Opinion
C097701
12-05-2023
HUNG THANH MAI, Plaintiff and Appellant, v. RON BROOMFIELD, as Director, etc., et al., Defendants and Respondents.
NOT TO BE PUBLISHED
(Super. Ct. No. 34-2022-80003812-CU-WM-GDS)
BOULWARE EURIE, J.
While pending trial for the capital murder of a California Highway Patrol (CHP) officer, plaintiff Hung Thanh Mai (Mai) was indicted in federal court for conspiracy to commit murder for hire of at least one witness to the pending state murder case. Mai entered a federal plea agreement in which he pled guilty to each of the counts alleged in the federal indictment and agreed to plead guilty to the murder alleged in his state capital case. In exchange, Mai agreed to be sentenced to federal prison for a term to be set by the federal district court and agreed to remain in federal custody until the completion of his federal sentence and all appeals of his state court death sentence were exhausted.
The federal plea bargain did not include a term by which Mai agreed he would be housed in federal prison after he served his federal term. So, when Mai completed his federal term and his appeals of the state capital sentence were exhausted, he was transferred back to California to serve out the remainder of his state death sentence. Without authority based in the plea agreement, and as will be discussed post contrary to Penal Code section 2911, subdivision (a), California prison officials transferred Mai back to federal custody. Mai subsequently filed a petition for writ of mandate requesting that he be returned to California to serve his state sentence unless and until the provisions of section 2911 were complied with, namely unless and until he consented in writing to a transfer to a federal facility. The trial court denied the petition, ruling Mai failed to show defendants (various California prison officials) violated a mandatory ministerial duty that section 2911 imposes. Because we find section 2911 provided the only authority defendants had to transfer Mai back into federal custody in this case and defendants failed to comply with their ministerial duties under that section, we reverse the judgment.
Undesignated statutory references are to the Penal Code.
BACKGROUND
In 1996, Mai fatally shot a CHP officer during a traffic stop in Fullerton, California. (People v. Mai (2013) 57 Cal.4th 986, 994, 1015.) While Mai was in an Orange County jail awaiting trial for the murder, he, his girlfriend, and others were indicted by federal prosecutors for, inter alia, "conspiring by mail and/or interstate travel to commit murder for hire, in violation of title 18 United States Code section 1958. The alleged murder target was . . . a principal prosecution witness . . . to the [California] capital murder charges, whom [Mai] wanted killed because of his cooperation with law enforcement." (Id. at pp. 1003, 1006, 1014, fn. omitted.)
Pursuant to a 1999 plea agreement, Mai pled guilty in federal court to all counts in the federal indictment. Mai agreed to plead guilty in the California case to the murder of the CHP officer and admit the special circumstance allegation that he intentionally killed a peace officer engaged in the performance of duty. Further, in three paragraphs under the heading "stipulations regarding confinement and the continued implementation of restrictions under section 501.3 of the Code of Federal Regulation" (some capitalization omitted), defendant agreed that if he were "sentenced to the death penalty . . . [he] will remain in [f]ederal custody until such time as all appeals of the death sentence have been exhausted. Defendant waives any right he may have to challenge his remaining in [f]ederal custody." Mai also agreed that the restrictions placed on his confinement by former Attorney General Janet Reno at the time of his plea would be imposed by the district court "until such time as [Mai] completes the sentence imposed in [his federal] matter." Finally, Mai agreed to waive "any claim that he must serve the entire sentence imposed in the [federal] case before the death sentence could be imposed." The agreement also stated it was "limited to the U.S. Attorney's Office and cannot bind any other federal, state or local prosecuting, administrative or regulatory authorities."
The federal district court sentenced Mai to 293 months in federal prison in May 1999. In a July 1999 hearing in the California case at which Mai submitted the issue of his guilt to a court trial based on a preliminary hearing transcript, the trial court heard from a federal prosecutor who acknowledged the trial court's concern about the impact of the federal plea. The question was posed to the federal prosecutor: "Mr. Mai does not have to submit on the transcripts or plead guilty in this matter at all . . . is that true?" "That is correct," the federal prosecutor replied. "Mr. Mai, do you understand that?" the trial court asked. "Yeah," Mai replied. The federal prosecutor explained that there was no "breach" clause in the federal plea agreement, because "we did not want to negatively impact the state court case." The trial court found Mai guilty of first degree murder, found true the special circumstance, and empaneled a jury to determine Mai's sentence. After the jury returned a death verdict, the trial court imposed the judgment of death in June 2000, ordering it be served concurrently with Mai's federal sentence. And consistent with earlier correspondence from the director of the California Department of Corrections and Rehabilitation (CDCR) at the time, the trial court noted its understanding that Mai would "be incarcerated at a federal prison institution pending the outcome of [his] appeal, which [was] automatic." Accordingly, the trial court ordered Mai remanded to the custody of the Sheriff of Orange County to be delivered to the custody of the United States Marshal for transportation to the federal Bureau of Prisons (BOP).
In a June 2000 letter to the trial court, the CDCR director at the time explained that CDCR staff had "been working closely with . . . [BOP] to facilitate [Mai's] transfer," and asked the trial court to ensure that Mai was "ordered delivered into the custody of the United States Marshal upon sentencing . . . for transport to the" BOP.
The trial court further ordered that if Mai were to complete his federal sentence prior to imposition of the California death judgment, Mai was to be transported immediately to CDCR and delivered into the custody of the warden at San Quentin Prison.
Mai was sent to a federal Administrative Maximum Facility ("supermax") in Colorado where he experienced severe conditions of confinement. (See People v. Mai, supra, 57 Cal.4that p. 1025.) Mai received meals in his cell, where he remained alone for 24 hours a day two days per week, and alone at least 22 hours a day five days per week. Nonlegal written correspondence and contact visits were prohibited and, as a practical matter, the only form of nonlegal communication that Mai could have were noncontact visits with three relatives.
Meanwhile, Mai challenged his California judgment in both a direct appeal to the California Supreme Court and in a habeas corpus petition. The California Supreme Court affirmed the death judgment in 2013, and the United States Supreme Court denied his petition for a writ of certiorari in 2014. In 2018, the California Supreme Court transferred Mai's habeas petition to the Orange County Superior Court, where it remains pending. In July 2020, in response to queries from Mai's counsel, a BOP attorney wrote in an e-mail that "BOP [was] discussing with CDCR the general issue of . . . Mai's placement after the expiration of his federal sentence." In a different e-mail later that month, a CDCR attorney informed Mai's counsel that "Mai [would] be returned to California to continue serving his state sentence in CDCR custody."
On July 30, 2020, Mai was transferred from the supermax federal prison to CDCR custody in California. On September 29, 2020, CDCR officials transferred Mai back to Colorado and into the custody of BOP officials at a different federal prison. No one asked Mai if he consented to the transfer, and his lawyers did not learn of it until more than a week after the transfer.
In an October 2020 e-mail, a CDCR attorney told Mai's counsel that Mai "was returned to BOP custody pursuant to the provisions of his federal plea agreement." Later, Mai's counsel obtained an internal CDCR memorandum to a high-ranking California prison official requesting approval to return Mai to BOP custody because he was "required to serve his . . . California term in federal custody pursuant to his . . . 1999 federal plea agreement." The request was approved, and in April 2021, BOP returned Mai to the supermax prison.
Mai filed a petition for writ of mandate in February 2022, contending CDCR officials violated their ministerial duties under state law when they transferred him to BOP custody without his consent, in violation of section 2911, subdivision (c), section 11191, subdivision (b), and provisions in the California Code of Regulations and CDCR's Operations Manual. Mai requested the superior court issue a writ of mandate directing CDCR officials to "perform their ministerial duties by returning [him] to the physical custody of [CDCR] and housing him . . . within the state to serve the rest of his state sentence unless and until he consents to be transferred to a federal facility."
Defendants demurred to the petition and opposed it on the merits. After the matter was fully briefed, the trial court held a hearing in September 2022. After clarifying all parties agreed there is a standing general contract between the federal government and the State of California for confinement of California inmates in federal institutions, the trial court confirmed it was defendants' position that Mai was not transferred pursuant to that contract. Counsel for defendants explained that if Mai had been transferred pursuant to that contract, Mai would have to be evaluated to determine whether the transfer would best suit his needs, because the purpose of the transfer is to make sure that it will benefit both the inmate and the receiving and sending institutions.
In response to the trial court's query about how Mai could have been transferred without any agreement between California and the federal government, counsel for defendants replied: "This is an unusual case. [CDCR] doesn't normally have inmates transferred pursuant to a [p]lea [a]greement....[¶] If it was done pursuant to a contract, then there would have been agreements about how much does California need to compensate the [f]ederal [g]overnment ....[¶] There's all kinds of details that are covered under the contract, which are just -- they're just not being -- this is not part of that." Counsel for Mai argued that defendants "have no power to act unless and until it is conferred by the Legislature. [¶] . . . [¶] The only way that CDCR can transfer an inmate to a [f]ederal institution is by way of . . . [section] 2911," counsel insisted.
In its written ruling, the trial court denied Mai's petition on two grounds and ruled defendants' demurrer was moot. The first ground for denial was Mai's failure to show the existence of a ministerial duty under California law, because while section 2911, subdivision (c) says no inmate may be transferred" 'pursuant to a contract entered into pursuant to subdivision (a) unless he or she has executed'" a written consent to the transfer, the "operative document governing" Mai's transfer was the federal plea agreement between Mai and the United States. The court also noted Mai cited no case law for the proposition that section 2911 applied to his case. And Mai admitted that the regulations and CDCR Operations Manual provisions flowed from the statutes.
The second ground for denial was Mai's failure to show he lacked an adequate remedy in the ordinary course of law, a prerequisite for issuance of a writ of mandate. Because Mai was "in effect, arguing that he is wrongly imprisoned in federal prison, pursuant to an improper plea agreement" and argued that conditions at the supermax prison were unnecessarily restrictive, he was "challenging the conditions of his confinement, for which habeas lies" as a remedy in the ordinary course of law. Mai filed a notice of appeal with this court in December 2022. His opening brief was filed in April 2023, and this case was fully briefed on July 12, 2023.
DISCUSSION
I
Negotiated Plea Agreement Constitutes a Type of Contract
"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles." (People v. Shelton (2006) 37 Cal.4th 759, 767.) Thus, we interpret plea bargains to give effect to what the parties expressly or by reasonable implication agreed upon. (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.)" 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs....' [Citations.] 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.'" (Shelton, at p. 767; see People v. Becerra (2019) 32 Cal.App.5th 178, 188-189.)
The plea bargain between Mai and the federal government defined the scope of Mai's confinement for his federal convictions and the sentence that flowed therefrom. Defendants argue the trial court "lacked jurisdiction to vacate a federal plea agreement term." But Mai is not seeking to vacate a term of the agreement. He served his federal time, and the relevant term of his plea agreement provides that he would "remain in [f]ederal custody until such time as all appeals of the death sentence have been exhausted." All appeals of the death sentence were exhausted as of 2014 at the latest, when the United States Supreme Court denied Mai's petition for writ of certiorari from the California Supreme Court's 2013 decision affirming the judgment of death. (Cf. People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1325 [" 'State convictions are final "for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied"' "].) The relief Mai seeks is not inconsistent with his federal plea agreement.
Further, the conduct of the parties following the conclusion of Mai's federal sentence supports the conclusion that the parties intended for Mai to be held in federal custody during the pendency of his capital appeals and as long as he was serving his federal sentence. Following the conclusion of Mai's federal sentence, which occurred years after the conclusion of his capital appeals, the federal government transferred Mai to a state prison to serve his capital sentence. If the federal government believed the plea bargain called for Mai's continued confinement in federal prison after serving his federal sentence, then there would have been no reason to transfer Mai to state custody upon completion of his federal term. Mai's federal sentence is over, his state court appeals have been exhausted, and the plea agreement has been performed. Thus, the federal plea agreement did not provide defendants the authority to transfer Mai back into federal custody in September 2020.
II
Section 2911
Given that we find the plea agreement did not authorize the action defendants took in September 2020, we turn next to the applicability of section 2911. The parties disagree on whether section 2911 is mandatory or permissive in the context at issue here. Mai contends that because the law articulates CDCR's sole statutory authority to transfer inmates to federal prisons, compliance with it is mandatory. Defendants disagree. We conclude defendants had a mandatory ministerial duty to obtain Mai's written consent before transferring him in September 2020 to federal officials for confinement.
A. Legal and Statutory Background
1. Writs of Mandate
" 'A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ....' (Code Civ. Proc., § 1085, subd. (a).) '[M]andamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner. [Citation.] Generally, mandamus may only be employed to compel the performance of a duty that is purely ministerial in character.' [Citation.] . . . 'Even if mandatory language appears in the statute creating a duty, the duty is discretionary if the [entity] must exercise significant discretion to perform the duty. [Citation.] We examine the entire statutory scheme to determine whether the [entity] must exercise significant discretion to perform a duty.'" (Mooney v. Garcia (2012) 207 Cal.App.4th 229, 232-233, italics omitted.)
2. Statutory Interpretation
"[T]he language used in a statute . . . should be given its ordinary meaning, and '[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) ....' [Citation.] To that end, we generally must 'accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,' and . . . '[a] construction making some words surplusage is to be avoided.' [Citation.] [¶] But '[t]he words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.' [Citation.] 'Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.'" (People v. Valencia (2017) 3 Cal.5th 347, 357-358.)
"[E]ven if it appears to have a clear and plain meaning when considered in isolation," statutory language "may nonetheless be rendered ambiguous when . . . read in light of the statute as a whole or in light of the overall legislative scheme." (People v. Valencia, supra, 3 Cal.5th at p. 360.)
3. Section 2911
Section 2911, subdivision (a) permits CDCR to "enter into contracts . . . with appropriate officials or agencies of the United States for the confinement . . . of those persons convicted of criminal offenses in the courts of this state and committed to state prisons as the director believes can benefit by the confinement."
Section 2911, subdivision (c) provides: "No inmate may be transferred from an institution within this state to a federal facility pursuant to a contract entered into pursuant to subdivision (a) unless he or she has executed, in the presence of the warden or other head of the institution in this state in which he or she is confined, a written consent to the transfer." The inmate also has the right to consult with an attorney prior to that appearance before the warden. (§ 2911, subd. (c).)
4. Other Relevant Statutes Regarding Inmate Placements and Transfers to Non-California Prisons
Section 2900, subdivision (b)(2) requires CDCR to "designate" a correctional institution of another jurisdiction as the "place of reception" of an inmate sentenced by a California court if (1) the California sentence is imposed before completion of actual confinement in a correctional institution of that other jurisdiction, (2) the inmate is sentenced by a California court to a term of imprisonment for a violation of California law, and (3) the judge of the California court orders that the California sentence shall run concurrently with the sentence the prisoner is already serving. Inmate consent is not required.
Section 2912, subdivisions (a) and (b) require CDCR to (1) devise a method to notify foreign-born inmates in CDCR custody that they may be eligible to serve their terms of imprisonment in their nation of citizenship and (2) actively encourage eligible inmates to apply for such arrangements.
Section 11189 declares California's adoption of the Interstate Corrections Compact (ICC) and contains the text of that agreement. Article IV(a) of the ICC permits authorities in a state that is party to the ICC to "decide that confinement in, or transfer of an inmate to, an institution within the territory of another party state is necessary or desirable" and to "direct that . . . confinement." (§ 11189.) Inmate consent is not required in the ICC.
Finally, the Legislature created an inmate consent requirement by enacting section 11191, subdivision (b), which provides that prisoners sentenced under California law may not be transferred to "an institution outside of this state, unless" they have "executed a written consent to the transfer." It further provides that inmates have the right to a private consultation with an attorney prior to giving written consent and may revoke their consent to a transfer at "any time more than five years after the transfer." (§ 11191, subd. (b).)
In 2013, while facing a federal court order that California reduce its prison population, the Legislature suspended the inmate consent requirement in section 11191 until January 1, 2017, and later extended that suspension until January 1, 2020. (See Stats. 2013, ch. 310, §§ 17, 18 (Senate Bill No. 105); Assem. Com. on Budget, Rep. on Sen. Bill No. 105 (2013-2014 Reg. Sess.) as amended Aug. 27, 2013, p. 2; Stats. 2016, ch. 33, § 33 (Senate Bill No. 843).)
B. Analysis
1. Standard of Review
Whether a statute imposes a" 'ministerial duty . . . or a mere obligation to perform a discretionary function is a question of statutory interpretation.' [Citation.] 'In reviewing the trial court's ruling, we will affirm if substantial evidence supports its findings and judgment. To the extent questions of law such as statutory interpretation are involved, we exercise our independent judgment.'" (Mooney v. Garcia, supra, 207 Cal.App.4th at p. 233.)
2. Legislative History
The legislative scheme of inmate placement, confinement, and transfer reflected in the Penal Code provisions discussed above reflect that other than in situations where a trial court orders a California prison term to run concurrently with a previously imposed sentence of confinement from another jurisdiction (§ 2900, subd. (b)(2)), CDCR officials may send a California inmate outside California for confinement only with inmate consent (see §§ 11191, 2912).
Here, the trial court ruled that section 2911 is inapplicable to Mai's situation because his plea agreement with the United States was the "operative document governing" his transfer. We disagree and find that section 2911 provided the only means by which defendants could have lawfully transferred Mai in September 2020.
Defendants had a ministerial duty to comply with section 2911, which included having an agreement and obtaining Mai's informed written consent. By failing to obtain Mai's written consent, defendants did not comply with their duty.
a. Senate Bill No. 164
The legislative history reflects an understanding that section 2911, as originally enacted by Senate Bill No. 164 in 1973, was the first grant of authority permitting CDCR officials to send California inmates to federal facilities for confinement and was animated in part by a recognition that inmates might benefit from the new law.
On our own motion, we take judicial notice of the cognizable legislative history of section 2911 discussed herein. (Evid. Code, §§ 452, subd. (c), 459; City of Rocklin v. Legacy Family Adventures-Rocklin, LLC (2022) 86 Cal.App.5th 713, 733, fn. 8.)
CDCR's predecessor, the Department of Corrections, proposed the original law explaining in an enrolled bill report to then Governor Ronald Reagan that the legislation awaiting his signature would for the first time "[a]uthorize[] the transfer of State prisoners to Federal prisons." (Cal. Dept. Corrections, Enrolled Bill Rep. on Sen. Bill No. 164 (1973-1974 Reg. Sess.) July 5, 1973, Governor's chaptered bills files, ch. 187.)While the Department of Corrections "for many years, ha[d] been authorized to accept and ha[d] accepted Federal prisoners for confinement in State prisons," section 2911 made it "a two-way street and [was] a modest . . . step toward the integration of the correctional apparatus." (Ibid.) The department explained that while "[n]o inmate can be transferred from a state to Federal prison without his written consent," such consent might be forthcoming in cases where inmates were in protective custody ("protective custody cases can be housed with more freedom and greater safety" in federal "locations") or wanted to be "nearer their families or closer to where they intend to reside on parole." (Ibid.)
"[E]nrolled bill reports, prepared by a responsible agency contemporaneous with passage and before signing" can be "instructive on matters of legislative intent." (Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19; cf. Almond Alliance of California v. Fish & Game Com. (2022) 79 Cal.App.5th 337, 365 [declining to consider a bill report to be instructive as to the meaning of statutory text where it was not created by "a responsible agency implementing and enforcing the provisions"].) Here, the Department of Corrections not only was responsible for enforcing the legislation but sponsored it.
Similarly, the Assembly third reading digest stated the legislation "[w]ould grant the Department of Corrections a reciprocal right to contract for the use of federal facilities and services for care of state inmates" (Assem. 3d reading digest on Sen. Bill No. 164) and the Legislative Analyst explained the proposed legislation "prohibits the transfer of any unconsenting inmates" (Legislative Analyst, Analysis of Sen. Bill No. 164 (1973 Reg. Sess.) as amended May 24, 1973).
b. 1994 Amendments
The legislative history of amendments to section 2911 reflects no shift from the original understanding of the statute. In 1994, the Legislature passed and then Governor Pete Wilson signed into law Senate Bill No. 1878 to prod the federal government to take custody of and deport California inmates who were undocumented noncitizens.
Small amendments to section 2911 were made in 1977 and 1979, and they are immaterial here. (Stats. 1977, ch. 165, § 35, p. 660; Stats. 1979, ch. 255, § 15, p. 555; Historical and Statutory Notes, 51B pt. 1 West's Ann. Pen. Code (2023 ed.) foll. § 2911, p. 416.)
(See Stats. 1994, ch. 565, § 1, subds. (d), (j), § 2.) With that purpose in mind, the Legislature added language to section 2911, subdivision (c). As relevant here, it inserted the words "entered into pursuant to subdivision (a)" into subdivision (c), changing it from "[n]o inmate may be transferred . . . to a federal facility pursuant to such a contract unless he has executed . . . a written consent" to how it reads now: "[n]o inmate may be transferred . . . to a federal facility pursuant to a contract entered into pursuant to subdivision (a) unless he or she has executed . . . a written consent." (Italics added.) By adding the phrase "entered into pursuant to subdivision (a)" into section 2911, subdivision (c), the Legislature distinguished contracts between California and the federal government for confinement of California prisoners on the one hand, from any potential contracts for receipt, temporary custody, and deportation of undocumented California prisoners on the other hand. Thus, given the explicit legislative findings and intent, Senate Bill No. 1878's amendments to section 2911 granted authority to California prison officials to contract with federal officials to transfer undocumented inmates to federal immigration authorities for deportation without inmate consent but left unchanged the authority of California prison officials to transfer inmates to federal custody for confinement only with consent.
The Legislature also added subdivision (g), which provides that section 2911 shall not apply to inmates transferred to federal immigration authorities pursuant to section 5025, which requires CDCR to separately facilitate the exchange of information with federal entities.
In 1994, California lawmakers enacted a different version of section 2911 that is operative only upon enactment of federal legislation requiring the United States to imprison in the federal prison system any undocumented felon who is sentenced and imprisoned under California law for the entire term of the California sentence. (Stats. 1994, ch. 567, § 6; 51B pt. 1 West's Ann. Pen. Code (2023 ed.) foll. § 2911, pp. 418419.) That version of section 2911 does not have the two changes made to the statute by Senate Bill No. 1878.
Conclusion
The legislative history makes clear that the phrase "pursuant to such a contract" in the original section 2911, subdivision (c) detailed the mechanism for transfer of California inmates to federal custody for confinement. And when in 1994 the Legislature added the phrase "entered into pursuant to subdivision (a)" to subdivision (c), it did so to distinguish contracts for confinement with the federal government from contracts for deportation. Absent Mai's written consent and given that the federal plea agreement was no longer controlling, defendants had no authority to transfer him from California to a federal facility to serve his California sentence. Put differently, defendants had a mandatory ministerial duty to obtain Mai's written consent before transferring him in September 2020 to federal officials in Colorado for confinement.
This conclusion makes it unnecessary to address Mai's contention that, under black letter administrative agency law, defendants had no" 'inherent power'" to transfer him. Defendants do not explicitly contend they had such inherent power. (Cf. California Correctional Peace Officers Assn. v. Schwarzenegger (2008) 163 Cal.App.4th 802, 808809 [ruling Governor Schwarzenegger "did not exceed his powers in declaring a state of emergency based on prison overcrowding, and CDCR's contracts with out-of-state private prisons do not violate article VII of California's Constitution"].) Rather, defendants contend section 2911 does not preclude CDCR's compliance with "a non-discretionary duty to transfer an inmate," when required to do so by (a) federal writs of habeas corpus ad testificandum and ad prosequendum and (b) extradition orders from other states. But as Mai correctly observes, inmate transfers under those scenarios do not implicate section 2911, subdivision (c)'s consent requirement because they are not for the purpose of confinement, but for resolution of pending court proceedings.
Thus, the trial court erred in denying the petition on grounds Mai failed to show defendants had a ministerial duty.
III
Availability of an Alternative Remedy
"The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law," and where the party seeking the writ is "beneficially interested." (Code Civ. Proc., § 1086.) Taken together, sections 1085 and 1086 of the Code of Civil Procedure "have been interpreted as identifying two requirements essential to the issuance of the writ-namely, (1) a clear, present and usually ministerial duty upon the part of the respondent and (2) a clear, present and beneficial right in the petitioner to the performance of that duty." (Villery v. Department of Corrections &Rehabilitation (2016) 246 Cal.App.4th 407, 413-414 (Villery).)
Under Code of Civil Procedure section 1086, if other requirements have been met, "issuance of a writ is mandatory when an adequate legal remedy is not available." (Villery, supra, 246 Cal.App.4th at p. 414, italics added.) Whether a writ of mandate "remains available when there is an adequate remedy in the ordinary course of law was not explicitly addressed by the Legislature.... The California Supreme Court has addressed the Legislature's silence on this aspect of mandamus relief by adopting the 'general rule that the writ will not . . . issue[ ] if another such remedy [is] available to the petitioner.'" (Ibid.) Whether there is a plain, speedy, and adequate remedy in the ordinary course of law within the meaning of the Code of Civil Procedure section 1086 is a legal question, not a factual one. As such, it is subject to independent review on appeal. (Villery, at pp. 414-415.)
In Villery, the appellate court concluded that, because our Supreme Court has described the writ of habeas corpus as an "extraordinary remedy that usually addresses unlawful imprisonment or restraint of liberty, . . . it is not available 'in the ordinary course of law'" when the relief sought is an order compelling CDCR personnel to comply with a ministerial duty to process an inmate grievance. (Villery, supra, 246 Cal.App.4th at p. 416.)
Consistent with the trial court's ruling - that Mai was "in effect, arguing that he [was] wrongly imprisoned in federal prison" and was challenging the "conditions of his confinement" - defendants contend Villery is inapplicable here because Mai "seeks an order that fundamentally challenges his continued incarceration in federal custody." We disagree.
The flaw in that line of reasoning is that it ignores the heart of Mai's claim: that he was wrongly transferred to a federal facility, in contravention of defendants' ministerial duty to obtain his written consent beforehand. Mai does not seek liberty. He seeks incarceration in a California facility. Viewed through that lens, the reasoning of Villery applies here. Habeas is not an adequate remedy available in the ordinary course of law when an inmate seeks an order compelling CDCR officials to comply with a mandatory ministerial duty. Thus, the trial court erred in denying the petition on grounds that a habeas petition was an adequate remedy available to Mai in the ordinary course of law.
In that regard, Mai described in detail the conditions of his federal confinement in the petition to demonstrate he was "beneficially interested" (Code Civ. Proc., § 1086) in issuance of the writ of mandate (see Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 1159, 1173 [the beneficial interest requirement has been interpreted to mean that one may obtain writ relief only if the beneficial interest is direct and substantial]).
IV
Arguments for Affirmance on Other Grounds
We reject defendants' arguments that we can and should affirm the denial of Mai's petition on other grounds.
A. No Practical Benefit
Defendants contend the trial court's ruling is not erroneous because "relief in this action will not actually provide Mai with any practical benefit" because "it is reasonable to infer that federal authorities would not consent" to Mai's removal from federal custody. We decline to adjudicate a hypothetical situation that is not before us. (Cf. Teachers' Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1043-1044 ["we decline to issue an advisory opinion to forestall hypothetical events that may never occur"].)
B. Failure to Join the United States as a Necessary Party
Defendants contend that under section 389 of the Code of Civil Procedure, Mai's failure to join the United States as a necessary party triggered the trial court's duty to decide whether Mai's action nonetheless should have proceeded. (Code of Civ. Proc., § 389, subd. (b) [if a necessary party is not a party to the action "the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice"].) Defendants maintain that Mai cannot meet his burden under the four-factor test that trial courts must apply in such situations.
As a threshold matter, the federal government has no independent claim of jurisdiction over Mai. This is so because Mai's federal sentence is over, his state court appeals have been exhausted, and the plea agreement has been performed. (Cf. Maleng v. Cook (1989) 490 U.S. 488, 491-492 [explaining that "once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual 'in custody' for the purposes of a habeas attack upon it"].)
Even assuming for purposes of this argument that the United States nevertheless is a necessary party under the statute, defendants' argument is unpersuasive because the applicable four-factor test is an inquiry that implicates (a)" 'fact-specific' considerations" and the" 'balancing of competing interests'" and (b) calls for a pragmatic decision that is entrusted to a court's discretionary judgment about case management that should not be second-guessed on appeal. (County of San Joaquin v. State Water Resources Control Bd. (1997) 54 Cal.App.4th 1144, 1152-1153.) Even when a necessary party is not joined in an action, the trial court may decide the action nevertheless can proceed. Thus, it would be inappropriate for us now to conduct such an inquiry in the first instance.
C. Waiver of Right to Challenge Confinement in Federal Custody
Defendants argue that in his federal plea agreement, Mai "waived his right to challenge his continued confinement in federal custody." In his federal plea, Mai "waive[d] any right he may have to challenge his remaining in [f]ederal custody." (Italics added.) Mai's petition does not implicate that provision, because he remained in federal custody until July 2020, when, consistent with the plea agreement and the California sentence imposed, he completed his federal sentence and was transferred back to California and CDCR custody. Mai is challenging his new confinement in federal custody that began in September 2020 when he was transferred from CDCR custody back into BOP custody to serve the remainder of his California death sentence.
We decline defendants' invitation to disregard Mai's argument on this issue on grounds he failed to raise the argument in the trial court. To the extent Mai forfeited the argument we excuse the forfeiture. This is an important legal issue and, since the trial court did not rule on it, our consideration of the issue is not unfair to the trial court. (See People v. Dillard (2018) 21 Cal.App.5th 1205, 1227 ["we exercise our discretion to excuse any forfeiture"; "[t]he issue is one of law and does not involve any disputed facts"]; People v. Espiritu (2011) 199 Cal.App.4th 718, 725 [an appellate court has "discretion to excuse forfeiture in cases presenting an important legal issue"]; Hartley v. Superior Court (2011) 196 Cal.App.4th 1249, 1260 ["The main purpose of the forfeiture rule is to protect the trial court and the opposing party from unfairness [citation], and we perceive no unfairness"].)
D. Judicial Estoppel
Defendants contend Mai is judicially estopped from challenging his plea agreement because he successfully advanced the position in federal court that he would remain in federal custody until his California sentence is final, and he now seeks to repudiate the agreement. Not so. As explained above, the relief Mai seeks is not inconsistent with his federal plea agreement, which contained a term that he would "remain in [f]ederal custody until such time as all appeals of the death sentence have been exhausted." (Italics added.)
DISPOSITION
The judgment is reversed, and the trial court is directed to enter an order granting the petition for writ of mandate.
See Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1068-1069 [issuing a writ of mandate directing officials to comply with their ministerial duties under a statute and to "take all necessary remedial steps to undo the continuing effects of" their "past unauthorized actions"].
We concur: ROBIE, Acting P. J., KRAUSE, J.