Opinion
As Modified March 13, 1984.
Opinions on pages 1039-1057 omitted. [*]
For Opinion on Hearing, see 218 Cal.Rptr. 324, 705 P.2d 897.
[200 Cal.Rptr. 12]Rudy J. Ramirez, in pro. per., petitioner.
Michael Satris, Donald Specter, Constance Bakkerud, Prison Law Office, San Quentin, amicus on behalf of petitioner.
John Van De Kamp, Atty. Gen., Robert R. Granucci and Ronald E. Niver, Deputy Attys. Gen., for plaintiff and respondent.
GILBERT, Associate Justice.
Rudy J. Ramirez, (petitioner), seeks to review by way of a writ of habeas corpus, the loss of good time credits which were ordered forfeited under a statutory provision not in effect at the time he was convicted.
Penal Code sections 2932-2935, effective January 1, 1983, revise the scheme under which inmates can earn and forfeit conduct credits. The new statutory scheme gives prisoners a chance to substantially reduce their time. They may choose to participate in a credit qualifying program which gives them the opportunity to earn more conduct credit than they could have earned under the former statute. Under the new statutes, however, more conduct credits may be forfeited even if a prisoner elects not to participate in the new program. Petitioner maintains that the application of the statute to him violates the ex post facto clauses of both the federal Constitution (Art. I, § 10, cl. 1) and the California Constitution (Art. I, § 9). We disagree.
Prior to January 1, 1983, petitioner was convicted of a felony and was committed to the San Luis Obispo Men's Colony. In January of 1983, the Department of Corrections charged petitioner with a disciplinary rule violation for falsification of records (altering the paperwork relating to a television set purchased by petitioner). On January 31, 1983, a hearing officer assessed petitioner with a loss of 95 days of behavior credits. Petitioner filed an administrative appeal on February 2, 1983. He alleged that the loss of behavior credits, based upon legislation effective January 1, 1983, was invalid. Petitioner's appeal resulted in a reduction of credit loss to 48 days. Petitioner took no further administrative appeal.
On May 27, 1983, he sought relief by way of a petition for habeas corpus in the superior court. Petitioner claimed that the loss of conduct credits based upon the amended version of Penal Code section 2932, subdivision (a) violated the ex post facto clause. He asserted that under the pre-1983 version of section 2932(a) his actions would have given rise to a maximum loss of 15 days of conduct credit.
Petitioner's application for a writ of habeas corpus in the superior court was denied on the ground that he had failed to exhaust his administrative remedies. (In re Muszalski (1975) 52 Cal.App.3d 475, 478-479, 125 Cal.Rptr. 281.) Petitioner's request for relief from this court was denied on the same ground. He then petitioned the state Supreme Court, which ordered the matter remanded to this court to consider the constitutionality of Penal Code section 2932 subdivision (a) in light of Weaver v. Graham (1981) 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17.
In Weaver v. Graham, supra, the United States Supreme Court struck down, as ex post facto, Florida's good-time statute. The Florida law reduced the amount of credit available for good conduct behavior of prisoners whose crimes were committed prior to the statute's enactment. While Florida's law lengthened the prison term by decreasing the opportunity to earn good time credit, California's new law makes possible a longer term of incarceration by increasing the amount of conduct credit subject to forfeiture.
Petitioner has directed our attention to In re Paez (1983) 148 Cal.App.3d 919, 196 Cal.Rptr. 401 (hg. den.), recently decided by Division Four of the First District Court of Appeal. Paez held that the application of the amended version of Penal Code section 2932 to a prisoner sent to state prison for an offense committed prior to January 1, [200 Cal.Rptr. 13] 1983, constitutes a violation of the prohibition against ex post facto laws.
We disagree with Paez ... although not without trepidation. We proceed gingerly because we are aware of the following:
1. The state Supreme Court remanded this case to us for a decision on the constitutionality of Penal Code section 2932(a) in light of Weaver v. Graham;
2. Paez based its decision on Weaver v. Graham;
3. The facts in this case are uncomfortably similar to those in Paez;
4. The Supreme Court denied a hearing in Paez.
We also have in mind Justice Kaus' paper, "Precedent Is a Many Splendored Thing, or Let Thirteen Flowers Bloom." He argues that divisions in the court of appeal should give deference to holdings of other divisions in the same or other districts to prevent the "balkanization" of the law.
Nevertheless, we feel our holding is not quixotic because the signs may not be as foreboding as they appear. The Supreme Court's refusal to grant a hearing in a particular case is not its definitive pronouncement of the law stated in that particular case. See People v. Triggs (1973) 8 Cal.3d 884, 890-891, 106 Cal.Rptr. 408, 506 P.2d 232.
In Weaver v. Graham, supra, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17, a Florida statute governing conduct credit, repealed an earlier conduct credit statute and reduced the amount of "gain time" that a prisoner could earn for good conduct under the earlier statute. The confinement time of the prisoner, who was sentenced prior to the enactment of the new statute, was increased, irrespective of his conduct.
The United States Supreme Court concluded that the statute was unconstitutional as an ex post facto law. It pointed out that "[t]he ex post facto prohibition forbids the Congress and the States to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.' [Citations omitted.]" Weaver v. Graham, supra, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17. It found the Florida statute violated the ex post facto clause because it was both retrospective and more onerous than the law in effect on the date of the offense.
The new statute at issue here, Penal Code section 2932(a), may either increase or decrease a prisoner's confinement time in comparison with the earlier statute. A prisoner only loses conduct credit for violations occurring after the date of the new statute. This statute may make it possible for the offender to be disadvantaged, but only if he commits an act which violates prison rules. The statute does not punish beyond what was prescribed when the crime was committed in the same way as the statute reviewed in Weaver v. Graham. Here, petitioner's choices determine his destiny. He is master of his own ship, and by virtue of the statute, he has the opportunity to reduce his confinement time. The statute is not retrospective because it gives him fair notice of what future conduct will adversely affect his behavioral credits. In Weaver, the statute was retrospective, because no matter what Weaver did, it made his term longer. Here, only future conduct, which petitioner has the power to control, may result in a longer sentence than he would have served under the earlier statute.
Despite this significant difference, Paez states that the ex post facto argument still applies to the California statute because "[e]ven though forfeiture involves misconduct after conviction, it also is a 'legal consequence' which 'attaches' to the crime for which the prisoner is incarcerated for it changes the amount of time the prisoner must serve for that crime before being released." (In re Paez, supra, 148 Cal.App.3d 919, 922, 196 Cal.Rptr. 401.)
Paez thus holds that when a prisoner has committed his original offense, he in effect buys a punishment package. This package includes Department of Corrections [200 Cal.Rptr. 14] regulations concerning conduct credit in effect at that time. Paez holds that these regulations can not be changed for prisoners convicted before January 1, 1983, because to do so would violate the ex post facto clause. This ignores the power of such prisoners to regulate their own conduct so as to control the early opening or the prolonged closing of the prison door. The mere fact that the new statute may increase confinement time beyond what was prescribed when they first committed their offenses, does not violate the ex post facto clause.
In Warren v. United States Parole Commission 659 F.2d 183 (D.C.Cir., 1981), cert. den. 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982), after the time of offense and sentencing of petitioner, the Parole Board for the first time adopted guidelines to determine eligibility for reparole. Even though these guidelines were adopted after he committed his first crime, but before he was released on parole, they were found not to violate the ex post facto clause. The court pointed out that "... Warren [petitioner] was provided fair notice on which he could rely regarding the consequences of prohibited conduct while he was released on parole. And finally, assuming hypothetically that the guidelines do in fact add to an inmate's punishment for crimes committed on parole, the imposition of the guidelines serves the core purpose of the criminal law, special deterrence of future crime. There is thus no danger that the guidelines could be used inappropriately to invoke the drastic stigma and focused penalties of the criminal law in circumstances in which the central aim of the criminal law could not possibly be achieved. In sum, as applied to Warren and others like him the guidelines do not offend the policies behind the ex post facto clause." Warren v. United States Parole Commission, supra, 659 F.2d 183, 194.
Warren referred to Gryger v. Burke (1948) 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 in its focus on the prospective nature of the reparole guidelines. In Gryger, a recidivist statute that increased penalties for subsequent convictions for the same offense, was held to validly apply to a defendant whose first offense occurred before the statute was passed. The statute, like the reparole guidelines in Warren did not run "afoul of the aims of the ex post facto clause because the operation of each can be triggered only by future crimes. To put this in other words, in Warren's case the reparole guidelines would not have affected him but for his subsequent criminal convictions. [Fn. omitted.] Gryger thus appears to dispose of Warren's case on the basis that the guidelines--if they punish at all--punish acts committed after they were promulgated." Warren v. United States Parole Commission, supra, 659 F.2d 183, 194-195. So here too, the new California statute only prohibits future conduct. The Warren rationale is even more compelling when applied to rules governing prisoner conduct.
The People make a cogent point when they argue that logic defies finding an ex post facto violation in this case. It would create the anomaly of two inmates who commit the same disciplinary violation suffering different losses of credits merely because they committed their crimes on different dates. The inmate who lost the most credits would probably not be placated by an exegesis on the application of ex post facto principles to the disparity in punishment. Further, it would exacerbate conditions in the prison population that might lead to unrest and disorder, and the consequent jeopardy to inmates' safety.
"[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. [Fn. omitted.] '[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.' " (Bell v. Wolfish (1979) 441 U.S. 520, 546-547, 99 S.Ct. 1861, 1877-1878, 60 L.Ed.2d 447 citing Pell v. Procunier (1974) 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495.) The court in Bell further pointed out that "... the problems that arise in the day-to-day operation of a corrections [200 Cal.Rptr. 15] facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. [Citations omitted]" (Id., 441 U.S. at p. 547, 99 S.Ct. at p. 1878.)
Paez freezes the rules and regulations of the Department of Corrections at a particular point in time so that prison officials are deprived of the flexibility to respond to changing conditions by adopting reasonable rules and regulations to control the prison population. Like Holden Caulfield in Salinger's Catcher in the Rye, who wondered where the ducks go when the lake freezes over, so prison officials might wonder how they can effectively respond to changing circumstances in the prison population when outdated rules and regulations are frozen in time.
Penal Code section 2932(a) does not violate ex post facto principles because it does not impose a punishment for an act which was not punishable at the time that act was committed. Paez distorts the meaning of ex post facto. Such a mutation should not have the chance to spread.
Accordingly, the writ is denied.
STONE, P.J., and ABBE, J., concur.
[*] Deleted on direction of Supreme Court by order dated May, 24, 1984.
† Hearing granted.