Opinion
As Modified Aug. 30, 1999.
Opinion on pages 766-772 omitted.
REVIEW GRANTED [*]
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 976(b) and 976.1, this opinion is certified for publication with the exception of Parts III and IV.
Michael Satris, under appointment by the Court of Appeal, Bolinas, for Petitioner.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Peter J. Siggins and Paul D. Gifford, Senior Assistant Attorneys General, Darrell L. Lepkowsky, Barbara C. Spiegel, and David M. Verhey, Deputy Attorneys General, for Respondent.
[88 Cal.Rptr.2d 480] OPINION
SILLS, P.J.
Adrian Ben Cervera was convicted of second degree robbery and sentenced to prison for 25 years to life under the Three Strike law, plus 12 years for enhancements. Cervera petitioned for a writ of habeas corpus after the California Department of Corrections (CDC) implemented a "zero credit rule" under People v. Stofle (1996) 45 Cal.App.4th 417, 52 Cal.Rptr.2d 829, and denied him custody credits. We originally denied his petition; the Supreme Court subsequently granted review, and transferred the matter to us with directions to vacate our summary denial. Cervera contends he is entitled to credits under sections 667, subdivision (c)(5) and section 2933. We disagree, and deny his petition.
The "Three Strikes" law is codified in Penal Code section 667, subdivisions (b) through (i), and Penal Code section 1170.12. All references are to the Penal Code.
Sentencing enhancements were imposed under sections 667, subdivision (a) and 667.5, subdivision (b), for two prior serious felony convictions and the resulting two prison terms.
"Credits" or "custody credits" refers to deductions from a felony defendant's time in custody.
Cervera originally argued that if indeed Stofle was correctly reasoned, nevertheless the CDC may not deprive him of custody credits under the doctrine of equitable estoppel. Cervera virtually concedes, however, in his reply to the Attorney General's informal response, that his equitable estoppel argument evaporates in view of the date of implementation of the CDC "zero credit" policy. The policy went into effect before Cervera was completely processed into prison. The argument was unavailing in any event. Cervera did not undergo a change of position in detrimental reliance on representations of the CDC, prerequisites of a successful equitable estoppel claim. (See In re Monigold (1988) 205 Cal.App.3d 1224, 1228, 253 Cal.Rptr. 120.)
I
Preliminarily, the Attorney General contends Cervera failed to exhaust his administrative remedies and his petition is improperly before this court. An inmate must ordinarily exhaust administrative remedies before bringing a habeas corpus petition. (In re Dexter (1979) 25 Cal.3d 921, 925, 160 Cal.Rptr. 118, 603 P.2d 35.) A petition is appropriate, however, where the issue involves statutory construction (McKart v. United States (1969) 395 U.S. 185, 193, 197-198, 89 S.Ct. 1657, 23 L.Ed.2d 194), the administrative agency has no jurisdiction to resolve the conflict, or the petitioner can state positively the agency would deny his request (In re Strick (1983) 148 Cal.App.3d 906, 911, 196 Cal.Rptr. 293). Those contingencies apply here. The CDC implemented its policy in response to the opinion in People v. Stofle, supra, 45 Cal.App.4th 417, 52 Cal.Rptr.2d 829, which interpreted the Three Strikes scheme. Moreover, any administrative application would be pointless and unnecessary. Cervera's petition is properly before this court.
II
Turning to Cervera's claims, he declares People v. Stofle, supra, 45 Cal.App.4th 417, 52 Cal.Rptr.2d 829 was wrongly decided. The court in Stofle held certain conduct credit limitations set forth in section 667 "simply do[ ] not apply" to a third-strike defendant serving an indeterminate life sentence. (Id. at p. 421, 52 Cal.Rptr.2d 829.) Cervera argues both the plain language of the statutes and the legislative history of section 667 demonstrate a legislative intent to award defendants sentenced to life under the Three Strikes law up to a 20 percent reduction of the term of imprisonment. Both parties [88 Cal.Rptr.2d 481] agree the issue of conduct credits under Three Strikes is one of statutory construction. When interpreting a statute, our " 'primary task' " is to determine legislative intent, which begins with an examination of the language of the code. (People v. Fuhrman (1997) 16 Cal.4th 930, 937, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)
Cervera argues that even though he is serving a life term, his minimum eligibility for parole date (MEPD) is affected by the custody credits issue. As set forth post, we hold he is not entitled to the custody credits described in the Three Strikes legislation. The question, therefore, of how the MEPD would be affected by the credits need not be addressed.
Plain Language
Section 667 states: "(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: ... (5) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison." (See also § 1170.12, subd. (a)(5).)
The plain language of the Three Strikes law (§§ 667, subd. (c)(5), 1170.12, subd. (a)(5)) eliminates application of the custody credit limitation to indeterminate sentences, because it refers to persons who receive credits under Article 2.5, section 2930 of Chapter 7 of Title 1 of Part 3. (§§ 667, subd. (c)(5), 1170.12, subd. (a)(5).) Section 2930 refers to prisoners sentenced under section 1170. Section 1170 refers to determinate sentencing only. (§ 1170.) Cervera's sentence, "25 years to life," is an indeterminate sentence. (§§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii) ["[i]f a defendant has two or more prior felony convictions ... the term for the current felony conviction shall be an indeterminate term of life imprisonment ...."]; see also § 1168, subd. (b).) On its face, therefore, the codification of the custody credit limitations does not apply to Cervera's indeterminate life sentence.
Section 2930 begins: "(a) The Department of Corrections shall inform every prisoner sentenced under Section 1170...."
The title of section 1170 is "Determinate sentencing."
Legislative Intent
This view of the statutes' plain language comports with the Legislature's intention. Section 667 states, "(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." Refusing custody credits to a third-strike offender who is sentenced to an indeterminate life term conforms to the expressed intents of longer sentences and greater punishments. (See People v. Dotson (1997) 16 Cal.4th 547, 556, 557, 66 Cal.Rptr.2d 423, 941 P.2d 56.)
Surplus Language
Cervera states this interpretation is invalid because it violates fundamental principles of statutory construction by making the language of the statutes "surplusage." But this argument ignores the statutes' application to defendants with "one or more prior felony convictions." Not every defendant will be similarly situated to Cervera. The custody credits provisions will apply to other defendants, and are not surplus.
Legislative History
Cervera argues the legislative history of section 667 illustrates an intent to award custody credits to prisoners in his situation, because a Senate Rules Committee memorandum pertaining to the original assembly bill contains the statement: "This bill provides that:.... A person who has been convicted of one or more prior serious or violent felonies be limited to good- [88 Cal.Rptr.2d 482] time/work-time credits not to exceed one-fifth of the total term of imprisonment imposed, for any new felony." (Sen. Rules Committee, Analysis of Assem. Bill No. 971 (1993-1994 reg. sess.) as amended Jan. 26, 1994, p. 1.) The "Comparison of the Three-Strikes Proposals" attached to the memorandum, contains the following "Sentencing Credits" analysis: "Sentencing credits allowed up to one-fifth (20%)." Other proposed versions of the legislation contained provisions denying any custody credits.
Cervera also argues the Legislative Analysis in the Voters' Pamphlet prepared for Proposition 184, later codified in section 1170.12, contained similar statements. The analysis stated "Credits That Reduce Time Spent in Prison" would be restricted.
Neither the memorandum nor the analysis, however, have force of law. It is the wording of the statutes themselves which is binding. The actual and complete wording of both statutes classify Cervera's sentence as an indeterminate life term. His sentence is not addressed by section 1170, or section 2930, and the custody credits announced in sections 667, subdivision (c)(5) and section 1170.12, subdivision (a)(5) do not apply to him.
Implementation by CDC
Cervera's argument that the CDC's original interpretation and implementation must be given deference is equally unavailing. The CDC is an executive agency charged with administering the "laws of time credits." Not being legislative or judicial, the CDC is precluded from either making or interpreting laws, and properly deferred to the court's interpretation in People v. Stofle, supra, 45 Cal.App.4th 417, 52 Cal.Rptr.2d 829.
Ambiguity
Cervera urges, "At the very least, the statute is ambiguous," and he is entitled to the benefit of the statutory ambiguity. Where statutory language is "reasonably susceptible" of two interpretations, the construction "more favorable to the offender" is adopted. (In re Christian S. (1994) 7 Cal.4th 768, 780, 30 Cal.Rptr.2d 33, 872 P.2d 574.) The Three Strikes law, however, albeit somewhat intricate on this point, is not ambiguous. Following the rabbit trails of these interactive codes leads to the same burrow: Cervera is serving an indeterminate life term; the statutory custody credits he seeks apply to determinate sentences, and he is not entitled to them.
See footnote *, ante.
V.
The petition for writ is denied.
CROSBY, J., and RYLAARSDAM, J., concur.
[*] Reprinted without change in the Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.
The Attorney General asserts, and Cervera does not dispute, that Cervera is currently earning custody credits on the 12-year term imposed for the enhancements.