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People v. Fong

California Court of Appeals, Sixth District

June 18, 2013

THE PEOPLE, Plaintiff and Respondent,
ALLEN DAVID FONG, Defendant and Appellant.

Trial Court: Santa Clara County Superior Court Ct. Nos. EE907153, C1100779 Trial Judge: Honorable David A. Cena

Attorney for Defendant and Appellant: Jonathan E. Berger, Under Appointment by the Sixth, District Appellate Program.

Attorneys for Plaintiff and Respondent: Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Masha A. Dabiza, Deputy Attorney General

Mihara, J.

Defendant Allen David Fong challenges the application of Penal Code section 2933.1[1] to him. He argues that his admission of a section 12022.7 enhancement allegation associated with his 2009 felony offense did not bring him within the provisions of section 667.5, subdivision (c)(8), which would qualify him for application of section 2933.1’s credit limiting provisions. Defendant claims that section 667.5, subdivision (c)(8)’s reference to section 12022.7 was a time-specific incorporation of the 1977 version of section 12022.7. The 1977 version contained a specific intent requirement that was deleted in 1995, and which defendant did not admit. We conclude that section 667.5, subdivision (c)(8)’s incorporation of section 12022.7 was not a time-specific incorporation. Consequently, defendant is subject to section 2933.1’s credit limiting provisions.

I. Background

The facts of defendant’s offenses are not relevant to his appellate contentions. He pleaded no contest to two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) and one count of dissuading a witness in furtherance of a conspiracy (§ 136.1, subd. (c)(2)). He also admitted gang allegations (§ 186.22, subd. (b)) attached to both assault counts and admitted that he had personally inflicted great bodily injury (GBI) (§ 12022.7, subd. (a)) in the commission of one of the assaults. The assaults occurred in 2009. The dissuading occurred between June 2010 and February 2011. Defendant’s pleas and admissions were entered pursuant to a plea agreement under which he was promised a 17-year prison sentence. During the plea colloquy, defendant was advised that his credit would be limited to 15 percent.

At the August 2011 sentencing hearing, the court imposed the agreed 17-year prison sentence. The court struck the punishment for the GBI enhancement and for one of the gang enhancements under section 1385. It awarded defendant 608 days of actual custody credit and 91 days of conduct credit pursuant to section 2933.1. All of his credit was applied solely to the assault count with the GBI enhancement. Defendant timely filed a notice of appeal. His request for a certificate of probable cause was denied.

After judgment was entered, defendant filed a motion to amend the abstract to correct a mathematical error, to award him additional conduct credit, and to find that his credit was not limited to 15 percent under section 2933.1. The court corrected the mathematical error, awarding him one additional day of actual custody credit. It rejected his other requests. Defendant timely filed a notice of appeal from this order.

II. Analysis

Defendant claims that the trial court erred in subjecting him to section 2933.1’s credit limitations because he did not admit that he specifically intended to inflict GBI.

Section 2933.1, subdivision (a) provides: “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” Section 2933.1, subdivision (c) provides: “Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).” Thus, both worktime and conduct credit are restricted to 15 percent for persons who commit offenses listed in section 667.5, subdivision (c).

Section 667.5, subdivision (c) lists many offenses, including “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977....” (§ 667.5, subd. (c)(8), italics added.) Defendant was convicted of a felony in which he inflicted great bodily injury on a non-accomplice, and the GBI enhancement was “charged and proved as provided for in Section 12022.7....” Nevertheless, defendant contends that section 2933.1’s credit limitations do not apply to him because in 1977, when section 667.5, subdivision (c)(8) first became operative, former section 12022.7, which became operative at the same time, contained a specific intent requirement. Although section 12022.7 no longer contains a specific intent requirement, he maintains that, since former section 667.5, subdivision (c)(8)’s reference to section 12022.7 was specific rather than general, former section 667.5, subdivision (c)(8) incorporated former section 12022.7 as it existed in 1977, rather than the post-1995 version of section 12022.7, which contains no specific intent requirement.

Defendant relies on Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53 (Palermo). “ ‘It is a well established principle of statutory law that, where a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified, and that the repeal of the provisions referred to does not affect the adopting statute, in the absence of a clearly expressed intention to the contrary.’ ” (Palermo, at pp. 58-59.) “ ‘It also [ ] [must] be noted that there is a cognate rule, recognized as applicable to many cases, to the effect that where the reference is general instead of specific, such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time, and (it may be assumed although no such case has come to our attention) as they may be subjected to elimination altogether by ...

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