50 Cal. 4th 777, 237 P.3d 552, 114 Cal. Rptr. 3d 225

Filed 8/19/10 (this opn. should precede the companion case, S153917, also filed 8/19/10)

IN THE SUPREME COURT OF CALIFORNIA

In re NATHAN POPE
S160930
on Habeas Corpus.
Ct.App. C051564
Sacramento County
Super. Ct. No. 05F05526

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.)1 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

1
Subsequent statutory references are to the Penal Code unless otherwise
indicated.
1


qualifying and nonqualifying 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).
2


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 nonqualifying 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 nonqualifying 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.
3


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 postsentence credit for persons who are
convicted of crimes and sentenced to prison. The general rules for the earning of
postsentence 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 postsentence 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 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).)
Persons who have been convicted of certain qualifying violent felonies,
however, are subject to a restriction upon the postsentence worktime credit they
may earn against their sentence. (? 2933.1(a).) In these circumstances,
postsentence worktime credit may be accrued at a 15 percent rate. (? 2933.1(a).)
A similar restriction applies to the conduct credit that may be earned by such
persons during presentence incarceration and applied against a term of
imprisonment. (? 2933.1, subd. (c).)
Petitioner challenges the calculation of credits undertaken by the
Department with respect to postsentence credit. Specifically, he challenges the
4


application of section 2933.1(a) to his sentence. That statute provides:
?Notwithstanding any other law, any person who is convicted of a felony offense
listed in subdivision (c) of Section 667.5 [defining violent felonies] shall accrue no
more than 15 percent of worktime credit, as defined in Section 2933.?
Petitioner contends that because execution of sentence for his qualifying
offenses was stayed pursuant to section 654 pending his completion of the longer
term for the nonqualifying offense, he is not a person who has been convicted of a
qualifying offense within the meaning of section 2933.1(a). He claims he is not
?convicted? of the qualifying offense, because his custody is not attributable to the
stayed term for the qualifying offense.
To support his argument, petitioner places principal reliance upon this
court?s decision in Reeves, supra, 35 Cal.4th 765. In that case, we interpreted the
same language from section 2933.1(a) that is at issue in the present case, namely
the phrase ?any person who is convicted of a [qualifying] violent felony offense.?
In Reeves, supra, 35 Cal.4th 765, the prisoner had been sentenced to
concurrent terms of imprisonment for both qualifying and nonqualifying offenses.
Specifically, he had been sentenced to 10 years in prison for possession of a
controlled substance for sale, together with enhancements. In a separate
proceeding, he was sentenced to five years in prison for assault with a deadly
weapon, together with an enhancement for causing great bodily injury. The latter
offense constituted a qualifying violent felony for the purpose of section 2933.1(a).
The implicit decision of the sentencing court for the latter offense was that the five-
year term should run concurrently with the 10-year term imposed for the drug
offense. (Reeves, supra, 35 Cal.4th at p. 769, fn. 7.)
The prisoner in Reeves, supra, 35 Cal.4th 765, challenged the Department?s
calculation of postsentence worktime credits. The prisoner had, at the time of
appeal, completed service of his sentence for the qualifying violent offense that
5


limited his accrual of credits. He remained incarcerated solely under the longer,
separate, concurrent sentence for the nonqualifying offense, that is, an offense that
did not serve to limit the earning of credits. Nevertheless, the Department
continued to calculate the prisoner?s postsentence worktime credits at the reduced
rate against his remaining term for the nonqualifying offense.
The question before us was whether the limitation upon worktime credit
found in section 2933.1(a) applied to limit the prisoner?s ability to earn credit
during his entire term, including the longer ten-year term for the nonqualifying
felony.
We began our analysis by observing that the ?case turns on the meaning of
the phrase ?any person who is convicted of a [violent] felony offense . . . .?
(? 2933.1(a).)? (Reeves, supra, 35 Cal.4th at p. 770.) The phrase ?is convicted? in
that context had only two possible meanings: (1) a conviction that was current, in
the sense that it still gave the state the right to confine the prisoner in physical
custody, or (2) the historical fact of conviction. We rejected the second possible
meaning for several reasons, chief among them being that there was no indication
the Legislature intended to impose a lifetime, continuing credit-earning disability
on anyone who had ever been convicted of a violent offense. (Reeves, supra, 35
Cal.4th at pp. 771-772.)
Applying this conclusion to the facts of Reeves, supra, 35 Cal.4th 765, we
held that the prisoner no longer was ?convicted? of a violent offense within the
meaning of section 2933.1(a). ?Because petitioner has already served the term for
the violent offense that caused the section to apply,? we explained, ?the statement
that he ?is convicted of a [violent] offense? (ibid.) is true only as a matter of
historical fact, i.e., he was once convicted of a violent offense. . . . Except in this
inapplicable sense, to say that petitioner at the present time ?is convicted? (ibid.) of
a violent offense is not correct. Today, his conviction for the violent offense gives
6


the Department no claim to his physical custody; but for the time remaining on the
separate, concurrent term for the nonviolent offense, he would be entitled to
release.? (Reeves, supra, at p. 777.)
Reeves holds only that a prisoner no longer ?is convicted? of a qualifying
offense within the meaning of section 2933.1(a) if he or she has served the
sentence for that offense and would, ?but for the time remaining on [a] separate,
concurrent term for [a nonqualifying] offense, . . . be entitled to release.? (Reeves,
supra, 35 Cal.4th at p. 777.) This narrow holding does not assist petitioner in the
present case.
Our decision in Reeves, supra, 35 Cal.4th 765, began and ended with an
examination of the statutory term ?is convicted.? (? 2933.1(a).) Contrary to
petitioner?s claim, we did not purport to adopt a broad rule to the effect that a
statute limiting credits on account of a qualifying offense applies only to
confinement that is attributable to that offense. To be sure, we did observe that
?section 2933.1(a) has no application to a prisoner who is not actually serving a
sentence for a violent offense . . . .? (Reeves, supra, at p. 780, italics added.) But
the italicized phrase, read in context, was merely a shorthand reference to our
conclusion that the credits restriction ended for petitioner when he no longer was
?convicted? (? 2933.1(a)) of the credit-limiting offense ? in other words, ?when
the term for the violent offense [had] been served.? (Reeves, supra, at p. 781.)
Contrary to petitioner?s claim, to read the phrase as creating a general rule to the
effect that confinement must be attributable to a credit-limiting offense is to expand
Reeves far beyond its reasoning or holding, a result that the Court of Appeal
correctly rejected in the present case. (See also In re Maes (2010) 185 Cal.App.4th
1094, 1108-1109 [affording a similar interpretation of parallel statutory language
appearing in ? 2933.2, subd.(a)].)
7


Indeed, the approach we took in Reeves, supra, 35 Cal.4th 765, supports the
conclusion that the credit-limiting statute at issue in the present case does apply to
petitioner?s sentence. Section 654 prohibits multiple punishment, but it does not
operate to bar multiple conviction. (People v. Pearson (1986) 42 Cal.3d 351, 359.)
Although execution of the sentence for petitioner?s credit-limiting offenses has
been stayed under section 654, he still ?is convicted? of those offenses both as a
formal matter, in the sense that the convictions have not been dismissed or stayed
(see People v. Pearson, supra, at p. 360; People v. Niles (1964) 227 Cal.App.2d
749, 756), and as a practical matter, in the sense that, if the convictions for the
nonqualifying offenses were reversed on appeal or vacated in a habeas corpus
proceeding, he would be returned to the sentencing court for execution of the
sentence imposed for the qualifying offenses ? those for which execution of
sentence previously had been stayed. (See People v. Pearson, at p. 360; People v.
Alford (2010) 180 Cal.App.4th 1463, 1469; People v. Niles, supra, at p. 756.)2
Accordingly, in the words of Reeves, the qualifying offenses ?give[] the
Department [a] claim to [petitioner?s] physical custody.? (Reeves, supra, 35
Cal.4th at p. 777.) That claim has not yet expired. In sum, petitioner is a person
who ?is convicted? of a qualifying felony within the meaning of section 2933.1(a).
In support of his contrary claim, petitioner relies upon the appellate court?s
decision in Phelon, supra, 132 Cal.App.4th 1214. The petitioner in that case had
been convicted of (1) kidnapping with intent to commit rape, (2) assault with intent

2
In People v. Cantrell (2009) 175 Cal.App.4th 1161, cited by petitioner, the
court commented that the sentence stayed pursuant to section 654 would not
?operate? unless the executed sentence were reversed. (See Cantrell, at p. 1164.)
The decision, however, does not purport to challenge the settled rule that, when this
statute applies, the defendant remains convicted of all the offenses and the court
should impose sentence for each of them.
8


to commit rape, (3) assault by means of force likely to produce great bodily injury,
and (4) making criminal threats. At the time of the offenses, kidnapping with
intent to commit rape did not qualify as a violent felony for the purpose of section
2933.1, but two of the other convictions did qualify: assault with intent to commit
rape and assault by means of force likely to produce great bodily injury. Execution
of sentence for the qualifying offenses was stayed pursuant to section 654, because
the nonqualifying kidnapping offense carried a longer term of imprisonment. The
Court of Appeal concluded that the limitation upon postsentence worktime credit
established by section 2933.1(a) could not be applied to restrict the postsentence
credit the petitioner could earn for the term imposed for the kidnapping conviction.
It reasoned that, so long as the stay of execution of sentence for the qualifying
offenses was in effect, the petitioner was not actually serving a sentence for those
offenses. (Phelon, supra, 132 Cal.App.4th at p. 1219.) The court?s conclusion
effectively was based upon the same flawed and overbroad reading of Reeves,
supra, 35 Cal.4th 765, that we have rejected above. (See Phelon, supra, 132
Cal.App.4th at pp. 1218-1219.) Applying the reasoning and the conclusion we
reach in the present case, we view the petitioner in the Phelon case as a person who
remained convicted of a qualifying offense within the meaning of section 2933.1(a)
and, as such a person, one whose eligibility to earn worktime credit against the
kidnapping offense properly should have been limited to 15 percent.3

3
To the extent the decision in In re Phelon, supra, 132 Cal.App.4th 1214, is
inconsistent with our opinion in the present case, it is disapproved.

The reviewing court in In re Gomez (2009) 179 Cal.App.4th 1272, 1281,
like the court in Phelon, seized upon the statement in Reeves that ?section
2933.1(a) has no application to a prisoner who is not actually serving a sentence for
a violent offense? (Reeves, supra, 35 Cal.4th at p. 780), in concluding that a
sentence stayed pursuant to section 654 could not be the basis for application of
credit limitations imposed pursuant to section 2933.1. The case of In re Gomez is
(Footnote continued on next page)
9


Finally, the Court of Appeal, having concluded correctly that section
2933.1(a) applied to petitioner?s entire sentence, also rejected petitioner?s claim
that section 654 nonetheless served to protect him from the loss of credit imposed
by section 29331.1(a). We agree with the Court of Appeal that the latter statute
creates an exception to section 654, as we explain in our decision in People v. Duff
(Aug. 19, 2010, S153917) ___ Cal.4th ___, post. Petitioner complains that such a
construction of section 2233.1(a) would lead to the anomalous result that his term
may exceed what he would have served had he been convicted solely of the
qualifying offenses. As we have recognized, however, ?application of the complex
statutory sentence-credit system to individual situations ? ?is likely to produce
some incongruous results and arguable unfairness when compared to a theoretical
state of perfect and equal justice. [Because] there is no simple or universal formula
to solve all . . . credit issues, our aim [must be] to provide . . . a construction [of
the statutory scheme] which is faithful to its language, which produces fair and

(Footnote continued from previous page)
anomalous in that the trial court did not follow the appropriate procedure of staying
execution of sentence pursuant to section 654, but rather declined to impose
sentence for the offenses affected by that statute. We disapprove In re Gomez,
supra, 179 Cal.App.4th 1272, however, to the extent it is inconsistent with our
opinion in the present case.

Petitioner also cites In re Tate (2006) 135 Cal.App.4th 756. In that case, the
petitioner received a prison sentence for a qualifying offense. During his
imprisonment, he committed a nonqualifying offense. He received a consecutive
sentence for the latter offense, but service of this sentence was not to commence
until he had served his sentence for the qualifying offense. The Court of Appeal
concluded the fully consecutive sentence for the nonqualifying offense was not
subject to section 2933.1(a). (In re Tate, supra, 135 Cal.App.4th 756.) Neither the
present case nor Reeves, supra, 35 Cal.4th 765, concerns such a sentence, and we
have no occasion to comment upon the application of section 2933.1 in that
context.
10


reasonable results in a majority of cases, and which can be readily understood and
applied by trial courts.? ? [Citations.]? (People v. Buckhalter, supra, 26 Cal.4th at
pp. 28-29.)
III
For the foregoing reasons, the judgment rendered by the Court of Appeal is
affirmed.4
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

4
We decline petitioner?s invitation to reach an additional issue not mentioned
in the petitions for review or in the Court of Appeal?s opinion, namely his claim
that his qualifying crimes did not fall within the ambit of section 667.5,
subdivision (c)(8), defining violent felonies, because intent to cause great bodily
injury had not been pleaded and proved. (See Cal. Rules of Court, rule 8.516.)
11



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Pope
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 158 Cal.App.4th 860
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S160930
Date Filed: August 19, 2010
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Greta Fall

__________________________________________________________________________________

Attorneys for Appellant:

S. Michelle May, under appointment by the Supreme Court, and Deborah Prucha, under appointment by the
Court of Appeal, for Petitioner Nathan Pope.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, James M. Humes, Robert R. Anderson and
Dane R. Gillette, Chief Assistant Attorneys General, Frances T. Grunder and Julie L. Garland, Assistant
Attorneys General, Steven P. Acquisto, Jennifer A. Neill, Jessica N. Blonien and Krista L. Pollard, Deputy
Attorneys General, for Respondent the People.



Counsel who argued in Supreme Court (not intended for publication with opinion):

S. Michelle May
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792

Krista L. Pollard
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-6757