United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S AND DEFENDANTS'
CROSS-MOTIONS FOR PARTIAL SUMMARY ADJUDICATION ON CALCULATION
ISSUE; EXTENDING TIME TO FILE AMENDED COMPLAINT; AND SETTING
FURTHER CASE MANAGEMENT CONFERENCE DKT. NO. 81, 91
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.
Troy Richardson brings this action pursuant to 42 U.S.C.
section 1983 and the statutory and common law of the state of
California alleging that defendants California Department of
Corrections and Rehabilitation (“CDCR”) and the
individual CDCR employees named. Plaintiff alleges that he
was released from prison after serving the prison sentence
allotted to him by the applicable Court orders, rules, and
regulations, but was reincarcerated wrongly and treated as an
escaped prisoner. (See operative Third Amended
Complaint, Dkt. No. 57.) At the request of the parties, the
Court permitted limited, early cross-motions for partial
summary judgment on the issue of the correct release date.
(See Order Vacating Trial and Pretrial Deadlines,
Dkt. No. 79.)
filed his motion for partial summary judgment on October 21,
2019 (Dkt. Nos. 81-84) seeking adjudication of the correct
calculation of plaintiff's resentencing and a
determination that, as a matter of law, CDCR re-calculated
plaintiff's sentence on September 12, 2016, without legal
authority to do so. Defendants CDCR, Gipson, Hatton, Pina,
Weeks, Castaneda, Marion, Montoya, Quintero, Johnston,
Lebard, Davis, Beeson, Moreno, Burris, Bomgardner, Ouye,
Alfaro, Fernandez, Bautista, Bjorgum, Rios, Allison, Cullen,
Gold, Kunz, Jones, Macomber, White, and Smalley
(collectively, “defendants”) filed their
cross-motion for summary adjudication on November 4, 2019
(Dkt. No. 91) contending that plaintiff's entire
incarceration was lawful and therefore all of plaintiff's
claims fail as a matter of law. On December 10, 2019, the Court
heard oral argument regarding the limited question of the
calculation of plaintiff's release date.
carefully considered the papers submitted in support of and
in opposition to the motions, the admissible evidence in the
record,  the parties' arguments at the hearing,
and the pleadings in this action, and for the reasons set
forth below, the Court Denies the scope of
the summary adjudication order sought by each side in its
motion, but finds, as a matter of law, that the earliest
possible release date based upon his December 22, 2014
resentencing, was approximately February 10, 2019.
Summary of Facts
was charged with crimes in connection with a robbery that
occurred on October 21, 2011. Plaintiff was taken into local
custody technically as of October 25, 2011. On May 24, 2012,
plaintiff pleaded guilty and was sentenced by the Honorable
Michael N. Garrigan to ten years in prison-five years for his
plea of guilty to second-degree robbery plus a five-year
enhancement for his admission to a prior “strike”
conviction. (Shyrock Decl. Exh. 1.) All remaining charges
against Plaintiff were dismissed. The original abstract of
judgment (“AOJ”) was dated June 6, 2012. The AOJ
listed the enhancement as use of a firearm (under Penal Code
§ 12022.5(a)). The June 6, 2012 AOJ provided that
plaintiff would receive credit for time spent in custody up
to the date of sentencing - 212 days “actual local
time” and 180 days “local conduct credit”
for a total of 392 days of credit.
April 2013 Resentencing
April 22, 2013, plaintiff was re-sentenced by the Honorable
Franklin M. Stephenson as a result of a deal plaintiff
reached with the prosecutor to reduce his sentence by
approximately one year based on plaintiff's cooperation
in an unrelated case. (Shryock Decl. Exh. 2.) The transcript
of the sentencing hearing states that Judge Stephenson
ordered that plaintiff be given “actual days credit,
pursuant to the agreement of the parties in court, of 863
actual days, 132 good time credits, for a total of 993 (sic)
days credit for time served.” (Id. at
3:27-4:1, “sic” notation in original transcript.)
The AOJ dated April 23, 2013 states, at line 8,
“STIPULATED THAT DEFT. RECEIVE CTS IN THE AMOUNT OF 863
DAYS” and the boxes on the bottom of the form state
“credit for time spent in custody Total days: 993
included: actual local time: 863 local conduct credits:
130.” (Helbraun Decl. Exh. C.)
September 23, 2014, a CDCR Records Analyst in CDCR's
Legal Processing Unit (“LPU”) wrote to Judge
Stephenson, seeking clarification of two issues related to
the April 23, 2013 AOJ: (1) the number of pre-sentence credit
days; and (2) the five-year enhancement was not a term
authorized by Penal Code section 12022.5(a). The CDCR Records
Analyst stated that the court had “granted too many
actual days” credits when it gave plaintiff 863 total
days, since plaintiff had not been in custody 863 actual
days, but only 549. (Helbraun Decl., Exh. D.) The letter cited
two cases for the argument that “when the trial court
resentences a defendant who has already commenced serving a
term for the crime, the trial court should only compute the
actual time spent in prison following the initial
sentencing.” (Id.) The letter continued:
It is the responsibility of the [CDCR] to determine the
amount of worktime credit to which an inmate is entitled from
the date of initial sentencing. At the time of
defendant's original sentencing, he was granted a total
of 392 days (212 actual and 180 conduct). The CDCR will
calculate and apply the appropriate amount of good time/work
(Id.) As to the second issue, the CDCR Records
Analyst noted that the April 23, 2013 AOJ gave a five-year
enhancement under Penal Code section 12022.5(a), but the
statute only allowed for enhancements of 3, 4, or 10 years.
October 23, 2014, Judge Stephenson set a new hearing
regarding the enhancement question and issued an amended AOJ
which recited the sentencing date as April 22, 2013, reset
total days credits to 392, the actual local time as 212 and
the local conduct at 180 nunc pro tunc as they had
appeared on the original June 6, 2012 AOJ. (Helbraun Decl.,
December 2014 Resentencing and Plaintiff's
December 22, 2014, Judge Stephenson held a further sentencing
hearing. (Shryock Decl. Exh. 3.) At the hearing, Judge
Stephenson and the parties discussed the sentencing issue.
Jacobsen, counsel for plaintiff in those proceedings, stated:
MR. JACOBSEN: Doug Jacobsen for Mr. Richardson, who is
present in custody.
Your Honor, at this time we are in receipt of a letter from
the Department of Corrections regarding an error on the
sentencing. And after discussions with court and counsel, I
believe we're prepared to correct the error. And the gist
of the correction would be that Mr. -- Mr. Richardson, on the
date in question, was given five years consecutive, 12022.5,
which only calls for sentences of three, four and ten. So the
five was a mistake.
Mr. Richardson is agreeable that the sentence would be
changed to the midterm of four years, which would make his
total sentence nine years. However, on the extra one year
credit that was stipulated to be added on April
22nd of 2013, he would agree to split that and
take only half of that in terms of the credit, which we
determined he was entitled. And that would be 159 days, which
is half of the 318. Therefore, as I calculate it, Your Honor,
when he was originally sentenced on May 24th of 2012, he had
212 days credit at that time. After that, he was brought back
and resentenced on the 22nd of April, 2013. He had served 333
more days actual time. He would now agree to a stipulated 159
additional days, which is half of 318. And since April 22nd,
2013, to today, he has served an additional 609 days. I added
up the 212 the 333 the 159 and the 609. It came to 313
THE COURT: Actual days?
MR. JACOBSEN: Actual days. So he would agree to a sentence of
five years on the robbery, four years on the firearm, and 313
[sic] days of actual credit.
THE COURT: Is that at 80 percent?
MR. RASMUSSEN: Eighty-five.
THE COURT: He would be given an additional 47 on top of the
MR. JACOBSEN: Well, it would be more than that. It's 85
percent of 313 -- 1313. 1313.
THE CLERK: He said 313.
THE COURT: So it's 3, 313?
MR. JACOBSEN: No. 1, 313. Let me show you my math, Judge.
THE COURT: Thank you. Thank you. So 1, 313.
MR. JACOBSEN: Yes.
THE COURT: Okay. Thank you. Which would be an additional 197.
For a total of 1, 510. All right. Is that what you want to do
here today, Mr. Richardson?
THE DEFENDANT: Yes, sir.
(Id. at 3:9-4:27.) The new AOJ issued December 26,
2014, indicated “credit for time spent in custody total
days: 1, 510, actual local time 1, 313 and local conduct
credits: 197.” (Helbraun Decl. Exh F.) The minutes from
that hearing state:
ORIGINAL SENTENCE OF 4/22/13 IN FULL FORCE AND EFFECT EXCEPT
AS MODIFIED HEREIN
AS TO COUNT 1: IMPOSED THE UPPER TERM OF 5 YEAR(S), 0
MONTH(S), 0 DAY(S).
PLUS ENHANCEMENT FOR ALLEGATION NUMBER 1 AS TO COUNT 1
PURSUANT TO PC 12022.5(A) OF 4 ...