# Lund v. Cal. Dept. of Corrections and Rehabilitation CA4/1

> California Court of Appeal · September 13, 2023

URL: https://www.frixlaw.com/law-library/cases/9839687

## Case

- **Court:** California Court of Appeal
- **Decided:** September 13, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9839687

## Opinion text

Filed 9/13/23 Lund v. Cal. Dept. of Corrections and Rehabilitation CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ERIC CURTIS LUND, D080589

Plaintiff and Appellant,

v. (Super. Ct. No.
37-2021-00042047-CU-CR-CTL )
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County,
Keri G. Katz, Judge. Affirmed.
Law Office of Susannah Mary Lund and Susannah M. Lund for
Plaintiff and Appellant.
Rob Bonta, Attorney General, Monica N. Anderson, Senior Assistant
Attorney General, Neah Huynh, Jamie M. Ganson and Oliver C. Wu, Deputy
Attorneys General for Defendants and Respondents.
Eric Curtis Lund, a former prison inmate, appeals from a judgment
entered after the trial court sustained without leave to amend a demurrer by
respondents California Department of Corrections and Rehabilitation
(CDCR) and A. Garcia, a CDCR employee, to Lund’s operative first amended
complaint for negligence, false imprisonment, state and federal constitutional
violations of due process and association rights, and injunctive relief. Lund

contends the court erroneously ruled (1) his Penal Code1 section 311.11,
subdivision (c)(1) conviction is a qualifying crime under section 3058.9; (2)
section 3058.9 applies to this case despite the fact he was not released from
prison under parole; and (3) section 3058.9, subdivision (b)(3)’s exception was
inapplicable. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We state the facts from the well-pleaded allegations of the operative
first amended complaint. (Zolly v. City of Oakland (2022) 13 Cal.5th 780,
786.)
In May 2019, a Solano County jury convicted Lund of possessing over
600 images of minors (including prepubescent minors) “personally engaging
in or simulating sexual conduct.” (§ 311.11, subd. (c)(1).) The court
sentenced Lund to the maximum term of five years in state prison (§ 311.11,
subd. (c)) and required him to register as a sex-offender for life (§§ 290-
290.024).
While in CDCR’s custody, Lund completed several college courses and
earned credits to advance his release date; however, the credits were not
timely entered into CDCR’s information technology system.

1 Undesignated statutory references are to the Penal Code.

2
On August 2, 2020, Lund submitted an administrative appeal, “asking

that his outstanding education and milestone credits2 be entered into the
CDCR system as soon as possible[,]” and that appeal was ultimately granted.
On August 12, 2020, CDCR notified the Butte County Probation
Department that Lund’s scheduled release date was November 10, 2020.
On August 26, 2020, after CDCR completed updating Lund’s credits, he
had accumulated more credits than he needed for his release. CDCR set his
release date for September 10, 2020, based on regulations stating CDCR may
not award an inmate credits that would advance his release date to less than
15 days from the date the credits are awarded. (Cal. Code Regs., tit. 15
(Regulations), § 3043 (c)(2).)
On September 8, 2020, CDCR changed Lund’s release date to comply

with section 3058.9,3 which requires CDCR to notify certain law enforcement

2 Regulations section 3043.3 explains that “[t]he award of Milestone
Completion Credit . . . requires the achievement of a distinct objective of
approved rehabilitative programs, including academic programs, social life
skills programs . . . or other approved programs with similar demonstrated
rehabilitative qualities.”

3
authorities 45 days before the release of certain inmates like Lund, based on
his specific conviction. Accordingly, on October 10, 2020, CDCR released
Lund to the Butte County Probation Department, which was responsible for
his post-release community supervision. (Pen. Code, § 3451; Regulations,

3 Section 3058.9 provides: “(a) Whenever any person confined to state
prison is serving a term for the conviction of child abuse pursuant to Section
273a, 273ab, 273d, or any sex offense identified in statute as being
perpetrated against a minor victim, or as ordered by any court, the Board of
Prison Terms, with respect to inmates sentenced pursuant to subdivision (b)
of Section 1168 or the Department of Corrections, with respect to inmates
sentenced pursuant to Section 1170, shall notify the sheriff or chief of police,
or both, and the district attorney, having jurisdiction over the community in
which the person was convicted and, in addition, the sheriff or chief of police,
or both, and the district attorney having jurisdiction over the community in
which the person is scheduled to be released on parole or rereleased following
a period of confinement pursuant to a parole revocation without a new
commitment. [¶] (b)(1) The notification shall be made by mail at least 45
days prior to the scheduled release date, except as provided in paragraph (3).
In all cases, the notification shall include the name of the person who is
scheduled to be released, whether or not the person is required to register
with local law enforcement, and the community in which the person will
reside. The notification shall specify the office within the Department of
Corrections with the authority to make final determination and adjustments
regarding parole location decisions. [¶] (2) Notwithstanding any other
provision of law, the Department of Corrections shall not restore credits nor
take any administrative action resulting in an inmate being placed in a
greater credit earning category that would result in notification being
provided less than 45 days prior to an inmate’s scheduled release date. [¶]
(3) When notification cannot be provided within the 45 days due to the
unanticipated release date change of an inmate as a result of an order from
the court, an action by the Board of Prison Terms, the granting of an
administrative appeal, or a finding of not guilty or dismissal of a disciplinary
action, that affects the sentence of the inmate, or due to a modification of the
department’s decision regarding the community into which the person is
scheduled to be released pursuant to paragraph (4), the department shall
provide notification as soon as practicable, but in no case less than 24 hours
after the final decision is made regarding where the parolee will be released.”

4
§ 3079.)
On September 10, 2020, Lund filed a CDCR form “requesting an
immediate re-evaluation of his release date,” but he received no response.
The next day he filed an “Inmate Appeal” requesting CDCR immediately re-
evaluate his release date, but he again received no response. On September
15, 2022, Lund requested from Garcia documentation and a written
explanation regarding his changed release date, but Garcia did not respond.
Lund’s First Amended Complaint
In his first amended complaint, Lund alleged causes of action for
negligence (first cause of action); false imprisonment (second cause of action);
and violations of his constitutional rights to due process (sixth cause of
action) and familial association (seventh and eighth causes of action) against
all defendants. He sued Garcia, who was “assigned as a Case Records
Analyst at the Richard J. Donovan Detention Center in San Diego,” where
Lund was incarcerated for some months alleging violations of 42 U.S.C.
section 1983 (third through fifth causes of action). In his ninth cause of
action, Lund sought “an injunction restraining CDCR from applying [section]
3058.9 to anyone not being released on parole, thereby preventing the illegal
expenditures and waste of tax dollars.”
Lund alleged he suffered harm from being over-detained by 30 days
because during the Covid-19 pandemic, he was an inmate over the age of 55
with documented but confidential security risks, and CDCR housed him in a
double cell with an inmate who was classified at a higher risk level.
Respondents’ Demurrer
Respondents demurred to Lund’s operative complaint, arguing it did
not allege facts sufficient to state the alleged causes of action. They
specifically claimed he misinterpreted section 3058.9, and CDCR did not

5
overdetain him. They also argued Lund’s first, second, sixth, seventh and
eighth causes of action were barred under the Government Claims Act’s
statute of limitation; and CDCR was immune from liability under
Government Code sections 844.6 and 845.8. They also argued Garcia was
entitled to qualified immunity from prosecution of the federal claims (third,
fourth and fifth causes of action), and statutory immunity under Government
Code sections 820.4, 820.2 and 845.8 as against Lund’s state law claims for
damages (first, second, sixth, seventh and eighth causes of action). Finally,
they argued Lund was not entitled to injunctive relief because he did not
plead a taxpayer claim for such relief under Code of Civil Procedure section
526, subdivision (a).
Respondents requested judicial notice of the abstract of judgment in the
underlying case and other documents in Lund’s federal litigation, including
the federal court’s grant of a voluntary dismissal.
Lund opposed the demurrer, arguing section 3058.9 applies to parolees
and not to him as he was released on community supervision; he was
convicted under section 311.11, which did not identify itself as a crime
perpetrated against a minor victim as required by section 3058.9; and
alternatively, the section 3058.9 subdivision (b)(3) exemption from the 45-day
requirement applied here. He further contended his state law claims were
timely, CDCR was not immune from the state law claims, and Garcia was not
entitled to qualified immunity or immunity under Government Code sections
820.4 and 820.2. Lund sought judicial notice of section 3058.9’s legislative
history, and the Static-99R Coding Rules (a risk assessment manual for
assessing sex offenders’ recidivism risk).

6
The Court’s Ruling
The court granted the parties’ requests for judicial notice, and
sustained the demurrer without leave to amend on all causes of action:
“[T]he plain meaning of [section] 3058.9 is that the 45-day notice requirement
to the sheriff, chief of police and district attorney ‘having jurisdiction over the
community in which the person was convicted’ applies to all forms of release,
which would include both parole and the ‘postrelease community supervision’
alleged in the first amended complaint. The court is not persuaded by
[Lund’s] reliance on use of the term ‘parole’ in the second phrase of
subdivision (a). Use of the prefatory phrase ‘and, in addition,’ demonstrates
that the second phrase applies only to the notice to be provided to the sheriff,
chief of police and district attorney ‘having jurisdiction over the community in
which the person is scheduled to be released on parole.’ Also, [section]
3058.9[, subdivision] (b)(2), which sets forth the 45-day notice requirement,
specifically uses the term ‘release date’ not parole. Nor is the court
persuaded by [Lund’s] proffered statutory analysis. An interpretation of
different requirements for the convicting community and the receiving
community is not absurd—especially when considering that [Lund] is
required to register as a sex offender with the law enforcement agency in his
place of residence. [Citation.] Use of the word ‘parole’ in other portions of
[section] 3058.9 does not require an interpretation that the notice required to
be provided to the convicting community only apply to parole.”
The court concluded section 3058.9, subdivision (b)(3)’s exception did
not apply: “[T]he allegations of the first amended complaint are not that the
alleged administrative appeal affected [Lund’s] sentence. There are no
allegations that [his] original sentence was altered. Rather, [his] allegations
are that the alleged administrative appeal and the credits allowed as a result

7
altered [his] release date. . . . Such circumstances do not support application
of the subdivision (b)[(3)] exception.”)
The court concluded: “As all of [Lund’s] claims are dependent on [his]
establishing that the 45-day notice requirement of [section] 3058.9 applies
only to persons released on parole, all of [his] claims fail. [Lund] fails to
proffer any facts to cure this pleading deficiency. Therefore, the court finds
[he] fails to demonstrate a reasonable probability the first amended
complaint can be amended to plead a basis for liability against [d]efendants
under any of the causes of action pled.” The court did not address
respondents’ arguments regarding their immunity from lawsuits.
DISCUSSION
A. Applicable Law
“A demurrer tests the legal sufficiency of the factual allegations in a
complaint. We independently review the sustaining of a demurrer and
determine de novo whether the complaint alleges facts sufficient to state a
cause of action or discloses a complete defense. [Citation.] We assume the
truth of the properly pleaded factual allegations, facts that reasonably can be
inferred from those expressly pleaded and matters of which judicial notice
has been taken. [Citation.] We construe the pleading in a reasonable
manner and read the allegations in context. [Citation.] We must affirm the
judgment if the sustaining of a general demurrer was proper on any of the
grounds stated in the demurrer, regardless of the trial court’s stated reasons.
[Citation.] [¶] It is an abuse of discretion to sustain a demurrer without
leave to amend if there is a reasonable probability that the defect can be
cured by amendment. [Citation.] The burden is on the plaintiff to
demonstrate how the complaint can be amended to state a valid cause of

8
action. [Citation.] The plaintiff can make that showing for the first time on
appeal.” (Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 225-226.)
On appeal, we “may affirm the judgment on any ground apparent from
the record, regardless of the grounds upon which the trial court sustained the
demurrer.” (Jones v. Whisenand (2017) 8 Cal.App.5th 543, 550.)
B. Lund Was Not Entitled to Be Released Prior to October 10, 2020
The implicit but essential premise for Lund’s claim is that he was
entitled to education credits against his sentence, which advanced his release
date to September 10, 2020, 15 days after his credits were updated on August
26, 2020. Educational credits are provided for in regulations promulgated by
CDCR. The award of credits is addressed generally in Regulations section

3043.4 During the relevant time period, subdivision (c)(2) of that section
included a “release date restriction” indicating that “[u]nder no circumstance
shall a determinately sentenced inmate be awarded credit . . . by the
department which advances his or her release to a date less than 15 calendar
days from the date the award . . . is entered into the department’s
information technology system . . . . ” But it goes on to specify that “[t]his
restriction shall instead be 45 calendar days for all inmates convicted of an
offense subject to the provisions found in subdivision (a) of section 3058.9 of
the Penal Code . . . .”
The crucial question in this case is whether Lund was subject to the 45-
day restriction in Regulations section 3043, subdivision (c)(2) rather than the
15-day restriction. That question, in turn, depends on whether Lund was
“convicted of an offense subject to the provisions found in subdivision (a) of
section 3058.9 of the Penal Code.” According to the People, CDCR’s initial

4 Specific types of credits are addressed in the sections that follow section
3043. As previously noted, this case involves milestone completion
(Regulations, § 3043.3) and educational merit (Regulations, § 3043.5) credits.
9
ruling on Lund’s administrative appeal, purporting to award educational
credits, amounted to a legal error because, by terms of the regulation, credits
should never have been granted. The proper interpretation of the applicable
statutes and regulations present questions of law that we review de novo in
deciding whether the demurrer to Lund’s first amended complaint was
properly sustained without leave to amend.
1. A conviction for violating section 311.11, subdivision (c)(1) constitutes a
“sex offense identified in statute as being perpetrated against a minor
victim” within the meaning of section 3058.9
Regulations section 3043 awards credits differently depending on the
offense of which the inmate was convicted. A special restriction applies if the
inmate was convicted of “an offense subject to the provisions found in
subdivision (a) of [Penal Code] section 3058.9.” That subdivision, in turn,
applies to “any person confined to state prison [who] is serving a term for the
conviction of child abuse pursuant to [Penal Code s]ection 273a, 273ab, 273d,
or any sex offense identified in statute as being perpetrated against a minor
victim.”
Because Lund’s conviction for violating section 311.11, subdivision
(c)(1) is not specifically enumerated, we first must decide whether Lund was
convicted of a “sex offense identified in statute as being perpetrated against a
minor victim.” Lund maintains he was not convicted of a qualifying sex
offense. He supports his argument by comparing section 311.11 to the
statutes specifically listed in section 3058.9, and by referring to the Static-

10
99R manual, which is used “to assess the risk imposed by adult males

required to register as sex offenders in California.”5
Section 311.11, subdivision (a), provides: “Every person who knowingly
possesses or controls any matter, representation of information, data, or
image, including, but not limited to, any film, filmstrip, photograph, negative,
slide, photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or computer-
generated equipment or any other computer-generated image that contains
or incorporates in any manner, any film or filmstrip, the production of which
involves the use of a person under 18 years of age, knowing that the matter
depicts a person under 18 years of age personally engaging in or simulating
sexual conduct, as defined in subdivision (d) of Section 311.4 is guilty of a
felony.”
Section 311.4, subdivision (d), provides: “ ‘[S]exual conduct’ means any
of the following, whether actual or simulated: sexual intercourse, oral
copulation, anal intercourse, anal oral copulation, masturbation, bestiality,
sexual sadism, sexual masochism, penetration of the vagina or rectum by any

5 Lund cites to the Static-99R, which states “Victims portrayed in child
pornography are not scored as victims for the purposes of Static-99R.” The
Static-99-R continues, “If the child pornography existed on the internet before
the offender came across it, the victims would not count, even though a live
child was abused at some point in the past. The difference is that this
offender has not directly participated in this abuse.” Based on the Static
99R description of “victims,” Lund contends: “The sole point here is that, in
terms of assessing the potential risk of harm that someone convicted of
possessing child pornography poses to another human being, the crime is not
viewed as one perpetrated against a minor ‘victim.’ This data-backed
understanding—taken from the precise risk assessment tool that the
Legislature itself has caused to be implemented in this state—is both
relevant and persuasive in determining what definition the Legislature
intended to supply to the term ‘perpetrated against a minor victim’ in
[s]ection 3058.9.”
11
object in a lewd or lascivious manner, exhibition of the genitals or pubic or
rectal area for the purpose of sexual stimulation of the viewer, any lewd or
lascivious sexual act as defined in Section 288, or excretory functions
performed in a lewd or lascivious manner, whether or not any of the above
conduct is performed alone or between members of the same or opposite sex
or between humans and animals. An act is simulated when it gives the
appearance of being sexual conduct.”
Lund was punished under section 311.11, subdivision (c)(1), which
specifies a five-year term for those persons who knowingly possess over 600
images of children “under 18 years of age personally engaging in or
simulating sexual conduct,” and of which at least 10 depict “a prepubescent
minor or a minor who has not attained 12 years of age.”
Although section 3058.9, subdivision (a), does not expressly identify
section 311.11 as a qualifying offense, it includes an illustrative list of
qualifying statutes and adds this catchall term to encompass other qualifying
statutes: “or any sex offense identified in statute as being perpetrated against
a minor victim.” The question we must resolve is whether section 311.11
qualifies as one of those additional statutes.
“Our goal in construing a statute is ‘to determine and give effect to the
intent of the enacting legislative body.’ [Citation.] ‘ “We first examine the
words themselves because the statutory language is generally the most
reliable indicator of legislative intent. [Citation.] The words of the statute
should be given their ordinary and usual meaning and should be construed in
their statutory context.” [Citation.] If the plain, commonsense meaning of a
statute’s words is unambiguous, the plain meaning controls.’ [Citation.] If,
however, the statute is susceptible to more than one interpretation, we ‘may
consider various extrinsic aids, including the purpose of the statute, the evils

12
to be remedied, the legislative history, public policy, and the statutory
scheme encompassing the statute.’ ” (Holland v. Assessment Appeals Bd. No.
1 (2014) 58 Cal.4th 482, 490.)
By its plain terms, section 311.11 criminalizes the possession of a series
of material that incorporate in any manner, any film or filmstrip, “the
production of which involves the use of a person under 18 years of age,
knowing that the matter depicts a person under 18 years of age personally
engaging in or simulating sexual conduct.” Further, section 311.11
incorporates by reference the definition of “sexual conduct” from section
311.4, subdivision (d), as set forth above. As a court has stated in
interpreting section 311.11, “[Although defendant] did not necessarily himself
prepare the images for which he was convicted, or have any direct contact
with the children who were their subjects, the Legislature was entitled to
classify those who possess and duplicate the offending images for the purpose
of their sexual stimulation as active participants—even driving forces—in the
perpetuation of child pornography and the exploitation of its victims. [¶]
Child pornography is ‘intrinsically related to the sexual abuse of children,’
because it constitutes ‘a permanent record of the children’s participation . . . .’
[Citation.] The state has a compelling interest in ‘ “safeguarding the physical
and psychological well-being of a minor,” ’ and in protecting minors from
sexual exploitation and abuse. [Citation.] ‘The prevention of sexual
exploitation and abuse of children constitutes a government objective of
surpassing importance.’ ” (Shoemaker v. Harris (2013) 214 Cal.App.4th 1210,
1230.) We therefore conclude that section 3058.9 applies to Lund’s conviction
under section 311.11 because he was convicted of possessing images of minors
under the age of 18 who were engaging in sexual conduct.

13
Our conclusion is bolstered by the reasoning in Shoemaker v. Harris,
supra, 214 Cal.App.4th at pp. 1230-1231, in which the court examined section
311.11 in the context of California’s mandatory sex-offender registration
requirement. (Id. at p. 1230.) As Shoemaker explained, “ The victims of the
exploitation that is the subject of sections 311.11 and 311.3 can be seen to
include not just the children whose images are actually depicted in it, and
therefore whose exploitation is perpetuated by its possession and duplication;
it also includes as its victims children in general. Children are the subject
matter and reason for the existence of child pornography (even when they are
not the actual subjects of the images involved in any particular case). They
are harmed by the perpetuation of the exploitation resulting from the
continuing possession and duplication of such pornography for the viewers’
sexual stimulation. Sections 311.11 and 311.3 seek to protect children from
such exploitation, which is identified as conduct leading to predatory
behavior.” (Id. at pp. 1230-31.) Further, the California Supreme Court
explained that child pornography, even mere possession of it, “ ‘harms and
debases the most defenseless of our citizens,’ ” (In re Grant (2014) 58 Cal.4th
469, 477) and the Legislature has determined “that whether the pornography
involves a child aged 11 or 17, its possession is proximately linked to the
sexual abuse of a child.” (Id. at pp. 477-478, italics added.)
Lund contends the “actus reus” of section 311.11 is “possession of
contraband, not abuse of a minor.” He distinguishes the statutes expressly
listed in section 3058.9 as involving “an actus rea of abuse against an
identifiable minor victim. In contrast, [s]ection 311.11 does not involve a
comparable actus rea.”
“Except for strict liability offenses, every crime has two components: (1)
an act or omission, sometimes called the actus reus; and (2) a necessary

14
mental state, sometimes called the mens rea.” (People v. McCoy (2001) 25
Cal.4th 1111, 1117.) Lund limits the actus reus required for a conviction
under section 311.11 to possession of contraband, but reads out of it the
statute’s specification of the subject matter the offender possesses, which is
materials representing a minor engaging in or simulating certain defined
“sexual conduct.” As stated above, the Legislature was entitled to conclude
that possession of such materials is a driving force in the perpetuation of
child pornography and the exploitation of its victims. (Shoemaker v. Harris,
supra, 214 Cal.App.4th at p. 1230.) We therefore conclude section 311.11’s
actus reus of possession of material depicting sexual conduct qualifies that
statute as a “sex offense identified in statute” perpetrated against a minor
victim within the meaning of section 3058.9.
In light of our resolution of this issue based on the plain language of
sections 3058.9 and 311.11, and without recourse to extrinsic interpretative
aids, we are unpersuaded by Lund’s contention, made with no reference to
authority, that the court “erred in finding the Static-99R coding rules to be
irrelevant to its determination of whether the Legislature views [s]ection
311.11 as a crime perpetrated against a minor ‘victim.’ ”
2. Because Lund was convicted of a qualifying sex offense, he was not entitled
to the award of any credits that would have resulted in his release prior to
October 10, 2020
Lund argues that even if he was convicted of a qualifying sex offense,
Penal Code section 3058.9 still does not apply because it only governs
inmates released on parole rather than those subject to post-release
community supervision (PRCS). In support he cites various cases that
distinguish the parole system from PRCS. (See, e.g., People v. Steward (2018)
20 Cal.App.5th 407, 418 [“PRCS is an alternative supervision system, distinct

15
from parole”]; accord, People v. Freeman (2021) 61 Cal.App.5th 126, 134.) But
regardless whether Penal Code section 3048.9 itself applies to PRCS inmates,
Lund ignores the fact that under the governing regulation—Regulations
section 3043—he was never entitled to the claimed credits because his
conviction made him subject to a 45-day rule apart from the applicability of
Penal Code section 3058.9. Since the claimed credits could not be “entered
into the Department’s information technology system” until August 26, 2020,
the regulation specifies he could not be awarded any credits that would
advance his release to a date earlier than October 10.
Lund suggests this interpretation misreads the regulation. He
contends that by referring to “inmates convicted of an offense subject to the
provisions found in subdivision (a) of section 3058.9 of the Penal Code,” the
45-day restriction in Regulations section 3043 meant to include only
prisoners released on parole and not those subject to PRCS. We do not think
this a reasonable reading of words of the regulation. Lund would construe
this language to focus on inmates subject to the provisions of Penal Code
section 3058.9, subdivision (a), violating the basic rule of grammar that
modifiers be placed next to the words they modify. The more natural and
logical meaning is that the phrase “subject to the provisions found in
subdivision (a) of section 3058.9 of the Penal Code” modifies offenses and not
inmates. Because the offense of which Lund was convicted falls within the
parameters defined by Penal Code section 3058.9, subdivision (a)—i.e., a sex
offense against a minor victim—he was not entitled to the award of any

16
credits that would set his release date less than 45 days after those credits

could have been recorded.6
We therefore conclude as a matter of law that Lund cannot state a
claim based on his entitlement to additional educational credits. As a result,
the trial court did not err in sustaining the demurrer to his first amended
complaint without leave to amend.
DISPOSITION
The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.

6 At oral argument, Lund’s counsel emphasized that CDCR actually
awarded the credits and then withdrew them. This is a distinction without a
difference. If, as we hold, Lund was never entitled to the award of credits
under the applicable regulation, CDCR’s action to correct its own mistake
was proper.
17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9839687. Public record. Not legal advice.