IN RE DANNENBERG:
CALIFORNIA FORGOES MEANINGFUL
JUDICIAL REVIEW OF PAROLE DENIALS
I. INTRODUCTION
The California Supreme Court’s holding in In re Dannenberg1
sharply curtailed judicial review when the State Board of Prison
Terms (“the BPT”)2 denies parole to eligible life prisoners. In some
respects, Dannenberg represents an important effort at judicial
restraint, as the court deferred to an administrative agency’s expertise
in an area where the legislature had delegated substantial discretion.
In other respects, however, Dannenberg echoes an early scene in
Frank Darabont’s The Shawshank Redemption, which set a backdrop
of an arbitrary and exploitive prison system:
Inside a bare parole hearing room within a maximumsecurity prison, seven men administer a perfunctory annual
parole review to a life prisoner, Ellis Boyd “Red” Redding.
Red has served twenty years of his sentence.
PAROLE BOARD: You feel you’ve been rehabilitated?
RED: Yes sir. Absolutely. Yeah, I’ve learned my lesson. I
can honestly say I’m a changed man. I’m no longer a
danger to society. That’s the God’s honest truth. No doubt
about it.
[A stamp marks a red “REJECTED” on Red’s parole file.]3
In responding to the parole board’s questions, Red, portrayed by
1. 104 P.3d 783 (Cal. 2005).
2. As of July 1, 2005, the BPT was abolished and replaced with the Board
of Parole Hearings. CAL. PENAL CODE § 5075 (West Supp. 2005). The newly
formed Board of Parole Hearings now bears responsibility for making parole
determinations. Because the case law discussed herein involves decisions
made by the BPT, for the sake of clarity and consistency, this Comment refers
to the body responsible for making parole determinations as the BPT.
3. FRANK DARABONT, THE SHAWSHANK REDEMPTION scene 9 (1994)
available at http://www.dailyscript.com/scripts/shawshank.html.

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Morgan Freeman, spoke in an indifferent and somewhat ironic
monotone. Red’s cadence revealed that he had been through parole
hearings many times before, and that he knew whatever he said
would not make any difference. Just as the parole board was simply
going through the motions, so was Red.
Dannenberg may have inadvertently endorsed Shawshank-type
parole hearings because for those crimes the BPT labels “especially
callous and cruel,” the parole applicant has no hope of meaningful
consideration. Under Dannenberg, the BPT may decline to set a
parole release date whenever it deems a life prisoner’s commitment
offense “especially callous and cruel.”4 The BPT need not base this
label on objective criteria.5 Further, the BPT may deem an offense
“especially callous and cruel” without regard to whether that offense
shares characteristics of others labeled “especially callous and
cruel.”6 In fact, under Dannenberg, the BPT can deny parole based
solely on the commitment offense so long as the BPT cites “some
evidence” of aggravating facts “beyond the minimum elements” of
that offense.7 Dannenberg does not, however, explain how a
reviewing court can know when circumstances rise “beyond the
minimum elements” of an offense. Thus, in practice, Dannenberg
allows the BPT to deny parole merely by reciting the circumstances
of a prisoner’s offense and applying a label that courts have no
power to dispute.
This lack of judicial oversight confers immense power on a
politically-appointed8 body comprised mainly of former law
enforcement officers.9 In short, Dannenberg allows the BPT to
rewrite the legislature’s sentencing scheme for serious offenders, one
parole hearing at a time. For example, the BPT can erase the
4. In re Dannenberg, 104 P.3d at 786–87. The term “commitment
offense” refers to the crime for which the parole applicant was incarcerated.
Id. at 786
5. See id. at 786.
6. Id.
7. Id.
8. See CAL. PENAL CODE § 5075 (West 2000 & Supp. 2005) (establishing
the BPT’s gubernatorial appointment and senate confirmation process).
9. See Jenifer Warren, Panel Backs Gov.’s Parole Board Picks, L.A.
TIMES, Jan. 27, 2005, at B6 (describing state legislators critique of the current
BPT’s lack of professional diversity). For biographical information on the
BPT’s
members,
see
http://www.bpt.ca.gov/divisionsboards/boph/
commissioners.html (last visited Feb. 18, 2006).

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difference between those convicted of first and second degree
murder10 simply by keeping both behind bars indefinitely, even
though those convicted of second degree murder become eligible for
parole after fifteen years—a full ten years before those convicted of
first degree murder.11 Further, Dannenberg allows the BPT to erase
the difference between life sentences that grant the possibility of
parole and life sentences that do not.12
This Comment contends the Dannenberg court leaned too
heavily towards judicial restraint because the court unnecessarily
feared more oversight would force the BPT to release all but the
most violent inmates.
To provide necessary context for
understanding the Dannenberg case itself, and to show that the
legislature did not give the BPT unfettered discretion to deny parole,
part II of this Comment outlines the statutes and regulations that
comprise California’s approach to parole. Part III proceeds to
examine each phase of the Dannenberg case in detail, highlighting
the circumstances of the murder, the BPT’s denial of parole, and the
reviewing courts’ differing results. Part IV then argues Dannenberg
infringes the due process protection afforded to inmates by the
California13 and United States constitutions14 by precluding judicial
review of parole denials. Part IV also contends Dannenberg
incorrectly interprets California law by failing to understand that the
mandated system of objective criteria for parole release can coexist
10. California defines murder as “the unlawful killing of a human being . . .
with malice aforethought.” CAL. PENAL CODE § 187 (West 1999). Firstdegree murder is “any . . . willful, deliberate, and premeditated killing” or any
killing committed during the commission of a statutorily delineated felony.
See id. § 189. All other murders constitute second-degree murders. Id.
11. Id. § 190. First-degree murders carry a sentence of twenty-five years to
life, while second-degree murders only carry a sentence of fifteen years to life.
Id.
12. This Comment does not discuss in detail Dannenberg’s potential impact
on policymakers and sentencing judges. California’s State Legislative Analyst,
however, has suggested profound effects. See CAL. STATE LEGISLATIVE
ANALYST’S OFFICE, JUDICIARY AND CRIMINAL JUSTICE, at D-60 (2001),
available at http://www.lao.ca.gov/analysis_2000/crim_justice/crimjust_anl00
.pdf [hereinafter STATE LEGISLATIVE ANALYST] (“This could result in judges
being more or less willing to sentence a particular offender to a life term, and
could make the Legislature more or less willing in the future to establish a life
term as the penalty for a particular offense . . . .”).
13. CAL. CONST. art. I, § 7.
14. U.S. CONST. amend. XIV, § 1.

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with public safety. Part V cautions that the Dannenberg court may
have turned a blind eye towards a blanket policy on the part of the
BPT to deny parole, thus tolerating wholesale violations of inmates’
due process rights. Finally, part VI recommends replacing the
amorphous labels Dannenberg allows with objective criteria that
would allow courts to evaluate and, when appropriate, overrule the
BPT’s parole denials. Part VII concludes.
II. BACKGROUND: CALIFORNIA STATUTES
AND REGULATIONS GOVERNING PAROLE RELEASE
Understanding the legal framework in which the court decided
Dannenberg seems crucial to understanding Dannenberg’s troubling
impact and why the court reached an incorrect outcome. As
discussed below, Dannenberg required the California Supreme Court
to resolve the tension between two subdivisions of section 3041 of
the Penal Code.15 These subdivisions govern the BPT’s parole
release procedures for “indeterminate” life inmates. To show that
the legislature did not give the BPT unfettered discretion to deny
parole to such inmates, subpart A of the present discussion examines
both the current status and the historical development of California’s
scheme of “determinate” and “indeterminate” sentences.
Additionally, subpart B examines section 3041 itself. Further,
subpart B shows how regulations adopted under section 3041 allow
the BPT to deny parole based on extremely vague criteria.
A. The BPT Only Determines the Parole-Eligibility
of Inmates Serving “Indeterminate” Life Sentences
In contrast to determinate sentences, indeterminate sentences
require the BPT to decide when an inmate receives parole. As
illustrated below, however, the legislature did not give the BPT
unfettered discretion to deny parole to inmates serving indeterminate
sentences. Rather, the legislature required the BPT to craft
meaningful, objective criteria that would punish similar offenses
with similar terms of incarceration. In doing so, the legislature
rejected the previous regime, which had given nearly total discretion
to prison officials.

15. See In re Dannenberg, 104 P.3d 783, 793 (Cal. 2005); see also CAL.
PENAL CODE § 3041 (West 2000 & Supp. 2005).

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1. California’s current regime combines
determinate and indeterminate sentencing
In 1976, the California legislature enacted the current “hybrid”16
sentencing approach, which combines both determinate and
indeterminate sentences.17 Today, most felonies in California carry
“determinate” sentences.18
California imposes “indeterminate”
sentences only for serious offenses,19 including murders not
punishable by death or life imprisonment without the possibility of
parole.20
Parole is granted differently for determinate sentences than for
sentences with indeterminate terms.
Determinate sentences
incarcerate violators for a specified period of time, after which they
are automatically released on parole.21 Determinate sentencing
statutes specify three potential terms for each offense, such as “two,
three, or four years.”22 The trial court selects one of these
alternatives during sentencing.23
In contrast, violators whose offenses carry “indeterminate”
terms receive life sentences and eventually become eligible for
parole.24 Some indeterminate sentences specify the minimum term
an inmate must serve before becoming parole-eligible.25 Others

16. April K. Cassou & Brian Taugher, Determinate Sentencing in
California: The New Numbers Game, 9 PAC. L.J. 5, 86 (1978).
17. 1976 Cal. Stat. 5140. This Comment refers to the described sentencing
scheme as the Determinate Sentencing Law.
18. People v. Jefferson, 980 P.2d 441, 445 (Cal. 1999).
19. See infra notes 25–26.
20. See In re Dannenberg, 104 P.3d at 791.
21. Id.
22. Id.
23. E.g., CAL. PENAL CODE § 1170(a)(3) (West Supp. 2005); see also 1976
Cal. Stat. 5140–41 (setting forth factors for determining which of the three
sentencing alternatives apply).
24. E.g., People v. Jefferson, 980 P.2d 441, 445 (Cal. 1999).
25. E.g., CAL. PENAL CODE § 190(a) (West 1999 & Supp. 2005) (punishing
second degree murder with imprisonment for fifteen years to life); id. §
191.5(d) (punishing gross vehicular manslaughter while intoxicated with prior
convictions with fifteen years to life); id. § 217.1(b) (punishing attempted
murder of a governmental official with fifteen years to life); CAL. PENAL CODE
§ 269 (West Supp. 2005) (punishing aggravated sexual assault on a child with
fifteen years to life); id. § 273ab (punishing fatal assault on a child under eight
years of age by means likely to produce great bodily injury with twenty-five
years to life).

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contain no minimum term, and instead impose either “imprisonment
in the state prison for life with the possibility of parole” or
“imprisonment in the state prison for life.”26 Inmates in the latter
category of indeterminate offenders must serve at least seven years in
prison before becoming eligible for parole.27
When a life prisoner with an indeterminate sentence becomes
parole-eligible, the BPT may grant a release date at its discretion,
consistent with the statutory requirements discussed below in subpart
B.28
2. The legislature enacted the current
hybrid approach to curb the power of prison officials
The legislature created the current hybrid scheme following
much dissatisfaction with the old approach, which had granted nearly
unfettered discretion to prison officials. Prior to 1976, all felonies
carried indeterminate sentences.29 Under this old scheme, statutes
specified a sentencing range for different felonies that often spanned
from as little as one year in prison to life imprisonment.30 The parole
authority had exclusive control over an inmate’s actual period of
incarceration within this range.31 In exercising its control, the parole
authority focused primarily on the offender’s progress toward
rehabilitation, not on the appropriate punishment for the original
offense.32 As a result, prisoners had no idea when their confinement
would end until the moment the parole authority found them ready

26. E.g., CAL. PENAL CODE § 205 (West 1999 & Supp. 2005) (aggravated
mayhem); id. § 206.1 (torture); CAL. PENAL CODE § 209(a) (West 1999 &
Supp. 2005) (kidnapping for ransom that does not result in bodily harm); id. §
209(b) (kidnapping for robbery or sexual assault); CAL. PENAL CODE §
209.5(a) (West Supp. 2005) (kidnapping during carjacking); CAL. PENAL CODE
§ 219 (West 1999 & Supp. 2005) (nonfatal train wrecking); id. § 664(a)
(attempted premeditated murder); id. § 664(e) (attempted murder of a peace
officer or fire fighter); CAL. PENAL CODE § 12308 (West 2000 & Supp. 2005)
(exploding a destructive device with intent to kill); CAL. PENAL CODE
§ 12310(b) (West 2000) (exploding a destructive device that causes mayhem or
great bodily injury).
27. CAL. PENAL CODE § 3046 (West 2000 & Supp. 2005).
28. See infra Part II.B.
29. Cassou & Taugher, supra note 16, at 6–16.
30. Id. at 8.
31. Id.
32. Id. at 9.

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for release.33 In fact, the parole authority regularly denied parole
release until it developed the feeling that the applicant had become
“ready to go home.”34
Both academics and policy-makers attacked indeterminate
sentencing. Commentators criticized the old scheme in two main
ways.35 First, they expressed concern that sentences were either too
heavy or too light for the crimes they purported to punish.36 Second,
some argued that denying prisoners advance notice of their parole
dates contributed to uncertainty and violence within the incarcerated
population.37 Additionally, the California Supreme Court twice held
that sentences to life in prison for certain crimes could be so grossly
disproportionate to their commitment offenses as to violate the
California Constitution’s ban on cruel and unusual punishment.38
Further, members of the legislature expressed concern that
indeterminate sentencing gave prison officials too much power.39
In response to these concerns,40 the 1976 Determinate
Sentencing Law set mandatory sentences for the vast majority of
California felonies.41 In doing so, the Determinate Sentencing Law

33. In re Dannenberg, 104 P.3d 783, 790 (Cal. 2005).
34. Cassou & Taugher, supra note 16, at 9.
35. See generally Paula A. Johnson, Comment, Senate Bill 42—The End of
the Indeterminate Sentence, 17 SANTA CLARA L. REV. 133, 133–34 nn.5–7
(1977) (surveying critiques of the old indeterminate sentencing law).
36. See Cassou & Taugher, supra note 16, at 6–9.
37. Id. at 11.
38. See People v. Wingo, 534 P.2d 1001, 1006–07 (Cal. 1975) (finding that
life-maximum sentence for assault with force likely to produce great bodily
injury raised constitutional concerns regarding cruel and unusual punishment);
In re Rodriguez, 537 P.2d 384, 392, 394–97 (Cal. 1975) (holding that cruel and
unusual punishment clause prohibited twenty-two year incarceration for a
single incident of lewd and lascivious conduct upon a child under fourteen
when inmate had shown exemplary prison conduct with no evidence of
“inherent criminality”).
39. See, e.g., CAL. LEGISLATIVE ASSEMB. SELECT COMM. ON ADMIN. OF
JUSTICE, PAROLE BOARD REFORM IN CALIFORNIA: “ORDER OUT OF CHAOS”
15 (1970) (“The parole board is one of the last bastions of unchecked and
arbitrary power in America.”).
40. See generally Raymond I. Parnas & Michael B. Salerno, The Influence
Behind, Substance and Impact of the New Determinate Sentencing Law in
California, 11 U.C. DAVIS L. REV. 29 (1978) (outlining the purposes of the
Determinate Sentencing Law).
41. See supra Part II.A.

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declared “the purpose of imprisonment for crime is punishment.”42
This emphasis on punishment contrasted sharply with that of the
previous system, which mainly sought to rehabilitate.43 Further, the
Determinate Sentencing Law stated that the punishment purpose
required “terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances.”44
Even so, the Determinate Sentencing Law kept indeterminate
sentences for serious offenders.45 At the same time, however, the
law amended section 3041 of the Penal Code,46 which for the first
time created specific procedures for the BPT’s review of serious
offenders who had achieved parole eligibility.47
As such, the Determinate Sentencing Law delegated to the BPT
the task of devising a proportional sentencing scheme for serious
offenders. Thus, the legislature did not grant the BPT unfettered
discretion to deny parole even for indeterminate life inmates.
B. Although Section 3041 Requires the BPT to Use Guidelines
During Parole Review that Enable Proportional Sentencing, the BPT
Enacted Criteria So Vague that the BPT Can Deny Parole at Will
As discussed above, section 3041 implements California’s
hybrid sentencing scheme, which combines determinate and
indeterminate sentences. Specifically, section 3041 orders the BPT
to craft criteria for paroling similar offenders after similar periods of
incarceration.48
The BPT, however, crafted administrative
regulations that contain such vague criteria that the BPT can in
practice ignore proportionality in sentencing.

42. CAL. PENAL CODE § 1170(a)(1) (West 2004 & Supp. 2005).
43. See, e.g., Ex parte Lee, 171 P. 958, 959 (Cal. 1918) (explaining that the
indeterminate sentence law “place[s] emphasis upon the reformation of the
offender . . . . Instead of trying to break the will of the offender and make him
submissive, the purpose is to strengthen his will to do right and lessen his
temptation to do wrong.”).
44. CAL. PENAL CODE § 1170(a)(1).
45. See supra notes 25–26 and accompanying text.
46. 1976 Cal. Stat. 5151–52.
47. See Parnas & Salerno, supra note 40, at 33.
48. CAL. PENAL CODE § 3041(a) (West 2000 & Supp. 2005).

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1. Section 3041 presumptively directs the BPT
to set indeterminate life prisoners’ parole
release dates in proportion to their offenses’ gravity
As noted above, section 3041’s provisions conflict to some
degree. Subdivision (a) provides:
One year prior to the inmate’s minimum eligible parole
release date a panel of . . . [the BPT] shall . . . normally set
a parole release date . . . . The release date shall be set in a
manner that will provide uniform terms for offenses of
similar gravity and magnitude in respect to their threat to
the public . . . .49
Additionally, subdivision (a) also requires the BPT to “establish
criteria for the setting of parole release dates . . . [that] consider the
number of victims of the crime for which the prisoner was sentenced
and other factors in mitigation or aggravation of the crime.”50
Subdivision (b) provides an exception, however, under which
the BPT need not set a parole date at all: “The . . . board shall set a
release date unless it determines that the gravity of the current
convicted offense . . . 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.”51
2. The BPT crafted objective criteria for setting parole dates for
“suitable” inmates but vague criteria for determining suitability
Pursuant to subdivision (a)’s directive to establish parole-release
date criteria, the BPT enacted a series of “matrices.”52 The BPT uses
these matrices to set release dates for inmates it deems suitable for
parole per section 3041, subdivision (a).53 The BPT sets release
dates for “suitable” inmates in a two-part process. First, the BPT
compares the facts of the inmate’s commitment offense to those
listed in the matrix to determine the offense’s “category.”54 Each
matrix category lists an “upper, middle, or lower” term.55 For
49.
50.
51.
52.
53.
54.
55.

Id. (emphasis added).
Id.
Id. § 3041(b) (emphasis added).
CAL. CODE REGS. tit. 15, §§ 2400–11 (2005).
See id. § 2403(a).
See id.
Id.

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example, for second degree murders committed after 1978, the
matrix specifies terms of 17, 18, or 19 years when the victim
“goaded” the offender and the victim and offender had a prior
relationship (including a spousal relationship), but a term of 18, 19,
or 20 years for a “goaded” killing with no prior relationship.56
Second, the BPT considers which term to apply.57 In general, the
BPT must apply the middle term.58 The BPT may, however,
consider whether the offense involved aggravating or mitigating
circumstances.59 If the BPT finds such aggravating or mitigating
circumstances, it may apply the upper or lower term as appropriate.60
In short, the BPT crafted objective criteria to guide its date-setting
for inmates found suitable for parole.
In contrast, pursuant to subdivision (b) of section 3041, the BPT
adopted several extremely vague regulations to guide the parole
suitability determinations themselves.61 These regulations direct the
BPT to deny a parole date to any prisoner who poses an
“unreasonable risk of danger to society.”62 According to the
regulations, the BPT must consider all relevant information when
determining parole suitability.63 The regulations specify factors
tending to show suitability for release,64 as well as factors that weigh
against suitability.65 No single factor is dispositive, and the BPT
need not specify more than one factor in support of its decisions.66
Factors that tend to indicate suitability for parole release
include: (1) the lack of a juvenile record; (2) a history of stable social
relationships; (3) signs of remorse for the commitment offense; (4)
an offense committed under the influence of long-term stress; (5) an
offender diagnosed with Battered Women’s Syndrome; (6) a lack of
criminal history; (7) an offender of advanced age that tends to reduce
the risk of recidivism; (8) the inmate’s ability to earn a legitimate
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.

See id. § 2403(c).
See id. § 2403(a).
Id.
Id. §§ 2403–05.
Id. § 2403(a).
Id. § 2402.
Id. § 2402(a).
Id. § 2402(b).
Id. § 2402(d).
Id. § 2402(c).
See id. §§ 2402(c)–(d).

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living upon release; and (9) a clean disciplinary record during
incarceration.67
In addition to these mitigating factors, the regulations also direct
the BPT to consider whether the parole applicant committed the
offense in “an especially heinous, atrocious or cruel manner.”68
Factors that would indicate such an offense include: (1) multiple
victims; (2) a “dispassionate” killing such as an execution-style
murder; (3) abuse or mutilation of the victim; (4) an offense “carried
out in a manner which demonstrates an exceptionally callous
disregard for human suffering;” and (5) a motive that is “inexplicable
or very trivial in relation to the offense.”69
The BPT’s regulations also cite factors other than the
circumstances of the commitment offense that weigh against
suitability.70 Such factors include: (1) a previous record of violence;
(2) a history of unstable social relationships; (3) a history of
“sadistic” sexual offenses; (4) a history of severe psychological
problems “related to the offense;” and (5) serious misconduct during
incarceration.71
As discussed below, Dannenberg ratified the BPT’s power to
apply these regulations unconstrained by judicial review. The
Dannenberg court held that the BPT may decline to set a parole
release date merely by labeling a prisoner’s commitment offense
“especially callous and cruel.”72 Thus, Dannenberg allowed the BPT
to use the vague criteria enacted pursuant to section 3041,
subdivision (b) to deny parole unlimited by the objective criteria the
BPT promulgated pursuant subdivision (a).73 The facts of the
Dannenberg case illustrate the flaws of this approach.
III. THE CALIFORNIA SUPREME COURT’S HOLDING IN DANNENBERG
A. Factual and Procedural Background
In 1986, John E. Dannenberg stood trial on charges of first and
67.
68.
69.
70.
71.
72.
73.

See id. §§ 2402(d)(1)–(9).
Id. § 2402(c)(1).
Id. §§ 2402(c)(1)(A)–(E).
See id. §§ 2402(c)(2)–(6).
Id.
See In re Dannenberg, 104 P.3d 783, 786–87 (Cal. 2005).
See supra text accompanying note 50.

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second degree murder for the death of his wife.74 A jury acquitted
him of first degree murder, but convicted on the second degree
charge.75 Accordingly, the jury sentenced Dannenberg to a term of
fifteen years to life in prison.76
Dannenberg became eligible for parole in 1996.77 The BPT
declined to set a parole release date at hearings held in 1994, 1997,
and 1999.78 Each time the BPT found Dannenberg unsuitable for
parole, the panel based its decision mainly on the underlying facts of
the murder–despite overwhelming evidence that Dannenberg had
been a model prisoner.79 Dannenberg challenged the BPT’s 1999
denial of parole.80
1. The 1999 parole hearing
At Dannenberg’s 1999 parole hearing, the BPT reviewed
information from a variety of sources, including a report prepared by
prison staff, oral testimony from Dannenberg, and Dannenberg’s
psychological evaluations.
a. The 1994 staff report
First, the BPT considered a staff report prepared for
Dannenberg’s 1994 hearing.81
The report recorded the
circumstances of the murder: Following years of severe marital
difficulties, during which Dannenberg and his wife sought marriage
counseling, Dannenberg killed his wife on the morning of May 15,
1985.82 When police arrived at the couple’s home, they discovered
the victim draped over the side of the bathtub with her head under
water.83 Various wounds covered both the victim and Dannenberg.84
74. In re Dannenberg, 125 Cal. Rptr. 2d 458, 462 (Ct. App. 2002), rev’d,
104 P.3d 783 (Cal. 2005).
75. Id.
76. Id.
77. In re Dannenberg, 104 P.3d at 787. Dannenberg became eligible for
release less than fifteen years after the conviction because of pretrial and
prison conduct credits. Id.
78. Id.
79. Id. at 788.
80. Id.
81. Id. at 787.
82. Id.
83. Id.
84. Id.

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Dannenberg had scratches, a deep bite mark on a finger, and cuts on
his neck, face, and eyelid.85 The victim had cuts, abrasions, and
puncture wounds, consistent with being hit repeatedly.86 One such
wound indicated that the victim had been hit with a half-pound pipe
wrench.87 An autopsy concluded the victim had been hit repeatedly
on the head, but that she had not died from the head wounds.88
Rather, the autopsy determined she had drowned.89
Also according to the 1994 report, Dannenberg gave
investigating officers the following account:
Around 7:00 a.m., . . . [Dannenberg] procured a pipe
wrench and a screwdriver to fix a leaky toilet valve.
“During this time[,] he evidently said something to his
wife” about the drain. She came into the bathroom and
picked up the screwdriver. A heated argument ensued.
Screaming that she “wanted him dead,” the victim jabbed
the screwdriver at Dannenberg, cutting his arm, and clawed
and scratched his forearm with her fingernails. Dannenberg
first tried to defend himself with his bare hands. Then he
picked up the pipe wrench and hit the victim once on the
side of the head. When she continued to advance on him,
he “hit her a couple more times on the head,” and she fell to
the floor. Dannenberg himself collapsed “and may have
passed out.” When he awoke, he checked the victim’s
pulse, but could not find one. He then called 911.90
b. The BPT’s questioning
In addition to reviewing the 1994 staff report, the BPT
questioned Dannenberg at the 1999 hearing.91 According to the
record, Dannenberg testified to the following:
As both he and the victim collapsed on the floor, the victim
was lying on her back, still holding the screwdriver, and
Dannenberg was kneeling over her, pinning her arms. She
85.
86.
87.
88.
89.
90.
91.

Id.
Id.
Id.
Id.
Id.
Id. (alterations in original).
Id.

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seemed to relax, but then suddenly placed her feet against
his shoulders and pushed. He was knocked back against the
bathroom door and fell to the floor. After that, he
remembered nothing until he saw the victim lying on the
edge of the tub. A pool of blood covered the floor where
she had previously lain. There was also considerable blood
on her head, and smeared on the wall. Dannenberg could
not move at first, because his legs, curled underneath him,
were asleep. From his low position, and in a dazed
condition, he did not notice the victim’s head was in the
water. Eventually he reached over and tried to take her
pulse, but could not feel anything. He then struggled to his
feet, went to his bedroom, and called 911. The fire
department responded within a few minutes, but determined
that the victim was dead and did not try to resuscitate her.92
During Dannenberg’s testimony, BPT members twice pressed
Dannenberg regarding the circumstances of the murder.93 Initially, a
BPT member expressed skepticism that the victim could have moved
herself to the bathtub after bleeding so profusely on the floor.94 In
response, Dannenberg denied placing his wife in the tub.95 Further,
Dannenberg noted there had been evidence of blood on the underside
of the bathtub faucet.96 He then theorized, as he had at trial, that:
[T]he victim must have tried to rise on her own, climbed over
the edge of the tub, “and either tried to wash herself or had attempted
to get up and slipped and got her face in the water and jerked her
head up and hit her head on the spout and then went down again and
drowned.”97
Dannenberg insisted his trial evidence demonstrated “he could
not have moved [the victim] into the tub without walking in the
blood on the bathroom floor, thus ‘making a mess’ of the murder
scene.”98

92.
93.
94.
95.
96.
97.
98.

Id. at 787–88.
Id. at 788.
Id.
Id.
Id.
Id.
Id.

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Later, a BPT member indicated skepticism that the victim could
have drowned during the mere minute or two Dannenberg claimed he
was unconscious.99 Dannenberg replied that the coroner had testified
at trial that drowning can occur virtually instantaneously if the victim
inhales water.100
c. Dannenberg’s argument for suitability
After considering the 1994 report and soliciting Dannenberg’s
testimony, the BPT panel also heard Dannenberg’s argument for
parole.101 In his argument, Dannenberg expressed remorse, but
denied he intended to kill his wife.102 He maintained that the
prosecutor in his trial told the jury “the circumstances of the victim’s
death” could never be known for certain.103 In addition, Dannenberg
averred that on appeal the Attorney General conceded that the
drowning was “unexpected.”104 Nonetheless, Dannenberg maintained he had accepted responsibility for the killing, stating his wife
“would in all likelihood not have died if [he] had not hit her that
morning.”105
In addition, Dannenberg noted the following:
• he had no history of drug abuse;
• he had no criminal history other than the commitment
offense;
• he had no disciplinary problems while in prison;
• he had pursued all recommended therapy and vocational
training while in prison;
• he had college degrees in mathematics and engineering,
and decades of expertise in electronics; and
• he had several offers of housing, sufficient liquid assets
to support himself, an offer of employment, and plans to
start a water conservation business.106

99.
100.
101.
102.
103.
104.
105.
106.

Id.
Id.
Id. at 787.
Id. at 788.
Id.
Id.
Id.
Id.

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d. Dannenberg’s psychological evaluations
Finally, the BPT panel reviewed Dannenberg’s psychological
evaluations.107 Dannenberg’s 1999 evaluation described him as a
“model prisoner.”108 The evaluation opined that the murder
amounted to “a one-time response to Dannenberg’s extreme stress
and fear of his wife’s rage while she was armed with the
screwdriver.”109 The examiner did not view Dannenberg as likely to
commit such a violent act again.110
The evaluation noted
Dannenberg had no signs of mental or emotional disorder, and
concluded he presented a low risk of further violence.111 These
conclusions echoed Dannenberg’s previous psychological evaluations.112 In fact, evaluations in 1989, 1992, 1994, 1995, 1996,
1997, and 1999 uniformly concluded that Dannenberg “showed no
psychopathology and should not be denied parole on psychological
grounds.”113
e. The BPT’s ruling
After considering the record, the BPT panel issued an oral ruling
that found Dannenberg unsuitable for parole.114 The panel based its
finding “primar[ily]” on the commitment offense itself.115 First, the
panel found the murder was committed “‘in an especially cruel or
callous manner,’” and was carried out in a way that “‘demonstrates
an exceptionally callous disregard for human suffering.’”116 Second,
the panel found the motive for the crime “‘was inexplicable or very
trivial in relation to the offense.’”117 The panel based these labels in
107. Id.
108. Id.
109. Id.
110. In re Dannenberg, 125 Cal. Rptr. 2d 458, 463 (Ct. App. 2002), rev’d,
104 P.3d 783 (Cal. 2005).
111. In re Dannenberg, 104 P.3d at 788.
112. Id.
113. In re Dannenberg, 125 Cal. Rptr. 2d at 465.
114. In re Dannenberg, 104 P.3d at 788.
115. Id.
116. Id. The labels that the panel used to characterize the offense mirror
vague language in the administrative regulations that specify circumstances the
BPT may consider when it evaluates parole suitability. See CAL. CODE REGS.
tit. 15, § 2402(c) (2005); supra Part II.B.
117. In re Dannenberg, 104 P.3d at 788. As above, the BPT panel’s label for
Dannenberg’s motive mirrors language in the administrative regulations

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part on the autopsy report, which, the panel noted, “‘indicated that
the victim was repeatedly struck in the head, and at some point . . .
was pushed or fell into the bathtub full of water and the eventual
cause of death was drowning.’”118
The panel acknowledged that it found “no psychiatric factors to
consider.”119 Without explanation, however, the panel also stated,
“The prisoner needs therapy in order to face, discuss, understand,
and cope with stress in a nondestructive manner. Until progress is
made, the prisoner continues to be unpredictable and a threat to
others.”120
In addition to finding Dannenberg unsuitable for parole, the
panel held it did not reasonably expect to grant Dannenberg parole
the following year.121 Accordingly, the panel postponed his next
hearing for two years.122 In support of this purportedly “separate”
ruling, the panel cited the considerations listed above.123 The panel
also based the postponement on its assertion that Dannenberg
“‘needs to accept full responsibility for the crime . . . and discontinue
his attempts to minimize his responsibility for that.’”124
2. The lower courts ruled in favor of Dannenberg
a. Marin County Superior Court
Following the 1999 hearing, Dannenberg petitioned for a writ of
habeas corpus.125 In his petition, Dannenberg claimed the BPT panel
had wrongly denied his parole because he had refused to admit to
first degree murder.126 Further, Dannenberg asserted the BPT
showed no evidence of his “current dangerousness” and accordingly
governing the BPT’s determinations of parole suitability. See CAL. CODE
REGS. tit. 15, § 2402(c); supra Part II.B; supra note 116.
118. In re Dannenberg, 104 P.3d at 788.
119. In re Dannenberg, 125 Cal. Rptr. 2d 458, 464 (Ct. App. 2002), rev’d,
104 P.3d 783 (Cal. 2005).
120. Id.
121. Id.
122. Id.
123. In re Dannenberg, 104 P.3d at 805.
124. Id.
125. Id.
126. Id. See generally CAL. PENAL CODE § 5011 (West Supp. 2005)
(prohibiting the BPT from demanding an admission of guilt to any crime as a
condition of parole).

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could not have avoided its “presumptive duty” to set a parole release
date per section 3041 of the Penal Code.127
The superior court held for Dannenberg.128 Following In re
Powell,129 the trial court applied a “some evidence” standard of
review, which required it to determine whether any facts supported
the BPT’s decision to deny Dannenberg parole.130 The court noted
that several factors pointed toward Dannenberg’s suitability for
parole: (1) Dannenberg had no criminal history; (2) he showed
remorse for the killing; (3) he had a clean disciplinary record while
incarcerated; (4) he had “exemplary” post-release plans; and (5)
uncontroverted evidence from prison psychologists indicated he did
not need therapy.131
Moreover, the trial court found that the commitment offense
itself did not indicate unsuitability.132 According to the court, the
offense did not preclude parole for Dannenberg because no evidence
indicated that his crime had been any more callous, cruel, or
indifferent to human suffering than “any and all second degree
murders.”133 Additionally, the trial court held that the “exceptionally
cruel or callous nature” of a murder can never justify a finding of
unsuitability because such a label “would necessarily apply to every
second degree murder.”134
The trial court also found that the BPT violated section 5011(b)
of the Penal Code when the panel relied upon Dannenberg’s failure
to accept responsibility for the murder.135 Moreover, the trial court
noted that a former chair of the BPT alleged that the BPT “followed
an unwritten policy against releasing any life term inmate on
parole.”136
127. In re Dannenberg, 104 P.3d at 789. See generally CAL. PENAL CODE §
3041 (West 2000 & Supp. 2005) (specifying procedures for parole eligibility
determinations).
128. In re Dannenberg, 104 P.3d at 789.
129. 755 P.2d 881 (Cal. 1988).
130. See In re Dannenberg, 125 Cal. Rptr. 2d 458, 465 (Ct. App. 2002),
rev’d, 104 P.3d 783 (Cal. 2005).
131. In re Dannenberg, 104 P.3d at 789.
132. Id.
133. Id.
134. In re Dannenberg, 125 Cal. Rptr. 2d at 468 (quoting In re Rosenkrantz,
95 Cal. Rptr. 2d 279, 291 (Cal. Ct. App. 2000)).
135. In re Dannenberg, 104 P.3d at 789; see supra note 126.
136. In re Dannenberg, 125 Cal. Rptr. 2d at 465–66.

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Accordingly, the trial court ordered a new parole hearing.137
b. Court of Appeal
A unanimous appellate court affirmed the trial court in part and
reversed in part.138 Citing its own holding from In re Ramirez,139 the
appellate court stated that the BPT must make its parole suitability
decision under section 3041, subdivision (b) consistent with section
3041, subdivision (a)’s requirement of uniform terms for similar
offenses.140 Thus, the court reasoned as follows:
[W]hile the gravity of the commitment offense may be a
sufficient basis for refusing to set a parole date under the
exception provided in section 3041, subdivision (b), the
exception properly applies only to particularly egregious
offenses. Otherwise, the exception would tend to swallow
the rule that a parole release date is “normally” set under
section 3041, subdivision (a) . . . . Accordingly, the Board
must weigh the gravity of the inmate’s criminal conduct
against other instances of the same crime, performing an
evaluation similar to that prescribed by the sentencing rules
governing probation determinations.141
The appellate court also held that the BPT should consider
whether the parole applicant’s crime carried a minimum sentence of
fifteen or twenty-five years.142 The court reasoned that ignoring
sentencing minimums would allow the BPT to destroy the system of
proportionality the legislature enacted in section 3041, subdivision
(a) and in the murder statutes.143
The court therefore affirmed the trial court holding that the BPT
erred when the panel refused to grant a parole date.144

137. Id. at 466.
138. In re Dannenberg, 104 P.3d at 789.
139. Id. (citing In re Ramirez, 114 Cal. Rptr. 2d 381 (Ct. App. 2001)).
140. In re Dannenberg, 125 Cal. Rptr. 2d at 467.
141. Id. (citing In re Ramirez, 114 Cal. Rptr. 2d at 396–97).
142. See id. at 469 (asking the board to consider the minimum term
prescribed by law for the offense).
143. Id.
144. See id. at 471.

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B. The Supreme Court Holding
The California Supreme Court reversed the court of appeal.145
The court held that the BPT may decline to set a parole release date
based solely on the commitment offense without regard to the
proportionality requirement of section 3041, subdivision (a).146
Accordingly, the court reinstated the BPT’s denial of a parole release
date and did not require the BPT to conduct a further hearing.147
The court summarized its holding as follows:
[T]he Board, exercising its traditional broad discretion, may
protect public safety in each discrete case by considering
the dangerous implications of a life-maximum prisoner’s
crime individually. While the Board must point to factors
beyond the minimum elements of the crime for which the
inmate was committed, it need engage in no further
comparative analysis before concluding that the particular
facts of the offense make it unsafe, at that time, to fix a date
for the prisoner’s release. The BPT acts properly in
determining unsuitability, and . . . renders a decision
supported by “some evidence.”148
According to the court, “the overriding statutory concern for
public safety in the individual case trumps any expectancy the
indeterminate life inmate may have in a term of comparative equality
with those served by other similar offenders.”149 Thus, the court
reasoned, section 3041 does not require the BPT to schedule an
inmate’s release, “simply to ensure that the length of the inmate’s
confinement will not exceed that of others who committed similar
crimes.”150
The court emphasized subdivision (b) could apply just as
frequently as subdivision (a).151 According to the court, the word
“‘normally’” in subdivision (a) of section 3041 merely reflects the
145. In re Dannenberg, 104 P.3d 783, 787 (Cal. 2005).
146. Id. at 786–87.
147. Id. at 787.
148. Id. at 786 (emphasis added).
149. Id. at 795.
150. Id.
151. See id. (stating that other provisions governing parole decisions for
indeterminate life prisoners support the notion that the determination of parole
suitability involves a paramount assessment of the public safety risk posed by
the particular offender).

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legislature’s “assumption” or “hope” that uniform release dates
would be a common result for indeterminate life inmates.152 In fact,
the court read subdivision (a) as though it did not include the word
“normally.”153
Moreover, the court stated that it refused to construe subdivision
(a) to “ever require[] the Board to fix . . . a prisoner’s parole date,
under principles of term ‘uniform[ity],’ despite the Board’s factually
supported belief that the particular circumstances of the inmate’s
crime indicate a continuing public danger.”154 The court reasoned
that to do so would contravene the legislature’s direction that the
BPT refuse to release dangerous life prisoners.155
The court extensively defended its statutory analysis. The court
emphasized that the BPT had long considered an individual
prisoner’s suitability for release before the BPT conducted what the
court termed “comparative analysis.”156 Moreover, the court
reasoned, legislative acquiescence to the BPT’s longstanding parole
practices indicated tacit approval.157 According to the court, this
acquiescence seemed particularly persuasive because the legislature
had recently amended other provisions of section 3041.158 The court
also found support for its statutory construction in the context in
which the legislature had enacted the Determinate Sentencing
Law.159 Finally, the court warned that the court of appeal’s
interpretation of section 3041 would require “intercase comparisons
in every parole matter” that could “backlog[]” the BPT.160
After analyzing the statute, the court quickly disposed of
constitutional concerns. First, the court stressed that indeterminate
life inmates have “no vested right” to parole.161 Additionally, the
court stated, indeterminate life sentences amount to sentences to life
152. Id. at 797.
153. See id.
154. Id. (alteration in orginal).
155. Id.
156. Id. at 800 (providing that the panel shall first determine whether the life
prisoner is suitable for release on parole (citing CAL. CODE REGS. tit. 15, §
2402(a) (2005))).
157. Id.
158. Id.
159. See id. at 797–99. See generally supra Part II.A (describing the history
of California’s hybrid sentencing approach).
160. In re Dannenberg, 104 P.3d at 801.
161. Id. at 804 (quoting People v. Wingo, 534 P.2d 1001, 1011 (Cal. 1975)).

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imprisonment, subject only to the discretion of the parole board.162
As a result, the court reasoned, the cruel and unusual punishment
clause163 of the California Constitution adequately protects the rights
of inmates who want to challenge the length of their incarceration as
a result of parole denials.164 According to the court, the ban on cruel
and unusual punishment does not require the BPT to parole life term
inmates the BPT considers dangerous.165 Moreover, the court
predicted, a parole denial would probably never amount to cruel and
unusual punishment because California only imposes indeterminate
terms for the most serious offenses.166
The court also found that the BPT’s parole denial determinations
provided inmates with due process.167 Specifically, the court
stressed that when the BPT denied parole based solely on the
circumstances of the commitment offense, the BPT “must cite ‘some
evidence’ of aggravating facts beyond the minimum elements of that
offense.”168
The court then turned to the facts of Dannenberg’s case. The
court held that the BPT acted lawfully when it denied Dannenberg
parole because the panel pointed “to some evidence that the
particular circumstances of his crime–circumstances beyond the
minimum elements of his conviction–indicated exceptional
callousness and cruelty with trivial provocation, and thus suggested
he remain[ed] a danger to public safety.”169 The court did not
explain how it had determined that the circumstances of
Dannenberg’s crime exceeded the minimum elements of second
degree murder.170
162. Id.
163. CAL. CONST. art. I, § 17.
164. In re Dannenberg, 104 P.3d at 804.
165. Id.
166. Id.
167. Id. at 803 n.16.
168. Id. (citing In re Rosencrantz, 59 P.3d 174, 205 (Cal. 2002)).
169. Id. at 805.
170. See id. The court merely pointed to the undisputed fact that
Dannenberg repeatedly struck his wife in the head with a pipe wrench, and
other facts that, despite Dannenberg’s denials, reasonably suggested he placed
her head underwater or allowed it to stay there. See id. For a more detailed
account of the murder involved in In re Dannenberg, see supra Part III.A.1.a–
b. For a critique of the court’s “beyond the minimum elements” standard, see
infra part IV.A.1–3.

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Finally, the court acknowledged that the BPT might have
improperly considered Dannenberg’s alleged refusal to admit
guilt,171 as evidenced by the panel’s statement that Dannenberg
needed to discontinue his efforts to minimize his responsibility for
his crime.172 The court noted, however, that the BPT panel only
expressly relied on any refusal to admit guilt during the decision to
postpone a rehearing for two years, and not during the purportedly
“separate” decision to deny parole.173 Thus, the court deemed any
error harmless.174
The court did not address the BPT’s seemingly inexplicable
assertion that Dannenberg needed further “therapy” despite
overwhelming evidence to the contrary.175
IV. ANALYSIS: DANNENBERG VIOLATES INMATES’ DUE PROCESS
RIGHTS AND FAILS AS A MATTER OF STATUTORY CONSTRUCTION
Dannenberg orders courts to rubber stamp the BPT’s pro forma
consideration of parole applications, thus violating inmates’ right to
due process under the United States and California constitutions.
Additionally, Dannenberg interprets section 3041 in a way that
clearly contravenes the intent of the legislature’s scheme for setting
parole dates, and paves the way for the BPT to rewrite the penal
code.
A. Dannenberg Violates Inmates’ Rights to Due Process
1. Both federal and state due process requirements
govern California’s parole review process
The Dannenberg court implicitly holds that state due process
171. As discussed above, the BPT panel made this assertion after
questioning Dannenberg about the circumstances of his wife’s murder.
Specifically, the BPT contested Dannenberg’s contentions that he had not
intended to drown his wife. See supra text accompanying notes 94–100. Also
as noted previously, the penal code prohibits requiring a parole applicant to
admit guilt as a condition of parole. CAL. PENAL CODE § 5011(b) (West Supp.
2005).
172. See In re Dannenberg, 104 P.3d at 805.
173. Id. at 805.
174. Id.
175. As noted previously, Dannenberg’s psychological evaluations
consistently found he had no mental health problems that should prevent his
parole. See supra Part III.A.1.d.

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rights apply to California parole determinations, and in doing so,
reaffirms that federal due process rights apply under the analysis
articulated by the United States Supreme Court. Under Board of
Pardons v. Allen176 and Greenholtz v. Inmates of Nebraska Penal,177
state law dictates whether parole applicants have a “liberty interest”
in parole release that the Fourteenth Amendment Due Process Clause
protects.178
State parole law can create a federal liberty interest in several
ways. First, a statute triggers a liberty interest if it requires that the
parole authority grant release after determining, in its broad
discretion, that the necessary prerequisites for release exist.179 A
statute does so when it uses mandatory language like “shall” to
create a presumption that the parole authority will grant parole
release when it makes the designated findings.180 Additionally, state
courts’ case law interpreting a parole statute can confer Fourteenth
Amendment due process rights by construing the scope of the due
process protection the statute affords.181
Here, implicitly following its holding in In re Sturm,182 the
Dannenberg court assumed California law triggered due process
rights during the parole stage.183 The BPT apparently did not contest
this conclusion. Moreover, if the United States Supreme Court
interpreted section 3041, it would almost certainly reach the same
result, because section 3041(a) creates a presumptive structure
analogous to the statutes in Allen and Greenholtz.184 The Ninth
176. 482 U.S. 369 (1987).
177. 442 U.S. 1 (1979).
178. See Allen, 482 U.S. at 381 (holding that a Montana statute created
federal due process rights); Greenholtz, 442 U.S. at 12 (holding that a
Nebraska statute created federal due process rights).
179. Allen, 482 U.S. at 376 (construing Greenholtz).
180. Id. at 377–78 (citing Greenholtz, 442 U.S. at 12).
181. See, e.g., Greenholtz, 442 U.S. at 12 (“Since respondents elected to
litigate their due process claim in federal court, we are denied the benefit of the
Nebraska courts’ interpretation of the scope of the [liberty] interest, if any, the
statute was intended to afford to inmates.”).
182. 521 P.2d 97, 104 (Cal. 1974) (pointing to “time-honored” principles of
parole applicant’s right to “due consideration”).
183. See In re Dannenberg, 104 P.3d 783, 803 n.16 (Cal. 2005).
184. Compare CAL. PENAL CODE § 3041(a) (West 2000 & Supp. 2005)
(“[T]he [BPT] shall . . . normally set a parole release date . . .”) (emphasis
added), and id. § 3041(b) (“The . . . board shall set a release date unless it
determines that the gravity of the current convicted offense . . . is such that

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Circuit has so held.185 Dannenberg’s assumption, however, renders
moot speculation about the High Court’s due process analysis of
section 3041 because Dannenberg, like Sturm, represents definitive
California case law giving parole applicants due process rights.186
Thus, under Allen and Greenholtz, Dannenberg and Sturm operate to
confer federal due process rights on California’s parole applicants.
Additionally, Allen and Greenholtz make clear that merely
delegating the parole authority substantial discretion to deny parole
does not by itself violate the Fourteenth Amendment Due Process
Clause.187 Neither case, however, addresses judicial review of the
exercise of that discretion, which is the central issue in Dannenberg.
2. Due process demands a “some evidence”
standard of review when the BPT denies parole
As noted above, California courts review BPT decisions under a
“some evidence” standard of review that asks whether any facts
support the BPT.188 California adopted this approach following
Superintendent, Massachusetts Correctional Institution at Walpole v.
Hill,189 which held that the Due Process Clause of the Fourteenth
Amendment required that “some evidence” support decisions to
revoke a prisoner’s “good time credits.”190 The Ninth Circuit
concurs with importing Hill’s approach into review of California’s
consideration of the public safety requires a more lengthy period of
incarceration . . .”), with Greenholtz, 442 U.S. at 11 (“Whenever the Board of
Parole considers the release of a committed offender . . . on parole, it shall
order his release unless it is of the opinion that his release should be deferred
because [of certain mitigating considerations] . . . .” (quoting NEB. REV. STAT.
ANN. § 83-1,114(1) (LexisNexis 1976))) (emphasis added), and Allen, 482
U.S. at 376 (“Subject to the following restrictions, the board shall release on
parole [if certain requirements are met] . . . .” (quoting MONT. CODE ANN. §
46-23-201 (1985))).
185. See Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003) (finding that
California’s section 3041 creates a liberty interest); McQuillion v. Duncan, 306
F.3d 895, 902–04 (9th Cir. 2002) (holding that California parole applicant had
federal due process rights).
186. See In re Dannenberg, 104 P.3d at 803 n.16 (stating that the well
established principles applied by the BPT when evaluating whether an inmate
is suitable for parole on public safety grounds do not deny due process).
187. See Allen, 482 U.S. at 376 (construing Greenholtz).
188. E.g., In re Powell, 755 P.2d 881, 887 (Cal. 1988).
189. 472 U.S. 445 (1985).
190. Id. at 455.

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parole denials.191
likely agree.192

[Vol. 39:2

The United States Supreme Court would also

3. Dannenberg precludes effective
judicial review when the BPT denies parole
As Justice Moreno notes in dissent, parole applicants’ due
process rights demand “something more than mere pro forma
consideration” during parole review.193 Moreover, these rights are
toothless without meaningful judicial review to guard against their
abrogation.194 Dannenberg, however, prevents meaningful judicial
review when the BPT denies a parole date based solely on the
commitment offense. Thus, Dannenberg violates prisoners’ due
process rights. The court’s purported due process safeguard–that the
BPT must point to “factors beyond the minimum elements of the
crime”–rings hollow because the court does not explain when those
factors could possibly not exist.195 In other words, Dannenberg
191. See Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003) (“In the parole
context, the requirements of due process are satisfied if ‘some evidence’
supports the decision.” (citing McQuillion v. Duncan, 306 F.3d 895, 904 (9th
Cir. 2002)); Jancsek v. Ore. Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987)
(citing Superintendent v. Hill, 472 U.S. 445, 457 (1985)).
192. Although the Court in Greenholtz held that the Nebraska parole
authority need not notify applicants of the evidence supporting its stated
reasons for denying parole, Greenholtz does not negate the “some evidence”
standard of review for California parole denials for several reasons. First,
Greenholtz merely addressed whether federal procedural due process
demanded particularized notification to unsuccessful applicants themselves.
See Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 14–16 (1979) (addressing
procedural requirements of parole review, including notice of hearing).
Greenholtz did not, however, address whether substantive due process rights
demanded judicial inquiry into whether “some evidence” supported the denial.
Second, even if Greenholtz could somehow be read to make a substantive due
process holding, Hill likely superseded Greenholtz, requiring, under a broad
reading, that “some evidence” support decisions affecting prisoners’ paroleeligibility. See supra text accompanying notes 188–191. Finally, the
California cases requiring a “some evidence” standard of review represent
definitive state case law from which federal due process rights flow. See supra
Part IV.A.1. In sum, even if Nebraska parole law did not create a federal due
process right to “some evidence” review, California law does.
193. In re Dannenberg, 104 P.3d 783, 808–09 (Cal. 2005) (Moreno, J.,
dissenting) (quoting In re Sturm, 521 P.2d 97, 104 (Cal. 1974)).
194. Id. at 809 (Moreno, J., dissenting) (citing Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 161–163 (1803)).
195. See id. at 786 (majority opinion).

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renders meaningless the already deferential “some evidence”
standard of review because it fails to explain just what a reviewing
court must find “some evidence” of.
The Dannenberg court purports to require that the BPT point to
“factors beyond the minimum elements of the crime” when it denies
parole based solely on the commitment offense.196 This requirement,
according to the court is sufficient to protect prisoners’ due process
rights.197 Although the court claims the facts of the Dannenberg
murder satisfy this “beyond the minimum elements” requirement, the
court does not explain why. Further, according to the court, it
suffices that “some evidence” suggested Dannenberg’s offense was
“callous and cruel” and was committed with “disregard for human
suffering.”198 Again, however, the court does not explain what
particular circumstance of Dannenberg’s case provides the “some
evidence” of “beyond the minimum elements” standard the court
purports to demand.
Put more starkly, Dannenberg implies that some second degree
murderers, though validly convicted, merely committed the
“minimum” elements of the offense and thus must receive a parole
release date after fifteen years in prison.199 The court does not,
however, come close to describing how a court will know these
offenders when it sees them. The court merely held, without
explanation, that Dannenberg is not such an offender.200
It seems curious that the court would apply such a conclusory
analysis to the very element that supposedly prevents a due process
violation.
In dissent, Justice Moreno offers the following
explanation:
The majority gives us no clue, because the concept of a
crime being “more than minimally necessary to convict [a
prisoner] of the offense for which he is confined” is
essentially meaningless. Second degree murder is an
abstraction that consists of certain legal elements.
Particular second degree murders have facts that fit within
these elements. These facts are never “necessary” or
196.
197.
198.
199.
200.

Id.
E.g., id. at 803.
Id. at 788, 803.
See id. at 803 n.16.
See id. at 802–03.

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“minimally necessary” to convict someone of a second
degree murder, because we can always imagine other facts
that would also lead to a second degree murder
conviction.201
Concededly, the court’s “beyond the minimum elements”
standard may refer to cases where evidence suggests that the
offender actually satisfied the elements of a greater offense. For
example, the court could mean that the BPT may treat a second
degree murderer like a first degree murderer where evidence
indicates premeditation.202
This explanation seems weak, however, because of the complete
absence of any evidence that suggested Dannenberg premeditated his
wife’s murder. Rather, the only dispute appears to have been
whether Dannenberg intended to kill his wife. Premeditation would
require more, such as advanced planning.
The death of
Dannenberg’s wife, on the contrary, seems to have been a domestic
fight gone awry. Accordingly, even if the Dannenberg court did
intend “minimum elements” to mean “could have been guilty of a
greater offense,” the willingness to accept such a weak showing on
this level would render the standard virtually meaningless.
Said another way, if Dannenberg could have been guilty of first
degree murder in the eyes of the court, and had thus committed more
than the “minimum elements” of his offense such that he could be
denied parole based solely on the circumstances of that offense, it
would be difficult to imagine any second degree murderer who did
not share those characteristics and whose parole would not be
similarly denied. This difficulty, along with Justice Moreno’s point
above, illustrates that the Dannenberg majority provides only a
specious safeguard for prisoners’ due process rights.

201. Id. at 808 (Moreno, J., dissenting) (emphasis in original) (footnote
omitted).
202. The California Supreme Court has previously upheld such an approach.
In re Rosenkrantz, 59 P.3d 174, 219 (Cal. 2002) (“[T]hat the jury, for whatever
reason, did not find beyond a reasonable doubt . . .premeditation and
deliberation does not preclude the Governor from considering such evidence in
exercising his discretion whether to reverse a Board decision granting parole.”)
(emphasis omitted); cf. In re Dunham, 545 P.2d 255 (Cal. 1976) (upholding
revocation of parole based on evidence indicating that the parolee committed
the crime of which he was acquitted).

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IN RE DANNENBERG

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4. Dannenberg’s contradictions allow the BPT
to give parole applicants only nominal consideration
The Dannenberg opinion rests on two contradictions that allow
the BPT to violate inmates’ due process rights. First, the court
purports to allow the BPT to decide suitability based on
individualized consideration, unconstrained by “comparative”
considerations.203 At the same time, the court allows the BPT to use
labels that, on their face, virtually compel comparative consideration
unless the BPT either uses them as “boilerplate” or engages in
mental gymnastics. The court effectively contended that even
someone who has never heard of second degree murder, understood
its elements, or imagined its hypothetical circumstances could
independently decide whether a given offense was “especially cruel
or callous” or “carried out in a manner which demonstrates an
exceptionally callous disregard for human suffering” or committed
for a “very trivial” motive.204 These labels almost inherently involve
consideration of either second degree murders in general, or other
specific instances of second degree murder. Thus, it seems
impossible that the BPT truly evinces “individualized consideration”
when it applies such labels. Much more likely, these labels are just
that–standard language the BPT applies when it has decided to deny
parole.
Second, and perhaps just as contradictory, Dannenberg’s
construction of section 3041 gives the BPT nearly complete license
to say, in effect, that a prisoner is not yet ready–but may become
ready–for parole based solely on an event that occurred in the past.
Said another way, one wonders why an inmate whose offense alone
precluded parole would ever become suitable for parole. The facts of
203. In re Dannenberg, 104 P.3d at 786.
204. In re Dannenberg, 104 P.3d at 788 (emphasis added); see CAL. CODE
REGS. tit. 15, § 2402(c) (2005). The Dannenberg trial court persuasively
rejected this notion when it noted that all murders are “especially cruel and
callous” when not viewed in comparison with the concept of murder itself. In
re Dannenberg, 125 Cal. Rptr. 2d 458, 465 (Ct. App. 2002), rev’d, 104 P.3d
783 (Cal. 2005). Put simply, second-degree murder is by definition an
especially callous and cruel act. Similarly, Justice Moreno pointed out that all
second degree murders are by definition committed for a trivial reason. In re
Dannenberg, 104 P.3d at 808 (Moreno, J., dissenting). In fact, the law defines
killings with nontrivial motives as either manslaughter, if based on legally
cognizable provocation, or self-defense, if in response to a threat of death or
great bodily harm. CAL. PENAL CODE §§ 192, 197 (West 1999 & Supp. 2005).

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the commitment offense will not change, and, apparently, no other
facts are relevant.
In sum, Dannenberg violates prisoners’ due process rights by
precluding judicial review and allowing the BPT to apply vague
labels in a nonsensical way. As illustrated below, the legislature
could not have intended such a result.
B. Dannenberg’s Construction of Section 3041 Fails
Laws with the language “shall” and “unless” establish a general
rule with an exception. Typically, such laws presume that the
general rule, i.e., the thing that “shall” be done, applies.205 In
contrast to this usual approach, Dannenberg holds that the BPT can
apply the exception, section 3041, subdivision (b), merely by
labeling an offense “exceptionally callous and cruel” and reciting
case facts.206 Thus, Dannenberg allows the exception to swallow the
rule.207 This contravenes the intent of the legislature, and effectively
returns California’s parole consideration to the regime the legislature
rejected in 1976.208 As discussed below, the court achieved this
result by framing its decision with a straw man argument. Moreover,
the court ignored the will of the legislature in several ways.
1. The Dannenberg majority argued for its statutory
construction of section 3041 by knocking down a straw man
The court repeatedly characterized the proportionality
requirement of section 3041, subdivision (a) as a form of
“comparative analysis” that the BPT should not have to conduct prior
to determining a prisoner’s suitability for parole.209 By using this
language, the court implicitly raises the specter of forcing the BPT to
release clearly dangerous prisoners simply because their crimes
205. See, e.g., People v. Braxton, 101 P.3d 994, 1003 (Cal. 2004)
(interpreting CAL. CONST. art. VI, § 13); Graham v. DaimlerChrysler Corp.,
101 P.3d 140, 144 (Cal. 2004) (interpreting CAL. CIV. PROC. CODE § 1021.5
(West 1980 & Supp. 2004)); Villa De Las Palmas Homeowners Ass’n v.
Terifaj, 90 P.3d 1223, 1224–26 (Cal. 2004) (interpreting CAL. CIV. CODE
§ 1354(a) (West 1982 & Supp. 2004)).
206. See In re Dannenberg, 104 P.3d at 786, 794, 802–03.
207. See In re Rosencrantz, 59 P.3d at 222 (quoting In re Ramirez, 114 Cal.
Rptr. 2d 381, 397 (Ct. App. 2001)).
208. See supra Part II.A.2.
209. See In re Dannenberg, 104 P.3d at 785–86, 791–92, 794–97, 799, 801–
02, 804, 805 & n.18.

August 2006]

IN RE DANNENBERG

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happened to fall on the less egregious end of the spectrum in
comparison to those of other murderers.210 In other words, the court
insinuates that the analysis it rejects would demand release of all but
the most egregious life prisoners, even if all such offenses in a
relevant period somehow escalated one hundredfold in brutality.211
The legislature must not have intended such a construction of section
3041. Accordingly, the court implies that its construction–allowing
the BPT to eschew proportionality by applying vague labels to the
commitment offense–must be correct.
This argument amounts to a straw man because no one–not the
court of appeal, the trial court, the petitioner, nor the dissent–
advocates a “parole all but the worst X percent” approach. Such an
approach would allow egregious killers to go free simply because
other killers happened to have committed even more heinous crimes.
Rather, the proportionality requirement of section 3041 merely
suggests that objective criteria should be used to uniformly punish
murder. Moreover, section 3041 requires that the BPT use such
objective criteria to compare the inmate’s criminal conduct against
generic, hypothetical instances of the same crime.212
The following scenario illustrates how proportional sentencing,
based on objective criteria, differs from the majority’s straw man
construction. Suppose nearly all murders in a given time period had
characteristics that matched those describing egregious murders, i.e.,
those at the upper end of the base-term spectrum.213 In this
hypothetical, objective criteria would not compel paroling all but a
small percentage of the most egregious criminals. Rather, objective
criteria would deny parole to all those who fell at the upper end of
the spectrum, regardless of the number, and would set parole release
210. See id. at 786 (emphasis added).
211. See id. at 810 (Moreno, J., dissenting) (emphasis added).
212. See In re Ramirez, 114 Cal. Rptr. 2d at 397 (holding that compliance
with section 3041 requires the BPT to “weigh the inmate’s criminal conduct
not against ordinary social norms, but against other instances of the same
crime”).
213. Cf. CAL. CODE REGS. tit. 15, § 2403(c) (2005). Justice Moreno notes in
dissent that, for suitability determinations, the BPT need not necessarily use
the same matrix it drafted pursuant to section 3041, subdivision (a). In re
Dannenberg, 104 P.3d at 810 (Moreno, J., dissenting). Rather, the BPT could
devise a new matrix with longer base terms if it believes the fifteen to twentyone year sentences in the current matrix do not sufficiently protect public
safety. Id.

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dates for others in proportion to the seriousness of their offenses and
other relevant factors. Put simply, objective criteria can achieve
proportional sentencing without using a “curve.”
2. The court’s construction of Section 3041 fails for several reasons
Dannenberg construes section 3041(b) to allow the BPT to deny
parole whenever the BPT deems a commitment offense “especially
callous or cruel.”214 Under Dannenberg, the BPT need not consider
objective criteria when denying parole, even when it does so based
solely on an inmate’s commitment offense.215 This construction of
section 3041 has three main difficulties: (1) it ignores the legislative
assessment that objective, proportional terms can be consistent with
public safety; (2) it places undue weight on legislative
“acquiescence” to the BPT’s practices; and (3) it gives the BPT free
rein to deny parole based solely on commitment offenses in a way
that conflicts with the public safety purpose of section 3041.
First, section 3041 makes clear that the legislature believes the
concepts of proportionality in sentencing and “public safety” can
coexist, even for serious offenders. Subdivision (a) expressly
combines these two concepts by directing the BPT to grant release
dates “in a manner that will provide uniform terms for offenses of
similar gravity and magnitude in respect to their threat to the
public.”216 In effect, subdivision (a) directs the BPT to weigh how
long different classes of serious offenders–defined by objective
criteria–should be incarcerated before they can safely be released.
Read in this way, subdivision (b) merely provides an “escape clause”
by which the legislature acknowledged that some offenders present
such a threat to public safety that the BPT should not release them in
the foreseeable future.217 Accordingly, when Dannenberg suggests
public safety cannot be served by applying the plain language of
section 3041,218 it makes a policy judgment in direct conflict with
that of the legislature. Clearly, the legislature sits in a much better

214. In re Dannenberg, 104 P.3d at 786–87.
215. Id. at 786 (holding that the “[BPT] need engage in no further
comparative analysis before concluding that the particular facts of the offense
make it unsafe, at that time, to fix a date for the prisoner’s release”).
216. CAL. PENAL CODE § 3041(a) (West 2000 & Supp. 2005).
217. Id. § 3041(b).
218. See supra text accompanying notes 154–155.

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IN RE DANNENBERG

939

position than the court to make such an assessment. Thus, the court
should have deferred.
Second, the legislative acquiescence upon which the court
relies219 should not allow such a fundamental departure from the
proportionality requirement expressly stated in section 3041. Justice
Moreno noted that the issue whether the BPT may ignore
proportionality when denying parole based solely on the commitment
offense arose just recently with In re Ramirez in 2001.220 Ramirez
merely disapproved of the BPT’s administrative practice of ignoring
proportionality. Thus, Justice Moreno argues, the legislature simply
may not have considered that practice when it enacted amendments
to section 3041.221
In addition, the BPT’s parole denials represent an especially
poor vehicle for a “legislative acquiescence” mode of interpretation
because legislators probably prefer to ignore parole denials of serious
offenders. Parole grants present huge political risks, while denials do
not.222 Political calculation certainly permeates the parole decisionmaking process of the governor223 and the BPT.224 The legislature
probably has no immunity from such calculations. For example,
California’s Democratic-controlled legislature might simply prefer to
look the other direction as the BPT chips away at its law, rather than

219. See supra text accompanying notes 156–158.
220. In re Dannenberg, 104 P.3d at 807 (Moreno, J., dissenting) (citing In re
Ramirez, 114 Cal. Rptr. 2d 381, 396–97 (Ct. App. 2001)).
221. Id. Significant evidence supports Justice Moreno’s argument. In fact,
the BPT appears to have been less than forthcoming with the legislature
regarding its parole practices. See STATE LEGISLATIVE ANALYST, supra note
12, at D-61 (noting that the BPT had not provided the legislature with
information regarding a variety of important issues, including a justification for
funding parole hearings “given that . . . offenders will not be released on
parole”).
222. John Simerman, Convicts Pin Hopes On Governor, CONTRA COSTA
TIMES, Aug. 22, 2004, at A1 (outlining the reasons why California politicians
have kept most parole eligible prisoners incarcerated); see Jean Arnold,
California’s Secret Judges, S.F. CHRON., Aug. 20, 2000, at A1 (“Since 1988,
when ads featuring Willie Horton, a furloughed Massachusetts convict who
wrought havoc on a young couple, sabotaged the presidential prospects of
Michael Dukakis, California governors have feared that one wrongly paroled
felon could wipe out a lifetime of strategic political planning.”).
223. Simerman, supra note 222.
224. Arnold, supra note 222. For a discussion of the impact of the BPT’s
political calculations, see infra Part V.

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risk a “soft on crime” label by intervening on behalf of murderers.
The court, however, should not give cover to legislators who would
prefer to silently tolerate an erosion of statute than enact necessary
legislation they opposed or legislation fraught with political pitfalls.
As such, the court’s claim, that the legislature implicitly endorsed its
position merely because the legislature did not amend section 3041
to expressly reject certain BPT practices, rings hollow.
Third, Dannenberg incorrectly interprets section 3041 because
allowing the BPT to regularly give commitment offenses
overwhelming consideration conflicts with section 3041’s public
safety emphasis. Recall that even the subsection (b) exception
makes public safety the primary consideration in the BPT’s parole
processes.225 Of all the factors that could potentially impact public
safety, a commitment offense fifteen years prior seems the least
relevant. An inmate’s prison behavior, psychological evaluations,
and plans for employment upon release appear much more salient.
The latter factors are inherently better tied to public safety because
they focus on what inmates are capable of currently and in the future.
In contrast, the commitment offense mainly illustrates what inmates
were capable of in the past.226 In short, the public safety purpose
strongly implies that the BPT must weigh parole prospectively rather
than retrospectively and focus on whether the inmate would likely
act violently in the future if released. Even the Dannenberg court
agrees with this prospective conception of the parole suitability
inquiry.227 Simply put, under section 3041, parole suitability cannot
turn on whether the inmate “deserves” more punishment. Rather,
suitability must depend on whether the BPT can safely release the
inmate.

225. As discussed above, section 3041, subdivision (b) provides that the BPT
may only decline to set a release date when “consideration of the public safety
requires a more lengthy period of incarceration for this individual.” CAL.
PENAL CODE § 3041(b) (West 2000 & Supp. 2005).
226. For a former San Quentin teacher’s impression of how incarceration
impacts inmates’ temperaments, see Arnold, supra note 222.
227. See In re Dannenberg, 104 P.3d 783, 797 (Cal. 2005) (“[T]he Board
[need] not schedule the release [of] any life-maximum prisoner who is still
dangerous . . . [or who presents] a continuing public danger . . . .”) (emphasis
altered); see also id. at 786 (accepting the BPT’s decision that “Dannenberg
remains too dangerous for parole”).

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IN RE DANNENBERG

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Concededly, the legislature merely created a general rule that
even serious offenders be granted a parole date based on
proportionality. As such, section 3041 implicitly recognizes that, in
some instances, the nature of an offense might point to an offender
who might be dangerous if released, even when all other
considerations suggest parole suitability. The statute’s use of a
general rule, however, also makes clear that this is not the
legislature’s assessment of the typical indeterminate life inmate. To
the contrary, section 3041 embodies the legislature’s conclusion that
the normal indeterminate life offense does not, by itself, suggest an
offender too dangerous for parole.228 Therefore, Dannenberg
contravenes the will of the legislature by allowing the BPT to deny
parole routinely and without constraint.
In sum, Dannenberg’s construction of section 3041 seems
dubious at best. Even more troubling, however, is that this
construction tolerates a significant denial of inmates’ right to due
process because it renders judicial review virtually impossible.
V. DANNENBERG MAY HAVE TOLERATED A
BLANKET POLICY ON THE PART OF THE BPT TO DENY PAROLE
Dannenberg allowed the BPT to apply vague, amorphous, and
hopelessly subjective labels under the guise of “individualized
consideration.” In so doing, Dannenberg at best rubber-stamped an
inherently arbitrary practice. At worst, Dannenberg turned a blind
eye toward a near-blanket policy of parole denial for eligible
prisoners. In either case, the statutory interpretation adopted by the
Dannenberg court violates the due process rights of indeterminate
life prisoners.
There appears reason to suspect the worst. Evidence suggests
the BPT systematically infringed inmates’ due process rights during
the administration of former California Governor Gray Davis. The
Dannenberg trial court noted testimony from a former BPT chair
alleging the BPT followed an unwritten policy of denying parole to
life prisoners.229 Moreover, the BPT’s own statistics suggest that it
228. As one commentator stated, section 3041 seems to suggest that the
Board should set a parole date unless an inmate’s behavior “indicates that [the
inmate is] not getting the idea yet.” Arnold, supra note 222.
229. In re Dannenberg, 125 Cal. Rptr. 2d 458, 465–66 (Ct. App. 2002),
rev’d, 104 P.3d 783 (Cal. 2005).

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virtually never grants parole. For example, Justice Moreno noted
that in 1999, the BPT granted parole in less than one percent of the
hearings it conducted for eligible indeterminate life inmates.230
Indeed, several commentators have posited that the BPT
systematically denies parole in order to protect the governor’s
political interests,231 in part because BPT members depend on the
governor for reappointment.232
No court appears to have examined in detail whether the BPT
has ever maintained a blanket policy of denying parole to virtually
all indeterminate life inmates. It seems clear, however, that such a
blanket policy would be an impermissible violation of due process.233
Moreover, if a blanket policy to deny parole did exist, the policy
would almost certainly manifest itself through parole proceedings
exactly like that in Dannenberg. In addition to levying the
boilerplate labels, the BPT stated that Dannenberg needed further
therapy despite uncontroverted evidence to the contrary.234 In fact,
Dannenberg’s psychological evaluations invariably concluded the
BPT should determine Dannenberg’s parole-suitability based on
considerations other than his mental health, and that Dannenberg
presented no significant threat of future violence.235 Indeed, the
California Supreme Court tacitly upheld the trial court’s finding that
the BPT’s statement regarding therapy did not even satisfy the “some
evidence” standard.
230. In re Dannenberg, 104 P.3d at 809 (Moreno, J., dissenting) (citing
STATE LEGISLATIVE ANALYST, supra note 12, at D-59).
231. See supra text accompanying notes 222–224.
232. E.g., Arnold, supra note 222, Simerman, supra note 222. Simerman
suggests that Governor Schwarzenegger’s politics may allow a less hostile
approach to parole than those of his predecessor, Governor Davis, who
publicly declared that no murderer would receive parole on his watch. Id.
Moreover, the BPT’s statistics suggest that any blanket policy that existed
during Dannenberg’s parole hearing may have loosened. See infra App. B. If
true, this would prove the broader point. The political winds may occasionally
blow in favor of parole, or, more aptly put, less strongly against parole.
Nonetheless, Dannenberg violates prisoners’ due process rights by leaving
them completely at the mercy of those winds, unprotected by judicial review.
233. See In re Dannenberg, 140 P.3d at 802; In re Rosenkrantz, 59 P.3d 174,
223 (Cal. 2002); cf. In re Minnis, 498 P.2d 997, 1003–04 (Cal. 1972)
(describing requirements of parole release hearings prior to the Determinate
Sentencing Law).
234. See supra text accompanying notes 108–113, 119–120.
235. See In re Dannenberg, 104 P.3d at 788.

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IN RE DANNENBERG

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Additionally, the record indicates that the BPT strongly
disapproved of Dannenberg’s version of how the murder occurred
and wished that Dannenberg would accept more responsibility for his
wife’s death. 236 The California Supreme Court acknowledged that
this consideration impermissibly tainted the BPT’s postponement of
Dannenberg’s next parole hearing.237 It seems impossible, however,
that this consideration did not affect the BPT’s denial of parole itself.
In contrast, it seems quite possible that the BPT was sophisticated
enough to anticipate this result and thus merely purported to exclude
the impermissible consideration from its suitability determination.
In effect, this looked very much like a panel that simply
“developed the feeling” that Dannenberg was not “ready to go
home”238 before it assessed Dannenberg individually. Apparently,
because the BPT could not point to any permissible, objective
criteria, the panel slapped perfunctory, boilerplate labels on
Dannenberg’s case file–not unlike the parole board in Shawshank.239
Put simply, Dannenberg’s hearing looked like a farce.240 If the BPT
had decided to deny parole to virtually all life prisoners but knew
courts would overturn such a blanket policy if stated explicitly, the
BPT would probably conduct proceedings just like Dannenberg’s.
The Dannenberg court embraced this result.
VI. RECOMMENDATIONS
Correctly interpreted, section 3041 makes inmates
presumptively eligible for parole dates and requires that the BPT
consider proportionality in determining such eligibility. Of course,
presumptive eligibility may be overcome in a given case, and indeed
may be frequently or even typically overcome.
The crime should be particularly egregious, however, to defeat
the presumption based solely on the commitment offense. The
measure of an offense’s “egregiousness” need not be comparative–
but it must be objective. In deeming an offense “egregious,” the
236. See supra text accompanying notes 94–100.
237. See supra text accompanying notes 171–173.
238. Cassou & Taugher, supra note 16, at 9.
239. DARABONT, supra note 3.
240. For an example of another BPT panel that inexplicably concluded the
parole applicant needed further therapy, see In re Ramirez, 114 Cal. Rptr. 2d
381, 398 (Ct. App. 2001).

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BPT should rely on tangible factors that may be present in an offense
of the relevant category. These factors must not be so loose,
however, as to describe the crime almost by definition. The BPT has
already articulated such factors pursuant to the mandate given by
section 3041, subsection (a). The BPT ought to follow these factors
at the suitability stage. If the BPT finds these objective factors
inadequate, it may draft others.
Objective factors would allow judicial review in the very way
that Dannenberg prevents it: reviewing courts would have a
meaningful standard to determine whether the BPT acted arbitrarily
or otherwise abused its discretion.
VII. CONCLUSION
Dannenberg validated a parole hearing wrought with flaws. The
California Supreme Court could easily have avoided this result by
demanding that the BPT point to objective criteria when denying
parole to eligible life prisoners based solely on their commitment
offenses. The court did not choose this route. As a result, the
Dannenberg court violated prisoners’ due process rights and
incorrectly interpreted section 3041.
Alexander K. Mircheff∗

∗

Juris Doctor Candidate, Loyola Law School, May 2006. This Comment
owes a great deal to Professor Laurie Levenson, and Gibson, Dunn & Crutcher
partner Gareth Evans, each of whom provided outstanding suggestions and
technical advice. I also thank the editors and staff members of the Loyola of Los
Angeles Law Review for their assistance, particularly Glenn Anaiscourt, Shawn
Michael Domzalski, Rena Durrant, Brianna Fuller, Anastasia Mazzella, Erica
Pines, Sonia Salinas, and Jon Son. Most of all, thanks to my family for their
support, and to Whitney Baugh, whose analytical skills and diligence are surpassed
only by her patience and kindness.

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APPENDIX A
BASE TERM MATRIX PROMULGATED BY THE
CALIFORNIA BOARD OF PRISON TERMS PURSUANT TO
SECTION 3041 OF THE PENAL CODE, AS CODIFIED IN
SECTION 2403 OF TITLE 15 OF THE CALIFORNIA CODE OF
REGULATIONS
Second Degree

A. Indirect

B. Direct or Victim

C. Severe Trauma

Murder

Victim died of causes

Contribution

Death resulted from

Penal Code § 189

related to the act of the

Death was almost

severe trauma inflicted

(in years and does

prisoner but was not

immediate or resulted at

with deadly intensity;

not include post

directly assaulted by

least partially from

e.g., beating, clubbing,

conviction credit as

prisoner with deadly

contributing factors

stabbing,

provided in § 2410)

force; e.g., shock

from the victim; e.g.,

strangulation,

producing heart attack, a

victim initiated struggle

suffocation, burning,

crime partner actually

or had goaded the

multiple wounds

did the killing.

prisoner. This does not

inflicted with weapon

include victims acting in

not resulting in

defense of self or

immediate death or

property.

actions calculated to
induce terror in the
victim.

I. Participating
Victim
Victim was
accomplice or
otherwise
implicated in a
criminal act with the
prisoner during
which or as result of
which the death
occurred, e.g., crime
partner, drug dealer,
etc.

15-16-17

16-17-18

17-18-19

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APPENDIX A (CONTINUED)
II. Prior Relationship

16-17-18

17-18-19

18-19-20

17-18-19

18-19-20

19-20-21

Victim was involved in a personal relationship with
prisoner (spouse, family member, friend, etc.) which
contributed to the motivation for the act resulting in
death. This category shall not be utilized if victim
had a personal relationship but prisoner hired and/or
paid a person to commit the offense.
III. No Prior Relationship
Victim had little or no personal relationship with
prisoner or motivation for act resulting in death was
related to the accomplishment of another crime, e.g.,
death of victim during robbery, rape, or other felony.

APPENDIX B
SUMMARY OF CALIFORNIA BOARD OF PRISON TERMS
“LIFER” PAROLE DECISIONS, 1990-2004241
Life Offenders By Number of Hearings, Deny and Grant Actions
Actions

1990

1991

1992

1993

1994

1995

1996

1997

Hearings
Deny
Grant

1,912
1,488
81

1,817
1,369
57

1,828
1,471
19

1,680
1,464
17

2,029
1,786
12

2,182
1,978
16

2,317
2,202
10

2,299
2,188
16

Actions

1998

1999

2000

2001

2002

2003

2004

Hearings
Deny
Grant

2,190
2,046
27

1,953
1,827
13

2,179
1,875
52

3,644
3,097
84

4,827
3,747
168

4,499
2,952
168

*
2,614
199

241. California Board of Prison Terms, original on file with the author. In
cases where the Board neither granted nor denied parole, it postponed the
hearing due to logistical difficulties. The Board’s Communications Director
did not have information on the total number of hearings scheduled in 2004 at
the time of writing.