Filed 5/15/15
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION TWO


In re ROY THINNES BUTLER,                           A139411
        on Habeas Corpus.
                                                    (Alameda County
                                                    Super. Ct. No. 91694B)



        Roy Butler, a parole eligible life prisoner, challenged the constitutionality of the
process used by the Board of Prison Terms (Board) to determine whether prisoners such
as him are suitable for release on parole. Specifically, he contended that the Board’s
practice of deferring the fixing of a prisoner’s base term (which measures individual
culpability for the commitment offense) and adjusted base term (which modifies the base
term on the basis of factors relating to other offenses) until after he or she is deemed
suitable for release, effectively eliminated any meaningful consideration of
proportionality in sentencing during the most crucial portion of the parole process, and
therefore facilitated imposition of constitutionally excessive punishment.
        Before the completion of briefing, the parties settled their dispute by stipulating to
an order of this court directing the Board to publicly announce and implement new
policies and procedures that would result in the setting of base terms and adjusted base
terms at life inmates’ initial parole consideration hearings or, if that hearing had already
taken place, at the next hearing resulting in a grant or denial of parole. We have issued
that order.
        Remaining before the court is petitioner’s motion for an award of reasonable
attorney fees under Code of Civil Procedure section 1021.5 (section 1021.5). The motion




                                               1
raises two distinct issues: whether such fees may be awarded under section 1021.5 and,
if so, the reasonable amount of such fees.
                                     BACKGROUND
       Claiming that the Board “failed to fix his term at a number of years proportionate
to his crime,” as required by law, Butler’s petition focused on the Board’s regulations
and practice of deferring the setting of a base term for a parole eligible life prisoner
unless and until after he or she is found suitable for release on parole. (Cal. Code Regs.,
tit. 15 (Regs.), §§ 2282, subd. (a), 2403, subd. (a).) According to Butler, the challenged
practice failed to comport with article I, section 17, of the California Constitution and the
Eighth Amendment to the United States Constitution, deprived him and all parole eligible
life prisoners a fair parole hearing and the due process guaranteed by the state and federal
Constitutions, and obstructed judicial review of claims that the denial of parole resulted
in constitutionally excessive punishment.
       On January 30, 2012, we ordered the appointment of counsel to represent Butler,
investigate and research whether to file a supplemental petition to refine his claim, and
determine the need for the discovery Butler sought. On February 11, 2013, we appointed
Jon B. Streeter, then a partner in the firm of Keker & Van Nest, counsel for Butler.1
       On May 28, 2013, appointed counsel filed a supplemental petition for writ of
habeas corpus refining the contentions Butler had asserted in his own behalf together
with a motion for discovery.2 We issued an order to show cause on August 9, 2013, but


       1
         After Jon B. Streeter was nominated by the Governor for appointment to this
court, which occurred after the filing of the fee motion before us, he withdrew from the
case and was replaced by Susan J. Harriman, also a partner at Keker & Van Nest, who
was assisted by Sharif E. Jacob and Benita Brahmbhatt, firm associates, who had also
assisted Streeter.
       2
         The supplemental petition also added a claim that the Board’s decision to deny
Butler parole was unsupported by some evidence. Because this individual claim was
distinct from Butler’s constitutional claims, which challenged the parole process
applicable to all life prisoners, we bifurcated the issues into separate cases. With respect
to the individual claim (In re Butler case No. A137273), we granted Butler’s habeas
petition on March 5, 2014. In response to that ruling the Board vacated its decision

                                              2
deferred briefing on the constitutional claims until resolution of Butler’s discovery
motion. On the same day we issued an order directing the Board to produce some of the
materials Butler requested, and directed the parties to meet and confer regarding the
remaining requests. On September 9, 2013, after they met and conferred, the parties filed
a Joint Status Report.
       Several weeks later, after the court conducted an informal discovery conference,
counsel for the parties informed the court they wished to commence settlement
discussions and requested designation of a justice of another division to facilitate that
enterprise. Justice Jim Humes, then a member of Division Four of this court and now
Presiding Justice of Division One, agreed to be so designated. Counsel for the parties, as
well as the executive officer of the Board and its general counsel, participated in three
settlement conferences with Justice Humes.
       At the final conference, on December 13, 2013, the parties settled the case by
stipulating to an order of this court directing, among other things, that: “as soon as is
practicable, the Board shall begin implementation of new policies and procedures that
will result in the setting of base terms and adjusted base terms for life term inmates at
their initial parole consideration hearing, or at the next scheduled parole consideration
hearing that results in a grant of parole, a denial of parole, a tie vote, or a stipulated denial
of parole.” 3 The stipulation also provided that “the Board will commence rulemaking
proceedings designed to memorialize and embody said new policies and procedures.”




denying parole and held a new hearing at which Butler was granted parole. Butler does
not seek to recover fees for his counsel’s work on the individual claim that he was
unlawfully denied parole. (See Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1226
[pointing out that fees may be awarded under section 1021.5 “to only that portion of the
attorneys’ efforts that furthered the litigation issues of public importance”].)
       3
        The Stipulation and Order Regarding Settlement include the following specific
provisos: “The base term will be established pursuant to the matrices and directives
found in California Code of Regulations, title 15, sections 2282-2284, 2320-2321, 2329,
2403-2405, 2423-2425, and 2433-2435. [¶] The adjusted base term refers to the base
term after it has been adjusted for enhancements pursuant to California Code of

                                               3
       On December 16, 2013, upon the request of the parties set forth in their
stipulation, this court issued an order directing that “the Board shall, at the next publicly
noticed Board meeting, announce a policy of calculating the base term and adjusted base
term for all life inmates at the initial parole consideration hearing. The Board will
implement this policy on the first day of the calendar month following the
aforementioned meeting.”
       On October 21, 2014, Butler filed a motion requesting an award of reasonable
attorneys’ fees under section 1021.5. The amount sought is $439,421.65.
       The Board maintains the motion is deficient in two respects: that Butler is not
entitled to fees “because the settlement agreement did not result in the enforcement of an
important right affecting the public interest,” as required by section 1021.5, and that,
even if he is entitled to fees under the statute, the amount Butler requests is unreasonable.
We disagree with the Attorney General’s first contention, but agree with the second.




Regulations, title 15, sections 2285-2288, 2322-2326, 2406-2409, 2426-2428, and 2436-
2438.”
        The terminology of the Stipulation and Order Regarding Settlement is not entirely
consistent with that of the regulations. Many of the relevant regulations refer to “base
term” but some use “base period of confinement” instead. (Regs., §§ 2320, 2329.) More
significantly, the phrase “adjusted base term” does not appear in the regulations. Section
2289 employs “adjusted life term” to describe the result of adding the “specific
enhancements” to the term set for the “life crime,” then deducting preprison credit and
adding time “at large.” (Regs., §§ 2285, 2286, 2289.) Other regulations provide for
“adjustments” to be added to the base term. (Regs., §§ 2406, 2407, 2408, 2409, 2411,
2426, 2427, 2428.) Under regulations section 2411, the “adjusted period of confinement”
is the result of adding the term for the base crime and “adjustments,” then subtracting
postconviction credit. (Regs., § 2411.) Still other regulations refer to “adjustments” for
preconviction, conviction, and postconviction factors which may increase or decrease the
“total period of confinement.” (Regs., §§ 2319, 2322, 2323, 2324.)
       It is to be hoped that in promulgating its new regulations pursuant to the
settlement, the Board will take advantage of the opportunity to simplify the regulations
and reduce the confusion that may result from the varying terminology.


                                              4
                                                 I.
              Butler is Entitled to an Award of Fees Under Section 1021.5
       As material, section 1021.5 provides that “a court may award attorneys’ fees to a
successful party . . . in any action which has resulted in the enforcement of an important
right affecting the public interest if: (a) a significant benefit, whether pecuniary or
nonpecuniary, has been conferred on the general public or a large class of persons, (b) the
necessity and financial burden of private enforcement, or of enforcement by one public
entity against another public entity, are such as to make the award appropriate, and (c)
such fees should not in the interest of justice be paid out of the recovery, if any.”
(§ 1021.5.) “ ‘The determination that the public policy vindicated is one of constitutional
stature . . . establishes the first of the . . . elements requisite to the award (i.e., the relative
societal importance of the public policy vindicated).’ ” (Press v. Lucky Stores, Inc.
(1983) 34 Cal.3d 311, 318, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 46, fn. 18.)
Moreover, the California Supreme Court has recognized that prisoners’ constitutional
rights “reflect strong public policies, any institutional violation of which of necessity
affects a large number of persons, most of whom are ill equipped by education, training,
or financial ability to initiate and adequately prosecute legal actions to vindicate those
rights without the assistance of counsel.” (In re Head (1986) 42 Cal.3d 223, 229.)
       “[R]elief obtained through a settlement may qualify a [litigant] as the prevailing
party, even in the presence of a stipulation disclaiming liability on the merits.” (Lyons v.
Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, at p. 1345) “The critical fact is the
impact of the action, not the manner of its resolution.” (Folsom v. Butte County Assn. of
Governments (1982) 32 Cal.3d 668, 685.) It is also undisputed that prison inmates who
successfully challenge in habeas corpus proceedings the procedures they are subjected to
by prison authorities may be awarded attorney fees under section 1021.5. (In re Head,
supra, 42 Cal.3d 223.)
       The controversy in this case thus comes down to whether “a significant benefit,
whether pecuniary or nonpecuniary, has been conferred on the general public or a large
class of persons.” (§ 1021.5.) The parties’ fundamental disagreement is over the role of


                                                 5
the “base term” and “adjusted base term” in the sentencing scheme prescribed by the
Determinate Sentence Law (DSL) (Pen. Code, § 1170, et seq.), and the practical
significance of prompt term-setting.
                                             A.
                       The Competing Contentions of the Parties
       The penal purpose of the DSL and the sentencing principles it is built upon are set
forth in the statute’s opening sentences: “The Legislature finds and declares that the
purpose of imprisonment for crime is punishment. This 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.” (Pen.
Code, § 1170, subd. (a)(1).) Proportionality refers to individual culpability based on the
circumstances of a particular crime (In re Dannenberg (2005) 34 Cal.4th 1061, 1096
(Dannenberg)), while uniformity, as indicated in Penal Code section 1170, refers to a
comparison between offenders committing similar offenses in similar circumstances.
Butler believes the base and adjusted base terms referred to in the settlement are the
measure of the proportionality in sentencing the DSL was designed to achieve; whereas
the Board sees these terms as measures only of uniformity in sentencing.
       According to Butler, the Board’s former policy of deferring the setting of the base
and adjusted base terms term until the inmate was found suitable for release was
conducive to disproportionate sentencing because it excluded any consideration of
individual culpability for the commitment offense—which is the referent of
proportionality—during the most crucial portion of the parole process. Butler maintains
that the effect of the Board’s former practice of deferring the setting of the base term was
to “untether” the Board’s determinations of inmate suitability for release on parole from
any consideration of the proportionality of the sentence that resulted from denying parole.
As Butler sees it, under the Board’s former practice, proportionality (and uniformity)
were not taken into account by the Board until after constitutionally excessive
punishment had already been imposed by the systematic denial of prior requests for
release on parole. Butler’s request for an award of fees under section 1021.5 is based on


                                             6
the theory that prompt setting of the base and adjusted base term required by the
settlement helps “ensure life prisoners do not serve terms disproportionate to the
culpability of the individual offender.” (In re Stoneroad (2013) 215 Cal.App.4th 596, at
p. 617.)
       Focusing on uniformity rather than proportionality, the Board sees the issue very
differently. According to it, the settlement and stipulated order merely create “a new,
mutually beneficial term-setting policy,” not “the vindication of a right the Board had
previously violated or curtailed.” This is so, the Board argues, “because the ‘right’
[Butler] asserts—that of a base term calculation at the initial parole suitability hearing—
did not exist until the settlement went into effect.” According to the Board, “Butler did
not demonstrate, and no court has held, that the Board’s previous practice of setting the
base term only after a finding of parole suitability was unlawful or violated a public right.
On the contrary, the Supreme Court explicitly upheld this practice in In re Dannenberg,
supra, 34 Cal.4th at page 1095, finding that the Board need not ‘refer to its base term
matrices . . . before deeming a particular life inmate unsuitable’ for parole. Nor is there a
statutory requirement that a base term be set before a finding of suitability for parole.
[Citation.] Put simply, Butler cannot establish that the settlement resulted in the
enforcement of an important right when the right he asserts never existed in the first
place.”
       Putting aside for a moment the meaning and effect of Dannenberg, supra, 34
Cal.4th 1061, the Board mischaracterizes Butler’s contention. Butler did not assert a pre-
existing right to calculation of a base term before the determination of suitability for
parole release. His claim was that the Board’s prior term-setting practice permitted the
violation of his and other inmates’ right to a constitutionally proportionate sentence. The
prompt term-setting agreed to in the settlement, which will ensure consideration of
proportionality at a meaningful stage of the parole process, is a means of rectifying this
problem.
       The Board’s contention that that Butler cannot be awarded fees under section
1021.5 without demonstrating that the Board’s previous term-setting practice “was


                                              7
unlawful or violated a public right” or “that the Board did ‘something to adversely affect
the public interest’ that was cured through [this] litigation” is misguided. The only
authority the Board cites in support of its interpretation of the requirements of section
1021.5 is language in In re Joshua S. (2008) 42 Cal.4th 945 (Joshua S.). Unlike the
present case, Joshua S. was not settled and did not relate to the question whether the
litigation enforced an important right or conferred a “substantial benefit.” The issue in
the case related instead to “the necessity and financial burden of private enforcement”
(ibid.) requirement.4 Most importantly, as the Supreme Court later noted, Joshua S. “did
not explicate or apply the usual section 1021.5 criteria. . . . Instead, . . . we recognized an
exception to be applied in cases where all three factors [required by section 1021.5] are
satisfied, but the party from whom fees are sought ‘is not the type of party on whom
private attorney general fees were intended to be imposed.’ (Joshua S., at p. 953.)”
(Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1027, fn. omitted.)
       Further, contrary to the Board’s suggestion, Dannenberg did not render Butler’s
legal claim untenable. The Board relies upon the Dannenberg court’s holding that,
because dangerousness and public safety take precedence over uniformity in sentencing,


       4
         Joshua S. was a suit between former domestic partners concerning the validity of
a “second parent” adoption for unmarried same-sex parents. The birthmother tried but
failed to prevent her former partner from legally adopting the child, and the parties
agreed, as did the Court of Appeal and the Supreme Court, that the litigation “did yield a
substantial and widespread public benefit.” (Joshua S., supra, 42 Cal.4th at p. 952.)
Nevertheless, the Supreme Court concluded that “even when an important rights has been
vindicated and a substantial benefit conferred, and when a plaintiff’s litigation has
transcended her personal interest, . . . section 1025.1 was not intended to impose fees on
an individual seeking a judgment that determines only his or her private rights, but who
has done nothing to adversely affect the public interest other than being on the losing side
of an important appellate case.” (Id. at p. 958.) The situation in this case bears no
similarity to that in Joshua S. Unlike his distinct claim that there is not some evidence
justifying the denial of his application for parole, which we have separated from the
present proceeding, Butler’s challenge to the constitutionality of the parole process—
which was the only claim he advanced in propria persona prior to the appointment of
counsel—was designed to protect the rights of a large class of similarly situated prison
inmates.


                                               8
the Board need not set the base term for an inmate until after it has found the inmate not
dangerous (i.e., suitable for release on parole). But, unlike the defendant in Dannenberg,
Butler’s challenge to the Board’s former term-setting practice was based on
proportionality, not uniformity, in sentencing. While uniformity is mandated by statute,
proportionality is mandated by the cruel and/or unusual punishment provisions of the
state and federal Constitutions. (Dannenberg, supra, 34 Cal.4th at p. 1096.)
       The central issue in Dannenberg was how to reconcile the tension between the
commands of subdivisions (a) and (b) of Penal Code section 3041. The Court of Appeal
had determined that subdivision (a) —which provides that a “release date shall be set in a
manner that will provide uniform terms for offenses of similar gravity and magnitude
with respect to their threat to the public” —took precedence over Penal Code section
3041, subdivision (b) —which provides that the Board “shall set a release date unless
“consideration of the public safety requires a more lengthy period of incarceration for this
individual, and that a parole date, therefore, cannot be fixed”—so that the parole board
(then the Board of Prison Terms) “(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, supra, 34 Cal.4th at p. 1081.)
       The Supreme Court disagreed, holding that “[t]he words of [Penal Code] 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.’ ” (Dannenberg,
supra, 34 Cal.4th at p. 1082.) Pointing out that the DSL treats life prisoners differently
from determinately sentenced prisoners, and subdivision (b) of Penal Code section 3041
does not say that in evaluating suitability for release the parole authority “must consider


                                              9
term uniformity in any respect” (Dannenberg, at p. 1083), the Dannenberg majority
approved Board regulations specifying that, “when considering parole for a particular
indeterminate life [prisoner], the Board shall first determine suitability and set a base
term (thus establishing a parole release date) if the prisoner is deemed suitable for
parole.” (Id. at p. 1091, citing Regs., §§ 2402, subd. (a), 2403, subd. (a).)
       Dannenberg thus stands for the proposition that dangerousness, or “public safety,”
trumps the uniformity in sentencing also prescribed by the DSL. The point the Board
draws from Dannenberg is that the matrices used to set the base term do not measure the
constitutional proportionality of a sentence, as Butler maintains, but simply indicate that a
disparate sentence resulting from a denial of parole does not violate the uniformity
requirement set forth in Penal Code section 3041. Because it sees the base term as a
measure of uniformity, and Dannenberg says uniformity is subordinate to public safety,
the Board reasons that determining whether a sentence is uniform or disparate before an
inmate is found suitable for release is no more beneficial to the inmate than the prior
practice of doing so afterward. Therefore, the Board believes that fixing the base term at
the initial parole hearing, as it has agreed to do, does not result in the enforcement of a
right and an award of attorney fees under section 1021.5 is unwarranted.
       This reasoning makes a mockery of the settlement, is based on a far too limited
reading of Dannenberg, and disregards the relationship between uniformity and
proportionality in sentencing. Most importantly, it ignores the role the base and adjusted
base terms play in promoting proportionality, which is both constitutionally mandated
and an express goal of the DSL.
       Dannenberg explained that although dangerousness trumps uniformity, it does not
trump proportionality. The Dannenberg majority stated: “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.” (Dannenberg, supra, 34 Cal.4th at p. 1096, citing In re
Rodriguez (1975) 14 Cal.3d 639, 646-656 (Rodriguez) and People v. Wingo (1975) 14


                                              10
Cal.3d 169, 175-183 (Wingo).) “Thus, we acknowledge, [Penal Code,] 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, at p.
1096, italics added.) The Board conveniently ignores this portion of Dannenberg, but it
is the part of the opinion Butler most heavily relies upon. While Dannenberg focused on
the base term matrices as a measure of uniformity in sentencing,5 nothing in the opinion
suggests they do not also provide a basis upon which to analyze the proportionality of
punishment resulting from the denial of parole.
       As we shall explain, we agree with Butler that the base and adjusted base terms
relate to proportionality, as well as uniformity, although we agree with the Board that the
adjusted base term does not necessarily represent the maximum punishment that may
constitutionally be imposed on a prisoner.
                                             B.
                        The Base and Adjusted Base Terms Relate
                         to Both Uniformity and Proportionality
       The parties’ conflicting contentions as to the purpose and effect of the prompt
term-fixing required by the settlement and stipulated order boil down to (1) the question
whether the base and adjusted base terms relate only to uniformity or to proportionality as
well, and (2) the significance of whether the Board considers the bearing of uniformity
and proportionality on the decision whether to grant a prisoner parole early in the parole
process or only after the prisoner has been found suitable for release.
       The Board’s position is concisely summed up in the following provision of its
regulations (which is not among the regulations referred to in the Stipulation and Order
Regarding Settlement): “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.” (Regs., §§ 2402,
subd. (a), 2422, subd. (a), italics added.) This declaration of authority is staggering.

       5
       For example, the opinion refers to the Board’s “own uniform-term ‘matrices.’ ”
(Dannenberg, supra, 34 Cal.4th at p. 1069.)


                                             11
Blinding itself to the fact that, as Dannenberg acknowledges, there is a point at which
any sentence will become constitutionally excessive if it is “grossly disproportionate” to
the prisoner’s individual culpability for the commitment offense, the Board rejects any
limit on its authority to deny a prisoner release from prison based on its prediction that he
or she presents a public safety risk.
       As we shall see, the base and adjusted base terms relate to proportionality, as well
as uniformity. But even if, as the Board says, they related only to uniformity, the
settlement would confer a substantial benefit on life prisoners because uniformity
remains an important purpose of the DSL even after Dannenberg. In determining
suitability for parole, the Board is required by its own regulations to consider “[a]ll
relevant, reliable information available” to it. (Regs., §§ 2281, subd. (b), 2402, subd.
(b).) Since the DSL was designed to discourage disparate sentencing, the resulting
uniformity or disparity of a sentence is surely “relevant” to the Board’s parole decision.
Whether the prison term resulting from a denial of parole would be disparate to terms
imposed on others who committed the same offense in similar ways and circumstances is
not reduced to irrelevance simply because it is not controlling. Moreover, prompt term
setting would make the Board, other interested parties, and the public, aware of the extent
to which the denial of parole led to disparate sentencing.
       The effect of fixing of the base and adjusted base terms at the time of the initial
parole hearing is to introduce uniformity in sentencing into the process of determining
inmates’ suitability for release on parole. Doing so promotes one of the two sentencing
principles that inform the DSL and will advance its goals and benefit life prisoners.
Accordingly, even if the settlement served only this purpose, it would confer a significant
benefit warranting an award of attorney fees under section 1021.5.
       In any case, it is clear that the base and adjusted base terms relate to
proportionality as well. Uniformity and proportionality, the dual sentencing principles
the Legislature thought best served the punitive purpose of the DSL (Pen. Code, § 1170,
subd. (a)(1)), are conceptually related. The principles can conflict: Imposing the same
sentence on all persons convicted of an offense would serve the purpose of uniformity,


                                              12
but it would disserve the principle of proportionality, because no offense is always
committed in the same circumstances and those who commit the same offense are not all
equally culpable or blameworthy. But the two sentencing principles usually do not
conflict and in practice they are largely complementary. Both are linked to retribution
and both also serve the law’s preference for discernible norms and enhance public respect
for the criminal law and criminal justice systems, which is essential to the reduction of
crime. (Frase, Punishment Purposes (2005) 58 Stan. L.Rev. 67, 74-79.)
“[P]roportionality and uniformity of sentencing are based on widely shared fairness
concerns, so highly disparate penalties are likely to reduce the public’s willingness to
obey the law and cooperate with law enforcement.” (Id. at p. 75; see also Hart,
Punishment and Responsibility: Essays in the Philosophy of Law (1968) p. 25 [if “the
relative severity of penalties diverges sharply from this rough [proportionality] scale,
there is a risk of either confusing common morality or flouting it and bringing the law
into contempt”].)
       The declaration in the first sentence of the DSL that “the purpose of imprisonment
for crime is punishment” (Pen. Code, § 1170, subd. (a)(1) bespeaks a retributive theory of
punishment. But the statement is leavened by the declaration in the following sentence
that the punitive purpose “is best served by terms proportionate to the seriousness of the
offense with provision for uniformity in the sentences of offenders,” which operates to
limit the severity of the punishment that can be imposed. Virtually all contemporary
sentencing systems adopt some form of what has been referred to as “limiting
retributivism” or a “modified just deserts” approach. (Morris, Madness and the Criminal
Law (1982) pp. 161, 182-187, 196-200.) Punishment based solely on a retributive
principle “leaves very little room for consideration of other punishment purposes, and no
jurisdiction in the United States or elsewhere has ever adopted such a one-dimensional
approach.” (Frase, Punishment Purposes, supra, 58 Stan. L.Rev. at p. 76; Excessive
Prison Sentences, Punishment Goals, and the Eighth Amendment: “Proportionality”
Relative to What? (2005) 89 Minn. L.Rev. 571, 589-593.) The dual requirements of
uniformity and proportionality clearly reflect a legislative desire to place limits on the


                                             13
largely unmitigated retributivism that might otherwise result from a parole system
governed solely by predictions of whether an inmate presented a threat to public safety.
In the wake of Dannenberg, the only limitation that may be placed on the retributivism
that can be visited on life prisoners through the systematic denial of parole is the
constitutional prohibition of excessive punishment. The Board’s position that it may
deny a prisoner release on parole based on its determination that he or she presents a
danger to public safety “regardless of the length of time served” by the prisoner (Regs.,
§§ 2281, subd. (a), 2402, subd. (a)) would remove all limits on the severity of
punishment the Board can impose.
       That the base term and adjusted base term relate to proportionality, and can serve
as useful indicators of whether denial of parole will result in constitutionally excessive
punishment, is evident in the fact that the matters considered by the Board when it sets
the base term relate almost entirely to a prisoner’s individual culpability for the base
offense. It is also clear from the genesis of these concepts and the guidelines that define
them, which were adopted by a former parole board precisely in order to measure
constitutional proportionality during the parole granting process.
       Under current regulations, the base term is “established solely on the gravity of the
base crime, taking into account all of the circumstances of that crime.” 6 (Regs., § 2403,
subd. (a), italics added.) 7 The manner in which calculation of the base and adjusted base

       6
        If the prisoner has been sentenced for more than one murder, the “base crime” is
 the “most serious of the murders considering the facts and circumstances of the crime.”
 (Regs., § 2403, subd. (a).)
       7
          The existing Board regulations specify different parole procedures and
considerations for different categories of prisoners, and determining the regulations
applicable to a given case can be challenging. Prisoners who, like Butler, were sentenced
for first or second degree murders committed on or after November 8, 1978, or for certain
types of attempted murder, are governed by title 15, division 2, chapter 3, article 11
(§§ 2400-2411). (Regs., § 2400.) Parole for life prisoners whose crimes were committed
before July 1, 1977, is governed by “rules in effect prior to 7/1/77.” (Regs., § 2292.) The
regulations applicable to life prisoners whose offenses were committed after July 1, 1977,
and before November 8, 1978, as well as those whose offenses do not put them within the
purview of article 11, are governed by article 5 (§§ 2280- 2292 of tit. 15). (Regs.,

                                             14
terms takes the circumstances of the commitment offense into account can be illustrated
by using Butler’s crime, second degree murder, as an example.
       The matrix of base terms for this offense, which carries a term of 15 years to life,
prescribes sentence triads ranging from 15-16-17 years to 19-20-21. The horizontal axis
of the matrix applicable to second degree murder relates to the manner in which the
inmate murdered his victim, dividing culpability into three categories: (1) cases in which
the victim died of causes only indirectly related to the prisoner’s act (as where a crime
partner actually did the killing), (2) cases in which death was directly caused by the
prisoner but the victim contributed (as by goading the prisoner), and (3) cases in which
death resulted from severe trauma inflicted by the prisoner with deadly intensity. (Regs.,
§ 2403, subd. (c).) The vertical axis of the matrix for second degree murder relates to the
relationship of the prisoner to his victim and also divides culpability into three categories:
(1) the victim was an accomplice or otherwise implicated in the commission of the
prisoner’s base offense; (2) the victim was involved in a personal relationship with the
prisoner, such as a spouse or friend, which contributed to the motivation for the act
resulting in death; and (3) the prisoner had little or no personal relationship with the
victim or the motivation for the criminal act was related to the commission of another
crime, as where the victim was killed by the prisoner in the course of a robbery. The
Board panel must “determine the category [on each axis] most closely related to the
circumstances of the crime” and must “impose the middle base term reflected in the
matrix unless the panel finds circumstances in aggravation or mitigation.” (Regs., 2403,
subd. (a).)
       The “adjusted base term” refers to additional terms, or “enhancements,” the Board
may impose for using a deadly or dangerous weapon, being armed with or using a

§§ 2292, 2400.) The provisions of articles 6 (§§ 2300-2310) and 7 (§§ 2315-2329) apply
to ISL prisoners. (Regs., § 2300.) Article 12 (§§ 2420-2429.1) governs parole
procedures for habitual offenders sentenced to life terms and article 13 (§§ 2430-2439.1)
applies to sex offenders sentenced to life terms. Among other things, the regulations set
forth different base term matrices for the different categories of prisoners. (Regs.,
§§ 2282, subd. (b), 2329, 2403, subd. (b), 2423, subd. (b).)


                                             15
firearm, causing “great loss,” serving prior prison terms, or for the concomitant
commission of “other offenses.” (Regs., §§ 2285, 2286, 2406, 2407.) 8 Such additional
terms may in turn be increased or lowered for enumerated aggravating or mitigating
circumstances relating to “other crimes.” (Regs., §§ 2287, 2288, 2408, 2409.)9
       Focusing on the particular circumstances of the commitment offense and the
offender at the time it was committed, the regulations make clear that the base term is
meant to reflect individual culpability. Individual culpability, as we have discussed, is
the measure of proportionality. (Dannenberg, supra, 34 Cal.4th at p. 1096.)10 In


       8
        The factors that may later serve to reduce the base term, such as credit for
presentence custody and prison conduct (Regs., §§ 2290, 2410), are based on
circumstances occurring after commission of the base crime and are therefore unrelated
to proportionality analysis.
       9
         Thus, for example, aggravating factors permitting the Board to increase the
additional term include commission of other crimes in which “[a] victim was seriously
injured or killed in the course of the other crime,” “the other crime was part of a series of
crimes which occurred during a single period of time,” the other crime “indicates a
significant pattern of increasingly serious criminal conduct,” “[t]he other crime was one
of a series of crimes which occurred during a single period of time,” the prisoner
committed multiple crimes indicating “a significant pattern of criminal; behavior rather
than a single period of aberrant behavior,” “[t]he prisoner was on probation or parole or
was in custody or had escaped from custody when the crime was committed,” or “[t]he
victim was particularly vulnerable.” (Regs., § 2408. subds. (a)-(f); see also Regs.,
§ 2287, subds. (a)-(e).) The mitigating factors allowing the Board to lower the additional
term include successful completion of probation or parole, “an insignificant pattern of
prior criminal behavior,” “the prisoner was granted probation after conviction of the other
crime.” (Regs., § 2409, subds. (a)-(c); see also Regs., § 2288, subds. (a)-(d).)
       10
           The concept of proportionality, which has roots in the Old Testament (Exodus
21:23-24 (King James)), rests on the moral proposition that it is just to punish a
wrongdoer by inflicting on him a type and degree of harm comparable to that he or she
inflicted on the victim. Because the biblical concept of punishment—“an eye for an eye,”
or lex talionis—was based only on the injury suffered by the victim and ignored the
circumstances in which it was inflicted, the concept of punishment came to be seen as
morally questionable as early as the eighteenth century. As Blackstone said, “the
difference of persons, place, time, provocation, or other circumstances, may enhance or
mitigate the offense; and in such cases retaliation can never be a proper measure of
justice.” (4 Blackstone, Commentaries on the Laws of England (1769) at p. 13; see also
Beccaria, On Crimes and Punishments (Henry Paolucci trans., 1963) (1768).) As a result,

                                             16
determining whether a sentence is cruel or unusual as applied to a particular offender, “ ‘a
reviewing court must examine the circumstances of the offense, including its motive, the
extent of the defendant’s involvement in the crime, the manner in which the crime was
committed and the consequences of the defendant’s acts.’ ” (People v. Leonard (2007)
40 Cal.4th 1370, at p. 1426, quoting People v. Dillon (1983) 34 Cal.3d 441, at p. 479.)
These are precisely the considerations focused upon by the base term matrices and other
directives regarding calculation of the base and adjusted base terms. Thus, while the
Board’s matrices and associated directives and adjustments promote uniformity by
applying the same yardstick to all inmates who have committed the same crime for
similar purposes in similar circumstances, it is absurd to think the base and adjusted base
terms are not also measures of proportionality.11
       The history of the base term concept underscores this point. Prior to enactment of
the DSL, under the Indeterminate Sentencing Law (ISL), the parole authority was
empowered both to fix a prisoner’s actual maximum term and to grant earlier parole.
(Dannenberg, supra, 34 Cal.4th at pp. 1096-1097.) In Rodriguez, the California Supreme
Court condemned the parole authority’s practice of deferring setting of a maximum term
until the prisoner was deemed ready for parole, which failed to ensure prisoners would be

the formulation of proportionality evolved over time into a broader inquiry about
culpability; that is to “the proportionality between the crime or offense—a concept that
includes the mental state of the wrongdoer, other circumstances of the crime, and the
victim’s injury—and the punishment.” (Balmer, Some Thoughts on Proportionality
(2008) 87 Oregon. L.Rev. 783, 786, 791, fn. 35; accord, Model Penal Code: Sentencing
§ 1.02(2)(a)(1) [first “purpose” of the sentencing provisions is “to render sentences in all
cases within a range of severity proportionate to the gravity of sentences, the arms done
to crime victims, and the blameworthiness of offenders”].)
       11
         As a Justice of the Oregon Supreme Court has observed, the rationality and
proportionality promoted by matrices and related sentencing guidelines similar to those in
the Board regulations (and specified in the settlement and stipulated order) “were
undermined in the 1990’s by the widespread adoption of ‘three strikes you’re out’
provisions . . . and mandatory minimum sentences for many specific offenses . . . [which]
often were adopted without regard for the gradations established in the existing
sentencing guidelines.” (Balmer, Some Thoughts on Proportionality, supra, 87 Or.
L.Rev. p. 792, fn. 41.)


                                             17
subjected to terms “proportionate to their individual culpability” (Rodriguez, supra, 14
Cal.3d at p. 650), and required it to promptly “set a maximum term for every
indeterminate sentence, tailored to his or her individual culpability.” (Dannenberg, at p.
1097; Rodriguez, at pp. 650-653.) In order to avoid unconstitutional disproportionate
punishment, the fixed maximum term (referred to as the “primary term”) was required to
be based on “the circumstances existing at the time of the offense,” while the decision to
grant earlier parole was based largely “on occurrences subsequent to the commission of
the offense.” (Rodriguez, at p. 652.)
       In response to Rodriguez, the Adult Authority adopted regulations applying its
requirements to prisoners sentenced to indeterminate life terms under the DSL. These
regulations (former 15 Cal. Admin. Code, §§ 2000-2725 (1976 Regs.)) required the
setting of a “primary term” shortly after an inmate entered prison, and defined that term
as “the maximum period of time which is constitutionally proportionate to the
individual’s culpability for the crime.” (1976 Regs., § 2100, subd. (a), italics added.)
Under the regulations, the primary term consisted of a “base term” reflecting the
circumstances of the crime pertinent to the inmate’s culpability, and “adjustments for the
individual’s criminal history (prior prison terms and current commitments). (Id. at
§ 2150.)12 Thus, the original purpose of the base term concept was to establish the
constitutional limit of punishment by reference to proportionality.


       12
          The 1976 regulations provided suggested ranges of punishment for a given
crime, with alternatives depending on whether the Adult authority characterized the crime
as a mitigated, typical or aggravated crime of that type, and suggested adjustment ranges.
(Id., §§ 2151, 2152, 2225, 2226.) Once fixed, the primary term could not be “refixed
upward” unless the term was illegally fixed, a clerical error was made, or significant
information was fraudulently withheld from the parole board.” (Id., § 2102, subd. (a).)
        The 1976 regulations derived from a directive issued by the Director of the Adult
Authority on September 2, 1975, about two months after Rodriguez was decided, entitled
“Implementation of Rodriguez.” (Chairman’s Directive No. 75/30). Under the Directive,
the setting of the primary term could be based only on information pertaining to the
inmate’s culpability for the commitment offense, past history and personality could be
considered, but not information relating to conduct “subsequent to the offense.” (Id.,
§ IV.A.) The Directive stated that because prior to Rodriguez inmates’ terms could be re-

                                             18
       The current Board’s past practice of deferring the setting of base and adjusted base
terms until an inmate was found suitable for parole meant that neither uniformity nor
proportionality were considered until an inmate was deemed ready for release. Although
the DSL provides that the Board “shall normally set a parole release date” for life
prisoners prior to the inmate’s initial parole hearing (Pen. Code, § 3041, subd. (a)), it is
common knowledge among all familiar with the Board’s administration of the parole
system that this almost never happens. A 2011 study found that life prisoners, who due
primarily to their age when they become eligible for parole have a “miniscule” rate of
recidivism, were granted parole during the studied period at only 2.2 percent of initial
parole hearings and at less than 15 percent of all subsequent hearings. (Weisberg et al.,
Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences
with the Possibility of Parole in California, Stanford Criminal Justice Center (September
2011) at p. 18) (Stanford Study) The Stanford Study also examined the result of
subsequent parole hearings afforded 239 inmates who, like Butler, were convicted of
second degree murder. Of that group, 195 (81.6 percent) were denied parole and only 44
(18.4 percent) were granted parole. The average time already served by all 239 inmates
at the time of the hearing was 20.1 years. (Stanford Study, Chart 14, at p. 20.) Twenty
years is the midterm specified by the most aggravated sentence triad applicable to second
degree murder, which is appropriate only in the extreme situation in which the prisoner
inflicted severe trauma “calculated to induce terror in the victim” with whom he has
“little or no personal relationship.” (Regs., § 2403, subd. (c).)
       Assuming the Board would not knowingly subject inmates to disproportionate
sentences, it is logical to conclude that the high rates of parole denial resulted in
significant measure from the fact that the Board’s former practice did not consider the


fixed based on events subsequent to the commitment offense, some inmates were
currently “serving terms disproportionate to the commitment offense, based on their
subsequent history” and would be “entitled to discharge under the new procedures.” (Id.,
§ V.F.; see also Cassou & Taugher (1978) Determinate Sentencing in California: The
New Numbers Game, 9 Pac. L.Rev. 5, 16.)


                                              19
uniformity and proportionality of a sentence until after it had been imposed by a grant of
release. The Stanford Study thus indicates that the Board’s failure to promptly fix terms
and consider uniformity and proportionality during the process of determining suitability
for release on parole resulted in the denial of parole to many prisoners who had already
been serving sentences which, under the Board’s own criteria, were both disparate and
disproportionate.13
       The settlement and stipulated order will rectify or at least diminish this and other
problems attributable to the Board’s former policy and practice. As discussed in
Rodriguez, prompt term-fixing will not only alleviate the uncertainty and anxiety of
prisoners, which is a cause of violence and a disincentive to rehabilitation, but reduce the
likelihood that the postconviction factors that formerly dominated the determination of
punishment will result in disproportionate sentences. (Rodriguez, supra, 14 Cal.3d at
p. 654, fn. 18.) Given the Legislature’s declaration that the purpose of imprisonment in
this state—namely, “punishment”—“is best served by terms proportionate to the
seriousness of the offense” (Pen. Code, § 1170, subd. (a)(1)), this is no small
achievement.
       Further, as also discussed in Rodriguez, the prompt determination of base and
adjusted base terms to which the Board has agreed will facilitate judicial review.
(Rodriguez, supra, 14 Cal.3d at p. 654, fn. 18.) Whether the punishment imposed on a
particular prisoner is constitutionally excessive is of course ultimately for the courts to
decide, not the Board. Unlike the 1976 regulations promulgated in response to Rodriguez

       13
         Indeed, this appears to have happened in Butler’s case. At the time he filed his
supplemental habeas corpus petition in 2013, Butler had been incarcerated for 26 years
and been eligible for parole since 1998, i.e., for 15 years. At his last parole hearing—
which was conducted on April 25, 2014, after we had set aside the Board’s fifth denial of
parole—Butler was granted parole and the Board then calculated his base term to be 17
years and awarded him 82 months of postconviction credit. Thus, when at his sixth
parole hearing, the Board finally measured Butler’s individual culpability for the
commission of his life offense he had already served almost a decade longer than
required by his base term—even without taking into account the nearly seven years of
postconviction credit by which his term was reduced.


                                              20
(see discussion, ante, at p. 14), the Board regulations specified in the settlement and
stipulated order as governing establishment of the base and adjusted base terms (cited,
ante, at p. 3, fn. 3) do not indicate that the base and adjusted base terms the Board
promptly fixes for a particular prisoner constitute the Board’s estimate of the maximum
prison term constitutionally proportionate to that prisoner’s culpability for his or her base
crime. Nor do any of the specified regulations prohibit the Board from refixing a base or
adjusted base term. Nevertheless, the base and adjusted base terms represent an
approximation of the punishment the Board deems proportionate to the particular
prisoner’s offense. Having those terms set promptly therefore will greatly strengthen life
prisoners’ ability to present claims of constitutionally excessive punishment.
       A reviewing court can most usefully analyze a life prisoner’s claim that the denial
of parole results in a cruel and/or unusual punishment after the parole authority has
established a term that can be subjected to judicial review. Drawing again on Rodriguez,
“[w]ere unrepresented prisoners required to take the initiative by seeking relief at such
time as they believed their continued imprisonment to be constitutionally impermissible,
not only might abuses such as that in the instant case . . . recur, but courts would
continue, as now, to receive inadequate petitions unaccompanied by necessary supporting
data. Since prison inmates understandably lack perspective as to the propriety of their
continued incarceration, and also lack the ability to marshal the facts and applicable law
in support of their claims, it is probable that courts would be burdened by a flood of
meritless petitions. Each inmate would seek relief . . . when denied parole and/or term-
fixing by the [parole authority] in the hope that the court would agree that he had been
imprisoned for a sufficient length of time. Once the primary term is fixed by the [parole
authority], however, all of the relevant data regarding the particular inmate, the
circumstances of his offense, and the criteria upon which the term is based will have been
marshaled by the [parole authority], thus enabling petitioner to set out the basis or bases
for his complaint, while at the same time providing the court with a record adequate to
permit meaningful review.” (Rodriguez, supra, 14 Cal.3d at p. 654, fn. 18.)



                                             21
       Under the stipulated order, prisoners like Butler repeatedly denied parole after
having served their adjusted base terms would at least be able—as they formerly were not
—to credibly represent to a reviewing court that the denial of parole resulted in the
imposition of punishment that so exceeds his or her culpability that it is constitutionally
excessive.
       For the foregoing reasons, we reject the Board’s view that fixing the base and
adjusted base terms at the outset of the parole process will not “substantially benefit” life
prisoners. We conclude that the order stipulated to by the parties to enforce the terms of
their settlement confers a significant benefit on a large class of persons.14
                                                   II.
                The Amount of Fees Sought by the Motion is Not Reasonable
       As stated at the outset of this opinion, Butler seeks fees in the amount of $439,000,
which we believe excessive and unreasonable. Because this matter is an original
proceeding in this court, we are unable to follow the usual practice of remanding the
request for fees to the court in which the trial was held for the purpose of taking evidence
on, and fixing, the reasonable amount of fees to be awarded under section 1021.5. (See
Mack v. Younger (1980) 27 Cal.3d 687, 689; Serrano v. Priest, supra, 20 Cal.3d at p. 50.)
Accordingly, as we did in Planned Parenthood Affiliates v. Swoap (1985) 173
Cal.App.3d 1187, 1202, and as other appellate courts have done (see, e.g., Cruz v.
Superior Court (2004) 120 Cal.App.4th 175, 191), we invite the parties to agree within
20 days as to the appropriate amount of costs and fees. If the parties are unable to agree,
this court will decide the matter on the basis of the declarations and other evidence
pertaining to the reasonable amount of fees the parties have submitted to us. The parties
should know that while the members of this panel are not currently in agreement as to the
specific amount of a reasonable fee, all agree it is somewhat less than half the amount
requested.


       14
         As we have indicated, this is the only aspect of entitlement to fees under section
1021.5 the Board has challenged.


                                              22
                                      DISPOSITION
       Butler’s request for attorney fees is granted. The parties are ordered to meet and
confer in an attempt to come to an agreement as to the precise amount to which Butler is
entitled. No more than 20 days from the date of this ruling, the parties must inform this
court in writing whether they were able to reach an agreement. If the parties were not
able to agree, the court will decide the matter of the basis on the declarations and other
evidence that has been submitted.




                                             23
                                 _________________________
                                 Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Stewart, J.




In re Butler (A139411)



                            24
Trial Court:                Alameda County Superior Court

Trial Judge:                Hon. Larry J. Goodman

Attorneys for Petitioner:   Keker & Van Nest LLP
                            Under appointment by the Court of Appeal
                            Jon B. Streeter
                            Susan J. Harriman
                            Sharif E. Jacob
                            Benita A. Brauhmbhatt

Attorneys for Resondent:    Office of the Attorney General
                            Kamala D. Harris
                            Attorney General of California
                            Jennifer A. Neill
                            Senior Assistant Attorney General
                            Claudia H. Amaral
                            Supervising Deputy Attorney General
                            Amber N. Wipfler
                            Deputy Attorney General




                              25
