Supreme Court of California Justia
Citation 50 Cal. 4th 787, 237 P.3d 558, 114 Cal. Rptr. 3d 233
People v. Duff

Filed 8/19/10 (this opn. should follow the companion case, S160930, also filed 8/19/10.)



IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S153917
v.
Ct.App. 4/3 G036562
JAMES EDWARD DUFF, JR.,
Orange County
Defendant and Appellant.
Super. Ct. No. 04NF2414

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

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


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 degree murder
(§§ 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 ordinarily may 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
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.
2
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.) 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.) 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; see People v. Buckhalter (2001) 26 Cal.4th 20, 32-33; People v. Thomas
(1999) 21 Cal.4th 1122, 1125.)
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.)
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; 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).)
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,
(Aug. 19, 2010, S160930), __ Cal.4th ___ (Pope). As we discussed in Pope,
3
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, ___ Cal.4th ___.) 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 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 to section 654. Relying
4
principally upon Reeves, supra, 35 Cal.4th 765, 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, ___ Cal.4th ___ 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) “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, ___ Cal.4th ___,
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, ___ Cal.4th ___ —
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
5
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
for sentencing courts to follow in carrying out the mandate of section 654. Courts
were concerned that, if they dismissed the count carrying the lesser penalty, and
the count carrying the greater term was reversed or vacated on direct appeal or
through collateral review, the defendant could escape punishment entirely. (See
People v. Pearson (1986) 42 Cal.3d 351, 360; People v. Niles (1964) 227
Cal.App.2d 749, 756.) Staying imposition of sentence also was not a satisfactory
solution. “ „Upon conviction it is the duty of the court to pass sentence on the
defendant and impose the punishment prescribed. [Citations.] Pursuant to this
duty, the court must either sentence the defendant or grant probation in a lawful
manner; it has no other discretion.‟ ” (People v. Alford (2010) 180 Cal.App.4th
1463, 1468, quoting People v. Cheffen (1969) 2 Cal.App.3d 638, 641.)
Imposition of concurrent sentences also was inappropriate, because such
sentences were considered to still punish the defendant for both offenses. “It has
long been established that the imposition of concurrent sentences is precluded by
section 654 [citations] because [under such a sentence] the defendant is deemed to
be subjected to the term of both sentences although they are served
simultaneously.” (People v. Miller (1977) 18 Cal.3d 873, 887, italics added and
omitted, disapproved on another ground in People v. Oates (2004) 32 Cal.4th
1048, 1068, fn. 8; People v. Cruz (1995) 38 Cal.App.4th 427, 434; see also In re
Wright (1967) 65 Cal.2d 650, 652, 654-655 [observing that many decisions have
rejected the view that “concurrent sentences for crimes based on one act or
indivisible transaction do not constitute multiple punishment”]; People v. Alford,
supra, 180 Cal.App.4th at p. 1468 [“Imposition of concurrent sentences is not the
6
correct method of implementing section 654, because a concurrent sentence is still
punishment.”].)
Accordingly, rather than dismissing charges or imposing concurrent
sentences, when a court determines that a conviction falls within the meaning of
section 654, it is necessary to impose sentence but to stay the execution of the
duplicative sentence, a resolution we anticipated would prevent the addition of
incremental punishment. (People v. Pearson, supra, 42 Cal.3d at p. 361; see
People v. Gonzalez (2008) 43 Cal.4th 1118, 1128; In re Wright, supra, 65 Cal.2d
at pp. 652-655.) A stay of execution of sentence would, for example — unlike a
concurrent sentence — prevent the Division of Juvenile Justice (DJJ, formerly the
California Youth Authority) from relying upon the stayed sentence as a basis for
determining that a juvenile offender is ineligible for DJJ commitment. (People v.
Pearson, supra, 42 Cal.3d at p. 361.) The sentencing court should stay execution
of sentence pending completion of service of sentence upon the greater offense,
with the stay to become permanent upon completion of that sentence. (People v.
Niles, supra, 227 Cal.App.2d at p. 756; see 3 Witkin & Epstein, Cal. Criminal
Law (3d ed. 2000) Punishment, § 147, pp. 211-212 [characterizing the Niles
formulation as the “accepted approach”]; see also People v. Gonzalez, supra, 43
Cal.4th at p. 1128; People v. DeLoza (1998) 18 Cal.4th 585, 594; People v.
Pearson, supra, 42 Cal.3d at p. 360; People v. Miller, supra, 18 Cal.3d at p. 886
[the stay “is to be effective pending the successful service of sentence for the more
serious conviction, at which time the stay is to become permanent”]; People v.
Alford, supra, 180 Cal.App.4th at p. 1469.)
The trial court in the present case, adhering to the procedure developed in
the cases cited above, imposed sentence upon defendant for the qualifying murder
offense, but stayed execution of sentence for that offense in view of the longer
sentence the court imposed and executed for the nonqualifying offense. The court
7
granted defendant 567 days of credit for time served, but denied him conduct
credit.
As noted, defendant claims that, in addition to requiring a stay of execution
of sentence for the qualifying murder offense, section 654 also should protect him
from the loss of presentence conduct credit, against the term on his assault offense,
pursuant to section 2933.2(c). He calculates that the loss of credit caused by the
trial court‟s application of the latter statute increased his punishment for the
nonqualifying assault offense by 85 days, even though execution of sentence for
the qualifying murder conviction had been stayed. This increase in punishment,
he claims, violates the command of section 654.
We agree that application of section 2933.2(c) results in defendant‟s
serving a greater proportion of the total prison term than would be the case if he
had been convicted solely of the nonqualifying offense. This result, however —
service of a greater proportion of the prison sentence by a person who “is
convicted” of the qualifying murder offense — is exactly what was intended by
section 2933.2(c), “notwithstanding any other provision of law.”
As we have observed, subdivisions (a) and (c) of section 2933.2 employ
language virtually identical to the language of the parallel subdivisions of section
2933.1, and are subject to the same interpretation. As to the latter language of
section 2933.1, we commented in Reeves, supra, 35 Cal.4th 765, that the intent of
the Legislature in enacting this provision was to “delay[] the release of prisoners
convicted of violent offenses.” (Id. at p. 771.) The Legislature itself explained
that the statute was adopted to “protect the public from dangerous repeat offenders
who otherwise would be released. . . .” (Stats. 1994, ch. 713, § 2, p. 3448, italics
added.) Like section 2933.1, section 2933.2 was intended to ensure that a person
who “is convicted” of the qualifying offense, namely murder, would not advance
8
the time of his or her release by means of presentence conduct and postsentence
worktime credits.
Moreover, in the words of section 2933.2(c), “no credit may be earned” by
any person convicted of murder. The restrictions imposed by section 2933.2(c)
could not operate effectively to ensure that the entire prison term of a defendant
who “is convicted” of murder would be served in full, if service of the resulting
longer, total term of imprisonment for such a person were prevented by the
application of section 654. Although that statute bars multiple punishment for the
same “act or omission” that is made punishable under two different statutes, it is
evident that, for any person who “is convicted” of murder, section 2933.2(c)
overrides the protection of section 654. As we explained in Pope, supra, ___
Cal.4th ___, the Legislature intended that all persons who come within the
purview of the credit-limiting statutes should suffer the loss of credit contemplated
by the statutes, simply by virtue of the circumstance that they have been convicted
of the qualifying offense.
Section 2933.2, like section 2933.1, repeatedly specifies that its restrictions
upon the earning of presentence and postsentence credits apply notwithstanding
any other law. (§§ 2933.2(a) [“[n]otwithstanding . . . any other law”], 2933.2(c)
[“[n]otwithstanding . . . any other provision of law”]; see also §§ 2933.1(a)
[“[n]otwithstanding any other law”], 2933.1(c) [“[n]otwithstanding . . . any other
provision of law”].) We have made it plain, with respect to statutes employing the
same “notwithstanding” language, that a statute may prevent or negate the
operation of section 654 even in the absence of an express reference to that
provision. (People v. Palacios (2007) 41 Cal.4th 720, 730 [under § 12022.53, and
in the absence of any specific reference to § 654, three firearm-use enhancements
may be imposed in connection with offenses committed against a single victim
with a single shot]; People v. Benson (1998) 18 Cal.4th 24, 32-33 [under
9
§ 1170.12, subd. (b), and in the absence of any specific reference to § 654, prior
felony conviction qualified as strike, despite the circumstance that the trial court in
the prior proceeding stayed execution of sentence for one or more of the felonies,
pursuant to § 654].)
Considering section 2933.2(c) in the context of surrounding statutory
provisions, and also considering the purpose that sections 2933.1 and 2933.2 were
intended to serve, we conclude the “notwithstanding” language found in section
2933.2(c) operates to prevent any reduction of the term of imprisonment for a
person who “is convicted” of murder, despite the general provisions of section
654.
Support for our conclusion may be found in People v. McNamee (2002) 96
Cal.App.4th 66, 70 (McNamee), although the court in that case did not consider,
and had no occasion to comment upon the application of, section 2933.2(c) in the
context of section 654. The defendant in McNamee was convicted of second
degree murder, and a firearm-use enhancement was found true. An indeterminate
sentence of 15 years to life in prison was imposed —and executed — for the
murder conviction, and a consecutive determinate term of 10 years was
imposed — and executed — for the firearm-use enhancement. The defendant
conceded that section 2933.2(c) rendered him ineligible for presentence conduct
credit against his indeterminate term for the murder conviction, but argued that the
limitation created by section 2933.2(c) should not extend to bar presentence
conduct credit against the consecutive determinate term for the enhancement. The
question presented was “whether [the statute‟s] ban on presentence conduct credits
applies to a determinate term as well as an indeterminate one.” (McNamee, supra,
96 Cal.App.4th at p. 69, italics added.)
The court concluded that section 2933.2(c) applied to a determinate-term
enhancement as well as to the indeterminate term for murder. In a reading of the
10
statute that accords with our own, the court reasoned that, for purposes of section
2933.2(c), “any person” specified in subdivision (a) of section 2933.2 simply was
one who had been convicted of a qualifying felony. (McNamee, supra, 96
Cal.App.4th at p. 69.) The court also observed, with the same understanding of
the statute that we have expressed above: “[T]he language of section 2933.2,
subdivision (c) is broad and evidences an intention to impose a complete ban on
presentence conduct credits for those defendants who come within its purview.
Subdivision (c) states that, notwithstanding section 4019 „or any other provision of
law,‟ no presentence conduct credits may be earned by a person convicted of
murder. That language reflects an intent to supersede any and all provisions of
law that might support an award of presentence conduct credits.” (McNamee,
supra, 96 Cal.App.4th at p. 70.)
We are unpersuaded by the argument that the “notwithstanding” language
found in section 2933.2 (and § 2933.1) merely conveys the understanding that the
provision applies notwithstanding the statutes that establish the generally
applicable rules governing conduct and worktime credit. At various points in
sections 2933.1 and 2933.2, the statutory language directs that the credit
restrictions apply despite the very statutes that establish the ordinary rules
governing credits. The more general “notwithstanding” language presumably is
not surplusage, but applies to a broader category of “other” law. Thus, in
subdivision (c) of sections 2933.1 and 2933.2, the limitation upon presentence
credit applies “notwithstanding Section 4019” (a statute generally governing
presentence conduct credit) — or “any other provision of law.” (Italics added.)
Subdivision (a) of 2933.2 not only states that its restriction applies
“[n]otwithstanding Section 2933.1 or any other provision of law,” but it also
specifies that a person who is convicted of murder “shall not accrue any credit, as
specified in Section 2933 (the general postsentence worktime credit statute) or
11
Section 2933.05” (providing for enhanced credits for successful completion of
certain programs). (Italics added.) A parallel provision appears in section
2933.1(a), which provides that any person convicted of a qualifying felony “shall
accrue no more than 15 percent of worktime credit, as defined in Section 2933.”
(Italics added; see also § 2933.5, subd.(a)(1) [providing that “[n]otwithstanding
any other law,” any person who is a recidivist convicted of specified offenses
“shall be ineligible to earn credit . . . pursuant to this article.” (Italics added)].)
We also are unpersuaded by defendant‟s reminder that courts ordinarily
avoid concluding that the Legislature has repealed a statutory provision by
implication. We have not suggested that section 654 has been repealed. Rather,
we have concluded the Legislature intended that, for persons who have been
convicted of murder, the limitation upon credit established by section 2933.2
should apply notwithstanding the still-valid general rule established by section
654. Moreover, many decisions of this court and the Courts of Appeal illustrate
instances in which — by implication — the Legislature has overridden section 654
in certain circumstances. (See People v. Palacios, supra, 41 Cal.4th at p. 730, and
cases cited; People v. Benson, supra, 18 Cal.4th at pp. 32-33, and cases cited.)
We agree with the Court of Appeal in the present case that the contrary
decision in In re Phelon (2005) 132 Cal.App.4th 1214 is unpersuasive. As we
explained in Pope, supra, ___ Cal.4th ___, the court in Phelon erroneously
concluded that, because the prisoner‟s qualifying offense had been stayed pursuant
to section 654, section 2933.1(a) did not apply and the prisoner was entitled to
earn unrestricted worktime credit against his sentence for a nonqualifying offense.
As relevant to the present case, the court in Phelon went on to consider the
availability of presentence conduct credit pursuant to section 2933.1(c). Although
concluding that section 2933.1(c) applied, the appellate court further concluded
that application of the subdivision was prohibited by the ban on multiple
12
punishment contained in section 654. Because this statute ordinarily “ „prohibits
the use of a conviction for any punitive purpose if the sentence on that conviction
is stayed,‟ ” the court concluded that section 654 would prohibit the loss of credit
entailed in the application of section 2933.1(c) to that case. (Phelon, supra, 132
Cal.App.4th at p. 1220, quoting People v. Pearson, supra, 42 Cal.3d 351, 361.)
The court in Phelon answered the question of whether the loss of credit constituted
punishment within the meaning of section 654, but failed to consider whether
section 2933.1 enacted an exception precluding application of section 654.
The Court of Appeal correctly concluded in the present case that it is
evident the Legislature intended section 2933.2(c) to function as an exception to
section 654. As we have explained, the purpose of the credit-restriction statute is
to prevent conduct and worktime credit from advancing the release date of persons
convicted of murder. We also agree with the Court of Appeal that section 2933.2,
subdivision (c) is “broad and clear” and, like subdivision (a) of the statute, plainly
“evinces an intent to preclude presentence conduct credits to anyone convicted of
murder, even if that sentence is stayed pursuant to section 654.”2

2
To the extent it is inconsistent with our opinion in the present case, we
disapprove the court‟s decision in In re Phelon, supra, 132 Cal.App.4th 1214.
13



III
For the foregoing reasons, the judgment rendered by the Court of Appeal is
affirmed.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
14



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

Name of Opinion People v. Duff
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 151 Cal.App.4th 913
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S153917
Date Filed: August 19, 2010
__________________________________________________________________________________

Court:

Superior
County: Orange
Judge: James A. Stotler

__________________________________________________________________________________

Attorneys for Appellant:

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

__________________________________________________________________________________

Attorneys for Respondent:

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.



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

Tonja R. Torres
Torres & Torres
3579 East Foothill Boulevard
Pasadena, CA 91107
(626) 836-5855

Heather F. Crawford
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 525-4084


Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. This case presents the following issue: Does Penal Code section 2933.2, which provides that "any person who is convicted of murder . . . shall not accrue any credit, as specified in [Penal Code] section 2933," apply where the defendant was convicted of murder but the sentence was stayed under Penal Code section 654?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 08/19/201050 Cal. 4th 787, 237 P.3d 558, 114 Cal. Rptr. 3d 233S153917Review - Criminal Appealsubmitted/opinion due

Parties
1The People (Plaintiff and Respondent)
Represented by Heather Ferrick Crawford
Office of the Attorney General
P.O. Box 85266
San Diego, CA

2Duff, James Edward (Defendant and Appellant)
Represented by Appellate Defenders, Inc.
555 W. Beech Street, Suite 300
555 W. Beech Street, Suite 300
San Diego, CA

3Duff, James Edward (Defendant and Appellant)
Represented by Tonja R. Torres
Torres & Torres
3579 E. Foothill Boulevard, PMB 332
Pasadena, CA


Opinion Authors
OpinionChief Justice Ronald M. George

Dockets
Jun 27 2007Received premature petition for review
  James Edward Duff, Jr., Appellant Attorney Tonja R. Torres
Jul 2 2007Petition for review filed
 
Jul 5 2007Received Court of Appeal record
  file jacket/briefs/transcript
Aug 29 2007Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Aug 29 2007Record requested
 
Aug 31 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Tonja R. Torres 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.
Nov 29 2007Request for extension of time filed
  opening brief/merits to 12-31-07 Appellant James Edward Duff, Jr. Attorney Tonja R. Torres
Dec 7 2007Extension 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 December 31, 2007.
Dec 28 2007Request for extension of time filed
  opening brief/merits to 1-30-08 Appellant James Edward Duff, Jr. Attorney Tonja R. Torres
Jan 3 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief on the merits is hereby extended to and including January 30, 2008.
Jan 22 2008Opening brief on the merits filed
  Appellant James Edward Duff, Jr. Attorney Tonja R. Torres
Feb 19 2008Request for extension of time filed
  by Respondent requesting a 60-day extension to and including April 18, 2008, to file respondent's answer brief on the merits. by Heather F. Crawford, counsel
Feb 21 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is hereby extended to and including April 18, 2008.
Apr 15 2008Request for extension of time filed
  Respondent requesting to April 28, 2008, to file answer brief on the merits (to court for permission)
Apr 16 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 April 28, 2008.
Apr 16 2008Compensation awarded counsel
  Atty Torres
Apr 28 2008Answer brief on the merits filed
  The People, Plaintiff and Respondent. Heather F. Crawford, counsel
May 14 2008Request for extension of time filed
  reply brief on the merits to 6-3-08 Appellant James Edward Duff, Jr.
May 22 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief on the merits is hereby extended to and including June 3, 2008.
Jun 5 2008Reply brief filed (case fully briefed)
  Appellant James Edward Duff, Jr. [rule 8.25] ~Attorney Tonja R. Torres
May 5 2010Case ordered on calendar
  to be argued Tuesday, May 25, 2010, at 1:30 p.m., in San Francisco
May 13 2010Stipulation filed
  Stipulation by counsel Tonja R. Torres, that appellant has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 17 2010Stipulation filed
  Stipulation by counsel Heather Crawford, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 25 2010Stipulation filed
  Stipulation by counsel Tonja R. Torres, that appellant 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 Heather Crawford, that respondent 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
Jan 22 2008Opening brief on the merits filed
 
Apr 28 2008Answer brief on the merits filed
 
Jun 5 2008Reply brief filed (case fully briefed)
 
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s153917_respondent-answer-brief-on-the-merits.pdf (1218989 bytes) - respondent answer brief on the merits
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s153917_appellant-reply-brief-on-the-merits.pdf (1539657 bytes) - appellant reply brief on the merits
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May 23, 2011
Annotated by jaime dorenbaum

Opinion by: George, C. J. (unanimous)

FACTS/PROCEDURAL HISTORY

Defendant, James Edward Duff, Jr., smothered his one year old son James, resulting in the child's death. Defendant was charged and convicted with two crimes: (1) assault on a child committed with force likely to cause great bodily injury resulting in death and (2) second degree murder. A sentence of 25 years to life was imposed for the conviction of assault on a child resulting in death. A sentence of 15 years to life was imposed for the second-degree murder. The trial court stayed the execution of the sentence for the second-degree murder conviction pursuant to Penal Code section 654.

Defendant was not credited with presentence conduct credit pursuant to Penal Code section 2933.2. Penal code section 2933.2 specifies that notwithstanding any other provision of law, any person who is convicted of murder shall not accrue any conduct credit for periods of presentence incarceration. Defendant appealed this decision to the Court of Appeal and contended that section 2933.2 did not apply in his case because it violates section 654. Penal Code section 654 specifies that an act or omission punishable in different ways shall not be punished under more than one provision. Defendant claimed that the trial court punished him in two different ways by augmenting his sentence (by not awarding him presentence conduct credit, the Defendant argued that the loss of credit constituted a punishment within the meaning of section 654) under the murder conviction and by sentencing him under the assault on a child resulting in death conviction. The Court of Appeal affirmed the trial court’s decision. The California Supreme Court granted review and affirmed the Court of Appeal’s decision in a unanimous opinion written by Chief Justice George.

ISSUE

Whether Penal Code section 2933.2 should be applied to deny presentence conduct credit to a person convicted of murder, but whose execution of punishment for the murder conviction was stayed under Penal Code section 654?

HOLDING

The Legislature intended Penal Code section 2933.2 to function as an exception to section 654. This means that section 2933.2 is meant to preclude presentence conduct credits to anyone convicted of murder, even if that sentence is stayed pursuant to Penal Code section 654.

ANALYSIS

The Court looked to the context of the surrounding statutory provisions of Penal Code section 2933.2 and to the legislative purpose of section 2933.2 to conclude that section 2933.2 is an exception to the general rule provided by section 654.

The surrounding statutory provisions of section 2933.2, in particular section 2933.1, employ virtually identical language. The Court noted that the Legislature intended section 2933.1 to delay the release of prisoners convicted of violent offenses. Because the language of 2933.1 mirrors section 2933.2, the same legislative intent animates section 2933.2. This intention supports the notion that section 2933.2 was drafted to be an exception to section 654. This intention is also supported by the fact that section 2933.2 says “any” person convicted of murder cannot receive presentence conduct credit. The Court considers “any” person to include those whose execution of sentences for murder have been stayed under section 654. In addition, the statute says that this demand applied “notwithstanding … any other law.”

The Court was unpersuaded by Defendant’s argument that the language stating “nothwithstanding … any other law” referred only to laws that involving prison term credits. The Court determined that the clause applied more generally to any other law.

The Court was unpersuaded by Defendant’s argument that reading section 2933.2 as an exception to section 654 would effectively repeal section 654 and thus the court should avoid, as it customarily does, concluding that the Legislature has repealed a statutory provision by implication. The Court stated that section 654 establishes the still-valid general rule.

The Court overruled In re Phelon (2005) 132 Cal. App. 4th 1214 to the extent that it failed to conform to the present decision. The court in In re Phelon acknowledged that a loss of credit under section 2933.1 constituted a punishment under section 654. For this reason, the court prohibited the loss of credit. The Court noted, however, that the Phelon court failed to consider that section 2933.1 is an exception to section 654.

KEY RELATED CASES

In re Pope, (2010) 50 Cal. 4th 787.
http://scholar.google.com/scholar_case?case=10927349980768801591&q=in+re...

In re Reeves, (2005) 35 Cal. 4th 765.
http://scholar.google.com/scholar_case?case=3183332912415523859&q=in+re+...

People v. McNamee (2002) 96 Cal. App. 4th 66.
http://scholar.google.com/scholar_case?case=12980782886797887871&q=peopl...

In re Phelon, (2005) 132 Cal. App. 4th 1214.
http://scholar.google.com/scholar_case?case=17931469288410698273&q=in+re...

TAGS

Presentence conduct credit, stay of execution of sentence, credits, sentencing and punishment, indeterminate sentence, Penal Code section 2933.2, Penal Code section 2933.1, Penal Code section 654.