In re Lira
WERDEGAR, J.—A life inmate is found suitable for parole and given a parole date by the Board of Parole Hearings (the Board). The Governor reverses the grant of parole, the inmate challenges the reversal by petition for writ of habeas corpus, and while the petition is pending the Board again finds the inmate suitable and sets another parole date. The Governor does not review the second decision, and the inmate is released from prison, subject to a maximum five-year parole term under the applicable statute. If the court subsequently grants relief on the inmate‘s habeas corpus petition and overturns the Governor‘s earlier reversal for want of supporting evidence, is the inmate entitled to credit against his parole term for the time he spent in prison between the erroneous reversal and his eventual release? We conclude he is not.
I. FACTUAL AND PROCEDURAL BACKGROUND
Because the circumstances of the underlying offense are not relevant to the issue before us, we summarize them only briefly. Johnny Lira was convicted of second degree murder for the 1980 shooting death of his estranged wife. He was sentenced in 1981 to an indeterminate term of 15 years to life in prison, consecutive to a two-year firearm-use enhancement, and was subject to a parole term not to exceed five years upon his release. (
In December 2005, the Board denied Lira parole for the ninth time, a denial Lira successfully challenged by filing a petition for writ of habeas corpus in superior court. The superior court, in an order affirmed on appeal, ordered a new parole hearing, which the Board conducted in November 2008. At the new hearing the Board found Lira suitable for parole, a decision then Governor Schwarzenegger reversed in April 2009. Lira challenged the Governor‘s reversal by filing a second habeas corpus petition in superior court. While that petition was pending, at a regularly scheduled parole hearing on November 3, 2009, the Board again found Lira suitablе for parole, a decision the Governor declined to review. Lira was paroled on April 8, 2010.
Lira then filed a supplemental habeas corpus petition, arguing that his release did not moot the pending petition challenging the Governor‘s reversal
The Court of Appeal rejected Lira‘s argument that he was entitled to credit for the entire period he spent in prison following the Bоard‘s deficient 2005 suitability finding, but affirmed the superior court‘s conclusion that the Governor‘s reversal of the Board‘s 2008 parole grant was not supported by “some evidence” as required by law. (See In re Lawrence (2008) 44 Cal.4th 1181, 1220–1221 [82 Cal.Rptr.3d 169, 190 P.3d 535]; In re Rosenkrantz (2002) 29 Cal.4th 616, 677 [128 Cal.Rptr.2d 104, 59 P.3d 174].) The court modified the order granting relief to provide credit only for the yearlong period between the Governor‘s 2009 reversal and Lira‘s actual 2010 release on parole.
We granted the Attorney General‘s petition for review, which raised only the credit issue.2
II. DISCUSSION
No stаtute governing sentence credit specifically authorizes credit against a parole term under the present set of facts, but Lira argues sections 2900 and 2900.5 together provide the foundation for his claim.
The Attorney General contends there was nothing unlawful about Lira‘s confinement, and that all of the time he spent in custody was properly
We first summarize the statutes that are most relevant to the issues presented in this case.
Sections 3000 and 3001, in the Penal Code chapter entitled Length of Term of Imprisonment and Paroles, set forth the general requirement of a period of parole and its length, respectively. At the time of Lira‘s сrime and thus as applicable here, section 3000 provided in pertinent part: “The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. It is in the interest of public safety for the state to provide for the supervision of and surveillance of parolees and to provide educational, vocational, family and personal counseling necessary to assist parolees in the transition between imprisonment and discharge. A sentence pursuant to Section 1168 [providing for indeterminate sentencing] . . . shall include a period of parole, unless waived, as provided in this section.”4 Subdivision (b) of section 3000 provided for a maximum parole period of five years for an inmate, like Lira, who was imprisoned for second degree murder committed before 1983. (Stats. 1978, ch. 582, § 1, pp. 2002, 2003.)
Section 3001, subdivision (b), at the time of Lira‘s crime and as relevant hеre, provided: “Notwithstanding any other provision of law, when any person referred to in subdivision (b) of Section 3000 has been released on parole from the state prison, and has been on parole continuously for three years since release from confinement, the board shall, within 30 days, discharge such person from parole, unless the board, for good cause, determines that such person will be retained on parole.” (Stats. 1978, ch. 582, § 2, p. 2004.) Thus, although the maximum period of parolе under the version of section 3000 applicable here is five years, a parolee will be discharged after service of three years’ continuous parole unless the Board makes the requisite good cause finding.5 (See
Sections 2900 and 2900.5, comprising part of article 1, Commencement of Term, in the chapter entitled Execution of Sentences of Imprisonment, require that time served in custоdy be credited against the sentence fixed by the judgment in a criminal action.
Lira contends the Court of Appeal correctly concluded that his term of imprisonment properly ended on the date when he would have been released pursuant to the Board‘s 2008 parole grant but for the Governor‘s unsupported reversal, that the days he spent in custody between that date and the date of his eventual release constituted unlawful imprisonment, and that this period of assertedly unlawful imprisonment must be credited against his parole term under sections 2900 and 2900.5. In support, he cites In re Bush (2008) 161 Cal.App.4th 133 [74 Cal.Rptr.3d 256] (Bush), but that case does not assist him.
In Bush, a life prisoner claimed he was entitled to have his parole period reduced by time he spent in custody in excess of the base term ultimately set by the Board. In rejecting the claim, the court observed that the “California Code of Regulations provides that a prisoner who has served more time in custody than the base term is entitled to immediate release,” but is silent regarding any credit against the inmate‘s parole term. (Bush, supra, 161 Cal.App.4th at p. 142; see
The Bush court further rejected the prisoner‘s contention that
Lira nevertheless focuses on the Bush court‘s reference to the time a prisoner lawfully spends in prison custody as being credited against the prisoner‘s term of imprisonment, inferring that time unlawfully spent in custody must be credited against the parole period. He contends the period at issue in the present case was time unlawfully spent in custody because a court later determined the Governor‘s reversal was unsupported.
Lira‘s argument overlooks the significance of the Governor‘s independent constitutional authority to review parole suitability determinations. (
We therefore agree with the Attorney General that Lira was lawfully imprisoned during this period until the day he was released, and that he received credit against his term of life imprisonment for all such days and is not entitled to any credit against his parole term.
Lira relies on certain decisions in which courts ordered that credits be applied to shorten the inmate‘s parole term. Those cases are distinguishable as involving ministerial application of various types of sentence credits earned by determinatе term prisoners, not discretionary decisions by the executive branch regarding parole of life prisoners. (E.g., In re Randolph (1989) 215 Cal.App.3d 790, 795 [263 Cal.Rptr. 768] [credits for time “out-to-court“]; In re Anderson (1982) 136 Cal.App.3d 472, 476 [186 Cal.Rptr. 269] [presentence custody and conduct credits]; In re Ballard (1981) 115 Cal.App.3d 647, 650 [171 Cal.Rptr. 459] [same]; In re Carter (1988) 199 Cal.App.3d 271, 273 [244 Cal.Rptr. 648] [worktime credits]; In re Reina (1985) 171 Cal.App.3d 638, 642 [217 Cal.Rptr. 535] [day-for-day custody credits].) The considerations informing the sentence credit decisions Lira cites are inapplicable here. For the reasons previously discussed (see ante, at pp. 580–581), Lira‘s reliance on Bush, supra, 161 Cal.App.4th at page 143, footnote 4, is likewise misplaced.
Lira‘s effort to shorten his parole term based on the asserted unlawfulness of the portion of his term of imprisonment that followed the Governor‘s 2009 reversal also runs afoul of the rule that a parоle term begins only after release from prison. In In re Chaudhary (2009) 172 Cal.App.4th 32 [90 Cal.Rptr.3d 678], a life prisoner sentenced after 1983 was subject under section 3000.1 to a lifetime parole term, with eligibility for discharge “‘when
Although this case does not involve section 3000.1‘s five-year minimum parole discharge eligibility requirement in the context of a potential lifetime parole period, the language of the portion of former
Lira also overlooks the significant separation of powers issues the rulе he asks us to adopt would raise. “‘The separation of powers principle is embodied in the California Constitution, which provides as follows in
As the apрlicable statutes make clear, whether a period of parole is to be required and, if so, its duration and conditions are matters for the Board. (
Lira contends he is entitled to the credit he seeks as a matter of fundamental fairness, founded in substantive due procеss. He points to language in In re Lawrence, supra, 44 Cal.4th 1181, and In re Rosenkrantz, supra, 29 Cal.4th 616, acknowledging that, in light of the constitutional liberty interest at stake, a court‘s review of parole suitability decisions encompasses more than “a purely procedural standard of review,” and is “sufficiently robust to reveal and remedy any evident deprivation of constitutional rights.” (In re Lawrence, supra, at p. 1211, citing In re Rosenkrantz, supra, at p. 664.) In that context, we held that, “when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board оr the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (In re Lawrence, supra, at p. 1212, italics omitted.) But nothing in our disavowal of a purely
As the Attorney General correctly observes, the United States Supreme Court‘s substantive due process jurisprudence “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” (Reno v. Flores (1993) 507 U.S. 292, 302 [123 L.Ed.2d 1, 113 S.Ct. 1439].) Substantive due process analysis begins with a “‘careful description’ of the asserted fundamental liberty interest.” (Washington v. Glucksberg (1997) 521 U.S. 702, 721 [138 L.Ed.2d 772, 117 S.Ct. 2258, 117 S.Ct. 2302].) This “‘careful description‘” must be concrete and particularized, rather than abstract and general. (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 940 [72 Cal.Rptr.2d 871, 952 P.2d 1139].)
Lira fails to propose such a description of the interest he asserts here. A life prisoner “‘“‘has no “vested right” to have his sentence fixed at the term first prescribed by the [parole authority] “or any other period less than the maximum sentence provided by statute.“‘“‘” (In re Dannenberg (2005) 34 Cal.4th 1061, 1097 [23 Cаl.Rptr.3d 417, 104 P.3d 783]; see Swarthout v. Cooke (2011) 562 U.S. 216 [178 L.Ed.2d 732, 736, 131 S.Ct. 859, 862] [there is no right under the federal Const. to conditional release before the expiration of a valid sentence]; Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7 [60 L.Ed.2d 668, 99 S.Ct. 2100].) While a life prisoner like Lira surely has a right to parole proceedings that comply with procedural due process, to a factually supported suitability decision, and to timely release from imprisonment upon a final determination of suitability, Lira fails to show he has a fundamental right to credit against a legislatively prescribed period of parole supervision as a judicial remedy for a temporary infringement of his right to a factually supported suitability decision by the executive branch. (Cf.
The judgment of the Court of Appeal is reversed, and the matter is remanded to that court with directions to order the superior court to vacate its judgment, discharge the order to show cause, and deny the petition for habeas corpus.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Chin, J., Corrigan, J., and Liu, J., concurred.