Inmate found suitable for parole under the youth offender parole provisions (Pen. Code § 3051) was entitled to release when parole became effective, notwithstanding a consecutive four-year term imposed for an in-prison offense. Trejo committed second degree murder in 1979 when he was 17 years old and was sentenced to 15 years to life in 1980. When he was 20 years old, Trejo pleaded guilty to an in-prison offense and was sentenced to a term of four years, to be served consecutively to his life sentence. In 2015, Trejo was found suitable for release on parole pursuant to the youth offender parole provisions of section 3051. However, the Board of Parole Hearings noted that Trejo would have to serve the term for his in-prison offense before his release. (See Pen. Code, § 1170.1, subd. (c) [a consecutive sentence for an in-prison offense “shall commence from the time the person would otherwise have been released from prison.”].) After the trial court denied habeas relief, Trejo filed a habeas petition in the Court of Appeal, arguing that he was entitled to release upon the conclusion of his indeterminate sentence. Held: Petition granted. Section 3051 provides for parole suitability review for an offender convicted of a “controlling offense” committed before he or she was 23 years old. The statute expressly excludes certain inmate (see Pen. Code § 3051, subd. (h)), but none of the exceptions applied to Trejo. After analyzing the applicable statutes (Pen. Code, §§ 3051, 3041, 3046, 1170.1) and People v. Franklin (2016) 63 Cal.4th 261, the court concluded that the statutory scheme, which was 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 was entitled to release. [Editor’s Note: The court did not consider the application of section 1170.1, subdivision (c) to an individual serving a sentence for a controlling offense under section 3051 who commits an in-prison offense when he or she is 23 years old or older.]

Petitioner’s failure to exhaust administrative remedies with the Department of Corrections and Rehabilitation regarding the calculation of his release date does not prevent review of the merits of petitioner’s claim. Respondent argued that the court should not reach the merits of Trejo’s claim because he failed to exhaust administrative remedies with the Department with regard to the calculation of his release date. Respondent argued that exhaustion was required because the decision to require petitioner to serve the consecutive term before release was made by the Department, not the Board. The court agreed with Trejo that the decision at issue was made by the Board, and further noted that any attempt to exhaust would have been futile because both the Department and the Board were following an established policy in requiring Trejo to serve the consecutive term after being found suitable for release on parole. Whether this policy is based on a correct interpretation of the relevant statutes is a purely legal question, and declining to review the merits of Trejo’s claim would only delay the relief to which he is entitled.

Upon release from prison, petitioner is entitled to credit against his parole period for time served past the date his parole became effective. Based on his 1980 second degree murder conviction, Trejo was subject to a five-year parole supervision period. (But see Pen. Code, § 3000.1 for the current parole period for second degree murder.) He argued that he was entitled to have his period of parole supervision reduced by the amount of time he had served since November 2, 2015, the date his parole became effective. “[C]ase law recognizes that time served in excess of the determinate term must be credited against the prisoner’s parole period.” (In re Bush (2008) 161 Cal.App.4th 133, 141.) Because his continued confinement after this date was not lawful, Trejo is entitled to have his period of parole supervision reduced by the amount of time he has served on his determinate sentence for the in-prison offense since November 2, 2015.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A149064.PDF