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IN RE: Bradley James FERRIER

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Court of Appeal, Fourth District, Division 1, California.

IN RE: Bradley James FERRIER, On Habeas Corpus.

Cr. 11103.

Decided: August 13, 1979

George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen. and Harley D. Mayfield and Beatrice W. Kemp, Deputy Attys. Gen., for respondents and appellants. Appellate Defenders, Inc., under appointment by the Court of Appeal, and Handy Horiye, San Diego, for petitioner and respondent.

Bradley James Ferrier pleaded guilty to second degree burglary, was sentenced to state prison on December 5, 1977, for a two-year term with credit allowed for 108 days county jail detention pre-sentence. (Pen.Code, s 2900.5.1 ) He is presently an inmate at the California Institution for Men at Chino. Ferrier appealed the judgment and sentencing but this court affirmed. (4 Crim. No. 8800.) During the pendency of his appeal, Ferrier petitioned this court for writ of habeas corpus seeking credit for “satisfactory conduct” (good time/work time) earned during his 108 days of pre-sentence incarceration in the San Diego County Jail. He relied upon sections 2900.5 and 4019, subdivision (a)(1) through (3). This court ordered a hearing on the petition before the superior court, San Diego. After an evidentiary hearing, the court found Ferrier entitled to good time/work time credit of 36 days and directed the Department of Corrections to compute Ferrier's release date to include in aggregate 144 days, the 108 days' credit for actual pre-sentence custody plus the 36 days' good time/work time credit. John F. Duffy, Sheriff, San Diego County, and J. J. Enomoto, Director, California Department of Corrections, appeal this order.

FACTS

At the show cause hearing, Ferrier testified he spent 108 days in San Diego County Jail before being sentenced to state prison. He said he obeyed all the rules and regulations of the sheriff; during his pre-sentence detention, he served in the county jail as an assistant tank captain and performed duties such as passing out food and preventing “hassles” and cleaning cells. He told the court work credit was awarded only to inmates who were appointed as trustees and that he had never been appointed a trustee and was therefore not eligible for work credit. The sheriff agreed that work credit was awarded only to persons Sentenced to the county jail, i. e., those coming within the express language of section 4019.

The trial court took “judicial notice of the standards of conduct and work for entitlement of credit applicable to county jails as promulgated by the Department of Corrections in Admin.Code, Tit. 15, Art. 14, Secs. 1130, 1170, 1171 and 1172,” then found the sheriff had failed to post and promulgate jail policies consistent with the requirements of the Department of Corrections.

I

Ferrier's assertion has been a much chewed bone of contention among the appellate courts of this state. The California Supreme Court has granted hearings in People v. Brown, 1 Crim. No. 18320; People v. Sage, 4 Crim. No. 10173; and In re Davis, 2 Crim. No. 33599, where this issue was variously determined. In the light of the uncertain state of the law, the better part of valor would suggest awaiting Supreme Court determination. The fact that Ferrier contends he is illegally detained Now militates against delaying decision. Delay alone may override Ferrier's position, make the question moot.

We therefore confront Ferrier's claim that he is being illegally and falsely detained in a state prison because of the sheriff's and Department of Correction's refusal to award him 36 days' work time/good time credit due him under sections 4019 and 2900.5. This contention must be viewed in light of section 2931, which provides in part:

“(a) In any case in which an inmate was sentenced to the state prison pursuant to Section 1170, or if he committed a felony before July 1, 1977, and he would have been sentenced under Section 1170 if the felony had been committed after July 1, 1977, the Department of Corrections shall have the authority to reduce the term prescribed under such section by one-third for good behavior and participation consistent with subdivision (d) of Section 1170.2. A document shall be signed by a prison official and given to the inmate, at the time of compliance with Section 2930, outlining the conditions which the inmate shall meet to receive the credit.”

This statute in clear unambiguous language directs the “Department of Corrections,” not the trial court or the county sheriff, to reduce Ferrier's “term prescribed” by one-third if he conforms to Department of Correction rules.

Section 2931 is an intrinsic element of a statutory scheme, reintroduced in California in 1976 in conjunction with the enactment of the Determinate Sentence Law.2 Section 2931 is part of article 2.5 of the Penal Code (ss 2930-2932). It embodies procedures, conditions spelled out in rules for reduction of a state prisoner's total term by one-third. The term prescribed as used in section 2931 is that fixed period term imposed by statute. It is not the net sentence imposed by the court after deducting section 2900.5 credits from the “term prescribed.” The “term prescribed” is the lower, middle or upper term set forth in the penal statute violated by the prisoner. Ferrier's “term prescribed” is the two-year term the middle term prescribed for burglary second degree (s 461, subd. 2, and s 18) not two years less 108 days credited against the term prescribed by the trial court as required by section 2900.5.

The Department of Corrections, in conformity with the statutory directive, has promulgated rules not only for the granting of “pre-prison” (s 2900.5) credit (see Cal.Admin.Code, tit. 15, art. 8, rules 2340-2346) but also for credits under sections 2930-2932. Specifically, title 15, division 3, rule 3000 et seq. of the Administrative Code declares the rules, establishes and provides for credit on the inmate's term of imprisonment.

Administrative Code rule 3000, subdivision (b), provides:

“Credit on Term of Imprisonment. Section 2930 of the Penal Code provides that all persons sentenced under section 1170 of the Penal Code, or who would have been sentenced under section 1170 of the Penal Code if sentenced after July 1, 1977, are eligible to receive a one-third reduction of their sentence for good behavior and participation. The requirements for receiving such credit are set forth in sections 3005(c) and 3042 of the Rules and Regulations of the Director of Corrections.”

Administrative Code rule 3005, subdivision (c) provides:

“Credit for Good Behavior. All inmates serving a determinate term of imprisonment will be credited with a one-fourth reduction on their term of imprisonment, calculated from July 1, 1977, or from the date of reception by the department if received at a later date, unless all or part of such good behavior credit is denied or forfeited as a result of disciplinary action for the specific acts of misbehavior listed in section 3323. Not more than 90 days of good behavior credit may be denied or forfeited during any eight-month period during which the misbehavior took place.”

And Administrative Code rule 3042 provides for credit for performance of the “obligation to work”:

“Credit for Participation. All inmates serving a determinate term of imprisonment will be credited with a one-twelfth reduction on their term of imprisonment calculated from July 1, 1977 or from the date of reception by the department if received at a later date, unless all or part of such credit has been denied or forfeited as the result of disciplinary action for failure or refusal to participate and perform work and program assignments as ordered or directed.”

Rule 3043 of the Administrative Code specifies the circumstances under which such credits may be denied. Rule 3002 provides procedures for granting/denying behavior-participation credits; the right of administrative appeal is granted by rule 3003.

Here the trial court, upon its Own analysis of Department of Correction rules, determined Ferrier was entitled to good time/work time credits for part of his “term prescribed.” To the contrary, sections 2930-2932 grants that authority to the Department of Corrections.

Only by a warping of the language of section 2900.5 and by a wholesale addition, amendment to section 4019 can the Trial court be endowed with such authority to grant good time/work time credits for Pre-sentence detention. (People v. Vasquez, 94 Cal.App.3d 42, 46-50, 156 Cal.Rptr. 235; People v. Galloway, 94 Cal.App.3d 590, 156 Cal.Rptr. 547.) While a trial court is the most appropriate tribunal to determine a contested issue of credit for presentence detention under section 2900.5 (People v. Hyde, 49 Cal.App.3d 97, 102, 122 Cal.Rptr. 297), it is miscast where behavior-performance credits are to be granted for the total term of state imprisonment. Such credits are an inducement to the inmate to comply with the rules of the Department of Corrections. They are Granted as an award for compliance. Therefore, it is the Department of Corrections' logical as well as statutory right and duty to award Ferrier if he can establish entitlement under the statutes and regulations good behavior-performance credit of up to one-third off his two- year “term prescribed” by law. Failure of the Department of Corrections to comply with the statutes and the rules promulgated conformable to the statutes would authorize Ferrier, after exhaustion of administrative remedies, to seek relief by way of writ. (In re Muszalski,52 Cal.App.3d 500, 125 Cal.Rptr. 286.) The trial court here made no finding, nor is there evidence to support an implied finding, that Ferrier had exhausted his administrative remedies before seeking a writ.

In light of the foregoing legal considerations, Ferrier's need for an immediate determination of his claim of illegal detention, the time frame in which this contention was made, and the fact that this is an original proceeding before this court, we make the following order.

The Department of Corrections is directed to compute and award Ferrier behavior participation credits up to one-third of his term prescribed two years in conformity with sections 2930 through 2932 and the department rules governing the granting or denial of such credit. If upon such credits, if any, being given it appears Ferrier has served his “term prescribed,” he is ordered released.

It is so ordered.

FOOTNOTES

FN1. All reference is to the Penal Code unless otherwise specified..  FN1. All reference is to the Penal Code unless otherwise specified.

2.  During the years of applicability of the Indeterminate Sentence Law, such a plan for award of behavior-participation credits had no function, no statutory place in the determination of the actual time to be spent by the inmate in custody.

STANIFORTH, Associate Justice.

GERALD BROWN, P. J., and COLOGNE, J., concur.

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