PEOPLE v. ARIAS (1999)

Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Carlos Frank ARIAS, Defendant and Appellant.

No. C028606.

Decided: August 31, 1999

Madeline McDowell, Sacramento, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Assistant Attorney General, Harry Joseph Colombo, Supervising Deputy Attorney General, George M. Hendrickson, Deputy Attorney General, for Plaintiffs and Respondents.

A jury convicted defendant of the first degree murder of Conrad Sanchez by personally using a firearm.  (Pen.Code, §§ 187, subd. (a), 12022.5, subd. (a).)  The trial court sentenced him to 25 years to life for the first degree murder plus a consecutive upper term of 10 years for the firearm enhancement.

In the unpublished part of this opinion, we reject defendant's assertions concerning the evidence at trial.   In the published part, we conclude the trial court erred by applying a 15 percent limitation to defendant's custody credits.   We remand the matter for recalculation of defendant's custody credits;  in all other respects we affirm.

FACTS**

DISCUSSION

I-III**IVLimitation on Custody Credits

Defendant asserts the trial court erred in imposing the 15 percent limitation on custody credits set forth in Penal Code section 2933.1 ⁸ because his ability to earn credits “is governed by section 190, not section 2933.1.”   The Attorney General concedes defendant “is entitled to 2-for-1 credits under [section] 2931 as it existed in 1978.”   We agree.

Article II, section 10(c) of the California Constitution provides:  “The Legislature may amend or repeal referendum statutes.   It 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.”

Section 190, subdivision (a), a portion of an initiative passed by the voters, provides in relevant part:  “[E]very person guilty of murder in the first degree shall suffer death, confinement in the state prison for life without the possibility of parole, or confinement in the state prison for a term of 25 years to life ․ [¶] (e) Article 2.5 [⁹ ] (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce any minimum term of a sentence imposed pursuant to this section.   A person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of confinement prescribed by this section.”  (Adopted by Initiative (Prop.7) at the Nov. 7, 1978, General Election, amended Stats.1997, ch. 413, § 1, approved by Prop. 222 at the June 2, 1998, Primary Election.)

 Section 190 does not provide for or allow any modification or amendment by the Legislature without voter approval.  (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1658, 52 Cal.Rptr.2d 561.)   Thus, the voters must approve any change in the sentencing and credit provisions for murderers sentenced under section 190.  (Ibid.)

 After section 190 was enacted, the Legislature added section 2933.1, which limits worktime credit to 15 percent for persons convicted of crimes listed in section 667.5.   The voters did not approve this change;  accordingly, it is inapplicable to prisoners sentenced pursuant to section 190.

The limitation on credits set forth in section 2933.1 does not apply to defendant.   Accordingly, defendant is entitled to credits as provided by the applicable sections existing on November 7, 1978.

DISPOSITION

The judgment is affirmed, and the matter is remanded to the superior court with directions to calculate defendant's custody credits as provided by the applicable sections existing on November 7, 1978.   The superior court shall forward a corrected

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

8.   All further undesignated statutory references are to the Penal Code.

9.   At the time section 190 was enacted, article 2.5 contained only sections 2930, 2931, and 2932.

NICHOLSON, J.

SIMS, Acting P.J., and MORRISON, J., concur.