Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 68038
Premo, J.
Appellant Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (the Secretary), appeals from the superior court’s order granting petitioner Donald Ray Lewis’s petition for writ of habeas corpus and directing the Board of Parole Hearings (Board) to reduce Lewis’s parole term. The Secretary argues that Lewis is not entitled to any credit against his parole period, since he was lawfully incarcerated until his release date. We agree and shall reverse.
I. Factual and Procedural Background
In March 1978, after pleading guilty to one count of first degree murder (Pen. Code, § 187), one count of robbery (§ 211), and one count of taking a vehicle (Veh. Code, § 10851), as well as admitting to using a knife in connection with each of those crimes (§ 12022, subd. (b)), Lewis was sentenced to life in prison with the possibility of parole.
All further unspecified statutory references are to the Penal Code unless otherwise indicated.
In 2006, the Board granted Lewis parole, and set his total net period of confinement, after subtracting applicable postconviction credits, at 80 months. On January 26, 2007, the Governor, as authorized by statute, reversed the Board’s decision. (§ 3041.2.) The superior court granted a petition for writ of habeas corpus by Lewis challenging the Governor’s decision, reinstating the Board’s grant of parole and inviting the Governor to conduct a new review of the matter within 30 days. The superior court’s order also provided that, in any such review by the Governor, the life crime “may not be invoked as a basis to deny parole.”
The Secretary appealed, and petitioned for a writ of supersedeas to stay the superior court’s order, which we denied. When the Governor did not conduct a second review of the Board’s decision, Lewis was released to parole on February 2, 2008. (In re Lewis, supra, H032463.) In May 2009, we modified the superior court’s order granting the petition to give the Governor an opportunity to review the Board’s decision in light of In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241.
On our own motion, we take judicial notice of the record in the Secretary’s appeal from the superior court’s December 26, 2007 order granting Lewis’s petition for writ of habeas corpus. (In re Lewis (May 19, 2009) H032463 [nonpub. opn.].)
Following his release on parole, Lewis filed the operative petition for writ of habeas corpus, alleging that he should be immediately discharged from parole because his 29 years of incarceration exceeded his combined prison and parole terms. The superior court granted his petition, though it did not order Lewis immediately discharged from parole. Instead, the superior court reasoned that, because it had previously determined that the Governor’s January 2007 reversal of Lewis’s grant of parole was “unlawful,” the Board was required to “reduce [Lewis]’s parole term by all time served in custody pursuant to the invalid decision by Governor Schwarzenegger.”
The Secretary timely appealed.
II. Discussion
The parties agree that this matter is subject to de novo review, as the superior court’s findings were based on documentary evidence alone and the case presents a question of law. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677; In re Collins (2001) 86 Cal.App.4th 1176, 1181.)
The parties also do not dispute that Lewis was subject to three years of parole. The question before this court is whether or not Lewis is entitled to credits against that parole period for the interval between the Governor’s 2007 decision reversing the Board and Lewis’s eventual release on parole in 2008. The superior court found that he was entitled to such credits because the Governor’s decision was erroneous and thus Lewis was “illegally in custody” during that interval.
On appeal, the Secretary contends that the superior court’s order must be reversed because Lewis was lawfully incarcerated until the date he was released on parole, i.e., February 2, 2008, and there is no law which authorizes an application of credits against Lewis’s parole period. In support of this argument, the Secretary relies principally on section 3000, which sets forth certain legislative findings regarding the importance of parole, and a number of rules regarding the length of parole periods.
Section 3000, subdivision (a)(1) provides: “The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. It is in the interest of public safety for the state to provide for the supervision of and surveillance of parolees, including the judicious use of revocation actions, and to provide educational, vocational, family and personal counseling necessary to assist parolees in the transition between imprisonment and discharge. A sentence pursuant to Section 1168 or 1170 shall include a period of parole, unless waived, as provided in this section.” Section 3000 also includes provisions dictating the length of the parole period to be imposed on an inmate, and empowers the Board to waive parole for good cause, as well as “consider the request of any inmate regarding the length of his or her parole and the conditions thereof.” (Id., subd. (b)(4).)
Pursuant to section 2900, subdivision (c), “all time served in an institution designated by the Director of Corrections shall be credited as service of the term of imprisonment,” and “term of imprisonment” is defined in section 2900.5, subdivision (c), as including “any period of imprisonment and parole.” The language of section 2900.5, subdivision (c) has been construed to mean “ ‘any period of imprisonment lawfully served.’ ” (In re Bush (2008) 161 Cal.App.4th 133, 143 (Bush).)
In Bush, the defendant had been sentenced to an indeterminate life term in 1985, and was eventually found suitable for parole in 2004. (Bush, supra, 161 Cal.App.4th at pp. 138-139.) Although the Board’s decision granting parole was final as of November 15, 2004, prior to Bush’s release the Governor requested an en banc review of the suitability determination. (Id. at p. 139.) Bush’s petition for writ of habeas corpus was granted on the grounds that the Governor’s request for en banc review was untimely, and Bush was released from prison, subject to a five-year parole period, on March 19, 2005. (Ibid.) He again petitioned for a writ of habeas corpus, arguing that because he had over 20 years of custody credits and his base term was set at 12 years, six months, the excess time should be credited against his parole period. (Ibid.) The superior court denied the petition, rejecting the argument that Bush was entitled to credit against his parole term for the days by which his actual time in prison exceeded the base term set by the Board, but granted the petition to the extent it sought credits for the period Bush remained in custody while the Governor’s untimely request for en banc review was pending. (Ibid.)
That aspect of the superior court’s order was not challenged, and thus the court did not address it on appeal. (Bush, supra, 161 Cal.App.4th at p. 143, fn. 4.) It appears that the superior court awarded these credits because Bush was unlawfully incarcerated during that time period due to the Governor’s untimely request for an en banc review. (Id. at p. 139.)
Raising the same arguments, Bush filed an original proceeding in the Court of Appeal. After analyzing the determinate sentencing law and the law relating to parole of those serving indeterminate life terms, the court concluded that the phrase “term of imprisonment” as used in section 2900.5, subdivision (c) “includes the time a life prisoner lawfully spends in prison custody awaiting a determination of suitability for parole.” (Bush, supra, 161 Cal.App.4th at p. 143.) Because Bush was serving an indeterminate life sentence, rather than a determinate term, he “was lawfully confined while serving time in prison awaiting a suitability determination, even though the length of his incarceration was greater than the base term ultimately set by the Board.” (Id. at p. 144.)
Lewis’s reliance on McQuillion v. Duncan (9th Cir. 2003) 342 F.3d 1012 (McQuillion), is misplaced. As an initial matter, this court is not bound by federal appellate court decisions. (People v. Bradley (1969) 1 Cal.3d 80, 86.) Furthermore, McQuillion is distinguishable because in that case, the Ninth Circuit found that the Board’s rescission of McQuillion’s parole was not supported by “some evidence.” (McQuillion, supra, at p. 1014.) Since the rescission was not supported by “some evidence,” the period during which McQuillion was unlawfully incarcerated was properly credited against his three-year parole period. (Id. at p. 1015.)
In this case, however, the Governor’s decision with respect to Lewis, while inadequate in light of Lawrence and Shaputis, was not devoid of supporting evidence. The Governor, acting within his statutory authority, reviewed the Board’s decision to grant parole and, on January 25, 2007, reversed that decision. (§ 3041.2.) Lewis, as was his right, challenged the Governor’s reversal, and both the superior court and this court ultimately found that the Governor’s decision failed to adequately articulate how the factors cited therein supported the conclusion that Lewis posed a current threat to public safety. (Lewis, supra, H032463.) Neither this court nor the superior court, however, found that there was no evidence to support the Governor’s decision. (Ibid.) If that were the case, “ ‘a remand to the Governor would amount to an idle act,’ ” and the proper remedy would have been to vacate the Governor’s decision and reinstate the Board’s decision granting parole. (In re Dannenberg (2009) 173 Cal.App.4th 237, 256-257, quoting In re Aguilar (2008) 168 Cal.App.4th 1479, 1491.) Under those circumstances, Lewis’s continued incarceration pursuant to the Governor’s decision could properly be characterized as unlawful, thus entitling him to the credits he claims herein.
In his opening brief, Lewis suggests that the Governor’s failure to again review the Board’s decision in response to the superior court’s order amounts to a “concession” that there was not “some evidence” to support a reversal of the Board’s suitability finding. We disagree, for two reasons. One, it is equally likely the Governor declined to re-review the Board’s decision because of the restrictions contained in the superior court’s order. For example, the order sought to prohibit the Governor, in any re-review, from invoking the life crime as a basis for denying parole, a prohibition which improperly restricted the Governor’s discretion. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.) Two, there was at least a possibility that the superior court’s order would be reversed on appeal.
Accordingly, since Lewis was not illegally incarcerated from January 25, 2007 to February 2, 2008, he is not entitled to credits for that time period against his three-year parole term.
III. Disposition
The order granting Lewis’s petition for writ of habeas corpus is reversed. The superior court is directed to enter a new order denying the petition.
WE CONCUR: Rushing, P.J., Elia, J.