IN RE: Joel HEAD et al.

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Court of Appeal, First District, Division 5, California.

IN RE: Joel HEAD et al., On Habeas Corpus.

A027830.

Decided: March 29, 1985

Donald Specter, San Quentin, for petitioner. John K. Van de Kamp, Atty. Gen., Kenneth C. Young, Thomas P. Dove, Deputy Attys. Gen., San Francisco, for respondent.

The People appeal from an order awarding attorneys' fees under Code of Civil Procedure section 1021.5 to three prison inmates who successfully challenged, by petition for a writ of habeas corpus, certain aspects of the Department of Corrections' work release furlough program.   We hold that section 1021.5 cannot apply to habeas proceedings, and reverse the order.

The inmates filed habeas corpus petitions alleging that the Department of Corrections had violated their constitutional right to due process by automatically excluding from the work furlough program certain classes of inmates of which they were members.   They prevailed both below and on appeal.  (In re Head (1983) 147 Cal.App.3d 1125, 195 Cal.Rptr. 593.)   On remand they moved for an award of attorneys' fees under Code of Civil Procedure section 1021.5, commonly known as the “private attorney general” statute.   The court awarded a fee of $3,000 (later increased by $250).

 The People correctly contend that the award must be reversed because Code of Civil Procedure section 1021.5 applies only to civil cases, and a habeas proceeding is a criminal case because it is classified in the Penal Code under “Special Proceedings of a Criminal Nature.”  (Pen.Code, pt. 2, tit. 12, §§ 1473 et seq.)   The decision in Fogelson v. Municipal Court (1981) 120 Cal.App.3d 858, 175 Cal.Rptr. 64, argued persuasively that section 1021.5 was not intended to apply to a defense against criminal charges because (1) Code of Civil Procedure section 31 states that the Penal Code provides for the prosecution of criminal actions, and (2) section 1021.5 is placed in the Code of Civil Procedure under the title “Civil Actions.”  (Civ.Proc.Code, pt. 2, tit. 14.)   By the same reasoning, we conclude that section 1021.5 could not have been intended to apply to habeas proceedings, since they are classified as proceedings of a criminal nature.

The order is reversed.

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.