Filed 6/20/18
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                          DIVISION SEVEN


In re                               No. B286241

                                    (Los Angeles County
        ANTUAN WILLIAMS             Super. Ct. No. PA002551)


                on Habeas Corpus.

      ORIGINAL PROCEEDING. Petition for writ of habeas
corpus. Relief granted.
      Tracy Lum for Petitioner.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Shawn McGahey Webb, Supervising Deputy
Attorney General and Jill Vander Borght, Deputy Attorney
General for Respondent.




                      _________________________
      On December 29, 2016, the Board of Parole Hearings found
Petitioner Antuan Williams suitable for parole under the youth
offender provisions of Penal Code sections 3051 and 4801,
subdivision (c). Although that decision became final on April 24,
2017, Williams was not released but required to serve an
additional consecutive, eight-year term for a conviction he
sustained while in prison when he was 26 years old. Williams
argues that the Board’s decision requiring him to serve the
consecutive term after he was granted parole was unlawful. We
agree.
                      FACTUAL BACKGROUND
      In 1991, Williams, then age 21, was convicted of first
degree murder under Penal Code section 187 and sentenced to an
indeterminate prison term of 28 years to life.1 In 1996, while
serving his sentence, Williams pleaded guilty to battery on a non-
prisoner (§ 4501.5), for which he was sentenced to an eight year
consecutive term to be served after the completion of his life
term. (§ 1170.1, subd. (c); In re Thompson (1985) 172 Cal.App.3d
256 (Thomson).)
       On December 29, 2016, Williams became eligible for a
youth offender parole hearing. (§§ 3051 and 4801, subd. (c).) The
Board found him suitable for parole, concluding that “Mr.
Williams does not pose an unreasonable risk of danger to society
or a threat to public safety.” The panel observed that Williams
was still required to serve a consecutive eight year term for his
1996 in-prison offense, the so-called Thompson term. On May 1,
2017, the Board sent Williams a notice that his release date had
been updated to August 25, 2022.

1     Unless otherwise noted, all further statutory citations are
to the Penal Code.




                                2
       Williams filed a petition for writ of habeas corpus in Los
Angeles County Superior Court, arguing that he was in custody
unlawfully and should be released because he had been granted
youth offender parole. The trial court denied the petition on
October 3, 2017, holding that because Williams was 26 years old
when he pleaded guilty to the in-prison battery offense, he was
required under section 1170.1, subdivision (c) and Thompson to
serve the consecutive term.
       Williams filed a petition for writ of habeas corpus in this
court on November 13, 2017, asserting that, under the terms of
the youth offender parole statute, he was entitled to release on
April 24, 2017.
                           DISCUSSION
       The legal question presented by this petition is whether a
youth offender granted parole under section 3051 is required to
serve a consecutive sentence for an in-prison offense committed
after age 25.

    A. The Youth Offender Parole Process
       The Legislature adopted section 3051 in response to a
seminal series of cases in which the United States Supreme
Court and the California Supreme Court recognized that
“children are constitutionally different from adults for purposes
of sentencing” because, due to their “diminished culpability and
greater prospects for reform, . . . ‘they are less deserving of the
most severe punishments.’” (Miller v. Alabama (2012) 567 U.S.
460, ____, [132 S.Ct. 2455, 2464, 183 L.Ed.2d 407] (Miller ),
quoting Graham v. Florida (2010) 560 U.S. 48, 68, 130 S.Ct.
2011, 176 L.Ed.2d 825 (Graham); People v. Caballero (2012) 55
Cal.4th 262 (Caballero).) The Eighth Amendment’s prohibition
on cruel and unusual punishment “encompasses the ‘foundational




                                 3
principle’ that the ‘imposition of a State’s most severe penalties
on juvenile offenders cannot proceed as though they were not
children.’ (Miller, [at p.] ____ [132 S.Ct. at p. 2466].) From this
principle, the high court has derived a number of limitations on
juvenile sentencing: (1) no individual may be executed for an
offense committed when he or she was a juvenile (Roper v.
Simmons (2005) 543 U.S. 551, 578 [125 S.Ct. 1183, 161 L.Ed.2d
1]); (2) no juvenile who commits a nonhomicide offense may be
sentenced to LWOP (Graham, supra, 560 U.S. at p. 74 [130 S.Ct.
2011]); and (3) no juvenile who commits a homicide offense may
be automatically sentenced to LWOP (Miller, at p. ____ [132 S.Ct.
at p. 2460]).” [Citation.]” (In re Trejo (2017) 10 Cal.App.5th 972,
980 (Trejo).)
       In response to these constitutional mandates, section 3051,
the youth offender statute, provides an inmate convicted of a
“controlling offense” committed before he or she was 25 years of
age, a parole hearing that provides “a meaningful opportunity to
obtain release.” (§§ 3051, subd. (d), (e), (f)(1).) As the Legislature
explained: “The purpose of this act is to establish a parole
eligibility mechanism that provides a person serving a sentence
for crimes that he or she committed as a juvenile the opportunity
to obtain release when he or she has shown that he or she has
been rehabilitated and gained maturity, in accordance with the
decision of the California Supreme Court in Caballero and the
decisions of the United States Supreme Court in Graham v.
Florida and Miller v. Alabama. . . . It is the intent of the
Legislature to create a process by which growth and maturity of
youthful offenders can be assessed and a meaningful opportunity
for release established.” (Stats. 2013, ch. 312 (Sen. Bill No. 260),
§ 1.)




                                  4
       In 2016, the California Supreme Court decided People v.
Franklin (2016) 63 Cal.4th 261, 277-278 (Franklin), which
addressed the impact of section 3051 on otherwise mandatory
sentencing provisions. The California Supreme Court held that
“[s]ections 3051 and 3046 have thus superseded the statutorily
mandated sentences of inmates who, like Franklin, committed
their controlling offense before the age of 18.” Franklin, who was
convicted of first degree murder and sentenced to a mandatory
indeterminate term of 50 years to life, argued that the state
scheme requiring that sentence constituted cruel and unusual
punishment under Miller’s prohibition against mandatory life
without parole sentences for juveniles. The high court held that
sections 3051 and 4801 mooted the constitutional claims by
overriding the mandatory sentences and offering Franklin “a
meaningful opportunity to obtain release.” (Id. at p. 278 [citing
§ 3051, subd. (e)].) According to the high court, section 3051
“thus reflects the Legislature’s judgment that 25 years is the
maximum amount of time that a juvenile offender may serve
before becoming eligible for parole.” (Ibid.)

   B. In re Trejo on Habeas Corpus

      The specific question before us, the interplay between the
youth offender parole statute and the earlier enacted section
1170.1, was addressed in In re Trejo (2017) 10 Cal.App.5th 972
(Trejo).) Following extensive analysis, the Trejo court concluded
that a youth offender granted parole under section 3051 was not
required to serve a consecutive term for an in-prison offense.
(Trejo, supra, 10 Cal.App.5th at pp. 980-989.)
      Gilbert Trejo was convicted of second degree murder and
sentenced to 15 years to life when he was 17 years old. While




                                5
incarcerated in San Quentin, Trejo was convicted of assault with
a deadly weapon on a peace officer (§ 245) and possession of a
deadly weapon by a prisoner (§ 4502). After serving 35 years in
prison, Trejo was found suitable for parole as a youth offender
under section 3051. The Board, however, determined that
pursuant to section 1170.1, subdivision (c),2 Trejo was required to
serve an additional consecutive four-year term for offenses he
committed in prison.
      Trejo filed a petition for a writ of habeas corpus, arguing
that because he was 20 years old when he committed his in-
prison offense, section 1170.1, subdivision (c) did not apply to
him, and he was entitled to release at the end of his
indeterminate sentence pursuant to section 3051, subdivision (d).
The Court of Appeal agreed, concluding that “section 3051
supersedes section 1170.1 when a youth offender is consecutively
sentenced to a life term and a determinate term.” (Trejo, supra,
10 Cal.App.5th at p. 986.) Citing Franklin, Trejo expressly
rejected the argument, also made by respondent in this case, that
nothing in the language of sections 3051 or 3046 exempts youth

2      Penal Code Section 1170.1, subdivision (c): “In the case of
any person convicted of one or more felonies committed while the
person is confined in the state prison or is subject to
reimprisonment for escape from custody and the law either
requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the
convictions that the person is required to serve consecutively
shall commence from the time the person would otherwise have
been released from prison. If the new offenses are consecutive
with each other, the principal and subordinate terms shall be
calculated as provided in subdivision (a). This subdivision shall
be applicable in cases of convictions of more than one offense in
the same or different proceedings.”




                                 6
offenders from the plain terms of section 1170.1, subdivision (c),
requiring an inmate to serve a determinate term imposed for an
in-prison offense following an inmate’s completion of an
indeterminate life term. Trejo explained that “[t]his statutory
scheme, designed to effectuate the constitutional prohibition
against excessive punishment of youthful offenders, would be
thwarted if a youth offender found suitable for parole pursuant to
section 3051 was required to remain in custody due to a
consecutive sentence for an in-prison offense.” (Id. at p. 987.)

      1. The Operation of The Statute

       Describing the operation of the statute, the Trejo court
found that section 3051 applies to offenses committed before a
youth offender is incarcerated as well as offenses committed by a
youth offender in prison. The court explained that section 3051
“provides for parole suitability review for inmates whose
‘controlling offense’ was committed before he or she was 23 years
old.” (Trejo, supra, 10 Cal.App.5th at p. 984 [citing § 3051, subd.
(a)(1)].)3 “Controlling offense” is defined in the statute as “the
offense or enhancement for which any sentencing court imposed
the longest term of imprisonment.” (§ 3051, subd. (a)(2)(B).)
Trejo concluded that “the Legislature indicated its intent that the


3     When adopted in 2013, the youth offender statute applied
only to those under age 18 at the time of their offense. In 2015,
the Legislature amended each of the Penal Code provisions to
make them applicable to those under 23 at the time of their
offense. (Franklin, supra, 63 Cal.4th at p. 277 [citing Stats. 2015,
ch. 471].) In 2017, the age limit was changed to 25 by an
amendment that became effective on January 1, 2018. (Stats.
2017, ch. 675.)




                                 7
controlling offense . . . be selected from all sentences imposed
upon that offender . . . . Nothing in section 3051 suggests the
only sentences to be considered are those imposed before the
offender was incarcerated, as long as the controlling offense—the
one for which the longest sentence was imposed—was committed
before the offender was 23 years old.” (Trejo, supra, at pp. 984-
985.) As a result, if an in-prison offense requires the longest
prison term imposed on a juvenile, it will be rendered the
controlling offense under section 3051.

      2. The Legislatively Mandated Exemptions

       The exceptions set out in subdivision (h) of section 3051
also address the application of the statute to in-prison
convictions. Section 3051 excludes five categories of juvenile
offenders. It excludes persons sentenced under section 1170.12,
section 667, subdivisions (b) through (i), and section 666.61. It
further excludes persons sentenced to life without the possibility
of parole for controlling offenses committed after age 18. Finally,
it excludes a person who would otherwise qualify, “but who,
subsequent to attaining 26 years of age, commits an additional
crime for which malice aforethought is a necessary element of the
crime or for which the individual is sentenced to life in prison.
(§ 3051, subd. (h).)
       Significantly, the Legislature failed to include sentences
imposed under 1170.1, subdivision (c) in the list of enumerated
exceptions contained in subsection (h), either in the initial
enactment or in any of the subsequent amendments. Instead, as
noted by the court in Trejo, the structure of the enactment
demonstrates that the Legislature intended section 3051 to
supersede sentences for in-prison offenses not expressly




                                 8
enumerated in the statute. (Trejo, supra, 10 Cal.App.5th at
p. 985.)
       The final sentence of subdivision (h) excludes from early
parole consideration those who “subsequent to attaining 26 years
of age” commit “an additional crime for which malice
aforethought is a necessary element of the crime or for which the
individual is sentenced to life in prison.” (§ 3051, subd. (h).) This
specific exception in the statute limits the exclusion to those who
commit the specified offenses. In concluding that in situations
not subject to a specified exclusion, section 3051 supersedes
section 1170.1, subdivision (c), Trejo invoked the statutory maxim
of construction, “expressio unius est exclusio alterius, if
exemptions are specified in a statute, [a court] may not imply
additional exemptions unless there is a clear Legislative intent to
the contrary.” (Id. at p. 983.)
       Respondent, however, urges us to read Trejo and section
3051, subdivision (h) more restrictively, arguing that the
Legislature intended section 3051, subdivision (h), and the
statute as whole, to proscribe an inmate’s eligibility for parole,
not an inmate’s eligilibity for release. But this interpretation
contradicts the plain text of section 3051, subdivision (d), which
provides: “At the youth offender parole hearing, the board shall
release the individual on parole . . . .” (§ 3051, subd. (d).) Section
3051, subdivision (b)(3), similarly states that if a youth offender
commits the controlling offense at age 25 or under, he “shall be
eligible for release on parole by the board . . . .” (§ 3051, subd.
(b)(3). The mandatory language clearly indicates that the
entitlement awarded by section 3051 is not limited to a finding of
suitability for parole, but extends to release.




                                  9
      3. The Administrative Interpretation

       Next, Trejo examined the website of the Department of
Corrections and Rehabilitation (Department) and found that it,
too, conformed to the court’s view that the Legislature intended
section 3051 to supplant section 1170.1 for youth offenders.
(Trejo, at p. 985.) Citing to the flow chart entitled “How to
Determine Whether an Inmate Qualifies as a ‘Youth Offender’
under PC § 3051,” published on the Department’s website, the
court recounted the analysis required as described by the
Department itself. (Ibid.) Trejo determined that the
Department’s own website is consistent with the court’s
understanding that inmates convicted of in-prison crimes not
specifically enumerated in section 3051, subdivision (h) qualify
for release as youth offenders.4 (Trejo, supra, 10 Cal.App.5th at
p. 985.)

      4. The Application of In re Tate

       Furthermore, the Trejo court rejected the argument that
petitioner’s consecutive Thompson sentence must be served under
In re Tate (2006) 135 Cal.App.4th 756, 765 (Tate). Tate, which


4      The Department’s flow chart lays out a series of five
questions to determine whether an inmate qualifies as a youth
offender under section 3051. According to the flowchart, unless
the in-prison crime involved malice aforethought or required a
life term, the inmate does qualify for a youth offender parole
hearing under section 3051.
(https://www.cdcr.ca.gov/BOPH/docs/YOPH/FLOWCHART%20-
%20How%20to%20Determine%20Whether%20an%20Inmate%20
Qualifies%20as%20a%20Youth%20Offender.pdf [as of June 20,
2018.])




                                10
was decided in the context of calculating an inmate’s work time
credits, determined that a consecutive term for an in-prison
offense does not merge with an inmate’s original term but is
treated as a separate principal term. (Id. at 765.) As a result,
the defendant in Tate, who was sentenced to an additional term
of two years for a crime committed in prison, was entitled to
accrue worktime credits at the standard rate rather than the
reduced rate that had applied to his original sentence because it
was a violent felony. The court held that because he was no
longer serving time for a violent offense, he was not subject to the
prior limitation. (Ibid.) Using Tate, respondent in Trejo
attempted to argue that the defendant was required to serve the
additional sentence for his in-prison offense because it was
treated as a new principal term that could not be credited against
an indeterminate term. Rejecting this argument, Trejo
explained, “[h]owever reasonable this argument may be in a case
not subject to section 3051, it ignores both the underlying
purpose and the text of the youth offender parole statute. The
parole eligibility date determined under section 3051, as we have
said, is based on the longest sentence imposed upon the inmate
by ‘any’ sentencing court, ‘supersed[ing] the statutorily mandated
sentences’ of the youth offenders to whom sections 3051 and 3046
apply.” (Trejo, supra, 10 Cal.App.5th at p. 988 [quoting Franklin,
supra, 63 Cal.4th 261].)

      5. The Windfall Argument

      Finally, the Trejo court rejected respondent’s argument
that failing to apply section 1170.1 subdivision (c) would provide
youth offenders with a windfall. The court explained there was
no windfall because the Board would necessarily take in-prison




                                11
offenses into account in determining the degree of risk an inmate
posed to the public and the extent of a youth offender’s growth
and maturity. (Trejo, supra, 10 Cal.App.5th at p. 988.)
      In sum, Trejo examined the plain text of the juvenile
offender parole statute, the purpose of the statute, and the
Department’s own website describing the operation of the statute
and concluded that a youth offender found suitable for release on
parole pursuant to section 3051, was not required, before being
released, to serve a consecutive sentence imposed for a crime he
committed in prison at age 20. (Trejo, supra, 10 Cal.App.5th at
p. 975.)

   C. Williams Is Entitled to be Released on Parole

      1. Trejo Compels the Conclusion that Williams Be Released
         on Parole

      Discussing section 3051, Trejo explained, “[t]his statutory
scheme, designed to effectuate the constitutional prohibition
against excessive punishment of youthful offenders, would be
thwarted if a youth offender found suitable for parole pursuant to
section 3051 was required to remain in custody due to a
consecutive sentence for an in-prison offense.” (Trejo, at p. 987.)
      Respondent argues that the reasoning of Trejo does not
apply to Williams because he was no longer a juvenile when he
committed the in-prison offense of battery. We disagree. While
footnote 7 in Trejo states that the opinion does not address the
application of section 1170.1, subdivision (c) to youth offenders
who commit in-prison crimes at age 26 or older, that issue was
not before the court. Trejo’s reasoning, however, adheres with
equal force here. Trejo’s examination of the plain text of section
3051 in concert with its legislative purpose persuades us that




                                12
section 3051 overrides sentences for all in-prison offenses not
expressly excluded by operation of the statute. The opinion’s
language and reasoning provide a cogent understanding of the
legislative scheme and its constitutional mandate, and support
the conclusion that the age at which the juvenile offender
commits the in-prison offense is not a disqualifying factor. We
agree with Trejo’s analysis and extend it to the facts here.
       A more recent Court of Appeal decision agrees as well. (In
re Jenson, 2018 Cal.App.LEXIS 527 (Second Appellate District,
Division Three, June 6, 2018) (Jenson).) In Jenson, the court held
that a youth offender granted parole was not required to serve a
consecutive five-year term for an in-custody offense committed
when he was age 29. The court explained: “while Trejo’s holding
necessarily is limited to its facts, we discern nothing in the
court’s thoughtful statutory analysis that would not apply equally
to defendants who commit in-prison crimes as adults.” (Id. at
p.*17.)
       Finally, Respondent’s contrary interpretation raises grave
constitutional concerns. If accepted, Respondent’s view would
deprive youthful offenders such as Williams of the meaningful
opportunity to obtain release from prison required in Franklin,
an opportunity that allows a proper balance in sentencing that is
consistent with the constitutional limits prescribed by the United
States Supreme Court and the Califorinia Supreme Court. We
decline to interpret section 3051 in a fashion that gives rise to
potential constitutional issues. (Frye v. Tenderloin Housing
Clinic, Inc. (2006) 38 Cal.4th 23, 42–43, 129 P.3d 408, 419
[holding that statutes are interpreted so as to avoid the
conclusion that the Legislature intended to enact an
unconstitutional statute]; Korea Supply Co. v. Lockheed Martin




                               13
Corp. (2003) 29 Cal.4th 1134, 1146 [presuming that the
Legislature does not intend to enact unconstitutional provisions];
see also Ashwander v. Valley Authority (1936) 297 U.S. 288, 348,
[56 S.Ct. 466, 80 L.Ed. 688]; People v. Davenport (1985) 41 Cal.3d
247, 264 [construing statutory language so as to avoid serious
constitutional questions].)
       As discussed above, subsection (h) of section 3051 excludes
inmates who are convicted of in-prison offenses after reaching age
26 from the benefits of the statute only if their additional crime
has as a necessary element malice aforethought or is a crime for
which the sentence is life in prison. No other adult in-prison
crimes are listed as disqualifying an inmate from the benefits of
section 3051; this court may not infer additional exemptions not
enumerated. Because Williams was convicted of the in-prison
crime of battery—which neither includes malice as an element,
nor is punished by a term of life in prison—after reaching age 26,
the statute provides him relief, and he cannot be required to
serve the additional eight-year term.

      2. Williams Is Suitable for Release on Parole

      On December 29, 2016, the Board conducted Williams’
juvenile offender parole hearing and found Williams suitable for
release. The Board explained that because Williams was 21
years old when he committed the commitment offense, it gave
“great weight to the diminished culpability of juveniles as
compared to adults, the hallmark features of youth, and any
subsequent growth and maturity in reviewing an inmate’s
suitability for parole pursuant to Penal Code section 3041.5.”
The Board stated that it “look[ed] at the fact that 25 years have
passed and many of the circumstances that tend to show




                                14
suitability pursuant to Title 15, Section 2402, Subdivision (d) are
present in this case.” The Board was “satisfied that [Williams]
had shown signs of remorse and accepted responsibility for [his]
crime.” They also stated: “We did look at your disciplinary record
and we took into consideration your lack of violence-related
infractions since 2000 and we observed the upward trend, the
positive trend in self-discipline and self-control.” Having
considered Williams’ controlling offense, his disciplinary record,
Williams’ age of incarceration, 21, and present age, 48, they also
concluded the probability of recidivism was reduced. Although
the Board cautioned Williams at the end of the hearing that
“[j]ust keep in mind this is a tentative decision and you’ve got a
Thompson term I think you have to serve[,]” it was clear that the
Board had considered Williams in-prison conviction in deciding
that “Williams would not pose a potential threat to public safety.”
       This demonstrates that Williams’ commission of an in-
prison crime was expressly considered in the parole decision. As
explained in Trejo: “It is obvious, however, that in considering a
youth offender’s suitability for parole release, commission of an
in-prison offense after age 23 would weigh against finding the
inmate had rehabilitated and gained maturity so as to warrant
release pursuant to section 3051.” (Trejo, supra, 10 Cal.App.5th
at p. 987, fn. 7.) We agree with the principle that section 3051
renders a person’s Thompson offense a factor to be considered by
the Board, even though it will not result in a consecutive
sentence that must be served before release. Any other reading
of section 3051 would thwart its legislative purpose.
       The Board in Williams’ case weighed his in-prison offense
in the manner described and nonetheless found Williams suitable
for parole. Requiring him to serve an additional eight-year term




                                15
would undermine the purpose of section 3051 and its
constitutional underpinnings. Based on these principles, we
conclude that Williams was entitled to release when his parole
became effective on April 24, 2017, despite the consecutive eight-
year term imposed for his in-prison conviction in 1996.

      3. Williams’ Period of Parole Must Be Reduced by the
         Amount of Time He Has Served Since Being Found
         Suitable for Release

      Williams asserts that he is entitled to have his period of
supervised release reduced by the amount of time he has been in
prison after he was found suitable for parole on April 24, 2017.
The petitioner in Trejo made the same argument Williams makes
here. There, the court concluded that because the parole
provisions of section 3051 superseded petitioner’s otherwise
statutorily mandated sentences, “[p]etitioner’s continued
confinement to serve the consecutive sentence imposed under
section 1170.1, subdivision (c), was not lawful in the
circumstances of this case, and he is entitled to credit against his
parole period.” (Trejo, supra, 10 Cal.App.5th at p. 991.) The
same is true in this case.




                                16
                          DISPOSITION

       Relief is granted. Respondent is ordered to amend
petitioner’s release date to April 24, 2017, to release petitioner on
parole, and to deduct from his parole period the days of
incarceration served beyond that date.
       Good cause appearing, this decision shall be final as to this
court in five days. (Cal. Rules of Court, rule 8.387(b)(3)(A).)




                                      ZELON, J.



We concur:


      PERLUSS, P. J.



      FEUER, J.





      Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                 17
