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

IN RE: Willie REDMOND, Ray Alden and Richard Frausto on Habeas Corpus.

AO 23083.

Decided: February 24, 1984

John K. Van de Kamp, Atty. Gen., Maria J. Fonseca, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for appellants. Michael Satris, Donald Specter, Constance Bakkerud, Charles S. Bishop, San Quentin, for respondents.

On appeal from an order granting habeas corpus relief, we consider the validity of actions taken by the California Department of Corrections (hereafter “Department”) 1 denying work time credits and certain privileges to prison inmates housed in segregated custody.   For reasons which we explain, we reverse the order below.


The record on appeal is essentially undisputed and discloses the following:

Inmate Privileges

In 1981 the Department established as a matter of “official policy” (eventually included in Title 15 of the California Administrative Code) a work/training incentive program (hereafter “WIP”) granting privileges to prison inmates who either work or participate in a qualified activity.   Under the department's regulations, prison inmates are classified into four groups:

Group A consists of inmates who have a full-time work or training assignment or who are partially or totally disabled.   These inmates receive privileges consisting of unlimited family visits, regular visits, maximum monthly canteen draw, telephone calls, access to recreation and entertainment, four packages a year and special canteen purchases (§ 3044, subd. (c) 2 );

Group B inmates are assigned to half-time work or training programs.   These inmates are entitled to one family visit every six months, regular visits, one-half the maximum monthly canteen draw, one telephone call per month, access to recreation and entertainment, four packages a year, and special canteen purchases (§ 3044, subd. (d));

Group C inmates, prisoners in the general population who refuse to work, receive regular visits but no family visits, one-quarter the maximum canteen draw, access to exercise and no other privileges (§ 3044, subd. (e));

Group D inmates, prisoners housed in special segregation units without a job assignment, receive privileges limited to regular visits, one-fourth the maximum monthly canteen draw, emergency phone calls, one package per year and one special canteen purchase of a television or radio;  no access to recreation or entertainment is allowed (§ 3044, subd. (f)).

Sentence Reduction

Under the provisions of the 1976 Determinate Sentencing Law prisoners whose crimes were committed before January 1, 1983, are entitled to receive a one-third reduction of their sentence “for good behavior and participation.”  (Pen.Code, § 2930.)   Three months of every four-month reduction is based upon forebearance from any criminal or disciplinary conduct (Pen.Code, § 2931, subd. (b)) and one month of every four-month reduction based solely on participation in work, educational or other prison activities (Pen.Code, § 2931, subd. (c)).

In 1982 the Legislature enacted a general statute expressing its intention that “all able-bodied prisoners ․ be directed to work, ․ as ․ the most appropriate method of successfully instilling ․ values of a law-abiding ․ society and [to] improve the possibility of their reintegration․” 3  (Stats.1982, ch. 1, pp. 67–68.)

At the end of the year the Director reported that jobs had been created for all general population inmates and that plans were being formulated to extend the WIP to include specially housed inmates.

That same year the Legislature enacted legislation providing for a six-month or three-month sentence reduction for full-time or half-time performance in a credit-qualifying work or educational assignment (Pen.Code, § 2933) and creating a Prison Industry Authority to operate various industrial, agricultural and service enterprises employing prisoners with the objective of improving productive occupational skills and developing a self-supporting work program (Pen.Code, § 2800 et seq.).

Thus, effective January 1, 1983, a prisoner who performs full-time work in a WIP established by the Department is entitled to receive a maximum reduction of one-half of his sentence.4  A prisoner who voluntarily accepts a half-time assignment in lieu of a full-time assignment is entitled to worktime credits equal to three months for each six-month period of performance.  (Pen.Code, § 2933, subd. (a).)  A prisoner who refuses a full-time assignment or who is guilty of misconduct receives no worktime credits.   Every prisoner who is willing to work full-time but who is either not so assigned, or assigned to a shorter time program, is entitled at a minimum to the credits provided under section 2931 (good time/participation).

In authorizing the new sentence reduction scheme, the Legislature expressed the conditional nature of the WIP credits in the following language:  “Worktime credit is a privilege, not a right.   Worktime credit must be earned and may be forfeited pursuant to the provisions of Section 2932.   Except as provided in subdivision (a) of Section 2932, every prisoner shall have a reasonable opportunity to participate in a full-time credit qualifying assignment in a manner consistent with institutional security and available resources.”  (Pen.Code, § 2933, subd. (b), emphasis ours.)

The lucid expression of legislative intent unmistakably indicates that credit is no longer automatically granted upon compliance with prison rules and forebearance from misconduct but is to be directly linked to active participation in an available work, training or education program.

Although yet to be fully implemented, the Department's present WIP has no provision for credit qualifying assignments available to prisoners housed in segregated housing units.   These units, establishing separate housing for inmates apart from the general population for reasons of institutional security and safety (§ 3601 Classification Manual), are individually designated for special purposes:  1) Security Housing Unit (SHU):  the most secure, closely controlled and supervised unit;  2) Management Control Unit (MCU):  an intermediate level between general population and security housing;  and 3) Protective Housing Unit (PHU):  secure protective housing for inmates whose housing in a general population setting would endanger their own safety.  (§ 3601, subd. (a)–(c) Classification Manual.)   The MCU is designed to provide more secure housing or closer supervision for inmates who demonstrate a level of behavior problems (§ 3640, subd. (a) Classification Manual) and SHU inmates scheduled for release to a general population setting (§ 3640, subd. (b) Classification Manual).

Respondents are San Quentin inmates assigned to an MCU.   Respondent Frausto alleges his segregation is a protective measure for his safety.5  Respondents Redmond and Alden were assigned to an MCU due to their prison gang affiliation.6  Respondents renew their contention below that although they are willing to accept credit qualifying work assignments, none are available for specially housed prisoners resulting in a denial of an equal opportunity for worktime credits against their sentences and full privileges.7

The trial court granted respondents' petition for relief on statutory and equal protection grounds and ordered the Department 1) to award full worktime credits and to restore privileges held prior to January 1, 1983, to all prisoners in protective custody (Frausto) and 2) to restore related privileges to otherwise eligible MCU prisoners (Redmond and Alden).   This appeal ensued.8

I. WIP Sentence Credits

Subdivision (b) of Penal Code section 2933 declares in part that except where credits are forfeited for misconduct “every prisoner shall have a reasonable opportunity to participate in a full-time credit qualifying assignment in a manner consistent with institutional security and available resources.”  (Emphasis added.)

The Department argues that the relevant statutory language invests it with reasonable discretion to determine whether a particular prisoner may participate in the WIP compatible with institutional security needs and available resources.   Thus, it is argued that while the Department intends to develop plans permitting willing segregated prisoners to participate in the WIP, existing resources to accommodate the attendant security needs of such prisoners do not now exist.9  Respondents argue not that the denial of an opportunity to participate constitutes an abuse of discretion, but that—absent a compelling state interest—they must be accorded treatment equal to prisoners similarly situated who are eligible for worktime credits.   Further, their argument continues, the fact that they have been segregated from the general population solely for security and safety reasons should not operate unfairly to single them out for unequal treatment.10  We are persuaded that the Department's argument has merit.   As will be shown, prisoners appropriately assigned to segregated units are not similarly situated to other prisoners;  no fundamental right is implicated under the “strict scrutiny” test of equal protection, and, in any case, a compelling state interest justifying the Department's action is readily demonstrated.

“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”  (In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549;  emphasis in original.)   Respondents contend that all prisoners are statutorily eligible for the WIP and thus all are similarly situated.   Further, because the denial of worktime credits to MCU inmates affects the term of their imprisonment, a fundamental liberty interest is at stake.  (See People v. Saffell (1979) 25 Cal.3d 223, 228, 157 Cal.Rptr. 897, 599 P.2d 92;  People v. Olivas (1976) 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375.)

The Department counters at three levels:  First, that a prisoner segregated for safety reasons (respondent Frausto) is not similarly situated to prisoners in the general population because the need for a more secure and protective environment places him in a class different from the general population justifying different treatment.   Second, that no fundamental right is involved in the exclusion of segregated prisoners from the WIP because worktime credit is a privilege which can only be earned by active participation in the statutorily authorized program;  that to award equivalent credits to a non-participating inmate would frustrate the legislative goals of work-oriented rehabilitation and system-wide cost benefits.   Finally, that unlike other decisions sanctioning a strict scrutiny analysis of disparate treatment in granting conduct credits to similarly situated pretrial detainees (People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874 [pretrial detainee felons entitled to same conduct credits as prison inmates];  People v. Saffell, supra, 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92 [rehabilitation goal justifies denial of credits to mentally disordered sex offender] ), the present statutory scheme affords no automatic right but only a privilege to earn the sentence-reduction credits.   Thus, the disparate treatment accorded specially housed prisoners is to be measured under the conventional “rational relationship” standard which is applicable herein.   Since the record demonstrates both special security needs and limited resources available for segregated prisoners' WIP participation, a rational basis exists justifying exclusion of such prisoners and resultant different treatment.   We agree.

The language of the California Supreme Court in People v. Austin (1981) 30 Cal.3d 155, 178 Cal.Rptr. 312, 636 P.2d 1;  upon which the Director relies, is aptly instructive.   In determining that equal protection considerations did not preclude denial of conduct credit to incarcerated youthful offenders, the court distinguished its earlier decision in Sage in the following manner:  “The compelling state interest in rehabilitation of youth offenders and the flexible and individual consideration given to the conduct of YA committees in determining the length of their YA confinement are necessary to advance the stated purposes of the Youth Authority Act.

“Our foregoing conclusion relative to behavioral credit applies equally to presentencing conduct credit claimed by those in YA confinement.   Although credit is given for actual time spent in presentence custody (Cal.Admin.Code, tit. 15, § 4945, subd. (e);  § 2900.5) no automatic conduct credit is authorized for such incarceration.   Consideration will be given to the effect that the ‘ward's experiences and behavior while in local custody have on the ward's training and treatment needs' in setting the ward's parole consideration date.  (Cal.Admin.Code, tit. 15, § 4945, subd. (d).)

“Our recent holding in People v. Sage, supra, 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874, does not require a contrary result.   There the concern was whether conduct credits should be given for presentence custody to a person ultimately committed to prison.   We determined that such credits were not statutorily mandated.   Nonetheless, because of the automatic nature of the application of conduct credits to the length of prison terms, we held that it was a denial of equal protection to deny such credits to persons who were in jail custody before sentencing who would otherwise be required to spend a longer time in actual incarceration than those who only spent time in prison.   Sage differs from the present case because, unlike persons sentenced to prison, adults who are committed to YA will not have their custody period in YA modified by any automatic application of conduct credits, so that application of such credits to any presentence period of custody is not required by equal protection.”  (Id., 30 Cal.3d at p. 166, 178 Cal.Rptr. 312, 636 P.2d at 7, all but first emphasis added.)

Thus, while the Austin court undertook a compelling state interest analysis, it unmistakably focused upon the absence of automatic conduct credits in relation to the period of confinement.   As covertly contended by the Department, the statutory program does not mandate worktime credits but only extends a reasonable opportunity consistent with institutional security needs and resources, the denial of which must be upheld where a rational relationship is established, as here.  (See generally McGinnis v. Royster (1973) 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282.)

Assuming, arguendo, that prisoners segregated for reasons of protective custody possess a fundamental liberty interest to be treated similarly to general population prisoners for purposes of equal worktime credits entitlement, a compelling state interest is discernible justifying different treatment.   To grant work time credits automatically—without actual participation in the WIP—would substantially undermine the legislative purpose of instilling in prisoners the work ethic in order to develop “marketable skills, good work habits, and goal orientation” and thereby “improve the possibility of their reintegration into [a law-abiding and cooperative] society.”  (Stats, 1982, ch. 1, p. 67–68.)   Such rehabilitative goal, as in People v. Austin, supra, 30 Cal.3d 155, 178 Cal.Rptr. 312, 636 P.2d 1, is a cognizable, compelling reason justifying different treatment between segregated prisoners and general population prisoners.  (Cf. People v. Saffel, supra, 25 Cal.3d 223, 229–233, 131 Cal.Rptr. 55, 551 P.2d 375.)

 We conclude that the special needs of respondents requiring separate housing in a more secure environment distinguish them from all other prisoners in the general population.   Accordingly, equal protection does not require that they receive the same worktime credit entitlement granted to willing but non-assigned general population prisoners.   Moreover, to the extent that a fundamental right of liberty is implicated, the compelling goal of rehabilitation adequately justifies unequal treatment.   We are mindful also that courts should be reluctant to interfere where, as here shown, the Department is engaged in a good faith effort to include specially housed prisoners in the WIP within the constraints of finite resources.

II. Restricted Privileges

Respondents alleged that prior to the implementation of the WIP, segregated prisoners (now classified under Group D) were afforded the same level of family visits and other privileges presently limited to eligible program participants (Groups A and B).   Although put in issue by the Department's denial, no relevant evidence in support of the allegation is found in the record.   Nonetheless, the trial court ordered that “all privileges available to such prisoners prior to January 1, 1983,” be restored, including MCU prisoners deprived of such visits and privileges without fault, on the grounds that the denial of benefits on the basis of institutional security was unjustified.  (See Pen.Code, § 2600.)

Chapter 3, article 1 of the Penal Code dealing with the civil rights of prisoners, provides that a prisoner's rights during confinement may be denied only to the extent “necessary ․ to provide for the reasonable security of the institution ․ and for the reasonable protection of the public.”  (Pen.Code, § 2600.)   Included among the enumerated rights is the right to receive bona fide mailings [subject to inspection and quantity] (Pen.Code, § 2601, subd. (c)) and the right to “personal visits; ․ [subject to] restrictions as are necessary for the reasonable security of the institution.”  (Pen.Code, § 2601, subd. (d).)

Prior to the enactment of revised regulations adopted in conjunction with the inaugurated WIP, 1) visiting rights were limited only for reasons of security;  2) telephone calls by considerations of equal inmate access;  3) canteen draws as a result of disciplinary action or misuse;  and 4) package receipts and shipments upon prior approval.   Under the amended regulations, the additional requirement of a work/training assignment has been juxtaposed:  personal visits are permitted for segregated prisoners according to assignment to a work/training incentive group (§ 3343, subd. (f);  see also § 3170, subd. (a));  family visiting privileges are limited to inmates assigned to a work/training incentive group (§ 3174, subd. (f);  telephone calls are similarly allocated (§ 3343, subd. (j);  see also § 3282, subd. (c);  restrictions on canteen purchases and packages are limited to those established for inmates assigned to a work/training group (§§ 3090, subd. (c);  3147, subd. (a)(9)(g));  and mail privileges for segregated prisoners are unrestricted except that receipt of packages are limited in number and content (§ 3343, subd. (e)(9)(G)).

Thus, Group D prisoners now receive essentially the same level of personal or regular visiting rights but with a reduction in telephone and package privileges as well as canteen purchases (§ 3044, subd. (f)).  Family or conjugal visits, to which no claim of right may attach (In re Cummings (1982) 30 Cal.3d 870, 873, 180 Cal.Rptr. 826, 640 P.2d 1101) is a privilege extended only to WIP participants (§ 3174, subd. (f)).  (Cf. In re Gallego (1982) 133 Cal.App.3d 75, 79–86, 183 Cal.Rptr. 715 [pretrial detainee not entitled to contact visits with her child].)

 It is well settled that valid and compelling institutional considerations will justify the imposition of reasonable limitations on prisoners' civil rights.  (In re Cummings, supra, 30 Cal.3d 870, 872, 180 Cal.Rptr. 826, 640 P.2d 1101;  In re Price (1979) 25 Cal.3d 448, 453, 158 Cal.Rptr. 873, 600 P.2d 1330;  In re van Geldern (1971) 5 Cal.3d 832, 837, 97 Cal.Rptr. 698, 489 P.2d 578.)   Since no claim of right can be asserted to conjugal visits (In re Cummings, supra, 30 Cal.3d at p. 873, 180 Cal.Rptr. 826, 640 P.2d 1101) and respondents' rights to personal visits remain intact, our inquiry is confined to a determination whether the restrictions on other privileges are reasonable.  (Pen.Code, § 2600;  In re Price, supra, 25 Cal.3d at p. 453, 158 Cal.Rptr. 873, 600 P.2d 1330.)   Although the trial court concluded that a statutory violation existed, no supporting showing is apparent from the barren record before us.   To the contrary, we cannot conclude that the limitations placed on other privileges as part of an overall program designed to “promote the security goals ․ by reducing idleness and providing an incentive for work ․ [to reduce] tension and violence ․ [and] reintegrating exoffenders ․”  (Stats.1982, ch. 1549, § 3, p. 8389) are manifestly unreasonable.  Penal Code section 2600 is not to be viewed as a “straitjacket limiting the ability of the prison authorities to deal with institutional realities” (In re Harrell (1970) 2 Cal.3d 675, 698, 87 Cal.Rptr. 504, 470 P.2d 640;  cert. den., 401 U.S. 914, 91 S.Ct. 890, 27 L.Ed.2d 814);  nor should it be loosely interpreted to thwart clearly calculated legislative goals by denying to prison officials the reasonable discretion objectively to grant other privileges as an inducement to promote the WIP.   Accordingly, in the absence of a showing of demonstrable abuse or arbitrary action, the regulations governing such privileges must be upheld.

The order from which the appeal is taken is reversed.   Respondent's motion to strike certain opening brief references as noted (ante, fn. 5) is granted.


1.   Reginald Pulley, Warden of San Quentin State Prison, is named as a party;  unless otherwise indicated, our reference to the “Department” or “Director” is intended to include the Warden and other authorized officials whose interests appear identical.

2.   Unless otherwise indicated, all references to regulatory sections pertain to Title 15 of the California Administrative Code.

3.   Section 1 of the uncodified statute reads in its entirety:  “It is the intent of the Legislature that all able-bodied prisoners in the state prisons be directed to work, inasmuch as the performance of productive work on a regular basis is the most appropriate method of successfully instilling in prisoners the values of a law-abiding and cooperative society and will improve the possibility of their reintegration into that society.“The Legislature declares that the Department of Corrections, as one of the chief goals of the operation of the state prison system, shall seek to achieve self-sufficiency of the prison system through the development of prisoner labor and skills to provide the necessities of the prisons, to teach marketable skills, good work habits, and goal orientation to prisoners, and to reduce the amount by which the prisons must be supported by taxes and thus also benefit the public at large.“The Director of Corrections shall by January 1, 1983, report to the Legislature on the progress that has been made toward achieving full inmate work programs and the self-sufficiency of the state prisons and in the report shall delineate proposals for improved self-sufficiency of the state prisons for the following three years.”

4.   Although section 2933 technically applies only to persons whose crime was committed after January 1, 1983 (Pen.Code, §§ 2930, subd. (a), 2931, subd. (d), 2932, subd. (h)), section 2934 permits a prisoner to waive his rights to time credits under section 2931 and become subject to the credits provided under section 2933.

5.   Although the Director denies this allegation, references in his brief concerning matters outside the record relating to Frausto's and Alden's MCU housing assignments are improper.   Accordingly, respondents' motion to strike such unsupported references contained in page 12 of the opening brief is granted, and that part only is ordered stricken.  (See infra.)

6.   Respondent Alden, who since has been released to the general population, only seeks worktime credits for the time spent in the MCU.

7.   As noted earlier, however, respondents would remain eligible for one-third credits under the provisions of Penal Code section 2931.  (Pen.Code, § 2933, subd. (a).)

8.   It is appropriate at this point to consider the Department's jurisdictional challenges to the scope of the order made.   Although the language of the order is framed to include “all prisoners” similarly situated, it is unclear whether a class action form of relief was intended or even properly presented through respondent's petition.   We stayed execution of the order insofar as it might apply to prisoners other than respondents.   In view of our determination herein, we do not reach the issue raised and express no opinion as to the permissible scope of relief in the habeas proceeding.  (But cf. In re Walters (1975) 15 Cal.3d 738, 744, 126 Cal.Rptr. 239, 543 P.2d 607;  In re Head (1983) 147 Cal.App.3d 1125, 1131, 195 Cal.Rptr. 593;  In re Brindle (1979) 91 Cal.App.3d 660, 669–670, 154 Cal.Rptr. 563.)

9.   Although the record is silent as to the practical necessities required in implementing the program, the parties impliedly recognize that available resources are inadequate to provide security and supervision of segregated prisoners who engage in program activities.

10.   Respondents point to existing departmental policy which allows sentence credits for general population inmates prevented from working during a security “lockdown” of the institution.   The policy is stated as follows:  “Inmates shall not be penalized by being placed in a lower credit earning category as the result of a lockdown or recall situation in which they have no control.   They shall continue to earn credits at the same rate as they were assigned prior to the lockdown situation.”  (Classification Manual, § 310(j).)   The trial court relied on the apparent disparity in granting worktime credits to respondent Frausto.

RACANELLI, Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur.