This appeal arises out of proceedings in which the trial court has acted to correct long-standing deficiencies in the administration of California’s parole system and the recurring violation of the statutory and constitutional rights of innumerable inmates. To put the limited issues that are presented by this appeal in their proper perspective, this concurrence will set out more fully the history of those proceedings. With respect to the three issues that are raised from the many rulings the trial court has made in these extended and ongoing proceedings, I join in the majority opinion in affirming the attorney fee award. I concur in the disposition of the order concerning the multiyear parole denials, but write separately to emphasize that what is lacking here is a record that supports the remedial order entered by the trial court. Because the record does not justify any remedial order, we have no occasion to consider whether under circumstances not established in the present record the particular remedy would be justified. I also concur in the disposition of the trial court order concerning the timely preparation of parole hearing transcripts, but add a few words to emphasize that in reversing the trial court order on procedural grounds we do not address whether prison inmates have the right to insist on compliance with Penal Code1 section 3042, subdivision (b), nor do we condone the failure to comply with statutory time constraints.
Procedural history
The action generating the appeal was commenced in May 2004 when Jerry Rutherford, who was then serving an indeterminate prison term of seven years to life, filed a petition for a writ of habeas corpus alleging that what formerly was the Board of Prison Terms, now the Board of Parole Hearings (the Board), had failed to schedule a timely parole suitability hearing to which he was entitled under section 3041.5, subdivision (b)(2). The factual predicate explaining the course of these proceedings, however, begins far earlier.
*1548In April 2001, the superior court, in response to an earlier petition Rutherford had filed alleging that the Board had not timely scheduled his prior parole suitability hearing, found the Board to be in violation of the statute and ordered it to convene Rutherford’s hearing within 120 days. (In re Rutherford (Super. Ct. Marin County, 2001, No. SC118989A).) Rutherford’s case was not unusual. In March 2000, the state’s Office of the Inspector General issued a report reviewing the operations of the Board and found, among other things, the following: despite the Board’s “statutory responsibility for ensuring that the hearings are conducted in a proper and timely manner,” the Board’s “process for identifying and scheduling hearing cases is inadequate to ensure that hearings are properly managed and are handled on a timely basis.” As a result, the Board’s “backlog of hearings is so large that most of the hearings are delinquent. [][]... According to information compiled from the institutions, the backlog increased from 204 on June 30, 1998, to 695 on June 30, 1999. The [B]oard staff projects the backlog to increase to 1,050 by June 30, 2000. Because of the backlog, most of the hearings are delinquent by more than six months.” The Inspector General recommended that the Board “immediately begin acquiring the resources to establish a centralized system for tracking hearing cases” and “increase the number of hearings by one case per day unless other measures are available to reduce the backlog more quickly.” A year later, in April 2002, the Office of the Inspector General issued a “Follow-Up Review of the Board of Prison Terms.” The followup report found, among other things, that the Board’s “system for identifying and scheduling indeterminate sentence hearings continues to be antiquated and, therefore, cannot provide adequate assurance that such hearings are properly managed and conducted with reasonable promptness” and that the Board had “not taken any proactive measures to reduce the backlog of indeterminate sentence hearings, which continued to grow until the implementation of [Senate Bill] 778 [Stats. 2001, ch. 131].”
During this time period, the present record reflects, numerous habeas corpus petitions alleging the denial of timely parole suitability hearings were filed and granted in superior courts throughout the state. In many, if not all, of these cases, the courts rejected the recurring argument that because section 3041.5 is directory rather than mandatory, the petitioning inmates were entitled to no relief. In March 2001, 33 inmates joined in a habeas corpus petition filed in the Marin County Superior Court (In re Sanders (Super. Ct. Marin County, 2001, No. SC118698A)) alleging that all were being denied timely suitability hearings and requesting broad corrective relief.2 In responding, the Attorney General acknowledged that “[t]here is currently a state-wide backlog of parole consideration hearings. As of July 1, 2001, there were 1,908 backlogged cases.” However, the Attorney General argued, among *1549other things, that the Legislature was in the process of enacting Senate Bill No. 778 (2001-2002 Reg. Sess.) as urgency legislation, largely as a result of which “the [hearing] backlog is expected to be eliminated in 21 months.” After the bill became law, the superior court denied the Sanders’ petition “as moot,” observing that the new “law provides the Board of Prison Terms a budget augmentation of over $31,000,000 for the current fiscal year and the authority to make hearing panel changes which could more than double the hearing rate to eliminate the backlog of overdue hearings. No judicially ordered remedy could have been as effective as it appears [Senate Bill] 778 will be in dealing with the problem.”3
When Rutherford filed his May 2004 petition, three years after the enactment of Senate Bill No. 778 (2001-2002 Reg. Sess.), the backlog had not been corrected. To the contrary, as of June 2004 there were 1,630 cases for which a parole hearing was overdue. According to the testimony ultimately presented at the evidentiary hearing in this case, as of August 2005 the backlog had grown to 3,200 cases and, although the new legislation had reduced the number of commissioners necessary to conduct a hearing, the Board had reduced the number of hearings commissioners conducted each week from 21 to 16. The Attorney General responded to Rutherford’s petition by advising the court, as it had done regularly in other cases, that subsequent to the filing of the petition the Board had scheduled a hearing for Rutherford, and requesting that the action be dismissed as moot. The Attorney General also repeated the argument that it regularly made in other cases, that the statutory time limits were directory and “cannot be read to impose a mandatory duty upon the Board to provide a subsequent parole suitability hearing within a specific time.” Rutherford opposed the dismissal and in addition filed a motion to certify a class, arguing that “[c]lass certification is necessary because petitioner’s interest in a declaration of his rights is identical to the interests of all life prisoners entitled to parole consideration hearings, and because the current piecemeal approach to resolving disputes over hearing timeliness is insufficient and a waste of judicial resources.”
On November 29, 2004, the court granted the motion, certifying a class defined as “all prisoners serving indeterminate terms of life with the possibility of parole, and who have approached or exceeded the minimum eligible *1550parole dates without receiving the parole hearings within the time required by Penal Code §3041 and §3041.5.” Citing authority from both federal courts (e.g., Cox v. McCarthy (9th Cir. 1987) 829 F.2d 800, 804-805 [“a class action may lie in habeas corpus”]) and from state courts (e.g., Wilson v. Superior Court (1987) 194 Cal.App.3d 1259, 1262 [240 Cal.Rptr. 131]; Mendoza v. County of Tulare (1982) 128 Cal.App.3d 403, 420 [180 Cal.Rptr. 347] [“a trial court may grant habeas corpus petitioners ‘prospective or class relief’ to redress recurring deprivations of rights at correctional facilities. [Citation.] The writ is thus an effective and versatile means by which to remedy persistent violations of prisoners’ rights, and has been so used”]; Rhyne v. Municipal Court (1980) 113 Cal.App.3d 807, 811, 815 [170 Cal.Rptr. 312]), the trial court held that “[a] class action habeas corpus petition is a proper method to obtain a declaration and enforcement of a petitioner’s rights as to the conditions of his confinement, as well as the rights of others similarly situated.” Although the Attorney General had opposed the motion for class certification on several grounds, he did not seek appellate review of the trial court’s order and, at the oral argument in the present appeal, acknowledged that he did not question the propriety of that order.4
Following class certification, the parties negotiated and in April 2005 entered a “Stipulation Regarding Overdue Parole Consideration Hearings” which the court entered as an order. The stipulation and order recited that “Penal Code sections 3041 and 3041.5 require the Board of Prison Terms to provide life prisoners with parole consideration hearings at least one year prior to their minimum eligible parole dates and, if parole is denied, at specified yearly intervals thereafter. Respondents are not currently meeting these time frames.” The stipulation and order provided, among other things, that by June 6, 2005, the Board would develop “a streamlined psychological risk assessment tool to be used in conjunction with subsequent parole consideration hearings” and “a plan to provide completed Life Prisoner Evaluation Reports, attorney appointments, and attorney-client interviews far enough in advance of scheduled consideration hearings to allow another inmate to be scheduled if the hearing for the first inmate is postponed or canceled for any reason” that, by September 5, 2005, the Board would *1551“submit a detailed plan to eliminate the backlog of overdue parole consideration hearings and to conduct future hearings within the statutory time periods” and would “eliminate the backlog of overdue parole consideration hearings within 18 months of the court endorsing the September 5, 2005 plan to eliminate the backlog.”
The court granted joint requests for additional continuances of the evidentiary hearing on the application for habeas corpus relief, to permit continuing negotiations between the parties. The petition ultimately came on for hearing in January 2006. The court heard testimony from Michael Keith Brady, the Rutherford task force project manager for the California Department of Corrections and Rehabilitation, and from Dennis Kenneally, responsible for management oversight at the Board, received exhibits in evidence, heard oral argument and, after taking the matter under submission, on February 15, 2006, entered an “Order Granting Application for Writ of Habeas Corpus.” The order recites, in part, “Having carefully reviewed the evidence in this case, the court finds inescapable the conclusion that respondents are failing to furnish timely parole eligibility hearings to prisoners serving indeterminate sentences, and that the backlog of such overdue hearings is increasing at an alarming rate.” The court found it “noteworthy that in July, 2001 [in In re Sanders, supra, No. SC118698A] respondents estimated that the backlog would be eliminated in 21 months. Instead, 55 months later, the backlog has not been eliminated, but rather it has increased by 55%.” The court further observed that “Mr. Kenneally acknowledged the problem of overdue hearings but testified that commissioner vacancies are the primary reason for it. He estimated that if the Governor’s draft budget is adopted without change on the subject of funding for the Board of Parole Hearings, the backlog will be eliminated in 14 months. This prediction echoes the inaccurate prediction of respondents back in July 2001.” (Fn. omitted.) The recitation concludes, “Petitioner has demonstrated to this court’s satisfaction that the remedy of individual judges granting individual applications for writs of habeas corpus cannot adequately address this problem. Indeed, at a hearing in this court on August 31, 2004, respondents admitted their policy that they will comply with the mandate of [Penal Code] §3041.5 only if and when an inmate seeks and obtains relief in habeas corpus; otherwise, respondents conceded that they will continue to do what they have done in the past, which has resulted in a backlog of overdue hearings totaling 3200. [f] Petitioner has also convinced this court that allowing respondents to address this problem by doing what they have done in the past will not only fail to solve the problem, it will exacerbate it. Indeed, in 2018, when the ‘three strikes’ inmates become eligible for parole, both sides of this issue agree that the pressure on the parole board will increase logarithmically.”
The February 15, 2006 order directs the Board “to take immediate measures to comply with the statutory time limits for holding parole hearings, *1552barring exceptional circumstances,” appoints the Prison Law Office as class counsel and orders petitioner to file a motion to determine the amount of their attorney fees, directs notice to the class, states its intention “to adopt a plan effectuating this order in a fashion which is as minimally intrusive as possible, in order to accord substantial deference to the [California Department of Correction’s] legitimate interest in managing a correctional facility,” and directs counsel “to confer and agree upon a plan to implement the court’s order, and report that agreement to the court within 30 days of this order. If by that date, the parties cannot agree on a plan, they are directed to submit any part of the plan agreed to, or a statement that the parties were unable to agree on any aspect of a remedial plan.”
Pursuant to this order, the parties engaged in further negotiations and submitted to the court “Stipulated Procedures and Remedial Plan” for eliminating the hearing backlog, much of which called for continuing efforts and court oversight. In addition, the parties advised the court of six issues on which they had been unable to agree. The fifth of these issues, the only one giving rise to a decision that is challenged on appeal, was as follows: “Petitioners’ position is that the court should order respondents not to deny further parole consideration for two, three, four or five years in cases involving prisoners who previously received only one-year denials of parole absent a significant change in circumstances. Respondents’ position is that individual parole decisions must be left to the discretion of the hearing panel, and that the panel should not be bound by the decisions of prior panels.” Following additional briefing, the court issued an order resolving the six reserved issues, and also ruling on the attorney fee motion. As to the issue of multiyear parole denials, the court ruled: “Respondents are ordered not to deny further parole consideration for more than one year in the case of prisoners who have formerly been denied for one year, in the absence of a significant change in circumstances, which must be stated on the record.” As to attorney fees, the court applied a multiplier of 1.5 to the stipulated lodestar of $55,449.66, added costs and fees for the fee motion, and awarded a total of $90,203.72.5 Additionally, this order substituted Inez Tito Lugo as class representative, since the original class representative, Jerry Rutherford, had died. Respondents filed a timely notice of appeal from this order (No. A114111), and this court issued a writ of supersedeas staying enforcement of the portions of the order concerning multiyear parole denials and the application of the 1.5 multiplier to the attorney fee award.
*1553Throughout 2006, the parties continued to submit reports to the court concerning the progress that had been made toward remediating the parole hearing backlog. In a status report filed November 9, 2006, petitioner raised a complaint that the Board was not providing parole hearing transcripts to inmates in a timely manner. Petitioner argued that some prisoners were waiting months for their transcripts in spite of section 3042, subdivision (b), which they claimed requires the Board to provide a hearing transcript within 30 days of the hearing. Petitioner complained that the delay in receiving transcripts “presents a barrier to prisoners’ access to the courts because they must attach a copy of the hearing transcript to any petition for writ of habeas corpus they may file to challenge any aspect of the hearing decision.”
At a status conference on November 16, 2006, the Board’s attorney told the court that efforts were being made to reduce the transcript backlog but also argued that the timely provision of hearing transcripts was beyond the scope of this litigation. The court initially reacted to the issue as follows: “Well, it’s—it’s kind of the same problem we have with the overdue parole hearings. We have laws on the books that say this is how it’s supposed to be, and the respondents, for all kinds of reasons, aren’t doing it.” The court ruled that the issue of delayed hearing transcripts was within the purview of the court’s jurisdiction because a parole hearing is not complete unless the transcript is furnished to the inmate.
At subsequent status hearings, the Board provided estimates regarding when the transcript backlog would be eliminated. In a brief filed April 27, 2007, petitioner argued that the Board should be ordered to reduce the transcript backlog within 30 days. The Board responded that it was taking appropriate steps to eliminate the transcript backlog but noted that, in any event, there is no statutory requirement that transcripts be provided to inmates within 30 days of the hearing date, citing section 3042, subdivision (b) and the decision of another division of this court in In re Bode (1999) 74 Cal.App.4th 1002 [88 Cal.Rptr.2d 536]. The issue was argued at a hearing on May 10, 2007, at the conclusion of which the court ordered the transcript backlog eliminated by June 15, 2007, and further ordered that a sanction of $10 per day per delayed transcript would be imposed after that date. No formal signed order was entered but the minute order from the hearing reads, in pertinent part: “The court states transcripts are to issue 30 days after hearing. Prisoners are members of the public. Commencing 6/1/07 [¿ic: 6/15/07] $10 per day per late transcript is ordered.”
Multiyear denials of parole
Parole consideration procedures are governed by section 3040 et seq. and apply to all inmates not serving a determinate sentence. (In re Jackson (1985) *155439 Cal.3d 464, 468 [216 Cal.Rptr. 760, 703 P.2d 100].) If the Board concludes following a hearing that a life prisoner who is eligible for parole is not suitable for release on parole, the next hearing to consider parole suitability is normally scheduled for the following year. (Ibid.; § 3041.5, subd. (b)(2).) In such circumstances the denial ordinarily is referred to as a “one-year denial.”
Section 3041.5, subdivision (b)(2) affords the Board discretion under certain circumstances to issue “multiyear denials,” in which case the next scheduled parole hearing may be scheduled no later than the following: “(A) Two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding. [][] (B) Up to five years after any hearing at which parole is denied if the prisoner has been convicted of murder, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing. If the board defers a hearing five years, the prisoner’s central file shall be reviewed by a deputy commissioner within three years at which time the deputy commissioner may direct that a hearing be held within one year. The prisoner shall be notified in writing of the deputy commissioner’s decision. The board shall adopt procedures that relate to the criteria for setting the hearing between two and five years.” Petitioner argues that the Board has been using multiyear denials as an “unlawful and unethical” means of reducing the hearing backlog. In the trial court they supported this contention with 16 “lifer polls,” unverified questionnaires completed by 16 inmates previously issued one-year denials (two of whom were actually granted parole by the Board but whose release was overturned by the Governor) who subsequently were denied parole with their next hearing scheduled two or more years later. Petitioner claims that the Board provided no explanation for the multiyear denials for these inmates who had previously received one-year denials, and that in the absence of an explanation, the inference to be drawn is that the subsequent hearings were deferred beyond one year simply to reduce the hearing backlog. The inference is strengthened, petitioner now argues, by the fact that the passage of time normally renders an inmate more rather than less suitable for parole. (Hayward v. Marshall (9th Cir. 2008) 512 F.3d 536, 546-547; In re Roderick (2007) 154 Cal.App.4th 242, 276-278 [65 Cal.Rptr.3d 16].) Moreover, petitioner points out that when the statute was amended to authorize deferring subsequent hearings up to five years, the statute also required the Board to “adopt procedures that relate to the criteria for setting the hearing between two and five years” (§ 3041.5, subd. (b)(2)(B), amended by Stats. 1994, *1555ch. 560, § 1, p. 2833), and no such criteria have yet been adopted.6 “[I]n the absence of such criteria,” petitioner argued to the trial court, “the Board seems to be using the availability of the multi-year parole denial to address the hearing backlog in the short term.” The Board argued in response that petitioner’s showing was entirely speculative and that “absent evidence that this tactic is being used to improperly reduce the backlog, it would be improper for the Court to restrict the Board’s discretionary parole determinations in any way." (Italics added.)
On appeal, the Attorney General takes a somewhat different tack, arguing that the means by which the trial court sought to remedy the Board’s perceived circumvention of the statutory requirements necessarily violates the constitutional separation of powers. (Cal. Const., art. Ill, § 3; In re Rosenkrantz (2002) 29 Cal.4th 616, 661-662 [128 Cal.Rptr.2d 104, 59 P.3d 174].) The Attorney General argues that, even if the Board were deferring subsequent parole consideration hearings for an impermissible reason, the court invades the discretion that section 3041.5 confers on the Board by imposing the requirement that there be “a significant change in circumstances" before denying parole consideration for more than one year to a prisoner who formerly had been denied for only a single year. However, we need not decide here whether such a remedy would be justified if the Board were pursuing such a policy, because the record fails to establish that this has been the Board’s practice.
“[A] grant of parole is an integral part of the penological system intended to help those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities . . . .” (People v. Vickers (1972) 8 Cal.3d 451, 458 [105 Cal.Rptr. 305, 503 P.2d 1313]; see also Morrissey v. Brewer (1972) 408 U.S. *1556471, 477 [33 L.Ed.2d 484, 92 S.Ct. 2593].) “Under section 3041, subdivision (a), release on parole is the rule, rather than the exception.” (In re Smith (2003) 114 Cal.App.4th 343, 351 [7 Cal.Rptr.3d 655].) Notwithstanding the broad discretion conferred on the Board to determine when an inmate meets the legislative standards entitling him or her to parole, the standards “create liberty interests in parole release that are entitled to protection under the Due Process Clause.” (Board of Pardons v. Allen (1987) 482 U.S. 369, 371 [96 L.Ed.2d 303, 107 S.Ct. 2415]; see Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 11 [60 L.Ed.2d 668, 99 S.Ct. 2100].) It has long been recognized in California that “a prisoner eligible for parole has the right to apply therefor and to have his application duly considered . . . .” (In re Schoengarth (1967) 66 Cal.2d 295, 300 [57 Cal.Rptr. 600, 425 P.2d 200].) “Although a prisoner may not have a right to be released on parole, parole cannot be withheld unless by means consonant with due process.” (In re Minnis (1972) 7 Cal.3d 639, 649 [102 Cal.Rptr. 749, 498 P.2d 997].) As the California Supreme Court reiterated in In re Rosenkrantz, its past decisions “make clear that the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board. In [In re Sturm (1974)] 11 Cal.3d 258 [113 Cal.Rptr. 361, 521 P.2d 97] we found in prior California decisions ‘a limited cognizance of rights of parole applicants to be free from an arbitrary parole decision, to secure information necessary to prepare for interviews with the [Board], and to something more than mere pro forma consideration.’ ” (In re Rosenkrantz, supra, 29 Cal.4th at p. 655; see also id. at p. 683.)
“A fundamental requirement of due process is ‘the opportunity to be heard.’ [Citation.] It is an opportunity which must be granted at a meaningful time and in a meaningful manner.” (Armstrong v. Manzo (1965) 380 U.S. 545, 552 [14 L.Ed.2d 62, 85 S.Ct. 1187]; see People v. Litmon (2008) 162 Cal.App.4th 383, 395 [76 Cal.Rptr.3d 122].) Were it demonstrated that the Board is pursuing a policy of deferring parole hearings for the impermissible purpose of reducing the backlog, the court would be obliged to take corrective action. “The basic remedy available to correct arbitrary Authority [referring to the Adult Authority, that formerly acted on parole applications] action is the writ of habeas corpus.” (In re Sturm, supra, 11 Cal.3d at p. 269.) As our Supreme Court has stated, it “has traditionally accepted its responsibility to prevent an authority vested with discretion from implementing a policy which would defeat the legislative motive for enacting a system of laws.” (In re Minnis, supra, 7 Cal.3d at p. 645.)
However, the proper form and scope of relief depend on the nature of the violation shown by the evidence. (Swann v. Board of Education (1971) 402 U.S. 1, 16 [28 L.Ed.2d 554, 91 S.Ct. 1267] [“As with any equity case, the nature of the violation determines the scope of the remedy.”].) Without a clear *1557understanding of the precise respects in which agency policy departs from statutory and constitutional restrictions, it is not possible to determine the extent of the remedy that may be appropriate, much less whether such a remedy would unjustifiably intrude upon the legitimate exercise of the Board’s prerogatives. Certainly the court may be justified in remedying a persistent violation of the constitutional rights of large numbers of persons by imposing limits on what otherwise would be within the discretion of an offending executive agency. (See id. at pp. 16, 15 [“School authorities are traditionally charged with broad power to formulate and implement educational policy . . . .” If, however, “school authorities fail in their affirmative obligations [to desegregate schools], judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies”]; Hutto v. Finney (1978) 437 U.S. 678, 687 [57 L.Ed.2d 522, 98 S.Ct. 2565] [while state Department of Corrections and Rehabilitation has primary responsibility for curing constitutional violations, where the department had been given repeated opportunities to remedy the cruel and unusual conditions in the isolation cells, the court had authority to enter “a comprehensive order to insure against the risk of inadequate compliance”]; Oregon Advocacy Center v. Mink (9th Cir. 2003) 322 F.3d 1101 [state mental hospital’s significant, ongoing violations of substantive and procedural due process, by delays in admitting incapacitated criminal defendants for evaluation and treatment, were sufficient to support an injunction requiring the hospital to admit such defendants within seven days of a trial court’s finding of incapacity to stand trial].)
Nevertheless, it is unnecessary to explore the limits of appropriate judicial relief because in this case the predicate for any such relief is lacking. While the present record may raise the question whether the Board has been deferring parole hearings simply to reduce the hearing backlog, the record is insufficient to answer it. At most, the record contains evidence that some multiyear denials have followed prior one-year denials. Even that showing is questionable as an evidentiary matter, since the 16 lifer polls submitted to the trial court were unverified. More importantly, however, those documents fail to show whether the Board gave separate reasons for the extended denials, much less whether there was or was not an evidentiary basis for those reasons. Section 3041.5 explicitly requires that the Board state in writing its reasons for a multiyear denial and there is nothing in the record that indicates that it has failed to do so. (See In re Jackson, supra, 39 Cal.3d at pp. 477-480.) The record before the trial court does not contain the record of any of the 16 parole hearings to which the lifer polls refer or of any other parole hearing in which it is contended that there was an impermissible multiyear denial. While petitioner argues that the Board has not provided any explanation for the multiyear denials reflected by the 16 lifer polls, it was not *1558its burden to do so. The court may not assume that the Board is failing to comply with the statute. (Evid. Code, § 664.) If petitioner claims that the Board has been acting unlawfully it is his burden to present the evidence establishing that fact. Moreover, the Board has presented evidence to the contrary. In response to the question, “Have you found that some commissioners on the board are giving out multiple-year denials in order to reduce the number of cases in the backlog?,” Michael Brady, the Rutherford task force project manager, answered, “Absolutely not.” Brady testified that there has been an increase in the total number of parole hearings each year and that this increase has been responsible for a proportional increase in the number of multiyear denials. In all events, in marked contrast to the substantial and unquestioned evidence establishing the Board’s failure to provide timely hearings, there is no competent evidence showing that multiyear denials are being used as a subterfuge to reduce the backlog. While one would expect there to be good reason for imposing a multiyear denial for an inmate previously found entitled to a one-year denial, there is in this record no basis for concluding that the Board has not found and announced adequate reasons when denying a hearing for more than one year. There is, therefore, no basis for any remedial order designed to enforce the standard prescribed by the statute—that it is not reasonable to expect that parole would be granted at a hearing during the following year. Thus, I agree that on the basis of the record before us the order directing the Board not to deny further parole consideration for more than one year in the case of prisoners who have formerly been denied for one year “without a significant change in circumstances” must be vacated.
Hearing transcript backlog
The Board also challenges the order entered by the court on May 10, 2007, with respect to continuing delay in the preparation of transcripts of the parole hearings. Section 3042, subdivision (b) provides that transcripts of all hearings “shall be filed and maintained in the office of the Board of Prison Terms and shall be made available to the public no later than 30 days from the date of the hearing.” Section 3041.5, subdivision (a)(4) provides that the prisoner “shall be permitted to request and receive a stenographic record of all proceedings.” Following submission of petitioner’s request for an order directing the Board to reduce the transcript backlog within 30 days, the court ruled as follows: “Okay. Here’s the history of the transcripts issue—at least the recent history. In December, 2006, the Board’s counsel, the Attorney General, said that the backlog of transcripts was going to be cured by the end of January, 2007. It’s now May, the backlog has not been cured, since—allegedly because the Board had the misfortune to contract with a transcription company that dropped the transcript ball. [(J[] That—whatever the problem is, the situation hasn’t been remedied. It’s not hard to remedy. Send—get those tapes and send them to somebody who can do the job. I *1559expect the backlog to be remedied by June 15th, and if it isn’t, a sanction of $10 per day, per transcript, is going to be imposed, and I’m going to have a status hearing on this issue on June 20th.”
Initially, I agree with the majority opinion that the Board did not waive its objections to this order by failing to appeal following the November 2006 hearing at which the court declared the timely provision of transcripts to be within the purview of the case. (See In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589 [33 Cal.Rptr.2d 559].) I also agree that the timeliness of transcript preparation was not properly before the court in these proceedings. There may be a loose connection between the denial of timely parole hearings and the failure to timely prepare transcripts of the parole hearings, because both delay an inmate’s ability to challenge judicially an eventual parole denial by the Board. Nonetheless, a hearing transcript is not required in order to know whether a timely parole consideration hearing has taken place and, as explained in the majority opinion, the necessary steps to address the transcript backlog in these proceedings were not followed.
I am not unsympathetic with the trial court’s reaction to another apparent instance in which the Board—for whatever reason—was persistently failing to comply with a statutory timeline. However, while I can appreciate the trial court’s efforts to prod compliance with statutory requirements affecting the rights of many people, I must agree that the issue was not properly raised in these proceedings and, for the reasons mentioned in the majority opinion, that the order entered is particularly troublesome because entered in the context of a class action.
Finally, I wish to emphasize that this court’s conclusion does not imply agreement with the contention that a proper action by an inmate to enforce compliance with section 3042, subdivision (b) is precluded by In re Bode, supra, 74 Cal.App.4th 1002. I agree with the majority opinion that the trial court’s order is ambiguous in that it is not clear whether the court intended to require only the preparation and filing of hearing transcripts within 30 days, as required by section 3042, subdivision (b), or the delivery of transcripts to the affected inmate within the 30-day period. The decision in Bode relates only to the latter. In Bode, an inmate did not receive the transcript of his parole hearing until 68 days after the hearing, although the transcript was prepared and filed within the 30-day period prescribed by section 3042, subdivision (b). The court rejected the inmate’s contention that the failure to deliver the record to the inmate within the 30-day period violated his rights under section 3042, subdivision (b). The court held that this section is *1560intended to ensure that the public has access to the transcript before an inmate is released on parole, that section 3041.5 imposes no deadline for the delivery of the transcript to the inmate, and that due process requires only that the transcript be delivered to the prisoner “in reasonably timely fashion.” (74 Cal.App.4th at p. 1007, fn. 2.) Although the Bode opinion includes the statement that section 3042, subdivision (b) “create[s] a right in favor of the public, not the prisoner” (id. at p. 1006), the court did not hold that an inmate is not a member of the public entitled to enforce the provisions of section 3042, subdivision (b). It held only that there is no requirement that a copy of the transcript be delivered to the inmate within the 30-day period. (74 Cal.App.4th at p. 1006.)
All statutory references are to the Penal Code unless otherwise indicated.
Sixty-one additional inmates subsequently unsuccessfully requested to be added as petitioners because their parole hearings were not being timely conducted.
It was in this order that the court stated that the “administrative problems and delays and the statutory scheme which makes the operations of the Board of Prison Terms clearly a function of the executive branch of government, have created a morass uniquely inappropriate for judicial resolution.” The court went on to state, “Nevertheless, they have been of justifiable concern to the prisoners affected and to the people of good faith within the Board of Prison Terms who have, probably along with the Attorney General, been communicating everyone’s distress over the unacceptable status quo to those in Sacramento who could effect a genuine remedy.” As noted, the court went on to conclude that a “genuine remedy” had been legislatively provided.
Since the propriety of the class certification order is not before us on this appeal, there is no occasion to consider whether class certification was necessary because a habeas corpus procedure itself provides a vehicle for a general declaration of the procedural rights of similarly situated individuals. (See In re Walters (1975) 15 Cal.3d 738, 744, fn. 3 [126 Cal.Rptr. 239, 543 P.2d 607].) However, potential issues arising from the class certification may require future correction or clarification. The class as defined does not specify a time period during which class members must have been denied a timely hearing, so that membership in the class presumably is constantly changing and questions may arise as to precisely which inmates are bound by the outcome of these proceedings. The court did not give class members the opportunity to opt out of the class, which may create issues if inmates denied timely parole hearings seek to file their own habeas corpus petitions.
Respondents agreed that petitioner was entitled to a base fee of $58,460, computed on an hourly basis. Of this amount, $3,010.34 was ordered reimbursed to the County of Marin for the fees it had already paid petitioner’s counsel. The multiplier was then applied to the balance of $55,449.66. Petitioner was awarded $1,979.23 in costs and $5,050 as fees in connection with the fee motion, to which no multiplier was applied.
In its reply brief in this court, the Board for the first time argues that it “fully complied” with the mandate imposed by the statute in 1995 when it amended California Code of Regulations, title 15, section 2270 to add subdivision (d). This subdivision provides, in relevant part, “In cases in which the panel may deny a subsequent parole hearing for more than one year, it shall utilize the criteria specified in sections 2281 or 2402 as applicable. It shall make specific written findings stating the bases for the decision to defer the subsequent suitability hearing for two, three, four, or five years.” Sections 2281 and 2402 of title 15 of the California Code of Regulations list the circumstances that are to be considered in determining parole suitability. The reasons for refusing to set a parole date need not “necessarily be completely different from the reasons for excepting an inmate’s case from annual review” (In re Jackson, supra, 39 Cal.3d at p. 479) and it has been held that “the Board’s regulations are [not] invalid to the extent that they allow it to rely on the same reasons to deny parole and to defer the next hearing” (In re Burns (2006) 136 Cal.App.4th 1318, 1326, fn. 3 [40 Cal.Rptr.3d 1]). Nonetheless, other than referring to the regulations specifying the circumstances tending to show suitability and unsuitability for parole, section 2270, subdivision (d) contains no criteria for determining whether an inmate found to be unsuitable should be denied a hearing for more than one year, much less for determining whether the denial should be for two, three, four or five years.