IN RE: Kwang Heun BAEK

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Court of Appeal, Fifth District, California.

IN RE: Kwang Heun BAEK, on Habeas Corpus.

No. F010632.

Decided: September 27, 1989

Klein and Crain, Rowan K. Klein, and Richard Lennon, under appointment by the Court of Appeal, Los Angeles, for petitioner. John K. Van de Kamp, Atty. Gen., and Richard Thomson, Deputy Atty. Gen., Sacramento, for respondent.

OPINION

INTRODUCTION

We consider whether an inmate convicted of second degree murder and sentenced to a term of 15 years to life under Penal Code section 190 1 is entitled to receive one-for-one “worktime” credits under section 2933 and, if not, whether the Board of Prison Terms (Board) and Department of Corrections (Department) are equitably estopped to deny the inmate those credits earned prior to issuance of the Board's directive 87/4 on April 1, 1987.   We conclude petitioner is ineligible for the credits and that the Board and Department are not equitably estopped.

BACKGROUND AND FACTS

On November 7, 1978, the “Briggs Initiative” (Proposition 7) was approved by over 71 percent of the voters.   It amended the provisions of section 190 to substantially increase the penalties for first and second degree murder.   Prior to its enactment, second degree murder was punishable by a determinate term of five, six or seven years in state prison.   The initiative increased the penalty to an indeterminate term of 15 years to life.

The initiative also provided for good conduct credits to reduce prison terms and minimum eligible parole dates (MEPD) for first and second degree murder.   It provided in pertinent part:

“The provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code shall apply to reduce any minimum term of 25 or 15 years in a state prison imposed pursuant to this section, but such person shall not otherwise be released on parole prior to such time.”

When the Briggs Initiative was enacted, article 2.5 consisted of sections 2930, 2931, and 2932.  (In re Oluwa (1989) 207 Cal.App.3d 439, 442, 255 Cal.Rptr. 35.)   Section 2931 provided that a prison term could be reduced one-third by earning maximum good conduct credits.   The term is reduced one day for every two days served with good conduct.   The legislative analysis of the initiative contained in the ballot pamphlet was consistent with this one-third reduction:

“[I]ndividuals convicted of first degree murder and sentenced to life imprisonment shall serve a minimum of 25 years, less whatever credit for good behavior they have earned, before they can be eligible for parole.   Accordingly anyone sentenced to life imprisonment would have to serve at least 16 years and eight months.   The penalty for second degree murder would be increased to 15 years to life imprisonment.   A person sentenced to 15 years would have to serve at least 10 years before becoming eligible for parole.”  (Ballot Pamp., Analysis of Proposition 7 by Legislative Analyst, Gen. Elec. (Nov. 7, 1978), p. 32.)

On August 18, 1982, petitioner was sentenced by the Los Angeles Superior Court to a prison term of 15 years to life after having been convicted by guilty plea of second degree murder.

In 1982, the Legislature enacted sections 2933 and 2934, which became effective January 1, 1983.   They were incorporated within article 2.5 of the Penal Code.   Section 2933 permits prisoners to earn one-for-one worktime credits.   For every day of credit earned, the term is reduced one day.   Section 2934 provides that prisoners eligible for section 2931 good conduct credits may waive them in favor of section 2933 worktime credits.

The Department issued a directive interpreting sections 2933 and 2934 and the acquisition of section 2933 credits.   The pertinent part of the directive stated that prisoners serving indeterminate terms of 15 years to life could waive their right to section 2931 good conduct credits in favor of section 2933 worktime credits.   The credits are applied toward calculating the prisoner's minimum eligible parole date.

On July 14, 1983, petitioner and the Department executed a document entitled “Time Credit Waiver (PC § 2934)” under which petitioner waived his right to section 2931 good conduct credits in exchange for the right to earn section 2933 worktime credits.   This was clearly in petitioner's best interest because an inmate sentenced to 15 years to life on a second degree murder conviction could obtain a MEPD in seven and one-half years through section 2933 credits, but not until ten years through section 2931 credits.

On March 24, 1987, the Attorney General issued an opinion concluding that inmates serving indeterminate sentences for first or second degree murder under section 190 are ineligible to receive section 2933 worktime credits and are limited to good conduct credits under section 2931.  (Eligibility of State Prisoners To Receive Worktime Credits, 70 Ops.Cal.Atty.Gen. 49 (1987).)   The opinion did not state whether its ruling was retroactive, or if ineligible prisoners could retain section 2933 worktime credits previously accumulated.

On April 1, 1987, the Board issued directive 87/4 ordering rescission of section 2933 worktime credits to prisoners sentenced under section 190.   On May 27, 1987, the Department issued a similar memorandum adopting a procedure to recalculate such prisoners' MEPD through use of the section 2931 good conduct credits in lieu of section 2933 worktime credits.   The Board's and Department's actions were based on the Attorney General's opinion.

On May 13, 1988, petitioner filed a petition for writ of habeas corpus alleging that he is eligible for section 2933 worktime credits and his MEPD should be calculated accordingly.   Alternatively, petitioner contends the Board and Department are equitably estopped to deny him the section 2933 worktime credits earned before Board directive 87/4 was issued.

On July 5, 1989, this court issued an order to show cause.

DISCUSSION

I.IS PETITIONER ELIGIBLE TO RECEIVE SECTION 2933 WORKTIME CREDITS?

 Petitioner contends that he is entitled to earn section 2933 worktime credits toward calculation of an early MEPD.   He argues that section 190 refers to the term reduction provisions of article 2.5 of the Penal Code and that sections 2933 and 2934 were incorporated into that article effective January 1, 1983.

In 1982, the Legislature substantially revised the system of credits to reduce prison terms.   Sections 2930 and 2931 were amended to limit the use of good conduct credits to inmates whose crimes were committed prior to January 1, 1983.   Section 2933 was added to provide one-for-one worktime credits.  (70 Ops.Cal.Atty.Gen. 49 (1987).)

Section 2933 provides in pertinent part:

“(a) It is the intent of the Legislature that persons convicted of a 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․”  (Emphasis added.)

Section 1170 is the determinate sentencing law.   Section 2933 expressly limits its applicability of providing worktime credits to prisoners serving determinate sentences under section 1170.  (In re Monigold (1988) 205 Cal.App.3d 1224, 1227, 253 Cal.Rptr. 120.)   Petitioner is serving an indeterminate sentence of 15 years to life and is not eligible for the worktime credits provided by the statute.  (Ibid.)

Thus, the express language of section 2933 renders petitioner ineligible for such credits.   There are, however, additional reasons why petitioner is ineligible to receive section 2933 credits:  (1) the interpretation of the specific reference to article 2.5 in the Briggs Initiative, and (2) the requirement that initiatives may only be amended with the approval of the electorate.

Section 190 refers to the provisions of article 2.5 of the Penal Code to control the reduction of sentences.   When sections 2933 and 2934 were enacted by the Legislature, they were incorporated into article 2.5.  However, this does not mean that section 2933 was also incorporated into section 190.  “ ‘It is a well established principle of statutory law that, where a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified, ․ [Citations.]’ ”  (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58–59, 195 P.2d 1.)   When the reference is general instead of specific, “ ‘such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time, and ․ as they may be subjected to elimination altogether by repeal.  [Citations.]’ ”  (Id. at p. 59, 195 P.2d 1.)

In Palermo, the court interpreted a reference in the California Land Act to “ ‘ “any treaty now existing between the government of the United States and the nation or country of which such alien is a citizen or subject.” ’ ”   (Ibid.)  The court held that the reference was specific rather than general.  (Id. at pp. 59–60, 195 P.2d 1.)

In Rancho Santa Anita v. City of Arcadia (1942) 20 Cal.2d 319, 321–322, 125 P.2d 475, the city enacted an ordinance in 1913 regarding revenue and taxation, which referred to title IX of the Political Code.   The court held that this was a specific reference to a body of laws, even though title IX contained 11 chapters and 200 sections at the time of the ordinance.  (In re Oluwa, supra, 207 Cal.App.3d 439, 445, 255 Cal.Rptr. 35.)

In the instant case, the 1978 initiative amendment to section 190 refers to the term reduction provisions of “Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code.”   At the time, article 2.5 contained only sections 2930, 2931 and 2932.  (In re Oluwa, supra, 207 Cal.App.3d at p. 442, 255 Cal.Rptr. 35.)   The reference to article 2.5 was a specific reference to a particular body of laws, and section 190 incorporated the provisions of that article as they existed at the time of its enactment by the electorate in 1978, and not as subsequently modified in 1982.  (Palermo v. Stockton Theatres, Inc., supra, 32 Cal.2d 53, 59, 195 P.2d 1;  In re Oluwa, supra, 207 Cal.App.3d 439, 445, 255 Cal.Rptr. 35.)

Our conclusion is also supported by article II, section 10, subdivision (c) of the California Constitution, which provides that a statute enacted by the electorate as an initiative measure may be changed only with the approval of the electorate unless the measure itself permits amendment or repeal without voter approval.   The effect of the Briggs Initiative was to increase the sentences and minimum parole dates for first and second degree murderers.   The Briggs Initiative (Proposition 7) “did not allow such amendment or repeal without voter approval.   Therefore, legislative change of the provisions enacted by Proposition 7 requires voter approval.”  (In re Oluwa, supra, 207 Cal.App.3d 439, 446, 255 Cal.Rptr. 35.)   Sections 2933 and 2934 were simply legislative enactments without voter approval.   They were constitutionally incapable of amending or repealing the amendments to section 190 enacted by the electorate in the form of the Briggs Initiative in 1978.

We agree with the Attorney General that petitioner and other inmates serving indeterminate terms of 15 years to life for second degree murder are statutorily ineligible to receive section 2933 worktime credits.

II.

ARE THE BOARD AND DEPARTMENT EQUITABLY ESTOPPED FROM DENYING PETITIONER SECTION 2933 WORKTIME CREDITS EARNED BEFORE DIRECTIVE 87/4 WAS ISSUED?

Petitioner contends that even if he is not eligible for section 2933 worktime credits, the Board and Department are equitably estopped from denying him the credits accumulated between the dates the time credit waiver was executed and the Board issued directive 87/4.

“The doctrine of equitable estoppel is founded on concepts of equity and fair dealing.   It provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment.   The elements of the doctrine are that (1) the party to be estopped must be apprised of the facts;  (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended;  (3) the other party must be ignorant of the true state of facts;  and (4) he must rely upon the conduct to his injury.  [Citation.]”  (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725, 125 Cal.Rptr. 896, 543 P.2d 264;  El Camino Community College Dist. v. Superior Court (1985) 173 Cal.App.3d 606, 613, 219 Cal.Rptr. 236.)

It is the burden of the party asserting estoppel to prove all of its requisite elements, and the doctrine is strictly applied and must be substantiated in every particular.  (El Camino Community College Dist. v. Superior Court, supra, 173 Cal.App.3d 606, 614, 219 Cal.Rptr. 236.)

 In exceptional circumstances, the doctrine of estoppel may be applied against a city, county or state government where justice and right require it.  “The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.”  (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496–497, 91 Cal.Rptr. 23, 476 P.2d 423.)   An estoppel will not be applied against the government, however, if to do so would effectively nullify a strong rule of policy adopted for the benefit of the public.  (Id. at p. 493, 91 Cal.Rptr. 23, 476 P.2d 423;  Strong v. County of Santa Cruz, supra, 15 Cal.3d 720, 725, 125 Cal.Rptr. 896, 543 P.2d 264;  Barrett v. Stanislaus County Employees Retirement Assn. (1987) 189 Cal.App.3d 1593, 1607, 234 Cal.Rptr. 900.)   The question involves a balancing of interests between the potential injustice and the applicable public policy.

The Board and Department concede the existence of equitable estoppel elements two and three.   They intended the offer to earn section 2933 worktime credits to be accepted by petitioner and other inmates serving indeterminate terms who were unaware of their ineligibility.   The Board and Department deny the existence of elements one and four, contending they were unaware that petitioner and other inmates serving indeterminate terms were ineligible for section 2933 credits when the offer was made, and petitioner has not alleged nor proven injury by accepting the offer.

 As to the first element, it has been held that “[e]specially in cases where the party to be estopped has made affirmative representations, as opposed to mere silence or acquiescence, knowledge of the true facts will be imputed to one who, in the circumstances of the case, ought to have such knowledge.”   (City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 491, 91 Cal.Rptr. 23, 476 P.2d 423.)   The Department and Board, through their directives and waiver agreement, erroneously represented that petitioner and other inmates similarly situated were eligible for section 2933 worktime credits.   They should have known the representation to be untrue when made.   Therefore, the true fact of ineligibility is imputed and the first element is satisfied.  (Kieffer v. Spencer (1984) 153 Cal.App.3d 954, 963, 200 Cal.Rptr. 755.)

 We will conclude that the fourth element of injury to petitioner is lacking so as to preclude application of the equitable estoppel doctrine.   However, a majority on Division Three of the Fourth Appellate District concluded that the injury element existed for application of the doctrine under similar facts.  (In re Monigold, supra, 205 Cal.App.3d 1224, 253 Cal.Rptr. 120.)  “[T]he Penal Code section 2933 program involves more rigid working hours and a requirement of full-time work, less time off for personal reasons, fewer opportunities to see visitors and make telephone calls, reduced canteen privileges, and a greater maximum credit loss in the event of a rule violation.”  (Id. at p. 1229, 253 Cal.Rptr. 120.)   The majority concluded the injury element is satisfied simply by the inmate being denied an earlier MEPD and parole hearing through loss of section 2933 worktime credits:

“In our view, the loss of an earlier MEPD and an earlier first parole hearing, without more, amounts to sufficient detriment when balanced against the competing potential harm to the public interest;  and estoppel should be applied.   We might possibly agree in other contexts that a showing of detrimental reliance comparable to what Monigold produced would be inadequate.   But prisoner cases are somewhat unique:  Of all persons, perhaps, society is less justified in breaking faith with those it has deprived of their freedom.   We treat here with an incarcerated individual whose life must be lived under demanding circumstances in precise conformance with the rules imposed upon him in the hope that he may someday be released.”  (Id. at p. 1229, 253 Cal.Rptr. 120, fn. omitted.)

Even though the initial parole hearing does not guarantee petitioner's release, “he may be informed of correctable defects in his applications․   With this assistance, he may improve his next presentation and succeed in obtaining a parole date sooner.”  (Id. at p. 1230, 253 Cal.Rptr. 120.)   The majority was not impressed with respondent's argument that petitioner would have worked regardless of section 2933 credits:  “The department offered the benefits and burdens of that program, and he accepted both.”  (Id. at p. 1231, 253 Cal.Rptr. 120.)

A strong dissent was filed by Presiding Justice Scoville.   He concurred with the conclusion that petitioner (a state prison inmate serving an indeterminate sentence of 15 years to life for second degree murder) was ineligible for section 2933 worktime credits, but dissented from the majority's application of equitable estoppel against the state.  (In re Monigold, supra, 205 Cal.App.3d 1224, 1232, 253 Cal.Rptr. 120.)   While the majority reviewed the potential detriment to petitioner, it failed to discuss the public policy interest at stake.   There is a strong public policy distinguishing prisoners sentenced to an indeterminate term from those serving determinate terms:

“The indeterminate hold on the more serious offenders fulfills an important public policy to punish them more severely and not promise release after a determinate term.   It recognizes the need to force the more serious offenders to demonstrate their suitability to reenter mainstream society.   Determinate prisoners will be released regardless, in a uniform system which places a ‘value’ on the crime equal to the term of punishment imposed.   The Legislature has exempted the most serious offenders from this value system and enacted a policy of imprisonment for life absent demonstrable rehabilitation.”  (Id. at p. 1233, 253 Cal.Rptr. 120.)

Reducing an indeterminate prisoner's term through section 2933 credits contradicts the very purpose of such a sentence.  “An indeterminate prisoner must demonstrate his suitability for release and should not be able to ‘buy’ tokens which guarantee it.”  (Ibid.)

The dissent concluded that estoppel was inappropriate when balancing petitioner's claimed injury against the strong public policy behind indeterminate terms.   The chance that petitioner might be paroled at the initial suitability hearing was “remote and does not outweigh the public policy interest at stake.”  (Ibid.)

Petitioner's allegations of injury in the instant case consist only of the following:

1.  He could secure a MEPD after serving seven and one-half years with section 2933 credits rather than ten years with section 2931 credits;

2. Section 2933 allows credits of one day off his term for every day of participation in a qualified work, training or education program.   Section 2931 allows credits of one day off his term for every two days of good behavior;

3.  Petitioner's potential for forfeiture of credits for misconduct was increased by accepting the Department's offer to earn section 2933 credits in lieu of section 2931 credits.

Injury allegations 1 and 2 merely state that petitioner is being denied the benefit of the bargain that would have otherwise flowed from section 2933 worktime credit participation.   The test for determining injury is not based on the relative advantage of section 2933 credits over section 2931 credits.   Rather, it is the harm caused petitioner by having waived participation in section 2931 credits based on the Department's misrepresentation.   The only allegation meeting the test is allegation 3.   It states that petitioner's exposure to forfeiture of credits was increased when induced to transfer from section 2931 to section 2933 participation.   However, any such injury is moot since the Department and Board have agreed petitioner's credits should be determined under section 2931.   This would include its credit forfeiture provisions.

It is not clear whether petitioner participated in the section 2933 worktime credit program through work assignments or educational programs.   In either event, he does not allege such participation caused “injury.”   Nor should he.   To allege or conclude that participation in statutorily mandated work programs, for which he was paid, or beneficial educational programs causes “injury” would be a tortured interpretation of the term.   We conclude that petitioner's allegations of injury are clearly deficient for application of the doctrine of equitable estoppel.

The purpose of imprisonment for crime is punishment.  (§ 1170, subd. (a)(1).)  Every able-bodied prisoner is required to perform as many hours of labor as prescribed by the Department, and shall receive compensation. (§ 2700.)   In addition, all life prisoners are presumed to participate in programs for self development.  (Cal.Code Regs, tit. 15, § 2290, subd. (c)(2).)

The primary purpose of prison or jail behavior credits is to encourage conformity to prison regulations, discourage criminal assaultive acts while in custody, and encourage participation in rehabilitative activities.  (People v. Reynolds (1981) 116 Cal.App.3d 141, 147, 171 Cal.Rptr. 461.)   Worktime credit offered pursuant to section 2933 is a privilege, not a right.  (§ 2933, subd. (b).)  A prisoner serving a determinate sentence may earn section 2933 worktime credits through participation in work assignments and performance in elementary, high school, or vocational education programs.   Enrollment in a two or four year college program leading to a degree results in the application of one-third time credits pursuant to section 2931.  (§ 2933, subd. (a).)  Section 2931 credits are earned based on good behavior and participation.  (§ 2931, subd. (a).)

As noted above, section 190 was substantially amended by initiative in 1978.   The purpose of this initiative, as reflected in the election brochure arguments, was to increase the punishment for first and second degree murder.   The penalty for second degree murder was increased from a determinate sentence of five, six or seven years, to an indeterminate sentence of fifteen years to life.  (In re Jeanice D. (1980) 28 Cal.3d 210, 220, 168 Cal.Rptr. 455, 617 P.2d 1087.)   The legislative analysis also specified that the earliest parole date available to a person convicted of second degree murder would be increased to ten years.  (Ballot Pamp., Analysis of Proposition 7 by Legislative Analyst, Gen.Elec. (Nov. 7, 1978), p. 32.)  “[T]he electorate clearly intended service of 10 calendar years by a second degree murderer before parole consideration.”  (In re Oluwa, supra, 207 Cal.App.3d 439, 445, 255 Cal.Rptr. 35.)

Even if all elements of equitable estoppel exist, it should not be applied against the state unless “the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.”   (City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 496, 91 Cal.Rptr. 23, 476 P.2d 423.)   Thus, one must balance the competing considerations of petitioner's perceived delay in acquiring a MEPD because of being ineligible for section 2933 credits and the will of the electorate, as expressed through the Briggs Initiative, of increasing both the punishment and the minimum imprisonment for second degree murderers.   As noted in Presiding Justice Scoville's dissent in In re Monigold, supra, 205 Cal.App.3d 1224, 253 Cal.Rptr. 120, there is a strong public policy distinguishing prisoners sentenced to an indeterminate term from those serving determinate terms.

After balancing the competing considerations involved, we conclude that to apply equitable estoppel here would clearly conflict with the public's interest and strong policy as adopted by the electorate through the Briggs initiative.

Moreover, no regulation is valid if its issuance exceeds the scope of the enabling statute.  (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 205, 132 Cal.Rptr. 377, 553 P.2d 537.)   A public entity may not be estopped where it has not acted in compliance with a statute which is the measure of its power.  (A.J. Setting Co. v. Trustees of Cal. State University & Colleges (1981) 119 Cal.App.3d 374, 384, 174 Cal.Rptr. 43.)

“A fundamental maxim of jurisprudence is that equity must follow the law.  [Citation.]   Equity is bound by rules of law;  it is not above the law and cannot controvert the law.  [Citation.]   Equity penetrates beyond the form to the substance of a controversy, but is nonetheless bound by the prescriptions and requirements of the law.  [Citation.]   While equitable relief is flexible and expanding, its power cannot be intruded in matters that are plain and fully covered by positive statute.   A court of equity will not lend its aid to accomplish by indirect action what the law or its clearly defined policy forbids to be done directly.  [Citation.]”  (Barrett v. Stanislaus County Employees Retirement Assn., supra, 189 Cal.App.3d 1593, 1608, 234 Cal.Rptr. 900.)

The power of a public officer cannot be expanded by the doctrine of equitable estoppel.   In Boren v. State Personnel Board (1951) 37 Cal.2d 634, 234 P.2d 981, plaintiff accepted an offer of employment by the State Personnel Board on the representations of its employees that he would not be required to serve outside southern California.   Plaintiff was ordered to serve outside the area and refused, and he alleged that his dismissal for that refusal was wrongful.   The Supreme Court refused to apply estoppel:  “To invoke estoppel in cases like the present would have the effect of granting to the state's agents the power to bind the state merely by representing that they have the power to do so.   It is accordingly held that the authority of a public officer cannot be expanded by estoppel.”  (Id. at p. 643, 234 P.2d 981.)

In Santa Monica Unified Sch. Dist. v. Persh (1970) 5 Cal.App.3d 945, 85 Cal.Rptr. 463, the school district passed a formal resolution of necessity authorizing initiation of a condemnation action for defendant's property after negotiations for that property already had begun.   The board later passed a formal resolution authorizing offers for the purchase of the property to be made to defendant.   A week later, the district filed a condemnation action for the property, but the supervisor for building and planning sent defendant a letter offering to purchase the property to avoid condemnation.   Defendant made several counteroffers which were rejected.   The original offer was renewed, and the trial court determined that defendant accepted that offer.

Subsequent to the acceptance, defendant purchased other real estate to avoid tax consequences of the sale.   However, the board passed a resolution abandoning the condemnation proceedings, which defendants were unsuccessful in attempting to set aside.

The trial court found that the contract was enforceable against the district.   This finding was reversed by the appellate court, which concluded that the district was not bound by the two resolutions or defendant's acceptance of the offer.   The contracts had not been approved pursuant to the operative provisions of the Education Code, and did not comply with requisite formalities.  (Id. at p. 952, 85 Cal.Rptr. 463.)   The code sections demonstrated the legislative intent that such decisions be open and subject to legislative scrutiny.   Estoppel was unavailable to force the sale despite the undeniable harm defendant suffered in reliance on the district's representations.   The doctrine of equitable estoppel was “not applicable to a municipal agency which has not acted in compliance with a statute which is the measure of its power.”  (Id. at p. 953, 85 Cal.Rptr. 463.)

Our conclusion that petitioner is not entitled to any section 2933 credits means he must serve at least 10 years in prison before becoming eligible for parole.   This result is consistent with the legislative analyst's representation to the electorate during the 1978 general election when the Briggs Initiative was passed.   To award petitioner credits he is ineligible to receive so as to reduce his MEPD to less than 10 years would clearly violate the public policy established by the electorate through enactment of the Briggs Initiative and would erode the public's faith and confidence in our criminal justice system.  “[N]o court has expressly invoked the principles of estoppel to contravene directly or indirectly any statutory or constitutional limitations.  (See Longshore v. County of Ventura (1979) 25 Cal.3d 14, 28 [157 Cal.Rptr. 706, 598 P.2d 866.] )”  (El Camino Community College Dist. v. Superior Court, supra, 173 Cal.App.3d 606, 617, 219 Cal.Rptr. 236.)   We conclude that the Department is not equitably estopped from denying petitioner section 2933 credits.

DISPOSITION

The petition for writ of habeas corpus is denied.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

BAXTER, Associate Justice.

MARTIN, Acting P.J., and STONE (WM. A.), J., concur.