People v. Duff

60 Cal.Rptr.3d 185 (2007) 151 Cal.App.4th 913 The PEOPLE, Plaintiff and Respondent,

v.

James Edward DUFF, Jr., Defendant and Appellant.

No. G036562. Court of Appeal of California, Fourth District, Division Three.

May 31, 2007. [186] Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, J.

Defendant James Edward Duff, Jr., appeals the trial court's decision to deny him presentence conduct credits. He argues that because his sentence for murder was stayed pursuant to Penal Code section 654,[1] the statute denying presentence conduct credits to those convicted of murder does not apply to him. We disagree and affirm the judgment.

I

FACTS

Given the limited nature of defendant's appeal, we need not detail the facts of the case. Defendant was convicted of second degree murder (Pen.Code, § 187, subd (a)) and assault on a child with force likely to cause great bodily injury (§ 273ab). The trial court sentenced defendant to 25 years to life in state prison on the section 273ab count, and stayed a sentence of 15 years to life on the second degree murder count under section 654. Defendant was awarded credit for 567 days actually served, but the court denied him presentence conduct credits.

II

DISCUSSION

Defendant claims he should have been awarded conduct credit pursuant to section 2933.1 (15 percent of his actual days in custody, thus adding 85 days of conduct credit to his 567 days actually served). He argues that because the sentence for second degree murder was stayed under section 654, the trial court should not have considered his murder conviction as grounds for denying him presentence conduct credits.