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In re Trejo

California Court of Appeals, First District, Second Division

April 13, 2017

In re GILBERT TREJO, on Habeas Corpus.

         Superior Court Marin County, No. SC197534A Hon. James T. Chou Judge

          Attorneys for Petitioner: Law Office of Tracy Renee Lum Tracy Renee Lum Michael Satris

          Attorneys for Respondent: Office of the Attorney General Xavier Becerra Attorney General of California Phillip J. Lindsay Senior Assistant Attorney General Sara J. Romano Supervising Deputy Attorney General Jennifer G. Ross Deputy Attorney General

          Kline, P.J.

         This case presents the question whether a “youth offender” sentenced to a term of 15 years to life for an offense committed when he was 17 years old and found suitable for release on parole pursuant to the youth offender parole provisions of Penal Code section 3051 must, before being released, serve a consecutive sentence imposed for a crime committed in prison at age 20. We conclude that the decision of the Board of Parole Hearings requiring petitioner to serve the consecutive term after being granted parole, and its implementation by the Department of Corrections and Rehabilitation, were erroneous.


         In 1980, petitioner was convicted of second degree murder (Pen. Code, § 187)[1] and sentenced to a prison term of 15 years to life. The offense was committed in 1979, when petitioner was 17 years of age. In 1982, at age 20, while incarcerated at San Quentin State Prison, he pled guilty to assault with a deadly weapon on a peace officer (§ 245) and possession of a deadly weapon by a prisoner (§ 4502). He was sentenced to the aggravated term of four years on the possession count, to be served consecutively to his life sentence; execution of a five-year sentence was stayed on the assault count.

         On June 5, 2015, after serving 35 years in prison, petitioner was found suitable for parole as a youthful offender under section 3051. The Board of Parole Hearings (Board) panel noted that he was eligible for parole subject to review by the Board and the Governor, and that he was still required to serve his “In re Thompson term”[2]-the consecutive four-year term for the 1982 in-prison offense.

         The decision to grant petitioner parole became effective on November 2, 2015. His earliest possible release date was calculated to be November 2, 2018. Petitioner represents that his release date has since been recalculated as November 2, 2017, based on a correction in his credit earning status.

         On June 6, 2016, petitioner filed a petition for writ of habeas corpus in the Marin County Superior Court challenging the legality of his incarceration beyond November 2, 2015. Petitioner argued that the Department of Corrections and Rehabilitation (Department) was required by section 3046, subdivision (c), and section 3051 to release him on November 2, 2015, upon the conclusion of his indeterminate sentence, and to reduce his parole period by the amount of time he has served since November 2, 2015.

         The trial court denied the petition on July 27, 2016, concluding that section 3051 does not exempt a youthful offender granted parole from serving a consecutive sentence for an offense committed in prison as required by section 1170.1, subdivision (c), which provides that a consecutive sentence for an in-prison offense “shall commence from the time the person would otherwise have been released from prison.”

         Petitioner filed his petition for writ of habeas corpus in this court on August 18, 2016, alleging that section 1170.1, subdivision (c), does not apply to the present case because, since his in-prison offense was committed before he was 23 years old, he was entitled to release at the end of his indeterminate sentence pursuant to section 3051, subdivision (d).



         As a preliminary matter, respondent argues that we should not reach the merits of petitioner's claim because he failed to exhaust his administrative remedies with the Department with regard to calculation of his release date. (Cal. Code Regs., tit. 15, § 3084.1, subd. (a) [“administrative mechanism for review of departmental policies, decisions, actions, conditions, or omissions”].) Petitioner maintains no exhaustion was required because the decision to require him to serve the consecutive term was made by the Board, not the Department. The record supports petitioner, inasmuch as the commissioner, in stating the Board's decision finding petitioner suitable for parole, stated that petitioner would be required to serve the consecutive term. So does the law: “The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. (§§ 3040, 5075 et seq.)” (In re Lawrence (2008) 44 Cal.4th 1181, 1201 (Lawrence).) At the time of the Board's hearing in this case, section 3041, subdivision (a), provided, “One year prior to the inmate's minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5” and sets forth the manner in which the release date was to be determined. (Stats. 2013, ch. 312 (Sen. Bill No. 260), § 2, italics added.) Section 3041, subdivision (b), provided, “The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.” (Stats. 2013, ch. 312 (Sen. Bill No. 260), § 2, italics added.)

         Respondent asserts, without explanation, that “the Board no longer sets release dates, including for non-parole eligible sentences.” The authorities cited for this assertion are sections 3041, 3046, subdivision (c), 3051, and 4801, subdivision (c), as amended in 2013 and 2015. We fail to see how these statutes effect the change respondent attributes to them.

         The only express references to release dates in these statutes are in sections 3041 and 3046. Section 3046 continues to refer to the Board setting “release dates, ” providing that an inmate found suitable for parole under section 3051 “shall be paroled regardless of the manner in which the board set release dates pursuant to subdivision (a) of Section 3041.” Section 3041 was amended in 2015, effective January 1, 2016-after petitioner's hearing before the Board in June 2015-to refer to granting parole rather than setting a parole release date. (Stats. 2015, ch. 470 (Sen. Bill No. 230), § 1 [“shall normally grant parole as provided in Section 3041.5” (subd. (a)(2)); “The panel or the board, sitting en banc, shall grant parole to an inmate...” (subd. (b)(1))].) This amendment deleted the provisions of the former subdivision (a) of section describing the manner in which the Board was to determine the release date and added a new subdivision (a)(4): “Upon a grant of parole, the inmate shall be released subject to all applicable review periods. However, an inmate shall not be released before reaching his or her minimum eligible parole date as set pursuant to Section 3046 unless the inmate is eligible for earlier release pursuant to his or her youth offender parole eligibility date.” (Stats. 2015, ch. 470 (Sen. Bill No. 230), § 1.)

         We do not read these changes as altering the Board's authority to set release dates for several reasons. Section 3041 is still entitled, “Parole release date; setting; criteria; en banc review by the board.” The previous language of section 3041, referring to setting a release date, has been treated by the courts as meaning granting parole. For example, Lawrence, supra, 44 Cal.4th at page 1204, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 654, both cases having been decided when the statute referred to “release date” rather than, as now, “parole, ” described section 3041, subdivision (b), as follows: “ ‘[T]he governing statute provides that the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. (Pen. Code, § 3041, subd. (b).) And as set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after considering the circumstances enumerated in section 2402 of the regulations, that the prisoner is unsuitable for parole. Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.” (Lawrence, at p. 1204, italics altered from original.) According to the author of Senate Bill No. 230, by which section 3041 was amended in 2015, the purpose of the amendment was to ensure that inmates the Board found suitable for release on parole were in fact released expeditiously and not kept in confinement due to additional sentence enhancements. (Stats. 2015, Sen. Bill No. 230, Com. Report July 8, 2015; Stats. 2015, Sen. Bill No. 230, Com. Report Aug. 31, 2015.)[3] Nothing in the text or legislative history indicates the Legislature intended to alter the body responsible for determining an inmate's release date.

         Respondent does not suggest petitioner was required to exhaust administrative remedies before challenging a decision made by the Board; its position is based on its view that the decision at issue was made by the Department. Furthermore, even if we were to view the decision as having been made by the Department, insistence upon exhaustion of administrative remedies would have been futile, as it appears both the Board and the Department were following an established policy in requiring petitioner to serve the consecutive term after being found suitable for release on parole. (See In re Dexter (1979) 25 Cal.3d 921, 925-926.) Respondent's invocation of the Department's “special expertise” in calculating release dates as a basis for applying the exhaustion doctrine has no relevance here, as no calculation is at issue-the only question is whether both the Board and the Department correctly interpreted the statutes upon which they based the policy of requiring service of a sentence imposed under section 1170.1, subdivision (c), before releasing a youth offender found suitable for parole release under section 3051. This is a purely legal issue. Declining to review the merits of petitioner's claim now could only delay the relief to which he is entitled.[4]

         Respondent also contends this case should be transferred to the Fourth Appellate District, where the prison in which petitioner is confined is located, because prison staff calculated petitioner's release date and would be responsible for responding to an inmate appeal or updating the currently set release date. “[G]enerally speaking a petition for writ of habeas corpus should not be transferred to another court unless a substantial reason exists for such transfer. In general, a habeas corpus petition should be heard and resolved by the court in which the petition is filed.” (In re Roberts (2005) 36 Cal.4th 575, 585 (Roberts).) Griggs v. Superior Court (1976) 16 Cal.3d 341, 347, established that “ ‘[i]f the challenge is to a particular judgment or sentence, the petition should be transferred to the court which rendered judgment' ” while “ ‘[i]f the challenge is to conditions of the inmate's confinement, then the petition should be transferred to the superior court of the county wherein the inmate is confined.' ” (Roberts, at pp. 583-584.) Analogizing to these categories, Roberts held that “a petitioner who seeks to challenge by means of habeas corpus the denial of parole (or his or her suitability for parole) should file the petition in the superior court located in the county in which the conviction and sentence arose, and that the petition should be adjudicated in that venue.” (Id. at p. 593.) Among other reasons for this procedural rule, the court explained that the “objectives of sentencing and parole are related” and that adjudicating petitions challenging adverse parole determinations in the court in the county of commitment would produce more consistent review, since prisoners are often transferred from one prison to another, and would more evenly distribute the workload of such petitions among the courts of the state. (Id. at pp. 590-593.)

         The Board's decision in the present case is an “adverse parole determination” (Roberts, supra, 36 Cal.4th at p. 591) analogous to a denial of parole because petitioner is challenging the aspect of the Board's decision that prevented him from being released upon ...

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