In re Borlik
194 Cal. App. 4th 30
Cal. Ct. App.2011Background
- Borlik caused a fatal crash while intoxicated; he pled no contest to four felonies including gross vehicular manslaughter while intoxicated and was sentenced midterm on the manslaughter count with related stays and credits.
- CDCR initially set EPRD July 5, 2009, later adjusted to October 9, 2008, and again to July 28, 2011 per In re Pope; Pope held credits limitations apply even when related sentences are stayed under 654.
- Borlik petitioned for habeas corpus challenging CDCR’s calculation of credits; the superior court granted relief to recalculate and release if eligible, applying Pope retroactively.
- The CDCR appealed; the court considered whether Pope created a new rule and whether 2933.1(a) should apply to Borlik’s entire sentence despite 654 stay.
- The California Supreme Court’s Pope decision was found to apply retroactively; the court ultimately reversed the habeas grant and discussed potential reincarceration.
- The court noted Borlik’s early release on parole was unauthorized and discussed historical remedies for illegal release, distinguishing Tanner and Statum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 2933.1(a) cap apply to Borlik’s sentence where a violent felony was stayed under 654? | Borlik is convicted of a qualifying violent felony, triggering the 15% cap. | Credit-limiting applies only to confinement attributable to the stayed offense, not to the longer nonqualifying term. | Yes, 2933.1(a) applies to Borlik. |
| Should Pope be applied retroactively to Borlik’s case? | Pope should apply; it resolves conflicts and changes the law governing credits. | Retroactivity may not apply where release has occurred and creates reliance concerns. | Yes, Pope applies retroactively. |
| If Pope applies retroactively, should Borlik be returned to custody to finish serving his sentence? | Habeas relief would not be appropriate if Pope imposes retroactive limits. | Retain Borlik in custody to complete term due to unauthorized early release. | The order granting habeas relief is reversed; Borlik may be required to finish his sentence. |
| What is the proper remedy when a habeas petition results in an unauthorized release due to misapplied credits? | Remedy should align with Pope and offset any improper benefits. | Avoid punitive or clemency-like outcomes and respect statutory credit limits. | Remedy is reversal of the habeas grant and potential reversion to custody to complete term. |
| Did reliance on In re Phelon affect Borlik’s EPRD calculations and legal remedies? | Phelon misled calculations; Pope supersedes. | Phelon was controlling prior to Pope; retroactivity changes that. | Pope controls; retroactive application appropriate. |
Key Cases Cited
- In re Pope, 50 Cal.4th 777 (Cal. 2010) (held 2933.1(a) applies to remaining sentence when stayed; retroactivity analyzed)
- In re Phelon, 132 Cal.App.4th 1214 (Cal. App. 2005) (credit restrictions under 2933.1 discussed; later disapproved by Pope)
- In re Gomez, 179 Cal.App.4th 1272 (Cal. App. 2009) (issued earlier on Pope-related credit issues; disapproved by Pope)
- In re Reeves, 35 Cal.4th 765 (Cal. 2005) (analysis of 'is convicted' language and credit limitations)
- People v. Guerra, 37 Cal.3d 385 (Cal. 1984) (retroactivity framework and retroactive operation of decisions)
- People v. Tanner, 24 Cal.3d 514 (Cal. 1979) (remedies for illegal grants of probation; notion of unjustly enhanced terms)
- People v. Holt, 163 Cal.App.3d 727 (Cal. App. 1985) (probationary sentencing and considerations of cruel/unusual punishment)