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BRODHEIM v. ROWLAND

November 5, 1991

MICHAEL JOSEF BRODHEIM, Petitioner,
v.
JAMES ROWLAND and RON KOENIG, Respondents.



The opinion of the court was delivered by: THELTON HENDERSON

 This matter came before the Court on petitioner's amended petition for writ of habeas corpus. For the reasons stated below, the court GRANTS the petition with respect to his Equal Protection claims.

 I. BACKGROUND

 Petitioner Michael Josef Brodheim was convicted in Alameda County of first-degree murder under California Penal Code § 187. He is in Vacaville State Prison serving a sentence, imposed under Cal. Penal Code § 190 and § 1168(b), of 25 years to life. Because the California Department of Corrections received him in May 1982, he qualified for reducing his sentence under the guidelines of § 2931. Brodheim signed a § 2934 waiver on January 3, 1983, thereby becoming subject to the provisions of § 2933.

 In 1987, however, the Attorney General issued an advisory opinion in which he held that state prisoners convicted under § 190 (murder) are ineligible for § 2933 credits. 70 Op. Cal. Att'y Gen. 49 (1987). The Attorney General began by explaining that prisoners serving sentences of 15 or 25 years to life or life with possibility of parole are ineligible for § 2933 credits, because § 2933 states that its application is limited to those persons sentenced under § 1170, and prisoners serving sentences of 15 or 25 years to life or life with possibility of parole are sentenced under § 1168(b). Id. at 50-52. Thus, if § 2933 credits are to apply to such persons, it must be from some statute other than § 2933. Id. at 52.

 The Attorney General then held that some prisoners serving such sentences, though not § 190 prisoners, may in fact receive § 2933 credits. Sections 190, 217.1(b) (attempted assassination), and 667.7 (certain habitual offenders) all state that the provisions of Article 2.5 (commencing with § 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code shall apply to reduce the term. This does not necessarily mean that each of these sections refers to § 2933, because § 2933 was not enacted until 1982. Id. at 53. Section 190 was enacted in 1978, when Article 2.5 did not include § 2933; therefore, § 190 does not refer to § 2933. Id. at 53-56. Section 217.1(b), however, was enacted in 1983, after § 2933 had become part of Article 2.5, so § 217.1(b) does refer to § 2933. Id. at 56. As for § 667.7, though it was enacted in 1981, it was amended in 1986, after § 2933 had become part of Article 2.5, so now it, too, refers to § 2933. Id. at 56-57. Thus, § 217.1(b) (attempted assassins) and § 667.7 (habitual offenders) prisoners may receive § 2933 credits, and § 190 prisoners may not.

 The California Department of Corrections implemented the Attorney General's opinion by denying past and future § 2933 credits to affected inmates. The California Appellate Court, while upholding the Attorney General's opinion, required credits earned before the opinion to be restored. In re Monigold, 205 Cal. App. 3d 1224, 253 Cal. Rptr. 120 (1988).

 In June 1988, the voters approved Proposition 67, which modified § 190 by adding a section. The modification did not change the wording of former § 190, now § 190(a), which still stated that Article 2.5 shall apply to reduce the term. The California Appellate Court later ruled that the passage of Proposition 67 had no effect on the entitlement of § 190 prisoners to § 2933 worktime credits. In re Oluwa, 207 Cal. App. 3d 439, 446-47, 255 Cal. Rptr. 35 (1989).

 Petitioner challenged the denial of his opportunity to earn credits under § 2933 and, having exhausted his state judicial remedies, properly brought his claim in this Court against James Rowland, Director of the California Department of Corrections, and Ron Koenig, Chairman of the California Board of Prison Terms. Petitioner claimed that the present policy of denying § 2933 credits to convicted murders, but not to would-be assassins or habitual offenders, violated his rights to Due Process and Equal Protection.

 II. DISCUSSION

 Petitioner challenges the denial to § 190 prisoners, but not to § 217.1(b) and § 667.7 prisoners, of the opportunity to earn § 2933 credits on the ground that it is a violation of his right to Equal Protection. The Court has already found that no basis exists for applying heightened scrutiny to Brodheim's classification as a murderer, because no fundamental right is at stake and the classification is not invidious. See February 7, 1991 Order. Thus, the statute need have only a rational basis. Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir. 1989). That is, it must bear a rational relationship to a legitimate governmental purpose. Bunyan v. Camacho, 770 F.2d 773, 774 (9th Cir. 1985).

 The State argues that petitioner is not similarly situated with failed assassins and habitual offenders and that a rational basis exists for treating him differently; consequently, his ...


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