YVONNE GONZALEZ ROGERS, District Judge.
Plaintiff Troy Richardson brings this action pursuant to 42 U.S.C. section 1983 and the statutory and common law of the state of California alleging that defendants California Department of Corrections and Rehabilitation ("CDCR") and the individual CDCR employees named. Plaintiff alleges that he was released from prison after serving the prison sentence allotted to him by the applicable Court orders, rules, and regulations, but was reincarcerated wrongly and treated as an escaped prisoner. (See operative Third Amended Complaint, Dkt. No. 57.) At the request of the parties, the Court permitted limited, early cross-motions for partial summary judgment on the issue of the correct release date. (See Order Vacating Trial and Pretrial Deadlines, Dkt. No. 79.)
Plaintiff filed his motion for partial summary judgment on October 21, 2019 (Dkt. Nos. 81-84) seeking adjudication of the correct calculation of plaintiff's resentencing and a determination that, as a matter of law, CDCR re-calculated plaintiff's sentence on September 12, 2016, without legal authority to do so. Defendants CDCR, Gipson, Hatton, Pina, Weeks, Castaneda, Marion, Montoya, Quintero, Johnston, Lebard, Davis, Beeson, Moreno, Burris, Bomgardner, Ouye, Alfaro, Fernandez, Bautista, Bjorgum, Rios, Allison, Cullen, Gold, Kunz, Jones, Macomber, White, and Smalley (collectively, "defendants") filed their cross-motion for summary adjudication on November 4, 2019 (Dkt. No. 91) contending that plaintiff's entire incarceration was lawful and therefore all of plaintiff's claims fail as a matter of law.
Having carefully considered the papers submitted in support of and in opposition to the motions, the admissible evidence in the record,
Plaintiff was charged with crimes in connection with a robbery that occurred on October 21, 2011. Plaintiff was taken into local custody technically as of October 25, 2011. On May 24, 2012, plaintiff pleaded guilty and was sentenced by the Honorable Michael N. Garrigan to ten years in prison—five years for his plea of guilty to second-degree robbery plus a five-year enhancement for his admission to a prior "strike" conviction. (Shyrock Decl. Exh. 1.) All remaining charges against Plaintiff were dismissed.
On April 22, 2013, plaintiff was re-sentenced by the Honorable Franklin M. Stephenson as a result of a deal plaintiff reached with the prosecutor to reduce his sentence by approximately one year based on plaintiff's cooperation in an unrelated case. (Shryock Decl. Exh. 2.) The transcript of the sentencing hearing states that Judge Stephenson ordered that plaintiff be given "actual days credit, pursuant to the agreement of the parties in court, of 863 actual days, 132 good time credits, for a total of 993 (sic) days credit for time served." (Id. at 3:27-4:1, "sic" notation in original transcript.) The AOJ dated April 23, 2013 states, at line 8, "STIPULATED THAT DEFT. RECEIVE CTS IN THE AMOUNT OF 863 DAYS" and the boxes on the bottom of the form state "credit for time spent in custody Total days: 993 included: actual local time: 863 local conduct credits: 130." (Helbraun Decl. Exh. C.)
On September 23, 2014, a CDCR Records Analyst in CDCR's Legal Processing Unit ("LPU") wrote to Judge Stephenson, seeking clarification of two issues related to the April 23, 2013 AOJ: (1) the number of pre-sentence credit days; and (2) the five-year enhancement was not a term authorized by Penal Code section 12022.5(a). The CDCR Records Analyst stated that the court had "granted too many actual days" credits when it gave plaintiff 863 total days, since plaintiff had not been in custody 863 actual days, but only 549.
(Id.) As to the second issue, the CDCR Records Analyst noted that the April 23, 2013 AOJ gave a five-year enhancement under Penal Code section 12022.5(a), but the statute only allowed for enhancements of 3, 4, or 10 years. (Id.)
On October 23, 2014, Judge Stephenson set a new hearing regarding the enhancement question and issued an amended AOJ which recited the sentencing date as April 22, 2013, reset total days credits to 392, the actual local time as 212 and the local conduct at 180 nunc pro tunc as they had appeared on the original June 6, 2012 AOJ. (Helbraun Decl., Exh. E.)
On December 22, 2014, Judge Stephenson held a further sentencing hearing. (Shryock Decl. Exh. 3.) At the hearing, Judge Stephenson and the parties discussed the sentencing issue. Jacobsen, counsel for plaintiff in those proceedings, stated:
(Id. at 3:9-4:27.) The new AOJ issued December 26, 2014, indicated "credit for time spent in custody total days: 1,510, actual local time 1,313 and local conduct credits: 197." (Helbraun Decl. Exh F.) The minutes from that hearing state:
(Id.)
On January 22, 2015, CDCR noted on plaintiff's "Inmate Record Summary" that it had "received amended AOJ from San Joaquin Co. case #SF116798A granting additional pre-sentence credits," and "EPRD recalculated to reflect change." (Id., Exh. K at 15, emphasis supplied.) On or about December 21, 2015, a "Release Program Study" packet was generated by CDCR stating that Plaintiff's Earliest Possible Release Date or "EPRD" was July 14, 2016. (Id., Exh. L.) On that same date, plaintiff signed CDCR Form 1515 stating that he would be "released to parole supervision effective July 14, 2016." (Id., Exh. L.)
On February 27, 2015, a CDCR Records Analyst sent a letter to the Chief Assistant Attorney General for the Criminal Division enclosing the September 23, 2014 letter previously sent to Judge Stephenson. (Helbraun Decl. Exh G.) The letter states:
(Id.) The record herein does not indicate that the Attorney General's office responded to this referral.
According to CDCR records, CDCR performed 60-day and 10-day audits of plaintiff's release date on May 26, 2016 and July 1, 2016, respectively, in which CDCR recalculated the release date and each time confirmed plaintiff's scheduled release date for July 14, 2016. (Id., Exh. M; Exh. K at 17.)
Plaintiff was released on parole on July 14, 2016. (Id., Exh. K at 17.)
At 1:03 p.m. on September 12, 2016, CDCR Records Analyst Corinne Bjorgum sent an email to some 28 or so other CDCR staff stating that "On 7/14/2016, Richardson was released from Salinas Valley State Prison to San Francisco 4, 923 days early" and "the calculated release date should be 1/23/2019." (Id., Exh. N, emphasis supplied.)
(Id.) At the end of the email, Bjorgum stated: "I have requested the immediate issuance of an Early Release Warrant (PC5054.1) via the Warrant Unit. Once taken into custody, please provide me with an email notification." (Id.)
An hour after Bjorgum sent her email on September 12, 2016, CDCR Records Analyst Jose Tovar faxed a letter to Judge Stephenson. (Id., Exh. O.) The letter was dated September 12, 2016, and the subject line stated, in part:
(Id., emphasis supplied.) The letter read, in part:
(Id., emphasis in original.) The fax cover page stated:
"******PLEASE EXPEDITE DEFENDANT MAY STILL OWE PRISON TIME *****" (Id.)
That same day, an abstract of judgment (dated September 12, 2016) was entered by Judge Stephenson. (Id., Exh. P.) The notation on Line 8 ("CTS [credit for time served] in the amount of 863 days") was deleted, and the AOJ was otherwise identical to the one that had been issued December 26, 2014. (Id., Exh. F, Exh P.) The September 12, 2016 AOJ stated the "date the sentence was pronounced" as "04-22-13" and total credits for time spent in custody of 1,510 days including actual local time of 1,313 and local conduct credits of 197. (Id.)
On September 12, 2016, Richardson was seized and returned to CDCR custody pursuant to the warrant directed by Bjorgum. The record on this motion indicates that Richardson was reincarcerated and in custody at San Quentin from September 15, 2016, to June 2, 2017, at which time he was transferred for a court appearance. (Id., Exh. K at 7.) On June 5, 2017, Richardson was resentenced in San Joaquin Superior Court by the Honorable Ronald Northrup based upon the stipulation of counsel to "2,860 actual days credit with 429 Good Time/Work Time credit for a total of 3,289 days" such that all Richardson's sentence was deemed served and he was released from custody. (Id., Exh. Q.)
Under California Penal Code
CDCR calculates an inmate's release date based upon the information provided by the court in the abstract of judgment. The maximum release date is the date of release based upon the full term imposed by the court, taking into consideration pre- and post-sentence credits, including vested credit. See 15 Cal. Code Regs. § 3371.1(c)(3)(B).
California Penal Code section 1170(d)(1) provides that the court may "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (emphasis supplied). Section 1170(d)(1) further provides that "[t]he court resentencing under this paragraph may reduce a defendant's term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice." "Where a defendant has served any portion of his sentence under a commitment based upon a judgment . . . modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." Cal. Penal Code § 2900.1. "It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited. . . ." Cal. Penal Code § 2900.5(d); see also Cal. Code Regs. tit. 15, § 3043.1 ("Credit applied prior to sentencing is awarded by the sentencing court pursuant to sections 2900.1, 2900.5, 2933.1, and 4019 of the Penal Code.")
The regulations regarding computation of the term of incarceration and release date in effect at the time of plaintiff's offense stated, in pertinent part:
(Helbraun Decl., Exh. S [excerpts of Cal. Code of Regs.]); see also 2013 CA REG TEXT 321370 (NS) (noting no change to 15 CCR § 3371.1 subsection (d) as part of the 2013 amendments).
A sentencing order may not be modified other than through due process. In re Williams, 83 Cal.App.4th 936, 942 (2000), as modified on denial of reh'g (Oct. 18, 2000). Thus, the California Court of Appeal in Williams held:
Id. (internal citation omitted). Neither CDCR's recommendation that a sentence should be corrected, nor a trial court's adoption of that recommendation, comports with due process in the absence of a notice and opportunity to be heard. Id.
Further, CDCR "does not determine and award pre[-]sentence credits; the sentencing court does." People v. Brown, 54 Cal.4th 314, 321 (2012), as modified on denial of reh'g (Sept. 12, 2012). Thus, in Tinker, the California Court of Appeal rejected the argument CDCR had the authority to calculate or grant credits pursuant to former section 2933, holding that "it is the trial court, not the CDCR, that is positioned to determine whether a defendant is entitled to conduct credit for the period of local presentence confinement." People v. Tinker, 212 Cal.App.4th 1502, 1509 (2013) ("defendant was entitled to have the trial court credit him with the conduct credit authorized by former section 2933, subdivision (e).")
The CDCR "Application of Credits for Cases That Have Been Resentenced Handbook" states "[h]ow the Court applies credits at the resentence hearing determines how the CCRA [Correctional Case Records Analyst] will process each individual case." (Helbraun Decl., Exh. H at 3.) "[W]hat the Court indicates as credits will determine if it is necessary to change the term starts date or if the term starts date remains the same." (Id. at 4.) The Handbook discusses three different general scenarios and whether the "Term Starts Date" should be changed, depending on the circumstances:
(Id. at 4-6, emphasis supplied.)
The Handbook directs that "[w]hen, after researching the credits, it cannot be determined how the court arrived at the amount of credit awarded, apply the total credits according to the court order." (Id. at 6.) The Handbook provides that "[w]hen too much CDCR worktime credit is awarded, refer to LPU only if there is more than 60 days of excessive credit." (Id.) The Handbook reiterates that "[w]hen a case is referred to the LPU for excessive credits, the amount of credit awarded by the court shall be applied until such time that an amended court order is received." (Id. at 6.)
Plaintiff contends that CDCR acted unlawfully when it recalculated his sentence two months after his release in July 2016. The December 2014 AOJ did not allocate any of his credited time to time in CDCR custody. Even after CDCR wrote to the sentencing judge to correct the December 2014 AOJ, the only revision ordered by the court did not change the way any of the credits were allocated. Citing Brown and Tinker, plaintiff contends that CDCR was required to treat all of plaintiff's time credits as local, pre-sentence credits under Penal Code 4019 and apply them without resetting the Term Starts Date. Plaintiff argues that the court did not award any CDCR credits that arguably would be counted twice. And, to the extent that any of the time credited by the court was incorrect, CDCR was obligated to seek a correction from the court rather than change the calculation of time to be served on its own.
Defendants counter that, when CDCR calculated the release date as July 14, 2016, its failure to change the "Term Starts Date" from April 22, 2013 to December 22, 2014 meant that plaintiff incorrectly received credit for the time he served in CDCR between those dates twice. As a result, he was released more than two years too early, an error that was only caught in September 2016 when CDCR Analyst Bjorgum audited his file. CDCR contends that it is proper for a sentence to be audited and recalculated, even after the subject has been released from custody. All 1,510 credits were applied here when the recalculation was done — the only change was adjusting the "Term Starts Date" so that there was no double-counting of credits for time in CDCR custody.
Bjorgum testified that when she examined the credits as stated on the December 2014 AOJ, she did not take into account that Richardson had been given credits for cooperation with the District Attorney. (Helbraun Supp. Decl., Dkt. No. 96-2, Exh. W at 233:23-234:10.) Defendants have not offered the details of the actual calculation on which Bjorgum based her email and CDCR caused the reincarceration warrant to issue.
Based upon the record presently before it, the Court concludes that plaintiff's correct earliest possible release date, taking into account the credits awarded on the December 2014 AOJ, and the extent to which they overlap or double-count plaintiff's CDCR actual time in custody would have been approximately February 10, 2019. This differs from the calculation CDCR used to seek a reincarceration warrant, but only minimally and in plaintiff's favor. Plaintiff was released some 940 days earlier than he should have been because the prior earliest possible release date of July 14, 2016 was calculated in error. The Court's reasoning is as follows:
For the foregoing reasons, both sides' motions for partial summary judgment are
Nevertheless, as a matter of law, the Court finds that, based upon the record presently before it, plaintiff's earliest possible release date was February 10, 2019. The Court does not reach the questions of whether CDCR was authorized to make this determination prior to obtaining clarification of the abstract of judgment from the sentencing judge, whether defendants are liable for the claims alleged by plaintiff based on the calculation, or whether defendants may avoid liability based upon qualified immunity or any other defense.
The Court previously ordered that plaintiff must file an amended complaint no later than January 10, 2020. (See Dkt. No. 106.) In light of the Court's ruling herein, the Court extends plaintiff's deadline to file an amended complaint to
The Court
This terminates Docket Nos. 81 and 91.
(Helbraun Supp. Decl. at Exh. X, LPU referral dated 4/29/13 referred by K. Gutierrez.) The memo indicates the analyst identified "211 excess court credits." (Id.) The document demonstrates that CDCR did not account for the cooperation credits awarded in its breakdown.
Similarly, the September 23, 2014 CDCR letter to Judge Stephenson stated the court had "granted too many actual days" credits when it gave plaintiff 863 total days, since plaintiff had only been in custody 549 days. (Helbraun Decl., Exh. D.) This subsequent letter shows that CDCR continued to disregard the reason for the change in credits in the April 2013 resentencing, i.e., the 314 days credited at that time based upon plaintiff's cooperation, which precisely explained the discrepancy (i.e., 836-549=314).
