to a low of 7 years (§ 3046). Id. at 815. Furthermore, noted the court, the last words of § 677.7, regarding parole eligibility, are convincing evidence that it is from among the potentially available parole dates that a court is required to select "the greatest". Id.
The State interprets this opinion to mean that a murderer sentenced under § 677.7 would be considered for parole no earlier than a murderer sentenced under § 190. Apparently, the State reasons that "the greatest" parole date is not merely the date prescribed under the other sentencing sections specified in § 677.7, but rather the date prescribed under the other sentencing sections as reduced by the credits available under those sections. Supp. Mem. at 4.
But such reasoning entirely negates the Attorney General's opinion, is contrary to the express language of the statute, and is contrary to the court's reasoning in Gonzalez. First, if the State were correct, the sentence in § 667.7(a)(1) granting prisoners the benefit of the provisions of Article 2.5 would have no meaning and would apply to no § 667.7 prisoner. Rather, prisoners sentenced under § 667.7 would always look to the parole and credit provisions of their underlying, listed offenses to determine their parole dates. However, the Attorney General has expressly opined that § 2933 credits are available to § 677.7 prisoners. 70 Op. Cal. Att'y Gen. at 56-57. Since these credits are available, they must act to reduce a prisoner whose minimum release date is 25 years.
Second, the State's argument is contrary to the express words of § 667.7. Section 667.7 simply does not say that the court is to chose from among the greatest possible parole dates as reduced by available credits. It states only that the court is to chose the greatest parole date from among those options applicable to the prisoner. §§ 1170, 190 and 3046 all state minimum parole dates, any one of which may be applicable to the prisoner via his underlying offense. The statute goes on to state that having chosen that date, "the provisions of Article 2.5 . . . of Chapter 7 of Title 1 of Part 3 [which includes § 2933] shall apply to reduce any minimum term in a state prison imposed pursuant to this section. . . ." (emphasis added). Were the state's construction accurate, this sentence would have no meaning; court would be required to ignore the express language of the statute because the only relevant provisions regarding available credits would be found in the underlying statutes themselves.
Finally, even the Gonzalez opinion does not suggest that "the greatest" parole date could not be reduced by § 2933 credits. To the contrary, the court stated that "the concluding pronouncement in section 667.7 regarding the applicability of good behavior and participation credits to parole eligibility" was one of the factors which convinced it that "it is from among the potentially available parole dates [and not the potentially available overall sentences] that a court is required to select the 'greatest.'" 201 Cal. App. 3d at 815. Further, the Gonzalez court twice referred to the possible release of the prisoner in that case after half of his sentence had been served, id. at 813, 814, thereby suggesting that the one-for-one credits of § 2933 would indeed be available.
As a final argument, the State asserts that a murderer sentenced under § 677.7 could not receive a lesser sentence than a murderer sentenced under § 190 because, regardless of the Legislature's intent in enacting § 677.7, the voter initiative that enacted § 190 must take precedence and a person convicted of first-degree murder may not receive § 2933 credits. Supp. Mem. at 5. The error in this argument is that the voters' intention to deny first-degree murderers § 2933 credits applied only to prisoners sentenced under § 190, not to first-degree murderers sentenced under § 677.7; as to these prisoners, the voters' intention was apparently very different. The only issue is whether this intention is rational.
The State, however, having had numerous opportunities to put one forth, has yet to suggest any rational relationship between a legitimate State interest and classifying § 190 murderers differently from § 677.7 murderers in such a way as to provide shorter sentences for § 667.7 murderers, and the Court is unable to imagine what such a justification could possibly be. Thus, it is possible that, as to § 2933 credits, a habitual offender whose latest offense is first-degree murder could be better placed than a first-time offender convicted of first-degree murder. This Court is of the opinion that such an outcome is not rationally related to any legitimate government objective, and therefore that the present allocation of worktime credits violates Equal Protection.
For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED that:
1. The writ of habeas corpus is GRANTED.
2. Defendants are directed to credit petitioner with the worktime credits he has accumulated during the time that he has been enrolled in a qualifying § 2933 program from March 24, 1987, the date of the Attorney General's Opinion, to the date of this Order, and to recalculate his minimum eligible parole date and initial parole hearing date accordingly.
3. Defendants are further directed to credit petitioner with any worktime credits he earns in a qualifying § 2933 program from the date of this Order forward.
IT IS SO ORDERED.
Thelton Henderson, Chief Judge
United States District Court