Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 98394
Mihara, J.
In July 1985, Michael Lowe pleaded guilty pursuant to a plea bargain to second degree murder, for which he was sentenced to an indeterminate term of 15 years to life. In July 2006, Lowe filed a petition for a writ of habeas corpus in which he alleged that his plea was based on an incorrect understanding by all parties to the bargain about how the Board of Prison Terms (the Board) would evaluate his future suitability for parole. He sought either specific enforcement of his plea bargain or vacation of his plea. The superior court conducted an evidentiary hearing and concluded that “[i]t was the understanding of [Lowe], the attorneys, and the trial court, that the use of the crime was fixed per the second degree matrix and [Lowe’s] performance in prison was the only remaining variable.” The court ordered the Board to conduct a new hearing on Lowe’s parole suitability, at which his “crime may only be considered as it qualifies within the second degree matrix. Given that [Lowe] has served so much time already that he is beyond all second degree matrix sentences, the Board is precluded from using the crime itself as a reason to deny him parole.” Both Lowe and the People appeal from this order. On October 26, 2007, this court issued a stay of the superior court’s order in response to the People’s petition for writ of supersedeas.
The Board of Prison Terms is now the Board of Parole Hearings. (Pen. Code, § 5075, subd. (a); Gov. Code, § 12838.4.)
The People contend on appeal, among other things, that Lowe could not obtain relief on his petition because he did not establish his diligence in bringing this claim. We conclude that there is no support for the superior court’s implied conclusion that Lowe had been diligent. The superior court’s implied conclusion was apparently based on its assertion that In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg) changed the law regarding how the Board applies the matrices in determining parole suitability, thereby invalidating the understanding of the parties to Lowe’s plea bargain. As Dannenberg did not change the law in this regard, and Lowe did not otherwise demonstrate diligence, he was not entitled to habeas relief, and the superior court’s order must be reversed.
Because we agree with this contention, and it precludes habeas relief, we need not consider the People’s other contentions or Lowe’s claim that the superior court granted him the wrong relief.
I. Factual Background
A. The Commitment Offense
Michael Sanchez and Lowe met when Sanchez was a teenager at a church-sponsored program for gay men and women. In February 1982, Lowe became Sanchez’s guardian with the permission of Sanchez’s parents. In September 1982, they moved into a rented condominium together. According to Lowe, it was a father-son relationship, and not a sexual relationship, although they embraced many times and slept together a few times. Sanchez was volatile and tempestuous and sometimes physically assaulted Lowe. Lowe was distraught over the deterioration of their relationship before he ended it. Early in the morning of January 22, 1984, Lowe entered the bedroom where 18-year-old Sanchez was sleeping and killed him with five gunshots to the head and chest. The following day was Lowe’s 37th birthday. Sanchez’s body was discovered on April 25, 1984, when a prospective buyer of the condominium complained of the odor coming from a six-foot by two-foot plywood box that Lowe had built and used as a nightstand.
B. Plea and Sentence
Charged with first degree murder, Lowe pleaded guilty on July 15, 1985 to second degree murder and admitted personal use of a handgun during the murder. Prior to his entry of a guilty plea, the trial court advised him of the following. “[T]here is a stipulation between counsel[, Deputy District Attorney Rod Braughton and Lowe’s attorney, James Danaher,] that the murder degree in this particular case is specified to be murder of the second degree.” The court informed Lowe that “the punishment for second degree murder is an indeterminate term, fifteen years to life in prison” and a consecutive term of two years could be imposed for the firearm use. Lowe said he understood. When asked, “has anybody made any promises or inducements to you aside from the fact the specification of the murder charge would be second degree, other than that have there been any inducements or promises made to you as to... what else [is] going to happen in this case?” Lowe answered, “No, there haven’t, Your Honor.”
The trial court emphasized what would happen after Lowe went to prison. “[T]he Department of Corrections then would determine when you should be released, they would make that determination when they feel that you are no longer a danger to the community and that you are rehabilitated in the sense that you can be released safely back into the community. Theoretically under the law it could mean that you could serve the remainder of your life in prison.” Lowe said he understood. He also acknowledged that he understood “that under the terms of the indeterminate sentence your release will be contingent upon your performance in prison and that will be a decision made by the Department of Corrections.” Lowe said he understood the court’s advisement that “once you are committed to prison the Department of Corrections would determine your release date after your serving what is called the minimum term on the indeterminate sentence, and I believe the minimum term that you would have to serve on the fifteen year to life term would be at least one-half of the fifteen years, which is seven-and-a-half years, and as to how much additional time you would serve in prison, again that’s dependent upon the Department of Corrections, based upon perhaps a computation of good time credits, work time credits, but also their evaluation of you as to whether or not you are rehabilitated to the extent where you can be released back into the community and not pose a danger to the community.” Lowe was sentenced in August 1985 to 15 years to life, with the gun use enhancement stayed.
C. Prior Parole Hearings and Habeas Proceedings
Lowe attended parole hearings in 1993, 1995, 1997, 2000, and 2001 at which the Board found him unsuitable for parole. Each time, the Board relied on the especially cruel and callous nature of the commitment offense. In 1993 and 2000, the Board also relied on recent disciplinary violations. In 1993 and 1997, the Board also relied on unfavorable psychiatric reports. In 1997 and 2001, the Board also mentioned his lack of insight into how he could live for months with a dead body in his residence.
In 2002, the Board found Lowe suitable for release on parole. That decision was reviewed and reversed by the Governor in 2003. Lowe challenged the Governor’s decision in a habeas petition filed in August 2003. Without conducting an evidentiary hearing, the Santa Clara County Superior Court granted his petition in 2004. (In re Lowe (2005) 130 Cal.App.4th 1405, 1417, fn. 2. (Lowe I).) The superior court ordered “Lowe ‘released per the terms of his parole.’ [fn. omitted] The court found that Lowe had entered into a plea agreement with the ‘express and implied promise’ that ‘the Parole Board would analyze his crime as being second degree murder and if the Parole Board granted him parole he would be released on parole.’... [T]he court said that this was ‘the “bargained for quid pro quo.” ’ The court noted that the ‘ “existing applicable law” ’ at the time of this plea bargain ‘contract’ with the state was that ‘if [Lowe] was granted parole by the Parole Board he would, in actual fact, be released on parole.’ It then explained that ‘[Lowe] was granted parole but pursuant to a constitutional amendment enacted 3 years after Petitioner’s plea, (Const. Article V. section 8, Proposition 89, PC § 3041.2 (1988),) the Governor exercised a previously nonexistent power to reverse that parole.’ [¶] Based upon its above analysis, the court concluded that the ‘Governor’s exercise of this new power violated [Lowe’s] plea bargain and thus the Constitution.’ ” (Lowe I, at p. 1417.)
In July 2009, Lowe’s appellate counsel informed this court that Lowe was granted parole by the Board in May 2009. The Board’s decision remains subject to the Governor’s review at the time of the filing of this opinion.
In Lowe I, this court reversed the superior court’s 2004 order, rejecting Lowe’s claim that his plea bargain was violated by the Governor’s review and decision. “We find no violation of due process based upon a violation of the plea bargain. Lowe entered into the plea agreement explicitly acknowledging that ‘theoretically under the law it could mean that [he] could serve the remainder of [his] life in prison.’ He received his initial parole consideration hearing sooner as a result of his plea bargain, but he never was promised, as part of his plea bargain, that a specific release date or his parole suitability would be determined by any particular person or persons.” (Lowe I, supra, 130 Cal.App.4th at p. 1424.) “We are convinced that when Lowe entered into his plea bargain to plead guilty to second degree murder and to accept the corresponding indeterminate life sentence, the bargain did not include a promise of a specific release date or a promise that his parole suitability would be [determined] by a particular person or persons. No substantive obligations were altered. Because the change in identity of the decision maker was procedural rather than substantive, there was no violation of the Contracts Clause, which prohibits a state from passing a law that impairs the obligations of existing contracts. (U.S. Const., art I, § 10.)” (Id. at p. 1426.) This court concluded “that the Governor’s decision in this case is supported by some evidence and ‘reflects due consideration of the specified factors.’ ” (Id. at p. 1429.)
D. The Current Proceedings
On July 10, 2006, Lowe filed a petition for a writ of habeas corpus in the Santa Clara County Superior Court. The habeas petition and the accompanying memorandum of points and authorities do not attempt to explain why this petition had not been filed earlier. On July 31, 2006, the court issued an order to show cause (OSC) asking the parties to brief two questions: “(1) what benefit did [Lowe] receive from his plea bargain, and (2) what benefit did he reasonably expect.” The OSC stated: “This Court finds the petition to be timely because the basis for it has only recently become apparent. [Lowe] claims that, in light of the decision of the Sixth District in [Lowe I], he is not receiving the benefit of the plea bargain that he reasonably expected.”
The return itself, filed on October 2, 2006, did not mention untimeliness as a defense, but the accompanying points and authorities, in addition to arguing that the current petition is successive, asserted that a writ of coram nobis “will be denied if the petitioner does not show due diligence in seeking the remedy. This showing should include the time and circumstances in which the facts justifying relief were discovered, so that the court can determine whether the petitioner was diligent.” Adverting to the Governor’s authorization in 1988 to review parole denials, the points and authorities queried: “[H]ow does he justify the substantial delay between the change in the law in 1988 and the present in bringing the current petition on these grounds? He has offered no explanation for the delay and has not demonstrated due diligence as required for a writ of error coram nobis to be an available remedy.” “[B]ecause the law allowing the facts of [Lowe’s] commitment offense to be used in determining his parole suitability was in effect at the time [Lowe] entered his plea agreement, there has not been a change in the law substantially affecting [Lowe’s] rights.”
Lowe’s traverse did not attempt to explain or excuse the timing of the habeas petition, other than to state that he was making new and different allegations than in his prior habeas petition.
In January 2007, the superior court denied the petition on the ground that Lowe had failed to offer evidence of his plea understanding. In April 2007, the court granted Lowe’s motion for reconsideration and scheduled an evidentiary hearing. This order stated, in part: “The claim being considered here is quite different from that adjudicated in In re Lowe (2005) 130 Cal.App.4th 1405 and therefore the majority of the People’s arguments (that the instant petition is repetitious, successive or otherwise procedurally barred by estoppel or law of the case, and the People’s arguments reiterating the analysis of In re Lowe, supra,) are not on point. In re Lowe (2005) 130 Cal.App.4th 1405 does not assist the People here, instead it affirmatively supports [Lowe’s] claim that he has received, and forever will receive, no benefit from his plea bargain.”
In May 2007, the superior court conducted a hearing at which former prosecutor Braughton and Lowe testified. The superior court also considered written declarations by those witnesses, as well as by attorneys Danaher, Gregory Paraskou and Lane Liroff, the latter two being offered as experts on the law and plea bargaining in 1985, and by character witnesses for Lowe.
Following the hearing, at the court’s request, the parties filed additional briefs. The People argued in part, “[Lowe’s] present motion/petition is untimely in that he has failed to demonstrate due diligence in pursuing the present claim. If his claim is that he did not know that the facts of his crime could prevent him from being granted parole, then this proceeding should have been initiated after his first parole denial in 1993. If his claim is that he did not know that the [G]overnor would be introduced into the parole review process at the time of his plea, then why was this proceeding not initiated closer in time to the 1988 change in the law that effectuated this modification?”
In response, Lowe asserted, “Because respondent failed to raise any issue of untimeliness or delay in its Return or Memorandum, it has waived any such defense.” Lowe also argued that “there are no issues of the timeliness of this petition, not only because the District Attorney failed to plead ‘untimeliness’ as a defense..., but also because [Lowe’s] claim did not become ripe until, after... the Board found that he was suitable [for parole], the Governor substituted his judgment for that of the Board and declared that [Lowe] was not suitable for reasons which had not only been rejected by the Board but were also inconsistent with [Lowe’s] understanding, when he pleaded guilty, of the basis on which he would be granted or denied parole.”
E. The Superior Court’s Order
The superior court’s order made the following factual findings. “Mr. Braughton[, the prosecutor,] knew and specifically advised Mr. Danaher, counsel for [Lowe], that a parole release date would be based on criteria relating to the crime according to the matrices in CCR § 2403(c). He told Mr. Danaher that he believed that Mr. Lowe would have a parole hearing in about 9 years and if his conduct in prison was good he would ‘have a good shot at being found suitable for parole and being granted an early release date at... that hearing.’ If convicted of first degree murder, [Lowe] would have a parole hearing and [be] granted a release date at least 7 or 8 years later.” Danaher advised Lowe of his belief that the bargain afforded him “a substantial benefit... because he would be eligible for parole much earlier than if convicted of first degree murder” and Lowe “would be granted parole ‘as soon as he became eligible or within a year or two thereafter’ if his prison behavior was good.”
The court concluded that Lowe “was informed and understood at the time he pleaded guilty that the indeterminate sentence which would result meant that he could possibly spend the rest of his life in prison. He was also told that his conviction of second degree murder meant that he would be eligible for parole in 10 years, which was much sooner than if convicted of first degree murder. He understood that eligibility for parole did not equate to release on parole. He was told that his release would be based upon his behavior in prison, and that the Board would determine his release date based on his conviction for second, rather than first degree murder according to the ‘matrix’ of aggravating and mitigating factors.” “No one promised [Lowe] a date certain for either a parole hearing or release, nor was he told that the facts of the crime would not be considered when determining suitability.” “As to how the Department of Corrections would make that decision[,] ‘they basically just told [Lowe] that was the decision by the Department of Corrections. There was no great detail at that time.’ ” “[H]e recalled being told that there was a strong possibility based on the criteria (matrix) that he would be released within 15 years, assuming the Board found that he was rehabilitated.” “He would not have entered the plea if he had known that his crime could be evaluated as though it were actually a conviction for first degree murder, or that his suitability would not be based on the matrix and his performance in prison.”
In a declaration, Lowe stated that he was “informed by attorneys James Danaher and Richard Such that I would be eligible for parole in ten years and that the parole board would figure my term based on a conviction of second degree murder, which would be more favorable than a term based on a conviction of first degree murder, according to a ‘matrix’ of aggravating and mitigating factors.” In testimony, Lowe admitted that he could not recall anyone using the term “matrix” before he entered his plea. He did understand that his parole suitability would be evaluated based on “specific criteria.”
As the trial court summarized the declaration by Lowe’s expert Paraskou, based on the sets of matrices applicable to second degree murder, and taking into account post conviction credits, “[o]n average, a person convicted of second degree murder after Nov. 7, 1978 could expect to” be granted parole about 13 years after sentencing. There was no evidence or claim that Lowe had spoken with Paraskou before entering his plea bargain.
Based on these findings, the court concluded that Lowe had been misadvised of the consequences of his plea. The court further concluded: “As clearly established by the evidence presented, [fn. omitted] everyone involved in the case believed that the relatively new ‘Matrix’ would be used in evaluating the facts and circumstances of the offense, in combination with an assessment of [Lowe’s] conduct while in prison, in determining parole suitability.” Lowe’s “belief that his conviction of second degree murder and his performance in prison would be central to the determination was reaffirmed and reinforced by the trial court’s statements such as ‘under the terms of the indeterminate sentence your release will be contingent upon your performance in prison.’ [Citing the transcript.] Further corroborating this is the fact that the proportionality review embodied by the Matrix was understood to be the guiding principles for the Board through and including the time of In re Ramirez (2001) 94 Cal.App.4th 549 [(Ramirez)].... Of course, [Dannenberg] overruled Ramirez. What is critical to this court’s analysis, however, is the fact that at the time the plea was negotiated and [Lowe] was advised of the consequences thereof, Ramirez reflected the controlling law and the understanding, assumptions and express representations of the parties. Since Dannenberg, that understanding of the direct consequences of [Lowe’s] plea turned out to be entirely mistaken. Pursuant to Dannenberg, supra[,] at 1079-1080, the matrix is irrelevant to making a parole suitability determination and the performance in prison need not be considered at all. Instead, the Board ignores the matrix and examines the record for some modicum of evidence that the commitment offense involved more than minimally necessary to obtain a conviction.... Under the law as clarified by Dannenberg, supra, the matrix only becomes relevant after an inmate has been found suitable and exists solely for the purpose of setting the actual term.”
While the order granted Lowe’s petition, it rejected, based on Lowe I, his renewed contention that the 1988 enactment of Penal Code section 3041.2, authorizing gubernatorial review of Board parole decisions, was a violation of his plea bargain.
II. Discussion
A. Standard of Review
On appeal from an order granting a writ of habeas corpus after an evidentiary hearing, we apply the familiar substantial evidence test to the trial court’s resolution of factual questions. (People v. James (1985) 176 Cal.App.3d 795, 798.) We independently review questions of law. (In re Collins (2001) 86 Cal.App.4th 1176, 1181; In re Corona (2008) 160 Cal.App.4th 315, 320.)
B. The Diligence Requirement
The trial court found, among other things, that Lowe was misled by his attorneys, by the prosecutor, and apparently even by the original trial court, about how his parole suitability would be determined by the Board.
People v. Delles (1968) 69 Cal.2d 906 explained, “[i]f a defendant pleads guilty as part of a bargain with an apparently authoritative and reliable public official—usually the prosecutor or, as here, the trial judge himself—whereby he is assured of receiving in return for his plea probation, a lenient sentence, or some other form of special consideration, the trial judge may not impose judgment contrary to the terms of such bargain without affording the defendant an opportunity to withdraw his guilty plea either by a motion under Penal Code, section 1018 before judgment [citation] or by a motion to vacate judgment or a petition in the nature of coram nobis after judgment [citation].” (Id. at p. 910; cf. People v. Cortez (1970) 13 Cal.App.3d 317, 333; People v. Goodrum (1991) 228 Cal.App.3d 397, 400-401.) On the other hand, “if a defendant enters a plea based on the erroneous advice of counsel without judicial or prosecutorial involvement, the sole postappeal remedy would be a petition for writ of habeas corpus alleging ineffective assistance of counsel.” (People v. Goodrum, supra, 228 Cal.App.3d at p. 400, fn. 4.; cf. People v. Chien (2008) 159 Cal.App.4th 1283, 1290.)
Whether a party seeks relief by petition for coram nobis or petition for habeas corpus, the party is required to demonstrate diligence. “ ‘It is well settled that a showing of diligence is prerequisite to the availability of relief by motion for coram nobis. [Citations.] One who applies for a writ of coram nobis upon a ground such as the one here presented must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ; otherwise he has stated no ground for relief.’ (People v. Shorts (1948) 32 Cal.2d 502, 512-513; see generally Note 62 A.L.R.2d 432.) Moreover, the defendant must also set forth the probative facts constituting the asserted justification of his failure to present the matter in timely fashion, ‘in order that the court can determine as a matter of law whether the litigant proceeded with due diligence; a mere allegation of the ultimate facts or of the legal conclusion of diligence, is insufficient.’ (People v. Shorts (1948) supra, 32 Cal.2d 502, 513.)” (People v. Welch (1964) 61 Cal.2d 786, 790-791.)
“[A] habeas corpus petitioner, like a petitioner who mounts a collateral attack by petition for writ of coram nobis, ‘ “must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.” ’ ” (In re Clark (1993) 5 Cal.4th 750, 779 (Clark).) “California practice differs from federal practice in that the petitioner filing a petition for writ of habeas corpus in a court of this state bears the initial burden of alleging the facts on which he relies to explain and justify delay and/or a successive petition.” (Id. at p. 798, fn. 35.) A habeas petition must “explain and justify any significant delay in seeking habeas corpus relief.” (Id. at p. 765.) “A successive petition presenting additional claims that could have been presented in an earlier attack on the judgment is, of necessity, a delayed petition.” (Id. at p. 770.) “Before considering the merits of a second or successive petition, a California court will first ask whether the failure to present the claims underlying the new petition in a prior petition has been adequately explained, and whether that explanation justifies the piecemeal presentation of the petitioner’s claims.” (Id. at p. 774.) “A petitioner will be expected to demonstrate due diligence in pursuing potential claims. If a petitioner had reason to suspect that a basis for habeas corpus relief was available, but did nothing to promptly confirm those suspicions, that failure must be justified.” (Id. at p. 775.) The delay is “measured from the time a petitioner becomes aware of the grounds on which he seeks relief.” (Id. at p. 765, fn. 5.) “When a petitioner or counsel representing a petitioner actually is aware of information that is sufficient to state a prima facie claim for relief on habeas corpus, that claim should be presented to a court without substantial delay.” (In re Gallego (1998) 18 Cal.4th 825, 833.)
“However, where the factual basis for a claim was unknown to the petitioner and he had no reason to believe that the claim might be made, or where the petitioner was unable to present his claim, the court will continue to consider the merits of the claim if asserted as promptly as reasonably possible. And, as in the past, claims which are based on a change in the law which is retroactively applicable to final judgments will be considered if promptly asserted and if application of the former rule is shown to have been prejudicial.” (Clark, supra, 5 Cal.4th at p. 775.)
C. Forfeiture
Lowe argues, as he did in the trial court, that the People forfeited the issue of his diligence “by failing to raise it in an appropriate and timely manner.” He contends: “After the hearing, the prosecutor raised for the first time a claim that the Petition was untimely and that the People would be prejudiced.” Lowe also claims that the District Attorney further waived the issue by failing to request any finding on the question of timeliness.
Lowe concedes that the trial court made no findings regarding his diligence.
We reject Lowe’s claim that the People have forfeited the issue of Lowe’s diligence. An untimeliness issue may be forfeited if it is not raised at all in the trial court (In re Moser (1993) 6 Cal.4th 342, 350, fn. 7), but that is not our case. While the lack of diligence was not asserted in the return itself, it was asserted in the accompanying points and authorities. This is sufficient. In People v. Duvall (1995) 9 Cal.4th 464, the issue was whether assertions in the points and authorities accompanying the return served to effectively dispute the factual allegations of the habeas petition. The California Supreme Court concluded that they did. “As a technical matter, it is arguable that factual allegations made in the memorandum of points and authorities, but not in the return itself, were not properly incorporated into the return. The goal, however, of the procedures that govern habeas corpus is to provide a framework in which a court can discover the truth and do justice in timely fashion. Accordingly, we should not construe the pleadings in such a parsimonious fashion. Moreover, for such technical irregularities in the pleadings in a habeas corpus proceeding, a court issuing an OSC retains the discretion to grant a party leave to amend.” (Id. at p. 482.) The court found “that, although the return may be technically deficient, its contents, coupled with the memorandum of points and authorities, demonstrate respondent has identified the facts he wishes to dispute.” (Id. at p. 486.)
Similarly, here, the points and authorities accompanying the return repeatedly insisted that Lowe demonstrate diligence and asserted that there had been no change in the law creating a new claim for Lowe. Assuming for the sake of discussion that a petitioner’s diligence is a defense that may be waived, rather than a prerequisite to obtaining writ relief, we conclude that the issue of Lowe’s diligence was adequately raised by the return and its accompanying points and authorities.
D. Lack of Diligence
Lowe asserts that he has been diligent. He diligently challenged the Governor’s May 2003 decision by a habeas petition filed in August 2003. After this court reversed the lower court’s grant of his habeas petition in an opinion filed in June 2005, he promptly filed a motion to withdraw his plea in the trial court in March 2006 and then filed a habeas petition in July 2006.
He argues that he “cannot fairly be charged with having failed to discover the mistake on which his plea was based before 2002.” Lowe maintains that his 1993, 1995, and 2000 parole denials were based partly on his misconduct in prison, which was consistent with his understanding of how the Board would evaluate his parole suitability. “Insofar as he was led to believe that his suitability would be determined based on the second degree matrix, he cannot have been expected to realize that it was being disregarded until he had served more time than the ‘upper’ term it provides for an aggravated offense, which is 21 years.” Thus, in Lowe’s view, it was not until the Governor reversed his parole grant in 2003 that Lowe should have realized that his parole suitability was not being based on his prison behavior and it was not until 2006, when the longest matrix elapsed, that he should have known the Board was not applying the matrices in determining parole suitability.
These claims by Lowe are mere argument of counsel. There was no testimony or declaration by Lowe or anyone else that Lowe understood when he entered a plea bargain in July 1985 that the longest second degree matrix base term was 21 years. Instead, the trial court found, “he recalled being told that there was a strong possibility based on the criteria (matrix) that he would be released within 15 years, assuming the Board found that he was rehabilitated.” There was no testimony or declaration by Lowe or anyone else regarding what he learned from the Board decisions finding him unsuitable for parole in 1993, 1995, 1997, 2000, and 2001. Lowe does not assert that the trial court made an implied finding of his diligence.
To the extent that the trial court’s order after hearing can be understood to contain implied findings regarding Lowe’s diligence, we understand the trial court to have found that Lowe’s latest habeas petition was timely because the law changed with the January 24, 2005 California Supreme Court decision in Dannenberg, supra, 34 Cal.4th 1061, and it was this change that rendered mistaken the understanding and belief of the parties to the plea bargain. Lowe claims that Dannenberg “settled the law, which had been in conflict” and “ratified the practice of the Board, which had been in effect for a number of years.” He asserts that the relevance of the matrices was in conflict prior to Dannenberg, as evidenced by the Dannenberg dissent and by the Ramirez opinion. Neither the superior court’s implied findings, nor Lowe’s contentions, are supportable, because Dannenberg did not change the law regarding the Board’s use of the matrices.
One of the issues addressed by the Dannenberg majority was whether the Board was required to measure a prisoner’s crime “against its own uniform-term ‘matrices’ ” in determining whether the prisoner is suitable or “only after it determines that the inmate is suitable for parole.” (Dannenberg, supra, 34 Cal.4th at p. 1069.) In answering this question, the California Supreme Court examined at length the evolution of the regulatory matrices in the context of California’s change from an indeterminate sentencing scheme for felonies to its adoption of the Determinate Sentencing Law (DSL) in 1976. (Id. at pp. 1077-1081, 1088-1091.)
What is important for our purposes is whether Dannenberg changed the law regarding how the Board applied its matrices. The California Supreme Court explained that the Board adopted the regulations containing the matrices in response to amendments to Penal Code section 3041 enacted as part of the DSL. (Dannenberg, supra, 34 Cal.4th 1061, 1078.) These amendments required the Board to “establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.” (Pen. Code, § 3041, subd. (a).) “[R]elease dates 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....” (Ibid.)
The court explained the regulations that apply to Lowe as well as to Dannenberg. “One set of these regulations applies specifically to noncapital murderers who committed their crimes on or after November 8, 1978. (Cal. Code Regs., tit. 15, § 2400 et seq.) [fn. omitted] If such a murderer is found suitable to have a parole release date set under section 3041, subdivision (a), the regulations specify that the inmate’s release date is to be set by calculating a ‘base term.’ (Cal. Code Regs., tit. 15, § 2403(a).) The first step in the calculation is to determine where the particular murder fits, in terms of its relative seriousness, on a bi-axial ‘matrix’ of factual variables. (Ibid.) The matrix specifies lower, middle, and upper ‘base terms’ for each matrix category. For second degree murderers, serving statutory sentences of 15 years to life, these ‘base terms’ range from 15, 16, or 17 years for the least serious matrix category to 19, 20, or 21 years for the most serious. (Id., § 2403(c).)” (Dannenberg, supra, 34 Cal.4th at pp. 1078-1079.) Like the determinate sentencing provisions at that time, “the Board must impose the middle term unless it finds aggravating or mitigating circumstances not accounted for in the matrix. (Cal. Code Regs., tit. 15, § 2403(a).)” (Id., at p. 1079.)
The majority resolved “[t]he tension between the commands in subdivisions (a) and (b) of section 3041” (Dannenberg, supra, 34 Cal.4th at p. 1081) by concluding “that the Board proceeded lawfully when, without comparing Dannenberg’s crime to other second degree murders, to its base term matrices, or to the minimum statutory prison term for that offense, the Board found him unsuitable to receive a fixed and ‘uniform’ release date by pointing to some evidence that the particular circumstances of his crime—circumstances beyond the minimum elements of his conviction—indicated exceptional callousness and cruelty with trivial provocation, and thus suggested he remains a danger to public safety. [fn. omitted]” (Id. at p. 1098.)
The court found support for its statutory interpretation in the Board’s regulations. “As currently worded, the regulations specify that ‘[t]he panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.’ (Cal. Code Regs., tit. 15, § 2402(a), italics added.)” (Dannenberg, supra, 34 Cal.4th at p. 1080.) “[T]he Board’s Regulations specify that, when considering parole for a particular indeterminate life inmate, the Board shall first determine suitability and shall set a base term (thus establishing a parole release date) if the prisoner is deemed suitable for parole. (Cal. Code Regs., tit. 15, §§ 2402(a), 2403(a); see also id., §§ 2422(a), 2423(a), 2432(a), 2433(a).) The regulations specify numerous factors the Board is to consider in determining whether the prisoner is suitable—i.e., safe—for parole, including the nature of the commitment offense and the offender’s criminal history. However, they nowhere indicate that the Board must determine an individual inmate’s suitability by reference to other offenders of the same class, or to the minimum statutory term for the inmate’s offense. (Id., § 2402(b)-(d); see also id., §§ 2422(b)-(d), 2432(b)-(d).)” (Dannenberg, supra, 34 Cal.4th at p. 1091.) “This procedure, in which the suitability determination precedes any effort to calculate a parole release date, has long been noted in the case law. Both we and the Courts of Appeal have consistently described the parole process for indeterminate life prisoners as one in which suitability for parole is within the Board’s informed discretion, and must first be found before a parole date is set. (In re Stanworth (1982) 33 Cal.3d 176, 183 [under both pre-1976 and post-1976 rules, suitability determination precedes setting of parole date]; [and other cases there cited].)” (Dannenberg, supra, 34 Cal.4th at pp. 1080-1081, italics added.)
Dannenberg did disapprove of Ramirez “to the extent it conflicts with the views expressed in this opinion.” (Dannenberg, supra, 34 Cal.4th at p. 1100.) However, Ramirez did not conflict with Dannenberg with respect to whether the matrices were to be consulted in making a suitability decision. Ramirez explicitly recognized that, under the applicable regulations, which were the same then as they are now, the suitability decision preceded any consideration of the matrices. “In the context of second degree murder, Ramirez’s offense was not particularly aggravated. Herrera’s death was accidental, and he was a crime partner. Were the Board to proceed to set a parole date, these factors would place Ramirez in the lowest category of the matrix provided by the regulations for determining his base term, which would call for 15 to 17 years. (§ 2403, subd. (c).)” (Ramirez, supra, 94 Cal.App.4th at p. 570.) “Once the Board determines that an inmate is suitable for parole, it proceeds to set a date for the inmate’s release, based on numerous factors provided in sections 2403 through 2411.” (Id. at p. 568.) This analysis in Ramirez was not inconsistent with Dannenberg.
What Dannenberg disapproved of was Ramirez’s comparative analysis requirement that, “when addressing the issue of parole for a murderer serving a life-maximum term, the Board (1) must first compare the inmate’s actual period of confinement with the minimum statutory confinement for the offense, and with the actual confinements served by others who have committed similar crimes, (2) must thereupon set a firm, ‘uniform’ release date unless it finds the public-safety exception applicable, and (3) may not deny parole, on grounds the commitment offense reflects a continuing threat to public safety, unless the offense is particularly egregious in comparison to others.” (Dannenberg, supra, 34 Cal.4th 1061, 1081.) Dannenberg disagreed with Ramirez’s conclusion that the Board was required to engage in a comparative analysis before making a suitability decision.
Since before 1985, it has been the law and the Board’s practice to determine an inmate’s parole suitability without regard to the matrices or the length of time served. The Board consults the matrix in order to set a release date only after finding the inmate suitable for parole. (Cal. Code Regs., tit. 15, §§ 2402(a), 2403(a); In re Stanworth (1982) 33 Cal.3d 176, 183.) This particular practice by the Board may not have received the imprimatur of the California Supreme Court before the 2005 Dannenberg decision, but in upholding the Board’s prior practice, that decision cannot be regarded as changing the relevance of the matrices to an inmate’s parole suitability. The language of California Code of Regulations, title 15, section 2402(a), which has been the same since at least 1985, provides that parole suitability is first determined without reference to the length of time served. Consequently, we reject Lowe’s claim that Dannenberg changed the law on this point, thereby providing him with an excuse for his failure to pursue this claim earlier.
Lowe is left to argue that he was nevertheless diligent because he was led to believe, at the time of his 1985 plea, that the Board would consult its matrices in determining his suitability, and he could not have discovered that they were not doing so prior to 2006. The trial court found that “everyone involved in the case believed that the relatively new ‘Matrix’ would be used in evaluating the facts and circumstances of the offense, in combination with an assessment of [Lowe’s] conduct while in prison, in determining parole suitability.” The trial court essentially concluded that the attorneys involved in the July 1985 plea bargain informed Lowe of their belief that the Board, in evaluating Lowe’s suitability for parole at hearings after he became eligible for parole in about 9 years, would take into account, among other things, how much time he had spent in prison relative to the applicable matrices in determining whether he was suitable.
Lowe’s argument cannot succeed. The Board’s regulations and the case law have consistently since 1985 required a suitability decision to precede any consideration of the matrices. Even if Lowe was misled by the court or the attorneys at the time of his 1985 plea regarding whether the matrices would be consulted in making a suitability decision, he fails to explain why he did not discover the truth in the many years since then. The regulations and the case law consistently stated that the suitability decision preceded any consideration of the matrices, and Lowe does not explain why he could not reasonably have discovered this fact prior to 2006. His claim that he could not have discovered that he had been misled until his prison time exceeded the longest matrix term assumes that he was somehow knowledgeable about the lengths of the matrix terms but remained continuously unaware of the unchanging regulations and the consistent case authority. Nothing in the record supports such an assumption.
“One who applies for a writ of coram nobis [or habeas corpus] upon a ground such as the one here presented must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ; otherwise he has stated no ground for relief.” (People v. Shorts, supra, 32 Cal.2d 502, 513, italics added.) Had Lowe exercised due diligence, he should certainly have discovered, at least by the time of his previous habeas petition, which occurred after Ramirez, that the regulations and the case law obligated the Board to make a suitability decision without consulting the matrices. His failure to do so precluded him from stating a ground for relief in his current habeas petition. It follows that the superior court was therefore precluded from granting his petition.
III. Disposition
The superior court’s orders are reversed, and the superior court is directed to enter a new order denying Lowe’s petition.
WE CONCUR: Rushing, P. J., McAdams, J.