In re MARCUS PLAYER

Filed 1/11/07

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STORY CONTINUED FROM PART I……

DISCUSSION

            It is well established that when presented with a petition for a writ of habeas corpus by a person lawfully in custody for the purpose of vindicating his rights while in confinement who has exhausted his available administrative remedies (In re Arias (1986) 42 Cal.3d 667, 678, distinguished on another point in Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 129-130), " a court must first determine whether the petition states a prima facie case for relief--that is, whether it states facts that, if true, entitle the petitioner to relief--and also whether the stated claims are for any reason procedurally barred.  [Citation.]  To assist the court in determining the petition's sufficiency, the court may request an informal response from the petitioner's custodian or the real party in interest.  [Citations.]"   (People v. Romero (1994) 8 Cal.4th 728, 737 (Romero).)

            We followed that procedure in this proceeding.  After considering the allegations of the petition in light of the informal response filed by DOCR, we determined that Player had stated a prima facie case for relief and issued an OSC.  The parties have subsequently filed their respective written return and traverse, with documentary evidence, and other matters of record, which have now framed the issues for our determination.  (Romero, supra, 8 Cal.4th at pp. 738-740; see also People v. Duvall (1995) 9 Cal.4th 464, 476.)  At the time we issued the OSC, we gave the parties time within which to request oral argument on this matter.  Neither Player nor DOCR have requested oral argument.  We therefore turn to a discussion of the issues properly joined for our review.

            The crux of Player's petition before this court concerns the interpretation of several administrative regulations used by the prison authorities to award work-time behavioral credits and points which can affect an inmate's classification which in turn impacts on the inmate's custody level and privileges within the prison system.  Generally speaking, the director of the DOCR has the statutory obligation to classify every person committed to the state prison following an individualized examination and study in accordance with set regulations.  (In re Wilson (1988) 202 Cal.App.3d 661, 665 (Wilson).)  " Prisoner classification scores play a significant role in determining where, within the state's many prison facilities, a prisoner will be sent to serve [his] term of incarceration.  [Citation.]  As a general rule, a prisoner's classification score is directly proportional to the level of security needed to house the inmate.  For example, prisoners with high classification scores will be sent to the prisons with higher levels of security.  [Citation.]"   (In re Richards (1993) 16 Cal.App.4th 93, 95, fn. 1 (Richards).)  More simply, prison officials use the classification process to evaluate and separate prisoners and to generally determine how a prisoner will serve his time in the system.

            When a male inmate is first received in the prison system, he is housed at a reception center where his case factors are evaluated (i.e., length of sentence, criminal history, behavior during prior and current terms, including escape history) and a standardized system is used to compute a classification score to determine his initial placement in one of the state's prisons or camps.  (See §§  3375.1, subd. (a)-3375.3, subd. (a).)  The score is recalculated at least yearly and may determine the necessity of subsequent prison transfers.  (§  3375.4.)  The administrators of DOCR have broad authority to decide where to incarcerate or transfer a prisoner in accordance with classification decisions made based on "   'the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.  [Citations.]'  "   (Wilson, supra, 202 Cal.App.3d at p. 667; see Pen. Code, §§  5054, 5068; In re Scott (2003) 113 Cal.App.4th 38, 44 (Scott).)

            Another component of the DOCR classification process occurs once a prisoner arrives at his assigned institution.  At that time, the ICC makes decisions about the prisoner's custody level as well as custody restrictions, programs and work assignments.  (§§  3375, subd. (c), 3376, subds. (c) & (d)(1), 3377.1, subd. (a).)  The available programs for work and education vary from prison to prison.  Generally, a prisoner does not have a right to any particular assignment or program even though Penal Code section 2933 authorizes worktime credit for prisoners who are participating in qualifying assignments.  (Moody v. Daggett (1976) 429 U.S. 78, 87, fn. 9.)^[1]  The DOCR, however, must follow its own regulations regarding its programs.  (§  3375; Scott, supra, 113 Cal.App.4th at p. 44.) Although we must uphold a DOCR decision regarding classification if it is supported by "   'some evidence'  " (Superintendent v. Hill (1985) 472 U.S. 445, 454-456; Wilson, supra, 202 Cal.App.3d at pp. 666-667), and afford great deference to an administrative agency's expertise (In re Carter (1988) 199 Cal.App.3d 271, 276 (Carter)), where its interpretation of a regulation is clearly arbitrary or capricious or has no reasonable basis, we will not hesitate to reject it.  (In re Lusero (1992) 4 Cal.pp.4th 572, 575.)

            At issue in this matter are three segments of time where Player was denied two favorable points/credits for average or above average work performance on his annual classification reviews for December 1995 to June 1996 (the July 23, 1996 AR), September 1996 to March 1997 (the August 26, 1997 AR), and March 2, 2000 until his rehire (the August 15, 2000 AR).^[2]  Player admittedly was not participating in a qualified work or training assignment at the beginning of each of the challenged six-month periods.  It is undisputed, however, that Player was not in such a qualifying assignment and was

granted " S" time credits for those periods included within the time frames from August  16, 1995 to April 19, 1997 and from March 2, 2000 until his rehire.  It appears to be DOCR's position that even though it is required to award Player appropriate worktime (incentive) credits for those times he was granted " S" time based on fairness under the regulations as interpreted by case law (see Carter, supra, 199 Cal.App.3d at pp. 274-277), the same rationale does not apply to the award of " favorable points" for average or above average performance in work, school or vocational program.

            In support of this position, DOCR construes section 3375.4, subdivision (a) as providing a clean slate for each six-month period included in a yearly AR.  Player challenges this interpretation based on the plain language of subdivision (a) of section 3375.4 regarding a period being considered continuous when it is interrupted through no fault of the inmate and the interaction of that section with other regulations that specifically state an inmate will not suffer detriment to his credit earning status when he is exonerated from an adverse transfer (§  3043.6, subd. (c)(2)) or when his status is interrupted during the review period without his fault by a nonadverse transfer (§§  3043.6, subd. (a), 3375.4, subd. (a)).  We are thus called upon to decide whether DOCR's interpretation of the " period" considered " continuous" for the AR in subdivision (a) of section 3375.4, as only the six-month segment of the year that is interrupted for purposes of awarding favorable average or above performance work points/credits, is rational.

            In doing so, we note that "   'the same rules of construction and interpretation which apply to statutes govern the construction and interpretation of rules and regulations of administrative agencies.  [Citation.]'  [Citations.]  '[W]e begin with the fundamental rule that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.  [Citations.]  An equally basic rule of statutory construction is, however, that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.  [Citations.]  Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of [those promulgating the regulation.]  [Citations.]  If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.  [Citations.]'  [Citation.]"   (Richards, supra, 16 Cal.App.4th at pp. 97-98.)  With these principles in mind, we turn to the language in dispute.

            Section 3375.4, as amended in 2002, sets out the factors and their related numerical weights used to recalculate an inmate's preliminary classification score by explaining what boxes, describing pertinent factors, to fill in on the reclassification form.  Subdivision (a) of that section provides, in relevant part, that " Favorable behavior since last review (Boxes 46-51).  The categories below provide favorable points for six-month intervals.  For an annual reclassification review, two six-month periods may be counted.  When an inmate's status is interrupted during the period without inmate fault, the period shall be considered continuous. . . . [^[3]]  [¶] (3) For each six-month period with an average or above performance in work, school, or vocational program, two points shall be entered in Boxes 50-51 [formerly Box 52]. . . . [¶] (B) Favorable points shall not be granted for average or above average performance for inmates who are not assigned to a program."   (Italics added.)^[4]

            Based on its interpretation of the language of subdivision (a) of section 3375.4, DOCR calculates favorable points for each six-month period of an AR separately, and if, for any reason, an inmate is not in a credit-qualifying work assignment at the inception of a six-month period in an AR, the DOCR will not grant the inmate points for that segment, claiming " continuous" only refers to the six-month period in which a no-fault interruption occurs regardless of whether that interruption caused the inmate not to be in a qualifying assignment during the other six-month period under review.  We believe, however, that the plain language of section 3375.4, subdivision (a), italicized above, refers to the period of the review, which, in most cases, is one year, comprised of two six-month periods, and that if such one-year period is interrupted through no fault of the inmate, the entire period is considered " continuous" for that AR.  If a review period is less than one year due to the need of a reclassification because of a disciplinary violation or referral to the UCC or ICC for a program, housing or behavior concern, the period will then normally only include one six-month period since the last review.

            This clear language construction is consistent with the policy of at least annually reviewing objective information and criteria with the ultimate goal of placing inmates in the lowest custody level corresponding with their case factors and public safety in conjunction with the goal of the work/training incentive program "   'to instill good work habits, teach marketable skills, improve [inmates'] reintegration into society and seek self-sufficiency for the prisons.'  [Citation.]"   (Carter, supra, 199 Cal.App.3d at p. 275; see DOM, §  62010.1.)

            This interpretation also appears to have had some support in the DOCR operations manual before chapter 6, article 1 concerning the instructions for prison authorities completing the reclassification forms for inmates was revised on July 26, 2004.  In its 2000 operations manual regarding the application of favorable behavior points since the last review in those same provisions, the DOCR noted that although credits were given for each six-month period, two six-month periods shall be counted for an AR and when the inmate's status is interrupted during the period through no fault of his own, " that status shall be considered continuous."   (DOM, §  61020.19.3.)  With regard to average or above performance, the operations manual further noted that " [i]nmates will typically have average or above work grades and school grades.  This item is intended to compare inmates in general and be comparable to granting credits under the work incentive program."   (DOM, §  61020.19.3, Boxes 52-53.)  From these comments in its manual, it is gleaned that the inmate was to have the same work status and assignment for purposes of credits/points for favorable work behavior as for worktime credits which in turn supports the interpretation that such status and assignment would continue for the entire review period.  That period, if an annual review (AR), would be one year made up of two six-month periods that had been interrupted through no fault of the inmate.

            Although we are mindful that worktime credits, which reduce an inmate's sentence, are different from favorable points/credits for average or above performance in that work, they are interrelated.  (§§  3044, 3375.4.)  Both types of incentives to reward an inmate's work/school behavior or performance depend upon the inmate's status as assigned to a credit-qualifying work, school or program.  Player's work-qualifying status for each of the six-month periods of his ARs in question in this case had been disrupted or changed to " unassigned" based on circumstances and DOCR conduct which was not within his control.  Clearly under case law and the plain language of both the old and current regulations, the DOCR could not deny Player his worktime credits for those segments of time and properly granted him " S" time to cover each segment.  (See §§  3045.3, 3043.6, subd. (c)(2); Carter, supra, 199 Cal.App.3d at p. 276; In re Reina (1985) 171 Cal.App.3d 638, 644 (Reina).)

            Even though " S" time technically refers to excused worktime for purposes of calculating credit off of a prisoner's sentence, we do not believe it is logical or fair to deny Player the favorable behavior points for each respective six-month period at issue in this case under this somewhat analogous situation where his credit-qualifying assignments were disrupted or changed due respectively to an adverse transfer which was subsequently vindicated by our former opinion in case no. D041462 and a nonadverse transfer.^[5]  To find otherwise would deprive Player of the favorable points he would have earned during those " continuous" periods if he had been left in the assignment status he was in before it was changed to unassigned by the actions of the DOCR.

            Further, although it appears comments in supplements to its operations manual regarding changes in DOCR's policy and procedures of the inmate classification scoring system in July 2004,^[6] support the DOCR's interpretation that an inmate must be in an assigned position at the beginning of any six-month review period to be able to earn favorable behavior points for average or above performance in work or a school program

for that period, we do not believe such are reasonable.  In light of the DOCR's own regulations, an inmate is entitled to an award of worktime credits in a number of situations even when the inmate does not actually work, i.e., institutional lockdown, inclement weather, out-to-court status, family emergency, absent supervisor.  There is also the " catchall" provision section 3045.3, subdivision (b)(22) authorizing case-by-case analysis upon which the court in Carter relied to find the petitioner there entitled to additional worktime credits because his inability to work was beyond his control for reasons analogous to those listed in the administrative rules.  (Carter, supra, 199 Cal.App.3d at p. 276.)  As the court in Carter noted, " there is nothing in the regulations requiring the inmate to have already participated in the work program before he may get 'S' time credits under the enumerated circumstances."   (Ibid.)  Although " S" time credits refer to participation in a work or school program, when such is recorded for an inmate, the DOCR policy is that such " shall be considered the same as time worked for purposes of credit earning."   (DOM, §  53130.9.)  Logically, it follows that if the so-called considered time is worked at the same assigned status as before the authorized time off, then the favorable points for performance for that corresponding time should be awarded unless other factors such as new disciplinary matters negate their award.  Essentially, this would comport with the policy of the DOCR to liberally construe work performance in the absence of staff documentation of the inmate's performance.  (DOCR Transmittal Letter No. 04/01 (7/26/04 revision) DOM, §  61020.19.3, p. 9.)

            To deny such points/credits by adopting the DOCR's interpretation of the period to be considered continuous for a nonfault interrupted AR, is to create a perpetual " catch-22" situation in those cases where an inmate is unassigned in the other six-month period of an AR due to the continuing effect of an interruption beyond the inmate's control.  Such is the position in which Player is found in this case.  The interruptions of his " credit-qualifying status and assignments" in each of the six-month periods in his respective ARs in question were due to either an error by the DOCR that was later rectified by the grant of habeas relief in case no. D041462 or by a nonadverse transfer beyond his control.  To grant Player favorable performance credits for one six-month period but deny them for the other six-month period of those respective AR's that were directly effected by such interruptions is unreasonable and unfair.  Because we agree with the court in Reina, that the incentive for rehabilitation is enhanced " by the perception that

fairness exists in the operation of the rehabilitation program" (Reina, supra, 171 Cal.App.3d at pp. 644-645), which includes the classification of inmates for housing them for work and school programs as well as for security needs (see DOM, §  62010.7.2), we conclude Player is entitled to relief.

            We thus grant the relief Player asks for in his petition and order that the DOCR award Player two favorable behavior points for each of the three six-month periods in question for which Player has already received " S" time credit and that his case be reviewed by the appropriate classification committee to consider his appropriate reclassification score, custody designation, program and institution placement, as well as any changes of his privilege group.

DISPOSITION

            The relief requested in the petition is granted.  The Department of Corrections and Rehabilitation is directed to award Player favorable behavior points for average or above performance in accordance with this opinion and to review Player's designation, program, placement and privileges in light of his new classification score.

CERTIFIED FOR PUBLICATION

HUFFMAN, Acting P. J.

WE CONCUR:

                                          NARES, J.

                                   O'ROURKE, J.

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^[1]           The 2003-2004 Budget Act (AB 1765) requires the DOCR to provide priority placement in education and work programs to inmates who are eligible for one-for-one worktime credit, but prisoners already in programs are not to be displaced.  (See 2006 Supp. to The California State Prisoners Handbook (3d ed.) §  3.5, p. 24.)

^[2]           The record does not reflect the exact date of Player's rehire in 2000.  Nonetheless, during the administrative appeal process Player received two points for the other six-month period of each questioned AR due to having qualified work assignments during that segment of the year interrupted through no fault of his own or by the charge of wrongdoing that was later overturned.

^[3]           The earlier version of section 3375.4, subdivision (a) concerned additions of points for unfavorable behavior, with subdivision (b) addressing favorable behavior points in the same language as the current subdivision (a).

^[4]           The former version of this subpart was in section 3375.4, subdivision (b)(4)(B), and provided that " [c]redits shall not be given to inmates who are not participating in a program (such as an inmate who was unassigned for medical reasons)."

^[5]           Documents in the superior court file regarding Player's habeas petition filed before the current petition in this court suggest that the prison authorities in 2000 may have placed Player in administrative segregation and designated him as " involuntarily unassigned" based upon the same unsupported information regarding an enemy concern that had been in Player's C-file before we ordered such information removed in case no. D041462.

^[6]           The transmittal letter regarding the changes explains that when the work or school assignment is interrupted through no fault of the inmate, favorable points should only be considered for that six-month period and not beyond " unless the inmate again reports to a work incentive assignment on the first day of, or prior to, the next review period beginning date."   (DOCR Transmittal Letter No. 04/01, DOM §  61020.19.3, p. 9.)  As an example the DOCR operations manual notes that, " [a]n unassigned inmate who received an assignment from the inmate assignment office during a lockdown period, but has been unable to report to that assignment due to the lockdown, is not eligible for favorable behavior points for the Average or Above Performance category for that six-month review period.  The inmate shall continue to earn Work Incentive Credit, but is not eligible to be awarded favorable behavior points if not participating in a program.  [¶] Favorable points shall not be applied for Average or Above Performance in Work, School or Vocational Program to an inmate not assigned to a program.  [¶] Note:  An inmate earns Work Incentive Credit once assigned to a fulltime work, school, or vocational program.  However, favorable behavior points are based on inmate performance in custody."   (DOCR Transmittal Letter No. 04/01 (7/26/04 revision) DOM, §  61020.19.3, p. 9.)