People v. Cooper

THE PEOPLE, Plaintiff-Respondent, v. BRUCE EDWARD COOPER, Defendant-Appellant.
No. A087483 (San Mateo County Super. Ct. No. C43434) California Court of Appeal First Appellate District Division Five Filed November 1, 2000
CERTIFIED FOR PARTIAL PUBLICATION ¹
        Defendant was charged with the murder of his wife, and the jury found him guilty of second degree murder. ² In the unpublished portion of this opinion we discuss defendant's assertion that the trial court should have instructed the jury on the lesser included offense of voluntary manslaughter. In the published portion we review whether the trial court miscalculated defendant's sentencing credits. We conclude that the sentence must be modified but the conviction otherwise affirmed.

FACTS         Appellant and his wife, Michele, had been living together about 15 years and had a nine-year-old daughter. They lived with Michele's mother, Earnestine Smith, in East Palo Alto. Michele's 17-year-old son also lived with them.
        On the evening of May 22, 1998, defendant returned home from work, warmed up some food, talked to his father on the phone, watched television with his daughter and mother-in-law, visited with his brother-in-law, and took a shower. As defendant was going into the bathroom to shower, Smith heard defendant asking Michele what was wrong, but Michele was not responding, as was her customary reaction when she was angry. When defendant came out of the bathroom, Michele went in, and defendant followed her, demanding to know what was wrong.
        Michele eventually took her purse and keys and walked out of the house into the garage, with defendant following behind her. Smith heard a rattle of the knife rack and then heard defendant ask Michele what was wrong and why she had taken the knives. Smith then heard Michele scream twice. A neighbor later reported hearing a male and female voice arguing outside, followed by a woman's screams. Another neighbor heard a woman scream "Help me" two or three times.
        Smith went outside to find her daughter kneeling near the back end of the car on the driveway. Defendant was standing nearby. Michele told her mother she was "bleeding somewhere . . . and I don't know where." She had her hands pressed to her chest and appeared surprised or shocked to be bleeding. Smith could see blood running down Michele's arm.
        Defendant told Smith that Michele thought he had been with another woman. Defendant told Smith to call 911. Smith was too nervous, so defendant placed the call himself. ³ He then went to the bathroom, telling Smith he was going to put on some clothes to accompany Michele to the hospital. Blood splatters were later found on the robe defendant had been wearing, in the bathroom sink, and on the bedroom door. Traces of blood were also found on the telephone.
        Meanwhile, Smith went back outside and picked up Michele's purse and keys, which were lying on the ground. She placed them on top of the clothes dryer. She then used a paper towel to wipe off blood. When the police arrived, they found her cleaning the garage floor.
        The paramedics and police arrived a few minutes after midnight. They found defendant outside screaming, "My wife, my wife. Help my wife." Michele had been stabbed. She was not breathing and had lost a lot of blood, which was streaming down the driveway. She had no heartbeat or blood pressure, although there was still some electrical activity in the heart. The paramedics' efforts to revive her failed, and Michele was pronounced dead at the scene.
        The eight-inch blade of a kitchen knife was located near Michele's body in the driveway; its five-inch broken-off handle was found out in the street. Both pieces were stained with blood. No fingerprints were recovered from the knife. A second knife was located on top of the dryer in the garage.
        Michele had numerous cuts to the hands, which the pathologist described as defensive wounds. She also had cuts on her left arm and scalp. Michele had also suffered two stab wounds, one to the neck and one to the upper chest, both inflicted while she was standing. The stabs had severed large veins on either side of the body and caused rapid death, probably within one minute, due to the loss of blood and air embolism. Based upon the high number of cuts, the nature and location of the wounds, and Michele's apparent lack of agility, the pathologist opined that the wounds were not self-inflicted.
        Defendant was extremely agitated upon the arrival of emergency personnel. He continued pacing back and forth, becoming very emotional, and was sweating profusely. One officer had the impression that defendant's displays were not genuine. Defendant told the first police officer who arrived that his wife had been very depressed, had believed he was seeing another woman, and had inflicted the wounds herself when she ran with a knife and fell on it. Other witnesses heard defendant say that Michele had tried to kill herself and he had tried to stop her.
        Defendant was taken to the police station, where he gave a statement that Michele had stabbed herself. Defendant's hands were later tested for the presence of blood, but the results were negative. He had by that time, however, used the restroom at the police station and washed his hands. The only sign of injury to defendant was a small nick on his forehead.
        One of defendant's coworkers testified that defendant once told him he had a girlfriend, that his wife was overweight, and that he and his wife had an unsatisfactory sex life.

Defense         Defendant testified in his own behalf and asserted that Michele had stabbed herself. Defendant testified that when he got home from work that evening Michele was in a bad mood and would not talk to him. He watched television for a while, warmed up some lasagna, and talked to his brother-in-law. Then he returned to the bedroom to try to talk to Michele. She accused him of having an affair. Defendant then went to take a shower, and when he emerged their discussion continued. At one point Michele hit him in the head with the television remote control. Their quarrel continued as defendant followed Michele into the bathroom using a passkey to unlock the door.
        Finally, Michele came out of the bathroom, took her purse, and walked barefoot out of the house through the garage and out onto the driveway. As she passed through the kitchen she grabbed some kitchen knives. Defendant followed her and heard her yell "in a rage" that she was tired and better off dead. As defendant came outside, he saw Michele move her arms violently. She then screamed, "Help me." She collapsed, and defendant moved to catch her, but he was too far away.
        Defendant rushed to her side and saw that she was bleeding. He told Michele's mother, who had come outside, to call 911. When she could not, he made the call himself. He quickly got dressed as he expected to accompany Michele to the hospital. He had been wearing only a robe and slippers.
        Defendant denied being unfaithful to his wife. He testified that he and Michele had been very much in love during their 18-year relationship and they had no problems in their sex life. In fact, they had planned to renew their wedding vows. Smith, too, testified that she believed defendant and Michele had a good relationship. She had never heard defendant complain about Michele's weight.
        Nevertheless, defendant testified that Michele was temperamental and often threw tantrums, accusing defendant of infidelity. Defendant recounted several prior incidents of violence and suicide attempts by Michele. Other witnesses, including Michele's mother and brother and her employer, confirmed that Michele was quick-tempered and had engaged in acts of violent rage toward defendant and others. A neighbor testified that Michele had appeared angry earlier in the day. Michele's brother had been at the house about 10:15 p.m., and he, too, described Michele as being in one of her angry, silent moods.
        Two psychiatrists testified as expert witnesses that inflicting the stab wounds upon herself would be consistent with Michele's history of violent outbursts and impulsive behavior. Two forensic pathologists testified that the blood splatters on defendant's robe and the nature of the wounds indicated that the wounds could have been self-inflicted.

DISCUSSION         I. INSTRUCTION ON VOLUNTARY MANSLAUGHTER         The California Supreme Court has affirmed its long-standing rule that a trial court has a sua sponte duty to instruct on lesser included offenses when there is substantial evidence to support a verdict on that offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-162; see also People v. Barton (1995) 12 Cal.4th 186, 194-195; People v. Sedeno (1974) 10 Cal.3d 703, 715-716.) This duty arises even when the lesser offense is inconsistent with the defense theories (People v. Breverman, supra, at pp. 154, 163, fn. 10; People v. Barton, supra, at pp. 195, 201, 203; People v. Sedeno, supra, at p. 717, fn. 7) and even when the defendant objects to the instructions (People v. Barton, supra, at p. 198; People v. Sedeno, supra, at p. 716).
        In the present case, both defense counsel and the prosecutor asked that instructions on the lesser offense of voluntary manslaughter not be given. ⁴ The trial court ruled that the evidence of heat of passion or sudden quarrel was weak and, further, that instructions on manslaughter would be inconsistent with both the prosecution's case and the defense. Accordingly the court ruled that even aside from the tactical objections the instructions would not be given. Defendant now argues that the trial court erred and should have instructed the jury on manslaughter sua sponte, despite the objections and despite the inconsistency between heat of passion and defendant's claim that he did not wield the knife.
        We conclude that the doctrine of invited error precludes defendant from challenging the trial court's failure to give the instruction. It is true that when a defendant, for tactical reasons, persuades the trial court not to instruct on a lesser included offense supported by the evidence, the trial court's failure to instruct is no less an error. (People v. Barton, supra, 12 Cal.4th at p. 198.) However, in that situation, the doctrine of invited error applies and bars the defendant from invoking the trial court's failure to instruct as a basis for reversing the conviction. (Ibid.; see also People v. Cooper (1991) 53 Cal.3d 771, 827-831.)
        The record is clear that defense counsel and defendant himself made a deliberate choice to adopt an all or nothing position. (See fn. 4, ante.) Defendant cannot complain that the trial court did exactly what he asked for. (People v. Cooper, supra, 53 Cal.3d at p. 827; cf. People v. Wickersham (1982) 32 Cal.3d 307, 330-335 [error not invited when no showing of tactical reason for objection].)
        Defendant further argues that the trial court erred in denying his motion for new trial, which was based in part on the failure to give manslaughter instructions. We cannot agree. Defendant conceded in his motion for new trial (filed by a different attorney) that he and his trial counsel made a tactical decision to waive instructions on lesser included offenses. The trial court properly ruled that any error was invited error.
        As an alternative argument, defendant contends his trial counsel was incompetent in objecting to the manslaughter instructions. Defendant asserts that his trial counsel mistakenly believed that instructions on lesser included offenses would undermine defendant's claim that Michele's wounds were self-inflicted; counsel failed to recognize that an instruction could have been given without any need for defense counsel to argue in favor of a lesser offense.
        A claim of ineffective assistance of counsel requires the defendant to show (1) that counsel's representation fell below the standards of professional competence and (2) that there is a reasonable probability the result would have been different but for counsel's unprofessional error. (In re Avena (1996) 12 Cal.4th 694, 721.) In evaluating the defendant's showing, we must accord great deference to the tactical decisions of trial counsel in order to avoid second guessing counsel's tactics and chilling vigorous advocacy. (Id. at p. 722.)
        There is nothing in the record here to show that defense counsel misunderstood the legal implications of her tactical choice to waive manslaughter instructions. In fact, the record demonstrates that counsel wanted to foreclose a compromise verdict and keep the jury from convicting defendant of any lesser offenses. (See fn. 4, ante.) The fact that this all-or-nothing strategy did not lead to an acquittal is no basis for second guessing counsel's tactics or for concluding that counsel was uninformed or otherwise acted below the standards of professional competence. (People v. Duncan (1991) 53 Cal.3d 955, 970 [no basis for incompetence when counsel made a tactical choice].)
        In any event, no prejudice to defendant resulted from the objection to the instructions. The trial court's duty to give instructions sua sponte on lesser included offenses does not arise upon the existence of " 'any evidence, no matter how weak.' " Rather, the test is whether the evidence is " 'substantial enough to merit consideration' " by the jury. (People v. Breverman, supra, 19 Cal.4th at p. 162, quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) When the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime, as, for example, when the issue at trial is the defendant's identity as the perpetrator, then the trial court need not instruct on lesser included offenses because in such a case there is no evidence that the offense was less than that charged. (People v. Barton, supra, 12 Cal.4th at p. 196, fn. 5; People v. Sedeno, supra, 10 Cal.3d at p. 715.)
        Here, the issue at trial was indeed the identity of the perpetrator-whether defendant or the victim herself. The key question posed to the jury was whether the defendant attacked his wife or whether the victim stabbed herself. Under these circumstances, no instructions on lesser offenses were required.
        Moreover, although there was evidence of an argument prior to the stabbing, there was no evidence that defendant's passions were aroused. It was Michele who threw the remote control device in the bedroom; it was Michele who took the knives on her way out the door. Defendant himself was uninjured, and there was no evidence of his agitation until the police and paramedics arrived. By defendant's account, he was merely an uninvolved witness to Michele's acts of stabbing herself. Smith found him standing calmly beside Michele. The trial court found both at the time of ruling on the instructions and again on the motion for new trial that the evidence supporting heat of passion or sudden quarrel was too weak to justify manslaughter instructions. We find no error in those rulings, and, consequently, we conclude that defense counsel's waiver of the instructions was harmless. Even without the tactical objection, the trial court would have had no sua sponte duty to instruct on manslaughter.
        Our conclusion that the evidence was not sufficient to give rise to a sua sponte duty to instruct on manslaughter leads us necessarily to conclude as well that that there is no reasonable probability that the jury would have found defendant guilty of that lesser offense. Contrary to defendant's assertion, a failure to instruct on lesser included offenses is not an error of constitutional dimensions requiring a stricter standard of appellate review. Our Supreme Court has held that in a noncapital case an erroneous failure to instruct sua sponte on lesser included offenses is to be reviewed under the Watson ⁵ standard. (People v. Breverman, supra, 19 Cal.4th at p. 178.) Consequently, even if we were to find error, which we do not, we would conclude that the error was harmless.

II. SENTENCING CREDITS         Defendant was sentenced under Penal Code ⁶ section 190 to 15 years to life. At the time of the offense, section 190 allowed prisoners convicted of murder to earn custody credits so as to reduce their minimum term. Subdivision (a) of section 190 provided: "Except as provided in subdivision (b) [relating to murder of a peace officer], Article 2.5 (commencing with Section 2930) of Chapter 7 of Title l of Part 3 shall apply to reduce any minimum term of 15, 20, or 25 years in the state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time." (As amended by Stats. 1993, ch. 609, § 3, p. 3266; Prop. 179, as approved by voters, Prim. Elec. (June 7, 1994).) ⁷
        The trial court awarded defendant sentencing credits of 336 days for actual time served plus 50 days of preconviction good time/worktime credits. The latter figure was calculated pursuant to section 2933.1, which limits the presentence conduct credits for persons convicted of a violent felony to 15 percent of the time served. ⁸ Defendant argues that the trial court erred in applying the 15 percent limitation of section 2933.1, that the court should have awarded him conduct credits of 168 days. ⁹ (Presumably defendant relies upon section 4019, although he cites only section 2931, which pertains to postconviction credits for good behavior and participation.)
        By its terms, section 2933.1, subdivision (c), expressly overrides section 4019 and limits the presentence conduct credits for violent felons: "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 . . . shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)." (Italics added.) There is no question that section 2933.1 puts a limit on presentence credits. (People v. Sylvester (1997) 58 Cal.App.4th 1493; People v. Aguirre, supra, 56 Cal.App.4th at pp. 1138-1141; see People v. Thomas (1999) 21 Cal.4th 1122, 1130; People v. Caceres (1997) 52 Cal.App.4th 106, 110-111; People v. Ramos (1996) 50 Cal.App.4th 810, 818-824.)
        Defendant's argument runs as follows: Defendant was sentenced under section 190, which was adopted by initiative (the so-called "Briggs Initiative") in November 1978. At that time, section 190 provided that the provisions of Article 2.5 applied to reduce the minimum term imposed. ¹⁰ The reference to Article 2.5 pertains to Article 2.5 as it existed in November 1978. Section 2933.1 was not added to Article 2.5 until 1994, when it was adopted by the Legislature. By constitutional mandate, an initiative can be amended only upon approval of the voters. (Cal. Const., art. II, § 10, subd. (c).) Hence, section 2933.1 cannot apply to defendant's sentence imposed under section 190. ¹¹
        The Attorney General's response to the argument is sparse. The Attorney General cites People v. Ramos, supra, 50 Cal.App.4th 810, for the proposition that "section 2933.1 applies to the offender not to the offense" (id. at p. 817) and therefore section 2933.1 applies even if the felony occurred prior to the statute's effective date. But that was not the issue decided in Ramos. Rather, the question there was whether the limitations of section 2933.1 applied not only to the defendant's sentence for armed robbery, a violent felony, but also to his sentence for possession of methamphetamine. The court concluded that section 2933.1 limits the credits for "any person" convicted of a violent felony and thus applied to the consecutive term as well. (See also People v. Aguirre, supra, 56 Cal.App.4th at p. 1141 [§ 2933.1 applies to both murder sentence and to three-year weapon enhancement].)
        In the present case, defendant was convicted only of second degree murder. There is no question that section 2933.1, if it applies, would limit defendant's presentence credits. The question before us, which the Attorney General has not directly addressed, is whether section 2933.1 can validly be applied.
        In re Oluwa (1989) 207 Cal.App.3d 439 is on point. There the defendant had been convicted of second degree murder and sentenced to 15 years to life under section 190, the Briggs Initiative. As noted, section 190 allowed a reduction of the minimum term in accordance with Article 2.5, and when the Briggs Initiative was passed by the voters in 1978 Article 2.5 contained only sections 2930, 2931, and 2932. In 1982, however, the Legislature added sections 2933, 2934, and 2935, which give prisoners more generous credits. The question posed in Oluwa was whether the defendant was entitled to the benefit of the subsequent additions to Article 2.5. The court concluded he was not, relying upon the principle of statutory construction that when a statute adopts by specific reference the provisions of another statute, such provisions are incorporated in the form they exist at the time of the reference and not as subsequently modified. (In re Oluwa, supra, 207 Cal.App.3d at pp. 442-443, 445.)
        The Oluwa court recognized the cognate rule that when the reference is general rather than specific, such as a reference to a body of laws, then the referring statute takes the laws referred to not only in their contemporary form but also as they may be changed from time to time. But the court concluded that the reference within section 190 to Article 2.5 was a specific and pointed reference to the then-existing three particular code sections, not a general reference to the body of laws related to the subject at hand. Accordingly, the court held that the newly-enacted section 2933 could not be applied. (In re Oluwa, supra, 207 Cal.App.3d at p. 445.)
        The court emphasized that the voters had been told of the conduct credits in the analysis accompanying the Briggs Initiative, but the analysis had advised the voters that persons sentenced to 15 years to life would have to serve at least 10 years before becoming eligible for parole. The court concluded that to apply the more liberal credits of subsequently-enacted section 2933 would be contrary to the voters' intent. (In re Oluwa, supra, 207 Cal.App.3d at p. 445.)
        Finally, the court reasoned that the additions to Article 2.5 constituted a legislative change to the Briggs Initiative that required voter approval pursuant to article II, section 10, of the California Constitution: ¹² "To allow Oluwa the custody credits he seeks would permit the Legislature to amend the provisions of [the Briggs Initiative] by reducing the amount of time a second degree murderer must serve before being eligible for a parole hearing without submitting that matter to the voters. The Legislature should not be permitted to do indirectly that which it cannot do directly." (In re Oluwa, supra, 207 Cal.App.3d at p. 446.) ¹³
        In the present case we are faced with the converse situation: the Legislature has added section 2933.1, which restricts the custody credits not only for prisoners but also for detainees. ¹⁴ Is the present case distinguishable? Unlike the expansion of credits in Oluwa, the limitation of credits by section 2933.1 would not directly contradict the intention of the electorate in approving the Briggs Initiative. Yet, the limitation of credits effects no less an amendment of section 190.
        An amendment is defined as " ' " 'any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form, . . .' [Citation.] A statute which adds to or takes away from an existing statute is considered an amendment. [Citation.]" . . . ' [Citations.]" (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1484-1485 [Ins. Code, § 769.2 invalid as an attempted amendment to Prop. 103 regarding rollback of insurance premiums]; see also Franchise Tax Bd. v. Cory (1978) 80 Cal.App.3d 772, 777 [language in budget item restricting use of funds for audits invalid as an amendment to Political Reform Act of 1974, an initiative statute].) Here, the enactment of section 2933.1 changes the effect of Article 2.5 and, thereby, of section 190 by changing the method for calculating prison good time credits and by applying a 15 percent limitation to presentence county jail time as well.
        There appears to be no merit to the Attorney General's assertion that although credits cannot be increased without voter approval, sentencing credits may be reduced by statute without voter approval. The Attorney General cites People v. Aguirre, supra, 56 Cal.App.4th 1135, and People v. Ruiz (1996) 44 Cal.App.4th 1653, but neither is on point. In Aguirre, no question was raised as to whether section 2933.1 is valid as an amendment to section 190 without voter approval. In Ruiz the question was whether the legislative version of the Three Strikes law, doubling the minimum term for repeat offenders, was an invalid amendment of section 190 without voter approval. The court concluded it was not, reasoning that the Three Strikes law provides a separate sentencing scheme under which the defendant could be sentenced in lieu of section 190. (People v. Ruiz, supra, at pp. 1658-1661.) In so holding, the Ruiz court relied on People v. Jenkins (1995) 10 Cal.4th 234, 245, in which the court held that section 190 merely established a minimum term of imprisonment for murderers but the Briggs Initiative did not preclude a murderer from receiving a greater sentence under another sentencing scheme (in particular, section 667.7 concerning habitual offenders).
        As defendant correctly points out, both Ruiz and Jenkins are distinguishable in that they involved evaluations of separate sentencing schemes which exist as an alternative to section 190. In the present case, in contrast, defendant was sentenced only under section 190. Section 2933.1 expressly applies to any sentencing scheme: "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." (§ 2933.1, subd. (b), italics added.) The question of defendant's entitlement to full presentence credits or limited presentence credits centers solely on section 190 and whether the reference within section 190 to Article 2.5 includes section 2933.1.
        We conclude that the reasoning of Oluwa must be applied here. (See In re Jovan B. (1993) 6 Cal.4th 801, 816, fn. 10, citing In re Oluwa, supra, 207 Cal.App.3d 439 with approval.) The addition of section 2933.1 to Article 2.5 is indistinguishable from the addition of section 2933 for purposes of statutory interpretation and constitutional analysis. Based upon Oluwa, we hold that defendant's presentence credits must be determined without consideration of section 2933.1.
        We disagree, however, with defendant's assertion that the trial court should be directed to state in the abstract of judgment that defendant's future credits earned in prison may not be restricted by the application of section 2933.1. First, the trial court determines only presentence credits; prison credits are determined by the Department of Corrections. (People v. McCutcheon (1986) 187 Cal.App.3d 552, 560; see People v. Goodloe, supra, 37 Cal.App.4th at pp. 495-496.) Our only concern here has been with the effect of section 2933.1 upon defendant's presentence credits. Defendant must pursue his administrative remedies to challenge the prison credits determined by the Department of Corrections. In any event, for prisoners, as distinct from detainees, section 2933.1 restricts only worktime credits of section 2933. (§ 2933.1, subd. (a); People v. Palacios (1997) 56 Cal.App.4th 252, 258.) Defendant is not eligible for worktime credits under section 2933 anyway. (See fn. 13, ante.) ¹⁵

DISPOSITION         The judgment is modified to state that defendant is entitled to 504 days of credit (336 for actual local time served in custody and 168 days for local conduct credits). The trial court is directed to submit an amended abstract of judgment to the Department of Corrections. As so modified, the judgment is affirmed.


We concur.
        JONES, P.J.
        STEVENS, J.


Trial Judge
        Dale A. Hahn, Judge

Trial Court
        San Mateo County Superior Court
        Case No. C43434

Counsel for Defendant/Appellant
        Louis Marinus Wijsen, under appointment by the Court of Appeal

Counsel for Plaintiff/Respondent
        Bill Lockyer
         Attorney General
        David P. Druliner
        Ronald A. Bass
         Assistant Attorneys General
        Michael E. Banister
        Christina V. Kuo
         Deputy Attorneys General



²  Pursuant to California Rules of Court, rules 976(b) and 976.1, the FACTS and part I of this opinion are not certified for publication.

³  Defendant was sentenced to 15 years to life for murder plus one year for the personal use of a weapon.
        See footnote 1, ante.

⁴  The 911 dispatcher received a call from defendant just about midnight, but defendant hung up before describing the nature of the emergency. When the dispatcher called back, defendant did not answer. He left the cordless phone on the hood of the car and returned to the house.
        See footnote 1, ante.

⁵  At the invitation of the trial court, defense counsel stated the objection for the record: "[DEFENSE COUNSEL]: Mr. Cooper and I have discussed whether he wanted to have the jury instructed that it could find him guilty of lesser offenses. And Mr. Cooper's position, and mine, is that he's not guilty of anything, he does not want the jury to be given [the] opportunity to convict him of other offenses that he also didn't commit. Right, Mr. Cooper? [¶] THE DEFENDANT: That's correct."


⁶  People v. Watson (1956) 46 Cal.2d 818, 836.


⁷  All undesignated section references are to the Penal Code.


⁸  Article 2.5 (commencing with Section 2930) of Chapter 7 of Title l of Part 3 will be hereafter referred to as Article 2.5.


⁹  Section 2933.1 provides: "(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in 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." (Stats. 1994, ch. 713, § 1, eff. Sept. 21, 1994.)

¹⁰  Defendant's failure to object below to his presentence credits does not waive the issue on appeal. (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.)


¹¹  Defendant's brief is confusing, because it contains a quote from subdivision (e) of the current version of section 190, which now provides that the provisions of Article 2.5 do not apply to a murder sentence. (See fn. 11, post.)


¹²  Section 190 was subsequently amended to provide that the provisions of Article 2.5 do not apply and a person sentenced under section 190 for murder must serve the full length of the minimum term. (§ 190, subd. (e).) This change was adopted by the Legislature in 1996 and again in 1997, but the amendments were not submitted to the voters for approval until June 1998. (Stats. 1996, ch. 598, § 1; Stats. 1997, ch. 413, § 1; Prop. 222, as approved by voters, Prim. Elec. (June 2, 1998).) The offense in this case occurred in May 1998.

¹³  Article II, section 10, subdivision (c), of the California Constitution provides that the Legislature "may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval."


¹⁴  In 1988 section 2933 [worktime credits] was amended to add that "(e) Any person sentenced to a term in the state prison under subdivision (a) of Section 190 shall be eligible only for credit pursuant to subdivisions (a), (b), and (c) of Section 2931 [good time credits]." (Stats. 1988, ch. 121, § 1, p. 496, eff. May 31, 1988.) This change to Article 2.5 was in place and was made conditional upon approval of the amendment to section 190 by the voters at the June 7, 1988 election. (Stats. 1988, ch. 121, §§ 1, 2, pp. 496-497.) Thus, murderers sentenced under section 190 have not been entitled to worktime credits; they have been eligible only for good time credits. (See People v. Goodloe (1995) 37 Cal.App.4th 485, 489.)


¹⁵  Section 2933.1 was adopted as an urgency measure effective September 21, 1994. (People v. Camba (1996) 50 Cal.App.4th 857.)


1 We also disagree with defendant's assertion that his credits must be calculated under Article 2.5 as it existed in 1978. Article 2.5 was amended in 1988, as was section 190. (See fn. 13, ante.) Both Article 2.5 and section 190 were again amended in 1994, and the amendments were approved by the voters. (Stats. 1993, ch. 609. § 3, p. 3266; Stats. 1994, ch. 7, § 2; Stats. 1994, ch. 90, §§ 1, 2; Prop. 179, as approved by voters, Prim. Elec. (June 7, 1994).) Defendant concedes he was sentenced under section 190 as it was amended in 1994. The reference to Article 2.5 within the 1994 version of section 190 must necessarily be to Article 2.5 in effect at that time, i.e., with the changes in 1988 and 1994.
        As a practical matter, however, there are no differences between the 1978 version and the 1994 version of Article 2.5 that would affect defendant's sentence. Worktime credits (section 2933) were not a part of Article 2.5 in 1978. Section 2933 was enacted by legislation in 1982 but held inapplicable to murderers. (In re Oluwa, supra, 207 Cal.App.3d 439.) When section 2933 was changed in 1988, a provision was added to make murderers ineligible for worktime credits. (See fn. 13, ante.)
        Judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


See footnote 1, ante. See footnote 1, ante.