In re Borlik
| Decision Date | 20 July 2011 |
| Docket Number | No. H034191.,H034191. |
| Citation | 194 Cal.App.4th 30,2011 Daily Journal D.A.R. 4970,124 Cal.Rptr.3d 410,11 Cal. Daily Op. Serv. 4167 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re Craig Hunter BORLIK, on Habeas Corpus. |
OPINION TEXT STARTS HERE
Edmund G. Brown, Jr., Kamala D. Harris, Attorneys General, Julie L. Garland, Sr. Assistant Attorney General, Anya M. Binsacca and Sara J. Romano, Deputy Attorneys General, for Appellant.
Edward Mahler, for Respondent.
Ron Barnes, acting Warden at the California Correctional Center in Susanville appeals from an April 24, 2009 order of the Santa Clara County Superior Court granting Craig Borlik's petition for writ of habeas corpus. 1 For reasons that follow, we reverse the order of the Superior Court.
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).) 2 Borlik admitted that while driving with a BAC of .08 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,3 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 654.4
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, 34 Cal.Rptr.3d 276, 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.
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.
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?
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, 89 Cal.Rptr.2d 10.) Further, when the lower court reaches a decision based on the pleadings and attached exhibits, as in this case, we independently review the record. (In re Ernest Smith (2003) 114 Cal.App.4th 343, 360–361, 7 Cal.Rptr.3d 655.)
The CDCR argues that because Borlik was convicted of a violent felony he is ineligible to receive work time credits in excess of 15 percent.
To provide a framework for addressing this argument it is necessary to describe generally the statutory scheme regarding how a defendant serving a prison sentence earns custody credits against his term of imprisonment.
During the time Borlik was incarcerated, defendants convicted of a crime and sentenced to a determinate term in state prison, were required to “serve the entire sentence imposed by the court, except for a reduction in the time served in the custody of the Director of Corrections for performance in work, training or education programs established by the Director of Corrections.” Worktime credits were applied “for performance in work assignments and performance in elementary, high school, or vocational education programs.” Thus, for “every six months of full-time performance in a credit qualifying program” a prisoner was “awarded worktime credit reductions from his or her term of confinement of six months.” (Former § 2933, subd. (a), added by Stats.1982, ch. 1234, § 4, p. 4551.) 6 Accordingly, it was possible for a prisoner to receive a 50 percent reduction in his sentence pursuant to this section.
Nevertheless, for specified felons, section 2933.1 limits the accrual of worktime credits to 15 percent. Specifically, section 2933.1, subdivision (a) provides, “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” Relevant here, a violent felony (§ 667.5, subd. (c)(8).) Thus, pursuant to section 2933.1, subdivision (a), persons who have been convicted of qualifying violent felonies may earn credit against their term of no more than 15 percent.
The CDCR contends that because Borlik was “convicted of a great bodily injury enhancement, Borlik ‘is convicted’ of a violent felony under section 2933.1' s plain meaning.”
Recently, while this appeal was pending, the California Supreme Court agreed with the CDCR. In In re Pope (2010) 50 Cal.4th 777, 114 Cal.Rptr.3d 225, 237 P.3d 552( Pope ), the Supreme Court had to decide how to apply the section 2933.1 statutory limitation when a prisoner has been convicted of and sentenced for both qualifying and nonqualifying offenses but, although sentence has been imposed for both types of offense, execution of sentence has been stayed with respect to the qualifying offenses pursuant to the provisions of section 654. ( Id. at p. 779, 114 Cal.Rptr.3d 225, 237 P.3d 552.) The Supreme Court concluded that when a defendant is convicted of and sentenced for both qualifying and nonqualifying offenses and a sentence has been imposed for both types of offense, even though execution of sentence has been stayed with respect to the qualifying offenses pursuant to the provisions of section 654, the defendant is still subject to the limitations imposed by section 2933.1(a). ( Ibid.)
In Pope, the defendant, Nathan Pope (Pope), drove his vehicle at a high rate of speed and against a red light into an intersection in Fresno. His automobile struck another vehicle, rupturing its gasoline tank and causing a fire that killed the vehicle's occupant. Pope's blood-alcohol level was .25 percent and his blood contained evidence of ingestion of cocaine. ( Pope, supra, at p. 780, 114 Cal.Rptr.3d 225, 237 P.3d 552.)
Pope pleaded guilty to one count of driving under the influence of alcohol or drugs, causing injury (Veh.Code, § 23153, subd. (a)), and one count of driving with an unlawful blood-alcohol level, causing injury (Veh.Code § 23153, subd. (b)). As to each of these counts, he admitted enhancement allegations that the offenses caused great bodily injury. (§ 12022.7, subd. (a).) Similar to this case, by virtue of the enhancement allegations, each of these two counts constituted a qualifying violent felony for the purpose of the credit restrictions imposed by section 2933.1(a). In addition, to the driving-under-the-influence offenses, Pope pleaded guilty to gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), which is not a qualifying violent felony for the purpose of the credit restrictions imposed by section 2933.1(a). ( Pope, supra, 50 Cal.4th at p. 780, 114 Cal.Rptr.3d 225, 237 P.3d 552.)
The trial court imposed sentence on all three counts, but, similar to this case, pursuant to section 654 stayed execution of sentence for the offenses carrying the shorter term. Since the offense of gross vehicular manslaughter while intoxicated carries a longer term of imprisonment than the driving-under-the-influence offenses of which Pope stood convicted, the trial court sentenced the defendant to the middle term of six years for the gross vehicular manslaughter conviction, and imposed but stayed execution of a sentence of five years for each of the driving-while-under-the-influence offenses. ( Pope, supra, 50 Cal.4th at p. 780, 114 Cal.Rptr.3d 225, 237 P.3d 552.)
The CDCR concluded that the 15 percent restriction applied to Pope's entire sentence because of his status as a person who was convicted of a qualifying violent felony. According to the CDCR, the amount of credit Pope could earn against his six-year term for...
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