Supreme Court of California Justia
Citation 50 Cal. 4th 1167, 240 P.3d 260, 116 Cal. Rptr. 3d 790

In re Jenkins

Filed 10/28/10

IN THE SUPREME COURT OF CALIFORNIA

In re HARVEY ZANE JENKINS,
On Habeas Corpus.
S175242
Ct.App. 3 C059321
Lassen County
Super. Ct. No. CHW2321

A prison inmate‟s participation in a prison work program may favorably
affect that inmate‟s custody level. Such participation can cause the inmate to be
considered a reduced security risk, which in turn may cause the inmate to be
placed in a lower security level institution. We must decide whether an inmate
who is willing to work but, without his or her fault, is not assigned to a work
program may receive the benefit of work participation for classification purposes.
The applicable regulations say no; they provide that actual work participation, and
not mere willingness to work, is required for an inmate to receive a lower security
evaluation. Petitioner contends the regulations are invalid. In accordance with the
deference courts generally give to prison authorities in promulgating regulations
concerning prison security, we conclude the regulations are valid. It is rational,
and not arbitrary, to consider an inmate‟s actual work performance for purposes of
classifying and housing that inmate.
1


I. FACTS AND PROCEDURAL HISTORY
We take these facts, which are undisputed, largely from Justice Robie‟s
opinion in the Court of Appeal.
Petitioner Harvey Zane Jenkins is in the custody of the California
Department of Corrections and Rehabilitation. He was convicted in 1993 of
second degree murder with personal use of a firearm and sentenced to state prison
for 15 years to life plus three years. (Pen. Code, §§ 187, 190, subd. (a), 12022.5,
subd. (a).) The record indicates that he became eligible for parole on April 29,
2005.
On December 21, 2005, petitioner was transferred from Centinela State
Prison to High Desert State Prison. He was not assigned to a work program at
High Desert until January 12, 2006. From January 12 to March 9, 2006, he was
assigned as “Facility C housing porter.” On March 9, he was transferred to
another facility within High Desert, where he spent 172 days without a work
assignment. He was subsequently assigned to an educational program.
California prison inmates are classified pursuant to a scoring system that
determines their prison custody level. (See pt. II, post.) A higher score means the
inmate is considered a higher security risk and would be assigned to a
correspondingly higher security facility; a lower score means the inmate is
considered a lower security risk and would be assigned to a correspondingly lower
security facility. After the initial classification, inmates receive an annual
classification review. Among the factors considered in this annual review is the
inmate‟s participation in a work, school, or vocational program.
On October 24, 2006, prison authorities conducted the annual review of
petitioner‟s classification score, covering the period from October 1, 2005,
through September 30, 2006. Petitioner received a four-point reduction in his
score for having no serious disciplinary actions and a two-point reduction (out of a
2
possible maximum of four points) for average or above average performance in a
work, school, or vocational program. As was later explained, he was denied the
additional two performance points that were available because he “was unassigned
to a program for roughly half of the total review period.”
Petitioner pursued an internal administrative appeal. He contended that
because his transfer to High Desert was not adverse, he was entitled to the full
four-point reduction for average or above average performance in a work, school,
or vocational program. His appeal was denied at all administrative levels. On
July 25, 2007, he filed the instant petition for writ of habeas corpus in the Lassen
County Superior Court. Following In re Player (2007) 146 Cal.App.4th 813
(Player), the superior court determined that because petitioner‟s work-qualifying
status was disrupted based on circumstances and department conduct beyond his
control, he was entitled to additional favorable work points. In an order signed
and filed April 25, 2008, the court granted petitioner‟s petition and directed the
department “to reduce [his] classification score by two points and to thereupon
make whatever adjustments to [his] custody designation, program and institution
placement as may appear.”
The superior court served its order on the parties by mail on April 29, 2008.
On June 27, 2008, the warden of High Desert, represented by the Attorney
General, filed a notice of appeal. Originally, the Court of Appeal dismissed the
appeal as untimely because it was not filed within 60 days of the time the superior
court signed and filed the order being appealed. (Citing Cal. Rules of Court, rules
8.308(a), 8.388.) Later, the Court of Appeal granted the Attorney General‟s
petition for rehearing, reinstated the appeal, and directed the parties to address in
their briefs the issue of whether the appeal was timely. In their briefs in the Court
of Appeal, the Attorney General argued, and petitioner conceded, that the appeal
3
was timely because the notice of appeal was filed within 60 days of the date the
court served its order on the parties by mail.
The Court of Appeal agreed that the appeal was timely. It summarized its
reasoning: “[U]nder [California Rules of Court,] rule 8.308(a), „a notice of appeal
. . . must be filed within 60 days after the rendition of the judgment or the making
of the order being appealed.‟ Where, as here, the order being appealed was not
pronounced in open court, but instead was embodied solely in a writing that was
prepared, signed, and filed outside the presence of the parties, we conclude „the
making of the order‟ does not occur until the court undertakes to communicate the
substance of its order to the parties in some reasonable manner. That occurred
here when the court mailed copies of the written order to the parties four days after
the order was signed and filed. Because the warden filed his notice of appeal
within 60 days of the date of that mailing, the appeal is timely.”
On the merits, the Court of Appeal reversed the superior court‟s grant of the
habeas corpus petition. It summarized its reasoning in this regard also: “[W]e
conclude the superior court erred in determining Jenkins was entitled to the
additional two work/school performance points for the time he did not actually
participate in any work, school, or vocational program. A governing department
regulation specifies that „[f]avorable points shall not be granted for average or
above average performance for inmates who are not assigned to a program.‟ (Cal.
Code Regs., tit. 15, § 3375.4, subd. (a)(3)(B).) Because the department‟s
interpretation and application of that regulation here to deny Jenkins the additional
work/school performance points he sought was not arbitrary, capricious, or
irrational, the department‟s decision must be upheld.”
We granted petitioner‟s petition for review, which presented the following
issue: “Is the Department of Corrections and Rehabilitation‟s denial of favorable
classification points for work or school to a prisoner whose classification point-
4
qualifying assignment was disrupted for a period due to a nonadverse transfer to
another facility, arbitrary, capricious, and/or irrational in light of the award of
work-time credits which reduced the prisoner‟s sentence for the same period of
incarceration?”
II. DISCUSSION
The Legislature has directed the Secretary of the Department of Corrections
and Rehabilitation to “cause each person who is newly committed to a state prison
to be examined and studied.” (Pen. Code, § 5068.)1 “Upon the basis of the
examination and study, the [secretary] shall classify prisoners . . . .” (Pen. Code,
§ 5068.) The Legislature has provided no specific guidance regarding how
prisoners should be classified but instead has authorized the secretary to “prescribe
and amend rules and regulations for the administration of the prisons . . . .” (Pen.
Code, § 5058.) By enacting these statutes, “[t]he Legislature has given the
[secretary] broad authority for the discipline and classification of persons confined
in state prisons. [Citations.] This authority includes the mandate to promulgate
regulations governing administration, classification and discipline.” (In re Lusero
(1992) 4 Cal.App.4th 572, 575.)
This case involves prisoner classification. “To ensure uniform application
of the classification process, the [secretary], pursuant to the authority vested in
him under Penal Code section 5058, has promulgated regulations stating the

1
Formerly, the administrative head of the department (then the Department
of Corrections) was called the Director of Corrections. In 2005, the Legislature
abolished the office of the Director of Corrections and replaced it with the
secretary. (Pen. Code, §§ 5050, 5054.) Some Penal Code provisions still use the
term “Director of Corrections,” but any such reference now “refers to the
Secretary of the Department of Corrections and Rehabilitation.” (Pen. Code,
§ 5050.) Accordingly, we will change all references to the “director” to refer to
the secretary.
5


factors to be considered by the correctional officer responsible for determining an
inmate‟s security classification.” (In re Richards (1993) 16 Cal.App.4th 93, 97,
fn. omitted; see Cal. Code Regs., tit. 15, § 3375 et seq.)2 These regulations
provide that “[t]he classification of felon inmates shall include the classification
score system as established. A lower placement score indicates lesser security
control needs and a higher placement score indicates greater security control
needs.” (§ 3375, subd. (d).) “Prisoner classification scores play a significant role
in determining where, within the state‟s many prison facilities, a prisoner will be
sent to serve his/her term of incarceration. (See Cal. Code Regs., tit. 15,
§ 3375.1.) As a general rule, a prisoner‟s classification score is directly
proportional to the level of security needed to house the inmate. For example,
prisoners with high classification scores will be sent to the prisons with higher
levels of security. (See Cal. Code Regs., tit. 15, §§ 3375.1 & 3377.)” (In re
Richards, supra, at p. 95, fn. 1.)
After the initial classification under Penal Code section 5068, each inmate‟s
classification score is reviewed at least annually. (§ 3376, subd. (d)(2)(A).) The
Court of Appeal explained the regulatory scheme relevant here: “ „For an annual
reclassification review, two six-month periods may be counted. When an inmate‟s
status is interrupted during the period without inmate fault, the period shall be
considered continuous.‟ ([§ 3375.4, subd. (a).]) Under California Code of
Regulations, title 15, section 3375.4, subdivision (a)(2), an inmate is entitled to
two favorable points (that is, points that are subtracted from the classification
score) „[f]or each six-month period since the last review with no serious
disciplinary(s).‟ Under California Code of Regulations, title 15, section 3375.4,

2
All further undesignated section references are to title 15 of the California
Code of Regulations.
6


subdivision (a)(3), an inmate is also entitled to two favorable points „[f]or each
six-month period with an average or above performance in [a] work, school or
vocational program.‟ ” This latter provision is qualified by section 3375.4,
subdivision (a)(3)(B) — the regulation primarily at issue here — which provides:
“Favorable points shall not be granted for average or above average performance
for inmates who are not assigned to a program.”
Petitioner received two favorable points for performance in a work, school
or vocational program (hereafter, work program or program), but he did not
receive the maximum of four points available because he was unassigned to a
program for about half the relevant time period. In his briefs, he argues that
because he was willing to work, and unassigned through no fault of his own, he
was entitled to the maximum point reduction available.3 The parties agree that he
was unassigned through no fault of his own. Thus, the issue is squarely presented:
Must the inmate actually participate in a work program to receive classification
credit for such participation? Or, conversely, is it sufficient if the inmate is willing
to work and is unassigned through no fault of the inmate? Section 3375.4,
subdivision (a)(3)(B), quoted in the previous paragraph, unambiguously answers
the former question in the affirmative and the latter in the negative. Petitioner
contends, however, that the regulation is invalid on various grounds.
He argues the regulation violates his right to due process of law under both
the United States and the California Constitutions. We disagree. Courts
necessarily review decisions and regulations regarding prison classification
deferentially. Classification of inmates, which determines the level of security

3
At oral argument, petitioner made various additional arguments that are not
within the scope of review. We do not consider those arguments. (Cal. Rules of
Court, rule 8.516(b).)
7


necessary for each inmate, obviously implicates institutional security. “[C]entral
to all other corrections goals is the institutional consideration of internal security
within the corrections facilities themselves.” (Pell v. Procunier (1974) 417 U.S.
817, 823.) The high court has explained that “the problems that arise in the day-
to-day operation of a corrections facility are not susceptible of easy solutions.
Prison administrators therefore should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain institutional security.
[Citations.] „Such considerations are peculiarly within the province and
professional expertise of corrections officials, and, in the absence of substantial
evidence in the record to indicate that the officials have exaggerated their response
to these considerations, courts should ordinarily defer to their expert judgment in
such matters.‟ [Citation.] We further observe that, on occasion, prison
administrators may be „experts‟ only by Act of Congress or of a state legislature.
But judicial deference is accorded not merely because the administrator ordinarily
will, as a matter of fact in a particular case, have a better grasp of his domain than
the reviewing judge, but also because the operation of our correctional facilities is
peculiarly the province of the Legislative and Executive Branches of our
Government, not the Judicial.” (Bell v. Wolfish (1979) 441 U.S. 520, 547-548,
fns. omitted.)
In a later decision, the high court returned to this theme: “Running a prison
is an inordinately difficult undertaking that requires expertise, planning, and the
commitment of resources, all of which are particularly within the province of the
legislative and executive branches of government. Prison administration is,
moreover, a task that has been committed to the responsibility of those branches,
and separation of powers concerns counsel a policy of judicial restraint.” (Turner
v. Safley (1987) 482 U.S. 78, 84-85; see also Overton v. Bazetta (2003) 539 U.S.
8
126, 132 [“We must accord substantial deference to the professional judgment of
prison administrators, who bear a significant responsibility for defining the
legitimate goals of a corrections system and for determining the most appropriate
means to accomplish them.”].)
Often citing the high court decisions, California cases have also stressed the
need for courts to defer to prison authorities in running the prison system. (Woods
v. Horton (2008) 167 Cal.App.4th 658, 673; In re Zepeda (2006) 141 Cal.App.4th
1493, 1498; In re Farley (2003) 109 Cal.App.4th 1356, 1361-1362; Small v.
Superior Court (2000) 79 Cal.App.4th 1000, 1013-1014; In re Lusero, supra, 4
Cal.App.4th at p. 575; In re Wilson (1988) 202 Cal.App.3d 661, 666-667.) “This
deference, which extends to classification decisions [citation], limits judicial
intervention to demonstrated instances of actions by prison officials that are
arbitrary, capricious, irrational, or an abuse of the discretion granted those given
the responsibility for operating prisons.” (In re Wilson, supra, at p. 667; see also
In re Farley, supra, at p. 1361.)
Petitioner cites another test that has been applied in this context but that
appears to have little relevance here. The United States Supreme Court has held
that the denial of good time credits which can reduce the period of incarceration
“does not comport with „the minimum requirements of procedural due process,‟
[citation], unless the findings of the prison disciplinary board are supported by
some evidence in the record.” (Superintendent v. Hill (1985) 472 U.S. 445, 454,
italics added.) Although the high court has also held that prison inmates have no
federal due process right to any particular prison classification (Moody v. Daggett
(1976) 429 U.S. 78, 88, fn. 9; Meachum v. Fano (1976) 427 U.S. 215, 224-225),
California courts have applied the “some evidence” test to adverse classification
9
actions. (In re Farley, supra, 109 Cal.App.4th at p. 1362; In re Wilson, supra, 202
Cal.App.3d at pp. 666-667.)4 Here, however, the relevant facts are undisputed.
Section 3375.4, subdivision (a)(3)(B), provides that inmates who are not assigned
to a program shall be not granted favorable performance points. Petitioner does
not deny that he was unassigned for approximately half of the review period. The
only dispute is the legal significance of this fact. Accordingly, if section 3375.4,
subdivision (a)(3)(B), is valid — a legal issue that is disputed — then clearly some
evidence supports the finding that petitioner is not entitled to the favorable score at
issue here.
Accordingly, in determining whether section 3375.4, subdivision (a)(3)(B),
comports with due process requirements under either the United States or
California Constitution we ask whether it is arbitrary, capricious, or irrational.
Applying this test, we conclude the regulation is valid. In assessing the level of
security an inmate needs, it is rational for the department to consider as one factor
participation in a work program. Petitioner does not seem to argue otherwise. But
petitioner contends that prison authorities may not distinguish between (1) inmates
who are willing to work but are unassigned through no fault of their own and (2)
inmates who actually work. We agree with the Court of Appeal in rejecting this
argument: “The department could have rationally determined that an inmate who

4
Petitioner argues that the “some evidence” test applies to the superior
court‟s ruling granting the petition for writ of habeas corpus rather than the
department‟s action. On the contrary, the test applies to the department‟s actions,
not the superior court‟s. As the Farley court explained, “A court must uphold the
classification action if it is supported by „ “some” ‟ evidence.” (In re Farley,
supra, 109 Cal.App.4th at p. 1362, italics added.) The italicized word “it” clearly
refers to the classification action, not a later court action either upholding or
setting aside the classification action. (See also Superintendent v. Hill, supra, 472
U.S. at p. 454; In re Zepeda, supra, 141 Cal.App.4th at p. 1498.) Courts give the
deference to prison authorities, not reviewing courts to trial courts.
10


performs at average or above average level in a work, school, or vocational
program requires less security than an inmate who performs below average or who
has not demonstrated any performance in such a program. Thus, there is a rational
basis for the department‟s regulation that denies work/school performance points
to inmates who are not assigned to a program, regardless of whether the lack of an
assignment is attributable to the inmate or to the department.” It is rational to
require the inmate to be assigned to a work program and to perform satisfactorily
in that program. Otherwise, prison officials could not meaningfully assess that
inmate‟s security risk for purposes of classifying and housing the inmate in the
system.
In his petition for writ of habeas corpus and its order granting relief,
petitioner and the superior court relied on Player, supra, 146 Cal.App.4th 813.
Player‟s facts were complex, but the Player court ultimately held that the inmate
in that case was entitled to classification points for work participation during a
time period in which he was not assigned to a program. As relevant to the issue on
review, the Court of Appeal in Player analogized classification decisions to
statutory and regulatory provisions concerning work credits that inmates may
receive towards their release date from prison. To understand this portion of
Player, we must briefly discuss prison release work credits.
“Penal Code section 2933 offers state prisoners who participate in
qualifying work, training and educational programs the privilege of earning
„worktime credit‟ (id., subd. (a)) against their sentences.” (In re Reeves (2005) 35
Cal.4th 765, 768, fn. omitted.)5 In some circumstances, inmates may receive such

5
Penal Code section 2933 has been amended occasionally over the years,
and the precise rules regarding who may receive credit, and how much, have

(footnote continued on next page)
11


worktime credit even for time when they do not actually work. (See In re Carter
(1988) 199 Cal.App.3d 271; In re Reina (1985) 171 Cal.App.3d 638.) The prison
regulations reflect this circumstance. They provide that qualifying inmates may,
under certain circumstances, receive worktime credits, called “ „S‟ time,” for time
periods in which they are not actually working. (§ 3045.3.)
The Player court considered “S” time and classification decisions to be
linked and concluded that if an inmate receives “S” time credit for a certain time
period, that inmate is also entitled to favorable classification points for working
during that time period even if the inmate did not actually work. (Player, supra,
146 Cal.App.4th at pp. 827-829.) The superior court relied on this conclusion in
finding that petitioner was entitled to “S” time credit and, accordingly, also
favorable classification credit.
The problem with this rationale is that worktime credit and classification
decisions, although somewhat analogous, are not linked, at least not by statute or
regulation. Worktime credits are governed by Penal Code section 2933, which
limits the discretion of prison authorities. Classification is governed by Penal
Code section 5068, which leaves much to the discretion of prison authorities.
Similarly, the regulations governing classification are distinct from those
governing worktime credits, including “S” time. Although the regulations
governing worktime credits do grant such credits for some time periods in which
an inmate is not working, the regulations governing classification scores
specifically provide that “[f]avorable points shall not be granted for average or

(footnote continued from previous page)

varied. Because this case involves classification rather than worktime credit, we
need not go into this matter further.
12


above average performance for inmates who are not assigned to a program.”
(§ 3375.4, subd. (a)(3)(B).) Accordingly, as the Court of Appeal here observed in
disagreeing with Player, “in contrast to worktime credits, work/school
performance points do depend on actual assignment to a qualifying program and
do reward actual performance in such a program, namely, performance that is
average or better.”
The Player court quoted section 3375.4, subdivision (a)(3)(B), but it never
directly confronted it. It did not explain whether it found that the section is (1)
ambiguous or inapplicable and, if so, why; or (2) invalid and, if so, why. Instead,
it simply said that “[e]ven though „S‟ time technically refers to excused work time
for purposes of calculating credit off of a prisoner‟s sentence, we do not believe it
is logical or fair to deny Player the favorable behavior points for each respective
six-month period at issue in this case under this somewhat analogous situation
where his credit-qualifying assignments were disrupted or changed due [to reasons
not his fault]. To find otherwise would deprive Player of the favorable points he
would have earned during those „continuous‟ periods if he had been left in the
assignment status he was in before it was changed to unassigned by the actions of
the [department].” (Player, supra, 146 Cal.App.4th at p. 828, fn. omitted, italics
added.) But the fact that worktime credits and classification decisions are
governed by entirely distinct statutes and regulations is not a mere technicality.
Section 3375.4, subdivision (a)(3)(B), is unambiguous and, as we have explained,
it does not violate due process. It controls this case.
Petitioner argues that it is unfair to deny him the benefits of participation in
a work program when he was willing to work and was unassigned through no fault
of his own. But, as we have explained, it is neither arbitrary nor irrational to
consider actual work performance in determining how much of a security risk the
13
inmate presents. Accordingly, we must defer to the judgment of prison officials in
providing for institutional security.
Petitioner also contends that, because worktime credits — which can
accelerate an inmate‟s release into society — are sometimes given for mere
willingness to work, logic demands the same rules should apply to classification
decisions. He argues that “it simply cannot be the case that the governmental
interest in public safety implicated by the release of an inmate into society at large
early because he was willing to work, but was absent from work with
authorization, or was willing to work and was simply not assigned to a program, is
less compelling than [the department‟s] interest in maintaining prison security at a
level that would be compromised by awarding an inmate two classification points
in a six-month period, and which will only change his security classification
within the institution in limited circumstances.” But these are policy decisions that
are neither arbitrary nor capricious. The Legislature and, acting under legislative
constraint, prison authorities made one policy decision regarding worktime credits.
Prison authorities, exercising the discretion the Legislature has given them, made a
different policy decision concerning prison classification. As the Court of Appeal
stated in this case, “just because the Legislature decided an inmate should get time
off his sentence for being willing to participate in a work or school program does
not mean the department was bound to decide that the same inmate poses a lesser
security risk while in prison because of that same willingness.”
Ensuring institutional security and determining when an inmate must be
released into society are not the same thing and need not be governed by the same
policy decisions. Under the determinate sentence law, when an inmate who has
been sentenced to a determinate term has served that term, even as reduced by
credits, that inmate must be released even if possibly still dangerous. “Prisoners
sentenced to determinate terms had a date certain upon which they would be
14
released . . . .” (In re Monigold (1983) 139 Cal.App.3d 485, 491; see § 3075.2,
subd. (a).) Even inmates in a maximum security prison can receive worktime
credits and must be released when they have served their sentence. Moreover, for
convicted murderers like petitioner, who are sentenced to an indeterminate term,
the connection between worktime credits and actual release is greatly attenuated.
Inmates sentenced to an indeterminate term generally do not receive Penal Code
section 2933 credits (In re Monigold (1988) 205 Cal.App.3d 1224, 1227), and to
the extent those inmates do receive credits towards their sentence, the credits go
only towards advancing their minimum eligible release date, not their actual
release from prison. (In re Dayan (1991) 231 Cal.App.3d 184.) Petitioner‟s
minimum eligible parole release date has already passed. Deciding when to
actually release an inmate serving an indeterminate term is governed by different
rules and regulations. (See generally In re Rosenkrantz (2002) 29 Cal.4th 616,
653-654.) Thus, neither logic, regulation, statute, nor constitutional mandate
requires that the rules governing worktime credits also govern classification
decisions.
Petitioner also argues that the Court of Appeal erred in considering the
Attorney General‟s argument defending section 3375.4, subdivision (a)(3)(B)‟s
validity — that it is rational to consider actual work performance as a
classification factor — because the Attorney General did not make that argument
in the superior court. In his original petition for writ of habeas corpus in the
superior court, petitioner relied exclusively on Player, supra, 146 Cal.App.4th
813. In his return, the Attorney General relied in part on section 3375.4,
subdivision (a)(3)(B), but did not specifically discuss the section‟s constitutional
validity. Instead, he concentrated on trying to distinguish Player. In his denial to
the return, petitioner, now represented by an attorney, again relied primarily on
Player. He did not attempt either to challenge or to distinguish section 3375.4,
15
subdivision (a)(3)(B). He simply ignored it. The superior court relied solely on
Player in granting relief.
Petitioner contends the Attorney General has forfeited the right to defend
section 3375.4, subdivision (a)(3)(B), against a constitutional challenge because he
did not do so in the superior court. But similar reasoning would lead to the
conclusion that petitioner may not now challenge that section because he did not
do so in the superior court. It cannot be the case that petitioner may challenge, but
the Attorney General may not defend, the regulation for the first time on appeal.
In fact, we have “allowed parties to „ “advance new theories on appeal when the
issue posed is purely a question of law based on undisputed facts, and involves
important questions of public policy.” ‟ ” (Farm Raised Salmon Cases (2008) 42
Cal.4th 1077, 1090, fn. 11, quoting Cedars-Sinai Medical Center v. Superior
Court (1998) 18 Cal.4th 1, 6.) Because Player, supra, 146 Cal.App.4th 813, a
published Court of Appeal decision, was binding on the superior court (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), it made sense for
the parties to litigate in the superior court whether Player applied rather than
whether it was correct. The Court of Appeal was a logical place to litigate
Player‟s correctness, which necessarily included litigating section 3375.4,
subdivision (a)(3)(B)‟s validity. (See Cedars-Sinai Medical Center v. Superior
Court, supra, at p. 6.) Accordingly, we will permit petitioner to challenge, and the
Attorney General to defend, section 3375.4, subdivision (a)(3)(B).
Citing People v. McKee (2010) 47 Cal.4th 1172, petitioner argues that the
question of section 3375.4, subdivision (a)(3)(B)‟s validity involves disputed
facts — specifically, whether it is rational to consider as a classification factor
actual work performance rather than mere willingness to work. He argues the
Court of Appeal erred, indeed, even violated his constitutional rights, in resolving
the question without an evidentiary record. In McKee, this court held that an
16
evidentiary hearing was needed to resolve an equal protection challenge to a
statute that was subject to strict scrutiny. (People v. McKee, supra, at pp. 1206-
1211.) The due process issue here is whether section 3375.4, subdivision
(a)(3)(B), is rational. McKee specifically limited its holding to classifications
subject to strict scrutiny; it does not extend to statutes or regulations subject only
to review for rationality. (People v. McKee, supra, at p. 1211, fn. 14.) Whether a
statute or regulation is rational is, as a general rule, a legal question for the courts
to resolve, not a factual question requiring an evidentiary hearing. In conducting
rational-basis equal protection analysis, “ „a legislative choice is not subject to
courtroom factfinding and may be based on rational speculation unsupported by
evidence or empirical data.‟ ” (Warden v. State Bar (1999) 21 Cal.4th 628, 650,
quoting FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 315, italics
added in Warden.) We believe the same rule should apply to a due process
challenge asking whether the regulation is rational. Accordingly, we agree with
the Court of Appeal in rejecting petitioner‟s forfeiture argument: “The proposition
that, as a general matter, an inmate who performs at average or above average
level in a work, school, or vocational program requires less security than other
inmates is not a question of historical fact that had to be determined based on
evidence presented in this case. Thus, we do not become the trier of fact by
considering that proposition on appeal.”
In addition to his due process argument, petitioner invokes other
constitutional, statutory, and regulatory provisions. He contends that section
3375.4, subdivision (a)(3)(B), also violates equal protection guarantees under both
the United States and California Constitutions. This case involves neither a
suspect class nor a fundamental interest. (See Warden v. State Bar, supra, 21
Cal.4th at pp. 640-643.) Accordingly, the classification will be upheld if there is a
rational basis for it. (Ibid.) The classification distinguishing between those who
17
are willing to work but are unassigned through no fault of their own, and those
who actually work, has a rational basis. Our conclusion that 3375.4, subdivision
(a)(3)(B), is not arbitrary, nor capricious, or irrational — the test we applied in
finding the section comports with due process — necessarily also means that it is
rational.
Because an inmate may receive “S” time credit for “[a] temporary
interruption or delay in the inmate‟s assignment which is no fault of the inmate”
(§ 3045.3, subd. (b)(13)), petitioner claims it is irrational to distinguish between
inmates who are unassigned and those who are assigned but whose actual
performance is temporarily interrupted or delayed. It is not clear whether the rules
regarding classification credits under section 3375.4, subdivision (a), are similar to
this “S” time rule. But in any event, the department can rationally distinguish
between an inmate who is not assigned to a program at all and one who is assigned
to a program but has some excused absences. An inmate may receive
classification reduction points only for a “six-month period with an average or
above performance” in a work program. (§ 3375.4, subd. (a)(3).) Thus, an inmate
who is assigned to a program but never actually works (the situation petitioner
posits) would presumably not receive the point reduction. An inmate who is
assigned to a program and temporarily missed some work — but is nevertheless
found to have performed overall at an average or above level — will have a record
of working, which would aid the department in determining how much of a
security risk the inmate is.
Petitioner also invokes Penal Code section 2600, which provides that an
inmate confined in a state prison may “be deprived of such rights, and only such
rights, as is reasonably related to legitimate penological interests.” It is not clear
exactly which right not reasonably related to legitimate penological interests
petitioner claims he is being denied. Certainly, noninmates have a right not to be
18
classified under Penal Code section 5068 and, in that sense, subjecting inmates to
such classification deprives them of that right. But classifying inmates is
obviously, and reasonably, related to legitimate penological interests. Penal Code
section 2600 does not make Penal Code section 5068 invalid. Petitioner does not
appear to assert otherwise. To the extent petitioner argues that by violating some
other right, the classification decision of this case also violated Penal Code section
2600, the argument adds nothing to those already considered. Finally, petitioner
argues that the department violated its own regulations, specifically section 3375,
subdivision (f)(7), which requires that the classification decisions “be based on
evaluation of available information.” He claims that because he was unassigned
during the period in question, “his performance in that job or program is
information that is „unavailable.‟ ” We disagree. The fact that petitioner did not
actually work during that time period — the critical fact under section 3375.4,
subdivision (a)(3)(B) — is available information.
For these reasons, we conclude the department properly applied section
3375.4, subdivision (a)(3)(B), to deny petitioner the two-point reduction in his
classification score at issue here. The Court of Appeal in this case correctly so
held. We disapprove In re Player, supra, 146 Cal.App.4th 813, to the extent it is
inconsistent with this opinion.

19



III. CONCLUSION
We affirm the judgment of the Court of Appeal.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

20



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Jenkins
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 175 Cal.App.4th 300
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S175242
Date Filed: October 28, 2010
__________________________________________________________________________________

Court:

Superior
County: Lassen
Judge: Dawson Arnold, Commissioner

__________________________________________________________________________________

Counsel:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Jessica N. Blonien, Anya M. Binsacca, Jennifer A. Neill and
Christopher J. Rench, Deputy Attorneys General, for Appellant State of California.

Linnéa M. Johnson, under appointment by the Supreme Court, and S. Lynne Klein, under appointment by
the Court of Appeal, for Respondent Harvey Zane Jenkins.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Christopher J. Rench
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5374

Linnéa M. Johnson
2407 J Street, Suite 301
Sacramento, CA 95814
(916) 442-3792


Petition for review after the Court of Appeal reversed an order granting relief on a petition for writ of habeas corpus. This case presents the following issue: If a prisoner is not assigned to a prison work program due to reasons that are not his or her fault, such as a transfer between prisons or within the prison, is the prisoner nonetheless entitled to the favorable classification points, which may reduce the prisoner's custody level, that can be earned for performance in such a program?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 10/28/201050 Cal. 4th 1167, 240 P.3d 260, 116 Cal. Rptr. 3d 790S175242Review - Habeas (criminal)submitted/opinion due

Parties
1Jenkins, Harvey Zane (Petitioner)
California Substance Abuse Treatment Facility
P. O. Box 7100
Corcoran, CA 93212

Represented by Central California Appellate Program
2407 "J" Street, Suite 301
2407 "J" Street, Suite 301
Sacramento, CA

2Jenkins, Harvey Zane (Petitioner)
California Substance Abuse Treatment Facility
P. O. Box 7100
Corcoran, CA 93212

Represented by S. Lynne Klein
Attorney at Law
P.O. Box 367
Davis, CA

3Jenkins, Harvey Zane (Petitioner)
California Substance Abuse Treatment Facility
P. O. Box 7100
Corcoran, CA 93212

Represented by Linnea Marie Johnson
Central California Appellate Program
2407 "J" Street. Suite 301
Sacramento, CA

4Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Christopher John Rench
Office of the Attorney General
P.O. Box 944255
Sacramento, CA


Opinion Authors
OpinionJustice Ming W. Chin

Dockets
Aug 5 2009Petition for review filed
Petitioner: Jenkins, Harvey ZaneAttorney: S. Lynne Klein   Harvey Zane Jenkins, Petitioner S. Lynne Klein, CA Appointed Under CRC 8.25 (b)
Aug 5 2009Record requested
 
Aug 7 2009Received Court of Appeal record
  one doghouse
Sep 23 2009Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including November 3, 2009, or the date upon which review is either granted or denied.
Oct 22 2009Petition for review granted
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Nov 5 2009Counsel appointment order filed
  Upon request of appellant for appointment of counsel, the Central California Appellate Program is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Nov 13 2009Request for extension of time filed
  counsel for appellant requests an extension of time until February 5, 2010, to file the opening brief on the merits, by Linnea M. Johnson, counsel.
Nov 17 2009Extension of time granted
  On application of petitioner and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including January 6, 2010.
Dec 22 2009Request for extension of time filed
  by petitioner requesting a 30-day extension to and including February 5, 2010 to file petitioner's opening brief on the merits.
Jan 6 2010Extension of time granted
  On application of petitioner and good cause appearing, it is ordered that the time to serve and file the Petitioner's Opening Brief on the merits is hereby extended to and including February 5, 2010. No further extension of time is contemplated.
Feb 4 2010Opening brief on the merits filed
Petitioner: Jenkins, Harvey ZaneAttorney: Linnea Marie Johnson  
Feb 26 2010Request for extension of time filed
  to and including April 5, 2010, to file Respondent's Answer Brief on the Merits
Mar 3 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including April 5, 2010.
Apr 6 2010Answer brief on the merits filed
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Christopher John Rench   CRC 8.25(b)
Apr 21 2010Request for extension of time filed
  to and including May 25, 2010 to file Petitioner Jenkin's reply brief on the merits.
Apr 23 2010Extension of time granted
  On application of Petitioner Jenkins and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including May 25, 2010. No further extensions of time are contemplated.
May 13 2010Application to file over-length brief filed
  Petitioner Harvey Zane Jenkins'
May 14 2010Reply brief filed (case fully briefed)
Petitioner: Jenkins, Harvey ZaneAttorney: Linnea Marie Johnson   (Filed with permission -- overlength brief)
Jul 29 2010Order filed
  The parties are requested to brief the question of whether petitioner, who is sentenced to an indeterminate term, is entitled to, and can benefit from, "S" time. (See In re Dayan (1991) 231 Cal.App.3d 184; In re Monigold (1988) 205 Cal.App.3d 1224, 1227; CT 62.) The parties may also brief the significance of the answer to this question, if any, on the correctness of the Court of Appeal's disposition of the case. Both parties are directed to serve and file simultaneous supplemental letter briefs limited to these questions on or before August 18, 2010. The parties may serve and file simultaneous letter reply briefs within 10 days after the filing of the supplemental letter briefs.
Aug 2 2010Case ordered on calendar
  To be argued Wednesday, September 8, 2010, at 1:30 p.m. in San Francisco.
Aug 17 2010Supplemental brief filed
Petitioner: Jenkins, Harvey ZaneAttorney: Linnea Marie Johnson  
Aug 18 2010Supplemental brief filed
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Christopher John Rench  
Aug 26 2010Supplemental brief filed
Petitioner: Jenkins, Harvey ZaneAttorney: Linnea Marie Johnson   Petitioner's reply to supplemental letter brief
Aug 27 2010Supplemental brief filed
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Christopher John Rench   Respondent's reply to supplemental letter brief.
Sep 8 2010Cause argued and submitted
 
Oct 27 2010Notice of forthcoming opinion posted
  To be filed Thursday, October 28, 2010 @ 10 a.m.

Briefs
Feb 4 2010Opening brief on the merits filed
Petitioner: Jenkins, Harvey ZaneAttorney: Linnea Marie Johnson  
Apr 6 2010Answer brief on the merits filed
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Christopher John Rench  
May 14 2010Reply brief filed (case fully briefed)
Petitioner: Jenkins, Harvey ZaneAttorney: Linnea Marie Johnson  
Brief Downloads
application/pdf icon
appellants-opening-brief-on-the-merits-2.pdf (452583 bytes) - Appellant's Opening Brief on the Merits
application/pdf icon
appellants-petition-for-review-1.pdf (403269 bytes) - Appellant's Petition for Review
application/pdf icon
appellants-reply-brief-on-the-merits-4.pdf (352879 bytes) - Appellant's Reply Brief on the Merits
application/pdf icon
appellants-supplemental-letter-brief-5.pdf (142852 bytes) - Appellant's Supplemental Letter Brief
application/pdf icon
respondents-answer-brief-on-the-merits-3.pdf (355149 bytes) - Respondent's Answer Brief on the Merits
application/pdf icon
respondents-supplemental-letter-brief-6.pdf (49625 bytes) - Respondent's Supplemental Letter Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Dec 14, 2010
Annotated by sklitsch

Facts
Petitioner Harvey Zane Jenkins was convicted in 1993 of second degree murder with personal use of a firearm and sentenced to state prison for 15 years to life plus three years. On December 21, 2005, petitioner was transferred from Centinela State Prison to High Desert State Prison, and was not assigned to a work program until January 16, 2006. He worked until March 9, 2006, when he was transferred to another facility within High Desert and spent 172 days without a work assignment. On October 24, 2006, prison authorities conducted petitioner’s annual review of his classification score. Out of a possible four points, petitioner received a two-point reduction for average or above average performance in a work, school, or vocational program. The other two points were denied because he was without a work assignment for about half of the review period.

Procedural History
Petitioner contended that because his transfer to High Desert was not adverse, he was entitled to a full four-point reduction. He pursued an internal administrative appeal, but was denied at all administrative levels. In July 2007, he filed a petition for writ of habeas corpus in the Lassen County Superior Court, which determined that he was entitled to the additional favorable work points because petitioner’s work status disruption was beyond the petitioner’s control. On June 27, 2008 the warden of High Desert, represented by the Attorney General, filed a notice of appeal. This appeal was originally dismissed as untimely, but later the Court of Appeal granted the Attorney General’s petition for rehearing. The Court of Appeal reversed the superior court’s grant of the habeas corpus petition.

Issue
Whether an inmate who is willing to work but, without his or her fault, is not assigned to a work program may receive the benefit of work participation for classification purposes.

Holding
The regulations provide that an inmate, though he or she may be willing to work, may not receive the benefits of work participation for classification purposes if he or she was not assigned to a work program.

Analysis
Under Penal Code section 5058, the legislature authorized the Secretary of the Department of Correction and Rehabilitation “to prescribe and amend rules and regulations for the administration of the prisons….” (Pen. Code, § 5058). These regulations provide for a classification score system where a lower placement score indicates lesser security control needs. Therefore, the prisoner classification score helps determine where a prisoner will serve his or her incarceration. Under California Code of Regulations, title 15, section 3375.4(a)(3), an inmate will receive two favorable points “for each six-month period with an average or above average performance in [a] work, school, or vocation program.” Section 3375.4(a)(3)(B), however, provides that “[f]avorable points shall not be granted for average or above average performance for inmates who are not assigned to a program.”

(1) Whether the regulations violate petitioner’s right to due process of law under both the United States and the California Constitutions.

Supreme Court precedent has established that prison administrators should be given deference in adopting and executing policies necessary to promote institutional security. (See Pell v. Procunier (1974) 417 U.S. 817, 823). Therefore, courts should defer to the judgment of prison administrators because of their expertise, as well as because “the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the judicial.” (Bell v. Wolfish (1979) 441 U.S. 520, 547-548). California cases have also made clear that courts should defer to prison authorities except when actions by prison officials are “arbitrary, capricious, irrational, or an abuse of the discretion granted those given the responsibility for operating prisons.” (In re Wilson (1988) 202 Cal.App.3d 661, 667.)

To determine whether section 3375.4(a)(3)(B) meets due process requirements under either the United States Constitution or California Constitution, the court asks whether it is arbitrary, capricious or irrational. The regulation is valid under this test as it is rational for the department to consider participation in a work program in assessing the level of security an inmate needs. It is rational that the regulation requires that an inmate satisfactorily complete the work program in order to receive the classification benefit.

(2) Relationship to prison release work credits.

The petitioner and the superior court relied on In re Player (2007) 146 Cal.App.4th 813, as the Player court held that an inmate was entitled to classification points for work participation during a time period in which he was not assigned to a program and analogized classification decisions to provisions concerning work credits that inmates receive toward their release date from prison. The regulations for worktime credits, called “S” time, allow inmates to receive worktime credits for time periods when they are not working. The Player court concluded that if an inmate receives “S” time credit, an inmate is also entitled to favorable classification points for working during that same time, even if the inmate was not working. While worktime credits and classification decisions seem analogous, they are not linked. They are governed by different penal code sections, and the regulations for classification scores specifically provides that points are not to be granted for time periods when inmates are not working.

The petitioner contends that as worktime credits can hasten an inmate’s return to society and are sometimes given for mere willingness to work, it seems logical that the same rules should apply to classification decisions. These policy decisions, however, are neither arbitrary or capricious. Deciding when an inmate should be released into society and ensuring institutional security are different and do not need to be determined by the same policy decisions.

(3) Whether section 3375.4(a)(3)(B) violates equal protection guarantees under both the United States and California Constitutions.

As petitioner’s case involves neither a suspect class nor a fundamental interest, the classification will be upheld if there is a rational basis for it. The classification between those inmates who work and those who are willing to work but are unassigned through no fault of their own has a rational basis.

Disposition
The Court of Appeals is affirmed.

Tags
Prison work program
Habeas corpus
Prisoner classification
Due process
Sentencing
Rationality review
Arbitrary
Capricious
Equal protection

Cited Cases & Statutes
In re Player (2007) 146 Cal.App.4th 813
http://scholar.google.com/scholar_case?case=1106275517155986703&q=146+Ca...

In re Lusero (1992) 4 Cal.App.4th 572
http://scholar.google.com/scholar_case?case=979394801323796847&q=4+Cal.A...

In re Richards (1993) 16 Cal.App.4th 93
http://scholar.google.com/scholar_case?case=7323845726836473049&q=16+Cal...

Pell v. Procunier (1974) 417 U.S. 817
http://scholar.google.com/scholar_case?case=4925628464386229970&q=417+U....

Bell v. Wolfish (1979) 441 U.S. 520
http://scholar.google.com/scholar_case?case=4537162703993098019&q=441+U....

Turner v. Safley (1987) 482 U.S. 78
http://scholar.google.com/scholar_case?case=15686747716085264205&q=482+U...

Overton v. Bazzetta (2003) 539 U.S. 126
http://scholar.google.com/scholar_case?case=646035096964305959&q=539+U.S...

Woods v. Horton (2008) 167 Cal.App.4th 658
http://scholar.google.com/scholar_case?case=3460038161375421087&q=167+Ca...

In re Zepeda (2006) 141 Cal.App.4th 1493
http://scholar.google.com/scholar_case?case=12558806165028184314&q=141+C...

In re Farley (2003) 109 Cal.App.4th 1356
http://scholar.google.com/scholar_case?case=10398310054002031431&q=109+C...

Small v. Superior Court (2000) 79 Cal.App.4th 1000
http://scholar.google.com/scholar_case?case=3855288976764376719&q=79+Cal...

In re Wilson (1988) 202 Cal.App.3d 661
http://scholar.google.com/scholar_case?case=6873925706175457252&q=202+Ca...

Superintendent v. Hill (1985) 472 U.S. 445
http://scholar.google.com/scholar_case?case=5980099174901231967&q=472+U....

Moody v. Daggett (1976) 429 U.S. 78
http://scholar.google.com/scholar_case?case=5518034841452304285&q=429+U....

Meachum v. Fano (1976) 427 U.S. 215
http://scholar.google.com/scholar_case?case=9722315340728100736&q=427+U....

In re Reeves (2005) 35 Cal.4th 765
http://scholar.google.com/scholar_case?case=3183332912415523859&q=35+Cal...

In re Carter (1988) 199 Cal.App.3d 271
http://scholar.google.com/scholar_case?case=12863471949631180202&q=199+C...

In re Reina (1985) 171 Cal.App.3d 638
http://scholar.google.com/scholar_case?case=8527007916062843881&q=171+Ca...

In re Monigold (1983) 139 Cal.App.3d 485
http://scholar.google.com/scholar_case?case=12436565230800730004&q=139+C...

In re Dayan (1991) 231 Cal.App.3d 184
http://scholar.google.com/scholar_case?case=11346553085140086920&q=231+C...

In re Rosenkrantz (2002) 29 Cal.4th 616
http://scholar.google.com/scholar_case?case=8910161325736108454&q=29+Cal...

Farm Raised Salmon Cases (2008) 42 Cal.4th 1077
http://scholar.google.com/scholar_case?case=14009034698210363041&q=42+Ca...

Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1
http://scholar.google.com/scholar_case?case=3838524638027006803&q=18+Cal...

Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450
http://scholar.google.com/scholar_case?case=4435643446420699573&q=57+Cal...

People v. McKee (2010) 47 Cal.4th 1172
http://scholar.google.com/scholar_case?case=10548272385543055648&q=47+Ca...

Warden v. State Bar (1999) 21 Cal.4th 628
http://scholar.google.com/scholar_case?case=15901382666582466684&q=21+Ca...

FCC v. Beach Communications, Inc. (1993) 508 U.S. 307
http://scholar.google.com/scholar_case?case=1233327823176781402&q=508+U....

Cal. Penal Code § 187
http://law.justia.com/california/codes/2009/pen/187-199.html

Cal. Penal Code § 190(a)
http://law.justia.com/california/codes/2009/pen/187-199.html

Cal. Penal Code § 2600
http://law.justia.com/california/codes/2009/pen/2600-2601.html

Cal. Penal Code § 2933
http://law.justia.com/california/codes/2009/pen/2930-2935.html

Cal. Penal Code § 5058
http://law.justia.com/california/codes/2009/pen/5050-5071.html

Cal. Penal Code § 5068
http://law.justia.com/california/codes/2009/pen/5050-5071.html

Cal. Penal Code § 12022.5(a)
http://law.justia.com/california/codes/2009/pen/12020-12040.html

California Rules of Court
-Rule 8.308(a)
http://www.courtinfo.ca.gov/rules/index.cfm?title=eight&linkid=rule8_308

California Code Regs. tit. 15, § 3375.4
http://www.calregs.com/linkedslice/default.asp?SP=CCR-1000&Action=Welcome

Stephanie Klitsch