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Court of Appeal, Fifth District, California.

 The PEOPLE, Plaintiff and Respondent, v. Wayne Russell McCLANAHAN, Defendant and Appellant.

No. F013046.

Decided: May 31, 1991

 Barbara Michel, Berkeley, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Shirley A. Nelson, Stan Cross, and Rosendo Peña, Jr., Deputy Attys. Gen., for plaintiff and respondent.


We here revisit the question whether “on bail” sentence enhancements (Pen.Code,1 § 12022.1) are subject to the “double-the-base-term” (DBT) limitation of section 1170.1, subdivision (g).   In People v. Vega (1990) 224 Cal.App.3d 506, 273 Cal.Rptr. 684, a divided panel of this court held a section 12022.1 enhancement is imposed for a “prior felony conviction,” and, under article I, section 28, subdivision (f) of the California Constitution (Proposition 8), must be imposed without limitation of the DBT rule.   On reexamination of the question we conclude that Vega was incorrectly decided and we will not follow it.


Appellant Wayne Russell McClanahan was charged in three separate informations later consolidated for trial.   The first information (# 38452) alleged that on or about December 20, 1988, appellant unlawfully possessed methamphetamine for sale in violation of Health and Safety Code section 11378.   The second information (# 38708) charged appellant with a similar violation alleged to have occurred on or about March 15, 1989.   In addition, that information alleged appellant personally used a handgun in the commission of the offense (§ 12022, subd. (b)), personally possessed for sale 57 grams or more of a substance containing methamphetamine (§ 1203.073, subd. (b)(2)), and committed the charged offense while on bail on the earlier felony charge (§ 12022.1).   The third information (# 38925) charged appellant with yet another violation of Health and Safety Code section 11378 “on or about April 21, 1989.”   This charge was followed by two separate allegations that appellant was on bail or release at the time of the offense (§ 12022.1), each referring to one of the previously filed informations.   Also charged was an arming enhancement under section 12022, subdivision (b).

After pleading not guilty appellant was tried by a jury.   Because the issues raised on appeal involve only various sentencing rules, we need not present a detailed statement of the evidence and facts.   In summary, appellant's home was searched on three different occasions pursuant to warrants.   Each search led to the filing of one of the underlying informations.

Appellant was found guilty of the substantive offenses charged in all three counts.   The jury found true all allegations save the two arming enhancements, on which the jury could not reach unanimous agreement.   Those enhancements were later dismissed on the People's motion.

 Sentencing was held on October 11, 1989.   The court found no unusual circumstances permitting probation under section 1203.073.   The court then determined that consecutive sentencing would be appropriate, stating the reasons therefor, and determined that aggravating and mitigating factors were in balance.

With those determinations made, the court selected the charge in information number 38925 as the principal count, sentencing appellant to the middle base term of two years.   The other two Health and Safety Code section 11378 counts were run consecutive under the “one-third-the-middle-term” provision of section 1170.1, subdivision (a), for a subtotal of three and one-third years.   Then the three section 12022.1 enhancements were added, each for two years, bringing the sentence up to nine and one-third years.   Finally, the court imposed as to each of the three counts a $100 restitution fine pursuant to Government Code section 13967.

The court then determined that appellant had a total of 267 days of presentence credit.   However, the abstract of judgment gives appellant only 258 days of credit.


I. Enhancements Imposed Pursuant to Section 12022.1 are Subject to the “Double–the–Base–Term” Limitations of Section 1170.1, Subdivision (g).

Appellant contends his aggregate sentence violated the DBT limitation of section 1170.1, subdivision (g).   Specifically, he argues that the “on bail” enhancements under section 12022.1 are not exempt from the DBT limitation.

When consecutive sentences are imposed under section 1170.1,2 “the aggregate term of imprisonment ․ shall be the sum of the principal term, the subordinate term, and any additional term imposed pursuant to Section ․ 12022.1, ․ The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, ․ The subordinate term for each consecutive offense which is not a ‘violent felony’ ․ shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements․”  (§ 1170.1, subd. (a).)  “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b)  of Section 1170․”  (§ 1170.1, subd. (g).)  There are several statutory exceptions to the DBT limitation.  Section 12022.1 enhancements are not expressly mentioned in the list of exceptions.  (Ibid.)

Under section 12022.1, “Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.”  (§ 12022.1, subd. (b).)

The relevant portion of Proposition 8 provides:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”

The question presented here is whether Proposition 8 and sections 1170.1 and 12022.1, which together appear to mandate full imposition of a section 12022.1 enhancement, conflict with and take precedence over the DBT limitation of section 1170.1, subdivision (g) if the enhancement puts the total sentence over the DBT ceiling.

A. Prior Case Law

In March 1990, the California Supreme Court decided People v. Prather (1990) 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012.   While the Prather court did not face the question posed here, whether section 12022.1 enhancements are governed by the DBT rule (50 Cal.3d at p. 432, fn. 5, 267 Cal.Rptr. 605, 787 P.2d 1012), Prather provides a foundation on which later appellate decisions were built.

The issue in Prather was whether “prior prison term” enhancements under section 667.5, subdivision (b) are limited by the DBT rule.   Initially the Supreme Court stated it could not conclude that omission of section 667.5, subdivision (b) enhancements from the express list of exceptions to the DBT rule was a mere “draftsman's oversight.”  “On the contrary, the Legislature's recent addition of several exceptions to section 1170.1(g) suggests that it may have intended no similar exclusion for section 667.5(b).”  (50 Cal.3d at p. 434, 267 Cal.Rptr. 605, 787 P.2d 1012.)

Having thus found nothing in the statutory language indicating that section 667.5, subdivision (b) enhancements were exempt from the DBT rule, the Supreme Court turned to the language of Proposition 8, concluding that:

“[T]he enactment of article I, section 28, subdivision (f), ‘was an unambiguous expression of the electorate's intent to supersede the twice the base  term rule as it applied to [prior felony] enhancements.’   Both the language and history of article I, section, 28, subdivision (f), suggest it was intended not only to increase the length of sentences served by recidivist offenders generally, but also specifically to abrogate (with respect to prior-felony-conviction enhancements) statutory ‘limitations on overall length of sentences.’  Section 1170.1(g) provides such a ‘limitation’:  It expressly precludes application of an otherwise valid prior felony sentence enhancementsolely because it would extend the total length of incarceration beyond certain specified limits.

“To hold that enhancements for prior felony imprisonment remain subject to the double-base-term limitation, notwithstanding the language and history of article I, section 28, subdivision (f), would ignore the purpose of that constitutional provision and thwart the intent of the voters and framers of Proposition 8.  [Citation.]  Accordingly, we conclude the California Constitution bars application of the double-base-term limitation of section 1170.1(g) to sentence enhancements based on section 667.5(b).”  (50 Cal.3d at pp. 436–437, 267 Cal.Rptr. 605, 787 P.2d 1012.)

This analysis did not resolve the issue in Prather;  another question had to be addressed, that being whether the enhancement set out in section 667.5, subdivision (b) was within the scope of Proposition 8's “prior felony conviction” language.   The section 667.5, subdivision (b) enhancement is not for a prior conviction, but for a prior prison term.   The Supreme Court found no basis for distinction, however, in dealing with Proposition 8.

“Section 667.5(b) provides that ‘where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony.’  (Italics added.)   We think it clear that section 667.5(b) is aimed primarily at the underlying felony conviction, and only secondarily, and as an indicium of the felony's seriousness, at the prior prison term.   That is, we believe section 667.5(b), fairly read, merely provides a special sentence enhancement for that particular subset of ‘prior felony convictions' that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment.  [Citations.]  Accordingly, we hold that the broad mandate of article I, section 28, subdivision (f), concerning the use of any ‘prior felony conviction[s]’ for enhancement purposes, necessarily includes the lesser category of enhancements based on prior felony convictions for which imprisonment was imposed.”  (People v. Prather, supra, 50 Cal.3d at p. 440, 267 Cal.Rptr. 605, 787 P.2d 1012.)

In October 1990, a divided panel of this court decided People v. Vega, supra, 224 Cal.App.3d 506, 273 Cal.Rptr. 684.   The majority concluded that a section 12022.1  enhancement described an “enhancement for prior convictions.”  (Id. at p. 520, 273 Cal.Rptr. 684.)

The analysis supporting this conclusion was contained entirely in the following two paragraphs.

“In People v. Tassell (1984) 36 Cal.3d 77, 90 [201 Cal.Rptr. 567, 679 P.2d 1], the Supreme Court stated:  ‘Section 1170.1 refers to two kinds of enhancements:  (1) those which go to the nature of the offender;  and (2) those which go to the nature of the offense.   Enhancements for prior convictions—authorized by sections 667.5, 667.6 and 12022.1—are of the first sort․’

“The Supreme Court's characterization of section 12022.1 as providing an enhancement for prior convictions is something more than dictum.   Although section 12022.1 comes into play before there is a prior felony conviction, it has no life until and unless the primary offense is a final felony conviction.   Furthermore, the purpose of section 12022.1, to punish recidivists with additional penalties [citation], comports with the purpose behind article I, section 28, subdivision (f) of the California Constitution.   Thus, a section 12022.1 enhancement is an enhancement based on a prior felony conviction, as that term is broadly and liberally construed, and is not subject to the double-the-base-term limitation of section 1170.1, subdivision (g).”  (224 Cal.App.3d at p. 520, 273 Cal.Rptr. 684.)

Justice Ardaiz dissented from this portion of the majority opinion on the premise that the majority erred in describing section 12022.1 as a “prior felony conviction” enhancement.

“As [the] authorities make clear, the distinguishing feature of an enhancement based on a prior conviction is that the defendant receives greater punishment for committing a new offense after his conviction of the earlier offense.   The ‘on bail’ enhancement authorized by section 12022.1 operates in an entirely different manner.

The defendant receives greater punishment not because his new felony, the ‘secondary offense,’ followed his conviction of an earlier felony, the ‘primary offense.’   Rather, he receives greater punishment because his new felony followed his release from custody on the earlier crime.   While the fact of ultimate conviction on the primary offense is a precondition to imposition of the two-year enhancement, the timing of the conviction is entirely irrelevant.  Section 12022.1 expressly addresses, inter alia, the situation where conviction and sentencing on the secondary offense precede conviction on the primary offense.  (§ 12022.1, subd. (2)(d).)”  (224 Cal.App.3d at p. 523, 273 Cal.Rptr. 684, Ardaiz, J., dissenting (emphasis in original).)

Shortly after the Vega opinions were filed, Division Two of the Fourth District decided People v. Burnes (1990) 224 Cal.App.3d 1222, 274  Cal.Rptr. 466.   The Burnes court relied heavily on Prather in “giv[ing] section 28(f) a broadly liberal and commonsense interpretation,” concluding that “section 12022.1 ‘on bail’ enhancements are, in essence, ‘prior felony conviction’ enhancements, as that latter phrase is interpreted and defined under section 28(f).”  (Id. at p. 1231, 274 Cal.Rptr. 466.)

Thus, the only two published appellate decisions on the precise issue before us reached the same result;  i.e., section 12022.1 enhancements are excepted from the DBT limitation.   The Supreme Court has not yet spoken on the issue.3

B. Statutory Construction

Since constitutional questions are to be avoided when possible, we must first consider whether the statutes, viewed independently of Proposition 8, clearly make section 12022.1 enhancements applicable without regard to the DBT limit.   If so, the constitutional issue need not be reached.

Respondent argues that even though section 1170.1, subdivision (g) does not expressly except section 12022.1 enhancements from the DBT limitation, the statute should be read as if it contained such an exception.   Respondent suggests the omission of section 12022.1 enhancements from the list of exceptions to the DBT rule was a “drafting oversight.”  (See People v. Jackson (1985) 37 Cal.3d 826, 837–838, 210 Cal.Rptr. 623, 694 P.2d 736.)

Respondent's position is undercut by Prather's interpretation of the history of section 1170.1, subdivision (g).

“[T]he Court of Appeal below stated:  ‘Effective on January 1, 1988, section 1170.1, subdivision (g), was amended so as to expressly except section 667, subdivision (a), enhancements from the “double the base term” rule.  (Stats.1987, ch. 1423, § 3.7.)   Thus, the Legislature has now made the Jackson ruling [People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736] an express provision in the overall statutory sentencing scheme.   The Legislature, however, did not amend section 1170.1, subdivision (g), at the same time so as to expressly except section 667.5, subdivision (b), from the “double the base term” rule.   It would be an unwarranted intrusion into the legislative arena to imply such an exception here.   Our Legislature, having just addressed itself to the specific issue of which enhancement provisions are excepted  from the “double the base term” rule, must be presumed to have made all of the statutory amendments deemed necessary.’  (Italics in original.)   Accordingly, the Court of Appeal concluded that Jackson, supra, 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736] was not controlling as to section 667.5 enhancements, and that such enhancements were subject to the double-base-term limitations contained in section 1170.1.

“We agree that our reasoning in Jackson, supra, 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736], is not necessarily controlling here.   The Legislature's failure to include section 667.5(b) enhancements within the list of exceptions contained in section 1170.1(g) does not appear to be the result of a mere ‘draftsman's oversight,’ nor can we discern any clear legislative intent to exclude such enhancements from the double-base-term limitation.   On the contrary, the Legislature's recent addition of several exceptions to section 1170.1(g) suggests that it may have intended no similar exclusion for section 667.5(b).  [Citation.]   Consequently, the question presented here cannot be resolved by statutory construction as in Jackson.”  (50 Cal.3d at pp. 433–434, 267 Cal.Rptr. 605, 787 P.2d 1012.)

Although this analysis deals specifically with enhancements under section 667.5, subdivision (b), the reasoning applies with equal force to the section 12022.1 enhancement.  Section 12022.1 was enacted by the Legislature in 1982.   The same act included an amendment to section 1170.1, subdivision (a) designating a section 12022.1 enhancement as part of the aggregate sentence.  (Stats.1982, ch. 1551, §§ 1.5, 2, pp. 6048, 6050.)   Section 1170.1, subdivision (g) was not then amended to except section 12022.1 enhancements from the DBT limit.   In 1987 the Legislature amended section 1170.1, subdivision (g) by expressly adding several enhancements to those exempt from the DBT rule.  (Stats.1987, ch. 1423, § 3.7.)   Significantly, section 12022.1 enhancements were not mentioned.   Another enhancement was added to the list of exceptions in 1988.  (Stats.1988, ch. 1487, § 2.)   Again, section 12022.1 was not included in the list of exceptions.   Thus, the Legislature has had three clear opportunities to make the DBT rule inapplicable to “on bail” enhancements.   It has not done so.   We see no rational basis for concluding that the omission was the result of a drafting oversight.   The principle of expressio unius est exclusio alterius demands that we give deference to what must be viewed as a legislative decision.

Because the statutes themselves do not allow section 12022.1 enhancements to be applied in disregard of the DBT rule, the effect of Proposition 8 must be considered.

C. The Scope of Proposition 8

As set forth above, article I, section 28, subdivision (f) provides:  “Any prior felony conviction of any person in any criminal proceeding, whether  adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding ․”

The Supreme Court in Prather held that enhancement for a prior prison term under section 667.5, subdivision (b), was within the scope of Proposition 8's requirement that prior felony convictions be used without limitation to enhance a sentence.  Prather allowed prior felony convictions used indirectly to support prior prison term enhancements to fall within the “without limitation” language of Proposition 8.

Can section 12022.1 enhancements also be viewed as “prior felony conviction” enhancements, even though the “prior conviction” necessary to trigger the enhancement may in fact occur after the sentencing in which the enhancement is imposed?  Vega and Burnes stand as authority for an affirmative answer to this question.

Both the Vega majority and the Burnes court relied on the Supreme Court's comment in People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1, grouping section 12022.1 enhancements with other “[e]nhancements for prior convictions.”   The Vega majority characterized the Supreme Court's Tassell comment as “something more than dictum” (224 Cal.App.3d at p. 520, 273 Cal.Rptr. 684) and the Burnes court described it as “something less than an express holding” (224 Cal.App.3d at p. 1232, 274 Cal.Rptr. 466).   As Justice Ardaiz's dissent points out, however, the Tassell reference was taken out of context and was simply intended to distinguish enhancements which go to the nature of the offender from those which go to the nature of the offense.  (224 Cal.App.3d at p. 524, 273 Cal.Rptr. 684, Ardaiz, J., dissenting.)

The Burnes court went further in its analysis than did the Vega majority.

“While it is true that section 12022.1 enhancements may well be (and oftentimes are) charged before there is an actual ‘prior felony conviction,’ such enhancements are not imposed unless there has been a conviction of both the ‘primary offense’ and the ‘secondary offense.’   Thus, section 12022.1 enhancements are never imposed unless the defendant has been convicted of a prior felony as well as a subsequent felony and, in this sense, section 12022.1 enhancements constitute ‘prior felony conviction’ enhancements.8 ”  (224 Cal.App.3d at pp. 1231–1232, 274 Cal.Rptr. 466.)

Footnote 8 of the Burnes opinion states:

“In the interest of clarity, it should be noted that ‘primary offenses' are not always those of which a defendant is first convicted.  ‘Primary’ and  ‘secondary,’ as those terms are used in section 12022.1, refer to the temporal sequence in which offenses are committed, not to the temporal sequence in which convictions are rendered with respect to the commission of those offenses.   A defendant may be convicted of a secondary offense before being convicted of a primary offense.  (Sec. 12022.1, subd. (d).)  To the extent that ‘prior felony conviction’ enhancements are understood as including section 12022.1 ‘on bail’ enhancements, then, the word ‘prior’ must be understood as referring to the word ‘felony’ rather than to the word ‘conviction.’ ”  (Id. at p. 1232, fn. 8, 274 Cal.Rptr. 466, emphasis added.)

The Burnes observation that “prior” modifies “felony,” rather than “conviction” has a seductive appeal.   Under that approach timing of the conviction for the “primary” offense described in section 12022.1 is unimportant.   All that matters is that the felony constituting the primary offense occur before the secondary offense.   But stating that “prior” modifies “felony” rather than “conviction” merely justifies the result without explaining it.   Neither Burnes, Vega, nor any other reported case tells us why “prior felony conviction” means “conviction of a prior felony” rather than “prior conviction of a felony.”

An examination of how “prior felony conviction” has been defined in other contexts may be instructive.   Under section 190.3, subdivision (c), a “prior felony conviction” is given weight as an aggravating factor in determining the penalty in a capital crime.   In People v. Balderas (1985) 41 Cal.3d 144, 222 Cal.Rptr. 184, 711 P.2d 480, the Supreme Court held that “the ‘prior felony conviction[s]’ described in subdivision (c) of section 190.3 are limited to those entered before commission of the capital crime.   California courts have consistently so interpreted statutes which call for harsher penal treatment on the basis of ‘prior convictions.’  [Citations.]”  (Id. at p. 201, 222 Cal.Rptr. 184, 711 P.2d 480;  see also People v. Gonzales (1989) 208 Cal.App.3d 1170, 1172, 256 Cal.Rptr. 669, wherein the Fourth District cites Balderas to support its statement that “the ‘prior’ convictions and prison terms referred to in California Rules of Court, rule 421(b)(2) and (3), are limited to those occurring prior to the currently charged offense.”)

Similarly, in People v. Rojas (1988) 206 Cal.App.3d 795, 253 Cal.Rptr. 786, the appellate court held that “to be subject to the five-year enhancement pursuant to section 667, subdivision (a), a defendant's prior serious felony conviction must have occurred before the commission of the present offense.”  (Id. at p. 802, 253 Cal.Rptr. 786.)

If the phrase “prior felony conviction” is used in a vacuum it might reasonably be subject to interpretation as either “conviction of a prior felony” (Burnes, supra ) or “prior conviction of a  felony” (Balderas, Rojas, supra ).   In Proposition 8, however, the phrase does not appear in a vacuum.   Article I, section 28, subdivision (f) directs that “[a]ny prior felony conviction ․ be used without limitation for purposes of impeachment or enhancement of sentence․”  (Emphasis added.)

It would be unreasonable in this context to presume that either the drafters of Proposition 8 or the voters who enacted it intended “prior felony conviction” to mean one thing for impeachment purposes and something else for enhancement purposes.   One of the fundamental rules of statutory construction is that a phrase should be interpreted consistently in its use in a legislative enactment.  (See, e.g., Gruschka v. Unemployment Ins. Appeals Bd. (1985) 169 Cal.App.3d 789, 792, 215 Cal.Rptr. 484;  In re Mark K. (1984) 159 Cal.App.3d 94, 106, 205 Cal.Rptr. 393.)   Moreover, when the phrase in question is used but once, application of the rule should be that much stronger:  a consistent interpretation should be given.

The proof of the pudding, then, lies in asking whether the Burnes interpretation of “prior felony conviction” as meaning conviction at any time of a prior felony applies in the impeachment context as well.   Plainly, it cannot.

“From the celebrated case of Sharon v. Sharon (1889) 79 Cal. 633, 673–674 [26 P. 26, 131], to date, it has been hornbook law that testimony relating to specific instances of misconduct is inadmissible to attack the credibility of a witness․  The only exception is specifically provided in Evidence Code section 788, which permits impeachment by a prior felony conviction.”   (People v. Lent (1975) 15 Cal.3d 481, 484, 124 Cal.Rptr. 905, 541 P.2d 545.)

This use of the phrase “prior felony conviction” is a paraphrase of what Evidence Code section 788 authorizes:

“For the purpose of attacking the credibility of a witness, it may be shown ․ that he has been convicted of a felony․”  (Emphasis added.)

Thus, when the Lent court used the phrase “prior felony conviction,” it patently meant “prior conviction of a felony” and not “conviction of a prior felony.”  Section 788 of the Evidence Code does not authorize use of a prior arrest to impeach when that arrest may later result in a conviction.  (See People v. Duvernay (1941) 43 Cal.App.2d 823, 827, 111 P.2d 659 [“It is not previous arrest or ‘trouble with the police’ that may be used as the basis of impeachment of a witness, but only the previous conviction of a felony may be shown.”].)   In fact, such use of an arrest that has not yet resulted in a  conviction would presumably be a due process violation.  (See People v. Castro (1985) 38 Cal.3d 301, 313–314, 211 Cal.Rptr. 719, 696 P.2d 111.)

If the Vega/Burnes interpretation of “prior felony conviction” is correct for enhancement purposes, the same phrase has an entirely different meaning for impeachment purposes.   In effect, Proposition 8 will have been rewritten to provide that “Any prior conviction of a felony ․ shall subsequently be used without limitation for purposes of impeachment, and any conviction of a prior felony ․ shall subsequently be used without limitation for purposes of enhancement of sentence․”  Such an interpretation violates elemental rules of statutory construction by giving the same phrase inconsistent meanings and by contorting the initiative's language unreasonably.

The Vega majority and the Burnes court relied heavily on the Supreme Court's Prather statement that Proposition 8 “was intended not only to increase the length of sentences served by recidivist offenders generally, but also specifically to abrogate (with respect to prior-felony-conviction enhancements) statutory ‘limitations on overall length of sentences.’ ”  (50 Cal.3d at p. 436, 267 Cal.Rptr. 605, 787 P.2d 1012.)   We have no quarrel with the Supreme Court's statement, but we must point out that in Prather the court was not considering an enhancement based on a subsequent conviction of a prior felony.   The section 667.5, subdivision (b) enhancement before the court in Prather is imposed only when the defendant has been convicted of a felony, and served a prison term therefor, before commission of the instant offense.   In our view, the court's broad statement of the purpose behind Proposition 8 cannot support an unreasonable construction of the initiative's language to encompass an enhancement significantly different from that involved in Prather.

We conclude that Vega and Burnes were incorrectly decided.   Without a clear Supreme Court holding on the issue, we will not follow Vega and Burnes.

The court erred in imposing a sentence which disregarded the DBT rule.

II. One of the Three Separate and Consecutive Two-year Enhancements Under Section 12022.1 Must be Stricken.**

 III. Appellant is Entitled to 266 Days of Credit.

At sentencing, the court awarded appellant with 178 actual days and 89 goodtime/worktime days, for a total of 267 days of credit toward his sentence.

The abstract of judgment, however, states that appellant was only entitled to 258 total days of sentence credit.5  Appellant requests that this be corrected.

This would normally be dealt with summarily;  however, respondent, while conceding the abstract of judgment is in error, maintains appellant is in fact entitled to only 266 days of credit rather than 267.

The parties agree appellant had 178 days of actual custody to his credit.   The question is whether the 178 days entitle appellant to 88 or 89 days of conduct credits.

The question arises from cases interpreting the conduct credit statute, section 4019.   Since the early 1980's, many courts simply approximated the appropriate conduct credit by multiplying the actual custody days by 1.5, a formula first suggested in In re Allen (1980) 105 Cal.App.3d 310, 315, 164 Cal.Rptr. 319.   As a result, in several cases the defendant was given an odd number of conduct credit days.  (See, e.g., People v. Moore (1989) 211 Cal.App.3d 1400, 1420, 260 Cal.Rptr. 134 [395 actual days, 197 conduct credits];  People v. Levitt (1984) 156 Cal.App.3d 500, 519, 203 Cal.Rptr. 276 [443 actual days, 221 conduct credits];  People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579, 199 Cal.Rptr. 796 [7 actual days, 3 conduct credits].)

If full credits are earned under the statute, however, the conduct credits cannot result in an odd number of days.  “It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.”  (§ 4019, subd. (f).)

In People v. Smith (1989) 211 Cal.App.3d 523, 259 Cal.Rptr. 515, the Third District explained the application of this language.

“Credits are given in increments of four days.   No credit is awarded for anything less.   Here defendant was in actual custody 211 days.   This is  equivalent to fifty-two sets of four days, with three extra.   For these 52 sets, defendant is entitled to 104 days of conduct credit—52 for labor and 52 for compliance with rules and regulations.   He is entitled to no additional credits for the extra three days.   The trial court erred in awarding 105 days of conduct credits.   Defendant was only entitled to 104 days.   Under the statutory scheme, ‘rounding up’ is not permitted.”   (211 Cal.App.3d at p. 527, 259 Cal.Rptr. 515;  see also People v. Bobb (1989) 207 Cal.App.3d 88, 97, 254 Cal.Rptr. 707.)

Division Seven of the Second District recently agreed:  “we would violate the clear language of the statute and the Legislature's intent by mechanically multiplying the amount of actual days by one and one-half.   Instead we adopt the method of calculation set forth in Smith.”  (People v. Bravo (1990) 219 Cal.App.3d 729, 735, 268 Cal.Rptr. 486.)

Appellant makes two arguments against application of the Smith/Bobb/ Bravo decision.   In one, appellant contends the statute is ambiguous, and therefore must be construed by resolving all doubts in his favor.   We disagree.   The statement of intent in section 4019, subdivision (f) is clear:  “a term of six days will be deemed to have been served for every four days spent in actual custody.”   There is no room in that statement for the inference that a term of three days will be deemed to be served for every two days spent in actual custody—the formula appellant wishes to apply.

Appellant's other argument is that the interpretation and method of calculation adopted in Smith, Bobb and Bravo violates equal protection guarantees.  “Persons without the finances to obtain release pending criminal proceedings should not have to serve any more actual time than their otherwise equally situated wealthier counterparts who can afford to be released on bail until sentencing.”   Appellant relies here on People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874.

In People v. Rosaia (1984) 157 Cal.App.3d 832, 203 Cal.Rptr. 856, this court thoroughly discussed and rejected a similar equal protection argument, pointing out that since 1982 the “good conduct” credits at issue in Sage are no longer available to sentenced prisoners.  (See § 2931, subd. (d).)  Instead, under section 2933 sentenced prisoners are entitled only to worktime credits.   In Rosaia we concluded that the worktime credits available under section 2933 serve a legislative purpose “to provide structured work experience for sentenced prisoners to aid in their rehabilitation and increase their chances for successful reintegration into the mainstream of society.”  (157 Cal.App.3d at pp. 847–848, 203 Cal.Rptr. 856.)   Because the credits under section 2933 are not automatic, as contrasted with the “virtual automatic entitlement available under section 4019,” the distinction between detainees and sentenced  prisoners is not invidious and “does not constitute a denial of equal protection.”  (Id. at p. 848, 203 Cal.Rptr. 856.)

Division One of the First District recently considered a similar equal protection contention in People v. DeVore (1990) 218 Cal.App.3d 1316, 267 Cal.Rptr. 698.   After citing eight appellate cases rejecting the argument (id. at p. 1319, 267 Cal.Rptr. 698), the DeVore court likewise concluded the statutory scheme does not constitute a denial of equal protection.  (Id. at p. 1320, 267 Cal.Rptr. 698.)

We see no point in reiterating the reasons given by this court in People v. Rosaia, supra, 157 Cal.App.3d 832, 203 Cal.Rptr. 856, and by every other appellate court addressing the issue.   The law on this point is settled and we adhere to it.

Appellant was entitled to 266 days' presentence credit.   The abstract of judgment should be corrected to reflect that entitlement.



The judgment of conviction is affirmed.   The matter is remanded for resentencing.   On remand the trial court shall comply with section 1170.1's double-the-base term limitation, shall impose not more than two of the three section 12022.1 enhancements, shall give appellant 266 days of presentence credit, and shall impose a single restitution fine.


FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

2.   As opposed to, for instance, section 667.6 or section 1170.13.

3.   We are acutely aware that the Supreme Court ordered depublication of at least two Court of Appeal opinions reaching a result contrary to that of Vega and Burnes.   Following the command of California Rules of Court, rule 979(e), however, we cannot consider the depublication orders as “an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion.”

FOOTNOTE.   See footnote *, ante.

5.   The abstract was apparently prepared in reliance on the probation report which reflected total credits of 258 days calculated through October 5, 1989, the date originally set for the sentencing hearing.   The hearing was continued to October 11, 1989, at which time the probation officer orally recalculated the credits to 267 total days.

FOOTNOTE.   See footnote *, ante.

THAXTER, Associate Justice.

DIBIASO, Acting P.J., and BUCKLEY, J., concur.