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Chapter 8 Determinate Sentences, Restitution, Time Credits, and Release Dates

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Chapter 8 Determinate Sentences, Restitution, Time Credits, and Release Dates The California Prison and Parole Law Handbook by Heather MacKay and the Prison Law Office THE CALIFORNIA PRISON & PAROLE LAW HANDBOOK BY HEATHER MACKAY & THE PRISON LAW OFFICE ISBN: 978-0-692-95526-0 Copyright © 2019 by the Prison Law Office Content Editor: Ritika Aggarwal Production & Style Editor: Brandy Iglesias Cover Art: Justus Evans Cover Design: Tara Eglin Assistance with Chapter 9: Kony Kim, former Staff Attorney at UnCommon Law, a non-profit that represents people at Board of Parole Hearings proceedings, challenges unjust parole policies and decisions, and provides training and information to people serving life terms and their advocates. Assistance with Chapter 11: Anne Mania, former Staff Attorney at the Prison Law Office and Rosen, Bien, Galvan and Grunfeld, where she worked on ensuring due process for people undergoing parole violation processes. Assistance with Chapter 13: Theo Cuison, Deputy Director and Clinical Supervisor in the Immigration Unit of the East Bay Community Law Center (EBCLC), a clinic of U.C. Berkeley School of Law. The Prison Law Office is a non-profit public interest law firm that strives to protect the rights and improve the living conditions of people in state prisons, juvenile facilities, jails and immigration detention in California and elsewhere. The Prison Law Office represents individuals, engages in class actions and other impact litigation, educates the public about prison conditions, and provides technical assistance to attorneys throughout the country. Order forms for The California Prison and Parole Law Handbook are available at: www.prisonlaw.com or by writing to: Prison Law Office General Delivery San Quentin, CA 94964 In addition, many self-help information packets on a variety of topics are available free of charge on the Resources page at www.prisonlaw.com or by contacting the Prison Law Office at the address above. *** YOUR RESPONSIBILITY WHEN USING THIS HANDBOOK When we wrote The California Prison and Parole Law Handbook, we did our best to provide useful and accurate information because we know that people in prison and on parole often have difficulty obtaining legal information and we cannot provide specific advice to everyone who requests it. However, the laws are complex change frequently, and can be subject to differing interpretations. Although we hope to publish periodic supplements updating the materials in the Handbook, we do not always have the resources to make changes to this material every time the law changes. If you use the Handbook, it is your responsibility to make sure that the law has not changed and is applicable to your situation. Most of the materials you need should be available in a prison law library or in a public county law library. § 8.1 CHAPTER 8 DETERMINATE SENTENCES, RESTITUTION, TIME CREDITS, AND RELEASE DATES 8.1 Introduction 8.2 CDCR Legal Status Summary and the Earliest Possible Release Date (EPRD) THE SENTENCE IMPOSED BY THE COURT 8.3 Pre-Sentence Diagnosis and Evaluation 8.4 Pronouncement of the Sentence and the Abstract of Judgment 8.5 Overview of Felony Sentences 8.6 Selecting the Low, Middle, or High Term 8.7 Ordering Consecutive or Concurrent Subordinate Terms 8.8 Adding Conduct Enhancements 8.9 Adding Recidivism Enhancements 8.10 Sentences for Multiple Cases 8.11 Ordering Payment of Restitution, Fines and Fees 8.12 Requiring Registration, HIV Testing, DNA Samples and Other Orders DISCRETIONARY RESENTENCING 8.13 Recall of Sentence within 120 Days after Sentencing 8.14 CDCR/BPH Request for Recall of Commitment: Compassionate Release 8.15 CDCR/BPH Request for Recall of Commitment: Other Reasons 8.16 Recall of Commitment for Some Theft and Drug Crimes (Proposition 47) 8.17 Recall of Commitment for Some Cannabis Crimes (Proposition 64) PRE-SENTENCE AND PRE-PRISON CREDITS 8.18 Overview of Pre-Sentence Credits 8.19 Pre-Sentence Credits for Actual Days in Custody 8.20 Overview of Pre-Sentence Credits for Good Conduct and Programming 8.21 Current Laws on Pre-Sentence Credits for Good Conduct and Programming 8.22 Previous Laws on Pre-Sentence Credits for Good Conduct and Programming 8.23 Credits Upon Re-sentencing 8.24 Credits After Recall of Division of Juvenile Justice (DJJ) Placement 8.25 CDCR Review of the Sentence and Pre-Sentence Credits 8.26 Credits for Post-Sentence/Pre-CDCR Custody 227 § 8.1 PRISON CREDITS FOR GOOD BEHAVIOR AND PROGRAMMING 8.27 Overview of CDCR Credits for Good Behavior and Programming 8.28 Current Good Conduct Credit Earning Laws 8.29 Prior Good Conduct Credit Earning Laws 8.30 Work Group Designations 8.31 “S” Time for Absence from Assignments 8.32 Work Groups for People Who Have Disabilities or are Injured or Ill 8.33 Impact of Transfers on Work Group Designations 8.34 Milestone Completion Credit 8.35 Rehabilitative Achievement Credits 8.36 Education Merit Credits 8.37 Extraordinary Conduct Credits 8.38 Forfeiture of Credits for Serious Rule Violations 8.39 Criteria for Restoration of Credits Forfeited for Serious Rule Violations 8.40 Procedure for Restoration of Credits Forfeited for Serious Rule Violations CHALLENGES TO CREDIT EARNING OR ELIGIBILITY 8.41 Challenging Credit Errors Made by the Court 8.42 Challenging Credit and Release Date Calculation Errors Made by the CDCR 8.1 Introduction This chapter explains how courts construct determinate (set length) prison sentences and how people incarcerated in California prisons can reduce the amount of time actually served by earning credits for good behavior and programming. It also discusses some ways for people to get discretionary resentencing by the courts; the most common of these are compassionate releases for people who are terminally ill or medially incapacitated and reforms that retroactively reduce the penalties for some theft and drug crimes. The laws governing pre-sentence and in-prison behavior credits have changed numerous times over the years. Those changes usually apply only to time served after the date each change in the law took effect. Thus, different credit-earning rules may apply to various portions of a person’s sentence. Adding to the confusion, the statutes have not yet been updated to reflect recent changes to the credit laws put in place by court orders or under new CDCR regulations enacted in 2017 pursuant to Proposition 57. For information on earlier parole consideration by the Board of Parole Hearings (BPH) for some people with determinate sentences for non-violent crimes under Proposition 57, for people who were young (under age 26) at the time of their crime, for elderly people (age 60 or older), and for medical reasons, see §§ 9.40-9.43. The process to request a commutation or pardon by the Governor is discussed in § 9.49. 228 § 8.2 Sentences, prison credit-earning, and release dates for people serving indeterminate sentences of life with the possibility of parole and life without the possibility of parole (LWOP) are discussed in Chapter 9. Parole revocation terms and credits are discussed in Chapter 11. 8.2 CDCR Legal Status Summary and the Earliest Possible Release Date (EPRD) Three factors determine the date on which a person will be released from CDCR custody. The first is the length of the prison term imposed by the sentencing court. (See §§ 8.4-8.10.) The second is the credits earned for actual time served custody and good conduct in custody prior to arriving in the CDCR. (See §§ 8.18-8.26.) The third is the good conduct and other programming credits earned while in CDCR custody. (See §§ 8.27-8.40.) The CDCR summarizes sentencing and credit information on a computer printout called a Legal Status Summary (LSS), sometimes accompanied by a credits worksheet. A sample LSS and explanation is included as Appendix 4-A. The most important date on the LSS is the Earliest Possible Release Date (EPRD). The EPRD is a tentative prediction or “best guess” as to the actual release date, assuming that the term length and credit-earning status will not change.1 The CDCR’s basic method for calculating the EPRD is as follows: (1) add the total prison term to the date on which the CDCR “received” the person; (2) deduct all pre-sentence credits awarded by the sentencing court (the time the person spent in county jail before they were sentenced), credits earned between sentencing and arrival in the CDCR, and credits earned since arrival in the CDCR; (3) estimate and deduct the Good Conduct Credits and other programming creditsthe person is likely to earn in the future. The resulting date is the EPRD. If a person’s sentence changes or they receive an additional prison term, then the EPRD will change. Likewise, the EPRD might change if the Work Group status changes (see §§ 8.30-8.33), if the person earns additional credits for completing programs or education or for extraordinary conduct (see §§ 8.34-8.37), or if credits are lost due to rule violations (see § 8.38) or restored for subsequent good behavior (see §§ 8.39-8.40). Case records staff should update the EPRD periodically. Case records staff also will review a person’s release date 60 days and 10 days prior to release,2 and may adjust the release date if any errors are found. When a release date changes, the person should be notified of the change and be provided a copy of the LSS, and they can require the CDCR staff to explain the new calculation (see § 8.42). However, a person has no legal right to compel the CDCR to honor an incorrect release date that was based on a calculation error.3 Indeed, in some cases, people who have been released early due to credit errors have been returned to prison to serve the rest of their sentences.4 The following page contains a blank EPRD calculation worksheet showing the basic steps in calculating an EPRD.
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