Filed 2/3/14




       IN THE SUPREME COURT OF CALIFORNIA


                                    )
                                    )
                                    )
In re JOHNNY LIRA                   )                              S204582
                                    )
         on Habeas Corpus.          )                        Ct.App. 6 H036162
                                    )
                                    )                        Santa Clara County
                                    )                       Super. Ct. No. 76836
____________________________________)


        A life inmate is found suitable for parole and given a parole date by the
Board of Parole Hearings (the Board). The Governor reverses the grant of parole,
the inmate challenges the reversal by petition for writ of habeas corpus, and while
the petition is pending the Board again finds the inmate suitable and sets another
parole date. The Governor does not review the second decision, and the inmate is
released from prison, subject to a maximum five-year parole term under the
applicable statute. If the court subsequently grants relief on the inmate’s habeas
corpus petition and overturns the Governor’s earlier reversal for want of
supporting evidence, is the inmate entitled to credit against his parole term for the
time he spent in prison between the erroneous reversal and his eventual release?
We conclude he is not.
            I. FACTUAL AND PROCEDURAL BACKGROUND

       Because the circumstances of the underlying offense are not relevant to the
issue before us, we summarize them only briefly. Lira was convicted of second
degree murder for the 1980 shooting death of his estranged wife. He was
sentenced in 1981 to an indeterminate term of 15 years to life in prison,
consecutive to a two-year firearm use enhancement, and was subject to a parole
term not to exceed five years upon his release. (Pen. Code, former §§ 3000, subd.
(b), 3001, subd. (b); Stats. 1978, ch. 582, §§ 1, 2, pp. 2003, 2004.1)
       In December 2005, the Board denied Lira parole for the ninth time, a denial
Lira successfully challenged by filing a petition for writ of habeas corpus in
superior court. The superior court, in an order affirmed on appeal, ordered a new
parole hearing, which the Board conducted in November 2008. At the new
hearing the Board found Lira suitable for parole, a decision then-Governor
Schwarzenegger reversed in April 2009. Lira challenged the Governor’s reversal
by filing a second habeas corpus petition in superior court. While that petition
was pending, at a regularly scheduled parole hearing on November 3, 2009, the
Board again found Lira suitable for parole, a decision the Governor declined to
review. Lira was paroled on April 8, 2010.
       Lira then filed a supplemental habeas corpus petition, arguing that his
release did not moot the pending petition challenging the Governor’s reversal of
the Board’s 2008 finding of suitability, and seeking credit against his parole term
for all the time he spent in prison after the Board’s deficient 2005 unsuitability
finding. The superior court granted relief, finding the Board and the Governor had
each acted unlawfully in denying Lira parole and ordering that he receive credit
against his parole term for the period spanning the date on which a favorable 2005

1      Further undesignated statutory references are to the Penal Code.

                                          2
parole decision by the Board would have been effective to the date of Lira’s actual
release from prison. The Attorney General, on behalf of respondent, appealed.
       The Court of Appeal rejected Lira’s argument that he was entitled to credit
for the entire period he spent in prison following the Board’s deficient 2005
suitability finding, but affirmed the superior court’s conclusion that the
Governor’s reversal of the Board’s 2008 parole grant was not supported by “some
evidence” as required by law. (See In re Lawrence (2008) 44 Cal.4th 1181, 1220-
1221; In re Rosenkrantz (2002) 29 Cal.4th 616, 677.) The court modified the
order granting relief to provide credit only for the yearlong period between the
Governor’s 2009 reversal and Lira’s actual 2010 release on parole.
       We granted the Attorney General’s petition for review, which raised only
the credit issue.2

                                 II. DISCUSSION

       No statute governing sentence credit specifically authorizes credit against a
parole term under the present set of facts, but Lira argues sections 2900 and
2900.5 together provide the foundation for his claim. Section 2900, subdivision
(c), provides that all time served in custody is to be credited as service of the term
of imprisonment, which in turn is defined in section 2900.5, subdivision (c), to
include any period of imprisonment and parole. Lira argues his confinement
beyond the date on which the Board’s suitability decision would have become




2      The Attorney General does not challenge the Court of Appeal’s
determination that the Governor’s April 2009 reversal of the Board’s parole
decision violated applicable law because it was unsupported by some evidence.
We therefore do not address that determination.

                                           3
effective, but for the Governor’s reversal, was unlawful and, as such, should be
credited not against his term of imprisonment but against his term of parole.3
       The Attorney General contends there was nothing unlawful about Lira’s
confinement, and that all of the time he spent in custody was properly credited to
his life term of imprisonment. The Attorney General argues, as well, that
recognition of a credit against Lira’s parole period would conflict with former
section 3001, subdivision (b), which she contends should be read as providing that
the period of parole begins only after release from prison and not on some
theoretical retrospective date, such as the date the Board’s decision would have
taken effect.
     We first summarize the statutes that are most relevant to the issues presented
in this case.
     Sections 3000 and 3001, in the Penal Code chapter entitled “Length of Term
of Imprisonment and Paroles,” set forth the general requirement of a period of
parole and its length, respectively. At the time of Lira’s crime and thus as
applicable here, section 3000 provided in pertinent part: “The Legislature finds
and declares that the period immediately following incarceration is critical to
successful reintegration of the offender into society and to positive citizenship. It
is in the interest of public safety for the state to provide for the supervision of and
surveillance of parolees and to provide educational, vocational, family and
personal counseling necessary to assist parolees in the transition between
imprisonment and discharge. A sentence pursuant to Section 1168 [providing for
indeterminate sentencing] . . . shall include a period of parole, unless waived, as


3       A decision of the Board finding an inmate suitable for parole becomes final
as to the Board within 120 days of the date of the hearing. (§ 3041, subd. (b).)
The Governor then has 30 days within which to review the Board’s decision.
(§ 3041.2, subd. (a); see In re Tokhmanian (2008) 168 Cal.App.4th 1270.)
                                           4
provided in this section.”4 Subdivision (b) of the statute provided for a maximum
parole period of five years for an inmate, like Lira, who was imprisoned for
second degree murder committed before 1983. (Stats. 1978, ch. 582, § 1, p. 2003.)
     Section 3001, subdivision (b), at the time of Lira’s crime and as relevant
here, provided: “Notwithstanding any other provision of law, when any person
referred to in subdivision (b) of Section 3000 has been released on parole from the
state prison, and has been on parole continuously for three years since release from
confinement, the board shall, within 30 days, discharge such person from parole,
unless the board, for good cause, determines that such person will be retained on
parole.” (Stats. 1978, ch. 582, § 2, p. 2004.) Thus, although the maximum period
of parole under the version of section 3000 applicable here is five years, a parolee
will be discharged after service of three years’ continuous parole unless the Board
makes the requisite good-cause finding.5 (See Cal. Code Regs., tit. 15, § 2535 et
seq. [timing of and criteria to be employed in Board’s parole discharge review];
see generally In re Carr (1995) 38 Cal.App.4th 209.)
     Sections 2900 and 2900.5, comprising part of article 1, “Commencement of
Term,” in the chapter entitled “Execution of Sentences of Imprisonment,” require
that time served in custody be credited against the sentence fixed by the judgment
in a criminal action. Subdivision (c) of section 2900 states that, with exceptions


4     The final sentence of section 3000, subdivision (a)(1) currently provides:
“A sentence resulting in imprisonment in the state prison pursuant to Section 1168
or 1170 shall include a period of parole supervision or postrelease community
supervision, unless waived, or as otherwise provided in this article.”

5       Section 3000.1 now provides for a possible lifetime period of parole for a
person convicted of second degree murder, with discharge after five continuous
years on parole unless the Board, for good cause, decides to retain the person on
parole. (§ 3000.1, subds. (a)(1), (b).) The requirement of a lifetime parole term is
not retroactive and thus does not apply to this case. (In re Carabes (1983) 144
Cal.App.3d 927, 930, fn. 1.)
                                          5
not relevant here, “all time served in an institution designated by the Director of
Corrections shall be credited as service of the term of imprisonment.” Section
2900.5, subdivision (a), provides in relevant part: “In all felony . . . convictions,
. . . when the defendant has been in custody, including, but not limited to, any time
spent in a . . . prison . . . , all days of custody of the defendant . . . shall be credited
upon his or her term of imprisonment . . . .” Subdivision (c) of section 2900.5 in
turn provides: “For the purposes of this section, ‘term of imprisonment’ includes
any period of imprisonment imposed as a condition of probation or otherwise
ordered by a court in imposing or suspending the imposition of any sentence, and
also includes any term of imprisonment, including any period of imprisonment
prior to release on parole and any period of imprisonment and parole, prior to
discharge . . . .”
     Lira contends the Court of Appeal correctly concluded that his term of
imprisonment properly ended on the date when he would have been released
pursuant to the Board’s 2009 parole grant but for the Governor’s unsupported
reversal, that the days he spent in custody between that date and the date of his
eventual release constituted unlawful imprisonment, and that this period of
assertedly unlawful imprisonment must be credited against his parole term under
sections 2900 and 2900.5. In support, he cites In re Bush (2008) 161 Cal.App.4th
133 (Bush), but that case does not assist him.
     In Bush, a life prisoner claimed he was entitled to have his parole period
reduced by time he spent in custody in excess of the base term ultimately set by
the Board. In rejecting the claim, the court observed that the California Code of
Regulations provides that a prisoner who has served more time in custody than the
base term is entitled to immediate release, but is silent regarding any credit against
the inmate’s parole term. (Bush, supra, 161 Cal.App.4th at p. 142, citing Cal.
Code Regs., tit. 15, § 2289.) Contrary to the prisoner’s argument, the court held
                                             6
that California Code of Regulations, title 15, section 2345, providing that “ ‘[i]f
any custody credit remains after deducting it from the offense to which it applies,
the remaining credit shall be deducted from the parole period,’ ” did not dictate
recognition of such credit in the case of a life prisoner. That section, the court
reasoned, applies to determinate-term prisoners whose presentence custody credit
exceeds the sentence imposed, and results not only in the prisoners’ not having to
serve any prison time but in reduction of the parole period. (Bush, supra, at p.
143.) For life prisoners, the court noted, preprison credits are taken into account
when the Board sets the base term, being applied to the base term itself to reduce
its length. (Ibid., citing Cal. Code Regs., tit. 15, § 2289.)
     The Bush court further rejected the prisoner’s contention that section 2900.5,
subdivision (c)’s definition of “term of imprisonment,” relating to the term against
which custody must be credited, should be understood as limited to the base term
ultimately set by the Board. The court construed section 2900.5, subdivision (c) to
mean “ ‘any period of imprisonment lawfully served,’ ” including the time a
prisoner “lawfully spends in prison custody awaiting a determination of suitability
for parole, a construction of the statute that is consistent with the statutory scheme
and promotes public policy.” (Bush, supra, 161 Cal.App.4th at p. 143.) True, as
Lira argues, the superior court in Bush had ordered that the prisoner receive credit
against his parole period for time spent in prison custody after the last date he
could have been lawfully held (the date his suitability determination became final),
a four-month period attributable to the Governor’s belated and ineffective request
for en banc review of the Board’s suitability determination. (Id. at pp. 139, 143,
fn. 4.) But because the Attorney General did not challenge that order, the Court of
Appeal had no occasion to address its propriety; Bush therefore is not authority for
the proposition that a parolee is entitled to credit against his or her parole term for
excess time in custody.
                                           7
     Lira nevertheless focuses on the Bush court’s reference to the time a prisoner
lawfully spends in prison custody as being credited against the prisoner’s term of
imprisonment, inferring that time unlawfully spent in custody must be credited
against the parole period. He contends the period at issue in the present case was
time unlawfully spent in custody because a court later determined the Governor’s
reversal was unsupported.
     Lira’s argument overlooks the significance of the Governor’s independent
constitutional authority to review parole suitability determinations. (Cal. Const.,
art. V, § 8, subd. (b); see § 3041.2.) “The Governor has the authority to weigh
suitability factors differently from the Board: ‘Although “the Governor’s decision
must be based upon the same factors that restrict the Board in rendering its parole
decision” [citation], the Governor undertakes an independent, de novo review of
the inmate’s suitability for parole. [Citation.] Accordingly, the Governor has
discretion to be “more stringent or cautious” in determining whether a defendant
poses an unreasonable risk to public safety.’ [Citation.]” (In re Prather (2010)
50 Cal.4th 238, 257, fn. 12 (Prather).) The Governor’s suitability review process
takes time and, like other official duties, is presumed to be correctly carried out
unless the contrary is established in appropriate proceedings. (Evid. Code, § 664.)
The normal functioning of the Board’s periodic parole hearing process likewise
takes time. Moreover, even when a court determines that a gubernatorial reversal
of a parole decision is unsupported, the remedy is not an order for the inmate’s
immediate release; rather, the court vacates the Governor’s reversal, reinstates the
Board’s grant of parole, and directs the Board to conduct its usual proceedings for
a release on parole. This allows the Board to account for any recent developments
reflecting on the inmate’s suitability for parole, and to rescind its grant if
appropriate. (In re Twinn (2010) 190 Cal.App.4th 447, 473-474; cf. Prather,
supra, at p. 258.) There is, thus, little room for Lira to argue that the Governor’s
                                           8
reversal, later judicially determined to be unsupported, somehow retroactively
rendered unlawful the period of his continued incarceration during the pendency
of these processes.
     We therefore agree with the Attorney General that Lira was lawfully
imprisoned during this period until the day he was released, and that he received
credit against his term of life imprisonment for all such days and is not entitled to
any credit against his parole term.
     Lira relies on certain decisions in which courts ordered that credits be applied
to shorten the inmate’s parole term. Those cases are distinguishable as involving
ministerial application of various types of sentence credits earned by determinate-
term prisoners, not discretionary decisions by the executive branch regarding
parole of life prisoners. (E.g., In re Randolph (1989) 215 Cal.App.3d 790, 795
[credits for time out-to-court]; In re Anderson (1982) 136 Cal.App.3d 472, 476
[presentence custody and conduct credits]; In re Ballard (1981) 115 Cal.App.3d
647, 650 [same]; In re Carter (1988) 199 Cal.App.3d 271, 273 [worktime credits];
In re Reina (1985) 171 Cal.App.3d 638, 642 [day-for-day custody credits].) The
considerations informing the sentence credit decisions Lira cites are inapplicable
here. For the reasons previously discussed (see ante, at pp. 7-8), Lira’s reliance on
Bush, supra, 161 Cal.App.4th at page 143, footnote 4, is likewise misplaced.
     Lira’s effort to shorten his parole term based on the asserted unlawfulness of
the portion of his term of imprisonment that followed the Governor’s 2009
reversal also runs afoul of the rule that a parole term begins only after release from
prison. In In re Chaudhary (2009) 172 Cal.App.4th 32, a life prisoner sentenced
after 1983 was subject under section 3000.1 to a lifetime parole term, with
eligibility for discharge “ ‘when [he] has been released on parole from the state
prison, and has been on parole continuously for . . . five years . . . since release
from confinement . . . .’ ” (In re Chaudhary, supra, at p. 37, quoting
                                           9
§ 3000.1, subd. (b).) As in this case, the prisoner’s release was delayed while the
Governor’s reversal of the parole grant was being litigated; the reversal was
eventually set aside on appeal, leading to the prisoner’s release on parole. The
prisoner claimed credit against his parole term for the period between when his
parole grant would have taken effect and his actual release date. The Court of
Appeal rejected the claim, noting that “[s]ection 3000.1’s five-year parole
discharge eligibility requirement is expressly limited to the period of time after the
parolee ‘has been released on parole’ and requires that the parolee serve five
continuous years on parole ‘since [the parolee’s] release from confinement.’ ” (In
re Chaudhary, supra, at p. 37.) The court added: “By placing these explicit
limitations on the parole discharge eligibility requirement, the Legislature made
unmistakably clear that a parolee must first have ‘been released on parole’ and
must then complete five continuous years on parole after the parolee’s ‘release
from confinement.’ This intent explicitly precludes the application of any time
spent in custody prior to release to satisfy any part of section 3000.1’s five-year
parole discharge eligibility requirement.” (Ibid.; see also In re Gomez (2010) 190
Cal.App.4th 1291, 1310.)
     Although this case does not involve section 3000.1’s five-year minimum
parole discharge eligibility requirement in the context of a potential lifetime parole
period, the language of the portion of former section 3001, subdivision (b)
pertinent to this case is similar, and the Chaudhary court’s analysis is therefore
relevant and persuasive. In our view, Lira’s argument (that a court’s subsequent
decision that the Governor’s reversal was unsupported by some evidence rendered
unlawful his custody during the intervening period, retroactively necessitating a
credit against his parole term) would undermine the Legislature’s intent in
requiring the service of three continuous years of parole after release from
confinement and therefore must be rejected. (Former § 3001, subd. (b).)
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     Lira also overlooks the significant separation of powers issues the rule he
asks us to adopt would raise. “ ‘The separation of powers principle is embodied in
the California Constitution, which provides as follows in article III, section 3:
“The powers of state government are legislative, executive, and judicial. Persons
charged with the exercise of one power may not exercise either of the others
except as permitted by this Constitution.” “ ‘The separation of powers doctrine
limits the authority of one of the three branches of government to arrogate to itself
the core functions of another branch. [Citations.]’ [Citation.]” [Citation.]
Although the doctrine is not intended to prohibit one branch from taking action
that might affect those of another branch, the doctrine is violated when the actions
of one branch “defeat or materially impair the inherent functions of another
branch.” [Citation.] [Citation.] Intrusions by the judiciary into the executive
branch’s realm of parole matters may violate the separation of powers.’ ”
(Prather, supra, 50 Cal.4th at pp. 254-255.)
     As the applicable statutes make clear, whether a period of parole is to be
required and, if so, its duration and conditions are matters for the Board.
(§§ 3000, 3001, subd. (b); see also People v. McMillion (1992) 2 Cal.App.4th
1363, 1368-1369.) The Legislature has decreed that “the period immediately
following incarceration is critical to successful reintegration of the offender into
society and to positive citizenship.” (§ 3000, subd. (a)(1).) This remains true even
when the Governor’s reversal of a Board decision is unsupported and delays the
prisoner’s release from prison. Such circumstances, while unfortunate, do not
diminish the Board’s responsibility to decide, based on the factors it has identified
as relevant, whether to retain a parolee on parole for as long as the law permits.
(See Cal. Code Regs., tit. 15, § 2535, subd. (d) [retention criteria include nature of
commitment offense, institutional adjustment, parole adjustment, whether the
parolee has been returned to custody for controlled substance or psychiatric
                                          11
treatment, and special need for continued supervision for the safety of the parolee
or the public].) A court’s general authority, on habeas corpus, to craft a remedy
“ ‘as the justice of the case may require’ ” (In re Crow (1971) 4 Cal.3d 613, 619,
quoting § 1484) cannot license it to interfere with the Board’s control over the
length of a prisoner’s parole term in the absence of specific statutory authorization
not present here.
     Lira contends he is entitled to the credit he seeks as a matter of fundamental
fairness, founded in substantive due process. He points to language in In re
Lawrence, supra, 44 Cal.4th 1181, and In re Rosenkrantz, supra, 29 Cal.4th 616,
acknowledging that, in light of the constitutional liberty interest at stake, a court’s
review of parole suitability decisions encompasses more than “a purely procedural
standard of review,” and is “sufficiently robust to reveal and remedy any evident
deprivation of constitutional rights.” (In re Lawrence, supra, at p. 1211, citing In
re Rosenkrantz, supra, at p. 664.) In that context, we held that, “when a court
reviews a decision of the Board or the Governor, the relevant inquiry is whether
some evidence supports the decision of the Board or the Governor that the inmate
constitutes a current threat to public safety, and not merely whether some evidence
confirms the existence of certain factual findings.” (In re Lawrence, supra, at p.
1212, italics omitted.) But nothing in our disavowal of a purely formal or
procedural standard of review of executive parole suitability decisions can be
extrapolated to the present context to support a remedy that would effectively
impose judicial control over the length of a parole term based on a parolee’s claim
that a suitability decision later judicially determined to be unsupported somehow
rendered his confinement retroactively unlawful.
     As the Attorney General correctly observes, the United States Supreme
Court’s substantive due process jurisprudence “forbids the government to infringe
certain ‘fundamental’ liberty interests at all, no matter what process is provided,
                                          12
unless the infringement is narrowly tailored to serve a compelling state interest.”
(Reno v. Flores (1993) 507 U.S. 292, 302.) Substantive due process analysis
begins with a “ ‘careful description’ of the asserted fundamental liberty interest.”
(Washington v. Glucksberg (1997) 521 U.S. 702, 721.) This “careful description”
must be concrete and particularized, rather than abstract and general. (Dawn D. v.
Superior Court (1998) 17 Cal.4th 932, 940.)
     Lira fails to propose such a description of the interest he asserts here. A life
prisoner “ ‘ “has no ‘vested right’ to have his sentence fixed at the term first
prescribed by the [parole authority] ‘or any other period less than the maximum
sentence provided by statute.’ ” ’ ” (In re Dannenberg (2005) 34 Cal.4th 1061,
1097; see Swarthout v. Cooke (2011) 562 U.S. ___ [178 L.Ed.2d 732, 736, 131
S.Ct. 859, 862] [there is no right under the federal Const. to conditional release
before the expiration of a valid sentence]; Greenholtz v. Nebraska Penal Inmates
(1979) 442 U.S. 1, 7.) While a life prisoner like Lira surely has a right to parole
proceedings that comply with procedural due process, to a factually supported
suitability decision, and to timely release from imprisonment upon a final
determination of suitability, Lira fails to show he has a fundamental right to credit
against a legislatively prescribed period of parole supervision as a judicial remedy
for a temporary infringement of his right to a factually supported suitability
decision by the executive branch. (Cf. § 3000.1, subd. (a)(1) [life parole period
for persons convicted of first or second degree murder]; In re Chaudhary, supra,
172 Cal.App.4th at p. 38 [“There is no way to apply ‘credits’ to a lifetime parole
period.”].)6

6      We reject any suggestion that Lira is entitled to credit against his parole
term based on his assertion that the Governor, in reversing the Board’s 2008
decision finding him suitable for parole, violated or ignored prior court rulings in
his case. The assertion finds no support in the record.

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                               III. DISPOSITION

       The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court with directions to order the superior court to vacate its
judgment, discharge the order to show cause, and deny the petition for habeas
corpus.
                                                  WERDEGAR, J.


WE CONCUR:


CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Lira
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 207 Cal.App.4th 531
Rehearing Granted

__________________________________________________________________________________

Opinion No. S204582
Date Filed: February 3, 2014
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Risë Jones Pichon

__________________________________________________________________________________

Counsel:

Steve M. Defilippis, under appointment by the Supreme Court, for Petitioner Johnny Lira.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Susan Duncan Lee, Acting State Solicitor General, Donald E. de Nicola, Deputy State
Solicitor General, Julie L. Garland and Jennifer A. Neill, Assistant Attorneys General, Anya M. Binsacca,
Jessica N. Blonen, Phillip J. Lindsay and Brian C. Kinney, Deputy Attorneys General, for Respondent The
People.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Steve M. Defilippis
Picone & Defillipis
625 N. First Street
San Jose, CA 95112
(408) 292-0441

Phillip J. Lindsay
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5255
