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In re Pope

August 19, 2010

IN RE NATHAN POPE ON HABEAS CORPUS.


Ct.App. C051564 Sacramento County Super. Ct. No. 05F05526. Judge: Greta Fall.

The opinion of the court was delivered by: George, C. J.

Filed 8/19/2010 (this opn. should precede the companion case, S153917, also filed 8/19/2010)

Persons who are serving a term in state prison may earn credit against their term if they participate in qualifying work or training programs. (Pen. Code, § 2933.)*fn1 Ordinarily, a prisoner may earn one day of such "worktime credit" for each day of participation, reducing the term of incarceration by up to 50 percent. Certain statutes, however, restrict the amount of credit that may be earned by prisoners who have been convicted of specified violent offenses. The present case concerns such a statutory limitation.

Pursuant to section 2933.1, subdivision (a) (section 2933.1(a)), persons who have been convicted of qualifying violent felonies may earn credit against their term of no more than 15 percent. We are called upon to decide how to apply this statutory limitation when a prisoner has been convicted of and sentenced for both qualifying and non-qualifying offenses but, although sentence has been imposed for both types of offense, execution of sentence has been stayed with respect to the qualifying offenses pursuant to the provisions of section 654.

For the reasons discussed below, we conclude that petitioner is subject to the limitations imposed by section 2933.1(a), notwithstanding the circumstance that execution of sentence for the qualifying offenses has been stayed pursuant to section 654.

I.

In January 2002, petitioner drove his vehicle at a high rate of speed and against a red light into an intersection in Fresno. His automobile struck another vehicle, rupturing its gasoline tank and causing a fire that killed the vehicle's occupant. Petitioner's blood-alcohol level was .25 percent and his blood also contained evidence of ingestion of cocaine.

Petitioner pleaded guilty to one count of driving under the influence of alcohol or drugs, causing injury (Veh. Code, § 23153, subd. (a)), and one count of driving with an unlawful blood-alcohol level, causing injury. (Id., § 23153, subd. (b).) As to each of these counts, he admitted enhancement allegations that the offenses caused great bodily injury. (§ 12022.7, subd. (a).) By virtue of the enhancement allegations, each of these two counts constituted a qualifying violent felony for the purpose of the credit restrictions imposed by section 2933.1(a). (See § 667.5, subd. (c)(8) [classifying as violent any felony as to which specified enhancements, including those imposed for infliction of great bodily injury, have been charged and proved].)

Petitioner also pleaded guilty to gross vehicular manslaughter "while intoxicated" (§ 191.5, subd. (a)), which is not a qualifying violent felony for the purpose of the credit restrictions imposed by section 2933.1(a).

The trial court imposed sentence on all three counts, but pursuant to section 654 stayed execution of sentence for the offenses carrying the shorter term. Although the offense of gross vehicular manslaughter while intoxicated is not designated as a violent felony within the meaning of section 2933.1(a), it carries a longer term of imprisonment than the driving-under-the-influence offenses of which petitioner also stood convicted. Accordingly, the trial court sentenced petitioner to the middle term of six years for the gross vehicular manslaughter conviction, and imposed but stayed execution of a sentence of five years for each of the driving-while-under-the-influence offenses. (The five-year terms for the latter offenses included the middle term of two years for the Vehicle Code violations plus three years for the great-bodily-injury enhancements.)

The California Department of Corrections and Rehabilitation (Department), the entity charged with calculating prisoners' worktime credit, concluded that the 15 percent restriction applied to petitioner's entire sentence because of petitioner's status as a person who was convicted of a qualifying violent felony. According to the Department, the amount of credit petitioner may earn against his six-year term for the non-qualifying offense is limited to 15 percent of that term. Petitioner, on the other hand, challenged the Department's calculation, arguing that because the court stayed execution of sentence for the offenses that would bring him within the terms of section 2933.1(a), the restriction imposed by section 2933.1(a) is inapplicable to any portion of his six-year term for the non-qualifying offense. According to petitioner, he is entitled to earn 50 percent worktime credit, as prescribed by section 2933, against his entire term.

Petitioner, challenging the Department's calculation of his credits, filed a petition for writ of habeas corpus, and the trial court agreed with petitioner's argument, relying upon In re Phelon (2005) 132 Cal.App.4th 1214 (Phelon). The Department appealed from the order granting the petition for writ of habeas corpus. The Court of Appeal disagreed with the trial court, agreed with the Department, concluded that the Phelon case had been decided incorrectly, and vacated the order granting the petition for writ of habeas corpus. This court granted petitions for review filed by each party, and designated Nathan Pope as petitioner for the purpose of briefing and argument.

II.

Section 2933.1 belongs to a group of statutes that authorize, limit, or prohibit the earning of presentence and post-sentence credit for persons who are convicted of crimes and sentenced to prison. The general rules for the earning of post-sentence worktime credit appear in section 2933. Pursuant to the provisions of that statute, 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 (2001) 26 Cal.4th 20, 31; In re Cervera (2001) 24 Cal.4th 1073, 1078-1079.) Ordinarily, prisoners earn worktime credit at the ...


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