In re Reeves 9/19/02 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G028823

Case Date: 09/19/2002

Preview:Filed 9/19/02

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

In re JAMES GREEBE REEVES on Habeas Corpus.

G028823 (Super. Ct. No. M9108) OPINION

Appeal from an order granting a writ of habeas corpus by the Superior Court of Orange County, Ronald Kreber, Judge. Affirmed. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster, Laura Whitcomb Halgren, and David Delgado-Rucci, Deputy Attorneys General, for Appellant California Department of Corrections. Suzanne Rothlisberger and David K. Rankin, under appointment by the Court of Appeal, for Respondent James Greebe Reeves.

The Department of Corrections (CDC) appeals the lower court's granting a writ of habeas corpus to inmate, James Greebe Reeves. Reeves was ordered to serve a five-year term in prison concurrent with a 10-year term for two separate cases. Because the five-year term was for a violent felony, the CDC applied Penal Code section

2933.1's1 limitation on credits to the 10-year aggregate term. The trial court granted Reeves's petition for writ, finding the statute's limitation only applied to the five-year term attributable to the violent felony. We affirm. FACTS A jury convicted Reeves of drug possession with gang enhancements and prior conviction allegations in one case,2 after he had already entered a guilty plea in another case to assault with force likely to produce great bodily injury with a great bodily injury enhancement as well as admitting the four prior conviction allegations. The plea was conditioned on the prosecution agreeing "to limit [the] max[imum] time on this case to one year [service] consec[utive to the other case]." It was also agreed that the prosecution would dismiss charges of street terrorism and an enhancement that the assault was for the benefit of a criminal street gang. Reeves was sentenced to a total term of 10 years in prison for the drug case3 and, in a separate proceeding a month later, five concurrent years in prison for the assault case. At the sentencing for the assault, the trial court informed him that he was entitled to only 15 percent credits due to the violent nature of the felony. Reeves was then sentenced for the assault but in conjunction with the sentence already imposed for the drug case.4 Specifically, Reeves received three years for the three prior prison terms

1 Section 2933.1 provides, in subdivision (a), that "any person who is convicted of a felony offense listed in Section 667.5 shall accrue no more than 15 percent of worktime credit, . . ." All further section references are to the Penal Code. 2 We rejected his contentions in his appeal of this conviction and affirmed the judgment in its entirety in an unpublished opinion. Reeves argues that this drug case was a "non-Strike" offense, i.e., possession for sale of methamphetamine was neither a serious felony nor a violent felony. At the time of the conviction, it was not. However, section 1192.7, subdivision (c)(28) was amended a year following the conviction, making any felony carrying the gang enhancement a serious felony. For purposes of this appeal, however, the matter is irrelevant. 3 The court imposed two years for possession of methamphetamine for sale, two more years for the enhancement that the possession was for the benefit of a criminal street gang, three more years for Reeves's prior drug conviction and, finally, three years for his three prior prison terms. 4 Although the trial court failed to specify on the record that the five years' term for the assault case be served concurrently with the 10 years' term for the drug case, all parties agree that was the intention. Moreover, section 669 provides that a subsequent judgment must be served concurrently with an earlier sentence unless ordered to be served consecutively.

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and the prior drug conviction enhancement in the drug case but no terms for them in the assault case. After Reeves arrived in prison, the CDC calculated his release date as October 2006, applying the 15 percent limitation on work or education credits found in section 2933.15 to the total term of 10 years. Disagreeing with this calculation, Reeves petitioned the lower court for a writ of habeas corpus, contending the 15 percent limitation could only be applied to the portion of the sentence attributable to the violent felony, i.e., the five-year term. The lower court granted the writ, and the CDC appeals from this ruling. DISCUSSION The Attorney General, representing the CDC, contends the lower court erred when it granted the writ because, as a matter of law, the 15 percent limitation applies to a violent felon, not just the violent felony. That was the general rule enunciated in People v. Ramos (1996) 50 Cal.App.4th 810 which focused on certain language in section 2933.1: "`. . . [A]ny person who is convicted of a felony offense listed in Section 667.5'" must have his or her credits6 limited to 15 percent of the time actually spent in custody. (Ramos, supra, 50 Cal.App.4th at p. 815, quoting

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