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Name: In re Borlik
Case #: H034191
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/06/2011

A defendant convicted of a violent felony is subject to the limitation of Penal Code section 2933.1, when the sentence for the violent felony is stayed pursuant to Penal Code section 654. In a case similar to In re Pope (2010) 50 Cal.4th 777, petitioner was convicted by his plea of driving under the influence with great bodily injury (Veh. Code, sec. 23153, subd. (b) and Pen. Code, sec. 12022.7), and vehicular manslaughter (Pen. Code, sec. 191.5, subd. (a)). In accord with the plea bargain and pursuant to Penal Code section 1385, the court struck the punishment for the enhancement, imposed six years for section 191.5(a), and, pursuant to Penal Code section 654, stayed the term for the Vehicle Code count. Under Pope, the Supreme Court found that when a defendant is convicted of both qualifying and nonqualifying offenses, and the sentence for the qualifying offense is stayed pursuant to section 654, the defendant remains subject to the limitations of section 2933.1. As with Pope, here, petitioner is subject to the limitation because he was convicted of a qualifying offense. Further, the Pope decision is applied retroactively because it resolved a conflict between lower court decisions and gave effect to a statutory rule that at least two courts had previously misconstrued. Therefore, despite Borlik having been released from prison during the pendency of this action, the result of the opinion would be to return him to custody to complete a sentence subject to the 15% credit limitation.