Petition for writ of supersedeas from an order of the Superior Court of Orange County, Thomas M. Goethals, Judge. Petition denied. (Super. Ct. No. M-12844 X A)
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
The California Department of Corrections and Rehabilitation (the Department), by Ron Barnes, Warden of the California Correctional Center, petitions for a writ of supersedeas. This petition presents the question of whether Penal Code section 2933.1, subdivision (a) (§ 2933.1(a)),*fn1 limits the post-sentence credits that can be accrued under sections 2933 and 2933.3 when a criminal defendant has been convicted of a "`violent felony'" (§ 667.5, subd. (c)), but is not serving a sentence pursuant to the violent felony conviction because such sentence was stayed pursuant to section 654. The trial court granted Adrian Gomez's petition for writ of habeas corpus, quite properly ruling that In re Phelon (2005) 132 Cal.App.4th 1214 (Phelon), the only published case on this issue not superseded by a grant of review, compelled such a result. Courts, including this one, have disagreed with the rationale and holding of Phelon, and the Supreme Court has granted review of two cases to settle this controversy. (See People v. Duff, review granted Aug. 27, 2007, S153917; In re Pope, review granted April 9, 2008, S160930.) We agree with Phelon and therefore deny the petition for writ of supersedeas. Section 2933.1(a) has no effect when the only violent felony conviction at issue is stayed pursuant to section 654.
On May 19, 2007, Gomez lost control of his vehicle and crashed into a tree. His best friend, riding in the passenger seat, was killed.
On June 13, 2008, Gomez pleaded guilty to all four counts alleged against him in the felony complaint: (1) gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); (2) vehicular manslaughter while intoxicated (§ 191.5, subd. (b)); (3) driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a)); and (4) driving under the influence with a blood alcohol content of .08 percent or more causing bodily injury (Veh. Code, § 23153, subd. (b)). All four of these counts pertain to the same victim, Derek Walters.*fn2 As to the latter two counts for driving under the influence, Gomez admitted charged enhancements under section 12022.7, subdivision (a), for personally inflicting great bodily injury on his victim.
The sentencing court sentenced Gomez to four years in state prison. This sentence represents the low term for count one, gross vehicular manslaughter while intoxicated. (§ 191.5, subd. (c)(1) [four, six, or 10 years].) The sentencing court stayed sentencing on the remaining counts in accordance with section 654; the court did not actually select a sentence for any of the remaining counts. The sentencing court acknowledged Gomez was entitled to 235 days of credit for time served. But the court commented it would not "calculate any good time/work time credits; it is leaving it to the Department of Correction to calculate those credits and based on case law is assuming that it will be at 15 percent, since the court is staying any enhancement and not dismissing any enhancement." Thus, Gomez faced a maximum of approximately three years and 130 days of prison time, subject to any potential worktime credit.
"The Department calculates an earliest possible release date (EPRD) for each inmate. [Citations.] To do so, it starts with the date of sentencing, adds the total prison term imposed, and subtracts any presentence credit awarded. This establishes a maximum release date. From this date, the Department subtracts worktime credits the inmate has earned or is expected to earn in his current credit-earning status, adds back any worktime credits that have been denied or lost through disciplinary actions, and subtracts any denied or lost credits that have been restored. The result is the EPRD, with the proviso that it cannot exceed the maximum release date calculated from the total prison term less presentence credits. [Citation.] The EPRD is predictive, in that it is subject to change." (In re Tate (2006) 135 Cal.App.4th 756, 759 (Tate).)
On July 16, 2008, the Department classified Gomez as an inmate eligible to receive full post-conviction conduct credit with an earliest possible release date of February 21, 2010. The Department also informed Gomez he was eligible for and could volunteer to serve his time at one of its fire camps that would qualify him to receive additional conduct credit pursuant to section 2933.3. Gomez was assigned to a fire camp and began training there on February 5, 2009. Gomez was then told his earliest possible release date would be October 17, 2009. Gomez has fought in at least six forest fires to date and continues to reside at the fire camp.
On April 16, 2009 (a little more than two months after being told he would be eligible for release on October 17, 2009), the Department informed Gomez his release date had been recalculated pursuant to section 2933.1. The Department now calculated his earliest possible release date as April 23, 2011. The Department rejected Gomez's administrative appeal of this decision.
Gomez petitioned the trial court and it granted the petition for writ of habeas corpus on October 16, 2009. The court directed the Department "to grant additional post-sentence conduct credit in accordance with [sections] 2933 and . . . 2933.3, to recalculate his release date, and if he is overdue for release, to release him immediately on parole." The Department appealed and petitioned this court for a writ of supersedeas staying the trial court's order pending the resolution of the Department's appeal. We issued a temporary stay and set the matter for hearing after further briefing.
"Where an application for a writ of habeas corpus has been made by or on behalf of any person other than a defendant in a criminal case, an appeal may be taken to the court of appeal from a final order of a superior court granting all or any part of the relief sought. . . . [T]he court in which the appeal . . . is pending may, in its discretion, and upon such conditions as it deems just stay the execution of the order pending final determination of the matter." (§ 1507.) A petitioner seeking a writ of ...