Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Riverside County No. RIF102020, Edward D. Webster, Judge.
Kristin A. Erickson and Alisa Shorago for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
After a hung jury in the first trial, a second jury convicted defendant Jeremiah Paul Helms of child abuse causing death and second degree murder. The court sentenced him to 25 years to life in state prison.
Defendant appeals, asserting claims of insufficiency of the evidence, erroneous denial of his mistrial motion, prosecutorial misconduct, and failure to award presentencing credits. He also argues the abstract should be amended to reflect he was convicted of second degree, not first degree, murder. The Attorney General agrees with this last contention, as do we. As amended, the judgment is affirmed.
FACTS
Michelle Duran had been dating defendant for 7 months. When she suggested placing a bed in defendant’s spare room so that her three girls would not have to sleep on his couch when she stayed over, his reaction “wasn’t a positive one.” Additionally, 3-year-old daughter Mareena had become so “terrified” of defendant that if Duran took a shower, Mareena would not leave the bathroom if he was present. Mareena was not afraid of any other males. She would “cry and say no” when defendant walked into a room and would cry and act afraid upon seeing or hearing his truck. Her fear angered defendant and had a negative impact on Duran’s relationship with him.
Duran arranged counseling for Mareena because she was concerned Mareena’s fear was causing her hair to thin and fall out. Defendant’s refusal to participate resulted in frequent arguments. But because Mareena sometimes was not afraid of defendant and would play with him, Duran continued to bring her around.
On February 18, Mareena had breakfast, watched television, and played with her mother. That afternoon, they went with defendant to the movies where Mareena “hop[ped] around” and ate snacks. She was not sick or injured and did not appear to be in pain or discomfort.
They returned to defendant’s house around 4:00 p.m. and Mareena took a nap. When she woke up two hours later, she sat in bed eating M&Ms and watching television. She did not appear to be physically distressed. With defendant’s help, Duran began packing her belongings in order to go pick up her two older daughters. She gave him an ultimatum that their relationship would be over if he was unwilling to participate in counseling. Defendant cried and said he would go. When Duran was ready to leave, Mareena had fallen back asleep. Defendant said that when Mareena woke up he would take her to Duran’s house. Duran left after 7:30 p.m.
Fifteen to twenty minutes later, defendant called Duran and said Mareena had suffered a seizure and he was not sure if she was breathing. Mareena had no history of seizures. Defendant did not know if she was ok; she had started shaking when he went to pour water over her head in the bathtub and was making some gurgling noises but was breathing. Because he had not called 911, Duran told him to do so.
When Duran arrived back at defendant’s house around 8:00 p.m., Mareena was being treated by paramedics, who then transported her to the hospital. As defendant drove Duran there, he explained Mareena was fine when he woke her up but she began seizing when he went to give her a bath.
The next day, Mareena’s treating physicians told homicide investigators her “prognosis was not good.” She died that night of massive brain injuries.
District attorney investigator Ricardo Fuentes interviewed defendant. Defendant stated Mareena was fine when she woke up although she “wanted her mommy.” He carried her to the bath and got her undressed, but she began shaking and convulsing when he started putting her in the tub. She was choking, not breathing, and making a “gurgling” noise. Defendant panicked and called his mother, then went to the kitchen and grabbed an ice pack to wet Mareena’s head. When asked why he did not call 911, he said he did not know and that it was normal to call his mother.
When Fuentes told defendant he did not believe him because Mareena had head injuries, defendant suggested he could have bumped her head against something on the way out of the bathroom. Fuentes responded by stating that was inconsistent with how the doctors said the injuries could have occurred. Defendant became emotional and started crying. He said as he was removing her shoes, Mareena fell backwards off the bed and hit her head on the carpet. But after the fall, she “appeared fine[,]” asked for her mommy, and was capable of raising her arms up in order to have her shirt removed for her bath and only then did she have the seizure. Defendant “felt bad” for not telling Fuentes this before and swore on his three-year-old twin sons that this was the truth. Fuentes challenged this story as well, in response to which defendant said the fall could have triggered an undiagnosed medical condition and that Mareena was “fragile.”
Defendant later told Duran as they stood in a monitoring room that Mareena did not fall off the bed and that he had lied to Fuentes. He asked her not to tell the police he had lied. He suggested Mareena may have hit her head on a car seat.
According to treating doctor Claire Sheridan-Metney (Sheridan), a CT scan taken at 9:45 p.m. revealed bleeding in Mareena’s brain, which otherwise appeared normal. But a second CT scan, taken five hours later, showed Mareena was brain dead. Her brain had been the subject of “massive trauma . . . impact injury . . . [and] acceleration/deceleration injury.” If Mareena had been fine at 7:30 p.m., the fatal injuries were inflicted “within a few hours” between then and the first scan. The nature of Mareena’s injuries made it impossible for her to be lucid or behave normally for a “period of time” after sustaining them.
Pathologist Glen Holt performed an autopsy and opined the cause of death was “cranial cerebral trauma.” Mareena’s head had been the subject of approximately 23 “blunt-force injuries” to her head, which all occurred at roughly the same time, “within less than 48 hours prior” to her death. Given her injuries, Mareena would have become unconscious, experienced “respiratory depression,” and soon thereafter “respiratory failure.” “[H]er neurological status [would have] deteriorated rather quickly[]” and “very rapidly she . . . would have been obtundant and/or unconscious.”
DISCUSSION
1. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his second degree murder conviction. We disagree.
When reviewing a judgment for sufficiency of the evidence, our “task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable double. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We may not reweigh the evidence or redetermine issues of credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The same standard is applied to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.)
Here, both prosecution and defense experts agreed Mareena died from massive head trauma. The critical question was when that trauma occurred. The prosecution presented substantial evidence showing Mareena’s injuries were inflicted after Duran left defendant’s house at 7:30 p.m. on February 18.
Treating physician Sheridan testified Mareena would not have been lucid or able to behave normally after sustaining her injuries. Pathologist Holt similarly testified Mareena’s “neurologic status [would have] deteriorate[d] rather quickly[]” and she would rapidly have become obtundant or unconscious.
The evidence showed Mareena was lucid at 6:00 p.m. when she awoke from a nap at defendant’s house on February 18. She remained lucid as she sat up in bed eating M&Ms and watching television, exhibiting no signs of physical distress. When Duran departed defendant’s house after 7:30 p.m. to pick up her other daughters, Mareena had fallen back asleep. Mareena was again lucid briefly when she awoke shortly after Duran had left her alone with defendant. According to one of the accounts defendant gave investigating officer Fuentes, Mareena “appeared fine,” asked for her mother, and was capable of raising her arms to allow him to remove her shirt for her bath—despite falling backwards off the bed and hitting her head. But shortly thereafter Mareena apparently suffered a seizure and by 8:00 p.m. paramedics were at the house treating her. On these facts, a reasonable jury could find defendant guilty beyond a reasonable doubt.
Defendant challenges the medical testimony, contending it was “highly inconsistent,” relied on a “problematic” autopsy report prepared by an inexperienced pathologist who used an improper method and did not conduct a particular test, and failed to look at the actual autopsy slides. He also argues there was conflicting evidence how Mareena was feeling on February 17 and 18, that Mareena may have had pneumonia before going to the hospital, and that there evidence of prior abuse by someone other than defendant. All of these were matters for the jury to determine.
“‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ [Citation.]” (People v. Perez (1992) 2 Cal.4th 1117, 1124.) The record supports the jury’s verdict.
2. Motion for Mistrial
Defendant challenges the trial court’s denial of his motion for a mistrial asserting the prosecution had “give[n] the jury a false impression” about the plea agreement it had entered into with Duran in exchange for her testimony. We find no error.
a. Background
Although Duran originally was charged with child abuse resulting in death, murder, and felony child endangerment, she entered into an agreement that allowed her to plead guilty to child endangerment in exchange for her truthful testimony against defendant. At trial, she testified that under the terms of the plea agreement, she understood her maximum custody exposure was six years and that she would not be sentenced until after she testified truthfully against defendant.
On cross-examination, Duran stated she understood she had been charged with murder, which carried the penalty of life in prison. Although she did not believe she would face that penalty or that the charges would be reinstated if she failed to comply with the plea bargain, she acknowledged that under the terms of the agreement, if she failed to tell the truth, the prosecution would be permitted to reinstate the murder charge and she would be “facing life in prison.”
Duran explained on redirect examination that based on discussions with her attorney, she did not believe she would be convicted of murder or receive life in prison if she did not sign the plea bargain and her case proceeded to trial. No prosecutor told her she would get life in prison and that was not reflected on the plea agreement. But even if the agreement did not exist and she was facing life in prison, she would have told the truth for her daughter.
On the date defendant was to be sentenced, he made an oral motion for a new trial. He argued the prosecution had committed reversible error by arguing to the jury that Duran “didn’t believe that she was facing life in prison” for her role in Mareena’s death. “[I]n fact, [Duran] was facing life in prison” and when the prosecution elicited testimony from her that she “never believed she was facing a life term,” it deceived the jury regarding her potential exposure. The trial court denied the motion, reasoning that Duran could reasonably testify she believed her maximum prison exposure was six years if she believed she was not guilty of murder such that she could not be found guilty of murder.
b. Analysis
Preliminarily, we address the Attorney General’s assertion defendant waived the issue by failing to timely object when the alleged misconduct occurred. At a side-bar during defense counsel’s cross-examination, the prosecutor stated that if the court allowed the defense to question Duran on her belief about her potential sentence before signing the plea agreement, she would ask permission to question Duran about her subjective belief, based on her discussions with her attorney, about whether “she really believ[ed] she would ever be convicted of [murder.]” The court ruled Duran’s subjective opinion was relevant and that defendant would have every opportunity to “impeach” her. Defense counsel responded, “fine.” When the disputed testimony was introduced, defendant did not object.
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Although a subsequent argument in a motion for new trial does not substitute for a timely objection (People v. Williams (1997) 16 Cal.4th 153, 254), the general rule does not apply where a timely objection and a request for admonition would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820.) Here, we agree with defendant an objection at the time the evidence was introduced would have been futile, not because the court denied his motion for new trial, but because the court had already determined Duran’s subjective opinion was relevant.
In any event, defendant has not shown the court abused its discretion in denying the motion. (People v. Burgener (2003) 29 Cal.4th 833, 873.) He argues he suffered a due process violation because “the prosecution was holding a huge hammer over her head” and “[t]he jury needed to be aware that she was a witness that had her life to lose if she testified in such a way that was perceived as untruthful by the prosecution.” But during cross-examination, his counsel elicited an admission from her that if she failed to tell the truth, the prosecution would be permitted to reinstate the murder charge and she would be “facing life in prison.” Thus, the jury had already been told what defendant contends it needed to be told.
3. Prosecutorial Misconduct
Defendant argues the judgment should be reversed because the prosecutor engaged in misconduct during closing argument by “misstating the prosecution’s burden of proof,” denigrating defense counsel, and making “intemperate remarks.” He also asserts misconduct occurred when the prosecutor cross-examined defense witnesses.
We first address the issue of waiver. Defendant acknowledges “trial counsel did not preserve most of the instances [of misconduct]” but maintains they “are not waived because it would have been futile for counsel to continue to object” and alternatively he was denied effective assistance of counsel. The Attorney General points out the failure to make timely objections but does not address defendant’s futility and ineffective assistance of counsel arguments. We shall exercise our discretion and address defendant’s contentions on their merits. (See People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
a. Comments During Closing Argument
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (Jan. 5, 2009 ___ Cal.4th ___ 2009 WL 18142, *16, fn. 22).)
(1) Reasonable Doubt
In rebuttal summation after agreeing with defendant’s closing argument that the prosecution bore the burden of proving the case beyond a reasonable doubt, the prosecutor responded to defendant’s description of the meaning of “abiding conviction” by stating, “Beyond a reasonable doubt does mean by an abiding conviction of the truth of the charge which simply means are you satisfied with your verdict. You’ve heard the facts. You know the evidence. You know the law. You connect the . . . facts to the law. Does it fit? And if it does and you feel that it fits and that’s the truth of the charge, then you have an abiding conviction of the truth of the charge.” According to defendant, “[t]elling the jury that an ‘abiding conviction’ simply means whether the jury is ‘satisfied’ with its verdict and whether the jury ‘feels’ that the charges are true misstates the prosecution’s burden . . . .” Defendant failed to carry his burden on this issue.
The court instructed the jury with CALJIC No. 2.90, stating, “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
The prosecutor’s arguments and CALJIC No. 2.90 both convey the same meaning. CALJIC No. 2.90 instructs that a defendant is entitled to a not guilty verdict if “a reasonable doubt whether [his] . . . guilt is satisfactorily shown . . . .” (CALJIC. No. 2.90.) But the converse is also true: the jury has an abiding conviction in the truth of the charge if it is “satisfied with [its] verdict” beyond a reasonable doubt that defendant is guilty. Similarly, CALJIC 2.90 defines reasonable doubt as “that state of the case which . . . leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (CALJIC. No. 2.90.) The flip side of that is the jury may find the defendant guilty if it “feel[s] an abiding conviction of the truth of the charge.” (Ibid., italics added.) That is essentially what the prosecutor argued.
Defendant is correct that “abiding” generally refers to duration. His counsel emphasized this when he told the jury “[a]biding is that which withstands the test of time. It lasts and lasts[] [¶] . . . . [like] antique furniture . . . [through which] no light comes through . . . .” But he neglects to explain how “[t]he prosecution’s statements trivialized its burden and erased the requirement that the jury believe it will be convinced over time,” particularly after his counsel had just defined “abiding” for the jury. His failure to provide a substantial argument or cite to authority waives the contention. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1364, fn. 6.)
(2) Denigration of Counsel and Intemperate Remarks
Defendant asserts the following statements by the prosecutors “attack[ed] the integrity of, or cast[] aspersions on, [his] counsel” by improperly implying he fabricated a defense:
(1) “And you heard a lot of evidence and you heard a lot of testimony in this courtroom and some of it—some of what you heard in this courtroom—let me say it like this, attempts have been made to lead you away from the simple truth during this trial . . . .”
(2) “And like I said, there have been attempts to lead you away from that simple truth [of what happened to Mareena]. That’s unfortunate. [¶] That is an unfortunate part of the system. I can’t do anything about that.”
(3) “Th[e] constitutional right to . . . [a] jury exists no matter how guilty you are[.] Defendant . . . got his day in court. He got excellent, zealous representation. Now the show is over.
(4) “The finale. [Defense expert Dr.] Ronald Gabriel. Findings contradict[] all experts. That was an effort to confuse. Brain herniation, old bleeds in the brain. How are we going to prove them otherwise? Call in another expert to look at the stains again. Nonsense. The show’s got to end at some point.”
(5) “Ping pong purpose or PQ [cubed] PPP . . . . Hopefully if you put on enough experts and go back and forth you’ll forget what the prosecution’s expert said in the beginning because enough time has passed so you’re just going to forget whatever they say, which I understand, and forget the prior testimony, be confused and throw your hands up and give up and say if the experts can’t figure it out, neither can I.”
(6) “Confuse. Confuse. Confuse.”
(7) “That [district attorney investigator] Fuentes was scooting and touching the defendant’s lap as if the defendant was afraid of being molested so he somehow had to make something up before he got raped right there. All the tricks.”
(8) “[A]t 8:00 by phone records we’ve got the defendant calling his mommy. Yup, his mom. Now, when his child had a seizure he threw the child in the car raced by his mommy and then went to the hospital, but this was even worse.”
A prosecutor commits misconduct by “accus[ing] defense counsel of fabricating a defense,” suggesting defense “counsel is free to deceive a jury,” or otherwise attacking the integrity of defense counsel. (People v. Hill, supra, 17 Cal.4th at p. 832; People v. Bemore (2000) 22 Cal.4th 809, 846.) But at the same time, a prosecutor may “vigorously attack” the deficiencies in the defense case and factual account as long as the attack is supported by the evidence. (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) “‘The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence [and] . . . to argue on the basis of inference from the evidence that a defense is fabricated . . . .’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 430.) “An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper. [Citation.]” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.)
For example, the California Supreme Court has upheld statements by prosecutors to the jury that defense counsel’s job was to “create straw men” and to “put up smoke” and “red herrings” (People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003) and that a “heavy, heavy smokescreen . . . has been laid down [by the defense] to hide the truth from you” (People v. Marquez (1992) 1 Cal.4th 553, 575-576). It has also ruled that a prosecutor’s comment accusing the defense of attempting to hide the truth, and his argument employing an “‘ink from the octopus’” metaphor were not misconduct because “the context was such that the jury certainly would understand it to be nothing more than urging [it] not to be misled by defense evidence.” (People v. Cummings, supra, 4 Cal.4th at p. 1302, fn. omitted.)
We reach a similar conclusion here. The above comments reflect the prosecutor did nothing more than attack the defense evidence and arguments and point out the defense was trying to confuse the issues.
People v. Hill, supra, 17 Cal.4th at p. 832, cited by defendant, is inapposite. The prosecution there called defense counsel “unprofessional” and “contemptuous” in front of the jury, accused him of “unabashedly . . . defam[ing]” a witness, audibly laughed during counsel’s examination of two witnesses, and made faces at him. (Id. at p. 833.) None of the comments here were remotely similar.
b. Misconduct in Cross-Examining Defendant’s Experts
Defendant’s final claim of misconduct is that during cross-examination of defense experts, the prosecutor was argumentative, improperly testified, cited facts not in evidence, and misstated witness testimony. We find no prejudicial error.
We agree some of the prosecutor’s questions were argumentative, such as when the prosecutor asked one defense expert, “You’re not well-received by the prosecutors in your own county, though, are you?”; and, immediately after an objection was sustained to that question, “When you were speaking at the prosecutors’ seminar, did you take time to insult their intelligence during the video?” “An argumentative question is a speech to the jury masquerading as a question” and “is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (People v. Chatman (2006) 38 Cal.4th 344, 384.) Instead, it “essentially talks past the witness” and is “designed to engage the witness in argument” or argue directly to the jury. (Ibid.; People v. Guerra (2006) 37 Cal.4th 1067, 1125.) The above questions fit within that definition.
Nevertheless, a party “generally is not prejudiced by question to which an objection has been sustained.” (People v. Mayfield (1997) 14 Cal.4th 668, 755.) As defendant acknowledges, the court sustained objections to the above questions and two others he claims were argumentative and assumed facts not in evidence: “Well, you do know [who was involved in the defendant’s case] because you reviewed their reports and/or their transcripts, right?”; and, a few questions later, “So when you review defense experts’ reports and their transcripts, do you have any ethical concern about giving testimony in a case where the same side is going to contradict your opinion?” It also sustained defense objections to two questions on the ground the prosecutor was testifying: “So after the movie you’re aware that [Mareena] then goes home and takes a late nap because she didn’t get her earlier nap, right?”; and “whether [another expert] was aware that every expert had agreed that [the subgaleal region is] the scalp.” The court did not abuse its discretion in sustaining the objections. Thus, although the prosecutor should have abstained from asking improper questions, defendant was not prejudiced by them.
Defendant’s failure to object or request an admonition with regard to the five remaining questions he cites as improper waives his challenges on appeal. (People v. Cooper (1991) 53 Cal.3d 771, 822.) In any event, they lack merit.
The court ameliorated any prejudice resulting from the question about abusive head trauma when it immediately stopping the prosecutor and asked her to restate the question. This “kept the cross-examination properly focused on relevant facts” by not “permit[ting] the prosecutor to engage defendant in an argument . . . .” (People v. Mayfield, supra, 14 Cal.4th at p. 755.)
Other examples of assertedly improper questioning include asking one expert whether a football person would have to be cut open in order to determine whether he had axonal injuries; “arguing” with a second expert “about whether he had read a case study” and “misstating” his testimony about a three-year-old child “chewing M&M’s with some chocolate going down the face” as indicating she was “suffering some kind of injury”; and asking a third expert to assume another expert was a neuropathologist, a hypothetical defendant contends was unsupported by the evidence.
All of these fell within the realm of acceptable cross-examination. “A party ‘may cross-examine an expert witness more extensively and searchingly than a lay witness, and the prosecution was entitled to attempt to discredit the expert’s opinion. [Citation.]’” (People v. Wilson (2005) 36 Cal.4th 309, 358.) To this end, “‘a prosecutor may bring in facts beyond those introduced on direct examination in order to explore the grounds and reliability of the expert’s opinion. [Citations.]’ [Citation.]” (People v. Loker (2008) 44 Cal.4th 691, 739.)
Finally, even if the prosecution’s questions and comments suggested the defense experts were not credible, “they were not so deceptive or reprehensible as to render defendant’s . . . [trial] a denial of due process.” (People v. Alfaro (2007) 41 Cal.4th 1277, 1329.) Moreover, the jury was instructed that the statements of counsel are not evidence (CALJIC No. 1.02) and that it must “decide all questions of fact in this case from the evidence received in this trial and not from any other source.” (CALJIC No. 1.03.) The trial court instructed: “Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence . . . .” (CALJIC No. 1.02.) We presume the jury understood and followed the instructions. (People v. Mooc (2001) 26 Cal.4th 1216, 1234.) There is no reasonable likelihood that the jury construed or applied the challenged questions in an improper or erroneous manner. (People v. Frye, supra, 18 Cal.4th at p. 970.)
4. Presentence Conduct Credit
Defendant contends the court erred in refusing to award him presentence custody credits. We disagree.
Section 2933.2 precludes the award of presentence conduct credits for “any person who is convicted of murder.” (§ 2933.2, subds. (a), (c).) The statute provides a “complete ban on sentence credits for convicted murderers.” (People v. McNamee (2002) 96 Cal.App.4th 66, 70, 71 (McNamee).) It also does not allow presentence conduct credit against sentences for other offenses for which the defendant may have been simultaneously convicted. (People v. Wheeler (2003) 105 Cal.App.4th 1423, 1432.)
Defendant acknowledges he was convicted of second degree murder, but maintains the statute does not apply to him because his sentence on the murder count was stayed under section 654. He relies on In re Phelon (2005) 132 Cal.App.4th 1214 (Phelon). There, the defendant was convicted of kidnapping with intent to commit rape, assault with intent to commit rape, assault by means of force likely to produce great bodily injury, and making criminal threats. He received an 11-year sentence on the kidnapping charge, and the remainder of the sentence was stayed pursuant to section 654. The court awarded credits under section 4019 for his presentence time in local custody.
The Department of Corrections took the position that because the defendant had been convicted of violent felonies, worktime credits were limited to 15 percent under section 2933.1, subdivision (a). The court held, “Under [In re] Reeves [(2005) 35 Cal.4th 765], petitioner’s postsentence credits should not be limited by section 2933.1[, subdivision] (a) because his sentences on the qualifying violent offenses were stayed pursuant to section 654. The sentence that petitioner is actually serving is not one that qualified as a violent offense at the time it was committed.” (Phelon, supra, 132 Cal.App.4th at p. 1219.) It further held presentence credits were not limited as a result of convictions where punishment was stayed under section 654. (Id. at p. 1221.)
The Attorney General argues, and we agree, that Phelon was wrongly decided. First, Phelon accepted the parties’ stipulation Reeves was “determinative” of the postsentence credit issue. (Phelon, supra, 132 Cal.App.4th at p. 1218.) This was error because Reeves did not involve a sentence stayed pursuant to section 654. “[I]t is axiomatic that cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Second, and more importantly, although Phelon acknowledged that “specific statutory authorization” may allow for exceptions to section 654 (Phelon, supra, 132 Cal.App.4th at p. 1220), it failed to consider whether section 2933.1, subdivision (a) could be considered an exception to section 654.
To determine whether the language in the statute at issue here creates such an exception, we look to the reasoning of People v. Benson (1998) 18 Cal.4th 24 (Benson), which held that convictions stayed under section 654 nevertheless could be considered strikes within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). (Benson, supra, 18 Cal.4th at pp. 26-27.) Benson began with the plain language of section 1170.12, subdivision (b): “‘Notwithstanding any other provision of law . . . a prior conviction of a felony shall be defined as: [¶] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. . . . None of the following dispositions shall affect the determination that a prior felony conviction is a prior felony . . .: [¶] . . . [¶] (B) The stay of execution of sentence.’ [Citation.]” (Benson, supra, 18 Cal.4th at p. 28.) According to Benson, the italicized portions of the statute make clear the intent to include convictions for which sentence had been stayed as prior convictions for purposes of the Three Strikes law. (Benson, supra, 18 Cal.4th at p. 31.)
Here, section 2933.2, subdivision (a) is not quite as explicit as the statute at issue in Benson. Although it states, “Notwithstanding . . . any other law,” it does not go on to specify that stayed sentences shall not affect the application of the statute. Nevertheless, the question is whether the language of the statute is clear and unambiguous, not whether it could possibly have been even more explicit. As Benson noted, previous decisions had held that the Legislature need not expressly reference section 654 to create an exception to the general rule precluding multiple punishment under that section. (Benson, supra, 18 Cal.4th at p. 32; see also People v. Hicks (1993) 6 Cal.4th 784, 791-792 [Legislature not required to cite § 654 in § 667.6]; People v. Ramirez (1995) 33 Cal.App.4th 559, 573 [“A statute which provides that a defendant shall receive a sentence enhancement in addition to any other authorized punishment constitutes an express exception to section 654”]; People v. Powell (1991) 230 Cal.App.3d 438, 441 [Health and Safety Code § 11370.2 authorizing “‘double punishment’ . . . ‘in addition to any other punishment authorized by law’” prevented section 654 from applying although not expressly mentioned in statute].)
McNamee, supra, 96 Cal.App.4th 66 held “the language of section 2933.2, subdivision (c) is broad and evidences an intention to impose a complete ban on presentence conduct credits for those defendants who come within its purview. Subdivision (c) states that, notwithstanding section 4019 ‘or any other provision of law,’ no presentence conduct credits may be earned by a person convicted of murder. That language reflects an intent to supersede any and all provisions of law that might support an award of presentence conduct credits.” (McNamee, supra, 96 Cal.App.4th at p. 70.) We conclude the language of section 2933.2, subdivision (a) similarly evinces an intent to preclude presentence conduct credits to anyone convicted of murder, even if that sentence is stayed pursuant to section 654.
5. Abstract of Judgment
Although defendant was convicted of second degree murder, the abstract of judgment states he was convicted of first degree murder. The Attorney General concedes, and we agree, this was error. The abstract of judgment must be correct to show the conviction for second degree murder.
DISPOSITION
The trial court is directed to prepare and amended abstract of judgment reflecting the second degree murder conviction and forward a certified copy to Department of Corrections and Rehabilitation, the Division of Adult Operations. In all other respects, the judgment is affirmed.
WE CONCUR: SILLS, P. J., O’LEARY, J.