                  TO BE PUBLISHED IN THE OFFICIAL REPORTS

                      OFFICE OF THE ATTORNEY GENERAL
                                State of California

                                    BILL LOCKYER
                                    Attorney General



                                             :
                 OPINION                     :                 No. 99-322
                                             :
                     of                      :             December 22, 1999
                                             :
             BILL LOCKYER                    :
             Attorney General                :
                                             :
         GREGORY L. GONOT                    :
         Deputy Attorney General             :
                                             :



              THE CALIFORNIA BOARD OF PRISON TERMS has requested an opinion
on the following question:

              If a prisoner is sentenced to life imprisonment under the provisions of Penal
Code section 667.7 as a habitual offender and is not eligible for release on parole for 20
years, does the 20-year period constitute the “minimum term” for purposes of applying
credits earned pursuant to Penal Code sections 2930-2935?


                                     CONCLUSION

              If a prisoner is sentenced to life imprisonment under the provisions of Penal
Code section 667.7 as a habitual offender and is not eligible for release on parole for 20
years, the 20-year period constitutes the “minimum term” for purposes of applying credits
earned pursuant to Penal Code sections 2930-2935.


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                                                ANALYSIS

                  Penal Code section 667.7 1 provides in relevant part:

                  “(a) Any person convicted of a felony in which the person inflicted
        great bodily injury . . . who has served two or more prior separate prison terms
        . . .for the crime of murder; attempted murder . . . or any felony punishable by
        death or life imprisonment with or without the possibility of parole is a
        habitual offender and shall be punished as follows:

                “(1) A person who served two prior separate prison terms shall be
        punished by imprisonment in the state prison for life and shall not be eligible
        for release on parole for 20 years, or the term determined by the court . . . or
        any period prescribed by Section 190 or 3046, whichever is greatest. Article
        2.5 . . . shall apply to reduce any minimum term in a state prison imposed
        pursuant to this section, but the person shall not otherwise be released on
        parole prior to that time.”2

“Article 2.5" is comprised of sections 2930-2935 and allows credits to be earned on a term
of imprisonment for good behavior and participation in prison programs and assignments
(§ 2931) and for performance in work, training, or vocational training programs (§ 2933)
under specified conditions.

              The question presented for resolution concerns a person who has been
sentenced to life imprisonment under the provisions of section 667.7 as a habitual offender
and is not “eligible for release on parole for 20 years.” Such a person is entitled to earn
credits under sections 2930-2935, but what is the “minimum term” to which the credits are
to be applied pursuant to section 667.7, subdivision (a)(1)? Even though the person is to be
imprisoned “for life,” we conclude that the 20-year parole ineligibility period constitutes the
“minimum term” for purposes of applying any credits earned.

              Preliminarily, we note that the Legislature enacted section 667.7 in 1981
(Stats. 1981, ch. 1108, § 1) “to provide a distinct and more severe sentencing scheme for
violent habitual offenders.” (People v. Jenkins (1995) 10 Cal.4th 234, 243.) In almost all
cases, however, this self-contained sentencing scheme (see People v. Jenkins, supra, 10


        1
            All references hereafter to the Penal Code are by section number only.

        2
         Section 190 prescribes the punishment for murder, and section 3046 imposes conditions of parole
upon those imprisoned under a life sentence.

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Cal.4th at 241-249) has been supplanted by the Three Strikes law (§ 667, subds. (b)-(i)),
which now applies “[n]otwithstanding any other law” (§ 667, subd. (c)). We are informed
that approximately 100 state prisoners are still subject to the provisions of section 667.7 as
habitual offenders.

               In 70 Ops.Cal.Atty.Gen. 49, 57 (1987), we found it unnecessary to answer the
question presented here as to what would be the “minimum term” for someone sentenced
to imprisonment for life but eligible for parole after 20 years pursuant to section 667.7.
Since our 1987 opinion, the courts have examined the Three Strikes law, enacted in 1994,
in a manner that provides assistance in interpreting section 667.7. We now answer the
question left undecided in our 1987 opinion based in part upon recent court decisions in the
related Three Strikes area.

              Under California law, most felonies carry a “determinate” prison sentence
consisting of a specific number of years in prison. The sentencing court determines the
length of confinement, and the “term” is the period of confinement prior to release on
parole. (People v. Jefferson (1999) 21 Cal.4th 86, 92-95.)

               In contrast, section 667.7 provides an “indeterminate” prison sentence of
“life” with the Board of Prison Terms exercising discretion in determining when to grant
parole. The time of actual confinement is not set by the sentencing court. Some
indeterminate sentences expressly include a minimum prison term such as “15 years to life”
or “25 years to life.” (People v. Jefferson, supra, 21 Cal.4th at 92.) However, section 667.7
does not contain such a minimum term. (Id., at pp. 92-93.) In indeterminate sentencing
cases, the period of parole is normally considered to be part of the “term” during which the
state continues to have jurisdiction over the prisoner. (Id., at p. 95.)

               How, then, can section 667.7 be interpreted in a manner that would allow a
person sentenced to “life” imprisonment to earn credits on a “minimum term”? We have
no doubt that everyone sentenced pursuant to section 667.7 is entitled to earn credits under
the plain language of the statute. (People v. Jenkins, supra, 10 Cal.4th at 244-247.) In
determining how this may be accomplished, we look to well recognized principles of
statutory interpretation.

                “To interpret statutory language, we must ‘ascertain the intent of the
Legislature so as to effectuate the purpose of the law.’ [Citation.]” (California Teachers
Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632.) “Our
first step [in determining the Legislature’s intent] is to scrutinize the actual words of the
statute, giving them a plan and commonsense meaning. [Citations.]” (People v. Valladoli
(1996) 13 Cal.4th 590, 597.) “In construing a statute, a court may consider the

                                              3                                       99-322
consequences that would follow from a particular construction and will not readily imply
an unreasonable legislative purpose. Therefore, a practical construction is preferred.
[Citation.]” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995)
10 Cal.4th 1133, 1147.) “In analyzing statutory language, we seek to give meaning to every
word and phrase in the statute to accomplish a result consistent with the legislative purpose
. . . .” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159.) “[T]he
various parts of the statutory enactment must be harmonized by considering the particular
clause in the context of the whole statute. [Citations.]” (Nunn v. State of California (1984)
35 Cal.3d 616, 625.)

               Applying these rules of construction, we find that the 20-year parole
ineligibility period must be considered the “minimum term” to which the credits may be
applied. Such construction of section 667.7 gives meaning to all the words and phrases of
the statute and effectuates the apparent intent of the Legislature in granting credit eligibility
to those persons sentenced under the provisions of the statute. No other “minimum term”
may reasonably be found in the language of section 667.7.

             Two courts have made passing references to section 667.7's provisions in a
manner that supports our interpretation. In People v. Jenkins, supra, 10 Cal.4th 234, the
Supreme Court referred to “section 667.7's threshold of a 20-year minimum term.” (Id., at
pp. 243-244.) In People v. Stofle (1996) 45 Cal.App.4th 417, 421, the court stated:

               “. . . [T]he Attorney General correctly notes that the Penal Code does
       specially allow credits to apply in some indeterminate life terms with parole
       minimums. This is done by a clear statement that the credits ‘shall apply to
       reduce any minimum term’ specified in that subdivision or section (see, e.g.,
       §§ . . . 667.7, subd. (a)(1) . . .) and effectively allows an earlier [minimum
       eligible parole date] . . . .”

While the statements in these cases may be considered dicta (see Trope v. Katz (1995) 11
Cal.4th 274, 275; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 912, fn.10; Hubbard v.
Superior Court (1997) 66 Cal.App.4th 1163, 1168-1169), we believe they correctly reflect
the intent of the Legislature in characterizing the 20-year parole ineligibility period of
section 667.7 as a “minimum term” for purposes of applying the credit provisions of
sections 2930-2935.

               We thus conclude that if a prisoner is sentenced to life imprisonment under the
provisions of section 667.7 as a habitual offender and is not eligible for release on parole for
20 years, the 20-year period constitutes the “minimum term” for purposes of applying credits
pursuant to sections 2930-2935.

                                             *****


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