In Re Mitchell

[655]

Opinion

McIntyre, J.

Factual and Procedural Background

Demond Kadura Mitchell was convicted of, inter alia, conspiracy to commit first degree robbery in concert and two counts of attempted first degree robbery in concert. In October 1998, he was sentenced to a total of seven years eight months in prison. At Mitchell’s sentencing hearing, the trial court ruled that the 15 percent custody credit limitation of Penal Code section 2933.1 did not apply to him and ordered that his credit for time served be calculated under Penal Code section 4019. (All statutory references are to the Penal Code.)

In August 1999, the Department of Corrections (Department) wrote a letter to the sentencing court stating that Mitchell’s conviction for conspiracy to commit first degree robbery in concert was “one of the violent felonies listed in PC 667.5(c) . . . .” The Department indicated that the 15 percent credit limitation of section 2933.1 would thus apply, and asked the court to review the file “to determine if a correction is required.” The court responded that the sentencing minutes “very clearly show” it expressly rejected the suggestion that Mitchell’s custody credits be calculated pursuant to section 2933.1.

Nevertheless, the Department began calculating Mitchell’s custody credits under section 2933.1. Mitchell informally appealed the limitation of his custody credits, and in January 2000, he received a decision from the Department stating that he had been convicted of a violent felony listed in section 667.5 and thus, the 15 percent credit limitation of section 2933.1 applied. Mitchell resubmitted his appeal, which was treated as a second level of review and denied. The Department explained that section 2933.1 applied to Mitchell because he was convicted of conspiracy to commit first degree robbery in concert and section 182 indicates that if two or more people are convicted of conspiracy to commit any crime, they are punishable in the same manner and to the same extent as is provided for the target offense.

Discussion

Exhaustion of Administrative Remedies

The Attorney General contends Mitchell’s petition must be denied because he did not obtain a third level of review from the Department, and