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In Re Craig Hunter Borlik

April 6, 2011

IN RE CRAIG HUNTER BORLIK, ON HABEAS CORPUS.


Trial Court: Santa Clara County Superior Court Trial Judge: Hon. Jerome E. Brock (Santa Clara County Super. Ct. No. BB514602)

The opinion of the court was delivered by: Elia, Acting P. J.

CERTIFIED FOR PUBLICATION

Ron Barnes, acting Warden at the California Correctional Center, appeals from an April 24, 2009 order of the Santa Clara County Superior Court granting Craig Borlik's petition for writ of habeas corpus.*fn1 For reasons that follow, we reverse the order of the Superior Court.

Background

On May 25, 2005, while intoxicated, Craig Borlik (Borlik) ran a red light and struck a 72-year old bicyclist who was crossing the street. Three weeks later, the cyclist died of his injuries.

Borlik pleaded no contest to four felony charges arising from the incident: gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), driving with a blood alcohol concentration (BAC) of .08 percent or greater causing bodily injury (Veh. Code, § 23153, subd. (b)), hit and run where the injury resulted in death or injury to another person (Veh. Code, § 20001, subd. (a)) and endangering a child (Pen. Code, § 273a, subd. (a).)*fn2 Borlik admitted that while driving with a BAC of 0.8 percent or greater, he personally caused serious bodily injury within the meaning of Penal Code section 12022.7.

On June 23, 2006, the superior court sentenced Borlik to the mid-term of six years on the vehicular manslaughter charge and imposed concurrent mid-term sentences of two years for the hit and run and four years for endangering a child. Pursuant to section 1385 and a plea agreement,*fn3 the court struck the punishment for the great bodily injury enhancement associated with the driving with a BAC of .08 percent or greater and imposed, but stayed, a two-year prison term on this count pursuant to section 654.*fn4

Borlik was remanded to custody to begin serving his sentence. Initially, the CDCR calculated Borlik's earliest possible release date (EPRD) at July 5, 2009. Thereafter, the CDCR recalculated Borlik's EPRD as October 9, 2008. On October 6, 2008, the CDCR recalculated Borlik's EPRD as July 28, 2011, "Per In Re Pope decision."

Subsequently, Borlik filed an inmate appeal, citing In re Phelon (2005) 132 Cal.App.4th 1214, for the proposition that the CDCR had miscalculated his credits and that he should be released immediately. The appeal was denied at the final level of review.

Proceedings Below

Borlik filed a petition for writ of habeas corpus in Shasta County Superior Court. The case was transferred to Santa Clara County Superior Court on March 5, 2009. Thereafter, on April 24, 2009, the Santa Clara County Superior Court granted the petition. The court mandated that the CDCR recalculate Borlik's release date and if he was eligible for release, to release him immediately on parole. In addition, the court ordered that the CDCR was to apply any time that Borlik spent in prison past his release date to his parole term.

On May 1, 2009, in addition to filing a notice of appeal, the CDCR filed a request to stay the superior court's order, which the superior court granted temporarily until May 8, 2009. On August 7, 2009, this court summarily denied the CDCR's petition for writ of supersedeas and vacated a temporary stay issued May 8, 2009.

Issue Presented

The CDCR frames the issue in this case as follows: Does section 2933.1, subdivision (a)'s 15 percent credit earning limitation apply to a prisoner whose single course of conduct led to convictions for violent and nonviolent offenses, of which the resulting sentence for the violent felony was struck by the superior court and the underlying substantive offense was stayed pursuant to section 654?

Standard of Review

Since this appeal concerns a matter of law--whether or not Borlik's sentence is subject to the 15 percent credit earning limitation under section 2933.1, we review this matter de novo. (Redevelopment Agency of City of Long Beach v.County of L.A. (1999) 75 Cal.App.4th 68, 74.) Further, when the lower court reaches a decision based on the pleadings and attached exhibits, as in this ...


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