Filed 1/27/00

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp, Judge. (Assigned by the Chairperson of the Judicial Council.) Affirmed with modifications.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, David Victor Zaragoza, appeals from his conviction for assault on a child under the age of eight causing death (Pen. Code, § 273ab) and second degree murder. (§ 187, subd. (a).)

II. DISCUSSION

[The indicated portions of the opinion, parts II.A. and the heading for part II.B.

are deleted from publication. See post at p. 11 where publication is to resume.]

A. Unpublished Issue

In the published portion of this opinion, we address the scope of the 15 percent limitation on presentence conduct credits in section 2933.1. We conclude section 2933.1 is applicable to this case and thereby modify the award of presentence conduct credits. Defendant argues: the trial court improperly admitted evidence of defendant’s abuse of the victim’s older brother on a prior occasion; the trial court improperly excluded the testimony of percipient witnesses; and defendant was improperly convicted of murder and assault on a child causing death. The Attorney General argues that restitution fines must be imposed pursuant to sections 1202.4, subdivision (b), and 1202.45 and the trial court awarded an excessive amount of presentence credits.

We review the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909; People v. Barnes (1986) 42 Cal.3d 284, 303.) In March 1997, defendant moved in with Patricia Orellana and her three children: Salman Y., age five; Jasmine Y., age three; and Adan Y., age two. On February 8, 1998, while at a laundromat with Ms. Orellana and the three children, defendant left with Adan Y., who had become "fidgety." Defendant returned approximately 20 minutes later. Adan Y. was unconscious. Ms. Orellana described defendant’s conduct when he reappeared, " He was crying and he told me the child had fell [sic]." When asked later to describe what had happened to the minor, Ms. Orellana testified, "He told me he had fallen down, he had . . . hit his head and that he did not respond." Adan Y. died of massive abdominal blunt force trauma, causing damage to his internal organs, including a torn liver and ligaments. The injury was consistent with an upward blow to the abdomen, with a fist or foot, powerful enough that it dislocated two vertebrae. The autopsy also revealed that Adan Y. had suffered blunt force trauma to his abdomen approximately a week or two prior to his death; damage to his vertebrae approximately four to six weeks prior to his death; a spiral fracture to his arm approximately six months before his death; and a second injury to his arm approximately three weeks prior to his death. Adan Y. had five bruises to his head area that were consistent with having occurred at least a few days before he died. Defendant had disciplined Salman Y. by hitting the child with a belt. The police were called to defendant’s and Ms. Orellana’s residence on two occasions. The authorities were summoned because of a disturbance between defendant and Ms. Orellana. Ms. Orellana had informed a social worker that Adan Y.’s arm was broken as the result of a fall down some stairs.

First, defendant argues that the trial court improperly admitted evidence of defendant’s prior use of a belt to discipline Salman Y. pursuant to Evidence Code section 1101, subdivision (b). Evidence Code section 1101 provides in pertinent part: "(a)  Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b)  Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." Defendant argues that the limiting instruction related to the testimony of Detective Mitchell Loman was inadequate. He also argues the trial court improperly denied his mistrial motion based upon Detective Loman’s testimony. We reject these arguments.

Prior to trial, defendant filed a motion to prevent the prosecutor from introducing evidence of his abuse of other children pursuant to Evidence Code sections 352 and 1103. At the time the motions were heard, defendant indicated the motion was made pursuant to Evidence Code sections 352 and 1103. The prosecutor indicated that he had not yet determined whether he would attempt to introduce such evidence At the time he attempted to introduce the evidence, defense counsel objected on relevancy grounds only. The objection was overruled. Ms. Orellana testified that defendant hit Salman Y. with a belt. This incident occurred after defendant found Salman Y. attempting to sexually molest Jasmine Y. When Detective Loman was cross-examined, defense counsel inquired of the detective’s review of the Department of Children and Family Services records regarding Ms. Orellana’s children. When asked if the records included a determination that defendant had abused Adan Y., Salman Y., or Jasmine Y., Detective Loman indicated the documents did not. On re-direct examination, the prosecutor asked Detective Loman whether the Department of Children and Family Services records included any interview with Ms. Orellana’s sister, Miriam Castillo. Detective Loman indicated he did not believe the records did. The prosecutor inquired whether Detective Loman had information from Salman Y. and Ms. Castillo that defendant had punched the child in the abdominal area. Defense counsel’s objections based on relevance and hearsay was sustained. His motion to strike the question and request for an admonition to disregard the answer were granted. Defense counsel’s motion for mistrial based upon the question was denied. The trial court admonished the jury, "You will disregard the answer, ladies and gentlemen, it is hearsay." At sidebar, the trial court admonished the prosecutor that unless he brought in the witnesses, it would not allow any further inquiry into the issue of defendant’s alleged abuse of Salman Y.

We agree with the Attorney General that defendant’s failure to object on grounds that the evidence was inadmissible pursuant to Evidence Code section 1101, subdivision (b), either at the hearing regarding his pretrial motions or at the time the evidence was introduced amounted to a waiver of that issue on appeal. (Evid. Code, § 353; People v. Williams (1997) 16 Cal.4th 153, 250 [failure to raise objection to admissibility of evidence on specific grounds results in waiver of that claim of error]; People v. Garceau

(1993) 6 Cal.4th 140, 179; People v. Tuilaepa (1992) 4 Cal.4th 569, 588 [failure to object to evidence of gang involvement resulted in waiver of claim on appeal].) Notwithstanding that waiver, we find the evidence of defendant’s prior incidents of abuse against Salman Y. with a belt could be properly admitted pursuant to section 1101, subdivision (b), and 352. Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The California Supreme Court explored the introduction of such uncharged crime evidence in the case of People v. Ewoldt (1994) 7 Cal.4th 380, 404-405. In Ewoldt, the defendant was charged with molesting his daughter. Evidence that he had similarly molested her older sister was admitted to establish the existence of a common design or plan. The Ewoldt court set forth factors to be considered in determining the probative value of uncharged crimes as well as the prejudicial impact of such evidence, including: (1)  the tendency of that evidence to prove a common design or plan; (2)  the extent to which the source of that evidence is independent of the charged offense; (3)  the proximity in time of the uncharged offense to the charged crime; (4)  whether the uncharged offense resulted in a criminal conviction; and (5)  the inflammatory nature of the uncharged offense compared with that of the charged crime. (Ibid.; see also People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609-1614 [evidence of marital discord and defendant’s prior physical assaults against the victim were admissible to prove motive, intent, and identity]; People v. Zack (1986) 184 Cal.App.3d 409, 414-415 [same].) Furthermore, the California Supreme Court has repeatedly held, "Rulings under Evidence Code section 352 come within the trial court’s discretion and will not be overturned absent an abuse of that discretion." (People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cudjo (1993) 6 Cal.4th 585, 609; People v. Hall (1986) 41 Cal.3d 826, 834.) In People v. Carpenter (1997) 15 Cal.4th 312, 380, the California Supreme Court noted, "Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect." (Ibid., citing People v. Ewoldt, supra, 7 Cal.4th at p. 404; see also People v. Kipp (1998) 18 Cal.4th 349, 369.)

In this case, defendant maintained that Adan Y.’s death was accidental. Defendant testified that Adan Y. had become sick after they left the laundromat and played games at a pizza parlor. Thereafter, defendant threw Adan Y. into the air and caught the child. This was something which Adan Y. enjoyed. However, defendant tripped while distracted. Defendant tried to catch Adan Y. with his knee. Adan Y. fell to the ground and hit his head. Thereafter, defendant fell on top of Adan Y. Defendant’s knee fell into the child’s stomach. The prosecution evidence established that Adan Y. died of injuries which were intentionally inflicted. The evidence that defendant had used a belt on Salman Y. was admissible to establish that Adan Y.’s injuries did not arise from accidental means. The fact that defendant had abused Salman Y. in the past was relevant to show that Adan Y.’s injuries were deliberately inflicted. The Supreme Court has held: "[T]he uncharged crime need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant "‘probably harbor[ed] the same intent in each instance.’ [Citations.]"’" (People v. Kipp, supra, 18 Cal.4th at p. 371, quoting People v. Ewoldt, supra, 7 Cal.4th at p. 402; People v. Evers (1992) 10 Cal.App.4th 588, 599 [evidence of defendant’s prior abuse of his step-daughter admissible to establish defendant’s awareness that serious injury or death could result from physical abuse toward his son].) We find no abuse of discretion.

We also reject defendant’s argument that the trial court’s admonition to disregard Detective Loman’s answer was inadequate. In fact, Detective Loman did not answer the question. Furthermore, the jury was instructed with CALJIC No. 1.02 to not speculate about the answer to a question for which an objection was sustained. CALJIC No. 1.02 was given as follows: "If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. [¶] Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it enables you to understand the answer. [¶] Do not consider for any purpose any offer of evidence that was rejected or any evidence that was stricken by the court. Treat it as though you had never heard of it." The United States Supreme Court has determined that juries have the ability to "approach their task responsibly and to sort out discrete issues given to them under proper instructions by the judge . . . ." (Spencer v. Texas (1967) 385 U.S. 554, 565; accord, Richardson v. Marsh (1987) 481 U.S. 200, 207.) The California Supreme Court has consistently stated that on appeal it is presumed that the jury is capable of following the instructions they are given. (People v. Kemp (1961) 55 Cal.2d 458, 477; People v. Chavez (1958) 50 Cal.2d 778, 790; People v. Foote (1957) 48 Cal.2d 20, 23; People v. Thomas (1994) 26 Cal.App.4th 1328, 1333-1334.) We presume the jury followed the instruction here.

Second, defendant argues the trial court improperly excluded the testimony of percipient witnesses pursuant to Evidence Code section 1240, thereby violating his right to due process. Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a)  Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b)  Was made spontaneously while the declarant was under the stress of excitement caused by such perception." Preliminarily, the due process violation was not the basis of an objection in the trial court and thus is the subject of waiver, forfeiture, and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Williams (1997) 16 Cal.4th 153, 250; People v. Vera (1997) 15 Cal.4th 269, 274; People v. Padilla (1995) 11 Cal.4th 891, 971, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Rodrigues, supra, 8 Cal.4th at p. 1116, fn. 20; People v. Garceau, supra, 6 Cal.4th at p. 173; People v. Saunders (1993) 5 Cal.4th 580, 590; People v. McPeters (1992) 2 Cal.4th 1148, 1174; People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10; People v. Yarbrough (1997) 57 Cal.App.4th 469, 477-478.)

Notwithstanding that waiver, no abuse of discretion occurred in connection with the trial court’s ruling. (People v. Hines (1997) 15 Cal.4th 997, 1034-1035, fn. 4; People v. Raley (1992) 2 Cal.4th 870, 894; People v. Poggi (1988) 45 Cal.3d 306, 318; see also People v. Gallego (1990) 52 Cal.3d 115, 175.) In his motion, defendant argued that the testimony of Oscar Diaz and Jaurequi Florentino concerning extrajudicial statements of certain customers of a restaurant where Adan Y. was taken by defendant, should be presented to the jury. The unidentified declarants said words to the effect of, "[I]t looked like the guy was holding the baby and the baby slipped out of his arms . . . ." However, defendant failed to demonstrate either in his written motion or at the hearing, that the unidentified declarants spoke under the stress of excitement. In addition, the record does not reflect when the statements were made in relation to the incident. As the California Supreme Court has held: "The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is thus not the nature of the statement but the mental state of the speaker." (People v. Farmer (1989) 47 Cal.3d 888, 903; accord, People v. Roybal (1998) 19 Cal.4th 481, 515.) In denying the motion, the trial court noted: "Court finds that the statements pursuant to [Evidence Code section] 1240 will not be admissible. I’m not convinced that the perception of the alleged observers is sufficient for it to come in, nor do we have any indication as to the time between the incident itself and the statements made by the witnesses, nor do we have any indication regarding their mental state of agitation or lack thereof." The trial court did not abuse its discretion.

Furthermore, any error in excluding the evidence was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) As the Attorney General points out, the hearsay testimony would have been that the unidentified restaurant customers saw a baby slip out of a man’s arms. Thereafter, the man attempted to cover the baby with a blanket. Defendant testified to having failed to catch Adan Y. after the child was thrown in the air.

Third, defendant argues that he was improperly convicted of both second degree murder and felony assault on a child under age eight resulting in death. He argues the assault on a child offense is necessarily included within the murder charge. We disagree. The Supreme Court has held: "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.] (People v. Birks (1998) 19 Cal.4th 108, 117-118; see also People v. Lohbauer (1981) 29 Cal.3d 364, 369.) The California Supreme Court has long held: "[M]ultiple convictions may not be based on necessarily included offenses. [Citations.] (People v. Pearson (1986) 42 Cal.3d 351, 355, italics original; see also People v. Ortega (1998) 19 Cal.4th 686, 692.) However, the Court of Appeal has held: "Separate convictions may ‘be had for more than one offense committed by means of a single act or series of acts, where there is an element of one crime not found in the other.’ [Citation.]" (Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 262, quoting People v. Thomas (1943) 59 Cal.App.2d 585, 587.)

Section 273ab provides: "Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life." Second degree murder is the unlawful killing of a human being with malice aforethought, but without the elements willfulness, premeditation, and deliberation. (§§ 187, 189.) The California Courts have determined that section 273ab requires a use of force that a reasonable person would believe was likely to produce great bodily injury; rather than a belief that the force would likely cause the child’s death. (People v. Albritton (1998) 67 Cal.App.4th 647, 655 [defendant’s conviction for violating section 273ab was not inconsistent with his conviction for involuntary manslaughter]; People v. Preller (1997) 54 Cal.App.4th 93, 97-98 [prosecution need not prove that a reasonable person would believe the means of force exerted in an assault on a child as defined in section 273ab would likely result in the youngster’s death].) We conclude that an assault on a child under the age of eight causing death can be committed without necessarily committing a second degree murder. (Orlina v. Superior Court, supra, 73 Cal.App.4th at p. 262; People v. Albritton, supra, 67 Cal.App.4th at pp. 655-656.) Defendant was properly convicted of both crimes.

Fourth, the Attorney General argues that the trial judge neglected to impose a fine pursuant to section 1202.4, subdivision (b)(1) as well as the mandatory additional restitution fine pursuant to section 1202.45. The Attorney General asks that we impose both fines. However, the trial court’s failure to either impose a fine pursuant to section 1202.4, subdivision (b)(1) or set forth "compelling and extraordinary reasons" for not imposing such a fine was neither a jurisdictional error nor a legally unauthorized judgment. (People v. Scott (1994) 9 Cal.4th 331, 355 [defendant’s claim that reasons used for sentencing were "inapplicable, duplicative, and improperly weighed" was waived]; People v. de Soto (1997) 54 Cal.App.4th 1, 7-9 [improper dual use of facts underlying weapons use to impose the upper term waived by failure to impose a more specific objection at sentencing]; People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [failure to consider mitigating factors]; People v. Middleton (1997) 52 Cal.App.4th 19, 36-38 [defendant cannot object to enhancement for first time on appeal]; People v. Minder (1996) 46 Cal.App.4th 1784, 1791-1792 [failure to comply with requirement in rule 433(b) of the Cal. Rules of Court to state reasons for imposing upper term when imposition of sentence is suspended]; People v. Erdelen (1996) 46 Cal.App.4th 86, 91 [improper dual use of facts to impose upper term waived]; People v. Zuniga (1996) 46 Cal.App.4th 81, 83 [failure to state any reason for sentence choices]; People v. Dancer (1996) 45 Cal.App.4th 1677, 1693 overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [improper use of particularly vulnerable aggravating factor to impose upper term]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1691 [finding application of waiver rule to improper use of enhancement to impose upper term and reaching the merits of the issue]; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311 [failing to state reasons for upper term]; People v. Neal (1993) 19 Cal.App.4th 1114, 1117-1124 [failing to state reasons for consecutive sentences].) As a result, no jurisdictional error occurred and the failure to set forth "compelling and extraordinary reasons" for not imposing the section 1202.4, subdivision (b)(1) restitution fine was waived by the prosecution. The deputy district attorney in the trial court did not interpose any objection to the fact no restitution fine was imposed. Further, the prosecution has not appealed. No doubt what occurred was judicial error; compounded by the failure of the deputy district attorney to even remind the trial court of the failure to impose the restitution fine. However, the Attorney General does not have standing to assert the non-jurisdictional error of the trial judge in neglecting to impose the section 1202.4, subdivision (b)(1) restitution fine. Because no fine was imposed pursuant to section 1202.4, subdivision (b)(1), none need be imposed pursuant to section 1202.45.

B. Published Issues

[The balance of the opinion is to be published.]

Defendant has been convicted of both assault on a child under the age of eight causing death (§ 273ab) and second degree murder (§ 187) arising out of the same incident. The trial court stayed the sentence for second degree murder pursuant to section 654, subdivision (a). The deputy district attorney argued that defendant’s award of presentence conduct credits should be limited to 15 percent pursuant to section 2933.1. The trial court calculated the amount of time served in custody prior to the imposition of sentence to be 333 days which included 111 days of conduct credits. In other words, the trial court concluded that defendant was entitled to two days of credit of conduct credits for every four days spent in county jail awaiting sentencing as contemplated by section 4019. (See People v. Heard (1993) 18 Cal.App.4th 1025, 1028; e.g., People v. Fabela (1993) 12 Cal.App.4th 1661, 1664.) It is the position of the Attorney General that defendant should have received sentence conduct credits of 15 percent of the 222 days actually served in local custody prior to sentencing, or 33 days. The failure to properly calculate presentence conduct credits is a jurisdictional error which can be raised by the Attorney General in connection with a defendant’s appeal. (People v. Scott, supra, 9 Cal.4th at p. 354; People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15.)

This is an issue of statutory interpretation and we apply the following principles for construing statues articulated by the California Supreme Court: "When interpreting a statute our primary task is to determine the Legislature’s intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent." (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826; People v. Jones (1993) 5 Cal.4th 1142, 1146.) Further, the California Supreme Court has noted: "‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) . . . .’" (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798; People v. Overstreet (1986) 42 Cal.3d 891, 895.) However, the literal meaning of a statute must be in accord with its purpose, the California Supreme Court noted in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659 as follows: "We are not prohibited ‘from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute] . . . .’" (Accord, People v. King (1993) 5 Cal.4th 59, 69.) In Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, our Supreme Court added: "The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in light of the statutory scheme [citation] . . . ." (Accord, People v. King, supra, 5 Cal.4th at p. 69.)

The express language of section 2933.1 requires that defendant receive only 15 percent presentence conduct credits. Section 2933.1 subdivisions (a) through (c) provides: "(a)  Notwithstanding any other law, any person who is convicted of a felony offense listed in Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. [¶] (b)  The 15 percent limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law. However, nothing in subdivision (a) shall affect the requirement of any statute that the defendant serve a specified period of time prior to minimum parole eligibility, nor shall any offender otherwise statutorily ineligible for credit be eligible for credit pursuant to this section. [¶] (c)  Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)."

Section 2933.1, subdivision (c) is the provision of law that limits an award of presentence conduct credits. (See In re Carr (1998) 65 Cal.App.4th 1525, 1531; People v. Keelen (1998) 62 Cal.App.4th 813, 817.) Section 2933.1, subdivision (c) applies the 15 percent presentence conduct credit limitation to "every person described in subdivision (a)." Section 2933.1, subdivision (a) applies to "any person convicted of a felony offense listed in [s]ection 667.5 . . . ." Defendant has been convicted of second degree murder, an offense listed explicitly in section 667.5, subdivision (c)(1). The express language of section 2933.1 limits his presentence conduct credits to 15 percent of the time actually served.

However, defendant argues that because his sentence as to the second degree murder count has been stayed pursuant to section 654, subdivision (a), the section 2933.1, subdivision (c) 15 percent limitation on presentence conduct credits is inapplicable to him. Defendant reasons as follows: section 273ab is not listed in section 667.5; his murder sentence has been stayed pursuant to section 654, subdivision (a); and he is currently not subject to a sentence for an offense listed in section 667.5. Since he is not currently sentenced for any offense listed in section 667.5, defendant argues, he is not subject to the 15 percent limitation on presentence conduct credits codified in section 2933.1, subdivision (c). We, with respect, disagree. The express language of section 2933.1, subdivision (a) resolves defendant’s argument. Section 2933.1, subdivision (a) applies to any person "convicted" of an offenses listed on section 667.5. Section 2933.1, subdivision (a) does not require that a sentence be in effect in order for the 15 percent limitation to apply; there must only be a conviction. There is no merit to the suggestion that the section 654, subdivision (a) stay as to the murder count has any effect on the amount of presentence conduct credits that may be awarded in the present case.

Further, our analysis is fully consistent with legislatively promulgated documents which are indicative of the Legislature’s intent. (See Sen. Amend. to Assem. Bill No. 2716 (1993-1994 Reg. Sess.) July 6, 1994, ["This bill would provide . . . [that] any person convicted of a violent felony as defined, shall accrue no more than 15% of worktime credit, as defined."]; Office of Sen. Floor Analysis, 3d reading analysis of Assem. Bill No. 2716 (1993-1994 Reg. Sess.) July 6, 1994, ["This bill would provide that any person who is convicted of a violent felony, as defined, shall accrue no more than 15% of worktime credit, as defined."]; Assem. Floor Analysis, Sen. Amend. to Assem. Bill No. 2716 (1993-1994 Reg. Sess.) Aug. 24, 1994, p. 1 ["All determinatively sentenced inmates are eligible for these credits, except those convicted of specified violent offenses who have served two or more prison terms for specified violent offenses and inmates under institutional disciplinary action. [¶] This bill would limit worktime credits to 15% for any person convicted of a violent felony"].) The express language of section 2933.1 is hence fully consistent with legislative documents contemporaneously promulgated with its adoption in 1994. For these combined reason, we agree with the Attorney General that the amount of presentence conduct credits should be reduced to 33 days.

III. DISPOSITION

The judgment is modified to reflect that defendant is to receive 255 days of presentence credits, consisting of 222 days of actual credit and 33 days of conduct credit. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections.

CERTIFIED FOR PARTIAL PUBLICATION

TURNER, P.J.

We concur:

GRIGNON, J.

GODOY PEREZ, J.