Oluwa, In re

• Decision Date: 24 January 1989
• Citation: 255 Cal.Rptr. 35,207 Cal.App.3d 439
• Court: California Court of Appeals Court of Appeals
• Parties: In re Ras Adisa Gamba OLUWA, On Habeas Corpus. Crim. B035116.

Page 35

255 Cal.Rptr. 35

207 Cal.App.3d 439

In re Ras Adisa Gamba OLUWA, On Habeas Corpus.

Crim. B035116.

Court of Appeal, Second District, Division 3, California.

Jan. 24, 1989.

Review Denied April 19, 1989.

Marcia C. Levine and Richard Lennon, Los Angeles, under appointment by the Court of Appeal, for petitioner.

John K. Van de Kamp, Atty. Gen., Paul D. Gifford and George D. Prince, Deputies Atty. Gen., for respondents.

KLEIN, Presiding Judge.

Petitioner Ras Adisa Gamba Oluwa (Oluwa) seeks writ review of a policy change of the California Department of Corrections (CDC) ¹ which denied certain life term prisoners the benefit of work time credits provided for in Penal Code section 2933 ² and limiting such prisoners to behavior and participation credit under section 2931.

Because we conclude persons serving sentences of 15 years to life for second-degree murder are not eligible to receive the 1-for-1 custody credits enacted by the Legislature in 1983 after the passage of Proposition 7, but only 1-for-2, the petition is denied.

FACTUAL & PROCEDURAL BACKGROUND

On May 26, 1982, Oluwa was sentenced in the Superior Court for the County of Los Angeles upon his conviction after court trial of murder in the second degree, child endangering and cruel or inhuman corporal punishment of a child. ( §§ 187/190; 273a, subd. (1); 273d.) The trial court imposed a term of 15 years to life imprisonment for murder in the second degree and stayed upper terms imposed for the other two offenses.

Proposition 7, the so-called Briggs Initiative, enacted by the electorate on November 7, 1978, effected a number of changes in the criminal law. The initiative rewrote section 190, ³ among other sections, and increased the sentence for murder in the second degree from 5, 6 or 7 years in the state prison to 15 years to life in prison.

Rewritten section 190 acknowledged the application of custody credits to the fixed portion of a life term by providing in pertinent part: "The provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code [Article 2.5] shall apply to reduce any minimum term of 25 or 15 years in a state prison imposed pursuant to this section, but such person shall not otherwise be released on parole prior to such time." ( § 190.)

At the time of the enactment of Proposition 7, Article 2.5 contained only sections 2930, 2931 and 2932. These sections outlined the manner in which prisoners might reduce their sentences by a maximum one-third for good behavior and participation in prison programs. (Hereinafter, 1-for-2 or § 2931 credits.)

The Analysis by Legislative Analyst accompanying the ballot statement for Proposition 7 calculated the impact of the then existing behavior credits upon a 15-year sentence and stated, "A person sentenced to 15 years would have to serve at least 10 years before becoming eligible for parole."

After Oluwa began service of his sentence in 1982, the Legislature added sections 2933, 2934 and 2935 to Article 2.5. (Stats.1982, ch. 1234, §§ 4, 5 & 6, pp. 4551-4553.) Commencing January 1, 1983, section 2933, subdivision (a), granted persons "convicted of crime and sentenced to state prison, under section 1170, ... a reduction in the time served [of up to one-half] ... for performance in work, training or education programs...." (Hereinafter, 1-for-1 or § 2933 credits.)

Section 2934, enacted at the same time as section 2933, allowed an already sentenced prisoner to waive the right to receive 1-for-2 credits provided for in section 2931 and thereafter receive 1-for-1 section 2933 credits.

The CDC interpreted newly enacted sections 2933 and 2934 to apply to the fixed portion of Oluwa's sentence. Oluwa executed a section 2934 waiver in order to earn custody credit at the new more generous rate.

However, in March, 1987, the Attorney General issued an opinion which concluded prisoners serving 15 years to life were not entitled to section 2933 credits. (70 Ops.Cal.Atty.Gen. 49 (1987).) Following this opinion, the CDC recalculated the minimum parole eligibility date for all such prisoners. Because of this change in policy, Oluwa's minimum eligible parole date, which had been set by the Board of Prison Terms at August 11, 1988, is now December 9, 1990. ⁴

ISSUE

The issue for determination is whether Oluwa is entitled to the benefit of the more liberal custody credits allowed by section 2933. For reasons hereinafter discussed, we find he is not.

DISCUSSION

1. Oluwa's petition may properly be considered by this court.

Oluwa is imprisoned outside this district at Folsom prison in Represa, California. However, he was convicted and sentenced in this district.

In Griggs v. Superior Court (1976) 16 Cal.3d 341, 346, 128 Cal.Rptr. 223, 546 P.2d 727, our Supreme Court concluded territorial limits on the power to issue writs of habeas corpus had been removed by the 1966 revision of the California Constitution. The Griggs court also noted that if the petition for writ of habeas corpus challenged a judgment or sentence, it should be transferred to the court which rendered the judgment. If the petition challenged conditions of the inmate's confinement, it should be transferred to the district in which the inmate is confined. As to matters not falling within either category, "unless there is substantial reason for transferring a petition it should be entertained and resolved in the court where filed." (Id., at p. 347, 128 Cal.Rptr. 223, 546 P.2d 727.)

Because the matter of custody credits is not related to the conditions of Oluwa's confinement, we address the merits of the matter.

2. Oluwa concedes Section 2933 not applicable directly.

Oluwa's term of 15 years to life is an indeterminate sentence. ⁵ Because section 2933, by its terms, applies only to those persons convicted and sentenced pursuant to section 1170, Oluwa cannot claim section 2933 credits on the basis of that section alone. Oluwa concedes this point. He also acknowledges he cannot invoke the doctrine of equitable estoppel as to the CDC's reversal of its position. (Compare In re Monigold (1988) 205 Cal.App.3d 1224, 253 Cal.Rptr. 120.) Oluwa's sole contention is that Proposition 7 authorizes his receipt of section 2933 credits.

3. Oluwa is bound by Proposition 7 as enacted by the electorate.

a. Reference to custody credit in Proposition 7 was sufficiently specific to incorporate said credits as they existed at the time of its adoption consistent with the intent of the electorate.

Oluwa argues Proposition 7 authorized his receipt of subsequently enacted section 2933 credits because Proposition 7 acknowledged existing section 2931 credits would be available to reduce the fixed portion of life terms by one-third. Oluwa asserts this reference to the provisions of Article 2.5 containing the sections evinces the intent of the electorate that sections subsequently added thereto and dealing with the same subject matter should be engrafted onto section 190. Thus, Oluwa claims entitlement to section 2933 credits based upon the language of Proposition 7 itself.

However, " '[i]t is a well established principle of statutory law that, where a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified,.... [Citations.] [p].... [p] ... [T]here is a cognate rule, recognized as applicable to many cases, to the effect that where the reference is general instead of specific, such as a reference to a system or body of laws or to the general law relating to the subject at hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time, and ... as they may be subjected to elimination altogether by repeal. [Citations.]' " (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58-59, 195 P.2d 1, italics added.)

Oluwa's argument that the initiative referred generally to the ability of prisoners to receive the same custody and behavior credits available to other prisoners and, for that reason, did not refer specifically to the provisions of section 2931 but to the entire article containing that section is not persuasive when viewed in the light of existing case law.

The rationale set forth in Rancho Santa Anita v. City of Arcadia (1942) 20 Cal.2d 319, 322, 125 P.2d 475, provides an apposite analogy. There, reference to title IX of the Political Code, which at the time contained 11 chapters and 200 sections, was held sufficiently specific to adopt the provisions of the title as they then existed.

In our case, the custody credit provisions in Proposition 7 referred to "Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code." This is not a reference to a system or body of laws or to the general law relating to the subject at hand. It is a specific and pointed reference to an article of the Penal Code which contained only sections 2930, 2931 and 2932 at the time Proposition 7 incorporated Article 2.5 into section 190. (Compare, Kirk v. Rhoads (1873) 46 Cal. 398, 402, holding reference to " 'all the provisions of law in force regulating elections' " to be general.)

Moreover, the legislative analysis accompanying the initiative specifically addressed the availability of conduct credits and advised voters that those persons sentenced to 15 years to life in prison would have to serve a minimum of 10 years before becoming eligible for parole. Thus, contrary to Oluwa's assertion, the electorate clearly intended service of 10 calendar years by a second degree murderer before parole consideration.

Further, a statute enacted by the electorate as an initiative measure may be changed only with the approval of the electorate unless the initiative measure itself permits amendment or repeal without voter approval. (Cal. Const., art. II, § 10(...