Diaz, In re

• Decision Date: 19 February 1993
• Docket Number: H010338,Nos. H010340,s. H010340
• Citation: 17 Cal.Rptr.2d 395,13 Cal.App.4th 1755
• Court: California Court of Appeals Court of Appeals
• Parties: In re Hector Walter C. DIAZ et al., on Habeas Corpus. In re Robert Howard SINGER, on Habeas Corpus.

Page 395

17 Cal.Rptr.2d 395

13 Cal.App.4th 1755

In re Hector Walter C. DIAZ et al., on Habeas Corpus.

In re Robert Howard SINGER, on Habeas Corpus.

Nos. H010340, H010338.

Court of Appeal, Sixth District, California.

Feb. 19, 1993.

As Modified on Denial of Rehearing March 18, 1993.

Review Denied June 10, 1993.

Steven Fama, Prison Law Office, San Quentin, for petitioners Hector Diaz, et al., Under Appointment by the Court of Appeal.

Kathleen M. Kelly, David A. Nickerson, Mazer & Nickerson, San Francisco, for petitioner Robert Singer.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Morris Lenk, Bruce M. Slavin and Catherine A. McBrien, Deputy Attys. Gen., San Francisco, for respondent.

COTTLE, Presiding Justice.

This case presents the issue whether California law allows more generous work and conduct credits to recidivist murderers than to one-time murderers.

Petitioners, all of whom stand convicted of murder and are serving indeterminate life sentences under Penal Code section 190, ¹ have filed these petitions for writs of habeas corpus seeking one-for-one work conduct credits pursuant to section 2933. ² Under direction of the California Supreme

Court, we issued an order to show cause, returnable before this court. For the reasons stated below, we shall hold the petitioners are not entitled to the credit which they seek.

PROCEDURAL AND FACTUAL BACKGROUND AND LEADING CASES

Petitioners are murderers sentenced to serve indeterminate life terms under section 190. ³ They are not recidivists; they were not sentenced as habitual criminals under section 667.7. The Department of Corrections has refused them work time credits under section 2933 under compulsion of an attorney general opinion (70 Ops.Cal.Atty.Gen. 49 (1987)) and a Court of Appeal decision (In re Monigold (1988) 205 Cal.App.3d 1224, 253 Cal.Rptr. 120), both of which reasoned that "[s]ection 2933 ... is expressly applicable only to those prisoners sentenced to determinate terms under Penal Code section 1170" (Monigold, supra, at p. 1227, 253 Cal.Rptr. 120; Ops.Cal.Atty.Gen., p. 50), and "does not cover persons ... who are serving indeterminate terms [under section 190] and were not sentenced under Penal Code section 1170." (Monigold, supra, p. 1227, 253 Cal.Rptr. 120; Ops.Cal.Atty.Gen. p. 57.)

The above conclusion stemmed in part from language in section 2933 which states that "[i]t is the intent of the Legislature that persons convicted of a crime and sentenced to state prison, under Section 1170, serve the entire sentence imposed by the court, except for a reduction in the time served ... for performance in work, training or education programs" (§ 2933, subd. (a)) and that "[a]ny person sentenced to a term in the state prison under subdivision (a) of Section 190 shall be eligible only for credit pursuant to subdivisions (a), (b), and (c) of Section 2931." (§ 2933, subd. (e).) The subdivisions of section 2931 referred to in subdivision (e) of section 2933 confer one-third term reductions for good behavior and no work conduct reductions.

Another basis for the conclusion of the attorney general opinion and the Monigold decision was that section 190 is part of the Briggs Initiative, a measure which was enacted before section 2933 was passed, and therefore cannot be modified by incorporating section 2933 into it, since such a modification would result in a sentencing scheme not intended by the voters. (See In re Oluwa (1989) 207 Cal.App.3d 439, 445-446, 255 Cal.Rptr. 35.)

Recently, in Brodheim v. Rowland (N.D.Cal.1991) 783 F.Supp. 1245, appeal pending, Ninth Circuit Court of Appeals, No. 91-16856 (hereafter Brodheim ), the federal district court held that our habitual criminal sentencing statute, section 667.7, allows convicted murderers with prior serious felony convictions to receive section 2933 credits while first time murderers, such as petitioners, who are sentenced under section 190, may not receive such credit. The Brodheim court discerned no rational basis for a sentencing scheme giving more generous work credits to recidivist murderers. Lacking such basis, the scheme is unconstitutional on equal protection grounds. (See, e.g., People v. Leung (1992) 5 Cal.App.4th 482, 495-496, 7 Cal.Rptr.2d 290; see also Westen, The Empty Idea of Equality (1982) 95 Harv.L.Rev. 537, 576-577; Tribe, American Constitutional Law (2d ed. 1988) § 16-2, p. 1440.) The Brodheim court mandated the Department of Corrections to afford one-for-one work time credits under section 2933 to Brodheim as a matter of federal constitutional equal protection: "[A]llowing the hardened first-degree murderer to earn § 2933 credits, while denying them to his callow counterpart, is irrational." (783 F.Supp. at p. 1249.)

DISCUSSION

We are not bound by the decision of a federal district court nor are federal decisions controlling on questions of interpretation of state law. (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129; Missouri v. Hunter (1983) 459 The People initially contend the petitions before this court are not ripe for adjudication because habeas corpus may not be used to challenge the validity of an anticipated future action. (In re Drake (1951) 38 Cal.2d 195, 198, 238 P.2d 566.) In making this argument, the People observe that none of the petitioners have yet been found parole-suitable and that, therefore, there is no guarantee they will ever get a term against which credits can be applied. This ripeness argument lacks merit because such credits do determine when prisoners may first have a parole eligibility hearing, and the court in Monigold regarded that effect as sufficiently present and substantial to warrant relief on habeas corpus. (In re Monigold, supra, 205 Cal.App.3d at pp. 1230-1231, 253 Cal.Rptr. 120.)

                U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535.)   Accordingly, the California Supreme Court has directed us to consider independently whether section 667.7 allows convicted murderers with prior serious felony convictions to receive section 2933 credits while first time murderers sentenced under section 190 may not receive such credits.  We are directed to decide if these state laws were correctly interpreted by Brodheim, and to decide whether the state law as we interpret it violates the California or the federal constitutions
                

The People next argue that the Brodheim decision misinterpreted California law and that, in fact, convicted murderers are always sentenced under section 190 and not under section 667.7, subdivision (a), the habitual criminal statute. For the reasons stated below, we agree.

Section 667.7, which was passed by the Legislature and not by the voters, expressly affords one-for-one work time credit to persons found to be habitual criminals within the statute and who are sentenced according to its provisions. The pertinent language states that "[t]he provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term in a state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time." (§ 667.7, subd. (a)(1).) The incorporated Article 2.5 contains section 2933, which provides for one-for-one work time credits against determinate sentences under section 1170.

Section 190, on the other hand, determines the sentences for all persons convicted of first or second degree murder. (§ 190, subds. (a), (b).) The statute imposes its penalties upon "[e]very person" guilty of those offenses. (Ibid.)

We conclude that the plain meaning of section 190 is that the statute applies to every person convicted of murder and that such persons must be sentenced under section 190 and receive the punishment that it prescribes. As the courts in Monigold and Oluwa held, that punishment is not reducible by one-for-one work time credits. (In re Monigold, supra, 205 Cal.App.3d at p. 1227, 253 Cal.Rptr. 120; In re Oluwa, supra, 207 Cal.App.3d at p. 442, 255 Cal.Rptr. 35.)

Furthermore, we agree with the People that to sentence murderers under the recidivist statute, section 667.7 would impermissibly infringe the earlier enacted Briggs Initiative. As part of that initiative, section 190 ⁴ stated an express punishment for murderers, which did not include one-for-one credits. Section 190 is an initiative measure which cannot be modified by subsequent legislative enactments not having the requisite majority for altering a voter initiative. (In re Oluwa, supra, 207 Cal.App.3d at pp. 445-446, 255 Cal.Rptr. 35; see Cal. Const., art. II, § 10, subd. (c).) California law proscribes modification of a voter initiative by legislative enactments "unless the initiative measure itself permits amendment or repeal without voter approval." (In re Oluwa, supra, 207 Cal.App.3d at pp. 445-446, 255 Cal.Rptr. 35; Cal. Const., art. II, § 10, subd. (c), supra.) It follows that the punishment prescribed by section 190 may not be modified by the subsequently enacted recidivist statute providing We are further convinced that denying section 2933 credits to murderers sentenced under the recidivist statute, section 667.7, fully effectuates the intent of the legislators in passing that statute, which was to lengthen, not to shorten, the sentences of persons falling under section 667.7. (See People v. Gonzalez (1988) 201 Cal.App.3d 811, 815, 247 Cal.Rptr. 501.) The defendant in Gonzalez argued that the 20-year minimum of section 667.7 applied even if the underlying offense carried a greater minimum eligibility period. In rejecting the defendant's contention, the court observed that such a result would be inconsistent "with 'the interest, expressed in all recidivist statutes, [to deal] in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society.... [Citation.]' " People v. Gonzalez, supra, 201 Cal.App.3d at p. 815, 247 Cal.Rptr. 501, ...