ORIGINAL PROCEEDINGS: Writ of Habeas Corpus. Talmadge R. Jones, Judge. Petition denied and Order to Show Cause discharged. (Super. Ct. No. 03F02818).
The opinion of the court was delivered by: Cantil-sakauye, J.
CERTIFIED FOR PUBLICATION
Penal Code section 2933*fn1 allows state prisoners who participate in qualifying work, training, and educational programs the privilege of earning post-sentence conduct credit against their sentences. (Id., subd. (a) (the statute refers to this credit as "worktime credit").) Section 2933.05 authorizes post-sentence credit for a prisoner's successful completion of specific program performance objectives in approved rehabilitative programming. (Id., subd. (a).) However, section 2933.2, subdivision (a) provides that "any person who is convicted of murder, . . . , shall not accrue any credit, as specified in Section 2933 or Section 2933.05." (§ 2933.2, subd. (a), hereafter § 2933.2(a).) Section 2933.2, subdivision (b) further specifies that this prohibition applies "whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law." (§ 2933.2, subd. (b), hereafter § 2933.2(b).)
In this matter we consider whether a state prisoner convicted of murder and sentenced to an indeterminate life term is entitled to earn post-sentence conduct credit against a consecutive determinate term imposed for a separate offense, which section 669 directs to be served first. We conclude section 2933.2 bars such credit.*fn2
In 2004, petitioner Manuel Jose Maes, Jr. was convicted of second degree murder (§ 187) with a true finding that he used a deadly weapon, a baseball bat, in the commission of the offense. (§ 12022, subd. (b)(1).)*fn3 The trial court sentenced petitioner to an indeterminate term of 15 years to life, plus one year for the deadly weapon enhancement. Petitioner's probation on a 2002 spousal abuse conviction (§ 273.5) was revoked*fn4 and terminated; the trial court sentenced petitioner to serve the upper term of four years for that conviction. The sentences were ordered to be served consecutively.*fn5
The California Department of Corrections and Rehabilitation (CDCR) determined petitioner was ineligible to earn post-sentence conduct credit under section 2933.2 on any portions of his sentence. Contending he was entitled to earn such credits on the determinate portions of his sentence, petitioner appealed the CDCR's conclusion. When the CDCR denied his appeal, petitioner filed a petition for writ of habeas corpus with the superior court. The superior court issued an order to show cause, but denied the petition after hearing.
Petitioner then filed an original petition for habeas corpus in this court. We issued an order to show cause limited to "petitioner's claim that he is entitled to conduct credits during service of his term for conviction of violation of Penal Code Section 273.5." Having now considered the issue, we shall deny the petition.
I. General Statutory Background
Before we consider the precise issue before us, it is helpful to set the stage with a review of a few general principles regarding sentencing in California.*fn6
Two different criminal offender sentencing schemes coexist in California: one determinate (a sentence for a specific number of years) and the other indeterminate (a sentence for some number of years to life or simply "life"). (People v. Felix (2000) 22 Cal.4th 651, 654 (Felix).) "'Every person who commits a public offense, for which any specification of three time periods of imprisonment in any state prison is now prescribed by law or for which only a single term of imprisonment in state prison is specified,' i.e., for any determinate term, 'shall . . . be sentenced pursuant to' the [Determinate Sentencing Act], section 1170 et seq. (§ 1168, subd. (a) [determinate sentencing].) 'For any person not sentenced under such provision, but who is sentenced to be imprisoned in the state prison, including imprisonment not exceeding one year and one day, the court imposing the sentence shall not fix the term or duration of the period of imprisonment.' (§ 1168, subd. (b) [indeterminate sentencing].)" (Id. at pp. 654-655.)
"In any given case, an overall sentence might include both determinate terms and indeterminate terms. Whenever a person is convicted of two or more crimes, the court must impose either concurrent or consecutive sentences. (§ 669.)" (Felix, supra, 22 Cal.4th at p. 655.) That the court's authority to impose either concurrent or consecutive sentences includes life sentences is made clear by further language in section 669, which provides: "[l]ife sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction."
Section 190 sets forth the punishment for persons convicted of murder. Except where the death penalty is imposed, a murderer receives an indeterminate term of life in prison. As applicable to petitioner here, the statute states second degree murder is "punished by imprisonment in the state prison for a term of 15 years to life." (§ 190, subd. (a).) The trial court sentenced petitioner to the prescribed 15-years-to-life indeterminate term for his murder conviction.
In addition to the prison terms imposed for underlying substantive offenses, there are numerous statutory provisions providing for additional punishment of a defendant through enhancements. (See, e.g., §§ 186.22, subd. (b)(1), 368, subd. (b)(2); 12021.5, 12022, 12022.5, 12022.53, 12022.55, 12022.6, 12022.7.) In some cases, as in this one, enhancements for a specified number of years, a determinate sentence, may be attached to an indeterminate life sentence. (§ 669; People v. Felix, supra, 22 Cal.4th at pp. 655-656.) The determinate term enhancement attached to an indeterminate term is not subject to the determinate sentencing law. (Felix, supra, at p. 656.) The trial court here added a one-year enhancement term for petitioner's use of a deadly weapon (§ 12022, subd. (b)(1)) and ordered the enhancement and the four-year determinate term imposed for petitioner's separate section 273.5 conviction to be served consecutively to the indeterminate life sentence. (See fn. 4, ante.)
When a life sentence and determinate terms are ordered to be served consecutively, section 669 directs that "the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person's eligibility for parole as calculated pursuant to Section 3046 or pursuant to any other section of law that establishes a minimum period of confinement under the life sentence before eligibility for parole."
Section 190 provides that "Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 [the post-sentence conduct credit provisions] shall not apply to reduce any minimum term of a sentence imposed pursuant to this section. A person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of ...