PEOPLE v. CHATTMAN (1980)

STATEMENT OF THE CASE

Defendants appeal from a judgment of the court of Ventura County and petition for a writ of habeas corpus.

THE CASE

The facts are without dispute. In a one count information filed by the District Attorney of Ventura, defendants Kenneth Chattman and Elmo Chattman, Jr. were charged with murder, in violation of Penal Code section 187. Elmo Chattman was represented by a deputy public defender and Kenneth Chattman represented by private counsel. Defendants were arraigned and pled not guilty. Thereafter a first amended information was filed, charging each defendant with the use of a firearm at the time of the commission of the offense and that they were armed at the time of the commission of the offense. Each defendant denied the special allegations.

Following a jury trial, defendants were each found guilty of murder in the first degree. The jury further found that Kenneth Chattman used a firearm and was armed during the commission of the crime. As to the defendant Elmo Chattman, the jury found that he did not personally use a firearm, but found that he was armed with one during the commission of the offense.

Each defendant's motion for a new trial was denied. Probation was denied and the defendants were thereafter sentenced as follows: Kenneth Chattman, state prison for the term prescribed by law. Because the jury found him to be armed, he was sentenced to an additional year. The court further enhanced the sentence by two years, for the “use allegation.” The two years are to merge with the life sentence. He was credited with 154 days in custody. Thereafter the court by way of a nunc pro tunc order, struck the sentence as to the “use allegation,” and substituted the order that the additional term of two years would, as a matter of law, be merged and run with the life term and he was ordered to pay a $10 penalty assessment pursuant to Government Code section 13967. Elmo Chattman was sentenced to state prison for the term prescribed by law. The sentence for being armed with a firearm was merged with the life sentence. He was given 154 days credit for time served in actual custody to the date of the imposition of sentence and was ordered to pay a penalty assessment of $10 pursuant to Government Code section 13967.

STATEMENT OF THE FACTS

Peter Nicolle, a police officer employed by the City of Oxnard, testified that on July 31, 1978, at 4:30 p. m., he heard a radio call and drove to the area of 1135 South H Street in the City of Oxnard. He then drove into a parking lot and observed the decedent seated in a red Chevrolet slumped over toward the center of the car. The decedent had a wound on the left side of his head and the officer was unable to detect either a pulse or any sign of breathing.

Dr. Ronald Kornblum, a medical examiner—coroner for the County of Ventura, testified that he performed the autopsy on the decedent. Dr. Kornblum testified that the decedent died of a gunshot wound to the left side of the head. The path of the bullet went from the left of the head to the right and from the front to the rear of the head. The trajectory of the bullet was in a slightly upward direction. Due to the absence of powder burns or the presence of any material that comes out of the end of a barrel of a gun on the decedent, Dr. Kornblum testified that the fatal shot was fired from a distance other than one at close range.

Donald Neitzel, age 15, testified that on July 31, 1978, at approximately 4:30 p. m., he was at his grandmother's house on H Street. As he and his brother were watching television, he looked out a window and saw a “Blackish blue” car with two male blacks drive up to the scene of the shooting. One of the individuals got out of the car with a rifle and jumped onto the hood of a car next to the red Chevrolet in which the decedent was found. The man with the rifle shook the gun at the decedent and then fired a shot. The decedent then fell forward in the red Chevrolet onto the steering wheel. The person who got out of the car was identified by Mr. Neitzel as being the defendant Elmo Chattman. Detective Ken Nishihara, an Oxnard police officer, testified that he showed a photographic lineup containing Elmo's picture. Donald Neitzel was unable to identify appellant.

John Neitzel, age 14, testified that he was at his grandmother's house with his brother Donald. He testified that he saw the dark colored car with two black men drive up to the red Chevrolet where the decedent was found. One of the occupants of the car got out of the dark colored car and fired a shot into the car occupied by the decedent. One of the persons in the car from which the person who fired the shot alighted was Elmo Chattman. However, Mr. Neitzel was unable to testify as to whether he was the person who was the driver of the car or the individual who fired the fatal shots.

He saw the passenger run back to the car carrying a gun. He got the license number of the car as it drove away. He recognized Elmo as being familiar. The driver was looking toward him the whole time. It was stipulated that the number John Neitzel wrote down belonged to a 1970 Chevy, belonging to Frank Rexelle of Fremont, California on July 31, 1978.

Eli Johnson testified that he knew the decedent. During the afternoon of July 31, 1978, he saw the decedent and Elmo having an argument near the scene of the shooting. Elmo was telling Mr. Jackson to “get off his car and stay off his car.” Shortly, the conversation began growing louder and Elmo and the decedent began making threats. Elmo then said that he was going to kill the decedent. Then Elmo was driven away from the scene of the incident and approximately fifteen or twenty minutes later he returned to the park in a dark colored car. He was driving the car and the co—defendant were looking through the park. He saw a shotgun on the passenger side. Approximately ten minutes later, Mr. Johnson decided to go to a nearby liquor store in order to buy some beer. As he was driving to the liquor store he saw both defendants driving down a street looking back and forth. This was at a location different from that where the argument had occurred. As he pulled into an alley he saw the car in which the defendants were riding parked in the alley. The door on the driver's side of the car in which defendants were riding was open and Elmo was standing outside of the car with a gun. When Elmo passed out of his vision for a few moments while he was riding in the car, Mr. Johnson heard a shot. When cross—examined, Mr. Johnson admitted that he had made numerous contradictory statements to the police. Moreover, much of his prior statements to the police contradicted his testimony at the trial. He further admitted that he was highly intoxicated at the time that he observed the incident and when he spoke with the detectives. Eventually, he was arrested by a police officer for driving with a suspended license. However, he was never charged with driving under the influence of alcohol.

Alfred Collins, a friend of Kenneth, testified that on July 31, 1978, at 4:35 p. m., he was at Elmo's Right Spot Bar in Oxnard. When he was at the rear of the bar he saw the decedent sitting in the red car “alive and well.” Mr. Collins testified that it was Kenneth who fired the fatal shot. Mr. Collins testified that he was quite frightened after the incident and was also afraid during the time that he was testifying.

Leslie Mack testified that he knew the defendants. At approximately 6 p. m., on the afternoon of the shooting, he saw the defendants together. He saw them in a park which is near the scene of the shooting. Mr. Mack flagged down the car in which the defendants were driving. He further testified that both defendants' hair was braided.

Elmo Chattman, Sr., the father of the defendants testified that the car which was identified as being the one in which the assailants were riding belonged to Kenneth.

William Jackson, the decedent's son, testified that he had known defendants for a long period of time. He testified that on July 31, that his father was at the park where the initial argument occurred. However, he did not witness any argument between defendants and the decedent. He further testified that he did not hear any shots being fired on the afternoon of the decedent's death. However, he did see the defendants driving the dark colored car near the park. After the incident, he telephoned Kenneth Chattman and asked him why he shot the decedent. Kenneth said he was “sorry,” and asked whether “everything” was “cool,” and Mr. Jackson said that he would “check with him later.”

Josephine Hendrickson testified that she lived at a street which was near the scene of the shooting. On the evening of the incident, shortly after the shooting, she saw both defendants drive hurriedly up to another car which was parked near her residence. Elmo ran into his house and Kenneth also walked towards the west side of the property in which his residence was located. Kenneth appeared to be holding a dark brown or black leather jacket close to his side. Then they got into another car and left the area.

Anthony Montemorra, the owner of the Sportsman Exchange West Gun Trader, which is a gun shop located in Oxnard, testified that he sold some .223 ball ammunition to Kenneth Chattman. Also Kenneth purchased a 30 shot magazine for a “Colt AR50.” The magazine which was purchased by Kenneth would hold the ammunition that he had purchased on the same day.

THE DEFENSE

A court reporter who transcribed the proceedings at the preliminary hearing testified that Eli Johnson stated that Elmo was the one who fired the shot. Also, Mr. Johnson at the preliminary hearing testified Kenneth Chattman was the driver of the car and that a gun was a sticking out by the driver's side of the car. Sergeant Robert Elder of the Oxnard Police Department testified that he was present when the bodybag containing the decedent was opened at the morgue. In the sock on the right foot he found a steak knife with a pearl handle.

TESTIMONY RE: MOTION TO SUPPRESS PURSUANT TO PENAL CODE SECTION 1538.5

In connection with a motion to suppress pursuant to Penal Code section 1538.5, Ken Nishihara, a police officer for the City of Oxnard, testified that he secured an arrest warrant for the arrest of the defendants. The warrant was to be served at 1020 Guava in the City of Oxnard. On December 28, 1978, he went to the residence, knocked on the door, and the door was opened by Kenneth. Detective Nishihara explained that he was a police officer and that he was placing the co—defendant under arrest. The door was opened when Detective Nishihara explained that he was there to arrest Kenneth. As he was arresting him, Officer Nishihara began to look beyond Kenneth into the house “for safety reasons.” He saw a “chrome locking type rim.” Also, he testified that he made an effort to verify that the license plate on the car was different from the one that was on the car at the time of the shooting.

TESTIMONY RE: MOTION TO SUPPRESS IDENTIFICATIONS OF JOHN AND DONALD NEITZEL

In a motion to suppress the identification of the defendants, John Neitzel testified that he got a good look at the individual who was the driver of the car. When shown a series of photographs he was able to pick out one of the persons from the photo spread. He then had a hypnosis session with a Mr. Harbison. He testified that the persons he saw at the preliminary hearing (appellant and the co—defendant) did not look like the individuals in the photographs. He testified that he did not know whether he would have been able to make an identification without seeing the persons at the preliminary hearing.

Donald Neitzel testified that he was shown a series of photographs and indicated that one of the persons looked like one of the individuals involved in the shooting. He had a hypnosis session with a Mr. Harbison. He testified that he saw the incident occur and that he could see the two persons involved in the shooting. However, he did not get a good look at the driver of the car.

DISCUSSION

Pretrial and In Court Identification

Defendants contend that the trial court committed error in admitting testimony of the two witnesses John and Donald Neitzel. Defendants argue that John Neitzel saw defendants at the preliminary hearing examination where they were the only black people in the row of custodies that stood up when the case was called; that Donald Neitzel observed the defendants in court at the preliminary hearing, and that Alfred Collins identified the defendants based upon the fact that the deputy district attorney first suggested the name “Chattman” to him, informed him that they were arrested, had undergone an arrest and preliminary hearing.

We find nothing in the record to support defendants' claimed error. Counsel and the court in a hearing outside the presence of the jury examined the Neitzel brothers carefully and thoroughly regarding the identification process. Moreover, the witnesses were thoroughly cross—examined in the presence of the jury relative to the identification aspect of the case. Not only the court, but also the jury had ample opportunity to weigh the quality of the identification testimony.

Where it is asserted that the pretrial identification procedure involving a defendant was so unfair as to taint the in—court identification, the proper procedure requires that the trial court determine initially whether such procedure was unfair. This procedure, since it is invoked on the grounds of due process, requires defendant to demonstrate that the pretrial confrontation resulted in such unfairness that it infringed his right to due process of the law. The resolution thereof depends on a consideration of all the facts and circumstances, and if there are conflicting factual versions, the conflict must be resolved by the trial judge. (In re Richard W. (1979) 91 Cal.App.3d 960, 155 Cal.Rptr. 11.) As we previously indicated the judge complied with the requirements, and in light of all the circumstances, properly denied defendants' motion to suppress the identification.

Confusion or lack of clarity and positiveness in a witness' identification testimony goes to the weight, not the admissibility of the testimony. (People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833.)

EFFECTIVE COUNSEL

At the preliminary hearing, both defendants were represented by the same public defender. Each defendant now contends, that had their trial attorneys filed a motion pursuant to Penal Code section 995, they would have been entitled to a dismissal. Defendants thus contend, that they were convicted because of the failure of their respective attorneys to file such motion and that they were therefore deprived of effective representation by counsel.

To avoid the possibility of a conflict of interest where the same counsel represents more than one defendant at the preliminary hearing, counsel might be well advised to carefully consider such possibility before undertaking such representation. However, the fact that the same attorney represents both defendants at the preliminary hearing does not, always, in and of itself, result in ineffective counsel, or furnish a meritorious basis for a motion to dismiss pursuant to Penal Code section 995.

In the instant case defendants have failed to assert any facts to show that the dual representation prejudiced them, or that there were inconsistent defenses at the preliminary hearing. Neither defendant has cited any meritorious defenses that could have been raised at the preliminary hearing and that were not raised. We can find nothing in the record to indicate that the defendants' preliminary hearing attorney failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate; or that his acts or omissions resulted in the withdrawal of a potentially meritorious defense. (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.) Even if defendants' counsel had filed a Penal Code section 995 motion for a dismissal we do not feel such motion would have been properly granted.

Both defendants were represented by separate attorneys at their trials; there being no other basis claimed by either defendant for ineffective counsel, we do not feel the claim is meritorious.

PROSECUTORIAL MISCONDUCT

Defendants next contend that the district attorney committed prosecutorial misconduct on two occasions during the course of the trial: (1) The first act of misconduct claimed, is the questioning of an officer witness as to a warrant for the arrest of the defendant Kenneth Chattman. The district attorney asked Officer Ken Nishihara the following question: “Now on December 26th, 1978, did you obtain an arrest warrant from Superior Court Judge in Ventura County Robert Willard for the arrest of Kenneth Lennel Chattman, the defendant in this case?”, to which he answered “Yes I did.” No objection to the question was made by either counsel. (2) The second occasion of misconduct claimed by defendants is the comment made by the district attorney in the presence of the jury, that he was substituting some “excised exhibits,” for those which he did not want the jury to see in their totality. As we read the record, Mr. Paventi, the deputy district attorney stated “Your Honor, prior to my next witness, who is coming over right now, I'd like to clear up three of the items not in evidence ․ As I informed the Court yesterday, I went ahead and excised, I suppose, the information that was requested, the printing, showed it to both counsel and now I have it. And if we could substitute this for the stuff with the writing on it, I could introduce it into evidence.” Defense counsel McNally and Dammeyer made no objection to the district attorney's comments, in fact the court then asked “Is there any objection to the receipt of those three exhibits?”, and Kenneth Chattman's attorney Mr. McNally stated “No your Honor. Those are all magazine pictures of guns?”, to which the court answered “Yes,” and both defense counsel then answered “No objection.”

It is misconduct for the district attorney to ask questions which he knows to be improper, or which call for testimony which he knows to be incompetent or otherwise inadmissible. (People v. Wells (1893) 100 Cal. 459, 34 P. 1078.) While it is true that the district attorney could simply have asked Officer Nishihara whether he arrested the defendant on a certain date, without alluding to the fact that the arrest was made pursuant to a warrant for arrest issued by a judge, we do not consider the question to have seriously prejudiced the defendant in any way.

As to the district attorney's comment about “excising,” nothing was stated as to what was being excised, nor were any remarks made to suggest that the excised portions implicated either defendant in any way with the crime, in fact it was defendants' counsel who described the exhibit from which the excision was made. Jurors often become aware that portions of exhibits have been excised, just as they are aware that conferences are held at the bench out of their earshot to discuss evidentiary matters which they may or may not be made privy to. The court's instructions to the jury further admonished them about statements made by counsel.

Finally, neither defense counsel objected to the district attorney's question or comment at the time of trial; nor did either attorney request the court to admonish the jury to disregard the alleged “misconduct.” An objection to the conduct of the district attorney cannot be raised upon appeal for the first time. (People v. Kramer (1897) 117 Cal. 647, 49 P. 842.) It is the general rule that any misconduct on the part of the prosecuting attorney is waived unless at the time the defendant specifically objects thereto, and requests the trial court to instruct the jury to disregard the misconduct. (People v. Shears (1901) 133 Cal. 154, 65 P. 295; People v. Cowley (1908) 7 Cal.App. 501, 94 P. 866.) We do not find any misconduct of the district attorney clearly appearing from the reasons assigned which requires reversal.

UNCHARGED OFFENSES

Defendants next contend that the admission of evidence by the court which indicated that the license plate on the vehicle of the defendant Kenneth Chattman, was a stolen license plate, constituted an inference that the defendant was a thief, or a receiver of stolen property, and therefore constituted evidence of some uncharged crime and was thus inadmissible.

The evidence admitted, indicating that the license plate on Kenneth's vehicle belonged to a person named Rexelle, and that the plate had been stolen, was relevant in that it shows a possible consciousness of guilt on the part of the defendant, i.e., using a license plate other than the one issued to his vehicle so as to throw off the possibility of tracing the vehicle to him. Further, it is relevant in that an eyewitness to the crime, had jotted down the license number, of the escaping vehicle. Subsequently, it was determined that the license number jotted down by the witness was registered to a person other than the defendant. In earlier testimony evidence had been introduced that the car to which the license number was registered had not been in the city where the crime was committed on the day of the crime. It was therefore necessary for the prosecution to clarify for the jury the license plate observed by the eyewitness at the scene of the crime was not on the vehicle to which it was registered at the time of the crime. This information was introduced into evidence in the following manner: “Q [BY MR. PAVENTI:] Officer, I'd show you first People's 18 in evidence, the photograph of the Neitzel boy's hand with the license number written on it. Do you recognize that”? [¶] A Yes, I do. [[[[¶] Q Did you attempt to determine from the Department of Motor Vehicles who owned that license number? [¶] A Yes, I did. [¶] Q And did you determine who owned it? [¶] A Yes, I did. [¶] Q I show you a certified copy of a Department of Motor Vehicles registration information packet marked as People's 32 for identification and ask you to look through that. [¶] A (The witness complies.) [[[[¶] Q And who would that be? [¶] A I believe it's pronounced, the first name is Frank, the last name I believe is pronounced Rexelle, Junior. [¶] MR. PAVENTI: I'd offer the certified Department of Motor Vehicles registration on the Rexelle vehicle, your Honor. [¶] MR. McNALLY: No objection. [¶] MR. DAMMEYER: No objection. [¶] THE COURT: Received.”

The question of admissibility of evidence having conflicting probative aspects versus prejudicial aspects involves a weighing process and the problem is primarily one for the trial court in the exercise of its sound discretion; such weighing process has special application when the evidence has relevance to prove identity in a criminal prosecution. The court's discretion must, however, be exercised within the fundamental rule that relevant evidence where probative value is outweighed by its prejudicial effect should not be admitted. (People v. Williams (1970) 11 Cal.App.3d 970, 90 Cal.Rptr. 292.)

As noted, nowhere in the testimony was the word stolen used. Nor was there any reference to any other crimes. Further, neither defense counsel objected to the evidence. Neither counsel requested a limiting instruction, nor do we feel that the court, based on the record was required to do so sua sponte.

SENTENCING

Finally, defendants contend that the court erred in its sentencing as follows: Kenneth Chattman contends that the armed enhancement must be stricken as a lesser included offense of the use allegation; each defendant contends that they are entitled to good time work—time credits for pretrial felony incarceration; and lastly the defendant Chattman contends the court improperly imposed a $10 penalty assessment pursuant to Government Code section 13967, because, the court made no findings on defendants' ability to pay same.

We first look at the enhanced penalties of Penal Code sections 12022 and 12022.5. The defendant contends and the Attorney General correctly concedes that since a “use” finding necessarily includes an armed finding, the defendant Kenneth Chattman may not suffer the enhanced penalties of both Penal Code sections 12022 and 12022.5. (People v. Johnson (1978) 81 Cal.App.3d 380, 146 Cal.Rptr. 476.) The armed finding (Pen.Code, § 12022) must be stricken as to Kenneth Chattman.

Next, defendants contend that they are entitled to good time and work—time credit for their pretrial felony incarceration.

Our Supreme Court in People v. Sage (1980) 26 Cal.3d 498, at page 505, 165 Cal.Rptr. 280, 611 P.2d 874 stated: “Under section 4019, a pretrial detainee eventually convicted of a misdemeanor and sentenced to county jail, hereinafter referred to as a ‘detainee/misdemeanant,’ receives conduct credit against that sentence for his presentence jail time. Under section 2931, a defendant who makes bail or is released on his own recognizance, then is tried, convicted of a felony and sentenced to state prison receives conduct credit against his full sentence. Only the presentence detainee eventually sentenced to prison, the ‘detainee/felon,’ does not receive conduct credit against his full sentence, because he is denied conduct credit for his presentence confinement. It is the distinction between the detainee/felon and the felon who serves no presentence time that raises equal protection problems.”

Although Penal Code section 4019¹ by its terms applies only to presentence conduct credits awarded to convicted misdemeanants; and although the language of Penal Code sections 2930, 2931 and 2932 clearly indicates that Legislature contemplated the credits governed by these sections would be earned in prison, our Supreme Court in Sage, supra, 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874, nevertheless concluded that equal protection concerns required the giving of conduct credit, if earned, in addition to the custody credit for the time a defendant is detained in county jail. Thus the court in effect extended the presentence conduct credits awarded pursuant to Penal Code section 2931² to include days during which the defendant was detained in the county jail prior to his commitment to prison.

We must now determine whether the holding in Sage which involved a determinate sentence, and was therefore within the purview of Penal Code section 2931 to the extent that, that section by its terms applies only to persons sentenced under Penal Code section 1170, i. e., determinate sentences, is applicable to the case now before us, which involves an indeterminate sentence. We conclude that it does not. Although the court in Sage in its extension of Penal Code section 2931 did not specifically state that conduct credits are not to be awarded to persons not sentenced to life terms, that section in so far as conduct credits are concerned specifically provides that it applies to cases “… in which an inmate was sentenced to State prison pursuant to Section 1170, or if he committed a felony before July 1, 1977, and he would have been sentenced under Section 1170 if the felony had been committed after July 1, 1977, …” (Italics added.) The sentence for first degree murder without special circumstances at the time of the defendants' offense was imprisonment for life with possibility of parole. That is a determinate sentence within the terms of Penal Code section 1170. Sage thus limits conduct credits granted for presentence jail time served prior to commitment to prison, to persons receiving determinate sentences. Likewise by its terms under section 2931, a defendant who makes bail or is released on his own recognizance, then is tried and convicted of a felony and sentenced to state prison for an indeterminate sentence receives no conduct credits. Legislature has not seen fit to give conduct credits to murderers. We do not perceive this distinction to be a violation of equal protection. Defendants are not entitled to presentence conduct credits.

Finally, defendant Elmo Chattman contends that pursuant to Government Code section 13967,³ the imposition of an assessment of ten dollars was improperly assessed because the court failed to make a specific finding of defendant's present ability to pay the ten dollars.

Although section 13967 requires findings by the court of a defendant's ability to pay a fine and on the economic impact of such fine upon a defendant's dependents, we do not interpret that section as requiring a finding by the court before levying the assessment provided for therein.

In the instant case the court made numerous findings including a finding that the defendants did not have the financial ability to reimburse the County of Ventura for legal services rendered by appointed counsel (including the public defender), but inasmuch as the court levied a penalty assessment and not a fine no finding was required. The Legislature specifically limited the required findings to fines.

DISPOSITION

The judgment is affirmed. The petitions for writ of habeas corpus are denied.

FOOTNOTES

FOOTNOTE.  

1.  “Section 4019 provides: ‘(a) The provisions of this section shall apply in all of the following cases: [¶] (1) When a prisoner is confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding. [ [¶] (2) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp as a condition of probation after suspension of imposition of a sentence or suspension of execution of sentence, in a criminal action or proceeding. [¶] (3) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp for a definite period of time for contempt pursuant to a proceeding, other than a criminal action or proceeding. [¶] (b) Subject to the provisions of subdivision (d), for each six—day period in which a prisoner is committed to a facility as specified in this section, one day shall be deducted from his period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] (c) For each six—day period in which a prisoner is committed to a facility as specified in this section, one day shall be deducted from his period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] (d) Nothing in this section shall be construed to require the sheriff, chief of police, or superintendent of an industrial farm or road camp to assign labor to a prisoner if it appears from the record that the prisoner has refused to satisfactorily perform labor as assigned or that the prisoner has not satisfactorily complied with the reasonable rules and regulations of the sheriff, chief of police, or superintendent of any industrial farm or road camp. [¶] (e) No deduction may be made under this section unless the person is committed for a period of six days or longer.”’

2.  “Section 2131 provides: ‘(a) In any case in which an inmate was sentenced to the state prison pursuant to Section 1170, or if he committed a felony before July 1, 1977, and he would have been sentenced under section 1170 if the felony had been committed after July 1, 1977, the Department of Corrections shall have the authority to reduce the term prescribed under such section by one—third for good behavior and participation consistent with subdivision (d) of Section 1170.2. A document shall be signed by a prison official and given to the inmate, at the time of compliance with Section 2930, outlining the conditions which the inmate shall meet to receive the credit. The conditions specified in such document may be modified upon any of the following: [¶] (1) Mutual consent of the prisoner and the Department of Corrections. [¶] (2) The transfer of the inmate from one institution to another. [¶] (3) The department's determination of the prisoner's lack of adaptability or success in a specific program or assignment. In such case the inmate shall be entitled to a hearing regarding the department's decision. [¶] (4) A change in custodial status. [¶] (b) Total possible good behavior and participation credit shall result in a four—month reduction of each eight months served in prison or in a reduction based on this ratio for any lesser period of time. Three months of this four-month reduction, or a reduction based on this ratio for any lesser period, shall be based upon forbearance from any or all of the following activities: [¶] (1) Assault with a weapon; or escape. [¶] (2) Physically assaultive behavior; possession of a weapon without permission; possession of controlled substances without prescription; attempt to escape; or urging others, with the intent to cause a riot, to commit acts of force or violence, at a time and place under circumstances which produce a clear and present and immediate danger of a riot which results in acts of force or violence. [¶] (3) Intentional destruction of state property valued in excess of fifty dollars ($50); falsification of a significant record or document; possession of escape tools without permission; or manufacture, sale or unauthorized possession or use of alcoholic beverages or any substance defined as a poison in Schedule D of Section 4160 of the Business and Professions Code; or urging of others by words or acts, with the intent to cause a riot, to commit acts of force or violence at a time and place under circumstances which present a clear and present and immediate danger of a riot or committing any act, with the intent to precipitate a riot, at a time and place under circumstances which present a clear and present and immediate danger of a riot. Activities specified in paragraph (1) may result in a maximum denial of good behavior credit of 45 days for each such prohibited activity. Activities specified in paragraph (2) may result in a maximum denial of good behavior credit for 30 days for each such prohibited activity. Activities specified in paragraph (3) may result in a maximum denial of good behavior credit for 15 days for each such prohibited activity. Nothing in this section shall prevent the Department of Corrections from seeking criminal prosecution for violations of law. [ [ [ [¶] (c) One of the four months reduction, or a formula based on this ratio for a lesser period, shall be based solely upon participation in work, educational, vocational, therapeutic or other prison activities. Failure to succeed after demonstrating a reasonable effort in the specified activity shall not result in loss of participation credit. Failure to participate in the specified activities can result in a maximum loss of credit of 30 days for each failure to participate. However, those confined either by choice or due to behavior problems shall be given specified activities commensurate with the custodial status.”’

3.  At the time of the offense, Government Code Section 13967 read as follows: “Upon a person being convicted of a crime of violence committed in the State of California resulting in the injury or death of another person, if the court finds that the defendant has the present ability to pay a fine and finds that the economic impact of the fine upon defendant's dependents will not cause such dependents to be dependent on public welfare the court shall, in addition to any other penalty, order the defendant to pay a fine commensurate with the offense committed, and with the probable economic impact upon the victim, of at least ten dollars ($10), but not to exceed ten thousand dollars ($10,000). In addition to any other penalty, upon a person being convicted of any other felony or misdemeanor there shall be levied a penalty assessment of ten dollars ($10) for each felony conviction and five dollars ($5) for each misdemeanor conviction upon every fine, penalty, and forfeiture imposed and collected by the courts. Any fine or penalty assessment imposed pursuant to this section shall not be subject to any penalty assessment imposed pursuant to Section 13521 of the Penal Code. The fine or penalty assessment imposed pursuant to this section shall be deposited in the Indemnity Fund in the State Treasury, hereby continued in existence, and the proceeds of which shall be available for appropriation by the Legislature to indemnify persons filing claims pursuant to this article.”

ROBERSON,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

LILLIE, Acting P. J., and HANSON, J., concur.