KLINE, P. J., Concurring and Dissenting.— I concur in the majority opinion in all respects save one.
Christopher Morganti claims not only that the denial by the Board of Parole Hearings (the Board) of his request for parole is unsupported by “some evidence,” but also that the Board’s disregard for the statutory framework of parole and failure to accord parole applicants individualized consideration deprives him and implicitly all life prisoners a liberty interest safeguarded by article I, section 7, of the California Constitution and the Fourteenth Amendment to the Constitution of the United States. Producing evidence showing that life prisoners are almost never granted a parole release date at the time the Legislature contemplated a date would ordinarily be granted, Morganti requested the opportunity to conduct discovery and have an evidentiary hearing in order to establish a factual basis for his due process claim. The trial court denied the request on the ground Morganti’s constitutional argument was “conclusory and fails to state a prima facie claim for relief.” Because I believe the ruling erroneous, I would remand this case to the trial court with directions to grant Morganti’s request for discovery and an evidentiary hearing.
[929]The evidence Morganti provided in support of this request is undisputed and credible, and the issue he raises bears not only upon the rights of thousands of other life prisoners, but also on the efficacy of the relief properly granted Morganti by the trial court. If it is true, as he claims, that requests for parole are routinely denied on the basis of a Board policy, remanding this matter to the Board for a new parole hearing will not result in the individualized inquiry to which Morganti is entitled. This is not, however, the only or perhaps even the strongest warrant for the discovery and evidentiary hearing Morganti requested.
In addition to his due process claim, Morganti contends the Board administers the law governing the parole process in a manner regularly resulting in the confinement of life prisoners for periods of time disproportionate to their culpability. He seeks an inquiry into the policies and practices responsible for this systematic violation of constitutional rights. The integrity and lawfulness of the parole process pertaining to life prisoners, which Morganti provides reason to question, requires that this judicial inquiry be undertaken.
As will be seen, more prisoners are now being indeterminately sentenced under our nominally determinate sentencing scheme than were ever indeterminately sentenced under the indeterminate sentence law (ISL) (Pen. Code,1 former § 1168).2 (See discussion, post, at p. 942, fn. 13.) As a result, and as legions of cases like this one show, the problem of disproportionate sentencing, which the DSL was designed to cure, has reappeared with a vengeance. There is, however, a big difference: the administrative safeguard against disproportionality imposed on the parole authority by a frustrated Supreme Court shortly before the ISL was replaced by the DSL (In re Rodriguez (1975) 14 Cal.3d 639 [122 Cal.Rptr. 552, 537 P.2d 384]) (Rodriguez) (see discussion, post, at pp. 939-941) is no longer in effect. The fact that the present parole process lacks the protection against disproportionate sentences imposed by the Supreme Court in Rodriguez requires that discovery requests like Morganti’s receive serious judicial consideration, as was not here the case.
I.
Morganti’s assertion that the Board disregards the parole scheme pertaining to life prisoners set forth in the DSL focuses on the statement in section 3041 that “[o]ne year prior to the inmate’s minimum eligible parole release date,” a panel of the Board shall “meet with the inmate and shall normally set a [930]parole release date ... in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates.” (§ 3041, subd. (a), italics added.)
Morganti’s claim that, contrary to the mandate of section 3041, “parole is practically never granted at the initial parole consideration hearing,” is based on statistical evidence regarding the Board’s parole decisions from January 1, 2000, through October 31, 2010, which he attached as an exhibit to his petition. The exhibit—the accuracy of which was undisputed by the Board in the court below and conceded by the Attorney General at oral argument before this court—shows that during that nearly 10-year period the Board conducted 5,993 initial parole hearings at which parole was granted or denied. In 5,372 of those hearings parole was denied; in 599 the inmate stipulated to being unsuitable for parole,3 and parole was granted at the initial hearing on only 22 occasions, which constitute 0.37 percent of the 5,993 hearings, or 0.40 percent of the 5,394 hearings at which the inmate did not stipulate to the denial of parole. During the same time period, the Board conducted 5,523 first subsequent parole hearings, including Morganti’s, and granted parole only 75 times, or in just 1.3 percent of those hearings 4
The seemingly inordinate rate at which life prisoners are found unsuitable for parole—i.e., “an unreasonable risk of danger to society if released from prison” (Cal. Code Regs., tit. 15, § 2402, subd. (a))—is hard to square with the fact that recidivism among life prisoners is less than 1 percent, which is “minuscule” compared to that of other prisoners. (Weisberg et al., Stanford Criminal Justice Center, Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California (Sept. 2011) 1, 17 (Life in Limbo).)5 The facially inexplicable discrepancy between the extraordinarily high rate at which life prisoners are denied parole, and the extraordinarily low rate at which such prisoners recidivate lends credibility to Morganti’s contention that the Board’s systematic refusal [931]to find life prisoners suitable for release is based on something other than an individualized inquiry into whether life prisoners eligible for parole would pose an unreasonable risk of danger to society if released from prison.
Our agreement with the trial court’s determination that the denial of parole to Morganti is unsupported by “some evidence” should not be allowed to obscure Morganti’s more consequential constitutional claim, which pertains to the most vexing sentencing issue now regularly confronting the courts of this state: whether the seemingly systematic denial of parole to fife prisoners at the hearing specified in section 3041, subdivision (a), is the product of the individualized consideration that is constitutionally required or a thinly veiled policy of “transforming most indeterminate sentences with the possibility of parole into sentences of life-without-parole.” (Comment, Time To Move On: The California Parole Board’s Fixation with the Original Crime (2008) 27 Yale L. & Pol’y Rev. 239.)
The evidence Morganti offered in support of his request for discovery and an evidentiary hearing raises not only the questions whether the Board is systematically violating the legislative mandate and inmates’ due process rights, but whether the disconnect between the parole-granting norm prescribed in subdivision (a) of section 3041 and actual Board decisionmaking may be the result of, or related to, the Board’s practice of delaying the fixing of an inmate’s “base term” until after he or she has been deemed suitable for release. (Cal. Code Regs., tit. 15, § 2403, subd. (a).) As I later explain, that practice—which is identical to the practice condemned by our Supreme Court in Rodriguez, supra, 14 Cal.3d 639 because it facilitated the imposition of disproportionate sentences and obstructed judicial review of allegedly excessive sentences—is among the matters Morganti wishes to investigate and subject to judicial review.
In short, our determination that no evidence supports the Board’s denial of Morganti’s request for parole leaves entirely unaddressed his claim that the Board denies him and thousands of other life prisoners their constitutional right to individualized consideration of their parole suitability due to (1) a Board policy to almost never grant life prisoners a parole release date at the time the Legislature mandated that such a date should “normally” be granted, and (2) the Board’s administration of the parole and term-setting process in a manner that does not guard against but facilitates the disproportionate sentences resulting from application of the policy.
II.
The majority declines to address these issues because my colleagues agree with the trial court that “the claim is conclusory, and not adequately [932]developed, and that [Morganti] fails to identify an appropriate remedy in the event he could establish a right to relief.” (Maj. opn., ante, at pp. 914-915, fn. 4.) The concern that Morganti has not fully developed his constitutional claim, which is true, seems to me unfair, because he was prevented from doing so by the trial court’s limitation of its inquiry to whether the decision to deny Morganti parole was supported by “some evidence.” Reliance on Morganti’s failure to identify an appropriate remedy puts the cart before the horse. He cannot determine that remedy until he is allowed the discovery necessary to establish the factual basis of his constitutional claim and does so. If he establishes the fact, the remedy will not be difficult to fashion.
The Attorney General’s arguments why we should not address Morganti’s constitutional claim seem to me manifestly untenable. The claim is not before us, she maintains, because “ 1 “a respondent who has not appealed from the judgment may not urge error on appeal.” ’ [Citations.]” (County of Los Angeles v. Glendora Redevelopment Project (2010) 185 Cal.App.4th 817, 828 [111 Cal.Rptr.3d 104].) Recognizing the statutory exception to this rule (Code Civ. Proc., § 906), which permits a respondent to “ ‘assert a legal theory which may result in affirmance of the judgment’ ” (County of Los Angeles, at p. 828), the Attorney General argues that “a reviewing court ‘need not’ consider such claims when the appeal can be decided ‘based solely on the issues raised by [appellant].’ (Id. at pp. 828-829.)” That is the case here, the Attorney General asserts, because this court can determine the propriety of the superior court’s order simply by deciding whether some evidence supports the Board’s denial of parole.
The course urged by the Attorney General would always operate to insulate the constitutional claim from judicial review, regardless whether a challenged Board ruling was found supported by “some evidence.” If there were not “some evidence,” the case would be remanded on this basis and the constitutional claim would be moot; if there were such evidence, its existence would defeat the inmate’s claim for relief. The rule that a reviewing court should not entertain a constitutional claim if the party seeking relief can be provided a remedy on a lesser ground is not properly used to effectively immunize from judicial review a government practice credibly claimed to infringe the constitutional rights of a large class of persons. Furthermore, as I have said, it is necessary to address Morganti’s constitutional claim to ensure that, upon remand to the Board for a new hearing, his suitability for release is not determined on the basis of a Board policy, as he claims would otherwise be the case.
The Attorney General also contends that the statistics Morganti relies upon are no more impressive than those found inadequate in In re Rosenkrantz (2002) 29 Cal.4th 616 [128 Cal.Rptr.2d 104, 59 P.3d 174] (Rosenkrantz). In [933]Rosenkrantz, our Supreme Court agreed that evidence indicating a parole decision was made “in accordance with a blanket no-parole policy properly could be considered by a court in determining whether the decision satisfies due process requirements.” (Id. at p. 684.) The petitioner in Rosenkrantz argued that the Governor’s reversal of a Board decision granting him parole was based upon an impermissible general policy of automatically denying parole to prisoners convicted of murder. The trial court accepted this argument, relying in part on the Governor’s statements, quoted in the Los Angeles Times and authenticated, that murderers, even those with second degree convictions, should serve at least a life term. (Ibid.) The trial court also relied on evidence establishing that between January 1999 through April 2001, the Board held 4,800 suitability hearings and granted parole to 48 inmates. The Governor declined to review any cases in which the Board denied parole, and reversed 47 of the 48 in which parole was granted (he subsequently let one other Board decision granting parole stand). (Id. at p. 685.) Reversing the trial court’s decision, which the Court of Appeal had affirmed, the Rosenkrantz court concluded that the evidence relied on by the trial court and the Court of Appeal “does not support its finding that the denial of petitioner’s parole was based upon a policy of automatically denying parole to all murderers.” (Ibid.)
Rosenkrantz sets a high standard,6 but I believe the statistics Morganti produced are adequate for the purpose for which he offered them. For one thing, the statistics at issue in Rosenkrantz involved 48 gubernatorial decisions during a period of less than two and one-half years; the statistics Morganti relies upon involve more than 10,000 initial and first subsequent parole hearings over nearly a decade, which is far more indicative of a pattern and practice and the absence of individualized consideration. In any event, unlike the petitioner in Rosenkrantz, Morganti does not claim the statistical evidence he provided entitles him to relief; all he claims is that it entitles him to discovery and an evidentiary hearing.
III.
The manner in which the parole process can impermissibly facilitate disproportionate sentences was first brought to judicial attention in cases arising under the ISL, and these cases continue to be relevant. Moreover, as I will explain, the manner in which the Board now administers provisions of the DSL relating to indeterminate sentencing is similar to the manner in [934]which the Adult Authority7 administered the ISL. The judicial response to the problems created by the administrative practices of the Adult Authority sheds significant light on the present practices of the Board, and raises substantial questions about their effect.
Morganti’s constitutional challenge to the manner in which the Board administers the parole process arises out of the conflict between the paramount purposes the DSL was designed to achieve, and the purposes of the indeterminate sentencing carried out under provisions of the DSL applicable to life prisoners such as Morganti. The conflict, and the manner in which the Board attempts to resolve it, warrant brief discussion.
Under the ISL, all convicted felons were indeterminately sentenced. “The court imposed a statutory sentence expressed as a range between a minimum and maximum period of confinement—often fife imprisonment—the offender must serve. An inmate’s actual period of incarceration within this range was under the exclusive control of the parole authority [(then called the Adult 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 Adult Authority] decided they were ready for release.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1077 [23 Cal.Rptr.3d 417, 104 P.3d 783] (Dannenberg).) The perceived deficiencies of indeterminate sentencing at the time the Legislature was considering repealing the ISL and replacing it with a determinate sentencing scheme included not just the uncertainty of the date of release, which created anxiety among prisoners and was deemed an obstacle to rehabilitation, but as well the disparate terms fixed for inmates committed on the same or similar offense, the fixing of terms disproportionate to the offense or otherwise excessive, the broad discretion of the Adult Authority and its relative immunity from judicial review, and increasing doubt about the validity of some of the fundamental premises upon which indeterminate sentencing was based. (Cal. Sen. Select Com. on Penal Institutions, Transcript of Hearing on Indeterminate Sentence Law (Dec. 5-6, 1974); Frankel, Criminal Sentence: Law Without Order (1973); Mitford, Kind and Usual Punishment: The Prison Business (1973) pp. 79-94; American Friends Service Com., Struggle for Justice: A Report on Crime and Punishment in America. (1971); Singer & Statsky, Rights of the Imprisoned (1974) pp. 281-285; Meyerson, The Board of Prison Terms and Paroles and Indeterminate Sentencing: A Critique (1976) 51 Wash. L.Rev. 617; Morris, The Future of Imprisonment: Toward a Punitive Philosophy (1974) 72 Mich. L.Rev. 1161; Prettyman, The Indeterminate Sentence and the Right to Treatment (1972) 11 Am. Crim. L.Rev. 7, [93517]-21.) The fundamental problem was not just the reliability of the inherently predictive determination whether an inmate was rehabilitated, which was widely challenged by leading authorities (see, e.g., Diamond, The Psychiatric Prediction of Dangerousness (1974-1975) 123 U. Pa. L.Rev. 439), but the ability of the state to rehabilitate offenders (Cal. Assem. Com. on Crim. Proc., Crime and Penalties in California (Mar. 1968) summary & p. 4 [“There is no evidence that prisons rehabilitate most offenders.”]; Glueck, Predictive Devices and the Individualization of Justice (1958) 23 Law & Contemp. Probs., 461-462).
The central theses of the DSL, diametrically opposed to those of the ISL, are reflected in the legislative findings and declarations set forth in its first provision. The DSL commences with the proposition that the purpose of imprisonment for crime is not rehabilitation, but “punishment,” and states that “[t]his 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 similar circumstances.” (§ 1170, subd. (a)(1); see also Morris, The Future of Imprisonment: Toward a Punitive Philosophy, supra, 72 Mich. L.Rev. 1161.) The Legislature further found and declared “that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.” (§ 1170, subd. (a)(1).)
The DSL establishes a triad of alternative sentences for most felonies. The sentencing court imposes the middle term unless mitigating or aggravating circumstances call for imposition of the specified lower or upper term. Thus, a determinate sentence is tailored primarily to the offense, not the offender, a paradigm that shifts attention away from the rehabilitative sentencing model exemplified by the ISL, which tailored the sentence to the offender, not the offense. However, under the DSL “certain serious offenders, including ‘non-capital’ murderers . . . , 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. [Citation.] As under prior law, life inmates’ actual confinement periods within the statutory range are decided by an executive parole agency,” which is now the Board. (Dannenberg, supra, 34 Cal.4th at p. 1078.)
The most significant tension in the DSL, which has become increasingly problematical and is at the heart of Morganti’s constitutional claim, arises from the conflict between its chief purposes—the enhancement of uniform sentencing and the early setting of terms proportionate to the seriousness of the offense—and the perpetuation, with respect to a large and growing number of inmates, of the indeterminate scheme responsible for the problems [936]of disparate sentencing and disproportionate terms that the DSL was designed to cure.8 (See Dannenberg, supra, 34 Cal.4th at pp. 1080-1083.)
The legislative attempt to reconcile the indeterminate sentencing prescribed by the DSL to the goals of uniformity and proportionality—i.e., the intention “to apply some determinate sentencing principles to life-maximum inmates” (Dannenberg, supra, 34 Cal.4th at p. 1083)—is manifested in subdivision (a) of section 3041, the provision upon which Morganti relies. As earlier noted, section 3041, subdivision (a), requires the Board to “normally” set a parole release date at the initial parole hearing “in a manner that will provide uniform terms for offenses of similar gravity and magnitude . . . .” (§ 3041, subd. (a).) The directives of subdivision (a) are, however, significantly qualified by those of subdivision (b). Subdivision (b) declares that the 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.”
The conflict between the relatively objective factors central to determinate sentencing enumerated in subdivision (a) of section 3041 and Board regulations (Cal. Code Regs., tit. 15, §§ 2404, 2405) on the one hand, and the subjective consideration of the inmate characteristic of indeterminate sentencing required by subdivision (b) of section 3041 on the other hand, was almost [937]immediately seen as presenting a fundamental problem: the extent to which DSL’s primary goals of uniformity and proportionality are compromised by Board consideration of postconviction factors in determining whether to grant parole to indeterminately sentenced life prisoners. (See, e.g., Cassou & Taugher, Determinate Sentencing in California: The New Numbers Game (1978) 9 Pac. LJ. 1, 86-87.)
A new development has further exacerbated the situation. Historically, when a life prisoner was denied parole, the parole authority was required to set the prisoner’s next hearing within 12 months. (§ 3041.5, subd. (b)(2), as added by Stats. 1976, ch. 1139, § 281.8, p. 5152.)9 Since the enactment in 2008 of Proposition 9, known as “Marsy’s Law” (codified at § 3041.5, subd. (b)(3)), a life prisoner denied a release date must now wait at least three years for a new hearing, and possibly as long as 15 years.10 Thus, when it denied Morganti a parole release date at his initial parole hearing in 2006, the Board deferred his next parole hearing until 2010, thereby increasing his prison term at least four years beyond the point the Legislature contemplated as normative for the setting of a release date. After denying him parole in 2010, the Board deferred the next parole hearing for three more years, thus extending his prison term beyond the norm posited by section 3041 by a total of at least seven years. In short, as Morganti’s situation demonstrates, the denial of a parole release is now much more adversely consequential than it has ever been, which heightens the significance of the postconviction factors relied upon by the Board to determine suitability for release on parole.
The Board’s ability to defer a subsequent parole hearing for a lengthy period of time also increases the possibility that, as a practical matter, the denial of parole may result in the prisoner serving a term of imprisonment disproportionate to his offense. However, the Board does not fix a prisoner’s “base term” until after he or she is found suitable for release, and, as this case demonstrates, judicial review of the denial of a parole date is conventionally limited to inquiring whether it is supported by “some evidence.” As a result, most prisoners, the vast majority of whom are unrepresented by counsel in judicial proceedings, are unable to successfully challenge the denial of parole [938]on the ground that it results in the imposition of a disproportionate sentence, even if, as a practical matter, that is the case. (Indeed, as explained, post, at pp. 941-942, if Morganti had not received judicial relief, by the time of his next parole hearing he would have served a term disproportionate to his crime under Board criteria.)
The difficulty in reconciling the discretion inherent in any indeterminate sentencing with the limits imposed by the principle of proportionality is not a new problem. Morganti’s constitutional claim is similar in some respects to that addressed in In re Minnis (1972) 7 Cal.3d 639 [102 Cal.Rptr. 749, 498 P.2d 997] (Minnis), which arose under the ISL. The inmate in that case contended that although the parole authority evaluated his application for parole according to its usual procedures, which he did not challenge, “it refused to fix his term at less than maximum or to grant him parole on the basis of a ‘policy’ that prisoners who have sold drugs or narcotics ‘purely for profit’ should be retained in prison for the maximum term permissible.” (Id. at p. 642.) The Supreme Court agreed that such a policy “completely disregards the individual prisoner’s conduct in prison and his disposition toward reform. ... If every offender in a like legal category receives identical punishment, prisoners do not receive individualized consideration . . . [which] violates the spirit and frustrates the purposes of the Indeterminate Sentence Law and the parole system.” (Id. at p. 645, fn. omitted.) The court concluded: “An administrative policy of rejecting parole applications solely on the basis of the type of offense with the result that the term of imprisonment is automatically fixed at maximum, although the Authority action includes a pro forma hearing and review of the cumulative case summary, does not satisfy the requirements of individualized treatment and ‘due consideration.’ ” (Id. at p. 647.)
The problem in conducting judicial review of the parole authority’s term-fixing practices was discussed in two subsequent cases: People v. Wingo (1975) 14 Cal.3d 169 [121 Cal.Rptr. 97, 534 P.2d 1001] (Wingo) and People v. Romo (1975) 14 Cal.3d 189 [121 Cal.Rptr. 111, 534 P.2d 1015] (Romo). The defendants in those cases contended their indeterminate life sentences, determined under the ISL, were excessive and amounted to cruel and unusual punishment. The Supreme Court recognized that “a sentence may be unconstitutionally excessive either because the Adult Authority has fixed a term disproportionate to the offense or, in some circumstances, because no term whatever has been set.” (Wingo, at p. 182, italics added.) However, faced with the problems of analyzing the constitutionality of a sentencing statute as applied to a defendant’s particular conduct in the absence of a fixed term, it held that “judicial review must await an initial determination by the Adult Authority of the proper term in the individual case. When the term is fixed a court can then analyze the constitutionality of the statute as applied.” (Id. at p. 183.) Aware that this could cripple an indeterminately sentenced prisoner’s [939]ability to seek judicial relief if the Authority set no term at all, the court further held that “[i]f the Authority, either by omission or by the exercise of its discretion, fails or declines within a reasonable time to set a term, the particular conduct will be measured against the statutory maximum.” (Ibid.)
The ultimate solution to the problems caused by the Adult Authority’s practices presented in Minnis, Wingo, Romo and like cases was fashioned by the Supreme Court in Rodriguez, supra, 14 Cal.3d 639, which was decided in 1975, while the Legislature was in the process of replacing the ISL with the DSL. Cognizant that administration of the ISL by the Adult Authority countenanced constitutionally impermissible prison terms and complicated judicial review of parole decisions allegedly resulting in excessive terms, the Rodriguez court accepted a judicial obligation “to look beyond the facial validity of a statute that is subject to possible unconstitutional administration.” The court reasoned that “a ‘law though “fair on its face and impartial in appearance” may be open to serious abuses in administration and courts may be imposed upon if the substantial rights of the persons charged are not adequately safeguarded at every stage of the proceedings.’ [Citation.]” (Rodriguez, at p. 648.) The “obligation to oversee the execution of the penal laws of California extends not only to judicial proceedings,” the court stated, “but also to the administration of the Indeterminate Sentence Law.” (Ibid.) Concluding that the ISL “is not now being administered in a manner which offers assurance that persons subject thereto will have their terms fixed at a number of years proportionate to their individual culpability [citation], or, that their terms will be fixed with sufficient promptness to permit any requested review of their proportionality to be accomplished before the affected individuals have been imprisoned beyond the constitutionally permitted term,” the Rodriguez court rejected the parole authority’s contention that it “has no obligation, either statutory or constitutional, to ever fix [a life prisoner’s] term at less than life imprisonment.” (Id. at p. 650.)
The judicial concern in Rodriguez was that the Adult Authority was not complying with the legislative intention that it fix terms within the statutory range prescribed by the ISL “that aré not disproportionate to the culpability of the individual offender.” (Rodriguez, supra, 14 Cal.3d at p. 652.) The source of the problem, the court explained, was the authority’s failure to recognize the difference between its responsibility to fix an inmate’s “primary term”— which should not be “disproportionate to the culpability of the individual offender” and must “reflect the circumstances existing at the time of the offense”—and its discretionary power to later reduce the term thus fixed, based on postconviction considerations, through exercise of its parole-granting function. (Id. at pp. 652-653.) Because it improperly conflated these separate and distinct functions, the Adult Authority did not fix an inmate’s primary term until and unless it determined he or she was suitable for parole. The result was that the ISL was “not . . . being administered in a manner [940]which offers assurance that persons subject thereto will have their terms fixed at a number of years proportionate to their individual culpability [citation], or, that their terms will be fixed with sufficient promptness to permit any requested review of their proportionality to be accomplished before the affected individuals have been imprisoned beyond the constitutionally permitted term.” (Id. at p. 650.)
The solution decided upon by the Rodriguez court was to require the Adult Authority to fix the length of a prisoner’s sentence, i.e., the “primary term,” shortly after he or she entered prison, and to later, by granting parole, reduce the primary term in “recognition [of] a prisoner’s good conduct in prison, his efforts toward rehabilitation, and his readiness to lead a crime-free life in society.” (Rodriguez, supra, 14 Cal.3d at p. 652.) The court concluded that this “permits the Authority to retain a prisoner for the full primary term if his release might pose a danger to society [citation] and to revoke parole, rescind an unexecuted grant of parole and refix a reduced term at a greater number of years up to the primary term if the prisoner or parolee engages in conduct which affords cause to believe he cannot or will not conform to the conditions of parole, or would pose a danger to society if free. [Citations.]” (Ibid.)
The Rodriguez court encouraged the Adult Authority to fix prisoners’ primary terms promptly, and ensured inmates would be able to obtain review even if it did not, by announcing that, in the future, for purposes of assessing the constitutionality of an inmate’s term, “the court will deem it to have been fixed at the maximum if the Authority does not act promptly to fix the primary term of a prisoner committed to the Department of Corrections to serve an indeterminate sentence.” (Rodriguez, supra, 14 Cal.3d at p. 654, fn. 18.) The Rodriguez remedy ensured that the maximum term a prisoner might serve would not be disproportionate to his or her offense or, if it was, an inmate could timely seek and obtain judicial relief.
The Rodriguez analysis is directly relevant to the Board’s administration of the present parole system, because the Board’s regulations reinstate the very practice condemned in Rodriguez. As the Supreme Court noted in Dannenberg, supra, 34 Cal.4th 1061, Board regulations interpreting subdivision (a) of section 3041 provide that the Board need not set a “base term” until after it first determines that a life prisoner is suitable for release on parole. (Dannenberg, at p. 1091, citing Cal. Code Regs., tit. 15, §§ 2402, subd. (a), 2403, subd. (a).) In the view of the Dannenberg majority, the function of the “base term” is to “establish[] a parole release date” after “the prisoner is deemed suitable[(—i.e., safe—)]for parole.” (Dannenberg, at p. 1091.). Under the Board’s regulations, the “base term,” which is the equivalent of what Rodriguez referred to as the “primary term,” is “established solely on the gravity of the base crime, taking into account all of the [941]circumstances of that crime” (Cal. Code Regs., tit. 15, § 2403, subd. (a), italics added.)11 Consideration is limited to the gravity of the offense because the purpose of the “base term” is to ensure life prisoners are not confined for a period of time disproportionate to their offense, which the Constitution forbids. The Rodriguez court understood that by conflating the setting of terms with the decision to grant parole—that is, by not fixing the term of imprisonment until after a prisoner is found suitable for release on parole— the Adult Authority was able to deny a parole release date without inquiring whether a finding of unsuitability would result in a sentence disproportionate to the prisoner’s “base crime,” i.e., “the most serious of the murders [the prisoner committed] considering the facts and circumstances of the crime.” (Cal. Code Regs., tit. 15, § 2403, subd. (a).)
Morganti’s situation provides a perfect example of the manner in which the Board’s present practice, like that of the Adult Authority in Rodriguez, operates to undermine the constitutional principle of proportionality. Morganti was convicted of second degree murder in June 1993. If the Board’s denial of his request for parole in 2010 and deferral of his next parole hearing to 2013 were allowed to stand, Morganti would at his next hearing have served 20 years. However, as explained in the margin below, 20 years is longer than the maximum number of years in the triad of sentences applicable to Morganti’s “base crime,” second degree murder.12 In other words, by denying him parole in 2010, and scheduling a subsequent hearing in three years, the earliest allowed under section 3041.5, subdivision (b)(3), the Board has effectively imposed on Morganti a prison term arguably disproportionate to his offense under the Board’s own criteria. This shows that under the Board’s administration of section 3041, a life prisoner’s term of imprisonment is far more [942]significantly “fixed” by the Board’s suitability determination than by its subsequent establishment of the “base term.” As I have said, the suitability determination, which focuses narrowly on the perceived dangerousness of the prisoner, diverts attention from the constitutional requirement of proportionality. The Board’s regulations therefore invite the constitutional problem addressed in Minnis, Rodriguez and other cases and raised again here by Morganti.
Though the Board regulation pertaining to term fixing directs a practice materially the same as that condemned in Rodriguez, the Dannenberg majority distinguished it on the grounds that section 3041 “partially combined the term-setting and parole functions Rodriguez had described as separate under prior law” (Dannenberg, supra, 34 Cal.4th at p. 1090), and “the Legislature has not disturbed the Board’s interpretation of section 3041 in this fundamental regard.” (Id. at p. 1091.)13 Furthermore, under Dannenberg, the public-safety provision of subdivision (b) of section 3041 “takes precedence over the ‘uniform terms’ principle of subdivision (a)” of that statute. (Dannenberg, at p. 1082.) As the court said in that case, “[s]o long as the Board’s finding of unsuitability flows from pertinent criteria, and is supported by ‘some evidence’ in the record before the Board [citation], the overriding statutory concern for public safety in the individual case trumps any expectancy the indeterminate fife inmate may have in [terms] of comparative equality with those served by other similar offenders.” (Id. at p. 1084.)
However, the issue germane to Morganti’s request for discovery and an evidentiary hearing is not uniformity or the “comparative equality” of sentences, a matter governed by statute, but the proportionality of the punishment imposed on him by the denial of a release date, a matter governed not by statute but by the federal and state Constitutions. Although [943]the Dannenberg majority rejected the remedy employed in Rodriguez, it relied on Rodriguez (and Wingo) to recognize that under the DSL even life prisoners are constitutionally protected from excessive confinement. “Of course,” the court stated, “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.” (Dannenberg, supra, 34 Cal.4th at p. 1096, italics added.)
The point of the foregoing discussion, and indeed of this opinion, is that, because it permits the Board to defer the fixing of the “base term” until after a prisoner is found suitable for release—on the basis of the public safety provisions of section 3041, subdivision (b), which are unrelated to and potentially conflict with the principle of proportionality—Dannenberg heightens judicial responsibility to ensure that “the overriding statutory concern for public safety,” which “trumps” the statutory interest in uniform sentences (Dannenberg, supra, 34 Cal.4th at p. 1084), is not also allowed to “trump” prisoners’ constitutional right to sentences proportionate to their offenses. By relying on Rodriguez, Dannenberg implicitly acknowledges the judicial responsibility to scrutinize Board practices that are allegedly inadequate to safeguard the constitutional rights of prisoners and to craft such remedies as may be needed to ensure against the imposition of disproportionate terms.
Morganti’s request for discovery and an evidentiary hearing asks us to discharge this judicial responsibility. What he seeks is an opportunity to persuade the trial court that the Board’s systematic denial of parole to life prisoners is not based on individualized inquiry, as required, but on the basis of a policy that violates due process and does not take proportionality into account, a practice that regularly results in life prisoners like him serving periods of confinement disproportionate to their offenses. Basically, like the petitioner in Rodriguez, Morganti is saying that section 3041 “is not now being administered in a manner which offers assurance that persons subject thereto will have their terms fixed at a number of years proportionate to their individual culpability [citation.]” (Rodriguez, supra, 14 Cal.3d at p. 650.) Also like the petitioner in Rodriguez, Morganti wants to litigate his claim now, before his “base term” is fixed, if it ever is, because by then he is certain to have been confined for a period that amounts to a disproportionate term.
[944]The evidence Morganti provided to the trial court entitles him to factually explore and obtain judicial review of the Board policies and practices he claims fail to safeguard the constitutional rights of life prisoners to individualized consideration of their suitability for release on parole and to terms of imprisonment proportionate to their offenses.
On April 16, 2012, the opinion was modified to read as printed above.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
On July 1, 1977, the ISL was repealed and the determinate sentence law (DSL) (§ 1170 et seq.) became effective. (Stats. 1976, ch. 1139, § 273, p. 5140.)
The explanation for such a significant number of stipulations is noted, post, at page 937, footnote 10.
The attorney who authenticated the statistics stated in a declaration submitted under penalty of perjury that he received them from the Board, apparently pursuant to a stipulation, in a writ proceeding in Marin County Superior Court (In re Rutherford, case No. SC135399A), in which he assisted in the representation of a class of life prisoners claiming that their parole hearings were untimely pursuant to sections 3041 and 3041.5. That litigation ultimately settled.
This study notes that “among the 860 murderers paroled by the Board since 1995, only five individuals have returned to jail or returned to the California Department of Corrections and Rehabilitation[] for new felonies since being released, and none of them recidivated for life-term crimes. This figure represents a lower than one percent recidivism rate, as compared to the state’s overall inmate population recommitment rate to state prison for new crimes of 48.7 percent.” (Life in Limbo, supra, at p. 17, fns. omitted.)
A recent study of the parole decisions of the Board and reversals of Board grants of parole release dates by Governors observes that Governor Davis’s reversals of Board grants of parole constituted “a virtual nullification of the law.” (Life in Limbo, supra, at p. 13.)
The Adult Authority was abolished in 1976 and replaced by the Board of Prison Terms, now known as the Board of Parole Hearings. (§ 5078.)
The majority of such offenders, who are punishable with life imprisonment with the possibility of parole, are those convicted of murder in the first or second degree (§ 190). Other offenses that may be so punishable are kidnapping for ransom, when the victim does not die, does not suffer bodily harm, and was not intentionally confined in a manner that exposed the victim to a substantial likelihood of death (§ 209, subd. (a)); kidnapping for robbery or certain sexual crimes (§ 209, subd. (b)); train wrecking if no one dies as a result of the defendant’s act (§ 219); willful and malicious explosion of a destructive device which causes mayhem or great bodily injury to any person (§ 18755, subd. (b)); attempted willful, deliberate and premeditated murder (as defined in § 189), provided that the fact that the murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact (§ 664, subd. (a); see § 664, subds. (e), (f) (if victim of the attempt is a designated employee of a law enforcement agency); and aggravated mayhem (§ 205). (5 Cal. Criminal Defense Practice: Sentencing and Probation Posttrial Remedies (2011) § 91.101, pp. 91-368 to 91-370 (rel. 68-12/2011).)
The following sex offenses are also subject to an enhancement of life with the possibility of parole: rape or spousal rape by force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§§ 261, subd. (a)(2), (6), 262, subd. (a)(1), (4)); rape, spousal rape, or sexual penetration, in concert, by force or violence (§§ 261, 262, 264.1); lewd or lascivious act on a child under age 14 or on a dependent person (§ 288, subds. (a), (b)); penetration by a foreign object, by force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 289, subds. (a), (k)); sodomy (§ 286, subds. (c)(2), (3), (d); oral copulation (§ 288a, subds. (c)(2), (3), (d)); and continuous sexual abuse of a child (§§ 288.5, 667.61, subd. (c)(9)). (5 Cal. Criminal Defense Practice: Sentencing and Probation Posttrial Remedies, supra, § 91.102, pp. 91-370 to 91-372.1 (rel. 68-12/2011).)
In 1982, section 3041.5 was amended to allow the Board to meet with a prisoner every two years instead of annually. (Former § 3041.5, subd. (b)(2)(A), as amended by Stats. 1982, ch. 1435, § 1, p. 5474.)
This is why a growing number of life prisoners now stipulate to unsuitability or waive the right to a parole hearing. As has been noted, “If an inmate anticipates a high probability of denial of parole at a hearing, s/he often chooses to cancel the hearing as a formal denial by the Board could greatly delay his or her entitlement to a subsequent hearing.” (Life in Limbo, supra, at p. 11.) Board regulations also promulgated in 2008 provide inmates the right to waive a hearing without stipulating to unsuitability. (Cal. Code Regs., tit. 15, § 2253, subd. (b).)
As noted in the majority opinion (maj. opn., ante, p. 914, fn. 4), constitutional challenges to this amendment under the ex post facto clauses of the state and federal constitutions are currently pending before the Supreme Court.
The matrix of base terms for second degree murder—which specifies a range of sentence triads ranging from 15,16, or 17 years at the low end to 19, 20, or 21 years at the high end—is biaxial. The factors included in the first axis all relate to the manner in which the homicide was committed—i.e., whether it was committed (1) indirectly (“e.g., shock producing heart attack, a crime partner actually did the killing”); (2) directly or by the victim (“e.g., victim initiated struggle or had goaded the prisoner”); or (3) death resulted from severe trauma (“e.g., beating, clubbing, stabbing, strangulation, suffocation, burning, multiple wounds inflicted with weapon not resulting in immediate death or actions calculated to induce terror in the victim”). The factors included in the remaining axes all relate to the relationship between the prisoner and his victim; that is, whether the victim (1) “was accomplice or otherwise implicated in a criminal act with the prisoner during which or as a result of which the death occurred”; or (2) “was involved in a personal relationship with prisoner . . . which contributed to the motivation for the act resulting in death”; or (3) “had little or no personal relationship with prisoner or motivation for act resulting in death was related to the accomplishment of another crime.” (Cal. Code Regs., tit. 15, § 2403, subd. (c).)
Under the regulation discussed in the preceding footnote, the fact that Morganti’s homicide inflicted “severe. trauma” on his victim exposes him to three possible base terms ranging from 17, 18, or 19 years to 19, 20 or 21 years; the fact that he and his victim were crime partners limits him to the lowest of the three, which provides for a maximum term of 19 years.
The Dannenberg majority reached this conclusion partly because in 2005 the number of inmates indeterminately sentenced was “but a fraction” of the total prison population, which “diminish[ed] 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.” (Dannenberg, supra, 34 Cal.4th at p. 1097.)
By 2009, the last year for which reliable statistics are available, the number of indeterminately sentenced prisoners in California had grown to 34,160, about one-fifth of the prison population. (Nellis & King, No Exit: The Expanding Use of Life Sentences in America (The Sentencing Project, July 2009) p. 3.) After the reduction in the size of the nonindeterminately sentenced prison population necessary to comply with the directive of the Supreme Court in Brown v. Plata (2011) 563 U.S. _ [179 L.Ed.2d 969, 131 S.Ct. 1910] indeterminately sentenced prisoners will constitute close to one-third of the total population. The growth in the number of indeterminately sentenced prisoners in California is reflected in the fact that the number of such prisoners in 2009 was 56 percent greater than total prison population in 1976, when the DSL was enacted, which was 21,088. (Cal. Dept, of Corrections, Policy & Planning Div., California Prisoners 1977 and 1978, p. 5.)