In re Martin

















Filed 3/1/13 In re Martin CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
ONE




>

In re RONALD MARTIN, on Habeas Corpus.

A133749 (Contra Costa County Super. Ct. No. 05-10063-1)

>I. Introduction

Petitioner Ronald Martin has
been imprisoned since 1995 for a number of felony convictions arising from a href="http://www.mcmillanlaw.com/">carjacking spree. Pursuant to a plea agreement, he received an
indeterminate life sentence for one kidnapping charge and an eight-year
aggregate determinate sentence for his other crimes—all sentences to run
concurrently with one another.href="#_ftn1"
name="_ftnref1" title="">[1]

After petitioner had been
imprisoned for 14 years, the Board of Parole Hearings (Board) found him
suitable for release on parole. It then
fixed the term of imprisonment for his life crime and his release date in accordance
with its regulations. The Board selected
a “base” term of imprisonment of 12 years and then added term
“enhancements”—largely for the nonlife crimes—resulting in a total term of
imprisonment, with credits, of 34 years 4 months. Thus, while petitioner has been determined to
not “pose an unreasonable risk of danger to society if released from prison”
(Cal. Code Regs., tit. 15, § 2281, subd. (a))href="#_ftn2" name="_ftnref2" title="">>[2] and currently
suitable parole, he will, under the term of imprisonment set by the Board,
remain in prison for nearly two more decades.


Petitioner contends the term
of imprisonment set by the Board effectively vitiates the superior court’s
decision to impose concurrent sentences, violating the separation of powers
doctrine. He specifically challenges
section 2286, one of the Board’s term enhancement regulations, which instructs
the Board to disregard whether the superior court imposed concurrent or
consecutive sentences, specifies the Board should increase the term of
imprisonment for each additional crime of which the prisoner is convicted, and
refers the Board to Penal Code section 1170.1.
(Cal. Code Regs., tit. 15, § 2286, subd. (b)(1).) Petitioner similarly challenges enhancements
added pursuant to section 2285 for use of a firearm. He contends these term enhancements were
improper because the superior court struck the correlative firearm sentencing
enhancement allegations from the complaint.
Petitioner also contends the term of imprisonment fixed by the Board
violates his plea agreement, in which he gave up trial and appellate rights for
the promise of concurrent sentencing.


We conclude the Board’s
regulations do not violate the separation of powers doctrine, nor do they
compromise petitioner’s plea bargain.

>II.
Factual and Procedural Background

We recount only the facts
relevant to the term of imprisonment issues presented in this habeas
proceeding. On the night of February 18,
1995, petitioner embarked on a carjacking spree. At approximately 8:00 p.m., petitioner took a
semi-truck at gunpoint located at the Unicoal Company. The truck driver fled, and petitioner drove
the truck to a condominium complex, where he abandoned it. Petitioner then demanded car keys from a
resident, again at gunpoint. While
attempting to drive off with the car, petitioner accidentally fired his gun and
flattened one of the car’s tires.
Petitioner then confronted a neighbor responding to the noise, placing
his gun under the neighbor’s throat.
After a struggle, the neighbor fled.
Petitioner ran off and attempted to forcibly enter two homes. At one of them, he tried to shoot his way in,
and flying debris caused a two year old to suffer a minor scratch. Petitioner next confronted a taxi driver and
his wife, carjacked the driver’s taxi, and drove it half a mile before
abandoning it. On the morning of
February 20, 1995, petitioner stole another vehicle and was arrested after a
police pursuit.

On August 1, 1995, a jury
convicted petitioner of 21 criminal
charges related to these events, including kidnapping in commission of
carjacking (Pen. Code, § 209.5), kidnapping for robbery (Pen. Code,
§ 209, subd. (b)), three counts of carjacking (Pen. Code, § 215), href="http://www.mcmillanlaw.com/">attempted carjacking (Pen. Code,
§§ 215, 664), and counts for burglary, robbery, use and possession of
a deadly weapon, and evading a peace officer.
The jury also found petitioner used a firearm while committing each
crime (see Pen. Code, § 12022.5, subd. (a)).

Following the guilty
verdict, a separate jury trial began on petitioner’s insanity defense. When the jury deadlocked, petitioner and the
prosecutor reached a negotiated disposition.
Petitioner would drop his insanity defense, change his plea to guilty
and forfeit his appellate rights. The
prosecutor would ask the court to dismiss the weapon enhancements on the two
kidnapping counts and run sentences on all counts concurrently. The express terms of the plea agreement did
not address the manner in which the Board would ultimately calculate petitioner’s
term of imprisonment.

Sentencing occurred on
September 25, 1995. The court dismissed
the two firearm enhancements on the kidnapping counts. It then, for kidnapping in commission of
carjacking, imposed an indeterminate sentence of life with possibility of
parole, and stayed, under Penal Code section 654, a second indeterminate
sentence of life with possibility of parole for kidnapping for robbery. The longest determinate sentence the court
imposed was eight years for first degree robbery—a four-year base term, plus a
four-year firearm enhancement. The court
ordered all determinate sentences to run concurrently with each other and with
the life sentence, leaving petitioner with, essentially, a life sentence running
concurrently with an eight-year determinate sentence.href="#_ftn3" name="_ftnref3" title="">[3]

The state prison system took
custody of petitioner on October 11, 1995.
His minimum eligible parole date was October 18, 2002.href="#_ftn4" name="_ftnref4" title="">[4]

On September 2, 2009,
approximately seven years after his minimum eligibility date and 14 years after
he had been imprisoned, the Board found petitioner suitable for parole—that is,
found he no longer posed “an unreasonable risk of danger to society.”

The Board then, in
accordance with its regulations, determined petitioner’s term of imprisonment
and release date. Using the matrix at
section 2282, subdivision (c), the Board selected 12 years as the “base” term
of imprisonment for petitioner’s life offense (kidnapping in commission of
carjacking). Stating “[t]his is where it
gets complicated,” the Board next observed petitioner “had concurrent
sentences, and it’s our understanding that based on each of those concurrent
sentences, that we can assess half of that particular time.” However, the Board did not fully apply a
“half-time” formula. Instead, the Board,
ostensibly pursuant to its regulations at sections 2400-2411—pertaining to life
terms for murders—added to petitioner’s 12-year base term, the full terms the
court had imposed for petitioner’s non-stayed, nonlife crimes (another 12
years), half of all of the non-stayed weapons enhancements (another 10.5
years), subtracted time for postconviction credits (42 months), added time for
disciplinary violations, and arrived at a term of imprisonment of 374 months,
or 31 years 2 months.

Petitioner asked the Board
to reconsider his term of incarceration and release date, in part, on the
ground the Board had effectively run the terms on his nonlife crimes
consecutively, when the sentencing court had ordered them to run concurrently. The Board denied his request, and petitioner
filed a petition for writ of habeas corpus in the superior court raising, among
other issues, a separation of powers challenge.
The court granted his petition, but on the ground the Board had applied
the wrong regulations—those concerning the term of imprisonment for murders,
not kidnapping—and directed the Board to recalculate petitioner’s term of
imprisonment and release date under the applicable regulations.

The Board did so in January
2011, applying the regulations at sections 2280-2292, generally applicable to
life crimes. The Board again selected a
12-year base term (citing § 2282, subd. (c)) and added a two-year firearm
enhancement (citing § 2285). It
then—stating the court had imposed 53 years (not eight years) of concurrent sentences
for the nonlife crimes—added consecutive enhancements for the nonlife
crimes. These enhancements included an
eight-year term for first degree robbery (including the weapon enhancement),
plus one-third of the terms the court had set on the non-stayed, nonlife
crimes, treating them as subordinate offenses to the first degree robbery
(citing § 2286). The Board also
added six months for each of petitioner’s two prior felonies (citing
§ 2286, subd. (c)) and subtracted 48 months of postconviction credit (see
§ 2290). The total term of
imprisonment under the general regulations was 412 months, or 34 years, 4
months, a longer term than the Board had calculated in 2009 under the
regulations applicable to murders.

Petitioner again asked the
Board to reconsider, contending it had effectively run his concurrent
determinate sentences consecutively, and had also added time for a firearm
enhancement the sentencing court had struck.
The Board declined, stating the longer term was the result of applying
the “less discretionary . . . regulations” generally applicable to life crimes,
which gave greater weight to petitioner’s “53 years of concurrent
sentences.” Petitioner then filed the
instant petition for writ of habeas corpus directly in this court.

>III.
Discussion

>A. Habeas
Jurisdiction

We first address whether
petitioner should have sought habeas relief in the trial court prior to filing
the instant petition directly in this court.
Article VI, section 10 of the California Constitution provides, “ ‘ “The
Supreme Court, courts of appeal, superior courts, and their judges have
original jurisdiction in habeas corpus proceedings.” This provision grants original subject matter
jurisdiction over habeas corpus proceedings concurrently to the superior court,
the Court of Appeal, and [the Supreme Court].’ ” (In re
Darlice C. (2003) 105 Cal.App.4th 459, 465; see also In re Roberts (2005) 36 Cal.4th 575, 593-594 (>Roberts).)

While
“in most instances, a habeas corpus petition ‘should’ be filed in the superior
court,” the “language in Roberts does
not divest the Courts of Appeal of original jurisdiction in petitions for writ
of habeas corpus, as granted by article VI, section 10 of the California
Constitution. Nor does it dictate that
in all cases such habeas corpus petitions must be filed in the superior
court—only that challenges to parole ‘should’ first be filed in the superior
court [citation] unless ‘extraordinary reason exists for action by’ the
appellate court in the first instance [citation].” (In re
Kler (2010) 188 Cal.App.4th 1399, 1402-1404, italics omitted.)

The
instant petition presents such an “ ‘extraordinary’ situation justifying the
exercise of our constitutional prerogative.”
(Kler, supra, 188 Cal.App.4th
at p. 1404.) The petition follows a
prior habeas challenge by petitioner which resulted in the issuance of a writ,
but on further consideration by the Board, resulted in a longer term of
imprisonment than originally imposed.
The issues presented here were raised previously but not addressed by
the trial court, and present questions of law as to the validity of the Board’s
regulations. We therefore choose to
exercise our original habeas jurisdiction and address the merits of the instant
petition. (See ibid.)

>B. General Overview of Sentencing of Life and
Nonlife Crimes

“For
decades before 1977, California employed an ‘indeterminate’ sentencing for
felonies. The court imposed a statutory
sentence expressed as a range between a minimum and maximum period of
confinement—often life imprisonment—the offender must serve. An inmate’s actual period of incarceration
within this range was under the exclusive control of the parole authority,
which focused, primarily, not on the appropriate punishment for the original offense,
but on the offender’s progress toward rehabilitation. During most of this
period, parole dates were not set, and prisoners had no idea when their
confinement would end, until the moment the parole authority decided they were
ready for release. (See People v.
Jefferson (1999) 21 Cal.4th 86, 94-95 (Jefferson); Cassou & Taugher, Determinate
Sentencing in California: The New Numbers Game (1978) 9 Pacific L.J. 5,
6-16 (Cassou & Taugher).)” (In re
Dannenberg (2005) 34 Cal.4th 1061, 1077 (Dannenberg).)

Under
this regime, “court[s]
had little control over the length of the sentence” while the parole authority
had “virtually total discretion.”
(Cassou & Taugher, supra,
9 Pacific L.J. at pp. 8-9; see Jefferson,
supra, 21 Cal.4th at p. 94 [“A trial court would simply sentence a
defendant to prison for ‘the term prescribed by law,’ while the actual length
of a defendant’s term, within the statutory maximum and minimum, was determined
by the Adult Authority.”]; People v. West
(1999) 70 Cal.App.4th 248, 256 [the indeterminate sentencing law (ISL) “ ‘divested
the trial judge of power to fix the term of imprisonment for offenses
punishable by imprisonment in a state prison, and gave this power to the Adult
Authority’ ”]; see also In re Morganti
(2012) 204 Cal.App.4th 904, 934 (Morganti)
(conc. & dsn. opn. of Kline, P.J.) [under the ISL, an “ ‘inmate’s
actual period of incarceration within this range was under the exclusive
control of the parole authority’ ” which enjoyed “relative immunity from
judicial review”].)

In 1976, the Legislature made a sea
change in sentencing by enacting the determinate sentencing law (DSL). (Dannenberg,> supra, 34 Cal.4th at p. 1078.) “The DSL implemented the Legislature’s
finding that ‘the purpose of imprisonment for crime is punishment,’ a goal
‘best served by terms proportionate to the seriousness of the offense,’ with
provision for sentence ‘uniform[ity]’ for similar offenses. ([Pen. Code,] § 1170, subd.
(a)(1).)” (Ibid.)

“Under
the DSL, most felonies are now subject, in the alternative, to three precise
terms of years (for example, two, three, or four years, or three, five, or
seven years). The court selects one of
these alternatives (the lower, middle, or upper term) when imposing the
sentence. ([Pen. Code,] § 1170, subds.
(a)(3), (b); see Jefferson, supra, 21 Cal.4th 86, 95.) The offender must serve this entire term,
less applicable sentence credits, within prison walls, but then must be
released for a further period of supervised parole. ([Pen. Code,] § 3000, subd. (b); see Cassou
& Taugher, supra, 9 Pacific L.J. 5, 26.)” (Dannenberg, supra, 34 Cal.4th at p. 1078.)


Thus,
under the DSL, the courts were given new and significant authority over
sentencing. (See People v. West, supra, 70
Cal.App.4th at p. 257 [the DSL “returns the sentencing power to the
courts”]; People v. Martinez (1979)
88 Cal.App.3d 890, 895 [the DSL’s triad approach “returns the sentencing power
to the courts”].)

“However,
certain serious offenders, including ‘noncapital’ murderers (i.e., those
murderers not punishable by death or life without parole)” and kidnappers,
“remain subject to indeterminate sentences.
These indeterminate sentences may serve up to life in prison, but they
become eligible for parole consideration after serving minimum terms of confinement. (See Jefferson, supra, 21 Cal.4th 86,
92-93.)” (Dannenberg,> supra, 34 Cal.4th at p. 1078; see
also People v. Neely (2009) 176
Cal.App.4th 787, 797 (Neeley).)

“Thus,
two different sentencing schemes coexist today:
one determinate, the other indeterminate.” (People
v. Felix (2000) 22 Cal.4th 651, 654 (Felix).)


Sentencing
increases in complexity when a defendant is convicted of multiple crimes,
particularly where one or more of the crimes is a life crime subject to
indeterminate sentencing and the others are nonlife crimes subject to
determinate sentencing. The superior
court begins by imposing sentences, separately, for the nonlife and life
crimes, including any enhancements. (See
generally Neely, supra, 176 Cal.App.4th at p. 797 [sentencing judge must
compute the determinate and indeterminate sentences “separately and
independently of each other”].)

With
respect to nonlife crimes, the superior court is first “required to select a
base term—either the statutory low, middle or upper term—for each of the
crimes. (§ 1170; Cal. Rules of Court,
rule 4.405(2).)” (Neely, supra, 176 Cal.App.4th at
pp. 797-798.) Second, the court
designates one crime for the “principal term,” leaving the others for
“subordinate terms.” (>Ibid.)
“The principal term shall consist of the greatest term of imprisonment
imposed by the court for any of the crimes, including any term imposed for
applicable specific enhancements.” (Pen.
Code, § 1170.1, subd. (a); Neely, supra, 176 Cal.App.4th at pp. 797-798.) Each subordinate term “shall consist of
one-third of the middle term of imprisonment prescribed for” each “felony
conviction for which a consecutive term of imprisonment is imposed, and shall
include one-third of the term imposed for any specific enhancements applicable
to those subordinate offenses.” (Pen.
Code, § 1170.1, subd. (a); Neely, supra, 176 Cal.App.4th at pp. 797-798; see also >Felix, supra, 22 Cal.4th at pp. 655-656 [discussing enhancements in more
detail].)

“Offenses
for which an indeterminate sentence of life imprisonment or death can be imposed
are not subject to section 1170.1.
Consequently there are no principal and subordinate terms to be
selected. ([Pen. Code,] § 1168, subd.
(b).) The court simply imposes the
statutory term of imprisonment . . . .”
(Neely, supra, 176
Cal.App.4th at p. 798.)

The
sentencing court must next decide, under Penal Code section 669, whether the
sentences are to be served concurrently or consecutively, or in some
combination thereof. Section 669
specifies: “When any person is convicted
of two or more crimes” the judgment “shall direct whether the terms of
imprisonment or any of them . . . shall run concurrently or
consecutively.” (Pen. Code,
§ 669.) This is a “sentencing choice”
for the court. (See People v. Sandoval (2007) 41 Cal.4th 825, 850 [trial courts have
“discretion to make numerous other sentencing choices, such as whether to grant
or deny probation, impose consecutive sentences, or strike the punishment for
an enhancement”].)

A
court’s power under Penal Code section 669 is not confined to nonlife
crimes. The court can not only order
sentences for nonlife crimes to run concurrently or consecutively, but also
order sentences for nonlife crimes to run concurrently or consecutively with
one or more life sentences. Similarly,
“[l]ife sentences, whether with or without the possibility of parole, may be
imposed to run consecutively with one another, with any term imposed for
applicable enhancements, or with any other term of imprisonment for a felony
conviction.” (Pen. Code, § 669href="#_ftn5" name="_ftnref5" title="">[5];
see Cal. Rules of Court, rule 4.425 [setting forth criteria superior
courts are to consider in choosing between concurrent and consecutive
sentencing].)

C. Term of Imprisonment and Parole of Life
Prisoners

As
discussed, under the DSL, certain serious offenders still receive indeterminate
life sentences. (Dannenberg, supra, 34 Cal.4th at p. 1078.)
Often, these sentences are reflected as some number of years “to life,”
as in “fifteen years to life.” (See >In re Dayan (1991) 231 Cal.App.3d 184,
187.) As they were under the prior ISL,
“life inmates’ actual confinement periods within the statutory range are
decided by an executive parole agency.
This agency, an arm of the Department of Corrections, is now known as
the [Board of Prison Terms]. (See [Pen.
Code,] § 3040.)” (Dannenberg, >supra, 34 Cal.4th at p. 1078.)

A life prisoner is not
eligible for consideration for parole until he or she has served at least seven
calendar years in prison, or any mandatory minimum term, if greater. (Pen. Code, § 3046, subd. (a); see >People v. Jenkins (1995) 10 Cal.4th 234,
250-251.) Moreover, “[w]henever
a person is committed to prison on a life sentence which is ordered to run
consecutive to any determinate term of imprisonment, 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.” (Pen. Code, § 669.)

Under
Penal Code section 3041, “one year before the prisoner’s minimum eligible
parole date, a Board panel shall meet with the inmate” and assess his or her
suitability for parole. (Dannenberg,
supra, 34 Cal.4th at p. 1078, citing
Pen. Code, § 3041, subd. (a).) The
statutory scheme envisions the Board “ ‘shall normally
set a parole release date,’ and shall do so ‘in a manner that will provide
uniform terms for offenses of similar gravity and magnitude in respect to their
threat to the public.’ ” (Dannenberg, at p. 1078.) However, the Board does not set a life
prisoner’s period of imprisonment and parole date until the Board determines he
or she is suitable parole.href="#_ftn6"
name="_ftnref6" title="">[6] (Pen. Code, § 3041, subd. (b) [suitability]; Cal. Code Regs.,
tit. 15, § 2280 [“a parole date
shall be denied if the prisoner is found to be unsuitable”].)

A
prisoner is not suitable for parole if “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.” (Pen. Code, § 3041, subd. (b).)

The
Board’s regulations instruct the Board to consider “[a]ll relevant, reliable information
available . . . in determining suitability for parole.” (§ 2281, subd. (b).)href="#_ftn7" name="_ftnref7" title="">>[7] Its regulations also enumerate factors
indicating suitability and unsuitability.
For instance, the Board considers whether the convicted offense was
particularly heinous or occurred because of external pressures on the prisoner,
and considers the prisoner’s history for violence, criminal record, level of
remorse, mental and social history, prison behavior, age, and postrelease
plans.href="#_ftn8" name="_ftnref8" title="">[8] (§ 2281; see also In re Rosenkrantz (2002) 29 Cal.4th 616, 654 (Rosenkrantz) [discussing the Board’s suitability
regulations].)

Once
the Board determines a life prisoner is suitable for parole, i.e., that he no
longer presents an unreasonable risk to public safety, it determines his term
of imprisonment and sets a release date.
(Pen. Code, § 3041, subd. (a).)
Penal Code section 3052 directs the Board to “ ‘establish criteria
for the setting of parole release dates.’ ”
(Dannenberg, supra, 34
Cal.4th at p. 1078.) The Board has done
so through the adoption of an extensive set of regulations. (Cal. Code Regs., tit. 15, §§ 2280-2292.)

The regulations generally
provide a parole date “shall be set in a manner that provides uniform terms for
offenses of similar gravity and magnitude in respect to the threat to the
public. In setting the parole date, the
panel shall consider the Sentencing Rules for the Superior Courts as they
specifically relate to life prisoners.
The panel shall also consider the criteria and guidelines set forth in
this article for determining the suitability for parole and the setting of
parole dates, considering the number of victims of the crime for which the
prisoner was sentenced and any other circumstances in mitigation or
aggravation.” (§ 2280.)

The Board first fixes a
“base term” of imprisonment.
(§ 2282, subd. (a).)
Generally, “[t]he base term shall be established solely on the gravity
of the base offense”—that is, “the most serious of all life offenses for which
the prisoner has been committed to prison.”
(§ 2282, subd. (a).)

The regulations contain
matrices of base terms for several life crimes.
(§ 2282, subds. (b)-(c) [matrices for first degree murder and
kidnapping for robbery or ransom].) The
Board selects the row and column in the appropriate matrix best corresponding
to the circumstances of the base offense.
For example, the horizontal rows of the kidnapping matrix account for
harm to the victim and its vertical columns account for the nature of the
detention (minor movement, hostage taking, intricately planned). (§ 2282, subd. (c).) Each row and column combination points to an
entry in the matrix with three numbers, a lower, middle and upper base term. (See ibid.)

The Board selects the middle
base term unless it finds circumstances in aggravation or mitigation set forth
in section 2283 (aggravating factors) or 2284 (mitigating factors). (§ 2282, subd. (a).) “In considering crimes for which no matrix is
provided, the panel shall impose a base term by comparison to offenses of
similar gravity and magnitude in respect to the threat to the public, and shall
consider any relevant Judicial Council rules and sentencing information as well
as any circumstances in aggravation or mitigation of the crime.” (§ 2282, subd. (d).)

Once the Board selects the
base term of imprisonment, its regulations require it to consider a number of
term “enhancements.”
(§§ 2285-2286.) The
regulations “make certain enhancements mandatory unless the panel gives
adequate reasons for not doing so.”href="#_ftn9"
name="_ftnref9" title="">[9] (In re
Stanworth (1982) 33 Cal.3d 176, 185 (Stanworth).)

In this case, we are
concerned principally with section 2286, entitled “Additional Terms for Other
Offenses,” and specifically, with subdivision (b), pertaining to “Multiple
Commitments.” (§ 2286, subd. (b).) This subdivision specifies: “An enhancement should be added to the base
term if the prisoner has been committed to prison for more than one offense,
regardless of whether the sentences are to be served concurrently or consecutively
with the life sentence or each other.” (>Id.)href="#_ftn10" name="_ftnref10" title="">>[10]

Section 2286, subdivision
(b), classifies “Multiple Commitments” as either “Nonlife Offenses,” “Life
Sentence Offenses,” or “Nonlife 1168 Offenses.”
(§ 2286, subd. (b)(1)-(3).)
It specifies “[t]he enhancement for each life sentence offense in
addition to the base term should be seven years.”href="#_ftn11" name="_ftnref11" title="">[11] (§ 2286, subd. (b)(2).) “The enhancement for each nonlife 1168
offense should be six months.”
(§ 2286, subd. (b)(3).)

The enhancement for other
nonlife offenses is not similarly fixed.
Rather, the regulation directs the Board to refer to Penal Code Section
1170.1. (§ 2286, subd.
(b)(1).) “The panel shall select a
principal term and subordinate terms based on the nonlife offenses and add the
total term to the term established for the life offense. The term for the nonlife offense shall be the
term in effect at the time the prisoner committed the offense.” (§ 2286, subd. (b)(1).) Thus, subdivision (b)(1) essentially directs
the Board to act like a superior court that has chosen to impose consecutive
sentences.

While section 2286 states,
“[t]he panel shall impose enhancements as provided in this section”
(§ 2286, subd. (a)), other
language in the regulation makes clear this is not a mandatory directive. The regulation further provides, “[i]f the
panel finds circumstances in aggravation or mitigation as provided in
§§ 2287^{[href="#_ftn12"
name="_ftnref12" title="">[12]]} or 2288^{[href="#_ftn13" name="_ftnref13" title="">[13]]}, the panel
may impose a higher or lower enhancement, or may impose no enhancement . . .
.” (§ 2286, subd. (a).)

The regulations also provide
for a term “enhancement of two years if the prisoner personally used a firearm
in the commission of any life crime unless the panel states specific reasons
for not adding the enhancement.” (§
2285.)

After adding all enhancement
periods to the base term of imprisonment, the Board subtracts time for
applicable credits and thus arrives at the term of imprisonment and final
release date. (§§ 2289-2290.name=IAFD24EE2A05711E1992CF4C2839A6859>name=IAFD24EE3A05711E1992CF4C2839A6859>)

>D. The Sentencing Authority of the Superior
Courts and the DSL Term Enhancement Regulations

“Article
III, section 3 of the California Constitution provides that the powers of state
government are divided into the legislative, executive, and judicial branches,
and persons charged with the exercise of one power may not exercise either of
the others, except as permitted by the state Constitution. (Rosenkrantz, supra, 29 Cal.4th at p.
662.)” (In re Copley (2011) 196
Cal.App.4th 427, 435.) The
separation-of-powers doctrine is violated when the actions of one branch
“defeat or materially impair the inherent functions of another branch.” (Rosenkrantz,
at p. 662.)

“The
imposition of sentence and the exercise of sentencing discretion are
fundamentally and inherently judicial functions.” (People
v. Navarro (1972) 7 Cal.3d 248, 258; People
v. Burke (1956) 47 Cal.2d 45, 52.)
Thus, it is the sentencing judge who wields the “discretion to make . .
. sentencing choices, such as whether to . . . impose consecutive sentences, or
strike the punishment for an enhancement.”
(People v. Sandoval, supra,
41 Cal.4th at pp. 850-851; see also In
re Patton (1964) 225 Cal.App.2d 83, 87-88 [parole authority “does not have
jurisdiction to determine whether a second sentence shall be consecutive or
concurrent” which “is a judicial function, clearly set out in [Penal Code]
section 669”]; In re Sandel (1966)
64 Cal.2d 412, 415-417 [selecting consecutive or concurrent terms is a
judicial function, and parole authority violates separation of powers by
attempting to “correct” a sentence to make terms run consecutively.)

On
the other hand, the “ ‘[Board’s] discretion in parole matters has been
described as “great” [citation] and “almost unlimited” [citation].’ [Citation.]”
(Rosenkrantz, supra,
29 Cal.4th at p. 655.) “ ‘The
executive branch has “inherent and primary authority” over parole matters. . .
.’ (In re Roberts (2005) 36
Cal.4th 575, 588 . . . .) ‘By its
nature, the determination whether a prisoner should be released on parole is
generally regarded as an executive branch decision. [Citations.]
The decision, and the discretion implicit in it, are expressly committed
to the executive branch.
[Citations.] It is not a judicial
decision.’ (In re Morrall (2002)
102 Cal.App.4th 280, 287 . . . .)” (In
re Copley, supra,
196 Cal.App.4th at pp. 435-436.)
“ ‘Intrusions by the judiciary into the executive branch’s realm of
parole matters may violate the separation of powers.’ ” (In re
Prather (2010) 50 Cal.4th 238, 254.)

What
petitioner’s separation of powers argument fails to appreciate is that even
under the DSL, the Legislature left intact the Board’s power to decide when a
life prisoner is eligible for parole, and thus to determine his length of
imprisonment and release date. (>Dannenberg, supra, 34 Cal.4th at pp.
1097-1098.) In this case, the Board did
not purport to alter the superior court’s determinate sentencing choices as to
petitioner’s nonlife crimes. Rather, the
Board determined solely the length of time petitioner will serve for his
indeterminate life crime, pursuant to the authority that has been, and remains,
invested in the executive branch.

The
gist of petitioner’s argument is that section 2286, subdivision (b), accomplishes indirectly what
the Board cannot do directly, i.e., transmute concurrent determinate sentences
into consecutive ones. As petitioner
points out, he received concurrent determinate sentences on all his nonlife
crimes, resulting in an eight-year aggregate determinate sentence. However, rather than adding eight years to
his base term of imprisonment, the Board added over 22 years, essentially the
period of time he would have served on his nonlife crimes had he been
consecutively sentenced. This does not
mean, however, that section 2286, subdivision (b), is constitutionally infirm
and the Board impermissibly impinged on the superior court’s sentencing
authority.

As we have discussed, the
Legislature empowered the Board to adopt regulations to determine parole
eligibility and the term of imprisonment.
(Pen. Code, § 3041, subd. (a).)
Thus, the Legislature, itself, has specified the bounds of the Board’s
authority.

Further, section 2286,
subdivision (a), expressly states “If the panel finds circumstances in
aggravation or mitigation as provided in §§ 2287 or 2288, the panel may
impose a higher or lower enhancement, or may impose no enhancement . . . .” (§ 2286, subd. (a).) One
circumstance justifying a reduced term enhancement, or no enhancement, for
example, is when “[t]he period of incarceration imposed . . . as the sentence
for the other crime is equal to or less than the additional term provided by
Section 2286.” (§ 2288, subd.
(a).) Thus, section 2286, subdivision
(b), does not mandate a particular result, but leaves it to the Board to
exercise its discretion as to the appropriate term of imprisonment for a life
offender convicted of additional crimes.
The regulation, by referencing section 2288, also acknowledges the
sentencing authority of the superior court and makes a court’s sentencing
choices a matter for the Board to consider in determining the term of
imprisonment for the life crime. That
the Board may, in exercising its discretion, conclude the period of
incarceration for an indeterminate life crime should be lengthened in light of
other crimes the prisoner committed, does not compromise the determinate
sentence for those crimes the superior court imposed years earlier.href="#_ftn14" name="_ftnref14" title="">[14]

The
Board’s great discretion in parole matters arises not only from the statutory
framework delegating it broad powers in that area (e.g., Pen. Code,
§§ 3040-3041, 3052), but also from the fact a life term is truly a life
term, with only the possibility, not
the guarantee, of parole. “
‘[T]raditionally “one who is legally convicted has no vested right to the
determination of his sentence at less than maximum” [citation]. Moreover, “a defendant under an indeterminate
sentence has no ‘vested right’ to have his sentence fixed at . . . ‘or any
other period less than the maximum sentence provided by statute.’ ” [Citations.]
“It has uniformly been held that the indeterminate sentence is in legal
effect a sentence for the maximum term” [citation], subject only to the
ameliorative power of the [parole authority] to set a lesser term. [Citations.]’
[Citation.] Indeed, ‘ “it is fundamental
to [an] indeterminate sentence law that every such sentence is for the
[statutory] maximum unless . . . the [parole] authority acts to fix a shorter
term. The authority may act just as
validly by considering the case and then declining to reduce the term as by
entering an order reducing it . . . .” ’
[Citations.]” (>Dannenberg, supra, 34 Cal.4th at
pp. 1097-1098.)

Applying
these principles during the early transition from the ISL to the DSL, the
Courts of Appeal rejected arguments similar to that made by petitioner
here—that the Board was impinging on the authority granted to the courts under
the DSL by adding other crime enhancements in calculating postulated DSL
release dates in cases where the courts had imposed concurrent sentences. (In re
Thoren (1979) 90 Cal.App.3d 704, 710; In
re Gray (1978) 85 Cal.App.3d 255, 262-263 (Gray).) These cases dealt
specifically with Penal Code section 1170.2, which provides a bridge between
the ISL and the DSL. The statute
authorizes the Board “to translate” a prisoner’s ISL term “into a retroactive
term” under the DSL, and sets forth factors the Board is to consider in determining
the postulated DSL release date. (>In re Olson (2007) 149 Cal.Appl.4th 790,
793; Pen. Code, § 1170.2, subd. (a); see also Gray, supra, 85
Cal.App.3d at p. 260 [“Subdivision (a) of section 1170.2 directs the [Board] to
determine what sentence an ISL offender would have received had he been
sentenced under the [DSL] . . . .”].)
The statute further requires the Board to compare the ISL release date
with the postulated DSL release date and to use the latter if it is earlier,
unless two commissioners determine, based on specified factors, the prisoner
should serve a longer term (a “serious offender” determination). (Pen. Code, § 1170.2, subd. (b); >In re Olson, supra, at p. 793; >In re Thoren, supra, at
p. 710.)

For
“serious offenders” (see Pen. Code, § 1170.2, subd. (b)), the Board has
employed a policy of treating concurrent sentences as consecutive sentences in
arriving at the postulated DSL release date.
(See In re Thoren, supra, 90
Cal.App.3d at pp. 709-710; Gray, supra, 85
Cal.App.3d at pp. 258, 261-262.) >Gray expressly approved this policy,
explaining that calculating a prison release date “is not a resentencing” and
that the “original indeterminate sentence ‘for the term provided by law‘
remains valid.” (Gray, supra, at pp.
262-263.)

Although
Gray arose in the context of Penal
Code section 1170.2, its reasoning—that calculating a term of imprisonment is
an administrative action, not a resentencing, that does not alter the life
prisoner’s maximum sentence—is independent of that particular statute. Gray’s> rationale, which has never been
questioned, applies to the present case, as well. Petitioner’s sentence was, and still remains,
a life sentence, and the Board, in determining the term of his imprisonment and
setting his release date, was exercising its own administrative power to grant
parole and reduce the life term petitioner was sentenced to serve.

The
Attorney General points out petitioner received the benefit of concurrent
sentencing that is statutorily mandated by Penal Code section 669. Under that code section, as we have
discussed, a concurrently sentenced prisoner starts serving his indeterminate
life term and determinate terms at the same time, making him eligible for
consideration for parole after serving the longest of the minimum parole
eligibility periods, whereas a consecutively sentenced prisoner must serve each
of the minimum parole eligibility periods before he is eligible for
consideration for parole. (Pen. Code,
§ 669.)

For reasons similar to those
discussed, we also conclude section 2285, which provides for a two-year
enhancement to the base term of imprisonment for the use of a firearm, does not
impermissibly infringe on the superior courts’ sentencing authority. In accordance with the terms of the agreed-to
disposition, the prosecution asked the court to dismiss the firearm sentencing
enhancement allegations in the criminal complaint (Pen. Code, § 12022.5,
subd. (a)) and the court did so.
Petitioner contends the Board’s regulation effectively nullifies the
court’s striking of the sentencing enhancement allegations. It is well established, however, that the
Board may enhance the term of imprisonment for a life crime on the basis of
facts that are not pleaded or proven in the superior court. (In re Neal
(1980) 114 Cal.App.3d 141, 145-146 [“The aggregate term . . . is the
result of the added 2-year component based upon defendant’s use of a firearm in
the commission of a ‘life crime’ . . .
(Cal. Admin. Code, tit. 15, § 2285.) Such additional term neither extended the statutory
period of parole ineligibility (§ 3046) nor carried beyond defendant’s ability
to serve it during his lifetime (see §§ 3000, subd. (b), 3001, subd. (b))
and was properly considered by the Board in calculating defendant’s period of
actual confinement prior to release on parole, notwithstanding the absence of
an express finding at the time of sentencing.”], fn. omitted; >In re Dexter (1979) 25 Cal.3d 921,
928-929; cf. Rosenkrantz, >supra, 29 Cal.4th at pp. 678-679 [jury’s
failure to find a fact beyond a reasonable doubt does preclude use of fact by
Board].)

We
see no practical distinction between a sentencing allegation not having been
pleaded or proved, and such allegation having been struck. The result is the same—there is no superior
court predicate for the prison term enhancement. The regulations and the availability of court
review, however, ensure due process before the Board can impose a term
enhancement on the basis of factors not determined by the court. (In re
Dexter, supra, 25 Cal.3d at p.
930 [“if the inmate claims the enhancement is not justified by a trial court
finding, he has recourse to” procedures in the regulations and to judicial
review]; see also Rosenkrantz, >supra, 29 Cal.4th at p. 655 [parolee’s
right to due process]; In re Prewitt
(1972) 8 Cal.3d 470, 476 [same].)

E>. Petitioner’s
Plea Bargain >and the DSL Term Enhancement Regulations>

Petitioner
also contends the enhancements to his term of imprisonment violate the terms of
his plea deal, wherein he agreed to waive trial and appellate rights in
exchange for concurrent sentencing. As
we have discussed, in determining petitioner’s eligibility for parole in
connection with his life crime, and setting the term of his imprisonment and
release date, the Board acted within the bounds of its administrative authority
and did not impermissibly impinge on the superior court’s sentencing
authority. The Board likewise did not
impermissibly interfere with the plea agreement struck by petitioner and the prosecution,
in accordance with which the superior court sentenced petitioner to up to life
in prison for kidnapping
in commission of carjacking.

Indeed,
the term enhancement regulations the Board applied in this case have been part
of the Code of Regulations for some 30 years, since before 1980. Thus, they had long been in effect at the
time petitioner agreed to the negotiated disposition. Both petitioner and the superior court must
be presumed to have been conversant with the law as it existed at that
time. The plea agreement also did not purport
to alter the way in which the Board would calculate petitioner’s indeterminate
term.href="#_ftn15" name="_ftnref15" title="">[15] Thus, it should have come as no surprise to
petitioner that, with respect to the indeterminate sentence for his life crime,
the Board would set the term of his imprisonment and would do so in accordance
with its regulations providing for a base term of imprisonment augmented by
term enhancements, including for additional convictions and use of a
firearm. (See People v. Heitzman (1994) 9 Cal.4th 189, 200 [we “ ‘require
citizens to apprise themselves not only of statutory language, but also of
legislative history, subsequent judicial construction, and underlying
legislative purposes’ ”]; People v.
Haney (1989) 207 Cal.App.3d 1034, 1038, fn. 3 [“no authority requires
a trial court to advise a defendant who pleads guilty that uncharged prior
prison terms can be used to aggravate his prison sentence”].)

F>. Alleged
Vindictiveness in Second Term Fixing

Petitioner
additionally contends that even if the Board’s term enhancement regulations are
valid, the Board acted “vindictively” in violation of double jeopardy
protections when it set a longer term of imprisonment—by approximately three
years—after remand following petitioner’s first habeas petition.

The
prohibition on increased punishment following sentencing after retrial and the
concerns about double jeopardy at issue
in cases such as Alabama v. Smith
(1989) 490 U.S. 794, do not apply to the Board’s recalculation, in
accordance with the applicable regulations, of petitioner’s term of
imprisonment for his life crime.
Petitioner’s sentence and punishment—life with possibility of
parole—remained the same. The Board’s
determination of petitioner’s eligibility for parole, term of imprisonment and
release date, as we have discussed, are not “sentencing.” (>Dannenberg, supra, 34 Cal.4th at pp. 1097-1098; Gray, supra,
85 Cal.App.3d at pp. 262-263.)

The courts also explicitly held
under the ISL that the Board could recalculate terms of imprisonments without
running afoul of double jeopardy constraints on resentencing. As the court of appeal explained in >In re Korner (1942) 50 Cal.App.2d 407, 411, “what was done by the Board of
Prison Terms and Paroles was not judicial in its nature. The judicial proceedings were terminated by
the pronouncement of judgment by the trial court. That court, in legal effect, sentenced the
petitioner to imprisonment for the maximum term prescribed by the statute, which
is life. [Citations.] Thereupon he was turned over to an
administrative board which was empowered to determine how long he should be
kept in prison.” Accordingly, the court
upheld the statutory scheme that allowed the Board to re-fix an indeterminate
term. (Ibid.; see also In re Etie
(1946) 27 Cal.2d 753, 758-760 [re-fixing term to maximum upon violation of
parole similarly upheld]; People v.
Tenorio (1970) 3 Cal.3d 89, 95 [Board is “empowered to determine and
redetermine sentences—within limits imposed by the exercise of judicial power
. . . .”].)

A
term of imprisonment set by the Board for an indeterminate life sentence thus
does not have the finality of a sentence
imposed by a court, and re-fixing a term of imprisonment for an indeterminate
life sentence does not raise the same double jeopardy concerns as sentencing
following retrial after a successful appeal.


Still,
the Board cannot act vindictively, for if it did so, its actions would be
arbitrary and capricious, constituting an abuse of its discretion. (See, e.g., In re Montgomery (2012) 208 Cal.App.4th 149, 161.) We see no record evidence of actual
vindictiveness here. The error leading
to the granting of petitioner’s first habeas petition was the Board’s
application of the wrong set of regulations, those pertaining to murderers,
rather than those applicable generally to life crimes, including
kidnapping. The Board subsequently
applied the correct set of regulations, as instructed by the superior
court. In applying these regulations,
the Board applied the term enhancements specified by section 2286, subdivision
(b), and section 2285. The specified
enhancements added up to a slightly longer term of imprisonment than the Board
had calculated under the inapplicable regulations.href="#_ftn16" name="_ftnref16" title="">[16]

IV. Disposition

The
petition for writ of habeas corpus is denied.






_________________________

Banke,
J.





We concur:





_________________________

Marchiano, P. J.





_________________________

Dondero, J.