In re Trejo

Filed 4/13/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re GILBERT TREJO, A149064

on Habeas Corpus.

(Marin County

Super. Ct. No. SC197534A)

This case presents the question whether a “youth offender” sentenced to a term of

15 years to life for an offense committed when he was 17 years old and found suitable for

release on parole pursuant to the youth offender parole provisions of Penal Code section

3051 must, before being released, serve a consecutive sentence imposed for a crime

committed in prison at age 20. We conclude that the decision of the Board of Parole

Hearings requiring petitioner to serve the consecutive term after being granted parole,

and its implementation by the Department of Corrections and Rehabilitation, were

erroneous.

STATEMENT OF THE CASE

In 1980, petitioner was convicted of second degree murder (Pen. Code, § 187)1

and sentenced to a prison term of 15 years to life. The offense was committed in 1979,

when petitioner was 17 years of age. In 1982, at age 20, while incarcerated at San

Quentin State Prison, he pled guilty to assault with a deadly weapon on a peace officer

(§ 245) and possession of a deadly weapon by a prisoner (§ 4502). He was sentenced to

the aggravated term of four years on the possession count, to be served consecutively to

his life sentence; execution of a five-year sentence was stayed on the assault count.

1

Further statutory references are to the Penal Code unless otherwise indicated.

1

On June 5, 2015, after serving 35 years in prison, petitioner was found suitable for

parole as a youthful offender under section 3051. The Board of Parole Hearings (Board)

panel noted that he was eligible for parole subject to review by the Board and the

Governor, and that he was still required to serve his “In re Thompson term”2—the

consecutive four-year term for the 1982 in-prison offense.

The decision to grant petitioner parole became effective on November 2, 2015.

His earliest possible release date was calculated to be November 2, 2018. Petitioner

represents that his release date has since been recalculated as November 2, 2017, based

on a correction in his credit earning status.

On June 6, 2016, petitioner filed a petition for writ of habeas corpus in the Marin

County Superior Court challenging the legality of his incarceration beyond November 2,

2015. Petitioner argued that the Department of Corrections and Rehabilitation

(Department) was required by section 3046, subdivision (c), and section 3051 to release

him on November 2, 2015, upon the conclusion of his indeterminate sentence, and to

reduce his parole period by the amount of time he has served since November 2, 2015.

The trial court denied the petition on July 27, 2016, concluding that section 3051

does not exempt a youthful offender granted parole from serving a consecutive sentence

for an offense committed in prison as required by section 1170.1, subdivision (c), which

provides that a consecutive sentence for an in-prison offense “shall commence from the

time the person would otherwise have been released from prison.”

Petitioner filed his petition for writ of habeas corpus in this court on August 18,

2016, alleging that section 1170.1, subdivision (c), does not apply to the present case

because, since his in-prison offense was committed before he was 23 years old, he was

entitled to release at the end of his indeterminate sentence pursuant to section 3051,

subdivision (d).

2

In re Thompson (1985) 172 Cal.App.3d 256.

2

DISCUSSION

I.

As a preliminary matter, respondent argues that we should not reach the merits of

petitioner’s claim because he failed to exhaust his administrative remedies with the

Department with regard to calculation of his release date. (Cal. Code Regs., tit. 15,

§ 3084.1, subd. (a) [“administrative mechanism for review of departmental policies,

decisions, actions, conditions, or omissions”].) Petitioner maintains no exhaustion was

required because the decision to require him to serve the consecutive term was made by

the Board, not the Department. The record supports petitioner, inasmuch as the

commissioner, in stating the Board’s decision finding petitioner suitable for parole, stated

that petitioner would be required to serve the consecutive term. So does the law: “The

applicable statutes provide that the Board is the administrative agency within the

executive branch that generally is authorized to grant parole and set release dates.

(§§ 3040, 5075 et seq.)” (In re Lawrence (2008) 44 Cal.4th 1181, 1201 (Lawrence).) At

the time of the Board’s hearing in this case, section 3041, subdivision (a), provided, “One

year prior to the inmate’s minimum eligible parole release date a panel of two or more

commissioners or deputy commissioners shall again meet with the inmate and shall

normally set a parole release date as provided in Section 3041.5” and sets forth the

manner in which the release date was to be determined. (Stats. 2013, ch. 312 (Sen. Bill

No. 260), § 2, italics added.) Section 3041, subdivision (b), provided, “The panel or the

board, sitting en banc, shall set a release date unless it determines that the gravity of the

current convicted offense or offenses, or the timing and gravity of current or past

convicted offense or offenses, is such that consideration of the public safety requires a

more lengthy period of incarceration for this individual, and that a parole date, therefore,

cannot be fixed at this meeting.” (Stats. 2013, ch. 312 (Sen. Bill No. 260), § 2, italics

added.)

Respondent asserts, without explanation, that “the Board no longer sets release

dates, including for non-parole eligible sentences.” The authorities cited for this assertion

are sections 3041, 3046, subdivision (c), 3051, and 4801, subdivision (c), as amended in

3

2013 and 2015. We fail to see how these statutes effect the change respondent attributes

to them.

The only express references to release dates in these statutes are in sections 3041

and 3046. Section 3046 continues to refer to the Board setting “release dates,” providing

that an inmate found suitable for parole under section 3051 “shall be paroled regardless

of the manner in which the board set release dates pursuant to subdivision (a) of Section

3041.” Section 3041 was amended in 2015, effective January 1, 2016—after petitioner’s

hearing before the Board in June 2015—to refer to granting parole rather than setting a

parole release date. (Stats. 2015, ch. 470 (Sen. Bill No. 230), § 1 [“shall normally grant

parole as provided in Section 3041.5” (subd. (a)(2)); “The panel or the board, sitting en

banc, shall grant parole to an inmate . . .” (subd. (b)(1))].) This amendment deleted the

provisions of the former subdivision (a) of section describing the manner in which the

Board was to determine the release date and added a new subdivision (a)(4): “Upon a

grant of parole, the inmate shall be released subject to all applicable review periods.

However, an inmate shall not be released before reaching his or her minimum eligible

parole date as set pursuant to Section 3046 unless the inmate is eligible for earlier release

pursuant to his or her youth offender parole eligibility date.” (Stats. 2015, ch. 470 (Sen.

Bill No. 230), § 1.)

We do not read these changes as altering the Board’s authority to set release dates

for several reasons. Section 3041 is still entitled, “Parole release date; setting; criteria; en

banc review by the board.” The previous language of section 3041, referring to setting a

release date, has been treated by the courts as meaning granting parole. For example,

Lawrence, supra, 44 Cal.4th at page 1204, quoting In re Rosenkrantz (2002) 29 Cal.4th

616, 654, both cases having been decided when the statute referred to “release date”

rather than, as now, “parole,” described section 3041, subdivision (b), as follows:

“ ‘[T]he governing statute provides that the Board must grant parole unless it determines

that public safety requires a lengthier period of incarceration for the individual because of

the gravity of the offense underlying the conviction. (Pen. Code, § 3041, subd. (b).) And

as set forth in the governing regulations, the Board must set a parole date for a prisoner

4

unless it finds, in the exercise of its judgment after considering the circumstances

enumerated in section 2402 of the regulations, that the prisoner is unsuitable for parole.

Accordingly, parole applicants in this state have an expectation that they will be granted

parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for

parole in light of the circumstances specified by statute and by regulation.” (Lawrence, at

p. 1204, italics altered from original.) According to the author of Senate Bill No. 230, by

which section 3041 was amended in 2015, the purpose of the amendment was to ensure

that inmates the Board found suitable for release on parole were in fact released

expeditiously and not kept in confinement due to additional sentence enhancements.

(Stats. 2015, Sen. Bill No. 230, Com. Report July 8, 2015; Stats. 2015, Sen. Bill No. 230,

Com. Report Aug. 31, 2015.)3 Nothing in the text or legislative history indicates the

Legislature intended to alter the body responsible for determining an inmate’s release

date.

Respondent does not suggest petitioner was required to exhaust administrative

remedies before challenging a decision made by the Board; its position is based on its

view that the decision at issue was made by the Department. Furthermore, even if we

3

According to the author, under then-existing law, “Even after the parole board

finds an individual suitable for release they may still require an individual to spend

months or even years in prison before being released. These lengthened sentences result

from the term calculation process the parole board engages in to determine how many

years an individual should spend in prison to satisfy the non-rehabilitative purposes of

incarceration. These term calculations can extend or alter an individual’s sentence,

creating a system of back-end sentencing in which a judge’s sentence may bear little

resemblance to the actual time an individual serves under correctional control.” (Stats.

2015, Sen. Bill No. 230, Com. Report July 8, 2015.)

“This bill provides that if an inmate is found suitable he or she shall be released,

after the Governor’s statutory right of review. The author believes that this is a truth in

sentencing provision. If a person serves his or her time as imposed by the sentencing

court and is found suitable, he or she is released. This will also give the inmate a realistic

timeframe to work toward rehabilitating himself or herself. The author believes that to be

found suitable by the Board and then kept longer because of factors in your original

crime, that were already considered by the Board, does not encourage rehabilitative

behavior by inmates.” (Stats. 2015, Sen. Bill No. 230, Com. Report Aug. 31, 2015.)

5

were to view the decision as having been made by the Department, insistence upon

exhaustion of administrative remedies would have been futile, as it appears both the

Board and the Department were following an established policy in requiring petitioner to

serve the consecutive term after being found suitable for release on parole. (See In re

Dexter (1979) 25 Cal.3d 921, 925-926.) Respondent’s invocation of the Department’s

“special expertise” in calculating release dates as a basis for applying the exhaustion

doctrine has no relevance here, as no calculation is at issue—the only question is whether

both the Board and the Department correctly interpreted the statutes upon which they

based the policy of requiring service of a sentence imposed under section 1170.1,

subdivision (c), before releasing a youth offender found suitable for parole release under

section 3051. This is a purely legal issue. Declining to review the merits of petitioner’s

claim now could only delay the relief to which he is entitled.4

Respondent also contends this case should be transferred to the Fourth Appellate

District, where the prison in which petitioner is confined is located, because prison staff

calculated petitioner’s release date and would be responsible for responding to an inmate

appeal or updating the currently set release date. “[G]enerally speaking a petition for writ

of habeas corpus should not be transferred to another court unless a substantial reason

exists for such transfer. In general, a habeas corpus petition should be heard and resolved

by the court in which the petition is filed.” (In re Roberts (2005) 36 Cal.4th 575, 585

(Roberts).) Griggs v. Superior Court (1976) 16 Cal.3d 341, 347, established that “ ‘[i]f

the challenge is to a particular judgment or sentence, the petition should be transferred to

the court which rendered judgment’ ” while “ ‘[i]f the challenge is to conditions of the

inmate’s confinement, then the petition should be transferred to the superior court of the

county wherein the inmate is confined.’ ” (Roberts, at pp. 583-584.) Analogizing to

these categories, Roberts held that “a petitioner who seeks to challenge by means of

habeas corpus the denial of parole (or his or her suitability for parole) should file the

4

Petitioner represents that respondent raised the exhaustion argument in the

superior court habeas proceeding, and that the superior court implicitly rejected the

argument by reaching a decision on the merits of the petition.

6

petition in the superior court located in the county in which the conviction and sentence

arose, and that the petition should be adjudicated in that venue.” (Id. at p. 593.) Among

other reasons for this procedural rule, the court explained that the “objectives of

sentencing and parole are related” and that adjudicating petitions challenging adverse

parole determinations in the court in the county of commitment would produce more

consistent review, since prisoners are often transferred from one prison to another, and

would more evenly distribute the workload of such petitions among the courts of the

state. (Id. at pp. 590-593.)

The Board’s decision in the present case is an “adverse parole determination”

(Roberts, supra, 36 Cal.4th at p. 591) analogous to a denial of parole because petitioner is

challenging the aspect of the Board’s decision that prevented him from being released

upon being found suitable for parole. Accordingly, venue in this court is proper.

II.

In a series of cases, the United States Supreme Court has recognized that “children

are constitutionally different from adults for purposes of sentencing” because, due to their

“diminished culpability and greater prospects for reform, . . . ‘they are less deserving of

the most severe punishments.’ ” (Miller v. Alabama (2012) 567 U.S. ___, ___ [132 S.Ct.

2455, 2464] (Miller), quoting Graham v. Florida (2010) 560 U.S. 48, 68 (Graham).) The

Eighth Amendment’s prohibition on cruel and unusual punishment “encompasses the

‘foundational principle’ that the ‘imposition of a State’s most severe penalties on juvenile

offenders cannot proceed as though they were not children.’ (Miller, [at p.] ___ [132

S.Ct. at p. 2466].) From this principle, the high court has derived a number of limitations

on juvenile sentencing: (1) no individual may be executed for an offense committed

when he or she was a juvenile (Roper [v. Simmons (2005) 543 U.S. 551,] 578); (2) no

juvenile who commits a nonhomicide offense may be sentenced to LWOP (Graham,

supra, 560 U.S. at p. 74); and (3) no juvenile who commits a homicide offense may be

automatically sentenced to LWOP (Miller, at p. ____ [132 S.Ct. at p. 2460]).” (People v.

Franklin (2016) 63 Cal.4th 261, 273–274 (Franklin).)

7

Section 3051 was enacted to address these principles. The Legislature stated its

intent in enacting Senate Bill No. 260, which added section 3051 and amended sections

3041, 3046, and 4801: “The purpose of this act is to establish a parole eligibility

mechanism that provides a person serving a sentence for crimes that he or she committed

as a juvenile the opportunity to obtain release when he or she has shown that he or she

has been rehabilitated and gained maturity, in accordance with the decision of the

California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the decisions

of the United States Supreme Court in Graham[, supra,] 560 U.S. 48, and Miller [, supra,

567 U.S. ____ [132 S.Ct. 2455]]. . . . It is the intent of the Legislature to create a process

by which growth and maturity of youthful offenders can be assessed and a meaningful

opportunity for release established.” (Stats. 2013, ch. 312 (Sen. Bill No. 260), § 1.)5

Section 3051 provides that an offender convicted of a “controlling offense”

committed before he or she was 23 years old,6 for which he or she receives a determinate

sentence, becomes eligible for release on parole “during his or her 15th year of

incarceration, unless previously released pursuant to other statutory provisions” (§ 3051,

subd. (b)(1)); when the sentence for the controlling offense is a life term of less than 25

years to life, such an offender becomes eligible for parole during the 20th year of

incarceration (§ 3051, subd. (b)(2)); and when the sentence for the controlling offense is

25 years to life, the offender becomes eligible for parole during the 25th year of

incarceration (§ 3051, subd. (b)(3)). “ ‘Controlling offense’ means the offense or

enhancement for which any sentencing court imposed the longest term of imprisonment.”

(§ 3051, subd. (a)(2)(B).)

5

The amendment of section 3041 by Senate Bill No. 260 did not directly address

youth offenders. Section 3041 was further amended in 2015, effective January 1, 2016,

to add subdivision (a)(4), prohibiting release of an inmate prior to his or her minimum

eligible parole date as set pursuant to section 3046 “unless the inmate is eligible for

earlier release pursuant to his or her youth offender parole eligibility date.” (Stats. 2015,

ch. 470 (Sen. Bill No. 230), § 1.)

6

As originally enacted, section 3051 referred to offenses committed before the

offender was 18 years old. The age was raised to 23 years by an amendment that became

effective on January 1, 2016. (Stats. 2015, ch. 471 (Sen. Bill No. 261), § 1.)

8

Section 3051 requires the Board to conduct a “youth offender parole hearing” that

provides “a meaningful opportunity to obtain release” and, among other things, assesses

the offender’s “growth and maturity.” (§ 3051, subd. (d), (e), (f)(1).) “At the youth

offender parole hearing, the board shall release the individual on parole as provided in

Section 3041, except that the board shall act in accordance with subdivision (c) of

Section 4801.” (§ 3051, subd. (d).) Section 3041 sets forth the procedures for setting

parole release dates, and section 4801, subdivision (c), requires the Board, in reviewing

suitability for parole, to “give great weight to the diminished culpability of juveniles as

compared to adults, the hallmark features of youth, and any subsequent growth and

increased maturity of the prisoner in accordance with relevant case law.”

“[A]n inmate found suitable for parole pursuant to a youth offender parole hearing

as described in Section 3051 shall be paroled regardless of the manner in which the board

set release dates pursuant to subdivision (a) of Section 3041, subject to subdivision (b) of

Section 3041 and Sections 3041.1 and 3041.2, as applicable.” (§ 3046, subd. (c).)

Section 3051 expressly excludes certain inmates: “This section shall not apply to

cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i),

inclusive, of Section 667 [Three Strikes], or Section 667.61 [specified sex offenses], or in

which an individual was sentenced to life in prison without the possibility of parole. This

section shall not apply to an individual to whom this section would otherwise apply, but

who, subsequent to attaining 23 years of age, commits an additional crime for which

malice aforethought is a necessary element of the crime or for which the individual is

sentenced to life in prison.” (§ 3051, subd. (h).)

Petitioner argues that the statutory scheme demonstrates the Legislature intended a

youth offender to be released from prison if granted parole after serving the term

specified in section 3051, subdivision (b), for his or her controlling offense, regardless of

any other sentence the inmate otherwise would have had to serve. He points in particular

to section 3046, subdivision (c), which provides that a finding of parole suitability

pursuant to section 3051 prevails over any parole determination made pursuant to section

9

3041, subdivision (a), and section 3051, subdivision (h), establishing the exceptions to

application of section 3051.

None of the exceptions stated in section 3051, subdivision (h), apply to petitioner:

He was not sentenced pursuant to the Three Strikes law or section 667.61 or to a term of

life in prison without possibility of parole, and his in-prison offense was committed

before he reached 23 years of age and neither involved malice aforethought nor resulted

in a life sentence. Relying upon “ ‘the maxim of statutory construction, expressio unius

est exclusio alterius, if exemptions are specified in a statute, [a court] may not imply

additional exemptions unless there is a clear legislative intent to the contrary’ ” (People v.

Oates (2004) 32 Cal.4th 1048, 1057, quoting Sierra Club v. State Bd. of Forestry (1994)

7 Cal.4th 1215, 1230), petitioner argues he was entitled to release upon being granted

parole on his controlling offense without having to serve additional time for his in-prison

offense.

Respondent, however, argues that petitioner was required to serve the consecutive

term imposed for his in-prison offense under the plain terms of section 1170.1,

subdivision (c), which provides that when a person is sentenced to a consecutive term for

a felony committed in prison, “the term of imprisonment for all the convictions that the

person is required to serve consecutively shall commence from the time the person would

otherwise have been released from prison.” (See In re Thompson, supra, 172 Cal.App.3d

at pp. 259-262.) The term of imprisonment for the in-prison offense begins on the date

parole becomes effective for the original offenses. (In re Coleman (2015) 236

Cal.App.4th 1013, 1018.) “Commencing the consecutive sentence for the custodial

offense on the date the prisoner otherwise actually would have been released on parole is

consistent with the Legislature’s intent to punish and deter criminality in prison.” (Id. at

p. 1022.) “ ‘The Legislature wanted in-prison crimes to be punished more severely than

crimes committed “on the outside.” [Citation.] Thus, as a general rule sentences for out-

of-prison offenses are calculated under subdivision (a) of section 1170.1—the greatest

term of imprisonment is the principal term and the consecutive sentences are subordinate

terms, served at one-third of the middle term.’ (People v. White (1988) 202 Cal.App.3d

10

862, 869 (White ).) In contrast, ‘Section 1170.1(c) applies to felonies committed when

the defendant is confined in a state prison. The statutory scheme makes clear that such

felonies, i.e., those felonies committed in prison, are exempt from the general sentencing

scheme. [Citation.] A sentence under subdivision (c) is longer than a sentence imposed

under subdivision (a) because the in-prison offenses are fully consecutive to the sentence

for the offense for which the defendant was in prison.” ’ (White, at pp. 869–870.)” (In re

Coleman, at pp. 1018–1019.)

Respondent argues that the youth offender parole scheme does not exempt

petitioner from having to serve the consecutive term imposed for his in-prison offense.

According to respondent, nothing in the language of sections 3051 or 3046 eliminates

sentences under section 1170.1, subdivision (c). The exceptions stated in section 3051,

subdivision (h), in respondent’s view, refer to categories of inmates who are not eligible

for youth offender parole hearings at all, and say nothing about whether inmates who are

eligible for youth offender parole hearings are required to serve consecutive sentences for

in-prison offenses after they would otherwise have been released pursuant to the grant of

parole on the controlling offense. And section 3046, subdivision (c), respondent

maintains, provides only that youth offenders found suitable for parole must be paroled

regardless of any minimum eligible parole date determined pursuant to section 3041,

subdivision (a).

Respondent maintains that the Board’s parole authority “does not apply to

determinate sentences for in-prison crimes imposed under section 1170.1, subdivision

(c).” Section 3041 “addresses how the Board is to make parole decisions for

indeterminate life inmates.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1078.) Section

3041, subdivision (a)(1), begins, “In the case of any inmate sentenced pursuant to any

law, other than Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 . . .”—

thus expressly excluding inmates sentenced under 1170.1. Respondent views this

exclusion as demonstrating that the Board lacks authority over determinate terms for in-

prison crimes sentenced under section 1170.1, subdivision (c).

11

We disagree. Section 3051 applies to individuals sentenced to determinate terms

(§ 3051, subd. (b)(1)), as well as those sentenced to indeterminate terms. Determinate

sentencing is governed by sections 1170 (determinate terms) and 1170.1 (aggregate

terms), which are among the statutes section 3041, subdivision (a)(1), excludes from its

coverage. Yet section 3051 expressly incorporates section 3041, directing that “[a]n

individual subject to this section shall meet with the board pursuant to subdivision (a) of

section 3041” (§ 3051, subd. (c)) and that the Board “shall release the individual on

parole as provided in Section 3041” (§ 3051, subd. (d)), albeit with “great weight” to be

given to youth-related factors and subsequent increased maturity. (§§ 4801, subd. (c),

3501, subd. (d).) Section 3051 thus necessarily gives the Board some authority over

parole for inmates serving determinate sentences despite section 3041’s statement of

inapplicability to individuals sentenced pursuant to sections 1170 et seq. Respondent

recognizes this, stating that section 3041, subdivision (a)(1), “gives the Board discretion

over indeterminate terms, subject to the exceptions for determinate terms arising outside

of prison under section 3051, subdivisions (b)(1) through (3).” Respondent thus appears

to argue that the Board has authority to grant parole under section 3051 before a youth

offender has completed a determinate sentence imposed pursuant to sections 1170 and

1170.1 (§ 3051, subd. (b)(1)) but does not have authority to alter the effect of a

determinate term imposed for an in-prison offense under section 1170.1, subdivision (c).

The text of section 3051 does not support respondent’s assumption that the statute

applies only to sentences imposed for crimes committed before a youth offender is

incarcerated. In fact, the text indicates the opposite. Section 3051 provides for parole

suitability review for inmates whose “controlling offense” was committed before he or

she was 23 years old. (§ 3051, subd. (a)(1).) As we have said, “controlling offense” is

defined as “the offense or enhancement for which any sentencing court imposed the

longest term of imprisonment.” (§ 3051, subd. (a)(2)(B), italics added.) In ascertaining

the intent of the Legislature, we give the words of a statute their ordinary meaning.

(People v. Broussard (1993) 5 Cal.4th 1067, 1071.) “Any” means “one, some, or all

indiscriminately of whatever quantity.” (Merriam-Webster Dictionary online

12

<https://www.merriam-webster.com/dictionary/any> [as of Apr. 14, 2017].) By referring

to the longest term of imprisonment imposed by “any” sentencing court, the Legislature

indicated its intent that the controlling offense used to determine a youth offender’s

parole hearing date under section 3051 be selected from all sentences imposed upon that

offender, regardless of whether they were imposed in one or a number of proceedings or

cases. “Any sentencing court” is open-ended: Nothing in section 3051 suggests the only

sentences to be considered are those imposed before the offender was incarcerated, as

long as the controlling offense—the one for which the longest sentence was imposed—

was committed before the offender was 23 years old.

The exceptions stated in subdivision (h) of section 3051 also show that the

Legislature intended section 3051 to apply to at least some in-prison offenses.

Subdivision (h) of section 3051 excludes from application of the statute youth offenders

who “subsequent to attaining 23 years of age” commit “an additional crime for which

malice aforethought is a necessary element or for which the individual is sentenced to life

in prison.” The statute does not exclude offenders who commit the specified additional

offenses before age 23. Such additional offenses will necessarily be committed in prison,

since the earliest eligibility for parole offered under section 3051 is during the 15th year

of incarceration, long after a youth offender will have reached age 23. (§ 3051, subd.

(b)(1).) If the in-prison offense results in a longer sentence than the original offense for

which the offender was incarcerated, the in-prison offense would become the

“controlling” offense under section 3051 as “the offense or enhancement for which any

sentencing court imposed the longest term of imprisonment.” (§ 3051, subd. (a)(2)(B),

italics added.)

The Department’s own website reflects this understanding. In a flow chart entitled

“How to Determine Whether an Inmate Qualifies as a ‘Youth Offender’ under PC

§ 3051,” published on the Department’s website, “Step One” is described as follows:

“Review the complete criminal history, including any crimes committed while

incarcerated, to determine the single crime or enhancement for which any court sentenced

the inmate to the longest term. This is the ‘controlling offense’ for the purposes of this

13

statute.” (<http://www.cdcr.ca.gov/BOPH/docs/YOPH/FLOWCHART%20-

%20How%20to%20Determine%20Whether%20an%20Inmate%20Qualifies%20as%20a

%20Youth%20Offender.pdf> [as of Apr. 14, 2017].) “Step Two” asks, “Did the inmate

commit the controlling offense, as defined above, prior to reaching his or her 23rd

birthday?” (Ibid.) If the answer to this question is “no,” the chart indicates the inmate

does not qualify. If the answer is “yes,” the chart indicates additional inquiries to

determine whether any of the section 3051, subdivision (h), exceptions apply. The

emphasized language in “Step One,” which is underlined on the flow chart, demonstrates

that in-prison offenses are considered within the purview of section 3051.

Contrary to respondent’s argument that the Board has no authority over sentences

imposed under section 1170.1, subdivision (c), petitioner maintains that the Legislature’s

intent to exempt youth offenders from application of section 1170.1 generally (which, of

course, includes section 1170.1, subdivision (c)) is inherent in section 3051. Section

1170.1, subdivision (a), provides that when a person is convicted of two or more felonies,

whether in the same or different proceedings or courts, and sentenced to consecutive

terms of imprisonment, the aggregate term of imprisonment for all the offenses consists

of the sum of the greatest term imposed for any of the crimes (including applicable

enhancements), one-third of the term imposed for each other consecutively sentenced

crime (including one-third of the term for applicable enhancements), and any additional

terms for enhancements for prior convictions, prior prison terms and section 12022.1.

Section 1170.1 thus requires that an inmate serve the requisite term for each

consecutively sentenced offense and enhancement. Under section 3051, subdivision

(b)(1), however, a youth offender sentenced to a determinate term becomes eligible for

release in the 15th year of incarceration even if he or she has not yet served the aggregate

determinate term. Where a youth offender is sentenced to a lengthy determinate term,

then, section 3051 necessarily overrides the requirement of section 1170.1 that an inmate

sentenced to consecutive terms not be released on parole before completing all the terms

of imprisonment imposed.

14

Similarly, section 3051 supersedes section 1170.1 when a youth offender is

consecutively sentenced to a life term and a determinate term. Section 1170.1,

subdivision (a), incorporates section 669, which provides that when a person is sentenced

to a life term and a consecutive determinate term, “the determinate term of imprisonment

shall be served first and no part thereof shall be credited toward the person’s eligibility

for parole as calculated pursuant to Section 3046 or pursuant to any other section of law

that establishes a minimum period of confinement under the life sentence before

eligibility for parole.” Under section 3051, however, a person sentenced to a life term

and a determinate term becomes eligible for parole after the time specified in section

3051, subdivision (b)(2) or (b)(3), based on the life term, without regard to the

determinate term. (People v. Perez (2016) 3 Cal.App.5th 612, 616, 618-619 [20-year-old

defendant sentenced to term of 46 years to life and determinate term of 40 years eligible

for parole after 25 years under section 3051].)

We see no basis for inferring that the Legislature intended section 3051 to override

the otherwise applicable provisions section 1170.1 as described above but to have no

effect on the application of section 1170.1, subdivision (c). The California Supreme

Court explained in Franklin, supra, 63 Cal.4th 261, that sections 3051 and 3046 have

“superseded the statutorily mandated sentences” of the youth offenders to whom the

statutes apply. Section 3051 “reflects the Legislature’s judgment that 25 years is the

maximum amount of time that a juvenile offender may serve before becoming eligible for

parole. Apart from the categories of offenders expressly excluded by the statute, section

3051 provides all juvenile offenders with a parole hearing during or before their 25th year

of incarceration. The statute establishes what is, in the Legislature’s view, the

appropriate time to determine whether a juvenile offender has ‘rehabilitated and gained

maturity’ (Stats. 2013, ch. 312, § 1) so that he or she may have ‘a meaningful opportunity

to obtain release’ (§ 3051, subd. (e)).” (Franklin, at p. 278.) This statutory scheme,

designed to effectuate the constitutional prohibition against excessive punishment of

youthful offenders, would be thwarted if a youth offender found suitable for parole

15

pursuant to section 3051 was required to remain in custody due to a consecutive sentence

for an in-prison offense.

This is particularly true here, where the in-prison offense was committed while

petitioner was still of an age deemed by the Legislature to warrant consideration of the

“diminished culpability of juveniles as compared to adults” and “hallmark features of

youth.” (See § 4801, subd. (c).) Senate Bill No. 260 stated the Legislature’s findings

that “as stated by the United States Supreme Court in Miller[, supra, 567 U.S.] ___ [132

S.Ct. 2455], ‘only a relatively small proportion of adolescents’ who engage in illegal

activity ‘develop entrenched patterns of problem behavior,’ and that ‘developments in

psychology and brain science continue to show fundamental differences between juvenile

and adult minds,’ including ‘parts of the brain involved in behavior control.’ The

Legislature recognizes that youthfulness both lessens a juvenile’s moral culpability and

enhances the prospect that, as a youth matures into an adult and neurological

development occurs, these individuals can become contributing members of society.”

(Stats. 2013, ch. 312 (Sen. Bill No. 260), § 1.) While petitioner’s 1982 crime was not the

“controlling offense” under section 3051 (because the sentence imposed for it was shorter

than the term imposed for petitioner’s murder conviction) and the four-year consecutive

sentence was not in itself of a length to trigger the concerns with disproportionate

punishment of juvenile offenders discussed in cases such as Miller, at p. ____ [132 S.Ct.

at p. 2466], it would be anomalous to conclude that the Legislature intended to permit

extension of a youth offender’s incarceration beyond the time he or she was found

suitable for parole under section 3051 procedures due to commission of an in-prison

offense committed when the offender was still subject to the “immaturity, recklessness,

and impetuosity” that “ ‘ “render juveniles less culpable than adults.” ’ ” (Miller, at p.

____ [132 S.Ct. at p. 2465], quoting Graham, supra, 560 U.S. at p. 72.)7

7

It is not necessary for us to consider, in the present case, the application of

section 1170.1, subdivision (c), to an individual serving a sentence for a controlling

offense under section 3051 who commits an in-prison offense when he or she is 23 years

old or older. It is obvious, however, that in considering a youth offender’s suitability for

16

Respondent argues that the consecutive sentence must be given effect because a

sentence imposed for an in-prison offense is treated as a new principal term rather than a

subordinate term to the sentence on the out-of-custody offense. (In re Tate (2006) 135

Cal.App.4th 756, 765 (Tate).) Respondent reasons that because the consecutive term did

not merge with the life sentence, it cannot be “credited against” the life term. However

reasonable this argument may be in a case not subject to section 3051, it ignores both the

underlying purpose and the text of the youth offender parole statute. The parole

eligibility date determined under section 3051, as we have said, is based on the longest

sentence imposed upon the inmate by “any” sentencing court, “supersed[ing] the

statutorily mandated sentences” of the youth offenders to whom sections 3051 and 3046

apply. (Franklin, supra, 63 Cal.4th 261.)

Respondent further argues that failing to apply section 1170.1, subdivision (c), to

require this additional period of incarceration would provide youth offenders a windfall,

enabling them to commit additional offenses during their incarceration “with immunity.”

Again we disagree. The fact that a youth offender found suitable for parole on the

controlling offense will not be required to additionally serve the consecutive sentence

imposed for an in-prison offense does not mean the offender escaped punishment for the

in-prison offense. The time frames established in section 3051, subdivision (b),

parole release, commission of an in-prison offense after age 23 would weigh against

finding the inmate had “ ‘rehabilitated and gained maturity’ ” (Franklin, supra, 63

Cal.4th at p. 278, quoting Stats. 2013, ch. 312, § 1) so as to warrant release pursuant to

section 3051.

It is noteworthy that the commissioner, in pronouncing the panel’s decision to

grant parole, commented that while there had been “a lengthy period of positive

rehabilitation” that “didn’t start right away,” petitioner had been “almost three decades

violence free” and, for a “shorter” but still “long” period, “disciplinary free.” The

commissioner stated that petitioner exhibited the “hallmark features of youth” at the time

of the murder and that his subsequent maturity did not come quickly, but that at the time

of the hearing, the panel would have found petitioner suitable for parole “even if SB 260

wasn’t here” due to his genuine remorse and acceptance of responsibility for his crime,

the reduced probability of recidivism at petitioner’s age (53 years), his engagement in

institutional activities indicating “an enhanced ability to function within the law upon

release,” his work on issues with substance abuse, and his realistic plans for release.

17

determine when an offender is entitled to a hearing on suitability for parole, not when he

or she is actually entitled to release. Parole will not be granted if the panel or Board

“determines that the gravity of the current convicted offense or offenses, or the timing

and gravity of current or past convicted offense or offenses, is such that consideration of

the public safety requires a more lengthy period of incarceration for this individual.”

(§ 3041, subd. (b)(1).) The determination of suitability for parole will necessarily take

in-prison offenses into account in determining the degree of risk an inmate poses to the

public and the extent of a youth offender’s growth and maturity.

Respondent maintains that the Board’s consideration of suitability factors is

insufficient because it is not “the sentence contemplated by the sentencing courts,

prosecutors, or the Penal Code.” But this is true of all sentences affected by section

3051: The point is that a youth offender is not necessarily deserving of the same

punishment as an adult who committed the same offense. Moreover, while section 3051

guarantees youth offenders the opportunity to obtain release sooner than might be

possible for inmates who were older when they committed comparable crimes, the

required suitability determination may result in the youth offender serving considerably

more time due to commission of an in-prison offense than what he or she would serve

under a specific determinate sentence for that offense.

The present case demonstrates the point. According to Department records,

petitioner began serving his life term on June 24, 1980, and his minimum eligible Parole

Date was set at June 28, 1989. He was not found suitable for parole until 2015, almost 27

years after that earliest possible parole date. In 2010, although the Board commissioner

noted that petitioner had had a “change-around,” dissociated himself from gangs and

been “disciplinary-free for a long time,” petitioner was denied parole based in large part

on his “terrible” institutional behavior, notably the incident underlying his 1982 offense,

in which petitioner stabbed a correctional officer, as well as numerous disciplinary issues

involving violence, substance abuse, weapons possession, and gang activity. In 2013, the

Board found petitioner suitable for release but this decision was reversed by the governor,

who discussed petitioner’s lengthy history of substance abuse, gang involvement and

18

violence and specifically noted the 1982 offense. Petitioner was denied parole by the

Board in 2014 for similar reasons, the commissioner describing the 1982 incident as an

“egregious act of violence” committed when petitioner was “no longer necessarily

impacted by the youthful offender factors”—section 3051 then applying to offenders

whose crimes were committed before age 18, as well as expressing concern about

petitioner continuing to minimize the life crime and retaining vestiges of gang culture

despite his “significant gains.” While the 1982 offense was not the only reason petitioner

was not found suitable for release sooner, it clearly played an important role, as it was

specifically discussed as a factor bearing on each of the parole denials.

We conclude that petitioner was entitled to release when his parole became

effective on November 2, 2015, notwithstanding the consecutive four-year term imposed

on his 1982 conviction.

Petitioner sought preliminary relief through a motion for release on parole pending

final determination of the proceedings in this court. We granted that motion on April 10,

2017, ordering respondent to release petitioner on parole, in accordance with the terms of

his parole grant and demands of due process, pending resolution of his petition in this

court. We now order that relief as the final decision of this court on the petition for writ

of habeas corpus.8

8

A superficially analogous situation is presented when the Governor reverses a

decision to grant parole and that reversal is subsequently overturned, reinstating the

Board’s decision. In that situation, where the inmate has remained in custody beyond a

release date subsequently determined to have been valid, “the remedy is not an order for

the inmate’s immediate release; rather, the court vacates the Governor’s reversal,

reinstates the Board’s grant of parole, and directs the Board to conduct its usual

proceedings for a release on parole. This allows the Board to account for any recent

developments reflecting on the inmate’s suitability for parole, and to rescind its grant if

appropriate. (In re Twinn (2010) 190 Cal.App.4th 447, 473–474; cf. [In re Prather

(2010) 50 Cal.4th 238,] 258.)” (In re Lira (2014) 58 Cal.4th 573, 582 (Lira); In re

Copley (2011) 196 Cal.App.4th 427, 436-437.) In that situation, however, the inmate’s

parole status remains uncertain throughout the proceedings before the Governor and then

the courts; the Board’s initial decision does not become final until the legal challenges

have concluded. In the present case, petitioner’s parole status with respect to his life

sentence was established as of November 2, 2015, when the Board’s decision granting

19

III.

Petitioner contends that he is entitled to have his period of parole supervision

reduced by the amount of time he has served since November 2, 2015, on his determinate

sentence for the 1982 offense. Petitioner will be required to serve a five-year period of

parole upon release from prison. (See In re Carabes (1983) 144 Cal.App.3d 927, 930,

fn. 1; § 3000.1.)9 “[C]ase law recognizes that time served in excess of the determinate

term must be credited against the prisoner’s parole period.” (In re Bush (2008) 161

Cal.App.4th 133, 141 (Bush).)

Respondent’s argument that petitioner is not entitled to this credit against his

parole period is based largely upon Tate, supra, 135 Cal.App.4th 756.10 As noted above,

him parole became final. The time he has spent in custody since then is due solely to the

determinate sentence imposed under section 1170.1, subdivision (c).

9

Under section 3000.1, subdivision (a), an inmate sentenced to a maximum life

term for second degree murder subject to parole for life, with discharge after five

continuous years on parole unless the Board, for good cause, retains the individual on

parole. (Lira, supra, 58 Cal.4th at p. 579, fn. 5.) Because his 1982 offense and

conviction predated the effective date of section 3000.1, however, petitioner is subject to

the previously applicable five-year parole supervision period. (Lira, at p. 579; In re

Carabes, supra, 144 Cal.App.3d at p. 930, & fn. 1.)

10

Respondent additionally cites Lira, supra, 58 Cal.4th at pages 581-582, and

Bush, supra, 161 Cal.App.4th at page 143, both of which stand for the proposition that an

inmate is not entitled to credit for time that is lawfully served. In Lira, the Governor

reversed the grant of parole but that reversal was overturned in court. (Lira, at p. 577.)

The inmate was not entitled to credit for the time served between the Governor’s

erroneous reversal and his eventual release because this period of incarceration was not

unlawful but rather a consequence of the time required for the Governor’s

constitutionally sanctioned independent review of parole suitability determinations. (Id.

at pp. 581-582.) Bush rejected the claim that an inmate serving an indeterminate life

sentence was entitled to credit against his parole period for the time he had served in

excess of the base term for his offense by the time he was found suitable for release: The

confinement was lawful, as an inmate is not entitled to release until he or she has both

served the base term and been found suitable for release. (Bush, at pp. 141-143.)

Reliance upon these cases reflects respondent’s view that petitioner was required to serve

the consecutive term imposed under section 1170.1, subdivision (c), after being found

suitable for parole. The cases offer no support for an argument that petitioner is not

20

Tate involved the principle that a consecutive term under section 1170.1, subdivision (c),

does not merge with or become part of the aggregate term imposed for offenses

committed outside of prison. (Tate, at p. 765.) The inmate in Tate was originally

incarcerated for a violent felony, which limited the accrual of worktime credit to 15

percent of his sentence. (Id. at pp. 758-759.) When he was subsequently sentenced to a

consecutive term for a nonviolent in-prison offense, the Department applied the 15

percent limitation to this sentence as well, rather than the usual rule of 50 percent credit

accrual. (Id. at p. 759.) Contrary to the Department’s view that the consecutive sentence

merged into a single aggregate term subject to the 15 percent limitation required for the

original sentence, Tate held that the sentence under section 1170.1, subdivision (c), was a

separate term that did not begin until the inmate had completed the original sentence.

(Tate, at p. 765.) Consequently, when the inmate began serving the consecutive term, he

was no longer serving time for a violent offense and therefore not subject to the 15

percent limitation. (Ibid.)

We have already rejected the premise of this argument, that section 1170.1,

subdivision (c), operates in the same manner in a section 3051 case as in the case of an

offender not entitled to the protections of section 3051. Because the parole provisions of

section 3051 supersede petitioner’s otherwise statutorily mandated sentences (Franklin,

supra, 63 Cal.4th at p. 261), the Tate court’s reasoning is inapplicable here.

Petitioner’s continued confinement to serve the consecutive sentence imposed

under section 1170.1, subdivision (c), was not lawful in the circumstances of this case,

and he is entitled to credit against his parole period.

DISPOSITION

Respondent is ordered to amend petitioner’s release date to November 2, 2015,

and to deduct from his parole period the days of incarceration served beyond that date.

entitled to credit if, as we have concluded, he should not have been required to serve the

consecutive term.

21

Our order filed on April 10, 2017, granting petitioner’s motion for release, ordered

respondent Warden of Ironwood State Prison to release petitioner on parole, in

accordance with the terms of his parole grant and demands of due process pending

resolution of his petition in this court. We now order that relief as the final decision of

this court on the petition for writ of habeas corpus.

Good cause appearing, this decision shall be final as to this court immediately.

(Cal. Rules of Court, Rule 8.387, subd. (b)(3)(A).)

_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

22

Trial Court: Marin County Superior Court

Trial Judge: Hon. James T. Chou

Attorneys for Petitioner: Law Office of Tracy Renee Lum

Tracy Renee Lum

Michael Satris

Attorneys for Respondent: Office of the Attorney General

Xavier Becerra

Attorney General of California

Phillip J. Lindsay

Senior Assistant Attorney General

Sara J. Romano

Supervising Deputy Attorney General

Jennifer G. Ross

Deputy Attorney General

23