People v. Edward Duff

• Decision Date: 19 August 2010
• Docket Number: No. S153917.,S153917.
• Citation: 237 P.3d 558,50 Cal.4th 787
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Edward DUFF, Jr., Defendant and Appellant.
• Court: California Supreme Court

50 Cal.4th 787

237 P.3d 558

The PEOPLE, Plaintiff and Respondent, v. James Edward DUFF, Jr., Defendant and Appellant.

No. S153917.

Supreme Court of California

Aug. 19, 2010.

[114 Cal.Rptr.3d 234]

Tonja R. Torres, Pasadena, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

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. ¹ 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.

I

Defendant smothered his son James, then nearly one year of age. The child died of suffocation. Defendant was convicted by jury of second degreemurder (§§ 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 ordinarilymay 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.

II

We begin with a review of pertinent provisions governing the award of

[114 Cal.Rptr.3d 235]

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, 115 Cal.Rptr.2d 219, 37 P.3d 403.) 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, 95 Cal.Rptr.3d 408, 209 P.3d 623.) 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, 19 Cal.Rptr.3d 280; see People v. Buckhalter (2001) 26 Cal.4th 20, 32-33, 108 Cal.Rptr.2d 625, 25 P.3d 1103; People v. Thomas (1999) 21 Cal.4th 1122, 1125, 90 Cal.Rptr.2d 642, 988 P.2d 563.)

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, 131 Cal.Rptr.2d 911, 65 P.3d 403.)

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 postsentence incarceration. (§ 2933; see People v. Buckhalter, supra, 26 Cal.4th at p. 31, 108 Cal.Rptr.2d 625, 25 P.3d 1103; In re Cervera (2001) 24 Cal.4th 1073, 1078-1079, 103 Cal.Rptr.2d 762, 16 P.3d 176.) 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, 28 Cal.Rptr.3d 4, 110 P.3d 1218 ( 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, (2010), 50 Cal.4th 787, 114 Cal.Rptr.3d 233, 237 P.3d 558 ( 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 postsentence worktime credit they may earn against their sentences. ( Pope, supra, 50 Cal.4th 787, 114 Cal.Rptr.3d 233, 237 P.3d 558.) In these circumstances, postsentence 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 postsentence worktime credit, and subdivision (c) of the statute prohibits such persons from earning

[114 Cal.Rptr.3d 236]

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 a city jail, industrial farm, or road camp, following arrest for any person specified in subdivision (a).” (Italics added.)

Defendant contends that section 2933.2(c) cannot be applied to deny him presentence conduct credit against the term for his assault offense because, although he was convicted of murder and a sentence for that crime was imposed, execution of sentence for that offense was stayed pursuant tosection 654. Relying principally upon Reeves, supra, 35 Cal.4th 765, 28 Cal.Rptr.3d 4, 110 P.3d 1218, he claims that because, by virtue of the stay of execution of sentence pursuant to section 654, he is not serving a sentence for murder, he does not qualify as a person named in subdivision (a) of section 2933.2-he is not a person who “ is convicted ” of the qualifying offense of murder.

Although our decision in Pope, supra, 50 Cal.4th 787, 114 Cal.Rptr.3d 233, 237 P.3d 558 interpreted section 2933.1(a), which governs postsentence credit for persons convicted of qualifying violent felonies, the analysis we developed in Pope applies equally to the present case because of the parallel language of sections 2933.1 and 2933.2, and thus requires that we reject defendant's claim. It is critical to our analysis that section 2933.2(c), like section 2933.1(c), defines as its “ ‘target population’ ” ( In re Reeves, supra, 35 Cal.4th at p. 775, 28 Cal.Rptr.3d 4, 110 P.3d 1218) “any person specified in subdivision (a).” (§ 2933.2(c), italics added.) In section 2933.2(a), just as in section 2933.1(a), the person specified is defined as “any person who is convicted ” of the qualifying offense. (Italics added.) For the reasons stated in Pope, supra, 50 Cal.4th 787, 114 Cal.Rptr.3d 233, 237 P.3d 558, the circumstance that execution of sentence for the murder conviction was stayed pursuant to section 654 does not alter the reality that defendant is a person who “is convicted” of the crime of murder within the meaning of section 2933.2(a), and that as a consequence he falls within section 2933.2(c)'s target population.

Defendant-like the petitioner in Pope, supra, 50 Cal.4th 787, 114 Cal.Rptr.3d 233, 237 P.3d 558 nonetheless insists that the circumstance that execution of sentence for the qualifying offense was stayed pursuant to section 654 signifies that he cannot be subjected to “additional punishment” in the form of a loss of presentence conduct credit under section 2933.2(c). As we shall explain, we disagree.

Section 654 provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)

Originally, some controversy existed regarding the appropriate procedure...