In re GILBERT TREJO on Habeas Corpus.
No. A149064
First Dist., Div. Two
Apr. 13, 2017
972 Cal.App.4th 972
Law Office of Tracy Renee Lum, Tracy Renee Lum and Michael Satris for Petitioner Gilbert Trejo.
Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Sara J. Romano and Jennifer G. Ross, Deputy Attorneys General, for Respondent The People.
Opinion
KLINE, P. J.—This case presents the question whether a “youth offender” sentenced to a term of 15 years to life for an offense committed when he was 17 years old and found suitable for release on parole pursuant to the youth offender parole provisions of Penal Code section 3051 must, before being released, serve a consecutive sentence imposed for a crime committed in prison at age 20. We conclude that the decision of the Board of Parole Hearings requiring petitioner to serve the consecutive term after being granted parole, and its implementation by the Department of Corrections and Rehabilitation, were erroneous.
STATEMENT OF THE CASE
In 1980, petitioner was convicted of second degree murder (Pen. Code, § 187)1 and sentenced to a prison term of 15 years to life. The offense was committed in 1979, when petitioner was 17 years of age. In 1982, at age 20, while incarcerated at San Quentin State Prison, he pled guilty to assault with a deadly weapon on a peace officer (§ 245) and possession of a deadly weapon by a prisoner (§ 4502). He was sentenced to the aggravated term of four years on the possession count, to be served consecutively to his life sentence; execution of a five-year sentence was stayed on the assault count.
On June 5, 2015, after serving 35 years in prison, petitioner was found suitable for parole as a youthful offender under section 3051. The Board of Parole Hearings (Board) panel noted that he was eligible for parole subject to
The decision to grant petitioner parole became effective on November 2, 2015. His earliest possible release date was calculated to be November 2, 2018. Petitioner represents that his release date has since been recalculated as November 2, 2017, based on a correction in his credit earning status.
On June 6, 2016, petitioner filed a petition for writ of habeas corpus in the Marin County Superior Court challenging the legality of his incarceration beyond November 2, 2015. Petitioner argued that the Department of Corrections and Rehabilitation (Department) was required by section 3046, subdivision (c), and section 3051 to release him on November 2, 2015, upon the conclusion of his indeterminate sentence, and to reduce his parole period by the amount of time he has served since November 2, 2015.
The trial court denied the petition on July 27, 2016, concluding that section 3051 does not exempt a youthful offender granted parole from serving a consecutive sentence for an offense committed in prison as required by section 1170.1, subdivision (c), which provides that a consecutive sentence for an in-prison offense “shall commence from the time the person would otherwise have been released from prison.”
Petitioner filed his petition for writ of habeas corpus in this court on August 18, 2016, alleging that section 1170.1, subdivision (c), does not apply to the present case because, since his in-prison offense was committed before he was 23 years old, he was entitled to release at the end of his indeterminate sentence pursuant to section 3051, subdivision (d).
DISCUSSION
I.
As a preliminary matter, respondent argues that we should not reach the merits of petitioner’s claim because he failed to exhaust his administrative remedies with the Department with regard to calculation of his release date. (Cal. Code Regs., tit. 15, § 3084.1 [“administrative mechanism for review of departmental policies, decisions, actions, conditions, or omissions”].) Petitioner maintains no exhaustion was required because the decision to require him to serve the consecutive term was made by the Board, not the Department. The record supports petitioner, inasmuch as the commissioner, in stating the
Respondent asserts, without explanation, that “the Board no longer sets release dates, including for non-parole eligible sentences.” The authorities cited for this assertion are sections 3041, 3046, subdivision (c), 3051, and 4801, subdivision (c), as amended in 2013 and 2015. We fail to see how these statutes effect the change respondent attributes to them.
The only express references to release dates in these statutes are in sections 3041 and 3046. Section 3046, subdivision (c) continues to refer to the Board setting “release dates,” providing that an inmate found suitable for parole under section 3051 “shall be paroled regardless of the manner in which the board set release dates pursuant to subdivision (a) of Section 3041.” Section 3041 was amended in 2015, effective January 1, 2016—after petitioner’s hearing before the Board in June 2015—to refer to granting parole rather than setting a parole release date. (Stats. 2015, ch. 470, § 1; see § 3041, subds. (a)(2) [“shall normally grant parole as provided in Section 3041.5”], (b)(1) [“The panel or the board, sitting en banc, shall grant parole to an inmate . . .”].) This amendment deleted the provisions of the former subdivision (a) of section 3041 describing the manner in which the Board was to determine the release date and added a new subdivision (a)(4): “Upon a grant of parole, the inmate shall be released subject to all applicable review periods. However, an inmate shall not be released before reaching his or her minimum eligible parole date as set pursuant to Section 3046 unless the inmate is eligible for earlier release pursuant to his or her youth offender parole eligibility date.” (§ 3041, subd. (a)(4); see Stats. 2015, ch. 470, § 1.)
Respondent does not suggest petitioner was required to exhaust administrative remedies before challenging a decision made by the Board; its position is based on its view that the decision at issue was made by the Department. Furthermore, even if we were to view the decision as having been made by the Department, insistence upon exhaustion of administrative remedies would have been futile, as it appears both the Board and the Department were following an established policy in requiring petitioner to serve the consecutive term after being found suitable for release on parole. (See In re Dexter (1979) 25 Cal.3d 921, 925-926 [160 Cal.Rptr. 118, 603 P.2d 35].) Respondent’s invocation of the Department’s “special expertise” in calculating release dates as a basis for applying the exhaustion doctrine has no relevance here, as no calculation is at issue—the only question is whether both the Board and the Department correctly interpreted the statutes upon which they based the policy of requiring service of a sentence imposed under section 1170.1, subdivision (c), before releasing a youth offender found suitable for parole release under section 3051. This is a purely legal issue. Declining to review the merits of petitioner’s claim now could only delay the relief to which he is entitled.4
Respondent also contends this case should be transferred to the Fourth Appellate District, where the prison in which petitioner is confined is located, because prison staff calculated petitioner’s release date and would be responsible for responding to an inmate appeal or updating the currently set release date. “[G]enerally speaking a petition for writ of habeas corpus should not be transferred to another court unless a substantial reason exists for such transfer. In general, a habeas corpus petition should be heard and resolved by the court in which the petition is filed.” (In re Roberts (2005) 36 Cal.4th 575, 585 [31 Cal.Rptr.3d 458, 115 P.3d 1121] (Roberts).) Griggs v. Superior Court (1976) 16 Cal.3d 341, 347 [128 Cal.Rptr. 223, 546 P.2d 727], established that “‘[i]f the challenge is to a particular judgment or sentence, the petition should be transferred to the court which rendered judgment’ while ‘[i]f the challenge is to conditions of the inmate’s confinement, then the petition should be transferred to the superior court of the county wherein the inmate is confined.’” (Roberts, at pp. 583-584.) Analogizing to these categories, Roberts held that “a petitioner who seeks to challenge by means of habeas corpus the denial of parole (or his or her suitability for parole) should file the petition in the superior court located in the county in which the conviction and sentence arose, and that the petition should be adjudicated in that venue.”
The Board’s decision in the present case is an “adverse parole determination[]” (Roberts, supra, 36 Cal.4th at p. 591) analogous to a denial of parole because petitioner is challenging the aspect of the Board’s decision that prevented him from being released upon being found suitable for parole. Accordingly, venue in this court is proper.
II.
In a series of cases, the United States Supreme Court has recognized that “children are constitutionally different from adults for purposes of sentencing” because, due to their “diminished culpability and greater prospects for reform, . . . ‘they are less deserving of the most severe punishments.’” (Miller v. Alabama (2012) 567 U.S. 460, 471 [183 L.Ed.2d 407, 132 S.Ct. 2455, 2464] (Miller), quoting Graham v. Florida (2010) 560 U.S. 48, 68 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham).) The Eighth Amendment’s prohibition on cruel and unusual punishment “encompasses the ‘foundational principle’ that the ‘imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.’ (Miller, [at p. 474] [132 S.Ct. at p. 2466].) From this principle, the high court has derived a number of limitations on juvenile sentencing: (1) no individual may be executed for an offense committed when he or she was a juvenile (Roper [v. Simmons (2005) 543 U.S. 551,] 578 [161 L.Ed.2d 1, 125 S.Ct. 1183]); (2) no juvenile who commits a nonhomicide offense may be sentenced to LWOP (Graham, supra, 560 U.S. at p. 74); and (3) no juvenile who commits a homicide offense may be automatically sentenced to LWOP (Miller, [at p. 465] [132 S.Ct. at p. 2460]).” (People v. Franklin (2016) 63 Cal.4th 261, 273-274 [202 Cal.Rptr.3d 496, 370 P.3d 1053] (Franklin).)
Section 3051 was enacted to address these principles. The Legislature stated its intent in enacting Senate Bill No. 260 (2013-2014 Reg. Sess.), which added section 3051 and amended sections 3041, 3046, and 4801: “The purpose of this act is to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity, in accordance with the decision of the California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 [145
Section 3051 provides that an offender convicted of a “controlling offense” committed before he or she was 23 years old,6 for which he or she receives a determinate sentence, becomes eligible for release on parole “during his or her 15th year of incarceration, unless previously released pursuant to other statutory provisions” (§ 3051, subd. (b)(1)); when the sentence for the controlling offense is a life term of less than 25 years to life, such an offender becomes eligible for parole during the 20th year of incarceration (§ 3051, subd. (b)(2)); and when the sentence for the controlling offense is 25 years to life, the offender becomes eligible for parole during the 25th year of incarceration (§ 3051, subd. (b)(3)). “‘Controlling offense’ means the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.” (§ 3051, subd. (a)(2)(B).)
Section 3051 requires the Board to conduct a “youth offender parole hearing” that provides “a meaningful opportunity to obtain release” and, among other things, assesses the offender’s “growth and maturity.” (§ 3051, subds. (d), (e), (f)(1).) “At the youth offender parole hearing, the board shall release the individual on parole as provided in Section 3041, except that the board shall act in accordance with subdivision (c) of Section 4801.” (§ 3051, subd. (d).) Section 3041 sets forth the procedures for setting parole release dates, and section 4801, subdivision (c), requires the Board, in reviewing suitability for parole, to “give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.”
“[A]n inmate found suitable for parole pursuant to a youth offender parole hearing as described in Section 3051 shall be paroled regardless of the manner in which the board set release dates pursuant to subdivision (a) of
Section 3051 expressly excludes certain inmates: “This section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667 [“Three Strikes”], or Section 667.61 [specified sex offenses], or in which an individual was sentenced to life in prison without the possibility of parole. This section shall not apply to an individual to whom this section would otherwise apply, but who, subsequent to attaining 23 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison.” (§ 3051, subd. (h).)
Petitioner argues that the statutory scheme demonstrates the Legislature intended a youth offender to be released from prison if granted parole after serving the term specified in section 3051, subdivision (b), for his or her controlling offense, regardless of any other sentence the inmate otherwise would have had to serve. He points in particular to section 3046, subdivision (c), which provides that a finding of parole suitability pursuant to section 3051 prevails over any parole determination made pursuant to section 3041, subdivision (a), and section 3051, subdivision (h), establishing the exceptions to application of section 3051.
None of the exceptions stated in section 3051, subdivision (h), apply to petitioner: He was not sentenced pursuant to the Three Strikes law or section 667.61 or to a term of life in prison without possibility of parole, and his in-prison offense was committed before he reached 23 years of age and neither involved malice aforethought nor resulted in a life sentence. Relying upon “the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, [a court] may not imply additional exemptions unless there is a clear legislative intent to the contrary” (People v. Oates (2004) 32 Cal.4th 1048, 1057 [12 Cal.Rptr.3d 325, 88 P.3d 56], quoting Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230 [32 Cal.Rptr.2d 19, 876 P.2d 505]), petitioner argues he was entitled to release upon being granted parole on his controlling offense without having to serve additional time for his in-prison offense.
Respondent, however, argues that petitioner was required to serve the consecutive term imposed for his in-prison offense under the plain terms of section 1170.1, subdivision (c), which provides that when a person is sentenced to a consecutive term for a felony committed in prison, “the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison.” (See In re Thompson, supra, 172 Cal.App.3d
Respondent argues that the youth offender parole scheme does not exempt petitioner from having to serve the consecutive term imposed for his in-prison offense. According to respondent, nothing in the language of sections 3051 or 3046 eliminates sentences under section 1170.1, subdivision (c). The exceptions stated in section 3051, subdivision (h), in respondent’s view, refer to categories of inmates who are not eligible for youth offender parole hearings at all, and say nothing about whether inmates who are eligible for youth offender parole hearings are required to serve consecutive sentences for in-prison offenses after they would otherwise have been released pursuant to the grant of parole on the controlling offense. And section 3046, subdivision (c), respondent maintains, provides only that youth offenders found suitable for parole must be paroled regardless of any minimum eligible parole date determined pursuant to section 3041, subdivision (a).
Respondent maintains that the Board’s parole authority “does not apply to determinate sentences for in-prison crimes imposed under section 1170.1, subdivision (c).” Section 3041 “addresses how the Board is to make parole decisions for indeterminate life inmates.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1078 [23 Cal.Rptr.3d 417, 104 P.3d 783].) Section 3041, subdivision (a)(1), begins, “In the case of any inmate sentenced pursuant to any law, other than Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
We disagree. Section 3051 applies to individuals sentenced to determinate terms (§ 3051, subd. (b)(1)), as well as those sentenced to indeterminate terms. Determinate sentencing is governed by sections 1170 (determinate terms) and 1170.1 (aggregate terms), which are among the statutes section 3041, subdivision (a)(1), excludes from its coverage. Yet section 3051 expressly incorporates section 3041, directing that “[a]n individual subject to this section shall meet with the board pursuant to subdivision (a) of Section 3041” (§ 3051, subd. (c)) and that the Board “shall release the individual on parole as provided in Section 3041” (§ 3051, subd. (d)), albeit with “great weight” to be given to youth-related factors and subsequent increased maturity (§ 4801, subd. (c); see § 3051, subd. (d)). Section 3051 thus necessarily gives the Board some authority over parole for inmates serving determinate sentences despite section 3041’s statement of inapplicability to individuals sentenced pursuant to sections 1170 et seq. Respondent recognizes this, stating that section 3041, subdivision (a)(1), “gives the Board discretion over indeterminate terms, subject to the exceptions for determinate terms arising outside of prison under section 3051, subdivisions (b)(1) through (3).” Respondent thus appears to argue that the Board has authority to grant parole under section 3051 before a youth offender has completed a determinate sentence imposed pursuant to sections 1170 and 1170.1 (§ 3051, subd. (b)(1)) but does not have authority to alter the effect of a determinate term imposed for an in-prison offense under section 1170.1, subdivision (c).
The text of section 3051 does not support respondent’s assumption that the statute applies only to sentences imposed for crimes committed before a youth offender is incarcerated. In fact, the text indicates the opposite. Section 3051 provides for parole suitability review for inmates whose “controlling offense” was committed before he or she was 23 years old. (§ 3051, subd. (a)(1).) As we have said, “controlling offense” is defined as “the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.” (§ 3051, subd. (a)(2)(B), italics added.) In ascertaining the intent of the Legislature, we give the words of a statute their ordinary meaning. (People v. Broussard (1993) 5 Cal.4th 1067, 1071 [22 Cal.Rptr.2d 278, 856 P.2d 1134].) “Any” means “one, some, or all indiscriminately of whatever quantity.” (Merriam-Webster Dict. Online (2017) <https://www.merriam-webster.com/dictionary/any> [as of Apr. 13, 2017].) By referring to the longest term of imprisonment imposed by “any” sentencing court, the Legislature indicated its intent that the controlling offense used to determine a youth offender’s parole hearing date under section 3051 be selected from all sentences imposed upon that offender, regardless of whether
The exceptions stated in subdivision (h) of section 3051 also show that the Legislature intended section 3051 to apply to at least some in-prison offenses. Subdivision (h) of section 3051 excludes from application of the statute youth offenders who “subsequent to attaining 23 years of age” commit “an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison.” The statute does not exclude offenders who commit the specified additional offenses before age 23. Such additional offenses will necessarily be committed in prison, since the earliest eligibility for parole offered under section 3051 is during the 15th year of incarceration, long after a youth offender will have reached age 23. (§ 3051, subd. (b)(1).) If the in-prison offense results in a longer sentence than the original offense for which the offender was incarcerated, the in-prison offense would become the “controlling” offense under section 3051 as “the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.” (§ 3051, subd. (a)(2)(B), italics added.)
The Department’s own website reflects this understanding. In a flowchart entitled “How to Determine Whether an Inmate Qualifies as a ‘Youth Offender’ under PC § 3051,” published on the Department’s website, “Step One” is described as follows: “Review the complete criminal history, including any crimes committed while incarcerated, to determine the single crime or enhancement for which any court sentenced the inmate to the longest term. This is the ‘controlling offense’ for the purposes of this statute.” (<http://www.cdcr.ca.gov/BOPH/docs/YOPH/FLOWCHART%20-%20How%20to%20Determine%20Whether%20an%20Inmate%20Qualifies%20as%20a%20Youth%20Offender.pdf> [as of Apr. 13, 2017] (some capitalization omitted).) “Step Two” asks, “Did the inmate commit the controlling offense, as defined above, prior to reaching his or her 23rd birthday?” (Ibid., some capitalization omitted.) If the answer to this question is “no,” the chart indicates the inmate does not qualify. If the answer is “yes,” the chart indicates additional inquiries to determine whether any of the section 3051, subdivision (h), exceptions apply. The emphasized language in “Step One,” which is underlined on the flowchart, demonstrates that in-prison offenses are considered within the purview of section 3051.
Contrary to respondent’s argument that the Board has no authority over sentences imposed under section 1170.1, subdivision (c), petitioner
Similarly, section 3051 supersedes section 1170.1 when a youth offender is consecutively sentenced to a life term and a determinate term. Section 1170.1, subdivision (a), incorporates section 669, which provides that when a person is sentenced to a life term and a consecutive determinate term, “the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person’s eligibility for parole as calculated pursuant to Section 3046 or pursuant to any other section of law that establishes a minimum period of confinement under the life sentence before eligibility for parole.” Under section 3051, however, a person sentenced to a life term and a determinate term becomes eligible for parole after the time specified in section 3051, subdivision (b)(2) or (3), based on the life term, without regard to the determinate term. (People v. Perez (2016) 3 Cal.App.5th 612, 616, 618-619 [208 Cal.Rptr.3d 34] [20-year-old defendant sentenced to term of 46 years to life and determinate term of 40 years eligible for parole after 25 years under § 3051].)
We see no basis for inferring that the Legislature intended section 3051 to override the otherwise applicable provisions section 1170.1 as described above but to have no effect on the application of section 1170.1, subdivision (c). The California Supreme Court explained in Franklin, supra, 63 Cal.4th 261, that sections 3051 and 3046 have “superseded the statutorily mandated sentences” of the youth offenders to whom the statutes apply. (Franklin, at p. 278.) Section 3051 “reflects the Legislature’s judgment that 25 years is the
This is particularly true here, where the in-prison offense was committed while petitioner was still of an age deemed by the Legislature to warrant consideration of the “diminished culpability of juveniles as compared to adults” and “hallmark features of youth.” (§ 4801, subd. (c).) Senate Bill No. 260 (2013-2014 Reg. Sess.) stated the Legislature’s findings that “as stated by the United States Supreme Court in Miller, supra, 567 U.S. 460 [132 S.Ct. 2455], ‘only a relatively small proportion of adolescents’ who engage in illegal activity ‘develop entrenched patterns of problem behavior,’ and that ‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,’ including ‘parts of the brain involved in behavior control.’ The Legislature recognizes that youthfulness both lessens a juvenile’s moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society.” (Stats. 2013, ch. 312, § 1.) While petitioner’s 1982 crime was not the “controlling offense” under section 3051 (because the sentence imposed for it was shorter than the term imposed for petitioner’s murder conviction) and the four-year consecutive sentence was not in itself of a length to trigger the concerns with disproportionate punishment of juvenile offenders discussed in cases such as Miller, at page 473 [132 S.Ct. at p. 2466], it would be anomalous to conclude that the Legislature intended to permit extension of a youth offender’s incarceration beyond the time he or she was found suitable for parole under section 3051 procedures due to commission of an in-prison offense committed when the offender was still subject to the “immaturity, recklessness, and impetuosity” that “render juveniles less culpable than adults.” (Miller, at p. 472 [132 S.Ct. at p. 2465], quoting Graham, supra, 560 U.S. at p. 72.)7
Respondent further argues that failing to apply section 1170.1, subdivision (c), to require this additional period of incarceration would provide youth offenders a windfall, enabling them to commit additional offenses during their incarceration “with immunity.” Again we disagree. The fact that a youth offender found suitable for parole on the controlling offense will not be required to additionally serve the consecutive sentence imposed for an in-prison offense does not mean the offender escaped punishment for the in-prison offense. The timeframes established in section 3051, subdivision (b), determine when an offender is entitled to a hearing on suitability for parole, not when he or she is actually entitled to release. Parole will not be granted if the panel or Board “determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual.” (§ 3041, subd. (b)(1).) The determination of suitability for parole will necessarily take in-prison offenses into account in determining the degree of risk an inmate poses to the public and the extent of a youth offender’s growth and maturity.
in-prison offense after age 23 would weigh against finding the inmate had ‘rehabilitated and gained maturity’ (Franklin, supra, 63 Cal.4th at p. 278, quoting Stats. 2013, ch. 312, § 1) so as to warrant release pursuant to section 3051. It is noteworthy that the commissioner, in pronouncing the panel’s decision to grant parole, commented that while there had been “a lengthy period of positive rehabilitation” that “didn’t start right away,” petitioner had been “almost three decades violence free” and, for a “shorter” but still “long” period, “disciplinary free.” The commissioner stated that petitioner exhibited the “hallmark features of youth” at the time of the murder and that his subsequent maturity did not come quickly, but that at the time of the hearing, the panel would have found petitioner suitable for parole “even if SB 260 wasn’t here” due to his genuine remorse and acceptance of responsibility for his crime, the reduced probability of recidivism at petitioner’s age (53 years), his engagement in institutional activities indicating “an enhanced ability to function within the law upon release,” his work on issues with substance abuse, and his realistic plans for release.
The present case demonstrates the point. According to Department records, petitioner began serving his life term on June 24, 1980, and his minimum eligible parole date was set at June 28, 1989. He was not found suitable for parole until 2015, almost 27 years after that earliest possible parole date. In 2010, although the Board commissioner noted that petitioner had had a “change-around,” dissociated himself from gangs and been “disciplinary-free for a long time,” petitioner was denied parole based in large part on his “terrible” institutional behavior, notably the incident underlying his 1982 offense, in which petitioner stabbed a correctional officer, as well as numerous disciplinary issues involving violence, substance abuse, weapons possession, and gang activity. In 2013, the Board found petitioner suitable for release but this decision was reversed by the Governor, who discussed petitioner’s lengthy history of substance abuse, gang involvement and violence and specifically noted the 1982 offense. Petitioner was denied parole by the Board in 2014 for similar reasons, the commissioner describing the 1982 incident as an “egregious act of violence” committed when petitioner was “no longer necessarily impacted by the youthful offender factors”—section 3051 then applying to offenders whose crimes were committed before age 18, as well as expressing concern about petitioner continuing to minimize the life crime and retaining vestiges of gang culture despite his “significant gains.” While the 1982 offense was not the only reason petitioner was not found suitable for release sooner, it clearly played an important role, as it was specifically discussed as a factor bearing on each of the parole denials.
We conclude that petitioner was entitled to release when his parole became effective on November 2, 2015, notwithstanding the consecutive four-year term imposed on his 1982 conviction.
Petitioner sought preliminary relief through a motion for release on parole pending final determination of the proceedings in this court. We granted that motion on April 10, 2017, ordering respondent to release petitioner on parole, in accordance with the terms of his parole grant and demands of due process,
III.
Petitioner contends that he is entitled to have his period of parole supervision reduced by the amount of time he has served since November 2, 2015, on his determinate sentence for the 1982 offense. Petitioner will be required to serve a five-year period of parole upon release from prison. (See In re Carabes (1983) 144 Cal.App.3d 927, 930, fn. 1 [193 Cal.Rptr. 65]; § 3000.1.)9
“[C]aselaw recognizes that time served in excess of the determinate term must be credited against the prisoner’s parole period.” (In re Bush (2008) 161 Cal.App.4th 133, 141 [74 Cal.Rptr.3d 256] (Bush).)
Respondent’s argument that petitioner is not entitled to this credit against his parole period is based largely upon Tate, supra, 135 Cal.App.4th 756.10
We have already rejected the premise of this argument, that section 1170.1, subdivision (c), operates in the same manner in a section 3051 case as in the case of an offender not entitled to the protections of section 3051. Because the parole provisions of section 3051 supersede petitioner’s otherwise statutorily mandated sentences (Franklin, supra, 63 Cal.4th 261), the Tate court’s reasoning is inapplicable here.
Petitioner’s continued confinement to serve the consecutive sentence imposed under section 1170.1, subdivision (c), was not lawful in the circumstances of this case, and he is entitled to credit against his parole period.
DISPOSITION
Respondent is ordered to amend petitioner’s release date to November 2, 2015, and to deduct from his parole period the days of incarceration served beyond that date.
Our order filed on April 10, 2017, granting petitioner’s motion for release, ordered respondent warden of Ironwood State Prison to release petitioner on parole, in accordance with the terms of his parole grant and demands of due
had served in excess of the base term for his offense by the time he was found suitable for release: The confinement was lawful, as an inmate is not entitled to release until he or she has both served the base term and been found suitable for release. (Bush, at pp. 141-143.) Reliance upon these cases reflects respondent’s view that petitioner was required to serve the consecutive term imposed under section 1170.1, subdivision (c), after being found suitable for parole. The cases offer no support for an argument that petitioner is not entitled to credit if, as we have concluded, he should not have been required to serve the consecutive term.
Good cause appearing, this decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.387(b)(3)(A).)
Stewart, J., and Miller, J., concurred.