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Name: In re Tate
Case #: F047529
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/12/2006

A defendant’s non-violent in-prison conviction is not subject to the credit limitations of section 2933.1 where the term imposed is separate from his violent out-of-prison conviction. The defendant was convicted of a violent felony and sentenced to prison. While in prison, he pled guilty to a non-violent weapons charge and was sentenced to a mandatory consecutive term. The Department of Corrections applied the credit limitations of Penal Code section 2933.1 to defendant’s entire sentence, because his first conviction was for a violent felony. After defendant’s petition for writ of habeas corpus was partially granted, CDC appealed, and the Fifth District affirmed. The California Supreme Court’s recent decision in In re Reeves (2005) 35 Cal.4th 755 does not address the issue in this case, because Reeves held only that a credit limitation under section 2933.1 applies to the entirety of aggregated consecutive terms, and under Penal Code section 1170.1, subdivision (c), a mandatory consecutive term imposed for an in-prison offense is a separate term and is not aggregated with the original term. Thus, the credit limitation under section 2933.1 did not apply to defendant’s non-violent in-prison offense.