In re Jenson ( 2018 )

Filed 6/6/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re No. B286056
RONALD E. JENSON, (Super. Ct. No. BH011167)
on
Habeas Corpus.
Petition for writ of habeas corpus. Relief granted.
Marilee Marshall, under appointment by the Court of
Appeal, for Petitioner.
Xavier Becerra, Attorney General, Phillip J. Lindsay,
Assistant Attorney General, Julie A. Malone, Jill Vander Borght,
and Jennifer O. Cano, Deputy Attorneys General, for
Respondent.
_________________________
In 1979, when Ronald Jenson was 19 years old, he
committed first degree felony murder, for which he was convicted
and sentenced to 25 years to life, plus two years. During his first
nine years of incarceration, Jenson committed three additional
in-prison crimes, for which he was convicted and sentenced. But,
for the last almost 30 years, he has remained crime-free.
In 2016, the Board of Parole Hearings (the Board) found
Jenson suitable for release on parole at a youth offender parole
hearing conducted under Penal Code1 section 3051. However, the
California Department of Corrections and Rehabilitation (CDCR)
did not release Jenson, and instead ordered him to serve an
additional sentence for his in-prison offenses.
Jenson has petitioned this court for a writ of habeas corpus,
urging that he is being illegally held. We agree, and thus we
order his release.
BACKGROUND
A. Jenson’s Felony Murder Conviction and Subsequent
In-Prison Felonies
In 1979, when Jenson was 19 years old, he committed first
degree felony murder, for which he was convicted and sentenced
to 25 years to life, plus two years for firearm use. (§§ 187, subd.
(a), 12022.5, subd. (a).)2
While he was incarcerated, Jenson was convicted of three
in-prison felonies: prison escape and possession of a weapon, in
1980 when Jenson was 21 years old (§§ 4530, 4502); and assault
with a deadly weapon on a peace officer, in 1989 when he was
29 years old (§ 245, subd. (b)). Pursuant to section 1170.1,
subdivision (c) (hereafter, section 1170.1(c)), Jenson was
sentenced to three additional consecutive prison terms, known as
1 All further undesignated statutory references are to the Penal
Code.
2 The jury also found Jenson guilty of two counts of attempted
robbery and found true firearm enhancements. The court imposed but
stayed sentences on those counts.
2
“Thompson terms,”3 for the in-prison offenses: sixteen months for
the escape, one year for the weapon possession, and five years for
the assault with a deadly weapon.
Jenson is now 58 years old. He has not committed a crime
since 1989, and he has not been disciplined for a “serious rule
violation” in more than 17 years.4
B. Youth Offender Parole Hearing; Grant of Parole
Jenson became eligible for parole in 1997. He was denied
parole four times between 1997 and 2014. At his fifth hearing in
2014,5 the Board recommended parole, but the Governor reversed
the Board’s decision.6
3 In re Thompson (1985) 172 Cal. App. 3d 256, 260, held that when
a court imposes consecutive terms for felonies committed while a felon
is confined in a state prison, “such terms shall commence from the time
such person would otherwise have been released from prison.”
4 Jenson did receive “counseling chronos” in 2007 (for ignoring an
order to “return to the single line”); 2009 (for refusing to answer a
supervisor’s question); and 2010 (for failing to show identification in
the chow hall).
5 The 2014 parole hearing does not appear to have been held
under section 3051 or to have considered the factors in that section.
6 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 to reverse
or to modify the Board’s parole decision. (§ 3041.2, subds. (a), (b).)
3
In 2013, the Legislature passed Senate Bill No. 260, which,
among other things, added section 3051 to the Penal Code.
Section 3051 entitles certain prisoners who committed
“controlling offenses” under the specified age of eligibility to
youth offender parole hearings and to a “meaningful opportunity
for release.”
In 2016, the Board conducted a youth offender parole
hearing and once again found Jenson suitable for release. In
announcing its suitability determination, the Board noted several
factors that weighed against suitability, namely that Jenson had
committed “an atrocious and cruel act” that “resulted in the
death of a human being;” had been convicted of three additional
in-prison offenses; had “amassed some 48 115s [CDCR
disciplinary reports],” some of which were “serious and violent,
stabbing people, spitting on staff, fighting with inmates,
attempting to stab staff, possession of weapons;” and had never
admitted participating in the commitment offense.7
Notwithstanding these factors, the Board found Jenson suitable
for parole: “[W]e know . . . those are things now in the rearview,
and in a distant rearview for you. Given that you’ve been
7 As the dissent notes, at the 2016 parole hearing, Jenson denied
committing the 1979 murder. Jenson admitted, however, that he
stabbed and “almost killed” an officer in 1989. It was the realization
that he could have taken a life that caused him to begin addressing his
anger. Moreover, Jenson readily admitted that he had committed a
variety of crimes before his 1980 conviction, and that had he not been
incarcerated, he “most likely . . . would have continued” to “commit
crimes.” Accordingly, the Board noted that while Jenson had “denied
the [commitment crime,] which [was his] right to do,” he had admitted
his “antisocial and tumultuous social history,” including a lengthy
juvenile record, and had not “minimize[d] [his] criminality in the past.”
4
incarcerated 37 years and stayed violation-free for now some
17 years, that’s a chunk of time that you’ve distanced yourself
from that other human being—[¶] . . . [¶]—that you were. And it
was in fact, a different human being[,] because we see an
individual that is soft-spoken, insightful, reflective here
today. . . . You were a mere 19 years old when you committed
this life crime. A lot of the factors of [Senate Bill No. 260] are
applied here . . . [including] your childhood of being [in] foster
care and molestations, not believing or not trusting adults,
leading to the way your thought process worked back then. So,
and now you’re almost to the age of elderly parole, that’s how
much time you served in prison. So the age in and of itself does
reduce the recidivism rates. But I think more to do with that is
how you changed your mannerisms, how you changed your
philosophy and life since the time in . . . [1989], where you
reflected that act almost took another human being’s life. Since
your incarceration, you have in the last about 20 years let’s say,
have had positive work assignments, positive performance
ratings . . . . You received your GED in 2000, vocational training
in graphic arts and janitorial. You have been involved in
numerous self-help and self-study programs . . . [and] you were
able to verbalize and demonstrate why you did what you did,
what changes you have made throughout the years, and what
tools you have garnered to safeguard against repeating those past
mistakes.” Thus, the Board found Jenson no longer posed a risk
of danger to society and was suitable for parole.
5
C. Jenson’s Continued Incarceration
Despite the Board’s suitability finding, the CDCR did not
release Jenson, but instead required him to serve his Thompson
term.8 The CDCR has calculated that his earliest possible
release date is December 11, 2018, and his maximum release
date is September 9, 2021.
Jenson sought a writ of habeas corpus from the superior
court, which found that section 1170.1(c) mandated he serve his
Thompson term for the 1989 assault. Jenson filed a petition for
writ of habeas corpus in this court, and we issued an order to
show cause.
CONTENTIONS
The dispute over Jenson’s release date implicates two
different provisions of the Penal Code: (1) section 1170.1(c),
which governs sentences for in-prison felonies; and (2) section
3051, which gives individuals sentenced for certain crimes
committed under the age of 26 a “meaningful opportunity for
release” from prison after serving 15, 20, or 25 years.
Jenson contends that the two statutory provisions are
fundamentally inconsistent as they apply to him. He therefore
urges that section 3051—as the later-enacted and more specific
statute—necessarily supersedes section 1170.1(c). The Attorney
General disagrees, contending that the two statutes are not
fundamentally inconsistent, and so both must be given effect.
8 According to the Attorney General, Jenson’s remaining term has
been recalculated to reflect only the five-year Thompson term for the
in-custody offense committed in 1989.
6
As we now discuss, we conclude that sections 3051 and
1170.1(c) are irreconcilable as they apply to a youth offender who
commits an additional crime in prison after the age of 26, because
section 3051, which specifically addresses youth offenders,
dictates that the youth offender be immediately released upon
being found suitable for parole. In contrast, section 1170.1(c)
would require the same youth offender to serve any applicable
Thompson term even after being found suitable for release.
Because section 3051 is both later-enacted and more specific, we
conclude that section 3051 supersedes section 1170.1(c).
Therefore, Jenson need not serve his Thompson term and is
entitled to be released from prison.
I.
Principles of Statutory Interpretation
and Standard of Review
We begin by outlining the principles that govern our
review. “We review questions of statutory construction de novo.
Our primary task ‘in interpreting a statute is to determine the
Legislature’s intent, giving effect to the law’s purpose. [Citation.]
We consider first the words of a statute, as the most reliable
indicator of legislative intent. [Citation.]’ [Citation.] We
construe the statute’s words in context, harmonizing statutory
provisions to avoid absurd results. [Citation.] If the statutory
text is susceptible to more than one reasonable construction, we
may consider extrinsic aids such as legislative history to facilitate
our interpretative analysis.” (California Building Industry Assn.
v. State Water Resources Control Bd. (2018) 4 Cal.5th
1032, 1041.)
7
Wherever reasonably possible, a court must “ ‘ “harmonize
statutes, reconcile seeming inconsistencies in them, and construe
them to give force and effect to all of their provisions.” ’ ” (State
Dept. of Public Health v. Superior Court (2015) 60 Cal. 4th 940,
955.) “ ‘ “ ‘Accordingly, they “must be read together and so
construed as to give effect, when possible, to all the provisions
thereof.” ’ ” ’ ” (Ibid.) However, “the requirement that courts
harmonize potentially inconsistent statutes when possible is not
a license to redraft the statutes to strike a compromise that the
Legislature did not reach.” (Id. at p. 956.) Thus, if the statutory
language compels the conclusion that the statutes are in conflict,
“one must be interpreted as providing an exception to the other.”
(Ibid.) “The rules we must apply when faced with two
irreconcilable statutes are well established. ‘If conflicting
statutes cannot be reconciled, later enactments supersede earlier
ones [citation], and more specific provisions take precedence over
more general ones [citation].’ (Collection Bureau of San Jose v.
Rumsey (2000) 24 Cal. 4th 301, 310 [99 Cal. Rptr. 2d 792, 6 P.3d
713] (Rumsey).)” (State Dept. of Public Health, at p. 960; see also
People v. Adelmann (2018) 4 Cal.5th 1071, 1079.)
With these principles in mind, we turn to the language of
the statutes at issue.
II.
The Statutory Scheme
A. Section 1170.1
Section 1170.1, enacted in 1976, governs consecutive terms
of imprisonment. As is relevant here, subdivision (c) provides
that when a prisoner is sentenced to a consecutive term for a
felony committed in state prison, “the term of imprisonment for
all the convictions that the person is required to serve
8
consecutively shall commence from the time the person would
otherwise have been released from prison.” For prisoners serving
indeterminate terms, the consecutive sentence for in-prison
offenses begins on the date the prisoner is found suitable for
parole, not the date he or she completes his base term. (In re
Coleman (2015) 236 Cal. App. 4th 1013, 1016–1022.)
B. Section 3051
In a series of cases, our high courts have recognized that
“children are constitutionally different from adults for purposes
of sentencing” because of their diminished culpability and greater
prospects for reform. (Miller v. Alabama (2012) 567 U.S. 460, 471
[132 S. Ct. 2455].) Hence, the Eighth Amendment’s prohibition on
cruel and unusual punishment has been held to prohibit
imposition of the death penalty on juveniles (Roper v. Simmons
(2005) 543 U.S. 551); life without possibility of parole (LWOP) on
juveniles who commit nonhomicide offenses (Graham v. Florida
(2010) 560 U.S. 48); mandatory LWOP on juveniles (Miller,
supra, 567 U.S. 460); de facto LWOP on juvenile nonhomicide
offenders (People v. Caballero (2012) 55 Cal. 4th 262); and a
sentence of 50 years to life for juvenile nonhomicide offenders
(People v. Contreras (2018) 4 Cal.5th 349, 356).
In line with this evolution in how we think about and treat
youth offenders, our Legislature enacted Senate Bill No. 260 in
2013 to implement the limitations on juvenile sentencing
articulated in these cases. In adopting Senate Bill No. 260,
which added section 3051 and amended sections 3041, 3046, and
4801, the Legislature explained that “youthfulness both lessens a
juvenile’s moral culpability and enhances the prospect that, as a
youth matures into an adult and neurological development
occurs, these individuals can become contributing members of
9
society.” (Stats. 2013, ch. 312, § 1.) Thus, the bill’s purpose was
“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.” (Ibid.)
To this end, section 3051 provides that an offender who
committed a “controlling offense” as a youth is entitled to a
“youth offender parole hearing” after a fixed period of years set
by statute. The “controlling offense” is “the offense or
enhancement for which any sentencing court imposed the longest
term of imprisonment.” (§ 3051, subd. (a)(2)(B).)
As originally enacted, section 3051 applied only to non-
LWOP offenses committed before the offender was 18 years old.
(Stats. 2013, ch. 312 (S.B. 260), § 4.) An amendment effective
January 1, 2016 raised the age of eligibility to 23 years; and an
amendment effective January 1, 2018 raised the age of eligibility
to 25 years and included LWOP offenses committed before age
18. (Stats. 2015, ch. 471 (S.B. 261), § 1; Stats. 2017, ch. 675 (A.B.
1308), § 1; Stats. 2017, ch. 684 (S.B. 394), § 1.5.) Thus, section
3051 now provides that an offender who committed a “controlling
offense” under the age of 26 is entitled to a “youth offender parole
hearing” during his 15th year of incarceration if he received a
determinate sentence; during his 20th year of incarceration if he
received a life term of less than 25 years to life; and during his
25th year of incarceration if he received a term of 25 years to life.
(§ 3051, subd. (b)(1)–(3).) An offender convicted of a controlling
offense committed before the age of 18 for which he was
sentenced to LWOP is entitled to a youth offender parole hearing
during his 25th year of incarceration. (§ 3051, subd. (b)(4).)
10
The statute defines a youth offender parole hearing as
“a hearing by the Board of Parole Hearings for the purpose of
reviewing the parole suitability of” youth offenders. (§ 3051,
subd. (a)(1).) At the hearing, the Board is required to afford the
youth offender “a meaningful opportunity to obtain release,”
taking into consideration “the diminished culpability of youth as
compared to that of adults, the hallmark features of youth, and
any subsequent growth and increased maturity of the individual.”
In an appropriate case, the Board “shall release the individual on
parole as provided in Section 3041.”9 (§ 3051, subds. (d), (e),
(f)(1).)
Section 3051 excludes several categories of youth offenders:
offenders sentenced under the Three Strikes law (§§ 667, subds.
(b)–(i), 1170.12); sex offenders sentenced under Jessica’s Law
(§ 667.61); offenders sentenced to LWOP for controlling offenses
committed after age 18; and individuals to whom the section
would otherwise apply, “but 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).)
9 Section 3041 concerns parole release dates. Subdivision (a)(4) of
that section provides, “Upon a grant of parole, the inmate shall be
released subject to all applicable review periods. However, an inmate
shall not be released before reaching his or her minimum eligible
parole date as set pursuant to Section 3046 unless the inmate is
eligible for earlier release pursuant to his or her youth offender parole
eligibility date.”
11
In sum, section 3051 applies to someone who (1) commits a
controlling offense when he or she is under the statutory age of
eligibility, and (2) does not fall under one of the exclusions in
subdivision (h).
C. Application of These Statutes to Jenson
It is undisputed that Jenson was sentenced to a consecutive
term for a felony committed while he was in state prison, within
the meaning of section 1170.1(c). It also is undisputed that
Jenson committed his controlling offense when he was 19 years
old and does not come within any of the exceptions to section
3051—that is, he is not a third striker or a sex offender, was not
sentenced to LWOP, and did not after age 26 commit a malice
aforethought or life crime. (§ 3051, subd. (h).) As such, he
unquestionably was entitled to a youth offender parole hearing
under section 3051 and was eligible for parole on his commitment
offense.
The question before us, therefore, is whether having been
granted parole, Jenson must serve his Thompson term before
being released from prison, as directed by section 1170.1(c), or is
entitled to immediate release from prison, as directed by section
3051. We turn to that issue.
III.
Section 3051 Supersedes Section 1170.1
With Regard to Youth Offenders Who Commit
In-Prison Crimes As Adults
A. In re Trejo
Only one published case, In re Trejo (2017) 10 Cal.App.5th
972 (Trejo), has considered the interaction between sections
12
1170.1(c) and 3051 as they apply to youth offenders who commit
crimes in prison. In that case, defendant Trejo committed second
degree murder at age 17, for which he was convicted and
sentenced to a prison term of 15 years to life. At age 20, he
committed an assault with a deadly weapon on a peace officer
while incarcerated. He was sentenced to an additional term of
four years, to be served consecutively to his life sentence. (Id. at
pp. 975–976.)
After 35 years in prison, the Board found Trejo suitable for
parole under section 3051. However, it determined that under
section 1170.1(c), Trejo could not be released until he served his
four-year Thompson term for the in-prison assault. (Trejo, supra,
10 Cal.App.5th at pp. 975–976.) Trejo filed a petition for writ of
habeas corpus, challenging the legality of his continued
confinement. The trial court denied the petition; Trejo then filed
a petition with the Court of Appeal, which granted relief. (Id. at
pp. 976, 991–992.)
In granting relief, the appellate court rejected the Attorney
General’s argument that section 3051 applies only to sentences
imposed for crimes committed prior to incarceration, concluding
that the text of the statute “indicates the opposite.” The court
explained: “Section 3051 provides for parole suitability review for
inmates whose ‘controlling offense’ was committed before he or
she was 23 years old.[10] (§ 3051, subd. (a)(1).) As we have said,
‘controlling offense’ is defined as ‘the offense or enhancement for
which any sentencing court imposed the longest term of
imprisonment.’ (§ 3051, subd. (a)(2)(B), italics added.) . . . By
10 As noted, until January 1, 2018, section 3051 applied to
offenders who committed their controlling offenses before age 23. As of
January 1, 2018, the age of eligibility has been raised from 23 to 26.
13
referring to the longest term of imprisonment imposed by ‘any’
sentencing court, the Legislature indicated its intent that the
controlling offense used to determine a youth offender’s parole
hearing date under section 3051 be selected from all sentences
imposed upon that offender, regardless of whether they were
imposed in one or a number of proceedings or cases. ‘Any
sentencing court’ is open-ended: Nothing in section 3051
suggests the only sentences to be considered are those imposed
before the offender was incarcerated . . . .” (Trejo, supra,
10 Cal.App.5th at pp. 984–985.)
The court also agreed with Trejo that the Legislature’s
intent to exempt youth offenders from application of section
1170.1 is inherent in section 3051. It explained that section
1170.1, subdivision (a), “requires that an inmate serve the
requisite term for each consecutively sentenced offense and
enhancement. Under section 3051, subdivision (b)(1), however, a
youth offender sentenced to a determinate term becomes eligible
for release in the 15th year of incarceration even if he or she has
not yet served the aggregate determinate term. Where a youth
offender is sentenced to a lengthy determinate term, then, section
3051 necessarily overrides the requirement of section 1170.1 that
an inmate sentenced to consecutive terms not be released on
parole before completing all the terms of imprisonment imposed.
“Similarly, section 3051 supersedes section 1170.1 when a
youth offender is consecutively sentenced to a life term and a
determinate term. Section 1170.1, subdivision (a), incorporates
section 669, which provides that when a person is sentenced to a
life term and a consecutive determinate term, ‘the determinate
term of imprisonment shall be served first and no part thereof
shall be credited toward the person’s eligibility for parole as
14
calculated pursuant to Section 3046 or pursuant to any other
section of law that establishes a minimum period of confinement
under the life sentence before eligibility for parole.’ Under
section 3051, however, a person sentenced to a life term and a
determinate term becomes eligible for parole after the time
specified in section 3051, subdivision (b)(2) or (3), based on the
life term, without regard to the determinate term. [Citation.]
“We see no basis for inferring that the Legislature intended
section 3051 to override the otherwise applicable provisions
section 1170.1 as described above but to have no effect on the
application of section 1170.1, subdivision (c).” (Trejo, supra,
10 Cal.App.5th at p. 986.)11
Finally, the court noted that Trejo had committed his
controlling offense at age 17, and that none of the exceptions in
section 3051, subdivision (h) applied to him because “[h]e was not
sentenced pursuant to the Three Strikes law or section 667.61 or
to a term of life in prison without possibility of parole, and his in-
prison offense was committed before he reached 23 years of age
[the then-operative age of eligibility] and neither involved malice
aforethought nor resulted in a life sentence.” (Trejo, supra,
10 Cal.App.5th at p. 982.) The court thus concluded that Trejo
was entitled to release when his parole became effective,
11 Indeed, our California Supreme agreed that section “3051 and
3046 have thus superseded the statutorily mandated sentences of
inmates” who committed their controlling offenses before the age of 26.
(People v. Franklin (2016) 63 Cal. 4th 261, 278; see Trejo, supra,
10 Cal.App.5th at p. 989 [“Respondent maintains that the Board’s
consideration of suitability factors is insufficient because it is not ‘the
sentence contemplated by the sentencing courts, prosecutors, or the
Penal Code.’ But this is true of all sentences affected by section
3051”].)
15
notwithstanding the consecutive four-year term imposed for the
in-prison conviction. (Id. at p. 989.)
B. Trejo’s Reasoning Applies Equally to Youth Offenders
Who Commit In-Prison Crimes As Adults
Both parties appear to concede that Trejo is controlling law
with regard to youth offenders who commit in-prison offenses
under the age of 26. We agree. No published case has disagreed
with Trejo’s holding, and although the Legislature amended
section 3051 after Trejo was decided, it did not make any changes
relevant to in-prison offenses. Indeed, the only change the
Legislature has made to section 3051 since Trejo was decided was
to broaden the statute’s reach by increasing the age of eligibility,
not to narrow it. We thus presume that the Legislature was
aware of, and acquiesced in, the court’s construction of the
statute. (See, e.g., People v. Ledesma (1997) 16 Cal. 4th 90, 100–
101 [“ ‘When a statute has been construed by the courts, and the
Legislature thereafter reenacts that statute without changing the
interpretation put on that statute by the courts, the Legislature
is presumed to have been aware of, and acquiesced in, the courts’
construction of that statute.’ ”].)
The Attorney General contends, however, that Trejo should
not govern the present case because its “holding relies on
Legislative intent and policy supporting leniency for youthful
offenders that should not extend to sentences for adult in-prison
crimes.” Not so. The Court of Appeal’s analysis in Trejo, which
we have discussed at length above, was grounded in the language
of the relevant statutes. And, 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.
16
C. Sections 1170.1 and 3051 Cannot Be Harmonized
With Regard to Youth Offenders Who Commit In-
Prison Offenses As Adults
Our conclusion that Trejo’s reasoning applies equally to the
present facts is, without more, a sufficient basis for holding that
Jenson need not serve his Thompson term. But there is another,
equally convincing reason to reach this result—namely, that it is
compelled by the language of section 3051, subdivision (h), which
specifically addresses youth offenders who commit additional in-
prison crimes after age 26.
Section 3051, subdivision (h) provides: “This section shall
not apply to an individual to whom this section would otherwise
apply, 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.” In enacting section 3051, therefore, the
Legislature anticipated that some youth offenders would commit
additional crimes after the age of 26,12 and it specifically provided
when such offenses will cause youth offenders to lose the
opportunity for early release—i.e., if (1) malice aforethought is a
necessary element of the crime, or (2) the crime is punished by
life in prison.
12 As Trejo noted, such crimes necessarily will be committed in
prison, since the earliest eligibility for parole under section 3051 is
during the 15th year of incarceration, long after a youth offender will
have reached age 26. (Trejo, supra, 10 Cal.App.5th at p. 985.)
17
Under the principle of “expressio unius est exclusio
alterius,” an express exclusion from the operation of a statute
“indicates the Legislature intended no other exceptions are to be
implied. (Wildlife Alive v. Chickering (1976) 18 Cal. 3d 190, 195
[132 Cal.Rptr.377, 553 P.2d 37]; see also 2A Sutherland,
Statutory Construction, supra, § 47.23, p. 123; 58 Cal.Jur.3d,
supra, § 115.)” (Strang v. Cabrol (1984) 37 Cal. 3d 720, 725.) As
applied here, this principle suggests that the Legislature
intended a youth offender who commits a crime in prison after
age 26 to remain eligible for release from prison after serving 15,
20, or 25 years so long as the in-prison crime was not a “malice
aforethought” crime and was not punishable by life in prison.
Section 3051, subdivision (h) thus is irreconcilably in
conflict with section 1170.1(c) with regard to youth offenders who,
after age 26, commit in-prison crimes for which malice
aforethought is not a necessary element and which are not
punishable by life in prison. As the present case illustrates,
section 1170.1 would require such a person to serve an additional
term for the in-prison crime after being paroled on the principal
term. In contrast, section 3051 would require his or her
immediate release upon a finding of parole suitability.
Sections 1170.1(c) and 3051 also result in entirely different
parole hearing dates for some youth offenders who commit crimes
in prison. Consider a hypothetical youth offender who, at the age
of 18, commits a crime for which he is sentenced to five years in
state prison. During his first year of his incarceration, he
commits an additional crime and receives a consecutive sentence
of 25 years to life. Because the in-prison crime is a Thompson
offense, the two terms must be served consecutively under section
1170.1(c), and thus the prisoner will not become parole eligible
18
until he has been incarcerated for 30 years (5 years plus 25 years,
without considering credits). Because the in-prison crime is also
the controlling offense, however, under section 3051, the prisoner
would be parole eligible during his 25th year of incarceration.
(§ 3051, subd. (b)(3) [“A person who was convicted of a controlling
offense that was committed when the person was 25 years of age
or younger and for which the sentence is a life term of 25 years to
life shall be eligible for release on parole by the board during his
or her 25th year of incarceration at a youth offender parole
hearing, unless previously released or entitled to an earlier
parole consideration hearing pursuant to other statutory
provisions.”].)
As we have said, where two statutes cannot be reconciled,
“ ‘later enactments supersede earlier ones [citation], and more
specific provisions take precedence over’ the more general.”
(People v. Adelmann, supra, 4 Cal.5th at p. 1079.) Here, section
3051 was adopted in 2013 and specifically addresses parole
eligibility for youth offenders. Section 1170.1 was adopted many
decades earlier and generally concerns punishment for in-prison
crimes, without distinguishing between youth and adult
offenders. Because section 3051 thus is both later-enacted and
more specific, it supersedes section 1170.1(c) with regard to youth
offenders.
The dissent suggests there is no conflict between sections
1170.1(c) and 3051 because a defendant can be “paroled” on one
crime but still be required to serve an additional sentence for
another. But distinguishing between “parole” and “release” is
contrary to the Legislature’s express purpose in enacting section
3051—to give a youth offender “the opportunity to obtain release
when he or she has shown that he or she has been rehabilitated
19
and gained maturity.” (Stats. 2013, ch. 312, § 1, italics added.)
The distinction also is contrary to the plain language of sections
3051 and 3041, which state that a youth offender parole hearing
“shall provide for a meaningful opportunity to obtain release;” the
Board “shall release” an offender it determines eligible for parole;
and on “a grant of parole, the inmate shall be released.” (§§ 3051,
subds. (d), (e), 3041, subd. (a)(4), italics added.)
Nothing in section 3051 indicates “release” means release
on just the controlling offense so that the prisoner can serve a
Thompson term. Rather, “release” plainly means “release from
incarceration.” Interpreting “release” in this manner accords
with the commonsense, plain meaning of the word. (See, e.g.,
Merriam-Webster’s Collegiate Dict. (10th ed. 1995) p. 987
[release means “to set free from restraint, confinement, or
servitude” or “relieve from something that confines, burdens, or
oppresses”].) It also accords with the Legislature’s stated intent
in enacting Senate Bill No. 260—to give youth offenders a
meaningful opportunity to obtain release when they reach
rehabilitative benchmarks.13
For all of these reasons, we conclude that section 3051
supersedes section 1170.1(c) with regard to youth offenders who
commit in-prison offenses as adults.
13 This phrase—meaningful opportunity to obtain release—has its
genesis in Graham v. Florida, supra, 560 U.S. at page 75 and is unique
to our youth offender statutory scheme, as it is not found in other
parole-related statutes.
20
D. Our Interpretation of Section 3051 Does Not Give
Youth Offenders a “Free Pass” to Commit Crimes in
Prison
Our interpretation of section 3051 does not give defendants
a “free pass” to commit crimes in prison without consequence, as
the dissent suggests. Because “serious misconduct in prison” is a
parole suitability factor, parole will likely be denied or
significantly delayed for a defendant who has committed an in-
prison crime. (See Cal. Code Regs., tit. 15, § 2402, subd. (c)(6)
[“serious misconduct in prison” is a factor tending to indicate
“unsuitability for release”].)14 Adding an additional Thompson
term to a defendant’s sentence thus punishes a youth offender
sentenced to an indeterminate term twice for in-prison offenses,
because it can repeatedly delay a grant of parole and then add an
additional prison term after parole is granted.
Consider Jenson’s case. Jenson committed his controlling
offense, which led to his incarceration, when he was 19, an age
our Legislature has deemed of “diminished culpability.” (§ 4801,
subd. (c).) He was sentenced to 25 years to life for the murder,
plus two years for the enhancement; for his in-prison offenses, he
received an additional term of five years. By the time he was
found suitable for parole in 2016, he had served in excess of
37 years—more than the mandatory determinate parts of his
sentence—and had been denied parole five times, in large part
because of “[his] record in prison,” including “three [in-prison]
14 For this reason, the dissent’s hypothetical inmate, who is
convicted of a sexual assault 20 years into his prison term, cannot
expect to be granted parole five years later at a youth offender parole
hearing. (See also Cal. Code Regs., tit. 15, § 2402(c)(4) [commission of
a sadistic sexual offense demonstrates unsuitability for parole].)
21
convictions” and “some 48 [disciplinary reports].” In short, the
Board (and the Governor) were well aware of Jenson’s in-prison
conduct, and explicitly took that conduct into account in granting
him parole. Requiring a youth offender like Jenson who has met
the stringent benchmarks required for rehabilitation to remain
incarcerated to serve a Thompson term turns section 3051 into a
Pyrrhic victory: Jenson is suitable for release having
demonstrated maturity and rehabilitation, but he must remain in
prison.
Moreover, no windfall results to Jenson and to similarly
situated persons. While the specific outcome in this case is
Jenson’s release on parole, the general implication of our decision
is not a wholesale release of prisoners. Our decision merely
means that youth offenders who commit nonlife crimes or crimes
for which malice aforethought is not an element while in prison
after attaining the age of 26 are still entitled to a youth offender
parole hearing and to a meaningful opportunity for release.
A hearing and an opportunity. Nothing more. At that hearing,
the Board will evaluate the prisoner holistically—any Thompson
crimes being part of the whole. Such crimes may militate against
a grant of parole. (See also Trejo, supra, 10 Cal.App.5th at
p. 988.) Our decision thus does not encourage bad behavior in
prison. The youth offender who continues to commit crimes while
incarcerated only sabotages the chance of a good outcome at his
or her parole hearing. A youth offender parole hearing offers a
meaningful opportunity for release. It is not a guarantee of one.
22
DISPOSITION
Jenson is ordered released on parole. His release date shall
be amended to be September 9, 2016, and the days of
incarceration he has served since that day shall be deducted from
his parole period. In the interests of justice, this opinion shall be
deemed final immediately upon filing. (Cal. Rules of Court, rule
8.387(b)(3)(A).)
CERTIFIED FOR PUBLICATION
DHANIDINA, J.
I CONCUR:
EDMON, P. J.
 Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
23
EGERTON, J., Dissenting.
I respectfully dissent. In my view, we can and should
reconcile Penal Code section 1170.1, subdivision (c), with section
3051. The plain language of the statutes, read with the
Legislature’s purpose in enacting each in mind, leads to the
conclusion that an inmate who is granted parole for a life crime
committed when he was younger than 26 must still serve his
consecutive term for a new and different offense committed in
prison when he was no longer youthful by any definition.
1. Jenson’s 1979 murder of L.C. Walker, his 1989 assault
on an officer with a knife, and the 2016 parole
hearing
In 1979 a jury convicted petitioner Ronald Jenson of the
first degree murder of L.C. Walker with a shotgun. The presiding
commissioner at Jenson’s April 2016 parole hearing summarized
the facts of the crime: “A 64-year old male victim was fatally shot
at a gas station. It was reported that he was visiting the gas
station attendant who was sitting inside the gas station watching
television. According to the attendant, four males entered the
gas station with weapons in their possession. Mr. Jenson, who
had a shotgun, pressed the weapon into the victim’s side, and
another suspect was holding a handgun nearby. The victims
were told to sit down and not move. The victim who was killed
had a revolver in his pocket, and told the suspects why don’t you
kids go on away from here. And his hand came out of his pocket
with the handle of the gun visible, at which point the shotgun
was fired striking the victim. . . . The victim died from his
injuries.” The trial court sentenced Jenson to life with a
minimum eligible parole date of 27 years (25 years to life for the
1
first degree murder plus two years for his use of a firearm under
the then-applicable version of Penal Code section 12022.515).
While in prison, Jenson committed three more felonies.
He committed two of those crimes―escape without force and
manufacture or possession of a deadly weapon by an
inmate―during his first year in prison. Jenson was 21 at the
time. Then, in 1989, Jenson was charged with assault with a
deadly weapon on a peace officer.16 Jenson was 29 when he
committed that offense. Jenson spoke about the crime at his
April 2016 parole hearing. Jenson said the officer had used a
racial slur in referring to Jenson’s mother and his wife. The
officer “told [Jenson] what he was going to do to them sexually.”
Jenson continued, “And unfortunately at that time, I lost my cool
and I went and got a knife, and I stabbed him and he almost lost
his life.”
The Marin County District Attorney filed charges. On
November 29, 1989, Jenson entered into a plea agreement with
the People. Jenson pleaded guilty to the charge. The court
sentenced him to the agreed-upon term of five years in the state
prison, to be served consecutively to the life term. The People
struck an enhancement on the assault with a deadly weapon
count and dismissed a second count as part of the plea deal.
15 Under current law, a perpetrator’s intentional discharge
of a firearm causing death or great bodily injury adds 25 years to
a first degree murder sentence under Penal Code section
12022.53, subdivision (d).
16At the time, that crime constituted a violation of Penal
Code section 245, subdivision (b). Now, section 245,
subdivision (c), is the applicable provision for that crime.
2
In late 2014, the parole board granted Jenson parole.
However, in March 2015, Governor Brown reversed the board’s
decision. The Governor described Jenson’s murder of Walker as
“senseless.” The Governor continued, “Mr. Jenson’s conduct in
prison demonstrates an inability to control his temper and abide
by the rules. He has been disciplined for serious misconduct 48
times and less serious misconduct 42 times. Ten of his serious
disciplinary actions were for violent behavior including stabbing
a correctional officer in the neck, attempting to stab staff,
assaulting an inmate, stabbing an inmate, spitting in staff
members’ faces, fighting with another inmate, and possession of
inmate-manufactured weapons.” The Governor commended
Jenson for his “efforts to improve himself during his 36 years of
incarceration.” However, in reversing the board’s decision to
parole Jenson, the Governor noted Jenson’s “extensive criminal
history and many violent acts while incarcerated.” This court
denied Jenson’s petition for a writ of habeas corpus challenging
the Governor’s decision.
As noted, Jenson had another parole hearing on April 29,
2016. At the hearing, Jenson insisted he did not commit the 1979
murder of Walker. He had been, he said, falsely accused and
wrongly convicted. Jenson stated a man named James Downey
had fingered him for the crime because of a dispute over a
woman. Jenson also said Walker’s friend, eyewitness Walter
Diggs, had not positively identified him and had been led by the
prosecutor in his testimony at trial.17 In addition, Jenson blamed
his co-defendant for testifying against him.
17The board was unable to locate the court of appeal’s
decision affirming Jenson’s conviction, so the commissioners
asked Jenson if Diggs had identified him at trial.
3
At the 2016 parole hearing, the deputy district attorney
representing the People asked the commissioners to question
Jenson about custodial counseling chronological documentations
(so-called CDC-128-A’s) he received in 2007, 2009, and 2010 for
disobeying direct orders of corrections personnel. The district
attorney argued against parole for Jenson, stating, “[Jenson] has
continued since he was a youth through the transition period into
adulthood to violate rules in prison. He has an extremely, for a
long time, bad record in prison. I would argue 2007, 2009, 2010
are a continuation.”
2. Discussion
Jenson’s writ petition presents a question of statutory
interpretation. In construing statutes, “ ‘our fundamental task is
“to ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.” ’ (Mays v. City of Los Angeles (2008) 43
Cal. 4th 313, 321.)” (Apple Inc. v. Superior Court (2013) 56
Cal. 4th 128, 135; see also Weidenfeller v. Star & Garter (1991)
1 Cal. App. 4th 1, 5 [“Our obligation is to interpret the statute ‘to
effectuate the purpose of the law.’ ([ ] Santa Barbara County
Taxpayers Assn. v. County of Santa Barbara (1987) 194
Cal. App. 3d 674, 681 [239 Cal. Rptr. 769].”].) “[S]tatutes must be
construed in a reasonable and common sense manner consistent
with their apparent purpose and the legislative intent underlying
them―one practical, rather than technical, and one promoting a
wise policy rather than mischief or absurdity.” (Herbert Hawkins
Realtors, Inc. v. Milheiser (1983) 140 Cal. App. 3d 334, 338.) “As
always, we start with the language of the statute, ‘giv[ing] the
words their usual and ordinary meaning [citation], while
construing them in light of the statute as a whole and the
statute’s purpose [citation].’ (Pineda [v. Williams-Sonoma Stores,
4
Inc. (2011)] 51 Cal.4th [524,] 529−530.)” (Apple, at p. 135.) “ ‘We
do not examine that language in isolation, but in the context of
the statutory framework as a whole in order to determine its
scope and purpose and to harmonize the various parts of the
enactment. If the language is clear, courts must generally follow
its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’
(Coalition of Concerned Communities, Inc. v. City of Los Angeles
(2004) 34 Cal. 4th 733, 737 [21 Cal. Rptr. 3d 676, 101 P.3d 563].)”
(In re Coleman (2015) 236 Cal. App. 4th 1013, 1018 (Coleman).)
Penal Code section 1170.1, subdivision (c)―enacted in 1976
and amended many times since―provides, “In the case of any
person convicted of one or more felonies committed while the
person is confined in the state prison . . . 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.” These consecutive terms commencing
on what otherwise would have been the inmate’s release date
have come to be known as Thompson terms, after In re Thompson
(1985) 172 Cal. App. 3d 256. The reason the Legislature enacted
5
Penal Code section 1170.1, subdivision (c), is obvious and sound:
to deter inmates from committing more crimes while in prison.
“It is well established the Legislature intended that ‘in-prison
crimes . . . be punished more severely than crimes committed “on
the outside.” ’ ([People v.] White [(1988)] 202 Cal.App.3d [862,]
869.)” (Coleman, supra, 236 Cal.App.4th at p. 1022.)
“Commencing the consecutive sentence for the custodial offense
on the date the prisoner otherwise actually would have been
released on parole is consistent with the Legislature’s intent to
punish and deter criminality in prison.” (Ibid.)
Penal Code section 3051―enacted in 2013 and amended
several times since―grants a youth offender (now defined as an
inmate who committed his controlling offense before he was 26
years old) a parole hearing after 15, 20, or 25 years, depending on
the controlling offense. An inmate like Jenson, who was
convicted of first degree murder committed when he was 19 years
old, is entitled to a youth offender parole hearing after 25 years.
(Pen. Code, § 3051, subd. (b)(3).) Subdivision (h) of the statute
carves out three categories of inmates who are not entitled to
receive a youth offender parole hearing: (1) inmates serving a
third strike sentence; (2) inmates sentenced to life without the
possibility of parole for crimes committed as adults; and (3)
inmates who, at age 26 or older, commit an additional crime that
requires malice aforethought or that results in another life
sentence. (Pen. Code, § 3051, subd. (h).)
These two statutes can be reconciled. The carve-out
provision in Penal Code section 3051, subdivision (h), denies the
three categories of inmates listed there any youth offender parole
hearing at all. By contrast, an inmate like Jenson, who
committed a life crime while 25 or younger, will receive his youth
6
offender parole hearing after 25 years. The board may grant that
inmate parole. But that grant does not mean that the inmate
now does not have to serve his consecutive Thompson term for a
crime committed when he was 26 or older.18 Here, Jenson was
nearly thirty years old when―according to his own account―he
went and procured a knife (showing planning and not simply an
impulsive act), and then stabbed an officer in the neck, nearly
killing him. At that age, Jenson was fully an adult, and the
Legislature’s concerns for the “diminished culpability of juveniles
as compared to adults,” the “hallmark features of youth,” and the
recognition that “children are constitutionally different from
adults for purposes of sentencing” (In re Trejo, at pp. 980−981,
987) no longer apply.
Consider this hypothetical: A 25-year-old man shoots and
kills someone. A jury convicts him of first degree murder and
finds the gun allegation true. The defendant also has a prior
strike―let’s say for robbery, when he was 24. The court
sentences him to life with a minimum eligible parole date of 80
years (25 years to life for the first degree murder, doubled
because of the strike prior, plus 25 years for the intentional
discharge of the gun causing death, plus a five-year prior under
Penal Code section 667, subdivision (a)). Twenty years later, at
the age of 45, the inmate sexually assaults a fellow inmate, or a
guard. He is convicted of that crime, his sentence to be served
consecutively. The inmate nevertheless will receive a youth
offender parole hearing 25 years after his commitment for the
18 Under In re Trejo (2017) 10 Cal.App.5th 972, Jenson does
not have to serve his Thompson terms for the felonies committed
in prison when he was 21 years old.
7
murder. The board may grant him parole on his life case,
effectively knocking 55 years off of his sentence. But the inmate
still must serve his Thompson term for the sexual assault. Read
this way, consistent with their plain language, Penal Code
section 1170.1, subdivision (c), and section 3051 are not
inconsistent. The inmate gets a hearing after 25 years,
effectuating the Legislature’s concern for youthful offenders, and
the inmate still must serve his term for his in-prison crime
committed as a fully grown adult, effectuating the Legislature’s
purpose of deterring prison inmates from committing more
crimes while in custody.
Finally, Penal Code sections 3041 and 3046 do not change
this analysis. Penal Code section 3046 generally addresses
parole for defendants sentenced to life. Subdivision (c) provides
that an inmate found suitable for parole after a youth offender
parole hearing “shall be paroled regardless of the manner in
which the board set release dates pursuant to subdivision (a) of
Section 3041, subject to subdivision (b) of Section 3041 and
Sections 3041.1 and 3041.2, as applicable.” (Pen. Code, § 3046,
subd. (c).) Penal Code section 3041 sets forth the workings of
parole generally. Section 3041, subdivision (a)(4), states, “Upon a
grant of parole, the inmate shall be released subject to all
applicable review periods. However, an inmate shall not be
released before reaching his or her minimum eligible parole date
as set pursuant to Section 3046 unless the inmate is eligible for
earlier release pursuant to his or her youth offender parole
eligibility date . . . .” (Pen. Code, § 3041, subd. (a)(4).) Penal
Code sections 3041.1 and 3041.2 have to do with the Governor’s
right to review parole decisions.
8
Neither Penal Code section 3041 nor section 3046 mentions
section 1170.1(c). Again, a grant of parole to an inmate like
Jenson does not mean the inmate now is relieved of his obligation
to serve his Thompson term for a crime committed when no
longer a “youth.” Returning to the hypothetical inmate discussed
above, these statutes work this way: Under Penal Code section
3046, subdivision (c), the inmate may be paroled from his life
sentence after 25 years, without having to wait for his previous
minimum eligible parole date of 80 years. But he is “paroled” to
his Thompson term, in Department of Corrections terms. By
contrast, an inmate serving a life sentence for a crime committed
when 25 or younger who does not commit any in-custody crime,
and therefore owes no Thompson term, is released immediately
under Penal Code section 3041, subdivision (a)(4); he does not
have to serve his remaining time for―for example―his gun use
causing the victim’s death or for his prior strike.
In sum, in my view, the Legislature―in enacting Penal
Code section 3051―cannot have meant to give inmates who
committed their controlling offense at age 25 or younger a free
pass for any and all future crimes committed in prison when they
cannot be considered “youth” by any definition of the word,
statutory or otherwise. I do not believe our Legislature intended
implicitly to repeal Penal Code section 1170.1, subdivision (c), or
to change the law so that a youth offender who later, at nearly 30
years of age, attacks a guard with a knife, almost killing him,
does not have to serve his Thompson term for that crime.
Construing the two statutes in this reasonable and common sense
manner consistent with their apparent purpose and the
legislative intent underlying them promotes the wise policies of
both leniency toward youthful offenders and the protection of
9
inmates, guards, and other corrections staff from crimes
committed in prison by fully grown men and women.
Respectfully, this interpretation “comports most closely with the
apparent intent of the Legislature, with a view toward
promoting, rather than defeating, the general purpose of the
statute[s] . . . .” (People v. Scott (2012) 203 Cal. App. 4th 1303,
1313.) I would deny Jenson’s petition.
EGERTON, J.
10