mandates that the Board of Prison Terms (Board) not deny parole solely because
the prisoner has committed the murder. Yet the majority’s decision today would
permit the Board to do precisely that. And though the majority does so in the
name of public safety and individualized parole decisions, the majority opinion in
fact advances neither goal. Rather, the position the majority adopts requires the
judicial rubber stamping of the Board’s decisions, no matter how unfounded or
unjust they might be.
There is, as the majority notes, a tension between Penal Code section 3041,
subdivisions (a) and (b)1 (hereinafter section 3041(a) and section 3041(b)). But
“[t]he function of the court in construing a statute ‘is simply to ascertain and
declare what is in terms or in substance contained therein, not to insert what has
been omitted, or to omit what has been inserted; and where there are several
provisions or particulars, such a construction is, if possible, to be adopted as to
give effect to all.’ (Code Civ. Proc., § 1858.)” (Ventura County Deputy Sheriffs’
1
All statutory references are to the Penal Code unless otherwise indicated.
1
Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 492.) The majority fails to
perform this basic function, reaching its result by ignoring or discounting much of
section 3041(a).
Specifically, the majority concludes that section 3041(a)’s statement that
the Board “shall normally set a parole release date . . . in a manner that will
provide uniform terms for offenses of similar gravity and magnitude in respect to
their threat to the public” has no real meaning, and is nothing more than a
“legislative assumption, or hope, that uniform release dates would be a typical or
common result.” (Maj. opn., ante, at p. 27.) The majority accordingly holds, in
effect, that “normally” can mean “almost never” and the Board can disregard the
statutory mandate that parole dates be set proportionally in relation to the
magnitude of the offense. Instead, the majority advances the position that the
Board is governed by section 3041(b) to the exclusion of section 3041(a). Section
3041(b) provides, in pertinent part: “The panel or board shall set a release date
unless it determines that the gravity of the current convicted offense or offenses, or
the timing and gravity of current or past convicted offense or offenses, is such that
consideration of the public safety requires a more lengthy period of incarceration
for this individual, and that a parole date, therefore, cannot be fixed at this
meeting.” What the majority does not and cannot explain is why the Legislature
should go through the trouble of describing extensively a method of granting
parole that the Board “shall” carry out if this statute expresses very
uncharacteristically for a Legislature nothing more than a “hope.”
In addition to section 3041’s mandate to set uniform, proportional parole
release dates, the Legislature has established minimum terms before parole may be
granted, generally 15 years in the case of second degree murder and 25 years in
the case of noncapital first degree murder. (§ 190, subd. (a).) In so doing, the
Legislature has implicitly made the judgment that parole for the least serious
2
second degree murders should be set at that minimum term, and that parole for
more aggravated second degree murders should be set accordingly. But under the
majority’s position of following section 3041(b) without any reference to 3041(a),
the Board need not concern itself with the relative gravity of the underlying
offense. Thus, the Board appears free to erase the fundamental legislative
distinction between first and second degree murder, and to routinely compel the
person convicted of the latter to serve as much time as one convicted of the
former.
The Court of Appeal’s opinion below, and the opinion in In re Ramirez
(2001) 94 Cal.App.4th 549 (Ramirez), set forth the most sensible way to interpret
the statutory scheme that gives effect, as we must, to the entire statute. Because
section 3041(a) requires the Board to “normally” set parole dates for life prisoners,
and to establish a uniform, proportional scheme for parole setting that is protective
of public safety, section 3041(b) must be understood as providing an exception to
section 3041(a) in the “abnormal” circumstance when the gravity of the offense is
so aggravated that a parole date cannot be set pursuant to section 3041(a).
(Ramirez, supra, 94 Cal.App.4th at pp. 569-570.)
One thing that makes the majority opinion particularly perplexing is that we
recently endorsed this very position, which the majority now repudiates, in In re
Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz). As the Chief Justice, writing
for the court, stated: “In some circumstances, a denial of parole based upon the
nature of the offense alone might rise to the level of a due process violation for
example where no circumstances of the offense reasonably could be considered
more aggravated or violent than the minimum necessary to sustain a conviction for
that offense. Denial of parole under these circumstances would be inconsistent
with the statutory requirement that a parole date normally shall be set ‘in a manner
that will provide uniform terms for offenses of similar gravity and magnitude in
3
respect to their threat to the public. . . .’ (Pen. Code, § 3041, subd. (a).) ‘The
Board’s authority to make an exception [to the requirement of setting a parole
date] based on the gravity of a life term inmate’s current or past offenses should
not operate so as to swallow the rule that parole is ‘normally’ to be granted.
Otherwise, the Board’s case-by-case rulings would destroy the proportionality
contemplated by Penal Code section 3041, subdivision (a), and also by the murder
statutes, which provide distinct terms of life without possibility of parole, 25 years
to life, and 15 years to life for various degrees and kinds of murder. (Pen. Code, §
190 et seq.) [¶] Therefore, a life term offense or any other offenses underlying an
indeterminate sentence must be particularly egregious to justify the denial of a
parole date.’ (In re Ramirez, supra, 94 Cal.App.4th at p. 570.)” (Rosenkrantz,
supra, 29 Cal.4th at p. 683.)
The majority attempts to minimize the significance of Rosenkrantz. It
states: “Our discussion, including our use of the phrase ‘particularly egregious,’
conveyed only that the violence or viciousness of the inmate’s crime must be more
than minimally necessary to convict him of the offense for which he is confined.”
(Maj. opn., ante, at p. 38, italics in original.) But we said more than that. As
indicated above, we stated: “ ‘The Board’s authority to make an exception [to the
requirement of setting a parole date] based on the gravity of a life term inmate’s
current or past offenses should not operate so as to swallow the rule that parole is
‘normally’ to be granted. Otherwise, the Board’s case-by-case rulings would
destroy the proportionality contemplated by Penal Code section 3041, subdivision
(a) . . . .” (Rosenkrantz, supra, 29 Cal.4th at p. 683, italics added.)2
2
In Rosenkrantz, we found that certain circumstances of the offense, per se,
constituted egregious conduct in comparison to other second degree murders, i.e.,
there was considerable evidence that the crime was committed with premeditation
(Footnote continued on next page.)
4
The majority’s standard is not only inconsistent with the pertinent statute
and with Rosenkrantz, it does not articulate a workable standard of judicial review.
This deficit is brought home by the way in which it deals with the case before us.
Having concluded that “particularly egregious” means “the violence or
viciousness of the inmate’s crime must be more than minimally necessary to
convict him of the offense for which he is confined,” the majority proceeds to
review the facts of the case. “As the Board noted, Dannenberg reacted with
extreme and sustained violence to a domestic argument. He struck multiple blows
to his wife’s head with a pipe wrench. Bleeding profusely, she then ‘fell or was
pushed’ into a bathtub full of water, where she drowned. Though he vehemently
denied it, the evidence permitted an inference that, while the victim was helpless
from her injuries, Dannenberg placed her head in the water, or at least left it there
without assisting her until she was dead. . . . .” (Maj. opn., ante, at pp. 38-39.)
The majority then states, conclusorily: “Thus, there clearly was ‘some evidence’
(Rosenkrantz, supra, 29 Cal.4th 616, 658) to support the Board’s determination
that Dannenberg’s crime was ‘especially callous and cruel,’ showed ‘an
exceptionally callous disregard for human suffering,’ and was disproportionate to
the ‘trivial’ provocation.” (Maj. opn., ante, at p. 39.)
This unexplained conclusion raises more questions than it provides
answers. What is it about these facts that make this second degree murder
particularly egregious? How is the Board to determine what facts constitute a
particularly egregious murder? How is a court to review that determination? The
(Footnote continued from previous page.)
and deliberation sufficient for a finding of first degree murder. (Rosenkrantz,
supra, at pp. 678-679.)
5
majority gives us no clue, because the concept of a crime being “more than
minimally necessary to convict [a prisoner] of the offense for which he is
confined” is essentially meaningless. Second degree murder is an abstraction that
consists of certain legal elements. Particular second degree murders have facts
that fit within these elements. These facts are never “necessary” or “minimally
necessary”3 to convict someone of a second degree murder, because we can
always imagine other facts that would also lead to a second degree murder
conviction. Furthermore, these facts, because they are facts about a second degree
murder, will almost invariably involve the defendant acting violently, cruelly, and,
if acting out of provocation, greatly out of proportion to the provocation
(otherwise the defendant would have been convicted of manslaughter or
exonerated through self-defense). If the Board labels a second degree murder
“especially callous and cruel” and exhibiting “an exceptionally callous disregard
for human suffering,” then recites the facts of the case, is there any way for a court
to review that finding and, on occasion, to find it untrue? The majority provides
no explicit answer. Its implicit answer appears to be “no.”
3
It is true that the majority plucks the phrase “minimally necessary” from
Rosenkrantz. But, as quoted above, that phrase appears in Rosenkrantz in a
passage that recognizes the Board’s obligation to normally, uniformly and
proportionally set parole dates. (Rosenkrantz, supra, 29 Cal.4th at p. 683.) The
unmistakable meaning of the Rosenkrantz court in that context was that a second
degree murder commitment offense cannot by itself be the basis for the denial of
parole unless it is “particularly egregious” for a second degree murder, so that
“the Board’s case-by-case rulings [not] destroy the proportionality contemplated
by Penal Code section 3041, subdivision (a) . . . .” (Rosenkrantz, supra, 29
Cal.4th at p. 683, quoting Ramirez, supra, 94 Cal.App.4th at p. 570.) In other
words, the phrase “minimally necessary” makes sense in the context in which it is
used in Rosenkrantz, but not when it is taken out of context by the majority.
6
The majority’s implicit abolition of judicial review whenever the Board
bases its parole denial decision on the commitment offense contravenes the limited
but significant due process rights of parole applicants required by the California
Constitution. (Cal. Const., art. I, § 7, subd. (a).) As the court has explained, an
applicant has the right, “ ‘to have his application for [parole] “duly considered”
based upon an individualized consideration of all relevant factors.’ ”
(Rosenkrantz, supra, 29 Cal.4th at p. 655, quoting In re Minnis (1972) 7 Cal.3d
639, 646.) In other words, the parole application must be given “something more
than mere pro forma consideration.” (In re Sturm (1974) 11 Cal.3d 258, 268
(Sturm).) As we have stated: “Under time-honored principles of the common law,
. . . the parole applicant’s right to ‘due consideration’ cannot exist in any practical
sense unless there also exists a remedy against their abrogation. (See Marbury v.
Madison (1803) 5 U.S. (1 Cranch) 137, 161-163.) Hence, our prior recognition of
a right to due consideration of parole applications necessarily gives rise to a
concomitant right to an available remedy.” (Sturm, supra, at pp. 268-269.) It was
the recognition of a parole applicant’s due process rights and the need for an
effective remedy for their violation that led this court to recently reaffirm that a
parole denial decision could not be sustained unless supported by “some
evidence.” (Rosenkrantz, supra, 29 Cal.4th at pp. 655-658.)
Under the majority’s approach, if the Board gives the parole applicant mere
pro forma consideration reciting the facts of the case and then labeling the
applicant’s actions “especially callous and cruel” a court will nonetheless be
obliged to uphold the Board’s decision. The banishment of judicial review from
the parole process under these circumstances means the judiciary will be disabled
from enforcing even the most rudimentary due process rights of parole applicants.
The possibility that the Board may not be giving individualized, due
consideration to parole applicants is more than hypothetical. In 1999, for
7
example, no life prisoners were released on parole, partly because the Board
granted parole to an estimated 18 prisoners (Legis. Analyst’s analysis of 2000-
2001 Budget Bill, p. D-59) out of about 2,000 parole suitability hearings
(<http://www.bpt.ca.gov/caseload_stats.asp> [as of Jan. 24, 2005]), less than 1
percent of those eligible, and partly because of the then-Governor’s even more
stringent parole policy.
The Board’s reluctance to grant parole is understandable, but troubling.
Denial of parole may incur the wrath of the prisoner and his immediate supporters.
But granting parole to a prisoner who reoffends will incur the disapproval of
society at large. (See Simerman, Convicts Pin Hope on New Governor, Contra
Costa Times (Aug. 22, 2004) [discussing the political risks of granting parole].)
The Board’s commissioners therefore have little to gain and potentially much to
lose by granting parole, and accordingly, the incentive to give only pro forma
consideration to the parole decision is strong. This incentive makes meaningful
judicial review all the more essential.
The majority primarily justifies its holding by means of section 3041’s
overriding concern with public safety. But using public safety to excuse the
Board’s failure to comply with its statutory mandate under section 3041(a) misses
the mark for at least two reasons. First, section 3041(a) itself makes public safety
concerns central, dictating that the “uniform terms for offenses of similar gravity
and magnitude” be calibrated “in respect to their threat to the public.” In other
words, the Legislature has determined that for those convicted of second degree
murder and first degree murder without special circumstances, the proportional,
uniform setting of parole dates can and should be accomplished in a manner
consistent with public safety. Although there are other individualized
considerations pertaining to a prisoner’s suitability for parole and his threat to
public safety, such as his behavior in prison, his plans after prison, and his age
8
(see Cal. Code Regs., tit. 15, § 2402), it is clear from section 3041(a) that the
commission of a second degree murder that is not exceptional with respect to other
second degree murders does not by itself provide a basis for failing to set a parole
date.
In other words, no one is challenging the validity of the Board’s regulation
that “[r]egardless of the length of time served, a life prisoner shall be found
unsuitable for and denied parole if in the judgment of the panel the prisoner will
pose an unreasonable risk of danger to society if released from prison.” (Cal.
Code Regs., tit. 15, § 2402(a).) But when a prisoner is denied a parole date solely
as a result of the seriousness of the commitment offense, and all the post-
commitment evidence points to the fact that he is no longer a danger to society,
sections 3041(a) and 3041(b) dictate that the commitment offense be particularly
egregious in comparison to other offenses of the same class. Despite the
majority’s profession to the contrary, there is no indication that proceeding in this
manner will compromise public safety in the least, nor any indication that the
Legislature believed it would.
Second, although public safety is paramount, the Legislature had other
concerns, which the majority suggests in its discussion of the Legislative history
of the determinate sentencing law of which section 3041 is a part. There was the
concern that the indeterminate sentence “gave inmates no advance hope of a fixed
date for release, thus actually promoting disciplinary problems within the prisons.”
(Maj. opn, ante, at pp. 27-28, citing Cassou & Taugher, Determinate Sentencing in
California: The New Numbers Game (1978) 9 Pacific L.J. 5, 6-13.) There was
also no doubt a concern with expending large sums of taxpayer money to keep in
prison someone who has served his sentence and poses little risk to the public, as
well as humanitarian concerns. The legislative scheme of normally and uniformly
granting parole dates to those convicted of second degree murder reflects this
9
legislative balancing of various concerns, which the majority, following the Board,
ignores.
It is perhaps possible that the majority endorses the Board’s way of
conducting parole release because it seeks to avoid the undesirable result of the
mass release of convicted murderers. I do not believe such mass release or
anything like it will occur for several reasons. First, the approach of the Court of
Appeal below and in Ramirez, quite properly, is to remand to the Board to require
them to proceed in a correct manner, not necessarily to set a parole release date, as
the trial court in this case would have done.
Second, and more fundamentally, the Board is still given a great deal of
power under the Court of Appeal’s interpretation of the statute. Its power comes
from two sources. First, section 3041(a) gives it broad rulemaking authority for
setting uniform, proportional parole release dates. The Board has established a
matrix that appears to comply with the mandate, although it does not use that
matrix for parole suitability determinations. The Ramirez court and the Court of
Appeal below used the matrix because it reflects the Board’s own effort at
establishing a uniform, proportional parole release date scheme consistent with the
intent of section 3041(a). But the Board is free to amend the current matrix if it
reasonably believes that the sentences given therein, ranging from 15 to 21 years
for second degree murderers, are too brief to protect the public. Second, the Board
has the authority to interpret and apply their regulations. Here again, it is afforded
great discretion, subject only to a “some evidence” standard, as well as to the
constraint that it not proceed in an arbitrary and capricious manner. (See Ramirez,
supra, 94 Cal.App.4th at pp. 563-564.) Third, as noted, there are and will be
numerous instances in which the Board’s parole suitability decision will be
legitimately based in whole or part on matters other than the commitment offense,
10
such as misconduct in prison and lack of realistic parole plans. (See Cal. Code
Regs., tit. 15, § 2402.)
It should be emphasized that ranking the gravity of the commitment offense
is no extraordinary task. In fact, the Board already applies its own matrix to
determine the seriousness of the offense when it sets a parole date. (Cal. Code
Regs., tit. 15, § 2403.) Under the Board’s matrix, for example, a second degree
murder resulting from an indirect cause like a heart attack, and in which the victim
was an accomplice, would rank among the least serious crimes, while a murder
“calculated to induce terror in the victim” that was committed by someone with no
personal relationship to the victim, would rank among the most serious. (Ibid.)
Moreover, this kind of ranking of an offense based on aggravating and mitigating
factors is what trial judges routinely are asked to do in making sentencing
decisions. (See § 1170, subd. (b); Cal. Rules of Ct., Rules for Criminal Cases in
the Superior Court, rule 4.413 [factors for determining base terms in determinate
sentences]; id., rules 4.420-4.423 [factors for determining eligibility for
probation].) There is no reason to believe the Board would be unable to fulfill its
statutory obligation.
The majority argues that the approach taken by the Court of Appeal in this
case and in Ramirez would require “intercase comparisons in every parole matter”
that “would contribute significantly to backlogs . . . . Such a process seems likely
to convert each proceeding into a comparative review of every proceeding.” (Maj.
opn., ante, at p. 36.) I disagree. Intercase comparisons are not required by section
3041, nor are they inherent in the principle of judicial review of parole suitability
decisions. (Cf. former § 1170, subd. (f), Stat. 1977, ch. 165, § 15, p. 649
[requiring comparative review of determinate sentences].) All that is mandated is
for the Board to follow its own regulations ranking the relative gravity of the
crime committed, according to aggravating and mitigating circumstances that the
11
Board itself has defined. Of course, under any interpretation of section 3041, a
prisoner is free to argue that he or she should be granted parole based on parole
granted in comparable cases. But as long as there is some evidence that the Board
has complied with its own reasonable regulations, its decision denying a parole
date should be upheld.
Several additional arguments made by the majority merit brief mention.
First, the majority argues legislative acquiescence, particularly with regard to the
2001 amendments to section 3041 that adopted certain procedural changes to deal
with the large backlog in the parole hearing system. Legislative acquiescence is
the proverbial “weak reed,” except when it is clear, or can be implied, that a
particular administrative construction of a statute has come to the Legislature’s
attention. (See Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th
226, 235 fn. 7.) In Robinson, for example, the Legislature was presumed to be
aware of certain precedential, published decisions of the Fair Employment and
Housing Commission. (Ibid.) The precise issue raised by this case whether a
prisoner could be denied the setting of a parole date in accordance with section
3041(a) based on a commitment offense that was not particularly egregious when
compared to other offenses of the same class was not the subject of any
administrative or judicial decision until Ramirez discussed it at the end of 2001,
after the enactment of the 2001 amendments. It is significant that Ramirez
disapproved of no other Court of Appeal decision, no formal administrative
decision, and no administrative rule. Rather, it disapproved of an administrative
practice implicated in the case before it. There is no particular reason to believe
the Legislature was focusing on that practice when it enacted the 2001
amendments or prior amendments to section 3041.
Second, the majority argues deference to administrative interpretation. The
short response to this argument is that administrative practice or regulation
12
inconsistent with its authorizing statute cannot stand, and courts must exercise
their independent judgment to determine whether the administrative agency’s
practice or regulation complies with statute. (California Assn. of Psychology
Providers v. Rank (1990) 51 Cal.3d 1, 11.) Moreover, deference is particularly
owing when the statutory interpretation implicates administrative agency
expertise. (See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal.4th 1, 12-13.) There is no indication that the Board exhibits particular
expertise regarding which prisoners constitute a threat to public safety or are
otherwise suitable for parole. In this case, in fact, the record shows the Board
disregarded the uncontradicted findings of the experts who had evaluated Mr.
Dannenberg.
Third, the majority discusses several statutes requiring notification to
various parties of a parole hearing and providing them opportunity for input on
parole decisions. The majority concludes that “[t]hese laws emphasize that the
first responsibility of parole authorities is to evaluate the suitability of an
individual life inmate for safe release . . . .” (Maj. opn, ante, at p. 25.) But there is
nothing incompatible about on the one hand requiring the Board to follow its own
regulations defining when a commitment offense is particularly egregious, and on
the other hand allowing the Board to consider information provided by the public
relevant to a parole suitability determination. Nor is there anything incompatible
about the Board following section 3041(a) and gubernatorial review of the
Board’s parole decision. Indeed, as Rosenkrantz makes clear, the Governor, like
the Board, may not deny parole based solely on a commitment offense that is not
“particularly egregious.” (Rosenkrantz, supra, 29 Cal.4th at p. 683.)
Turning to the present case, I agree with the trial court and the Court of
Appeal that the Board’s determination of Dannenberg’s unsuitability for parole
cannot be sustained. As the Court of Appeal below stated: “The Board makes no
13
attempt to justify its decision with reference to the gravity of Dannenberg’s crime
as compared with other second degree murders, or the proportionality of the term
he has served. Thus, the denial of a parole release date for Dannenberg was
arbitrary in the sense that the Board failed to apply the controlling legal principles
to the facts before it. [Citations.] (Ramirez, supra, 94 Cal.App.4th at p. 571.)”
Moreover, Dannenberg’s present record is not only unblemished in terms of
disciplinary infractions, but showed many positive signs of contribution to the
prison community in which he lived including being a helpful resource to other
prisoners and prison staff, fixing the electrical wiring in San Quentin prison, and
volunteering with an inmate education advisory committee and a Jewish religious
group for prisoners. His advanced education in electrical engineering, advanced
years (61 at the time the trial court considered his habeas corpus petition, 64 now),
realistic parole plans, and consistently favorable psychological evaluations, all
weigh in his favor.
In light of these facts, it is understandable that the Board sought some
reason other than the commitment offense to justify the denial of a parole release
date. It found this in the boilerplate declaration that Dannenberg needed more
therapy “to face, discuss, understand and cope with stress in a nondestructive
manner.” As the trial court concluded, this finding is “entirely without foundation
in the record. Indeed, all the evidence is to the contrary.” This gaping hole in the
Board’s explanation of its decision does not, as the Court of Appeal below
remarked, “inspire judicial confidence that the Board has given the parole
application ‘something more than mere pro forma consideration.’ ”
In sum, the Legislature has established a system for prisoners to obtain
parole according to a uniform, proportional system designed by the Board. This
court has recognized a parole applicant’s constitutional right to due consideration.
The Board has failed to comply with that statutory mandate, and perhaps the
14
constitutional one as well. The majority places this court’s imprimatur on that
failure. Because of the nature of the parole process, there is more than a little risk
that the Board’s power to deny parole will at times be exercised in an arbitrary and
capricious manner. Failure to grant parole where parole is due wastes human
lives, not to mention considerable tax dollars, concerns that, along with public
safety, unquestionably motivated the Legislature when it enacted section 3041.
This court should not abdicate its responsibility to ensure that the Board lives up
to its statutory and constitutional obligations.
I would therefore affirm the judgment of the Court of Appeal.
MORENO, J.
WE CONCUR:
KENNARD, J.
WERDEGAR, J.
15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Dannenberg on Habeas Corpus
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 102 Cal.App.4th 95
Rehearing Granted
__________________________________________________________________________________
Opinion No. S111029
Date Filed: January 24, 2005
__________________________________________________________________________________
Court: Superior
County: Marin
Judge: Verna Alana Adams
__________________________________________________________________________________
Attorneys for Appellant:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford,
Assistant Attorney General, Allen R. Crown, Acting Assistant Attorney General, Susan Duncan Lee and
Matthew D. Mandelbaum, Deputy Attorneys General, for Appellant the People.
Bonnie M. Dumanis, District Attorney (San Diego), George M. Palmer, Head Deputy District Attorney,
Richard J. Sachs, Deputy Distrust Attorney; and David R. LaBahn for California District Attorneys
Association as Amicus Curiae on behalf of Appellant the People.
__________________________________________________________________________________
Attorneys for Respondent:
Kathleen Kahn, under appointment by the Supreme Court, for Respondent John E. Dannenberg.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Susan Duncan Lee
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5876
Kathleen Kahn
First District Appellate Project
730 Harrison Street, Suite 201
San Francisco, CA 94107
(415) 495-3119
2
Opinion Information
| Date: | Docket Number: |
| Mon, 01/24/2005 | S111029 |
Parties
| 1 | Dannenberg, John E. (Petitioner) Represented by Kathleen Kahn First District Appellate Project 730 Harrison St., Suite 201 San Francisco, CA |
| 2 | Dannenberg, John E. (Petitioner) Represented by First District Appellate Project 730 Harrison St. Ste.201 730 Harrison St. Ste.201 San Francisco, CA |
| 3 | The People (Non-Title Respondent) Represented by Susan Duncan Lee Attorney General's Office 455 Golden Gate Ave, 6th Fl. San Francisco, CA |
| 4 | Ellis, Nathan J. (Amicus curiae) Mule Creek State Prison P.O. Box 409000 Ione, CA 95640 |
| 5 | California District Attorneys Association (Amicus curiae) Represented by Richard Jeffrey Sachs Ofc District Attorney P O Box 121011 San Diego, CA |
| 6 | California District Attorneys Association (Amicus curiae) Represented by George M. Palmer Head Deputy District Attorney 320 West Temple Street, Sutie 540 Los Angeles, CA |
| 7 | Darrow, Neil (Amicus curiae) Box 3476 Corcoran, CA 93212 |
| Disposition | |
| Jan 24 2005 | Opinion: Reversed |
| Dockets | |
| Oct 29 2002 | Petition for review filed by Attorney General (appellant) c/a rec req |
| Nov 12 2002 | 2nd record request |
| Nov 13 2002 | Answer to petition for review filed by counsel for petitioner(Dannenberg) |
| Nov 19 2002 | Received Court of Appeal record file jacket/briefs/accordian file |
| Dec 11 2002 | Time extended to grant or deny review to 1-27-03 |
| Jan 15 2003 | Petition for Review Granted; issues limited (criminal case) Briefing and argument are limited to the following issue: At a parole suitability hearing that is held pursuant to Penal Code section 3041, must the Board of Prison Terms generally engage in a comparative proportionality analysis with respect to offenses of similar gravity and magnitude and consider base term matrices used by the Board in setting release dates and deny a parole date solely on the basis of the circumstances of the offense only when the offense is particularly egregious, or may the Board first determine whether the inmate is suitable for parole because he or she is no longer a threat to public safety and engage in a proportionality analysis only if it finds the inmate suitable for parole? Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Jan 27 2003 | Counsel appointment order filed First District Appellate Project is appointed to represent Dannenberg. His brief on the merits shall be served/filed on or before 30 days from the date A.G's opening brief on the merits is filed. |
| Feb 14 2003 | Opening brief on the merits filed by aplt (the People) |
| Feb 14 2003 | Request for judicial notice filed (in non-AA proceeding) by aplt |
| Mar 11 2003 | Request for extension of time filed by petnr to file the answer brief on the merits, to 4-16. |
| Mar 14 2003 | Extension of time granted to 4-16-03 for petnr Dannenberg to file the answer brief on the merits. |
| Apr 16 2003 | Answer brief on the merits filed by petnr Dannenberg |
| Apr 18 2003 | Opposition filed petitioner-respondent Dannenberg's opposition to request for judicial notice. |
| Apr 24 2003 | Request for judicial notice filed (in non-AA proceeding) by petnr Dannenberg |
| May 6 2003 | Reply brief filed (case fully briefed) by aplt (the People) |
| May 13 2003 | Received: A/C application and brief from Nathan Ellis (incarcerated pro per) |
| May 16 2003 | Filed document entitled: aplt's (People) reply on motion for judicial notice. |
| May 22 2003 | Filed: petnr/resp Dannenberg's motion to strike aplt's reply to opposition to request for judicial notice. |
| May 29 2003 | Permission to file amicus curiae brief granted The application of Nathan J. Ellis for permission to file an amicus curiae brief in support of petitioner and respondent Dannenberg is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| May 29 2003 | Amicus Curiae Brief filed by: Nathan J. Ellis in support of petitioner and respondent Dannenberg. |
| Jun 6 2003 | Received application to file amicus curiae brief; with brief by the California District Attorneys Association in support of petitioner/real party (The People) |
| Jun 10 2003 | Permission to file amicus curiae brief granted The application of California District Attorneys Association for permission to file an amicus curiae brief in support of respondent (People) is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Jun 10 2003 | Amicus Curiae Brief filed by: Cailfornia District Attorneys Association in support of respondent (People) |
| Jun 27 2003 | Response to amicus curiae brief filed by appellant (Dannenberg) to Amicus California District Attorneys' Association |
| Mar 4 2004 | Received: "Permissive motion for permissive joinder" by inmate Marion Carr |
| May 7 2004 | Amicus curiae brief filed A/C brief from inmate Neil Darrow. |
| Oct 4 2004 | Case ordered on calendar 11/4/04 @ 9am, Sacramento |
| Oct 26 2004 | Request for judicial notice denied The motion for judicial notice, filed Feb 14, 2003, by the Attorney General on behalf of the Board of Prison Terms and related parties, is denied. The motion for judicial notice, filed Apr 24, 2003, by petnr Dannenberg is GRANTED as to Exhibit A, and is otherwise denied. The "Permissive Motion for Permissive Joinder," submitted by Marion A. Carr and received on Mar 4, 2004, is ordered filed as an ex parte application for intervention. (Code Civ. Proc., #387, subd.(a); see 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, #215, pp. 278-280.) As such, it is denied. |
| Oct 29 2004 | Request for Extended Media coverage Filed By Illuminate Films for KQED. |
| Oct 29 2004 | Request for extended media coverage denied The request for extended media coverage, filed October 29, 2004, having been considered by the court en banc, is denied. |
| Nov 4 2004 | Cause argued and submitted |
| Jan 24 2005 | Opinion filed: Judgment reversed (In re Ramirez, supra, 94 Cal.App.4th 549, is disapproved to the extent it conflicts with the views expressed in this opinion. Majority opinion by Baxter, J. ---------------------------------joined by: George, C.J., Chin, Brown, JJ. Dissenting opinion by Moreno, J.---joined by Kennard, Werdegar, JJ. |
| Feb 7 2005 | Rehearing petition filed by counsel for petnr |
| Feb 9 2005 | Time extended to consider modification or rehearing rehearing - to 4/22/05 |
| Feb 23 2005 | Rehearing denied Kennard, Werdegar, and Moreno, JJ., are of the opinion the petition should be granted. |
| Feb 23 2005 | Remittitur issued (criminal case) |
| Apr 13 2005 | Compensation awarded counsel Atty O'Connell - First District Appellate Project |
| Oct 11 2005 | Received: notice of denial of certiorari in USSC |
| Briefs | |
| Feb 14 2003 | Opening brief on the merits filed |
| Apr 16 2003 | Answer brief on the merits filed |
| May 6 2003 | Reply brief filed (case fully briefed) |
| May 29 2003 | Amicus Curiae Brief filed by: |
| Jun 10 2003 | Amicus Curiae Brief filed by: |
| Jun 27 2003 | Response to amicus curiae brief filed |
| May 7 2004 | Amicus curiae brief filed |
