Supreme Court of California Justia
Citation 50 Cal. 4th 777, 237 P.3d 552, 114 Cal. Rptr. 3d 225

In re Pope

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


none

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 08/19/201050 Cal. 4th 777, 237 P.3d 552, 114 Cal. Rptr. 3d 225S160930Review - Habeas (criminal)submitted/opinion due

Parties
1Pope, Nathan (Petitioner)
5050 E. Ashland, #114
Fresno, CA 93726

Represented by George L. Bond
Central California Appellate Program
2407 "J" Street, Suite 301
Sacramento, CA

2Pope, Nathan (Petitioner)
5050 E. Ashland, #114
Fresno, CA 93726

Represented by S. Michelle May
Central California Appellate Program
2407 "J" Street, Suite 301
Sacramento, CA

3Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Krista Leigh Pollard
Office of the Attorney General
P.O. Box 944255
Sacramento, CA


Opinion Authors
OpinionChief Justice Ronald M. George

Dockets
Feb 14 2008Petition for review filed
  Nathan Pope, petitioner Deborah Prucha, appointed
Feb 19 20082nd petition for review filed
  The People, resp. Krista Pollard, DAG ****** Request for Continued Publication **** under same cover.
Feb 19 2008Received Court of Appeal record
  one volume
Apr 9 2008Petition for review granted (criminal case)
  The petitions for review are granted. Respondent's request for continued publication of the opinion after the grant of review is denied. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
May 15 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel, the Central California Appellate Program is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
May 29 2008Filed:
  counsel for aplt., (Pope) Notice of Change of Staff Attorneys, Central Calif. Appellate Prog.
Jun 12 2008Request for judicial notice filed (granted case)
  counsel for aplt. Nathan Pope.
Jun 23 2008Filed:
  counsel for aplt. Request (30) days for Briefing after filing of supplemental record.
Jun 25 2008Order filed
  In the above-entitled matter, petitioner Nathan Pope is designated the petitioner in this court for purposes of briefing and argument. (Cal. Rules of Court, rule 8.520(a)(6).) George, C.J., was absent and did not participate. Corrigan, J. was absent and did not participate.
Jun 25 2008Order filed
  Petitioner Nathan Pope's motion to augment the record, filed June 12, 2008, is denied. Petitioner's motion for judicial notice, filed June 12, 2008, is denied without prejudice to refiling the motion in correct form. (Cal. Rules of Court, rule 8.252(a)(1) & (2).) George, C.J., was absent and did not participate. Corrigan, J., was absent and did not participate.
Jun 30 2008Extension of time granted
  The application of appellant for 30-day extension of time is granted and will run from the June 25, 2008, order denying augmentation and judicial notice. Extension is to and including July 25, 2008.
Jul 24 2008Request for extension of time filed
  Nathan Pope, petitioner; requests extension of time to August 25, 2008, to file opening brief on the merits by S. Michelle May, Counsel
Jul 31 2008Extension of time granted
  On application of Nathan Pope and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 25, 2008.
Aug 27 2008Request for extension of time filed
  Counsel for aplt. requests extension of time to Sept. 24. 2008, to file the brief on the merits.
Aug 29 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the brief on the merits is extended to and including September 24, 2008.
Sep 23 2008Request for extension of time filed
  Counsel for aplt. requests extension of time to October 24, 2008, to file the opening brief on the merits.
Oct 6 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including October 24, 2008.
Oct 24 2008Received:
  counsel for aplt., oversized brief on the merits.
Oct 24 2008Application to file over-length brief filed
  Nathan Pope, aplt. S. Michelle May., counsel
Oct 30 2008Application to file over-length brief granted
 
Oct 30 2008Opening brief on the merits filed
  counsel for petnr. (Nathan Pope)
Nov 21 2008Request for extension of time filed
  counsel for resp. requests 45-day extension of time to January 8, 2009, to file the answer brief on the merits.
Dec 3 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 8, 2009.
Jan 5 2009Request for extension of time filed
  counsel for respondent requests extension of time to January 29, 2009, to file the answer brief on the merits.
Jan 12 2009Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 29, 2009.
Jan 28 2009Compensation awarded counsel
  Atty May - Central California Appellate Program
Jan 29 2009Answer brief on the merits filed
  counsel for resp.
Feb 17 2009Request for extension of time filed
  Counsel for aplt. requests extension of time to March 20, 2009, to file the reply brief on the merits.
Feb 26 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including March 20, 2009.
Mar 23 2009Request for extension of time filed
  Counsel for aplt. requests 10-day extension of time to file the reply brief on the merits.
Mar 25 2009Extension of time granted
  On application of appellant and good cause appearing, it is order that the time to serve and file the reply brief is extended to and including March 30, 2009.
Mar 30 2009Reply brief filed (case fully briefed)
Petitioner: Pope, NathanAttorney: S. Michelle May   counsel for petnr.
May 5 2010Case ordered on calendar
  to be argued Tuesday, May 25, 2010, at 1:30 p.m., in San Francisco
May 12 2010Stipulation filed
  Stipulation by counsel Krista Pollard, that respondent Department of Corrections & Rehabilitation has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 12 2010Stipulation filed
  Stipulation by counsel S. Michelle May, that petitioner has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 13 2010Supplemental brief filed
Petitioner: Pope, NathanAttorney: S. Michelle May  
May 17 2010Received:
  letter dated May 14, 2010, from counsel for petitioner, Nathan Pope, regarding additional citations to be included for oral argument; by S. Michele May, CCAP counsel.
May 25 2010Stipulation filed
  Stipulation by counsel Krista Pollard, that respondent Department of Corrections & Rehabilitation has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 25 2010Stipulation filed
  Stipulation by counsel S. Michelle May, that petitioner has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 25 2010Cause argued and submitted
 

Briefs
Oct 30 2008Opening brief on the merits filed
 
Jan 29 2009Answer brief on the merits filed
 
Mar 30 2009Reply brief filed (case fully briefed)
Petitioner: Pope, NathanAttorney: S. Michelle May  
Brief Downloads
application/pdf icon
Appellant's Petition for Review.pdf (223755 bytes) - Appellant's Petition for Review
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Respondent's Petition for Review and Request for Continued Publication.pdf (622695 bytes) - Respondent's Petition for Review and Request for Continued Publication
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Appellant's Opening Brief on the Merits.pdf (913518 bytes) - Appellant's Opening Brief on the Merits
application/pdf icon
Respondent's Answer Brief on the Merits.pdf (405741 bytes) - Respondent's Answer Brief on the Merits
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Appellant's Reply Brief on the Merits.pdf (399046 bytes) - Appellant's Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 8, 2012
Annotated by Mark Menzies

Facts:
California Penal Code Section 2933 provides in part that state prisoners may earn “worktime credits” for participation is prison work and training programs during their post-sentence incarceration. Such credits can reduce the term of incarceration by up to 50 percent subject to various exceptions. Section 2933.1(a) provides one such exception, and states in part that “any person who is convicted of a [violent felony] . . . shall accrue no more than 15 percent of worktime credit . . . .”

In 2002, Nathan Pope (Petitioner) pleaded guilty and was sentenced for three crimes arising out of a car accident in which Petitioner’s blood-alcohol level was above the legal limit and the occupant of the other vehicle was killed.

The first two counts qualified as violent felonies under section 2933.1(a), and thus subjected Petitioner to the 15 percent worktime credit accrual restriction. However, both of these counts were stayed pursuant to California Penal Code Section 654 pending Petitioner’s completion of the third count, which was longer in duration but did not qualify as a violent felony for purposes section 2933.1(a).

The California Department of Corrections and Rehabilitation (Department) determined that even though the qualifying violent felonies were stayed, and perhaps would never be served, the 15 percent restriction applied to petitioner’s sentence for the nonviolent felony given petitioner’s status as a person who was “convicted” of a qualifying violent felony under section 2933.1(a). Petitioner argued that because the execution of his sentences for the two qualifying violent felonies was stayed, he was not a person who had been convicted of a qualifying offense within the meaning of section 2933.1(a).

Procedural History:
Petitioner challenged the Department’s calculation of his worktime credits by filing a petition for writ of habeas corpus in state court. The trial court agreed with the Petitioner’s calculation and granted the writ of habeas corpus. The Department appealed from the order granting the writ. The Court of Appeal agreed with the Department and reversed. The Supreme Court of California granted petitions for review filed by each party. The Supreme Court of California designated Nathan Pope as the Petitioner.

Issue:
If a prisoner has been sentenced for a qualifying violent felony as defined under California Penal Code Section 2933.1(a), but the qualifying sentence has been stayed pending the completion of a longer term sentence for a nonqualifying offense, has the prisoner been “convicted” of a qualifying offense within the meaning of section 2933.1(a)?

Holding:
Yes, a prisoner has been “convicted” of a qualifying offense within the meaning of California Penal Code Section 2933.1(a) even if the sentence for the qualifying offense has been stayed pending the completion of a longer term sentence for a nonqualifying offense. As a result, the prisoner is subject to section 2933.1(a)’s 15 percent worktime credit accrual restriction.

The Court also disapproved both In re Phelon, 132 Cal.App.4th 1214 (2005) and In re Gomez, 178 Cal.App.4th 1272 (2009) to the extent both were inconsistent with the opinion in the present case.

Reasoning:
The Court supported its holding by distinguishing the case from a prior California Supreme Court decision in In re Reeves, 35 Cal.4th 765 (2005).

In Reeves, the prisoner had been sentenced concurrently to 10 years for a nonqualifying offense and 5 years for a qualifying offense. After the completion of the sentence for the 5 year qualifying offense, the Department continued to calculate the prisoner’s post-sentence worktime credits at the reduced rate of 15 percent. The prisoner argued that because he remained incarcerated solely under the nonqualifying offense, that his worktime credits should have instead been subject to the 50 percent worktime credit limitation under section 2933. The Court in Reeves agreed with the prisoner, and held 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.”

Unlike the situation in Reeves, the Court noted that Petitioner Pope had not served the imposed sentences for the qualifying offenses and could still be required to serve those sentences in the future if the conviction for the non-qualifying offense was revered or vacated. In other words, Pope did not pass the test laid out in Reeves that “but for the time remaining on [a] separate, concurrent term for a [a nonqualifying] offense” the prisoner would be entitled to release. As such, the Court held that the 15 percent worktime credit limitation under section 2933.1(a) applied.

The Court also disapproved both In re Phelon, and In re Gomez to the extent both were inconsistent with the opinion in the present case. Both cases relied upon language in Reeves that stated that “section 2933.1(a) has no application to a prisoner who is not actually serving a sentence for a violent offense . . . .” Reeves, 35 Cal.4th at 780. Based on this language, the Court of Appeal in both decisions concluded that a qualifying sentence stayed pursuant to section 654 could not be the basis for application of credit limitations imposed pursuant to section 2933.1(a). The Court in In re Pope found this to be a misreading of Reeves, stating that this phrase 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, 35 Cal.4th at 781.

Tags:
worktime credit, qualifying violent offense, California Penal Code, section 2933, section 654, stayed sentence, writ of habeas corpus, In re Reeves, In re Phelon

Annotation By: Mark Menzies