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Name: People v. Fong
Case #: H037245
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 06/18/2013

Defendant who pleaded guilty to assault and inflicting great bodily injury was properly limited to 15 percent conduct credit. Defendant entered into a plea agreement under which he was promised a 17-year sentence for assault and inflicting great bodily injury. During the plea colloquy, he was advised that his credit would be limited to 15 percent. On appeal, Fong challenged the application of Penal Code section 2933.1 to him, arguing that the admission of a Penal Code section 12022.7 enhancement allegation associated with his 2009 felony offense did not bring him within the provisions of Penal Code section 667.5, subdivision (c)(8), which would qualify him for application of section 2933.1’s credit limitations. He claimed that section 667.5, subdivision (c)(8)’s reference to section 12022.7 was a time-specific incorporation of the 1977 version of section 12022.7. The 1977 version contained a specific intent requirement that was deleted in 1995, and which he did not admit. The appellate court rejected the argument, finding that section 667.5, subdivision (c)(8)’s incorporation of section 12022.7 was not a time-specific incorporation based on a legislative intent analysis. As a result, section 667.5, subdivision (c)(8) did not incorporate the version of section 12022.7 containing a specific intent requirement. It follows that the trial court properly subjected Fong to the credit limiting provisions of section 2933.1.