Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super.Ct.No. 75911
Opinion following rehearing
Duffy, J.
The People appeal from an order of the superior court ending Ernest Smith’s parole on the ground that he had completed his parole requirements. The People argue that the procedure by which the superior court issued its order was defective, and, substantively, that Smith must remain on parole because he has not satisfied the time requirements of his parole term. We will affirm the order.
FACTS AND PROCEDURAL BACKGROUND
The facts and procedural background in this case are undisputed. Smith was convicted in 1980 of committing second degree murder earlier that year. In 2001, the then-named Board of Prison Terms (hereinafter “parole board”) and that board’s review committee found Smith eligible for parole. (In re Smith (2003) 114 Cal.App.4th 343, 349, 351.) The parole board set Smith’s base term of imprisonment for the murder at 20 years. (Id. at p. 356.)
The Board of Prison Terms was abolished effective July 1, 2005, and replaced by the Board of Parole Hearings. (Pen. Code, § 5075, subd. (a).)
The Governor, as authorized by statute, reversed the parole board’s decision. (Pen. Code, § 3041.2.) The superior court granted a petition for writ of habeas corpus by Smith challenging the Governor’s decision, and ordered him released forthwith. In 2003, we reversed the superior court’s order granting the petition. But, favorably to Smith, we reinstated the parole board’s decision that made Smith eligible for parole and ordered the superior court to enter another order directing the Governor to vacate his decision reversing the parole board’s decision granting parole to Smith. We gave the Governor another opportunity to review the parole board’s decision. (In re Smith, supra, 114 Cal.App.4th at pp. 349, 374-375.)
In an order filed on February 27, 2004, the superior court complied with our directions, and on March 25, 2004, the Governor announced that he would not review the parole board’s decision. On April 1, 2004, a few days after the Governor’s new determination, Smith was released to serve five years on parole. On November 16, 2005, Smith filed a postjudgment motion arguing that his parole should be ended because the length of his time in prison, combined with credits he received for confinement in jail and for good behavior, exceeded the amount of time he was required to be in actual custody behind prison walls or in the constructive custody that parole constitutes (Pen. Code, § 3056; People v. Nicholson (2004) 123 Cal.App.4th 823, 830). The superior court treated Smith’s motion as a petition for writ of habeas corpus and ordered the People to show cause why Smith should not be immediately discharged from parole. On April 28, 2006, the court filed an order that stated: “For the reasons stated in the petition (motion) and traverse, habeas relief is granted. Petitioner’s parole is hereby terminated and he is discharged free and clear.” The People filed notice of appeal and also a petition for writ of supersedeas on May 23, 2006. The latter sought a stay of the court’s order. On September 28, 2006, we granted the petition for writ of supersedeas, staying the order until final determination of the People’s appeal, which in the meantime the People had properly brought under Penal Code section 1506. We now address the merits of the People’s contentions on appeal.
DISCUSSION
I. Procedural Considerations
The People contend that Smith’s postjudgment motion should have been denied because it presented a claim not raised in his prior habeas corpus petition (considered by this court in In re Smith, supra, 114 Cal.App.4th 343) and that case was closed. The People base this contention on an argument that the superior court did not choose to treat Smith’s motion as a new petition for writ of habeas corpus. Rather, the record shows that the court did treat Smith’s motion as a new habeas corpus petition. And it had the power to do so. (People v. Devore (1990) 218 Cal.App.3d 1316, 1318-1319.)
Next, the People contend that because Smith’s postjudgment motion was not verified, it could not be construed as a properly filed petition for writ of habeas corpus. This claim is forfeited. The People do not contend that they complained of the form of Smith’s motion either before or after the superior court elected to treat his filing as a habeas corpus petition. In In re Linda D. (1970) 3 Cal.App.3d 567, the court held: “It is the rule that the failure to verify a petition to have a minor declared a ward of the juvenile court is a defect in the pleading which does not go to the court’s jurisdiction and must be raised prior to the hearing or it is waived.” (Id. at p. 571.) Similarly, the People’s claim that Smith failed to verify the motion that the superior court treated as a petition for writ of habeas corpus is forfeited on appeal. “[N]o objection having been made in the trial court, it is now too late to raise the question of the insufficiency of the petition.” (In re Davis (1930) 110 Cal.App. 616, 617.)
II. Whether Smith Is Entitled to Have His Parole Status Ended
The question before us is primarily one of construing the law governing the application of sentence credits to parole status in light of this case’s undisputed facts. For that reason alone, we review the superior court’s order de novo. (See Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 797 [“As we have acknowledged, ‘[c]onstruction and application of a statute involve questions of law, which require independent review’ ”].) In addition, in considering Smith’s petition for writ of habeas corpus, “ ‘the court below did not conduct an evidentiary hearing but reached its decision based on the exhibits attached to the petition and return. Under the circumstances, we shall independently review the record.’ ” (In re Lowe (2005) 130 Cal.App.4th 1405, 1420; see also id. at p. 1421.)
The People present us with a technical argument about the possible dates on which Smith became eligible for parole. In the People’s view, although the parole board determined in 2001 that Smith’s base term was 20 years, Smith’s entitlement to parole did not mature until March 25, 2004, when the Governor, considering Smith’s case again, elected not to review the parole board’s decision to parole him.
In fact, however, the question rests not on when Smith perfected his entitlement to parole, but on the legal effect of the fact that the length of Smith’s credits earned for time spent in actual custody plus the time he has already spent on parole exceeded his sentence. He has a surplus of credits, and we must decide whether they apply to reduce his parole period.
In our prior opinion, filed before we ordered rehearing on our own motion, we considered at length the effect of good-conduct credits Smith had earned. For reasons that will appear in this discussion, we have concluded that we need not consider his good-conduct credits, but only his in-custody credits and time already spent on parole.
As alluded to, the arithmetical facts are undisputed. Smith’s term of imprisonment was 20 years. (In re Smith, supra, 114 Cal.App.4th at p. 356.) When the parole board set Smith’s base term of imprisonment at 20 years, that term became his prescribed punishment. “The Board, in setting the release date for an indeterminate sentence, performs the same function as does the trial court in ordering a determinate sentence—it fixes a term of definite duration.” (In re Hogan (1986) 187 Cal.App.3d 819, 824.) Against that, Smith is entitled to credit for having spent 23.5 years in prison. (Pen. Code, §§ 2900, subd. (c), 2900.5, subds. (a), (c).) And he is entitled to approximately two years and one month of credit for time served on parole. He was confined until April 1, 2004, and was released to parole, remaining on parole until the superior court filed the order granting relief on April 28, 2006. The three and one-half years of excess prison credit and the two years and one month served on parole more than equal Smith’s five-year parole period.
Penal Code section 2900, subdivision (c), provides: “Except as provided in this section, all time served in an institution designated by the Director of Corrections shall be credited as service of the term of imprisonment.” Penal Code section 2900.5, subdivision (a), provides: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a . . . prison . . ., all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment . . . .” Penal Code section 2900.5, subdivision (c), provides: “For the purposes of this section, ‘term of imprisonment’ includes any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence, and also includes any term of imprisonment, including any period of imprisonment prior to release on parole and any period of imprisonment and parole, prior to discharge, whether established or fixed by statute, by any court, or by any duly authorized administrative agency.”
The People argue, however, that parole is a separate penal servitude that Smith must satisfy apart from and notwithstanding any excess in his credits over his sentence. We agree with Smith that he need not do so. Not only does Penal Code section 2900.5, subdivision (c), define a “term of imprisonment” as including “any period of imprisonment and parole,” suggesting that Smith need not do so, but in another context, statutory law provides for that result. Penal Code section 1170, subdivision (a)(3), specifies in the case of a prisoner serving a determinate term, “[t]he court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendant’s last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole.”
Decisional law also favors Smith. In In re Ballard (1981) 115 Cal.App.3d 647, the parole board proposed “deducting from [Ballard’s] parole term the excess of the time [he] actually spent in prison beyond the time he should have spent had all credits . . . been timely applied.” (Id. at p. 649.) The parole board in Ballard made this suggestion after acknowledging that “the amount of time petitioner spent incarcerated, in excess of the period he would have spent had all custody . . . credits . . . to which he was entitled been applied, should be deducted from his parole term.” (Id. at pp. 648-649.) The Ballard court agreed. (See also In re Randolph (1989) 215 Cal.App.3d 790, 795; In re Reina (1985) 171 Cal.App.3d 638, 642; In re Anderson (1982) 136 Cal.App.3d 472, 476 (per curiam).)
The People advance countervailing arguments. They stress that Penal Code section 3000, which sets forth a number of rules regarding the length of parole periods, provides no provision for credits against the parole period (but see id., § 1170, subd. (a)(3), as quoted in this discussion). The People also rely on Penal Code section 3000’s finding regarding the benefits of parole following imprisonment: “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 [Penal Code s]ection 1168 or 1170 shall include a period of parole, unless waived, as provided in this section.” (Id., subd. (a)(1).) This general language, however, must give way to more specific statutes, under the rule that specific statutes prevail over and control more general ones. (Lake v. Reed (1997) 16 Cal.4th 448, 464.) Certainly Penal Code section 1170, subdivision (a)(3), would prevail over Penal Code section 3000, and we find it hard to believe that the Legislature would favor one rule for prisoners whose determinate terms were set by the sentencing court and another for prisoners whose determinate terms were eventually set by the parole board. We cannot say that Penal Code section 3000’s broad statements of legislative findings should operate to defeat Smith’s right to relief. Moreover, the gravamen of subdivision (a)(1) of section 3000 is the requirement that a “sentence pursuant to [Penal Code s]ection 1168 or 1170 shall include a period of parole, unless waived, as provided in this section.” The parties do not dispute that Smith was subject to five years of parole.
The People also rely on a statement in People v. Jefferson (1999) 21 Cal.4th 86, in which the Supreme Court remarked that “under the present law the prison ‘term’ is the actual time served in prison before release on parole, and the day of release on parole marks the end of the prison term. Unlike the pre-1977 sentencing law, the period of parole is not part of a defendant’s prison term. . . .” (Id. at p. 95, original italics omitted.) The People argue in essence that the language of Jefferson instructs that Smith should serve his five-year parole term.
People v. Jefferson, supra, 21 Cal.4th 86, does not, however, defeat defendant’s entitlement to relief. Jefferson must be understood in the context of the question presented there, namely how to “interpret the phrase ‘minimum term for an indeterminate term,’ as it is used in [Penal Code] section 667[, subdivision] (e)(1). This phrase is not defined in the “Three Strikes” law or elsewhere in the Penal Code. To ascertain its meaning, we examine the manner in which the length of an inmate’s term is calculated under both the Determinate Sentencing Act and the indeterminate sentencing scheme that preceded it.” (Id. at p. 94.) This case does not present the question of how to calculate Smith’s base term of imprisonment: the parole board set it at 20 years. We find no language in Jefferson to support the People’s position. Jefferson concluded: “Because [Penal Code] section 3046 requires that a defendant sentenced to life imprisonment with the possibility of parole serve ‘at least seven calendar years or . . . a term as established pursuant to any other section of law that establishes a [greater] minimum period of confinement’ before becoming eligible for parole, it sets forth a ‘minimum term’ within the meaning of [Penal Code] section 667[, subdivision] (e)(1), which provides that for a defendant with a prior strike the ‘minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony provision.’ ” (Id. at p. 96.) It is a truism of the law that cases are not authority for propositions not considered. (People v. Avila (2006) 38 Cal.4th 491, 567.) Jefferson did not consider anything remotely related to the posture of this case, and does not weigh in our assessment of it.
DISPOSITION
The superior court is directed to direct the Board of Parole Hearings to discharge Smith from parole. As modified, the court’s order is affirmed.
I CONCUR: McAdams, J.
Mihara, Acint P.J., Concurring.
Although, I agree that Smith was entitled to be discharged from parole, I write separately because my analysis differs from that of the majority opinion.
I. Background
Smith’s second degree murder offense occurred in 1980. He was convicted and sentenced to 15 years to life consecutive to a two-year determinate term. (In re Smith (2003) 114 Cal.App.4th 343, 349.) In February 2001, the Board of Prison Terms (the Board) found that Smith was suitable for parole and set his term at 240 months.
In August 2001, the Governor reversed the Board. In December 2002, the superior court granted Smith’s habeas petition and ordered that he be released on parole. In December 2003, this court held that the Governor’s reversal was invalid because some of the Governor’s reasons were not supported by some evidence. However, this court did not affirm the superior court’s order. Instead, this court ordered the Board’s 2001 decision reinstated and allowed the Governor to again review the matter. On March 25, 2004, the Governor declined to review the Board’s decision to grant parole to Smith.
Smith was released on parole on April 1, 2004. At the time of his release, Smith had been in custody for approximately 23.5 years, well in excess of the 240-month term set by the Board.
In November 2005, Smith filed a motion in the superior court, which the superior court treated as a habeas corpus petition, seeking termination of his parole. He claimed that he had spent 282 months in custody, was entitled to an additional 94 months of postconviction credits, and had served another 18 months on parole. Smith argued that the excess time he had spent in custody had fully satisfied his obligation to serve a parole period. In December 2005, the superior court issued an order to show cause. The People filed a return, Smith filed a traverse, and the court issued an order terminating Smith’s parole and ordering that he be “discharged free and clear.” The People appeal.
Smith was inconsistent in his motion on these figures. First, he said he had served 269 months in prison and was entitled to 89 months of postconviction and preprison credit. At another point, he asserted that he had served 281 months in actual custody and was entitled to 87 months of postconviction credit. The People’s return did not take issue with his figures. Smith’s traverse stated that he had served 282 months in prison and was entitled to 94 months of postconviction credit. I will accept the figures from his traverse, as the People have not attempted to discredit them.
II. Analysis
The sole question is whether the parole period of a life prisoner convicted of murder may be reduced by the application to the parole period of credit for actual custody time served in excess of the term set by the Board.
Penal Code section 2900 provides “[e]xcept as provided in this section, all time served in an institution designated by the Director of Corrections shall be credited as service of the term of imprisonment.” (Pen. Code, § 2900, subd. (c), italics added.) Penal Code section 2900.5, subdivision (a) provides: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a . . . prison . . ., all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment . . . .” (Pen. Code, § 2900.5, subd. (a), italics added.) Penal Code section 2900.5, subdivision (c) provides: “For the purposes of this section, ‘term of imprisonment’ includes any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence, and also includes any term of imprisonment, including any period of imprisonment prior to release on parole and any period of imprisonment and parole, prior to discharge, whether established or fixed by statute, by any court, or by any duly authorized administrative agency.” (Pen. Code, § 2900.5, subd. (c), italics added.)
The plain language of Penal Code section 2900.5 supports Smith’s claim that the actual days he spent in custody in excess of the term set by the Board must be credited against his parole period. “[A]ll days of custody of the defendant . . . shall be credited upon his or her term of imprisonment;” “‘term of imprisonment’ includes . . . any period of imprisonment and parole , prior to discharge, whether established or fixed by statute, by any court, or by any duly authorized administrative agency.” (Pen. Code, § 2900.5, subds. (a), (c), bold and italics added.) No other statute that was in effect at the time of Smith’s 1980 offense in any way limited the application of Penal Code section 2900.5 to Smith’s parole period.
The People rely heavily on People v. Jefferson (1999) 21 Cal.4th 86 (Jefferson). Jefferson interpreted a provision in the “Three Strikes” law regarding the minimum term of a life term. Jefferson did not consider or decide any issue concerning custody credits or the application of Penal Code section 2900.5. “[I]t is axiomatic that cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
Although it could be argued that Penal Code section 2900.5 was intended to apply only to presentence custody time, the statute’s broad language has been interpreted to apply to all actual custody credits. “[S]ection 2900.5 treats all credits uniformly, wherever accrued and wherever applied.” (People v. Burks (1998) 66 Cal.App.4th 232, 237.) Furthermore, Penal Code section 2900.5 expressly encompasses custody time in “prison.” Nothing in Penal Code section 2900.5 suggests that the Legislature intended to mandate credit against a parole period for presentence custody time spent in prison but to prohibit credit against a parole period for postconviction custody time spent in prison.
Application of Penal Code section 2900.5 to Smith’s actual custody time results in a conclusion that he was entitled to be discharged from parole at the time of his November 2005 motion. When he was released on parole in April 2004, Smith had spent 282 months in custody. His “period of imprisonment” was established by the Board, a duly authorized administrative agency, when it found him suitable and fixed his term at 240 months. His “period of . . . parole” was fixed by statute at five years. Penal Code section 2900.5 mandated that his actual “days of custody . . . shall be credited upon” “any period of imprisonment and parole.” When Smith’s 282 months of custody time are applied to his 240-month term and his five-year parole period, the result is that, as of April 2004, Smith had yet to serve just 18 months on parole. This 18-month period elapsed between his April 2004 release and his November 2005 motion. It follows that he was entitled to be discharged from parole. Accordingly, the superior court did not err in concluding that Smith was entitled to be discharged from parole.
It is not argued in this case that the Board did not set the period of imprisonment as 240 months, but instead set the period of imprisonment as the time that Smith had spent in custody prior to the original release date. Nor would it make any difference in this case since the original release date was over five years ago.
Currently, Penal Code section 3000.1 provides for lifetime parole for prisoners convicted of murder, but this section was enacted in 1982 so it is inapplicable to Smith. (Pen. Code, § 3000.1, subd. (a).) Smith concedes that he was subject to a five-year parole period based on the statutes in effect at the time of his 1980 offense. “Life Prisoners: Offenses After January 1, 1979. A life prisoner who was sentenced to state prison for an offense committed on or after January 1, 1979, is subject to a five-year parole period, unless the board sets a shorter period of parole. The maximum period of parole is seven years.” (Cal. Code of Regs., tit. 15, div. 2, ch. 5, art. 1, § 2515(d).)
III. Conclusion
Smith was entitled to be discharged from parole, but the superior court’s order was not technically correct. The superior court should be directed to amend its order so that it directs the Board to discharge Smith from parole, as a discharge from parole must be accomplished by the Board, not the court. (In re Ruzicka (1991) 230 Cal.App.3d 595, 604.) As modified, the superior court’s order should be affirmed.