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In Re Johnny Lira

June 29, 2012


Trial Court: Santa Clara County Superior Court No.: 76836 Trial Judge: The Honorable Rise Jones Pichon

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

opinion following rehearing


(Santa Clara County Super. Ct. No. 76836)


In this case we conclude that when a prison inmate remains incarcerated after the Governor has erroneously vetoed a decision to grant parole by the Board of Parole Hearings (Board), the period of continued incarceration is not lawfully served, and the inmate is entitled to custody credit against his term of imprisonment, which includes the prison term and term of parole. We further conclude that if the inmate has been released on parole prior to a determination that the Governor's veto was erroneous, the inmate, now parolee, is entitled to have that custody credit applied to reduce the term of parole.


Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (CDCR), appeals from an order of the superior court directing the Board to grant Lira nearly four years of credit against his parole term.*fn1 The CDCR claims the court lacked authority to order credit; and even if it had the authority, Lira was not entitled to any credit.

We conclude that Lira is entitled to some but not all of the custody credit ordered by the superior court. Accordingly, we modify the order to reduce the amount of custody credit and affirm the order as modified.


In 1981, after being convicted of second-degree murder for shooting his wife, Lira was sentenced to an indeterminate term in prison of 15 years to life with a two-year firearm enhancement. His minimum eligible parole date was April 7, 1992.

In December 2005, the Board denied Lira parole for the ninth time. He challenged the denial in a petition for a writ of habeas corpus claiming that the decision was not supported by any evidence and therefore violated his right to procedural due process. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 658, 664 (Rosenkrantz).) The superior court agreed, granted the writ, and ordered a new parole hearing. On appeal, this court upheld the order. (Lira on Habeas Corpus (July 30, 2008, H031227) [nonpub. opn.].)

In November 2008, after a new hearing, the Board found Lira suitable for parole. However, in April 2009, former Governor Schwarzenegger vetoed that decision. In November 2009, the Board held Lira's next regularly scheduled parole hearing and again found him suitable for parole. In December 2009, before that decision became final and effective, Lira filed a writ petition challenging the Governor's 2009 veto on the ground that it was not supported by any evidence and seeking to have the Board's 2008 decision reinstated. In April 2010, while the petition was still pending, Governor Brown declined to review the Board's 2009 decision to grant parole, and Lira was released on parole effective April 8, 2010.

On April 22, 2010, Lira filed a supplemental habeas petition. He continued to claim that Governor Schwarzenegger's veto was erroneous, but having been released on parole, he sought different relief. Given the Board's erroneous denial of parole in 2005 and the Governor's allegedy erroneous veto in 2009, Lira sought an immediate discharge from parole. He claimed that because his continued incarceration after 2005 was unlawful, he was entitled custody credit that exceeded the length of his parole term. The superior court agreed that he was entitled to credit, granted the supplemental petition, and ordered the Board to give Lira "custody credits against his parole period from what should have been the effective date of a parole grant at his 2005 hearing . . . ."*fn2


The CDCR contends that Lira's release in 2010 rendered the habeas proceeding moot, and therefore the superior court should have dismissed the supplemental petition. The CDCR also claims that regardless of whether Lira was lawfully incarcerated after December 2005, the superior court lacked authority to grant credit against a parole term as a remedy because doing so disregarded public safety and violated the doctrine of separation of powers, various penal statutes, and the terms of Lira's sentence.

A. Mootness

"The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." (Mills v. Green (1895) 159 U.S. 651, 653; Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863, 167 P.2d 725.) "A question becomes moot when, pending an appeal . . . events transpire that prevent the appellate court from granting any effectual relief. [Citations.]" (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 419.)

In his initial habeas petition, Lira challenged the Governor's veto and sought to have the Board's 2008 decision to grant parole reinstated. Clearly, Lira's subsequent release on parole rendered that relief moot and ostensibly made it unnecessary to review the propriety of the Governor's veto. However, in his supplemental petition, Lira sought different relief--credit against his parole term--based on a claim that he had been unlawfully incarcerated from 2005 to 2010. That claim hinges, in part, on the propriety of the Governor's veto. Since Lira remains under the constructive custody of parole, his release did not render his claim for additional credit moot. On the contrary, if he is entitled to credit reducing his parole term, then he is entitled to get it.

Accordingly, we reject the CDCR's contention that the superior court should have simply dismissed Lira's supplemental petition.

B. Propriety of the Remedy

The CDCR claims that the only remedies available to a court when it determines that a gubernatorial veto violated due process are a remand back to the Governor or reinstatement of the Board's decision to grant parole. Thus the CDCR argues that even if the Governor's veto were erroneous, the superior court erred in directing the Board to grant Lira credit against his parole term. In support of this claim, the CDCR relies on In re Prather (2010) 50 Cal.4th 238 (Prather) and In re Miranda (2011) 191 Cal.App.4th 757 (Miranda).

In Prather, the Supreme Court resolved two cases--In re Prather and In re Molina--and addressed a very limited procedural question: what is the proper scope of a remand order when a court concludes that the Board's decision to deny parole is not supported by some evidence and therefore violates the inmate's right to due process. (Prather, supra, 50 Cal.4th at p. 243.) Before Prather, reviewing courts had issued remand orders that restricted the Board's authority and discretion in determining suitability for parole. In Prather, the reviewing court ordered the Board to find Prather suitable for parole unless, after another hearing based on new and different evidence of Prather's subsequent conduct, the Board concluded that he was currently dangerous. (Id. at p. 246.) In Molina, the remand order simply directed the Board to release Molina on parole. (Id. at p. 248.) The Supreme Court explained that because parole decisions are within the exclusive powers of the executive branch, judicial orders restricting the Board's discretion impermissibly impair the exercise of the Board's executive power in determining suitability and thereby violate the constitutional principle of separation of powers. (Id. at pp. 254-256.)*fn3 The court found that the orders in both Prather and Molina suffered from this defect. (Prather, supra, 50 Cal.4th at pp. 244, 255-257.) The court advised that a decision granting habeas relief for a due process violation by the Board "generally should direct the Board to conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of the court, and should not place improper limitations on the type of evidence the Board is statutorily obligated to consider." (Id. at p. 244.)

The facts of Miranda, supra, 191 Cal.App.4th 757 are somewhat similar to those here. The Board granted Miranda parole in 2003, the Governor vetoed that decision, and Miranda sought habeas relief. Finding no evidence to support the veto, the superior court granted relief, and the Governor appealed. In 2004, before the appellate court decided the case, Miranda was released. In 2006, the appellate court reversed the superior court, finding that there was some evidence to support the Governor's 2003 veto. Nevertheless, Miranda remained out of prison until 2007, when the Board held another hearing. At that time, the Board denied parole, and in 2008, Miranda was returned to prison. In 2009, Miranda sought habeas relief in the appellate court, challenging the Board's 2007 denial and seeking release on parole. While the habeas petition was pending, the Board held another hearing and found Miranda suitable for parole. The Governor declined to review, and Miranda was released on parole. (Id. at pp. 761-762.)

Meanwhile, in the pending habeas proceeding, Miranda pressed his challenge to the Board's 2007 denial of parole. He argued that if the denial was improper, it would show that he was entitled to some credit against his parole term, which the court could then direct the Board to grant. (Miranda, supra, 191 Cal.App.4th at p. 762.) The appellate court declined to review the Board's 2007 decision because it considered the underlying petition to be moot. The court noted that the only relief Miranda had formally requested in the petition was his immediate release on parole, and Miranda had already been released. (Ibid.)

Citing Prather, the court further explained that even if the Board's 2007 decision were erroneous, the only remedy it had authority to provide was a new suitability hearing. (Miranda, supra, 191 Cal.App.4th at p. 763.) The court opined that a judicial determination that the Board's denial of parole violated due process "is not a get-out-of-jail-free card. Instead, the determination mandates further Board proceedings and then review by the Governor, if appropriate. Here, Miranda would have us bypass that proper procedure and conclude that he was entitled to be released as of his 2007 parole-suitability hearing. Based on that conclusion, he would have us order a reduction of his parole period. For the reasons stated in Prather, we cannot reach this conclusion. If we were to find that the Board violated Miranda's due process rights at the 2007 parole-suitability hearing, the remedy would be to direct the Board conduct a new parole-suitability hearing consistent with due process and our decision. [Citation.] Because that has already occurred, with the result that Miranda has been released, there is no beneficial remedy available from this court." (Ibid.)

We agree with Miranda that Prather restricts a court's remedial authority when an inmate seeks a new hearing based on a claim that the Board's denial of parole violated due process. However, because Miranda did not formally seek credit against his parole term, Miranda suggests that Prather bars any remedy except a new hearing, even if the inmate does not seek a new hearing but instead seeks credit.

" ' "It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered." ' [Citation.] 'An appellate decision is not authority for everything said in the court's opinion but only "for the points actually involved and actually decided." ' [Citation.]" (People v. Knoller (2007) 41 Cal.4th 139, 154-155.) Thus, we view Prather in light of its factual context and the issues before it. (See Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 ["[l]anguage used in any opinion is of course to be understood in the light of the facts and the issue then before the court"].) Prather addressed only the proper scope of a remand order when a court has grants habeas relief. Prather did not involve a parolee's claim for credit against the term of parole. Nor did Prather discuss whether a court has authority to review such a claim and direct the Board to grant credit if the claim has merit. Moreover, nothing in Prather implies that a court lacks authority to determine entitlement to credit and grant credit when appropriate. In short, we disagree with Miranda's suggestion that Prather bars such relief.

Indeed, Prather reaffirmed the notion that "an inmate's due process rights 'cannot exist is any practical sense without a remedy against its abrogation.' [Citations.]" (Prather, supra, 50 Cal.4th at p. 251, quoting Rosenkrantz, supra, 29 Cal.4th at p. 664.) In habeas proceedings in general, courts are vested with the power to craft an appropriate remedy "as the justice of the case may require." (§ 1484; In re Crow (1971) 4 Cal.3d 613, 619.) "The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriage of justice within its reach are surfaced and corrected." (Harris v. Nelson (1969) 394 U.S. 286, 291.)

The CDCR notes that the amount of credit Lira was granted would, as a practical matter, require his immediate discharge from parole. Thus, the CDCR claims that the court's order violated the doctrine of separation of powers because it impermissibly arrogated the Board's exclusive authority to set the length of parole or to waive parole altogether. The CDCR further argues that the order improperly abrogated Lira's parole, which is a statutorily mandated consequence of his conviction; and in doing so, the order defeated the purpose and intent of section 3000. Last, the CDCR argues that the court's order was improper because it is inconsistent with the rehabilitative and safety goals of parole.

Concerning the doctrine of separation of powers, the court in Prather explained that it does not "prohibit one branch from taking action that might affect those of another branch"; rather the doctrine is violated only "when the actions of one branch 'defeat or materially impair the inherent or core functions of another branch.' [Citation.]" (Prather, supra, 50 Cal.4th at p. 254, quoting Rosenkrantz, supra, 29 Cal.4th at p. 662.)

We acknowledge that parole determinations, including the length of a parole term, fall within the exclusive power of the executive branch. However, the exercise of that power must still comply with the law. Under section 2900, subdivision (c), "all time served in an institution designated by the Director of Corrections shall be credited as service of the term of imprisonment" (§ 2900, subd. (c), italics added); and " 'term of imprisonment' " is defined to include "any period of imprisonment and parole." (§ 2900.5, subd. (c), italics added.) Thus, under section 2900, an inmate is entitled to have all of the time that he or she has actually "served"--i.e., custody time--credited against the period of imprisonment and parole.

If under applicable statutes and judicial precedent, Lira was entitled to have a certain amount of the time that he "served" in actual custody credited against his "term of imprisonment," then an order requiring that he receive such credit is simply an order directing the Board to comply with the law. Such orders are not novel, and courts have routinely granted habeas relief and ordered that credit be given to inmates and parolees. (E.g., In re Ballard (1981) 115 Cal.App.3d 647, 650 [directing Board to grant conduct credit against parole term]; In re Anderson (1982) 136 Cal.App.3d 472, 476 [same]; In re Randolph (1989) 215 Cal.App.3d 790, 795 [same]; see In re Carter (1988) 199 Cal.App.3d 271, 273.)

Consequently, a judicial determination that an inmate or parolee is entitled to credit against a "term of imprisonment" and an order directing the Board to grant it do not, in our view, impermissibly intrude into the realm of exclusive executive power or defeat or materially impair the Board's statutory parole authority. Accordingly, we conclude that the superior court's order did not violate the doctrine of separation of powers.

We also do not find that such an order impermissibly abrogates a statutorily mandated consequence of a conviction or otherwise frustrates the purpose and intent of section 3000.

Section 3000, subdivision (a)(1) provides: "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 effective 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 Section 1168 or 1170 shall include a period of parole, unless waived, or as otherwise provided in this article."

Section 3000, subdivision (b)(1) provides, in relevant part: "In the case of any inmate sentenced under Section 1168, the period of parole shall not exceed five years in the case of an inmate imprisoned for any offense other than first or second degree murder for which the inmate has received a life sentence, and shall not exceed three years in the case of any other inmate, unless in either case the parole authority for good cause waives parole and discharges the inmate from custody of the department."

Under these sections, the Board may waive parole. If parole can be waived, then, contrary to the CDCR's position, a period of parole supervision is not an unavoidable and inexorable consequence of a conviction. Moreover, given the specific provisions of section 2900 mandating credit against a "term of imprisonment," which includes the term of parole, an order directing the Board to give credit against a parolee's term is not inconsistent with the general but qualified requirement of parole in section 3000.

Noting that section 3000 states that a parole term is the period "between imprisonment and discharge," the CDCR argues that the statute "indicates that an inmate's parole term should not be served while he remains in prison," which, presumably, would bar crediting a period of incarceration against a parole term. We are not persuaded.

When read in context, the phrase from section 3000 quoted by the CDCR does not suggest that time spent in prison cannot be credited against a term of parole. Indeed, such a reading is incompatible with section 2900. It provides for all prison time to be credited against the "term of imprisonment," which, as noted, includes a term of parole.

The CDCR's reliance on In re Chaudhary (2009) 172 Cal.App.4th 32 (Chaudhary) is misplaced. That case involved parole for an offense committed in 1986, which subjected the defendant to the provisions of section 3000.1. That statutue "provides that a person convicted of a second degree murder that occurred after January 1, 1983 is subject to lifetime parole and becomes eligible for discharge from parole 'when [such] a person . . . has been released on parole from the state prison, and has been on parole continuously for five years.' (Stats.1982, ch. 1406, § 4.)" (Chaudhary, supra, 172 Cal.App.4th at p. 34, quoting § 3000.1, subd. (b).) Lira committed his offense in 1980. Thus, he is not subject to mandatory lifetime parole and a five-year parole eligibility requirement.

We also reject the CDCR's argument that the order must be reversed because it is inconsistent with "the rehabilitative goals of the parole system and concerns of public safety." Although section 3000 reflects legislative findings that the period after incarceration along with continued supervision and surveillance are critical to a parolee's successful reintegration and to the protection of the public (§ 3000, subd. (a)(1), quoted ante, pp. 9-10), these findings do not suggest that a court may deny credit that a parolee is legally entitled to because granting credit and thereby reducing a parole term is inconsistent with the rehabilitative and protective goals of parole. Nor does the CDCR provide convincing authority for such a proposition. Its reliance on In re Jantz (1985) 162 Cal.App.3d 412 (Jantz) and In re Chambliss (1981) 119 Cal.App.3d 199 (Chambliss) is misplaced.

In Jantz, Jantz earned 1,626 days of presentence custody credit, which exceeded the three-year prison term imposed for his offense. However, the Board placed him on parole for three years. Jantz sought habeas relief, claiming that his presentence custody credit entitled him to release without parole. The superior court struck the parole term, but the appellate court reversed. (Jantz, supra, 162 Cal.App.3d at pp. 414-415.)

The case required an interpretation of former section 1170, subdivision (a)(2), which provided, in relevant part, "In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence, including any period of parole under Section 3000, shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the Director of Corrections. . . ." (Stats. 1984, ch. 1432, § 9, p. 5028.) The court focused on the meaning of "sentence" in the initial phrase "any sentence imposed pursuant to this chapter." (Ibid.) Jantz claimed "sentence" referred only to the actual term imposed for the offense and did not include the period of parole. (In re Jantz, supra, 162 Cal.App.3d at p. 416.) Thus, since his credit exceeded the three-year term for the offense, his "entire sentence, including any period of parole" must be deemed to have been served.

In rejecting this view, the court observed that under section 2900.5, subdivisions (a) and (c), a "term of imprisonment" included the period of confinement and parole. The court also noted the Legislature's declaration in section 3000 that sentences "shall include a period of parole, unless waived." The court opined that Jantz's interpretation would create an exception to the general requirement of parole without any apparent supportive rationale. Rather, reading the phrases of section 1170, subdivision (a)(2) together in light of section 2900.5 and the legislative findings in section 3000 concerning the importance of parole, the court concluded that " 'sentence' as used in section 1170, subdivision (a)(2), includes any applicable period of parole." (In re Jantz, supra, 162 Cal.App.3d at pp. 416-417; see In re Sosa (1980) 102 Cal.App.3d 1002, 1005 ["Section 1170 explicitly declares that presentence credit applies against both the imprisonment and the parole portion of the sentence."].) Thus, the court held that section 1170, subdivision (a)(2) does not permit a release from parole "unless the in-custody credits equal the total sentence, including both confinement time and the period of parole." (In re Jantz, supra, 162 Cal.App.3d at p. 415, italics added; accord, In re Welch (1987) 190 Cal.App.3d 407, 412.) Since Jantz's credit did not exceed the separate three-year terms for his offense and parole, he was not entitled to release without parole.

Far from supporting the CDCR's position, Jantz supports the view that an inmate is statutorily entitled to have credit applied against a term of parole. Indeed, Jantz strongly implies that where credit exceeds the period of imprisonment and the term of parole, the inmate is entitled to release without parole.

Chambliss, supra, 119 Cal.App.3d 199 is inapposite. Chambliss pleaded guilty as part of a plea bargain but was not told about the possibility of parole upon his release. In a habeas petition, he sought release without parole after expiration of his prison sentence. In denying relief, the court noted that there has been no mention of parole during the plea hearing or evidence of a promise or understanding that he would be released without parole. From this silence, the court concluded that parole-free release was not a part of the plea bargain. (Id. at p. 202.) Moreover, given the importance the Legislature attaches to parole as reflected in section 3000, the court opined that Chambliss's alleged ignorance of the possibility of parole was not a reasonable basis to permit him to avoid parole upon his release. (Id. at p. 203.)

Chambliss does not support the CDCR's view that a court may not grant credit against a parole term because doing so is inconsistent with the broad language of section 3000. That broad statutory language concerning the purpose of parole and the general requirement of parole must be read in light of, and harmonized with, the specific credit mandate of section 2900. (See Stone Street Capital, LLC v. California State Lottery Com. (2008) 165 Cal.App.4th 109, 119 [specific provisions take precedence over conflicting general provision]; City of Long Beach v. California Citizens for Neighborhood Empowerment (2003) 111 Cal.App.4th 302, 306 [in ascertaining legislative intent, court considers entire scheme of law so that whole may be harmonized to retain effectiveness].) The CDCR's position would, in effect, negate the provisions of section 2900, and for that reason we reject it.

Having concluded that Lira's supplemental habeas petition was not rendered moot by his release on parole and that the superior court had the authority to direct the Board to grant custody credit, we turn our attention to the amount of credit granted by the court.


The court granted Lira custody credit for the period of actual incarceration that Lira served between May 2006 and April 2010. This period had two segments. One segment ran from the Board's erroneous denial of parole in 2005 to its grant of parole in 2008; the other ran from the Governor's allegedly erroneous veto until Lira's release in April 2010. We first discuss the legal basis for finding that a parolee is entitled to credit against a ...

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