Filed 11/1/00
CERTIFIED FOR PARTIAL PUBLICATION1
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A087483
v.
BRUCE EDWARD COOPER,
(San Mateo County
Super. Ct. No. C43434)
Defendant and Appellant.
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In the unpublished portion of this opinion we discuss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.
1
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.
2
Defendant was sentenced to 15 years to life for murder plus one year for the personal
use of a weapon.

See footnote 1, ante.
1
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.
3
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.
2
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.
3
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
4
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).

See footnote 1, ante.
5
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
4
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
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
7
(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
8
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 Code6 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
5
People v. Watson (1956) 46 Cal.2d 818, 836.
6
All undesignated section references are to the Penal Code.
7
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.
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
8
9
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, 818824.)
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,
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.)
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.)
9
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.)
10
10
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
11
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.
11
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
12
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.”
12
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
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.)
13
14
Section 2933.1 was adopted as an urgency measure effective September 21, 1994.
(People v. Camba (1996) 50 Cal.App.4th 857.)
13
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.
14
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
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.
15
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
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.
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.)
16
RIVERA, J.
We concur.
JONES, P.J.
STEVENS, J.

Judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
17
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
18