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California Jail/Prison Credits May Not be Limited Based Upon Convictions for Which Punishment was St

California Jail/Prison Credits May Not be Limited Based Upon Convictions
for Which Punishment was Stayed

by John E. Dannenberg

The California Court of Appeal held that when a prisoner is convicted of an
offense not restricted to conduct credits of 15%, and is also convicted of
offenses for which the 15% restriction does apply but where the punishment
for those convictions is stayed, it is the credit-earning status of the
controlling offense, not the stayed offenses, that applies to the
prisoner's pre- and post-sentence periods of confinement.

Kenneth Phelon was convicted of kidnapping with intent to commit rape
[(former Penal Code (PC) § 208(d)](count I), assault with intent to commit
rape [PC § 220] (count II), assault with great bodily injury [PC §
245(a)(1)] (count III) and making criminal threats [PC § 422] (count IV).
He was sentenced to the longest term, 11 years for count I, with sentencing
on the other counts stayed pursuant to PC § 654.

Noting that the controlling count (I) was at the time not listed as a
violent offense under PC § 2933.1(c), which invokes a limitation of 15%
conduct credits, the trial court awarded Phelon the standard 33%
pre-sentence credits for time spent in the county jail. But after Phelon
arrived in state prison, the California Department of Corrections and
Rehabilitation (CDCR) applied PC § 2933.1(a) to limit Phelon's work time
credits to 15% for all post-sentence incarceration. Upon Phelon's ensuing
habeas corpus petition, the California State Supreme Court granted an order
to show cause returnable to the Court of Appeal questioning both pre- and
post-sentence credit earning status.

The appellate court observed that at the time of Phelon's offense, §
2933.1's violent offense 15% credit-earning limitation did not include
his controlling offense (PC § 208). Pursuant to the California Supreme
Court's recent ruling in In re Reeves, 35 Cal. 4th 765 (2005), when a
prisoner is serving a sentence other than for a specified violent offense,
§ 2933.1's limitation does not apply. Here, while the stayed offenses
qualified as violent offenses within the meaning of § 2933.1, Phelon was
not serving any sentence for those offenses. Therefore, CDCR's application
of § 2933.1 to his post-sentence time was illegal.

As to pre-sentence credits, the appellate court concluded that because
limits on credit earning are a form of punishment, and applying § 2933.1(c)
to Phelon would increase his term by 285 days, it would violate ex post
facto principles to retroactively invoke the lately amended version of §

Accordingly, the appeals court granted Phelon's writ and, after affirming
the trial court's award of pre-sentence credits, ordered CDCR to
recalculate his release date based upon 50% post-sentence work time
credits. To the extent that he may have already served more time than is
thereby calculated, any excess incarceration was ordered deducted from his
parole time following the principles stated in In re Ballard, 115
Cal.App.3d 647, 649 (1981). See: In re Phelon, 132 Cal.App.4th 1214, 34
Cal.Rptr.3d 276 (Cal.App. 1 Dist., 2005).

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Related legal case

In re Phelon

In re Phelon, 132 Cal.App.4th 1214, 34 Cal.Rptr.3d 276 (Cal.App. Dist.1 09/26/2005)


[2] No. A110492

[3] 132 Cal.App.4th 1214, 34 Cal.Rptr.3d 276

[4] September 26, 2005


[6] (San Francisco County Super. Ct. No. 01740021). Hon. John J. Conway.

[7] Counsel for Petitioner: Kenneth D. Phelon, in pro. per. Heather MacKay under appointment by The Court of Appeal under the First Appellate District Independent Case System

[8] Counsel for Respondent: Bill Lockyer, Attorney General Robert R. Anderson, Chief Asst. Atty. Gen. Gerald A. Engler, Sr. Asst. Atty. General Laurence K. Sullivan, Supervising Deputy A.G. Rene A. Chacon, Supervising Deputy A.G.

[9] The opinion of the court was delivered by: Kline, P.J.



[12] Petitioner Kenneth D. Phelon was convicted of kidnapping with intent to commit rape in violation of former Penal Code section 208, subdivision (d) (count I),*fn1 assault with intent to commit rape in violation of section 220 (count II), assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1) (count III), and making criminal threats in violation of section 422 (count IV). The trial court sentenced him to the upper term of 11 years on count I because that conviction carried the longest term. Sentencing on the other counts was stayed pursuant to section 654.

[13] The trial court awarded petitioner credit for 813 days in custody and 406 days of conduct credit pursuant to section 4019 for the presentence time spent in local custody. Once in prison, the Department of Corrections took the position that petitioner's ability to earn worktime credit was limited to 15 percent by the provisions of section 2933.1, subdivision (a).*fn2

[14] Petitioner filed a petition for writ of habeas corpus seeking relief from the Department of Corrections' application of the 15 percent limitation of section 2933.1(a) on his ability to earn worktime credits while in prison. The California Supreme Court issued an order to show cause before this court "(1) why petitioner's presentence credits should not exceed 15 percent of his actual period of confinement, pursuant to Penal Code, section[] 2933.1, subdivisions (a) and (c) (see People v. Ramos (1996) 50 Cal.App.4th 810, 817 [(Ramos)]); and (2) why petitioner's post-sentence credits should not be limited to 15 percent by Penal Code section 2933.1, subdivision (a), when his sentences on violent offenses listed in Penal Code section 667.5, subdivision (c) were stayed pursuant to Penal Code section 654."

[15] We conclude that petitioner is entitled to relief on the issue of his post-sentence credits and direct the Department of Corrections to recompute his credits without application of the limits set forth in section 2933.1(a). Applying provisions of section 654 prohibiting punishment for convictions on which sentences were stayed, we conclude petitioner's presentence credits may not be limited under section 2933.1, subdivision (c),*fn3 and that the trial court's award was correct.*fn4


[17] Section 2933.1, enacted in 1994, sets a 15 percent limit on worktime credits that may be accrued by a person convicted of violent felony offenses listed in subdivision (c) of section 667.5. It applies to both presentence and post-sentence credits. Subdivision (a) governs post-sentence credits and subdivision (c) applies to presentence credits.*fn5 Although the habeas petition raises only the issue of post-sentence credits, the order to show cause expanded the issues to include presentence credits as well. We are thus obliged to address both issues even though we would ordinarily address only those claims alleged in the habeas petition. (See People v. Duvall (1995) 9 Cal.4th 464, 475; In re Clark (1993) 5 Cal.4th 750, 781, fn. 16.)

[18] Kidnapping with intent to commit rape was not listed as a violent felony in section 667.5, subdivision (c) at the time of petitioner's offense. (See former §§ 208, subd. (d), 667.5, subd. (c).) Two of petitioner's other convictions, however, did qualify as violent felonies at the time of the offense: assault with intent to commit rape (§ 220) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). As previously mentioned, the sentences on these two convictions were stayed pursuant to section 654.

[19] Post-sentence Credits

[20] The parties concede that the recent Supreme Court decision in In re Reeves (2005) 35 Cal.4th 765 is determinative on the question of whether section 2933.1(a) limits petitioner's ability to earn post-sentence credits. Reeves involved an inmate who was serving concurrent prison terms of 10 years for a nonviolent crime and five years for a violent crime. The question in Reeves was whether section 2933.1(a) restricted the prisoner's ability to earn worktime credit against a concurrent sentence for a nonviolent offense. The prisoner had completed the five-year term for the violent offense and was serving the remainder of the concurrent term for the nonviolent offense. In discussing possible interpretations of the statutory language of section 2933.1, the court distinguished between the language of subdivision (a), which is applicable to post-sentence credits, and that of subdivision (c), which applies to presentence credits. Only subdivision (a) was at issue in Reeves, which the court interpreted as follows: "Section 2933.1(a) limits to 15 percent the rate at which a prisoner convicted of and serving time for a violent offense may earn worktime credit, regardless of any other offenses for which such a prisoner is simultaneously serving a sentence. [Fn.] On the other hand, section 2933.1(a) has no application to a prisoner who is not actually serving a sentence for a violent offense; such a prisoner may earn credit at a rate unaffected by the section. [Fn.]" (In re Reeves, at p. 780; italics added.)

[21] Under Reeves, petitioner's post-sentence credits should not be limited by section 2933.1(a) because his sentences on the qualifying violent offenses were stayed pursuant to section 654. The sentence that petitioner is actually serving is not one that qualified as a violent offense at the time it was committed. Accordingly, the Department of Corrections must correct the computation of petitioner's post-sentence credits to remove the 15 percent limitation of section 2933.1(a).

[22] Presentence Credits

[23] As previously mentioned, the trial court awarded presentence credits unaffected by the limits of section 2933.1. Petitioner argues that we should not consider whether his presentence credits should be limited under section 2933.1 because he has not claimed that there is any error in his presentence credits. We are, however, obliged to consider the question pursuant to the order to show cause issued by the Supreme Court.

[24] The People argue that petitioner's presentence credits are subject to the 15 percent limitation of section 2933.1. Their argument is based on the decision in Ramos, supra, 50 Cal.App.4th 810, which interpreted section 2933.1(c). The defendant in Ramos was sentenced to an aggregate term of 22 years, which included an eight-month consecutive sentence for a nonviolent offense. The defendant argued that the limitations of section 2933.1(c) should not apply to the eight-month sentence for the nonviolent offense, and that credits for that conviction should be calculated under the more liberal provisions of section 4019. The appellate court rejected the argument, stating: "[T]he language of section 2933.1 does not support his position. The statute applies `[n]otwithstanding Section 4019 or any other provision of the law' and limits to 15 percent the maximum number of conduct credits available to `any person who is convicted of a felony offense listed in Section 667.5.' That is, by its terms, section 2933.1 applies to the offender not to the offense and so limits a violent felon's conduct credits irrespective of whether or not all his or her offenses come within section 667.5. (Ramos, at p. 817.)

[25] The Supreme Court discussed Ramos in Reeves. It rejected the People's reliance on Ramos on the ground that Ramos addressed only presentence credit limitations set forth in section 2933.1(c): "The Ramos court's statement that `section 2933.1 applies to the offender not to the offense' (Ramos, supra, 50 Cal.App.4th 810, 817) makes sense in the context in which the court spoke-that of presentence credits authorized by section 4019 and limited by section 2933.1(c). A period of presentence confinement is indivisibly attributable to all of the offenses with which the prisoner is charged and of which he is eventually convicted. The defendant's argument in Ramos would have required the court to parse such a single, unitary period of presentence confinement into hypothetical, overlapping terms eligible to earn credit at different rates. Such a result finds no support in the language of subdivision (c), which limits the credits a prisoner may earn against an `actual period of confinement' (§ 2933.1(c), italics added) following arrest and before sentencing. . . . In other words, subdivision (c) explains that its limitation on presentence credit takes effect only when a person who has served `an actual period of [presentence] confinement' (§ 2933.1(c)) becomes, by subsequent conviction of a violent offense in a proceeding to which the presentence custody is attributable, a `person specified in subdivision (a)' (§ 2933.1(c), italics added), namely, a `person who is convicted of a [violent] felony offense' (§ 2933.1(a))." (In re Reeves, supra, 35 Cal.4th at pp. 775-776.)

[26] Petitioner contends that Ramos is not dispositive of his case because Ramos did not involve a sentence stayed under section 654. Nor is there any other case, according to petitioner, that has analyzed the interaction of section 2933.1(c) and section 654, which prohibits imposition of any punishment for an offense on which the sentence has been stayed. Section 654 provides in pertinent part: "(a) 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. . . ."

[27] "[S]section 654 prohibits the use of a conviction for any punitive purpose if the sentence on that conviction is stayed." (People v. Pearson (1986) 42 Cal.3d 351, 361.) Section 654 prohibits a "defendant from being disadvantaged in any way as a result of the stayed convictions." (People v. Pearson, at p. 361.) Under this principle, it has been held that sentences for convictions that were stayed under section 654 may not be used as a basis for future enhancement in the absence of specific statutory authorization. (People v. Pearson, at pp. 361-362.) Likewise, a prior prison term enhancement may not be imposed for an offense for which the prior term was stayed under section 654. (People v. Percelle (2005) 126 Cal.App.4th 164, 177-178.) In People v. Avila (1982) 138 Cal.App.3d 873, the California Youth Authority (CYA) was not allowed to reject the defendant on the sole ground that his conviction on an offense that was stayed under section 654 made him ineligible for its program. Rejection from CYA on the basis of a stayed sentence for a disqualifying offense was impermissible under section 654 because that would constitute punishment. (People v. Avila, at p. 879.) Courts have adopted the procedure of staying execution of the lesser sentence because it affords the defendant the maximum protection against multiple punishment under section 654. (People v. Niles (1964) 227 Cal.App.2d 749, 756.)

[28] Petitioner argues persuasively that limits on credit-earning are a form of punishment, and that the term "punishment" takes into consideration the effective sentence in light of the availability of sentence-reducing credits. For example, retroactive retraction of previously-available sentence credits constitutes punishment in violation of the prohibition on ex post facto laws. (In re Lomax (1998) 66 Cal.App.4th 639; Lynce v. Mathis (1997) 519 U.S. 433; Flemming v. Oregon Bd. of Parole (9th Cir. 1993) 998 F2d 721.) Applying section 2933.1(c) to petitioner's presentence conduct credits would actually increase petitioner's term of incarceration by 285 days.*fn6

[29] We agree with petitioner that his presentence credits should not be limited under section 2933.1(c) based on convictions on which punishment was stayed under section 654. The Ramos decision is not dispositive in this case because it did not involve sentences that were stayed under the multiple punishment prohibition of section 654.


[31] The petition for writ of habeas corpus is granted. The Department of Corrections is directed to grant petitioner additional worktime credits in accord with section 2933, to recalculate his release date, and if he is overdue for release, as he has alleged, to release him immediately on parole. To the extent that petitioner has spent any time in prison past his lawful release date, the Department of Corrections is directed to deduct such time from petitioner's parole term. (In re Ballard (1981) 115 Cal.App.3d 647, 649.) This opinion is final as to this court immediately. (Cal. Rules of Court, rule 24(b)(3).)

[32] We concur: Haerle, J., Lambden, J.


Opinion Footnotes


[33] *fn1 All statutory references hereafter are to the Penal Code unless otherwise indicated.

[34] *fn2 Hereafter section 2933.1(a).

[35] *fn3 Hereafter section 2933.1(c).

[36] *fn4 A statement of facts underlying petitioner's convictions is unnecessary in light of the issues presented.

[37] *fn5 Section 2933.1 provides in full:
"(a) 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.
"(b) The 15-percent limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law. However, nothing in subdivision (a) shall affect the requirement of any statute that the defendant serve a specified period of time prior to minimum parole eligibility, nor shall any offender otherwise statutorily ineligible for credit be eligible for credit pursuant to this section.
"(c) 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).
"(d) This section shall only apply to offenses listed in subdivision (a) that are committed on or after the date on which this section becomes operative."

[38] *fn6 Petitioner served 813 days in jail prior to sentencing and earned 406 days of conduct credit pursuant to section 4019. (Pet., exh. No. G [amended abstract of judgment, dated 4/29/2003].) Applying section 2933.1(c) would reduce his presentence conduct credits to 121 days.