In re Jenkins 6/25/09 CA3

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2009 » In re Jenkins 6/25/09 CA3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C059321

Case Date: 10/22/2009

Preview:Filed 6/25/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen) ----

C059321 In re HARVEY ZANE JENKINS, (Super. Ct. No. CHW2321) on Habeas Corpus.

APPEAL from a judgment of the Superior Court of Lassen County, Dawson Arnold, Court Commissioner. Reversed. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jessica N. Blonien, Supervising Deputy Attorney General, Christopher J. Rench, Deputy Attorney General, for Appellant the People. S. Lynne Klein, under appointment by the Court of Appeal, for Respondent Harvey Zane Jenkins. Because of a transfer from Centinela State Prison to High Desert State Prison and a later transfer between facilities within High Desert, inmate Harvey Zane Jenkins spent more than half a year unassigned to a work, school, or vocational program. As a result, at his next annual classification review, he received only two of the four favorable classification points

1

available for average or above-average performance in such a program.1 By way of a habeas corpus petition, Jenkins sought to compel the Department of Corrections and Rehabilitation (the department) to award him the other two work/school performance points because the interruption in his work assignment was the result of a nonadverse transfer.2 Following In re Player (2007)

146 Cal.App.4th 813, the superior court granted Jenkins relief based on the conclusion that because Jenkins was entitled to "S" time -- i.e., "excused work time for purposes of calculating credit off of [his] sentence" (id. at pp. 827-828) -- for the time he was not assigned to a work program, he was also entitled to favorable classification points for average or above-average performance in a work, school, or vocational program for his unassigned time as well. On the prison wardens appeal, we conclude -- first of all -- that the notice of appeal was timely filed under rule

1

For ease of reference, we will refer to the favorable classification points that are available under section 3375.4, subdivision (a)(3) of title 15 of the California Code of Regulations for "average or above performance in [a] work, school or vocational program" as work/school performance points.
2

Jenkins focused on his initial transfer between prisons and did not mention his later transfer between facilities within High Desert. The departments response made clear, however, that the time Jenkins was unassigned during the period under review was attributable to both transfers. 2

8.308(a) of the California Rules of Court.3

As we will explain,

under rule 8.308(a), "a notice of appeal . . . must be filed within 60 days after the rendition of 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. Second, we 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." tit. 15,

Download In re Jenkins 6/25/09 CA3.pdf