In Re Mikhail

California Court of Appeal Mar 12, 1999 No. B123311Published

Before: Epstein

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Holding. The court held that applying 1996 amendments to Penal Code section 2933, which granted the director discretion to deny restoration of forfeited worktime credits, violated the ex post facto clause when applied to a prisoner whose offense occurred before the amendment. Consequently, the petitioner was entitled to the restoration of 90 days of credit under the regulations in effect at the time of his offense, rather than the 45 days previously granted.

Issues

Whether the application of amended statutory authority regarding the restoration of forfeited worktime credits to a prisoner whose offense predated the amendment constitutes an ex post facto violation.
Whether the petitioner was entitled to the restoration of 90 days of credit under the regulations in effect at the time of his offense.

Disposition. granted

Quotations verified verbatim against the opinion

“The court held that a violation occurred when these provisions were applied to a prisoner whose prison offense occurred before the 1996 amendment to the statute.”

“We conclude that petitioner is entitled to restoration of 90 of the 360 days forfeited credit. Since 45 days already have been restored, he is entitled to restoration of an additional 45 days.”

Opinion

EPSTEIN, J.

J.Anthony Mikhail, a prisoner at the California State Prison in Los Angeles County, a facility of the Department of Corrections, has petitioned for a writ of habeas corpus. He seeks relief from what he claims is an illegal refusal to restore forfeited worktime credits. He contends that in denying his application for restoration of credits, the director made an ex

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post facto application of new statutory authority, and that the statute and regulations in force when his credits were forfeited entitle him to the restoration he seeks. We conclude that his application for relief must be granted.

Factual and Procedural Summary

After a series of intermediate proceedings we have extracted the facts pertinent to the case, which we summarize here.

Petitioner was convicted of attempted murder with enhancements, resulting in a 12-year commitment to state prison. While there, on December 23, 1993, he possessed a prison-manufactured weapon. That is classified as a serious prison offense (in prison parlance, an “A-l offense,” after Pen. Code, § 2932, subd. (a)(1); see Cal. Code Regs., tit. 15, § 3323, subd. (b)(8); all further citations to sections in the 3300 series are to regulations in title 15). Under rules in force, then and now, that offense resulted in a forfeiture of 360 days’ worktime credit. Petitioner was adjudicated to have committed the offense, and that amount of credit was forfeited.

The statute and regulations in force at the time conditioned restoration of credit for such an offense on the prisoner being free of further discipline for a year. After petitioner had been free of discipline for that period of time, he applied for restoration. Prison authorities restored 45 days, but refused to restore more. Petitioner exhausted his administrative remedies in seeking to overturn that decision, but was unsuccessful. He then filed a second application, this time arguing an ex post facto violation, and was again unsuccessful. As we shall explain, the statute and regulations had changed in the interim, and prison authorities cited the new law in denying further relief. Petitioner then petitioned the Los Angeles Superior Court for habeas corpus relief, claiming that application of the amended statute and regulations to his case amounted to an ex post facto violation. The superior court denied relief. Petitioner renewed his petition in this court. We sought information and two preliminary responses from the Attorney General, as attorney for the Director and Department of Corrections, and these were received. We then issued an order to show cause why the relief sought by petitioner should not be granted. We also appointed the California Appellate Project as counsel for petitioner. A return to our order was duly filed, as was a denial and traverse by petitioner.

In Re Mikhail

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EPSTEIN, J.

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