The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
:
OPINION : No. 86-1102
:
of : March 24, 1987
:
JOHN K. VAN DE KAMP :
Attorney General :
:
JACK R. WINKLER :
Deputy Attorney General :
:
STEVE WHITE, CHIEF ASSISTANT ATTORNEY GENERAL, has
requested an opinion on the following question:
Are state prisoners serving sentences of 25 years to life, 15 years to life, or life
with possibility of parole eligible for worktime credits under Penal Code section 2933?
CONCLUSION
State prisoners serving sentences of 25 years to life, 15 years to life, or life with
possibility of parole are not eligible for worktime credits under Penal Code section 2933. The
minimum terms of life sentences for murder are reduced not more than one- third by good
behavior and participation credits but not by worktime credits under Penal Code section
2933. The minimum terms of life sentences for attempted assassination and certain habitual
offenders are reduced not more than one-half by worktime credits under Penal Code section
1
2933. Every prisoner serving a life sentence must serve at least seven calendar years in prison
before being paroled.
ANALYSIS
As part of the Uniform Determinate Sentencing Act of 1976, usually
referred to as the Determinate Sentencing Law, or "DSL," article 2.5 entitled "Credit on
Term of Imprisonment" (commencing with § 2930) was added to chapter 7, title 1, part 3
of the Penal Code. (Statutes of 1976, ch. 1139, § 276, p. 5146.) Said article will be
referred to herein as "Article 2. 5." Sections 2930 and 29311 provided for reduction of not
more than one-third of a prisoner's prison sentence for good behavior and participation in
prison programs. Section 2932 provides for denials of credits for misconduct.
In 1982 the Legislature substantially revised the system of credits to reduce
prison sentences. (Statutes of 1982, ch. 1234.) Sections 2930 and 2931 were amended to
phase out the use of good behavior and participation credits not to exceed one-third the
sentence by limiting its application to those whose crimes were committed prior to January
1, 1983. Section 2933 was added to provide "worktime credits" for a prisoner's performance
in work assignments and educational programs. The sentence is reduced one day for each day
of such performance. The relevant parts of section 2933 read as follows:
"(a) It is the intent of the Legislature that persons convicted of crime
and sentenced to state prison, under Section 1170, serve the entire sentence
imposed by the court, except for a reduction in the time served in the custody
of the Director of Corrections for performance in work, training, or education
programs established by the Director of Corrections. Worktime credits shall
apply for performance in work assignments and performance in elementary,
high school, or vocational education programs. . . . For every six months of
full-time performance in a credit qualifying program, as designated by the
director, a prisoner shall be awarded worktime credit reductions from his term
of confinement of six months. A lesser amount of credit based on this ratio
shall be awarded for any lesser period of continuous performance. . . . Every
prisoner who refuses to accept a full-time credit qualifying assignment or who
is denied the opportunity to earn worktime credits pursuant to subdivision (a)
of Section 2932 shall be awarded no worktime credit reduction . . . . Under no
circumstances shall any prisoner receive more than six months' credit
reduction for any six-month period under this section.
1
Section references are to the Penal Code unless otherwise indicated.
2
"(b) Worktime credit is a privilege, not a right. Worktime credit must
be earned and may be forfeited pursuant to the provisions of Section 2932.
Except as provided in subdivision (a) of Section 2932, every prisoner shall
have a reasonable opportunity to participate in a full-time credit qualifying
assignment in a manner consistent with institutional security and available
resources.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
Section 2933 is expressly limited to persons sentenced under section 1170.
Thus the worktime credits provided under section 2933 are not applicable to persons
sentenced under section 1168(b) by virtue of section 2933 alone. If section 2933 worktime
credits are to apply to those sentenced under section 1168(b) it must be because of some
other statute.
Section 1168 provides generally how prison sentences are to be imposed by the
court. Section 1168 provides:
"(a) Every person who commits a public offense, for which any
specification of three time periods of imprisonment in any state prison is now
prescribed by law or for which only a single term of imprisonment in state
prison is specified shall, unless such convicted person be placed on probation,
a new trial granted, or the imposing of sentence suspended, be sentenced
pursuant to Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2
[the DSL].
"(b) For any person not sentenced under such provision, but who is
sentenced to be imprisoned in the state prison, including imprisonment not
exceeding one year and one day, the court imposing the sentence shall not fix
the term or duration of the period of imprisonment [the Indeterminate Sentence
Law or 'ISL']."
Section 3040 provides in part:
"The Board of Prison Terms shall have the power to allow prisoners
imprisoned in the state prisons pursuant to subdivision (b) of Section 1168 to
go upon parole outside the prison walls and enclosures . . . ."
Section 3046 provides in part:
"No prisoner imprisoned under a life sentence may be paroled until he
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has served at least seven calendar years...."
In In re Monigold (1983) 139 Cal. App. 3d 485, 490-491 the court explained
the different methods of providing credit for prison conduct for determinate and
indeterminate sentences as follows:
"For those prisoners who receive a determinate sentence the Legislature
has provided for conduct credits to reduce the total sentence by up to one-third.
(§§ 2930-2932) Section 2931 invests the Department of Corrections with the
authority to allow conduct credits to those persons sentenced under section
1170, and to those persons who would have been sentenced under that section
if they had committed their crimes after its effective date.
"For indeterminate term prisoners the Legislature enacted section 3040,
which provides that the Board of Prison Terms shall have the power to parole
persons pursuant to section 1168. A life sentence prisoner must serve a
minimum calendar term before becoming eligible for parole. Conduct credits
do not apply to that minimum term. (§§ 3046, 3049; People v. Sampsell (1950)
34 Cal. 2d 757, 764.) However, the Board of Prison Terms has provided by
regulation for the application of conduct credits to such prisoners in
determining their ultimate release date after the service of the minimum
calendar term. (Cal. Admin. Code, tit. 15, § 2290.)
"It can be seen that with the original enactment of the DSL the
Legislature provided for two classes of prisoners, those sentenced to
determinate terms under chapter 4.5, and those sentenced to indeterminate
terms under section 1168. Prisoners sentenced to determinate terms had a date
certain upon which they would be released, while those sentenced to
indeterminate terms were to be released on parole when the Board of Prison
Terms determined that release was appropriate. (§ 3040 et seq.; see also Cal.
Admin. Code, tit. 15, § 2280 et seq.) Through good conduct in prison both
types of prisoner can earn earlier release: determinate prisoners through the
application of conduct credits to reduce their terms by one-third, and
indeterminate prisoners by behaving in a manner which would convince the
Board of Prison Terms that an earlier release was appropriate and also by an
award of regulatory conduct credits. Thus no prisoner entitled to ultimate
release is to be denied consideration of his prison conduct."
Claims that the different methods of providing credit for prison conduct as
between those serving determinate and indeterminate sentences denied equal protection of
the laws in violation of the Fourteenth Amendment were rejected in McQuillion v. Rushen
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(1986) 639 F. Supp. 420, 424.
Because section 2933 expressly limits its application to persons sentenced to
state prison under section 1170 we must determine whether persons convicted of crimes for
which the punishment prescribed by statute is 15 or 25 years to life or life with possibility
of parole are sentenced under section 1170. Section 1168(a), supra, provides who are to be
sentenced under section 1170. A statute specifying a term of 15 years to life or 25 years to
life does not specify three time periods not only a single term within the meaning of section
1168(a), supra. (See People v. Garcia (1981) 115 Cal. App. 3d 85, 113, n. 19.) The words
"or for which only a single term of imprisonment in state prison is specified" were added to
section 1168(a) by chapter 1432, Statutes of 1984, section 8. The purpose of adding that
language was to make prison terms of one year and a day (which the same statute specified
for two crimes) a determinate sentence to be imposed under section 1170. The added
language did not include a sentence of life (with possibility of parole) as a single term of
imprisonment. Such a straight life sentence is not a single term of imprisonment but one for
which the Board of Prison Terms may parole the prisoner after serving seven calendar years.
(§ 3046; In re Jeanice D. (1980) 28 Cal. 3d 210, 219.) Under section 3040 such eligibility to
parole applies only to those imprisoned pursuant to subdivision (b) of section 1168. We
conclude that when a statute prescribes 15 or 25 years to life or life imprisonment (with
possibility of parole) that such sentences are imposed pursuant to section 1168(b), the ISL,
and not under section 1170.2 (People v. Garcia, supra.) Thus if worktime credits are to apply
to such sentences such application must result from some statute other than section 2933.
One law which has been suggested as authorizing worktime credits for those
with indeterminate sentences is section 190 added by initiative measure approved by the
voters November 7, 1978. Section 190 provides:
"Every person guilty of murder in the first degree shall suffer death,
confinement in state prison for life without possibility of parole, or
2
We recognize that the courts have used the term "determinate life sentence" in some
cases. In In re Stanworth (1982) 33 Cal. 3d 176, 183 it is used to refer to life imprisonment
ordered by the supreme court when a death penalty was set aside in considering whether parole
considerations under DSL or the ISL were to apply. In In re Jeanice D. (1980) 28 Cal. 3d 210,
216, "determinate life sentence" is used to refer to a straight life sentence as distinguished from a
term of years to life for purposes of determining eligibility of juveniles convicted of serious
crimes to CYA. (Welf. & Inst. Code § 1731.5 makes juveniles sentenced to "imprisonment for
life" ineligible to CYA.) People v. Smith (1984) 35 Cal. 3d 798, 808-809 speaks of a
"determinate life term" as referring to an express life term for the purpose of determining the
number of peremptory challenges under section 1070. None of these cases suggest that such
"determinate life sentences" are imposed under section 1170.
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confinement in the state prison for a term of 25 years to life. The penalty to be
applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4,
and 190.5.
"Every person guilty of murder in the second degree shall suffer
confinement in the state prison for a term of 15 years to life.
"The provisions of Article 2.5 (commencing with Section 2930) of
Chapter 7 of Title 1 of Part 3 of the Penal Code shall apply to reduce any
minimum term of 25 or 15 years in a state prison imposed pursuant to this
section, but such person shall not otherwise be released on parole prior to such
time."
A statute enacted by the electorate as an initiative measure may be changed
only with the approval of the electorate unless the initiative measure permits amendment or
repeal without their approval. (Art. II, § 10(c) of the California Constitution.) A review of
the initiative measure which enacted section 190 (Proposition 7 in the Nov. 1978 general
election) disclosed no provision which permits amendment or repeal without voter approval.
While nothing in chapter 1234, Statutes of 1982 expressly provides that the
Section 2933 added to the Penal Code thereby was to be in Article 2.5 (of ch. 7, tit. 1, part
3) we think the Legislature evidenced its intention to add the new section to said Article 2.5
by giving it section number 2933 without creating a new article between the said Article 2.5
and the next article (art. 3) commencing with section 2947. Thus we conclude that section
2933 is now part of said Article 2.5.
It does not follow, however, that section 2933 was incorporated into the
provisions of section 190 because it is part of Article 2.5. When section 190 was amended
in 1978 Article 2.5 consisted only of sections 2930, 2931 and 2932. Thus the reference to
said Article 2.5 in section 190 when the people enacted that section in 1978 was to those
three sections as they read then and not to section 2933 which was not enacted until four
years later. The applicable rules of construction were expressed in Palermo v. Stockton
Theatres, Inc. (1948) 32 Cal. 2d 53, 58-59 as follows:
"It is a well established principle of statutory law that, where a statute
adopts by specific reference the provisions of another statute, regulation, or
ordinance, such provisions are incorporated in the form in which they exist at
the time of the reference and not as subsequently modified, and that the repeal
of the provisions referred to does not affect the adopting statute, in the absence
of a clearly expressed intention to the contrary. [Citations.]"
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". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"It also [ ] [must] be noted that there is a cognate rule, recognized as
applicable to many cases, to the effect that where the reference is general
instead of specific, such as a reference to a system or body of laws or to the
general law relating to the subject in hand, the referring statute takes the law
or laws referred to not only in their contemporary form, but also as they may
be changed from time to time, and (it may be assumed although no such case
has come to our attention) as they may be subjected to elimination altogether
by repeal. [Citations.]"
The first of these rules was reaffirmed and applied in People v. McGee (1977)
19 Cal. 3d 948, 958, footnote 3.
We must therefore determine whether the reference to "[t]he provisions of
Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal
Code" in section 190 as enacted by the people in 1978 was general or special under the
aforementioned rules. The Palermo case, cited above, is instructive on this point. The court
in that case stated, at pages 59-60:
"'The question whether the reference to the treaty contained in the
California Land Act [an initiative measure] should be deemed specific or
general within the meaning of the foregoing rules might, as an abstract
proposition, admit of different opinions. The language is ‘any treaty now
existing between the government of the United States and the nation or country
of which such alien is a citizen or subject.' However, in view of the fact that
there is grave doubt whether our Legislature could constitutionally delegate to
the treaty-making authority of the United States the right and power thus
directly to control our local legislation with respect to future acts [citations],'
we are constrained to hold that the reference is specific and not general, since
such a construction is at least a reasonable one [citations] and therefore to be
preferred to one of doubtful validity [citations]."
In Rancho Santa Anita v. City of Arcadia (1942) 20 Cal. 2d 319, the city, in
1913, adopted an ordinance providing: "All provisions of Title IX of the Political Code of
the State of California in regard to revenue and taxation which are not inconsistent with the
provisions of this Ordinance shall apply to and govern all matters of revenue and taxation
which are not herein specifically provided for, substituting where necessary the proper city
officer for any county officer therein referred to." The court observed (at pp. 321-322):
"Title IX of the Political Code is concerned only with state and county
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taxation and therefore does not apply to the defendant city except insofar as it
is incorporated by reference into the city ordinance of 1913. The provisions
restricting the amount of taxes to budgetary requirements were added to the
Political Code subsequent to the passage of that ordinance. Plaintiff contends
that the ordinance incorporated title IX not only as it then existed but as
afterwards revised. It is not necessary to decide whether the city council had
the constitutional authority to adopt unknown, future enactments of the state
Legislature because the ordinance makes clear the council's intention to adopt
article IX only as it then existed. When one statute incorporates the provisions
of another by a specific reference to the title, the latter is incorporated as it
then exists and not as it is subsequently modified. [Citations.] The 1913
ordinance refers specifically to title IX of the Political Code and makes no
reference to subsequent modifications. The defendant city was therefore not
required to comply with those provisions of title IX adopted after 1913."
In Kirk v. Rhoads (1873) 46 Cal. 398 the act to incorporate the City of
Sacramento provided that "all the provisions of law in force regulating elections, so far as
the same are applicable and not inconsistent with the provisions of this Act, shall apply to
the election of city officers by the voters of this city." The court observed that there was an
obvious distinction between the adoption into one Act of a provision as prescribed in another
specified Act, and the adoption in a special Act of a general system in force by virtue of
general laws. The court then stated: "We think it is in accordance with the evident intent of
the Legislature, to hold that the general election law of the State should apply, so far as
applicable, and with its successive modifications and changes, to the municipal elections of
Sacramento."
Applying the two rules of construction to section 190 in the same manner as
in the cases referred to it would appear that its reference to “[t]he provisions of Article 2. 5
(commencing with section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code" is
specific rather than general because it refers to specified provisions in the Penal Code
without any reference to subsequent modifications. (Rancho Santa Anita v. City of Arcadia,
supra, 20 Cal. 2d 319.
Of course, the rules of construction referred to apply only when there is no
indication of legislative intent which points to a different result. We therefore examine the
initiative measure which enacted section 190 for indications of its intent and purpose. The
section 190 repealed by the initiative provided three possible penalties for first degree
murder, namely death, life without possibility of parole, and life with parole possible after
seven years and fixed the penalty for second degree murder at five, six or seven years in
prison. The new section 190 also provided three penalties for first degree murder, namely
death, life without possibility of parole and 25 years to life in prison and fixed the penalty
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for second degree murder at 15 years to life in prison. Thus the initiative effected a
substantial increase in the minimum prison term for both degrees of murder.3 The analysis
of the initiative by the Legislative Analyst which appeared in the ballot pamphlet stated that
the proposed initiative would have the following effect on minimum prison confinement:
"The measure provides that individuals convicted of first degree murder
and sentenced to life imprisonment shall serve a minimum of 25 years, less
whatever credit for good behavior they have earned, before they can be
eligible for parole. Accordingly anyone sentenced to life imprisonment would
have to serve at least 16 years and eight months. The penalty for second degree
murder would be increased to 15 years to life imprisonment. A person
sentenced to 15 years would have to serve at least 10 years before
becoming eligible for parole."
The same analysis had already pointed out that under existing law a person sentenced to life
imprisonment for first degree murder would be eligible for parole in seven years and that a
person sentenced to six years for second degree murder, whose prison sentence could be
reduced up to one-third for good behavior, could be eligible for parole after serving 4 years.
(A five year sentence reduced one-third would require serving 3 years, four months before
parole eligibility.)
The effect of the new section 190 was to extend the minimum eligible parole
date for first degree murder from 7 years to 16 years, eight months and for second degree
murder from 3 years, four months to 10 years. These minimums are based upon a maximum
reduction of one-third the sentence for good behavior participation in programs set forth in
Article 2.5 as it read in 1978. If section 2933 were to apply to provide a one-half reduction
in sentence for worktime credits the minimum eligible parole date for first degree murder
would be 12 years, six months and that for second degree murder would be 7 years, six
months. This would reduce the minimum for first degree murder by 4 years, two months and
the minimum for second degree murder by 2 years, six months from that fixed by the people
in 1978. Thus construing the reference to Article 2.5 in section 190 to incorporate future
changes in that article by the Legislature would result in reducing the minimum prison terms
for first and second degree murder contrary to the manifest purpose and intent of the
electorate in enacting the new section 190 to substantially increase those minimums.
We conclude that the reference to "[t]he provisions of Article 2.5 (commencing
with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code" in section 190 of the
Penal Code incorporated the provisions of that article as they were in 1978 when section 190
3
In In re Jeanice tY supra 28 Cal. 3d at 219 the court acknowledged that one purpose of the 1978
initiative was to increase the penalties for first and second degree murder.
9
was enacted and that subsequent changes in said article by the Legislature (including the
addition of section 2933 in 1982) have no effect on the meaning of section 190. It follows
that state prisoners serving a sentence of 25 years to life for first degree murder or 15 years
to life for second degree murder pursuant to section 190 as enacted by the people in 1978 are
not eligible for worktime credits under section 2933. However, they are eligible for good
behavior and participation credits pursuant to article 2.5, chapter 7, title 1, part 3 of the Penal
Code as that article read on November 7, 1978 to reduce the minimum terms of such
sentences.
Another law which refers to Article 2.5 with respect to prisoners serving
sentences of 25 or 15 years to life is section 217.1(b) concerning attempted assassination
which provides:
"(b) Every person who attempts to commit murder against any person
listed in subdivision (a) in retaliation for or to prevent the performance of the
victim's official duties, shall be confined in the state prison for a term of 15
years to life. The provisions of Article 2.5 (commencing with Section 2930)
of Chapter 7 of Title I of Part 3 shall apply to reduce any minimum term of 15
years in the state prison imposed pursuant to this section, but such person shall
not otherwise be released on parole prior to such time."
Subdivision (b) was added to section 217.1 by chapter 683, Statutes of 1983. Thus section
2933 providing for worktime credits was part of the article 2.5 referred to in said subdivision
(b) when it was enacted. Section 2933, as it read when subdivision (b) was added to section
217.1 in 1983, is therefore incorporated into said subdivision (b) by reference. We conclude
that a state prisoner serving a sentence of 15 years to life for attempted assassination in
violation of section 217.1(b) is eligible for worktime credits under Penal Code section 2933
to reduce the minimum term of such sentence.
Section 667.7 provides that an habitual offender is subject, inter alia, to
"imprisonment in the state prison for life and shall not be eligible for release on parole for
20 years, . . ." This section also provides that '[t]he provisions of Article 2.5 (commencing
with Section 2930) of Chapter 7 of Title I of Part 3 shall apply to reduce any minimum term
in a state prison imposed pursuant to this section, but such person shall not otherwise be
released on parole prior to such time." Section 667.7 was enacted by chapter 1108, Statutes
of 1981 and was amended by chapter 1440, Statutes of 1986, which became effective January
1, 1987. Since section 2933 was not enacted until 1982 it was not adopted by the reference
to Article 2.5 in the 1981 statute enacting section 667.7. However, when section 667.7 was
amended in 1986 the reference to Article 2.5 in the amended version did incorporate section
2933 into section 667.7 on its effective date, January 1, 1987. We conclude that persons
sentenced to life imprisonment under section 667.7 are now entitled to the benefits of section
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2933 to reduce the minimum term of such sentence. We do not consider what a minimum
term is under section 667.7 since that is beyond the scope of the question presented.
The only other statutes we have found specifying terms of imprisonment of 15
or 25 years to life or life with possibility of parole make no reference to Article 2.5. Section
209 providing penalties for kidnapping prescribes "imprisonment in the state prison for life
with possibility of parole" in cases where no person suffers death or bodily harm and in cases
of kidnapping to commit robbery without any reference to Article 2.5. Section 219
prescribes ''imprisonment in state prison for life with the possibility of parole" for
trainwrecking in cases where no person suffers death without any reference to Article 2.5.
Section 12310(b) prescribes "imprisonment in the state prison for life" for exploding a bomb
which causes mayhem or great bodily injury without any reference to Article 2.5. Since each
of these three statutes (§§ 209, 219 & 12310(b)) prescribe life imprisonment without any
minimum term specified, section 3046 would apply to such life sentences prohibiting parole
until the prisoner has served at least seven calendar years in prison. Section 4500 prescribes
"imprisonment in the state prison for life without the possibility of parole for nine years" for
aggravated assault by a life prisoner where the victim does not die within a year and a day
without any reference to Article 2. 5. Since none of the statutes referred to in this paragraph
make any reference to Article 2. 5 the credits for prison conduct authorized by Article 2.5
will not affect the life sentences imposed pursuant to those statutes.
We conclude that state prisoners serving sentences of 25 years to life, 15 years
to life, or life with possibility of parole are not eligible for worktime credits under section
2933 because they are not sentenced under section 1170 and section 2933 expressly limits
its application to prisoners sentenced under section 1170. The minimum terms of life
sentences for murder are reduced not more than one-third by good behavior and participation
credits under sections 2930 and 2931 as those sections read November 7, 1978, but not by
worktime credits under section 2933. The minimum terms of life sentences for attempted
assassination and certain habitual offenders are reduced not more than one-half by worktime
credits under section 2933. Every prisoner serving a life sentence must serve at least seven
calendar years in prison before being paroled.
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