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Name: In re Gomez
Case #: G042807
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/02/2009

The credit limitation under Penal Code section 2933.1 is not triggered where the only violent felony conviction has been stayed pursuant to section 654. Gomez pled guilty to four counts, including gross vehicular manslaughter, arising from a drunk-driving accident in which his friend who was a passenger was killed. Gomez also admitted a great bodily injury enhancement attached to one of two driving under the influence counts. The court imposed sentence on the gross vehicular manslaughter, and the remaining counts were stayed. Prison officials told Gomez his release date would be calculated by applying the fifteen percent credit limitation of section 2933.1. He then filed a writ of habeas corpus which the trial court granted, ruling that under In re Phelon (2005) 132 Cal.App.4th 1214, section 2933.1 had no effect on the sentence because the only violent felony conviction had been stayed. The Department of Corrections then filed a writ of supersedeas. The appellate court affirmed, agreeing with Phelon that the statute has no application to a prisoner who is not actually serving a sentence on the violent felony. This conclusion is also consistent with the Supreme Court’s interpretation of section 2933.1 in In re Reeves (2005) 35 Cal.4th 765, where the court found work time can only be applied to the sentence being served. Since here there is no sentence being served as a result of the stay, there is nothing upon which the limitation can apply.