IN RE: Charles W. THOMPSON on Habeas Corpus.
The California Supreme Court has issued an order to show cause returnable before this court why this petition for a writ of habeas corpus should not be granted. Petitioner, Charles W. Thompson, is presently imprisoned at Soledad State Prison under judgment of conviction for second degree murder with firearm use. (Pen.Code,1 §§ 187, 190, and 12022.) He is serving a term of 16 years to life. He contends he has been unconstitutionally deprived of “one-for-one” work-time credits under section 2933. He argues that it violates equal protection of the laws to deny these credits to prisoners serving indeterminate sentences; and further, he has been impermissibly retroactively deprived of a vested right to liberty, because for a period of time the Department of Corrections actually awarded such credits to him, but then changed its practice on the basis of an Attorney General's opinion issued March 24, 1987, saying such credits are not available to persons in Thompson's situation. (70 Ops.Cal.Atty.Gen. 49 (1987).)
The facts are straightforward. In April 1984, Thompson was charged in San Bernardino County with murder enhanced by firearm use (§§ 187, 12022, subd. (b)), and on May 3, 1984, he pleaded guilty to second degree murder with firearm use and was sentenced under section 190 to a term of 15 years to life (plus a one-year enhancement). He entered state prison July 18, 1984. From that point on he was awarded worktime credits on a one-for-one basis under section 2933. (Pursuant to a Department of Corrections regulation, Cal.Code Regs., tit. 15, § 3043, subd. (c)(1).) However, on March 24, 1987, an opinion of the Attorney General stated that the law did not authorize prisoners serving life sentences to earn such credits; and on April 1, 1987, the Board of Prison Terms (Board) issued its Administrative Directive No. 87/4 stating section 2933 credits would no longer be granted in calculating the base terms served by life term prisoners. On March 2, 1988 the Department of Corrections (Corrections) amended its earlier regulation and agreed with Board. (Adm.Bull. No. 88/24.) 2
Originally, Thompson had been granted a parole consideration date in April 1992, reflecting application of one-for-one credits to his minimum 15–year base term and resulting in a base term of approximately eight years. As a result of Administrative Directive 87/4, however, that date was reset for December 1994, so that Thompson now cannot be considered for parole suitability until some 10 years after the crime was committed. The net result of the change is to extend by two years and eight months the time which must elapse before Board will consider whether Thompson is suitable for parole release. (That consideration will be undertaken pursuant to § 3046 and Cal.Code Regs., tit. 15, sections 2280 and 2281. No actual release date will be set until Board first finds Thompson suitable for parole, under the considerations detailed in the statute and regulations.)
It is important to bear in mind, in the discussion which follows, that whatever conduct credits Thompson may be entitled to are to be applied against the period of time which must pass before Board will consider if he is suitable for parole. Under the statute and regulations cited, Thompson's sentence of 15 years to life (disregarding the enhancement, which is determinate) remains an indeterminate sentence until he has been found parole-suitable. Only after a finding of parole suitability will Board fix a definite minimum term for Thompson and calculate a release date, and at that point the earned credits will reduce that term. (§§ 3041, 3046; Cal.Code Regs., tit. 15, §§ 2280, 2281, 2282, 2289, 2290.)
As originally enacted, the Determinate Sentencing Law (DSL) of 1976 provided in Article 2.5 of the Penal Code for behavioral conduct credits applicable to terms of imprisonment. Article 2.5 consisted of sections 2930 and 2931 which reduced a prison sentence up to one-third for good behavior and participation in prison programs, and section 2932 which provided for denial of credit for misconduct.
In 1982 the Legislature changed the credit system and provided greater opportunity for reduction of prison sentences. (Stats.1982, ch. 1234, §§ 1–8, pp. 4547–4554.) 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.” (70 Ops.Cal.Atty.Gen., supra, at p. 49.) New section 2933 was added effective January 1, 1983, allowing “ ‘worktime credits' ” for performance in work assignments and educational programs up to a maximum of one day reduction in term for each day of performance (“one-for-one” credits). (Ibid.)
But section 2933 expressly applies only to persons sentenced under section 1170. The statute reads in pertinent part: “(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․ For every six months of full-time performance in a credit qualifying program, ․ a prisoner shall be awarded worktime credit reductions from his or her term of confinement of six months․ [¶] (b) Worktime credit is a privilege, not a right․”
Thompson is not a person sentenced under section 1170. According to section 1168, which provides generally how sentences are to be imposed, a person sentenced under section 1170 is one convicted of an offense for which the specified sentence is one of three time periods of imprisonment in state prison, or one for which a single term of imprisonment is specified. (§ 1168, subd. (a).) Persons not so sentenced, but who are imprisoned in the state prison, are considered to be imprisoned under the indeterminate sentence law (ISL) rather than under the DSL sentencing provision which is section 1170. (§ 1168, subd. (b)) The cases make very clear that a life sentence, such as that imposed under section 190, is not a determinate term. (In re Monigold (1983) 139 Cal.App.3d 485, 490, 188 Cal.Rptr. 698; People v. Garcia (1981) 115 Cal.App.3d 85, 113, fn. 19, 171 Cal.Rptr. 169; In re Jeanice D. (1980) 28 Cal.3d 210, 213, 168 Cal.Rptr. 455, 617 P.2d 1087.) As pointed out in People v. Garcia, supra, it is difficult to discern how a life sentence can be a determinate term. “[A] life sentence with possibility of parole operates in a classically indeterminate manner.” (Ibid.) Similarly, the decision in In re Jeanice D., supra, rejected the argument of the Attorney General made there that a sentence of 25 years to life under section 190 is a determinate life sentence (which would therefore have rendered the minor defendant ineligible for CYA commitment). (Ibid.) In re Monigold, supra, carefully analyzes determinate terms, indeterminate terms, and enhancements, and specifically states that a life sentence under section 190 is an indeterminate term under section 1168, subdivision (b). (Ibid., citing In re Quinn (1945) 25 Cal.2d 799, 801, 154 P.2d 875, for the general proposition that a sentence of 15 years to life is an indeterminate sentence.)
Since Thompson's sentence is indeterminate, section 2933 does not apply to him. (As Monigold points out, the determinate portion of his term—the enhancement—is eligible for section 2933 credits. We do not understand the People to argue otherwise, and this aspect of his sentence calculation is not in issue here.) Nor do former sections 2930 and 2931 apply to him, since those provisions do not apply to persons whose crimes were committed after January 1, 1983.
At first blush it would seem to appear that Thompson is not statutorily entitled to any credits at all.
No one, however, has taken that position. As previously described, originally Corrections allowed the one-for-one credits of section 2933 to persons in Thompson's position. But some three years later, in response to the Attorney General's opinion cited above, Corrections reversed its position and recalculated Thompson's credits retroactively, reducing them from one-half to one-third and thereby postponing his parole suitability consideration date from 1992 to 1994.
The argument in the opinion of the Attorney General was that at the time section 190, an initiative measure, was adopted on November 7, 1978, the allowable credits were the one-third credits of sections 2930 and 2931 then in effect. The ballot initiative arguments for the measure hypothesized that prisoners sentenced under the provision would receive the one-third credits. The Attorney General concluded that section 190 incorporates the statutes as they then existed, and that the appropriate credits are therefore the one-third credits of former law.
Thompson complains (1) the policy is constitutionally infirm in denying equal protection of the laws to persons serving indeterminate sentences, as compared with those serving determinate sentences, and (2) in any case he may not be retroactively deprived of that which was previously awarded.
The first inquiry in analyzing the equal protection question, in Justice Kaus's words, “is whether, in assessing petitioner's equal protection claim, we go first class or tourist—whether we apply the ‘strict scrutiny’ standard or the traditional ‘rationality’ test.” (Alex T. v. Superior Court (1977) 72 Cal.App.3d 24, 28, 140 Cal.Rptr. 17.) The question which class to travel, in the context of disparate entitlement to worktime credits, is “far from ‘well settled’ ” (In re Bender (1983), 149 Cal.App.3d 380, 387 196 Cal.Rptr. 801); but although the decisions differ as to the proper standard, it seems that via first class or tourist they have arrived at the same destination, which is denial of the equal protection claim. (Compare In re Bender, supra, applying the rational basis test and concluding that persons convicted before and after January 1, 1983, may be treated differently with regard to available worktime credits, with People v. Poole (1985) 168 Cal.App.3d 516, 525, 214 Cal.Rptr. 502, applying the strict scrutiny standard but permitting different treatment of presentence detainees and sentenced prisoners.)
Section 2933, subdivision (b), specifically states that worktime credit is a privilege, not a right. (p. 516, ante.) The decision in People v. Rosaia (1984) 157 Cal.App.3d 832, 847, 203 Cal.Rptr. 856, points this language out in agreeing with Bender, supra, 149 Cal.App.3d 380, 196 Cal.Rptr. 801, that “section 2933, expressly conferring a privilege, not a right, upon prisoners sentenced to state prison and clearly intended by the Legislature to be amelioratory, does not effect a fundamental deprivation of liberty requiring a strict-scrutiny analysis.” We agree.
In In re Monigold, supra, 139 Cal.App.3d 485, 490–491, 188 Cal.Rptr. 698, the court, considering a prisoner who committed his offense before January 1, 1983, (and to whom sections 2930 and 2931 therefore applied) explained the different methods of calculating credits for prison conduct under determinate and indeterminate sentences. The court found no invalidity in the perceived distinctions. That decision pointed out under then applicable provisions, persons with determinate sentences earned conduct credits on a one-third basis under section 2931, and those receiving indeterminate sentences received credits under regulations of Board (Cal.Code Regs. tit. 15, §§ 2280 et seq.). Those provisions differed somewhat. The statute provided for a one-third reduction in term, allocated the credits between good behavior and participation on a three-to-one basis, and provided that a failure to participate in programs could result in a maximum 30 days credit lost for each such failure to participate. (§ 2931.) On the other hand, under the regulations, the “suggested” amount of credit was four months for each year served, and Board could grant more or less credit depending on performance and other factors. (Cal.Code Regs., tit. 15, § 2290.) The Monigold court found no constitutional violation in these differences, pointing out that “the Legislature intended that determinate terms be reduced in a determinate manner by an award of conduct credit, and that indeterminate terms be effected in an indeterminate manner through parole consideration of in-prison conduct.” (In re Monigold, supra, 139 Cal.App.3d at p. 493, 188 Cal.Rptr. 698.) A federal district court similarly perceived no equal-protection problem in different methods of providing credit for prison conduct of DSL and ISL prisoners. (McQuillion v. Rushen (N.D.Cal.1986) 639 F.Supp. 420, 424.) The important fact emphasized in Monigold was that “no prisoner entitled to ultimate release is to be denied consideration of his prison conduct.” (In re Monigold, supra, 139 Cal.App.3d at p. 491, 188 Cal.Rptr. 698)
Persons must be similarly situated with respect to the purpose of a law to be entitled to identical treatment. (See People v. Rosaia, supra, 157 Cal.App.3d 832, 846, 203 Cal.Rptr. 856.) It is apparent to us, as it was to the courts in Monigold and McQuillion, that persons serving determinate and indeterminate terms are not similarly situated with respect to the purpose of the law governing conduct credits. Not only, in general, are indeterminate terms legislatively assigned to the more dangerous or blameworthy offenses, but also, the very nature of an indeterminate sentence permits no precise prospective calculation of its maximum length. Board, in determining an appropriate release date, may take into account a number of factors, including but not limited to conduct in prison. Unlike a DSL prisoner, who has an immediately assigned release date, an ISL prisoner is given a prospective date when his parole suitability will be considered. (§ 3041, and associated regulations cited ante.) Until he passes that hurdle and is deemed suitable for parole, he has no definite term to serve. It follows that although both prisoners have a stake in earning maximum amounts of participation credits, the credits are necessarily more immediately meaningful to the DSL than to the ISL prisoner. Credits determine the release date of a DSL prisoner more directly and more certainly than they affect an indeterminate sentence. The more attenuated interest of an ISL prisoner in the quantity of earned credits is one of the differences justifying disparate treatment. This is not to say that he has no stake in such credits; indeed the credits are afforded all prisoners, as a policy matter, in order to motivate constructive behavior and foster prison discipline and rehabilitation. (See In re Bender, supra, 149 Cal.App.3d at p. 389, 196 Cal.Rptr. 801.) Nevertheless it remains plain that differences in the way these credits are calculated cannot be said to produce unconstitutionally disparate sentence lengths, in view of the fundamental qualitative differences between determinate and indeterminate terms.
We conclude that Thompson's equal-protection challenge is without merit; whether he goes first class or tourist, he rides in a different coach from his DSL fellow traveler.
Next we must examine the basis for the Attorney General's conclusion that the law provides one-third rather than one-for-one credits. As stated, section 2933 does not apply to ISL prisoners. Technically, no statute presently in effect actually provides worktime credits for post–1983 ISL inmates. But section 190 under which Thompson was sentenced, as it then read, specifically stated that conduct credits are available to persons sentenced thereunder: “The provisions of Article 2.5 (commencing with § 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.” 3
Section 190 was part of a 1978 initiative measure, the Briggs initiative, analyzed at length in the Attorney General's opinion, supra. The review of the measure by the legislative analyst which appeared in the ballot pamphlet, in explaining the effect of the proposed initiative on minimum prison confinement, gave hypothetical examples indicating a maximum one-third reduction in those terms. (See 70 Ops.Cal.Atty.Gen., supra, at p. 55.) Those examples were based on then effective sections 2930 and 2931.
As the Attorney General persuasively argues, the voters must have had these examples in mind when they enacted section 190. If the reference in section 190 to “Article 2.5” is interpreted to refer to the statutory provisions as they change from time to time, rather than to the law actually in effect at the time of the election, the voters' presumed intent to provide conduct credits on a one-third basis is disregarded.
The opinion of the Attorney General, supra, at pp. 53–55, discusses in great detail the applicable rules of construction. A specific reference to existing statutes incorporates the measures as they then exist, without encompassing subsequent amendment or repeal; whereas a general reference to a body of law takes that law not only in contemporary form but also as it may change from time to time. (See Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58–59, 195 P.2d 1; Rancho Santa Anita v. City of Arcadia (1942) 20 Cal.2d 319, 321–322, 125 P.2d 475.) Relying on the following statement from the Rancho Santa Anita case, the Attorney General concluded that section 190 incorporates the provisions of Article 2.5 (§§ 2930–2932) as they 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.” (70 Ops.Cal. Atty.Gen., supra, at p. 54, emphasis added.) Since section 190 specifically refers to Article 2.5, it incorporates those specific provisions, without later changes. Not only is this interpretation of section 190 in accordance with the precedent, it best effects the voters' intentions. It is a sound construction and we accept it.4 Accordingly, we hold that Thompson's entitlement is to one-third credits under the statutes as they existed in 1978.
Thompson contends that the statute (section 190) is ambiguous and that he is therefore entitled to the most favorable construction. That argument is unpersuasive. The intent of the voters both in 1978 and presently was unambiguously directed to reducing, not extending, available credits for convicted murderers. Nor is the 1978 statutory incorporation of Article 2.5 ambiguous; under the precedent we have cited that incorporation is of the then existing statutes. A defendant's entitlement to the benefit of any reasonable doubt is not an entitlement to a statutory interpretation contrary to plain legislative intent. (See People v. Anderson (1987) 43 Cal.3d 1104, 1145–1146, 240 Cal.Rptr. 585, 742 P.2d 1306.)
Thompson argues also that the legislative, voter-approved changes in section 190, as well as a legislative amendment to section 2933 immediately before the 1988 election, change the above result. As stated in footnote 3, ante, the voters approved a legislative amendment making worktime credits inapplicable to persons convicted of second degree murder of a peace officer. Additionally, immediately before the election, the Legislature amended section 2933 by adding subdivision (e) which provides that any person sentenced to prison under section 190, subdivision (a)—i.e., any person guilty of first or second degree murder—is eligible only for behavior credits and not for worktime credits.5 Neither of these changes directly affects Thompson; he did not kill a peace officer, and any withdrawal of credits for persons convicted of first or second degree murder probably cannot be applied retroactively. But he argues that because Proposition 67 incorporated by reference Article 2.5 as it existed in 1987, the measure requires awarding worktime credits to Thompson.
Thompson reaches this result by adopting the Attorney General's statement that the general reference to Article 2.5 incorporated then existing law. Proposition 67 incorporates that article in two different places; therefore, he concludes, the effect is to alter the 1978 incorporation by updating it so that the present law is now drawn into section 190. That has the effect, he further argues, of providing worktime credits to Thompson because section 2933 in Article 2.5, as discussed above, provides full one-to-one worktime credits for all determinate prisoners. To achieve this result he must also, and does, argue that the legislative amendment of section 2933 just before the election is invalid; otherwise the proposition would be incorporating a statute which withdraws worktime credits for all persons convicted of first and second degree murder.
Thompson's argument is flawed for two reasons. First, as discussed at length above, technical incorporation of section 2933 avails him nothing because the language of that section does not apply to ISL prisoners such as Thompson. Any “reincorporation” of the provision (with or without new subdivision (e)) does not change that fact. The issue is what scheme of credits the voters intended to provide by way of section 190. The intent back in 1978 is fairly clear; we turn to the effect of the 1988 election and to the second of Thompson's arguments, which does even more violence to the voters' intent than does his interpretation of the 1978 Briggs initiative as allowing one for one credits. The voters in enacting Proposition 67 intended to deny worktime credits to persons who kill peace officers. No ballot argument and no evidenced intent sought to ameliorate the lot of other convicted murderers by increasing their credit allotments. It is difficult to understand how an amendment of section 190 which dealt only with peace officer murderers and which spoke only of removal of credits has somehow authorized a change in the way the Briggs initiative provides credits for ISL prisoners such as Thompson. There is no support for such an argument; it would strain beyond belief the intent of the Legislature and the voters reflected in Proposition 67.
Thompson also makes an argument that the amendment of section 2933 on the eve of the election is invalid. That issue need not be presently decided, since the People have not taken the position that the amendment applies to Thompson.
Finally we examine the argument that Thompson's credits cannot be retroactively deleted. In no sense can Thompson's credits be considered “vested.” As stated above, they had no necessary effect on the actual term of confinement, and also such credits could be rescinded in the event of prison misconduct, as set forth in the regulations. In the words of the California Supreme Court, “[a] prison inmate has no vested right in his prospective liberty on a parole release date.” (In re Powell (1988) 45 Cal.3d 894, 903, 248 Cal.Rptr. 431, 755 P.2d 881.) Rescission of a definite parole date may occur, inter alia, for “fundamental errors ․ resulting in the improvident granting of a parole date.” (Id. at p. 902, 248 Cal.Rptr. 431, 755 P.2d 881.) It follows that tentative assignment of behavioral credits may similarly be retracted.
Thompson argues, however, that he would not have participated in work programs had he known that he would earn credits only on a one-third rather than one-half basis. Although common sense would suggest that a one-third reduction is better than none, and although in his originally filed pro se petition for habeas corpus Thompson did not say that he would not have participated in a work program except if one-for-one credits were available, now for the first time in reply to the People's return, counsel for Thompson states that if Thompson had known credits of only one-third were applicable, he would not have participated full time in a work program and would instead have “pursued his long term goal of becoming an attorney by enrolling in college courses.” Also, he would have spent his time in the law library learning law and pursuing his federal writ case challenging his guilty plea. These allegations are not sworn to by Thompson.
This is scant evidence of detrimental reliance. As Justice Scoville recently observed (in dissent), under section 2700, all able-bodied prisoners are required to work. (In re Monigold, supra, 205 Cal.App.3d 1224, 253 Cal.Rptr. 120.) Further, with respect to the disappointment of Thompson's expectations, we are constrained to point out that an incorrect prison sentence may be corrected at any time, provided, of course, that the correction goes to an administrative or judicial error and does not constitute (1) a penalty for exercise of rights or (2) a judicial redetermination. (See generally People v. Serrato (1973) 9 Cal.3d 753, 763, 109 Cal.Rptr. 65, 512 P.2d 289; People v. Benton (1979) 100 Cal.App.3d 92, 102, 161 Cal.Rptr. 12; Wilson v. Superior Court (1980) 108 Cal.App.3d 816, 818–819, 166 Cal.Rptr. 795.) By that same principle we perceive no reason why the Department of Corrections cannot correct an award of credits which was not authorized under the statutes. As the People point out, the original regulation authorizing full credits was an incorrect interpretation of the Briggs Initiative and as such was unauthorized by law and void. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 205, 132 Cal.Rptr. 377, 553 P.2d 537; California Welfare Rights Organization v. Carleson (1971) 4 Cal.3d 445, 455, 93 Cal.Rptr. 758, 482 P.2d 670.)
Further, what Corrections has given it can take away, and what it has taken away it can restore, under the broad discretion conferred by the regulations. At this point Thompson cannot claim with certainty that he will not ultimately be awarded one for one credits (or less, or more, as the regulation [Cal.Code Regs., tit. 15, § 2290] authorizes). He cannot say, like his DSL brother, that his term would have been x years, had not Corrections removed y credits. His term, by legislative fiat, is still indeterminate, and so also is the assignment of credits indefinite, as the first Monigold court recognized, until the release date be finally fixed.
We also point out (again agreeing with Justice Scoville in dissent, in In re Monigold, supra ), that were we to permit unauthorized credits to be awarded we would violate the strong public policy, expressed by both the Legislature and by initiative measure, to distinguish prisoners serving indeterminate terms from those serving determinate terms by punishing the former, more serious offenders more severely; by regarding punishment of such prisoners as a primary goal and rehabilitation as a secondary goal; and by withholding from such offenders any promise of release after a determinate term, instead requiring them to demonstrate suitability for parole release. (See dissent of J. Scoville, supra, in In re Monigold, supra; see also People v. Reynolds (1981) 116 Cal.App.3d, 141, 147, 171 Cal.Rptr. 461 [the concept of conduct credits makes no sense when there is no fixed term from which to subtract such credits.].) We agree with Justice Scoville that estoppel against the People in this situation would be inappropriate, given the strong public interest behind indeterminate terms, as compared with the life termer's supposed loss of morale on account of the retroactive credit reduction.
We conclude that good cause has been shown why a writ of habeas corpus should not issue. The habeas corpus petition is denied.
FN1. All further statutory references are to the Penal Code.. FN1. All further statutory references are to the Penal Code.
2. An interagency conflict developed between the California Office of Administrative Law (OAL) and Board as to whether Board had complied with requirements of the Administrative Procedure Act when it promulgated Administrative Directive No. 87/4. OAL challenged that directive as an “underground regulation.” OAL has not yet determined whether Corrections' later promulgation of Administrative Bulletin No. 88/24 is similarly an unenforceable underground regulation. This procedural dispute is provided for background only and does not affect the outcome of this matter, since we will hold that Board could not grant one for one credits to Thompson regardless of the technical status of its regulations granting credit.
3. The matter is additionally muddied because the voters have further modified section 190 by passing Proposition 67 in the June 1988 primary election, thereby approving a legislative change in section 190 (which was originally an initiative measure and requires voter approval for modification). That change makes Article 2.5 inapplicable to 25–year terms for second degree murder of a peace officer. But this amendment does not directly affect Thompson, except insofar as he argues, see text, infra, that the reenactment of the statute changes the manner in which it incorporates by reference the law of behavior and work credits.
4. This conclusion agrees with the majority opinion in In re Monigold (1988), 205 Cal.App.3d 1224, 253 Cal.Rptr. 120. However, we part company with the Monigold majority on the estoppel point, infra.
5. The precise language of the amendment is “Any person sentenced to a term in the state prison under subdivision (a) of Section 190 shall be eligible only for credit pursuant to subdivisions (a), (b) and (c) of Section 2931.” (§ 2933, subd. (e), added by Stats. 1988, ch. 121, § 1, No. 4 West's Cal.Legis.Service, p. 410.)
BRAUER, Associate Justice.
AGLIANO, P.J., and CAPACCIOLI, J., concur.