Ct.App. 4/3 G036562 Orange County Super. Ct. No. 04NF2414 Judge: James A. Stotler.
The opinion of the court was delivered by: George, C. J.
Filed 08/19/2010 (this opn. should follow the companion case, S160930, also filed 8/19/2010)
Defendant James Edward Duff, Jr., was convicted of assault on a child committed with force likely to cause great bodily injury resulting in death and of second degree murder. A sentence of 25 years to life in prison was imposed for the conviction of assault on a child resulting in death. A sentence of 15 years to life in prison was imposed for the second-degree-murder conviction. Execution of sentence for the murder conviction was stayed pursuant to Penal Code section 654.*fn1
Defendant contends that because execution of sentence for the murder conviction was stayed pursuant to section 654, the prohibition against the earning of presentence conduct credit for persons convicted of murder that is established by section 2933.2, subdivision (c) (section 2933.2(c)), should not have been applied to the calculation of presentence conduct credit against defendant's term of imprisonment for assault on a child resulting in death. We disagree.
Defendant smothered his son James, then nearly one year of age. The child died of suffocation. Defendant was convicted by jury of second degree murder (§§ 187, subd. (a), 189) and assault on a child with force likely to cause great bodily injury resulting in death. (§ 273ab.) As noted, the trial court imposed and executed sentence for the conviction carrying the greater term; specifically, the court sentenced defendant to a term in prison of 25 years to life for the crime of assault on a child resulting in death. The court imposed a sentence of 15 years to life in prison for the second-degree-murder conviction, but stayed execution of sentence for that offense pursuant to section 654. The court awarded credit for presentence custody in the amount of 567 days, but denied the presentence conduct credit that ordinarily may be earned by a person convicted of assault on a child resulting in death. The court reasoned that, because defendant had been convicted of second degree murder, he was ineligible for conduct credit pursuant to section 2933.2(c). Defendant appealed from the sentence on the ground stated above. The Court of Appeal affirmed the judgment of the trial court, and we granted defendant's petition for review.
We begin with a review of pertinent provisions governing the award of credits against prison sentences. Persons who remain in custody prior to sentencing receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction. (§ 2900.5.) This form of credit ordinarily is referred to as credit for time served.
Additional credit may be earned, based upon the defendant's work and good conduct during presentence incarceration. (§§ 2900.5, subd. (a), 4019.) Such presentence credit is referred to as conduct credit. (See People v. Cooper (2002) 27 Cal.4th 38, 40.) Conduct credit ordinarily is earned in the amount of two days for every four days the defendant is in actual presentence custody. (§ 4019; see People v. Dieck (2009) 46 Cal.4th 934, 941.) The circumstance that a defendant is sentenced to an indeterminate sentence does not preclude the earning of presentence conduct credit. (People v. Philpot (2004) 122 Cal.App.4th 893, 908; see People v. Buckhalter (2001) 26 Cal.4th 20, 32-33; People v. Thomas (1999) 21 Cal.4th 1122, 1125.)
At the time of sentencing, credit for time served, including conduct credit, is calculated by the court. The "total number of days to be credited" is memorialized in the abstract of judgment (§ 2900.5, subd. (d)) and "shall be credited upon [the defendant's] term of imprisonment. . . ." (§ 2900.5, subd. (a).) The credit "in effect, becomes part of the sentence." (In re Marquez (2003) 30 Cal.4th 14, 21.)
Finally, prisoners serving determinate terms (as well as those serving certain indeterminate terms) may earn so-called worktime credit for participation in prison work and training programs during their post-sentence incarceration. (§ 2933; see People v. Buckhalter, supra, 26 Cal.4th at p. 31; In re Cervera (2001) 24 Cal.4th 1073, 1078-1079.) Ordinarily, prisoners earn worktime credit at the rate of six months of credit for every six months of participation -- essentially, one day of credit for each day of participation. (In re Reeves (2005) 35 Cal.4th 765, 768 (Reeves).)
The rules governing the award of credits are subject to certain restrictions, including those discussed in the present case and in today's decision in In re Pope, (Aug. 19, 2010, S160930), __ Cal.4th ___ (Pope). As we discussed in Pope, pursuant to subdivision (a) of section 2933.1 (section 2933.1(a)), persons who have been convicted of certain qualifying violent felonies (see § 667.5) are subject to a restriction upon the post-sentence worktime credit they may earn against their sentences. (Pope, supra, ___ Cal.4th ___.) In these circumstances, post-sentence worktime credit may be accrued at a 15 percent rate. (§ 2933.1(a).) Subdivision (c) of section 2933.1 (section 2933.1(c)), imposes a similar restriction on the presentence conduct credit that may be earned by persons who are convicted of specified violent offenses. Presentence conduct credit is limited to 15 percent of the actual period of presentence confinement. (§ 2933.1(c).)
With substantially the same phrasing as is used in section 2933.1, a further restriction upon the earning of conduct and worktime credit appears in section 2933.2. Subdivision (a) of that statute (section 2933.2(a)) prohibits persons convicted of murder from earning post-sentence worktime credit, and subdivision (c) of the statute prohibits such persons from earning conduct credit for periods of presentence incarceration.
Thus section 2933.2 provides in relevant part: "(a) Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933 or Section 2933.05. [¶] . . . [¶] (c) Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or ...