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Filed05/16/01

CERTIFIED FOR PARTIAL PUBLICATION*

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.  Robert J. Perry, Judge.  Affirmed with modifications.

            Boyce & Schaefer, Robert E. Boyce, Laura Schaefer, 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, Susan D. Martynec, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.

I.  INTRODUCTION

            Defendant, Bronson Ly, appeals from his convictions for first degree murder (Pen. Code,[1] § 187, subd. (a)) and arson.  (§ 451, subd. (b).)  Defendant argues the trial court improperly:  denied his motion made pursuant to People v. Wheeler (1978) 22 Cal.3d 258, 276-277; intruded upon the secrecy of the jury deliberations; and denied presentence custody credits.  The Attorney General concedes that the trial court should have awarded presentence custody credits.  In the published portion of the opinion, we discuss defendant’s right to presentence conduct credits for a murder committed on February 27, 1996.  We affirm the judgment as modified.

II.  FACTUAL BACKGROUND

            We view the evidence in a light most favorable to the judgment.  (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.)  On February 27, 1996, defendant’s home burned as the result of arson.  Although defendant escaped, his son, Long, perished in the fire.  Defendant left the United States for Bangkok, Thailand on March 1, 1996.  An investigation revealed that the fire was set in four places by the spread of gasoline.  The gasoline was ignited by a water heater.  On June 10, 1994, defendant had purchased life insurance policies on the lives of his two adult sons, Binh and Long, for $100,000 each with an additional $25,000 accidental death benefit.  The final payment on the policies was made February 12, 1996.  However, the payment was reversed because of an insufficient funds check.  The check was redeposited on February 24, 1996. 

III.  DISCUSSION

[Parts III. A.-B. and the heading for part III. C. are deleted from publication.

See post at page 15 where publication is to resume.]

            A.  Peremptory Challenges

            Defendant argues that the trial court improperly denied his Wheeler motion.  Defendant further argues that the prosecutor’s exercise of peremptory challenges to exclude four Asian female jurors was improper.  When jury selection occurred, the prosecution was seeking the death penalty.

                        1.  Factual and procedural background

            During jury selection, defense counsel made a motion pursuant to People v. Wheeler, supra, 22 Cal.3d at page 287, arguing that the prosecutor had impermissibly used peremptory challenges to exclude three Asian female prospective jurors.  The trial court noted that prospective juror No. 27 had indicated that it would be very difficult to vote for the death penalty.  The trial court further noted that juror No. 19 had indicated that she thought she could impose the death penalty.  However, the trial court did not think that she was absolutely sure she could do so.  The trial court further noted:  “I acknowledge the point that we have three Asian females.  I don’t really count 27, though because of the reference I have stated.  So that leaves us with 19 and 43.  [¶]  And I just think that that is hardly enough to make a prima facie case on.  We have a wide mixture of races in this jury.  [¶]  I acknowledge the fact that the defendant is Vietnamese.  We lost at least one Vietnam [sic] person to her saying that she would not be able to sit on this case because it is a death penalty case early on.  [¶]  But I don’t know of many other Vietnamese extraction individuals here.  I am reluctant to declare a prima facie case although it is kind of close, I must say.”  Thereafter, the trial court asked whether the prosecutor would care to, “add to the record as to 19 and 43?” 

            The prosecutor stated that prospective juror No. 19 “waffled” back and forth between whether she could ever impose the death penalty.[2]  However, the prosecutor did not challenge her for cause “because of the numbers.”  The prosecutor further explained that with respect to prospective juror No. 43:  “[T]he People just felt that the jurors coming up on the list, because the way the court does it, are much more acceptable to us than her.  [¶]  She is extremely well educated as compared with the rest of the jurors on there.  We were concerned that that might alienate her from the rest of the jury.”  Thereafter the trial court found:  “Well, I am accepting that as an objective reason for her excusal.  I thought her answers were otherwise acceptable, though.  [¶]  It is a close one for me but I am going to allow this voir dire to go forward.  [¶]  I do not think that her ethnicity played a major role in [the prosecutor’s] excusal and I do think we have, as I said before, a wide range and mix of all varieties of individuals.” 

            Prospective juror No. 56 indicated on voir dire:  “I think that I could make a decision giving the death or life in prison, but that the evidence has to be really, really like overwhelming.”  When the trial court pointed out that overwhelming is different than substantial, prospective juror No. 56 stated:  “I don’t think I could. . . .  [¶]  . . . I’m in between.”   Following the prosecutor’s challenge of prospective juror No. 56, another Asian, defense counsel again made a Wheeler motion.  The trial court made a prima facie finding on the challenge.  The trial court inquired of the prosecutor’s reasoning.  The prosecutor explained that the response of prospective juror No. 56 regarding the death penalty indicated:  “[S]he believes in the death penalty but would need overwhelming evidence in order to impose the death penalty.  [¶]  I believe that that is not the law and would require the People to have a burden [other] than required by law.”  The trial court accepted that reason as valid.  

                        2.  The Wheeler motions were properly denied

            The California Supreme Court has held that the exercise of peremptory challenges to eliminate prospective jurors on the basis of race violates the state Constitution.  (People v. Williams (1997) 16 Cal.4th 635, 662-663; People v. Alvarez (1996) 14 Cal.4th 155, 192-193; People v. Turner (1994) 8 Cal.4th 137, 164; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.)  A defendant who contends the prosecution has excused prospective jurors for impermissible reasons, has the burden of establishing “a prima facie case of purposeful discrimination.”  (People v. Williams, supra, 16 Cal.4th at p. 663; accord, People v. Mayfield (1997) 14 Cal.4th 668, 723; People v. Arias (1996) 13 Cal.4th 92, 134-135.)  The California Supreme Court has held that there is a presumption that a prosecutor uses peremptory challenges in a constitutional manner.  (People v. Alvarez, supra, 14 Cal.4th at p. 193; People v. Turner, supra, 8 Cal.4th at p. 165; People v. Clair (1992) 2 Cal.4th 629, 652.)  However, once a prima facie case is found, the burden shifts to the prosecution to show the absence of purposeful discrimination.  (People v. Alvarez, supra, 14 Cal.4th at p. 197; People v. Wheeler, supra, 22 Cal.3d at pp. 281-282.)  The California Supreme Court has held:  “[A]dequate justification by the prosecutor may be no more than a ‘hunch’ about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias and not simply as a ‘mask for race prejudice’ [citation].”  (People v. Williams, supra, 16 Cal.4th at p. 664; People v. Turner, supra, 8 Cal.4th at p. 165.)

            We utilize the substantial evidence standard of review in passing upon the trial court’s ruling on a Wheeler motion.  (People v. Alvarez, supra, 14 Cal.4th at p. 196; People v. Jackson (1992) 10 Cal.App.4th 13, 18-23.)  We also view the trial court’s ruling with great deference because its personal observations are critical to distinguishing bona fide reasons for the peremptory challenge from “sham excuses.”  (People v. Jones (1998) 17 Cal.4th 279, 294; People v. Montiel (1993) 5 Cal.4th 877, 909; People v. Turner, supra, 8 Cal.4th at p. 165; People v. Howard (1992) 1 Cal.4th 1132, 1155; People v. Fuentes (1991) 54 Cal.3d 707, 714; People v. Wheeler, supra, 22 Cal.3d at p. 282; People v. Walker (1998) 64 Cal.App.4th 1062, 1067 [circumstances prompting the exercise of a peremptory challenge may often be subtle, visual, incapable of being transcribed, subjective, and even trivial].)  We conclude that the trial court could properly determine that no prima facie case for purposeful discrimination was demonstrated with respect to prospective jurors Nos. 19, 27, and 43.  The trial court’s denial of the Wheeler motions was within the proper exercise of judicial discretion.  The trial court did not find a prima facie case as to prospective juror No. 27.  Prospective juror No. 19 had a great deal of difficulty explaining whether she could vote to impose the death penalty.  The prosecutor excused prospective juror No. 43 because the remaining jury pool contained more promising candidates and she appeared to be more educated than the existing panel.

            The trial court revisited its determination regarding the prosecutor’s use of a peremptory challenge as to prospective juror No. 43 later in the trial.  The trial court noted that the ethnicity of all peremptory challenges exercised by the prosecution included Hispanics, Blacks, Asians, Caucasians, and females.  The trial court added that both the prosecutor and defense counsel exercised a predominant number of challenges toward female prospective jurors.  The trial court recounted that the prosecutor excused prospective juror No. 43 based on composition.  The prosecutor indicated that the challenge was also based upon the prospective juror’s education level.  While admitting that others on the panel had a master’s degree as prospective juror No. 43 did, the prosecutor stated he was concerned that she might have been “a little bit too intelligent for the rest of the panel.”  Although the trial court did initially find a prima facie case as to prospective juror No. 56, it also found her equivocal views on the death penalty a valid reason for the exercise of the challenge.

            The trial court made a sincere and reasoned effort to evaluate the prosecutor’s reasons for the exercise of peremptory challenges, heard argument from both counsel, and denied the motion on specific findings.  However, where a trial court asks for explanation after indicating it has questions about the defense’s prima facie showing, “The court’s expression of doubt negates any inference that it made an implied finding either way about the existence of a prima facie case.”  (People v. Arias, supra, 13 Cal.4th at p. 135; People v. Davenport (1995) 11 Cal.4th 1171, 1200-1201.)  In fact, the California Supreme Court has held that when the record demonstrates that the trial court has merely asked the prosecutor for justifications to make a complete record rather than finding a prima facie case, the appellate court need not review the adequacy of the justification.  (People v. Welch (1999) 20 Cal.4th 701, 746; People v. Turner, supra, 8 Cal.4th at p. 167.)  When a trial court determines that no prima facie case has been made, the following rules apply on appeal:  “‘[T]he reviewing court considers the entire record of voir dire.  [Citation.]  “If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question,”’ we reject the challenge.  [Citation.]”  (People v. Welch, supra, 20 Cal.4th at p. 746, quoting People v. Davenport, supra, 11 Cal.4th at p. 1200.)  Once it was satisfied with the reasons given, the trial court was not obligated to conduct further inquiry into the prosecutor’s race-neutral explanations regarding prospective juror Nos. 19, 27, and 43.[3]  (People v. Jackson (1996) 13 Cal.4th 1164, 1197-1198; People v. Johnson (1989) 47 Cal.3d 1194, 1218.)  In so finding, we disagree with both defendant and the Attorney General that an implied prima facie finding can be presumed from the facts in this case.  No Wheeler error occurred.  (People v. Welch, supra, 20 Cal.4th at p. 746; People v. Turner, supra, 8 Cal.4th at p. 168.)

            B.  Deadlocked Jury

            Defendant argues that the trial court improperly pressured minority jurors and intruded on the secrecy of the jury deliberations. 

                        1.  Factual and procedural background

            Jury deliberations began on Friday, August 27, 1999.  On September 1, 1999, the trial court received a note from the jury, which indicated:  “We are deadlocked on count 2 [arson] therefore unable to move on to count 1 [murder] because we do not have an arsonist.  Have already tried to deliberate an additional two days and still come back with a deadlock.”  The trial court asked juror No. 2, the foreperson, whether he believed any additional readback would be helpful in moving the jury to a unanimous verdict.  The foreperson responded:  “Trust me when I say this.  No.  [¶]  The jury is firm in that and has had individual thoughts.”  The trial court then inquired whether the foreperson believed that the jurors were fairly deliberating on the evidence or whether they were letting emotion or sympathy play a role in the deliberations.  Juror No. 2 responded, “In my opinion I think the emotion is playing a factor and guilt, is playing a factor in my opinion -- ”  When the trial court inquired about what “guilt” meant, juror No. 2 stated:  “The juror feels that based on the decision that person makes, two weeks later, as expressed -- two weeks later, that juror doesn’t want to feel that that person made a poor decision and feel guilty about that.”  The trial court then reiterated that the standard of proof was proof beyond a reasonable doubt.  The trial court explained, “The law requires that the jurors and every individual juror have a comfort level with their decision that is a lasting comfort; in other words, five years, ten years from now they can be sure they made the right decision.” 

            The trial court then asked juror No. 5 if he believed the jury was focusing on the evidence or emotion and sympathy.  Juror No. 5 indicated that he did not believe the jurors were resting their decision on matters outside the record.  The trial court stated:  “It sometimes happens that we have jurors that fail to deliberate on the evidence, they take a stand and they say I don’t care what anybody else says, I won’t consider other opinions, this is where I am standing.  And that is sometimes deemed to be a failure to deliberate, particularly causing problems when they are not taking a stand on the evidence but on something that is not appropriate; for instance, sympathy or bias or prejudice.  [¶]  Do you sense anything like that is going on, juror number five?”  Juror No. 5 responded negatively.  Juror No. 5 stated he did not believe that the reading of specific testimony would make any difference.  However, juror No. 5 did indicate that further clarification of the instructions regarding circumstantial evidence and inferences that can be drawn might be helpful. 

            The trial court moved on to juror No. 4, who believed that the jurors had fairly reviewed all of the evidence.  However, he indicated that he could not say for sure that emotion was not part of the problem.  The trial court then asked juror No. 11 if she thought the jurors were fairly deliberating on the evidence.  She answered negatively.  Juror No. 11 believed that the jurors were not looking logically at the evidence.  The trial court then stated:  “I would encourage all of you to take to heart that you have taken an oath to judge this case on the evidence without regard for bias, sympathy or emotion.  It is sometimes difficult to do.  But it is important for you to live up to your oath.”  Following further interaction with juror No. 11 regarding human nature, the trial court stated:  “We ask people to try to focus, though, on the evidence and to be fair in their judging of the evidence. . . .  [¶]  . . . To keep an open mind and to consider the opinions of the other jurors.  Not necessarily relinquish their own but at least to consider their opinions.  [¶]  It is hoped that the dynamics of the group interaction will ultimately lead to a verdict.”  When the trial court inquired of juror No. 12, he indicated that he did not believe the jury was hopelessly deadlocked.  He said:  “Well, I just tend to believe, my own personal opinion, that people are not -- not being open to the evidence at hand to consider it fairly.”  The trial court indicated that it was troubled by the remarks of juror Nos. 11 and 12. 

            The trial court inquired of juror No. 7.  Although juror No. 7 believed the jury was hopelessly deadlocked, he indicated that more instructions on the law regarding jurors’ “feelings” and the outcome of the case might assist them.  The trial court emphasized:  “This stage of the case is only focusing on guilt or innocence.  And that’s it.  Nothing more, nothing less.  [¶]  And you’ve got to look at the evidence and ask yourself, gee, am I making the right decision?  And you want to think about what others are telling you, gee, yeah, maybe I should rethink this if others are of a different opinion than I am; what is it that they are basing their opinion on?  [¶]  Some of the instructions are -- they speak to this.  Oh, for instance, there’s 17.40.  and I am reading on page thirteen of your little booklet of instructions.  [¶]  ‘The People and the defendant are entitled to the individual opinion of each juror.  Each of you must consider the evidence for the purpose of reaching a verdict, if you can do so.  [¶]  Each of you must decide the case for yourself but should do so only after discussing the evidence and the instructions with the other jurors.  [¶]  Do not hesitate to change an opinion if you are convinced it is wrong.’  [¶]  Then it goes on[]to say:  [¶]  ‘Don’t decide a question just because a majority of the jurors or any of them favor a particular decision.’  [¶]  The next instruction also addresses some of these things we’re talking about:  ‘The attitude and conduct of jurors at all times are very important.  [¶]  It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict.’  [¶]  The reason for that is, you don’t want pride to get involved.  And this is the point that I [would] like to stress.  [¶]  Remember, you are not partisans or advocates, you are impartial judges of the facts.  You are to be a judge here.  You are not to be routing for one side or the other, you are to be a judge.  [¶]  Then at page 11 it says:  ‘In your deliberations the subject of penalty or punishment is not to be discussed.’”  The trial court reiterated  that the jurors should focus on the evidence and make a decision rather than thinking beyond that decision.  The trial court also further explained circumstantial evidence. 

            The trial court concluded with an admonition:  “Again, I am not telling you in any way how to decide this case.  I am expressing some concern based on statements by some of the members of this jury that one or more of you may be not viewing this evidence objectively; in other words, you are letting emotion cloud reason.  [¶]  Please don’t do that.  Please do your job as jurors to judge this case on the evidence.  [¶]  If this jury is hung, we’ll declare a hung jury.  I am not going to declare a hung jury right now.  I am going to ask you to keep deliberating today with my thoughts that I have expressed to you in mind and talk over again -- I know you have been doing it for a couple of days now -- but talk over some more what the evidence has shown and what the reasonable inferences are.  And please, everyone participate in the deliberations and focus on the evidence with the idea of reaching a just and appropriate decision in this case.  [¶]  Again, I am not telling you how you should decide.  I am not telling you, you have to come back with a unanimous verdict.  I am just asking you, please, to objectively view this evidence and to judge it in light of all of these instructions.” 

                        2.  Waiver

            Preliminarily, defendant’s failure to object to any of the trial court’s determinations that there was a reasonable probability that further deliberations could result in agreement, amounted to a waiver.  This entire issue has been waived and forfeited and is the subject of procedural default.  (See People v. Williams (1997) 16 Cal.4th 153, 250; People v. Garceau, supra, 6 Cal.4th at p. 173; People v. Saunders (1993) 5 Cal.4th 580, 589-591; People v. Neufer (1994) 30 Cal.App.4th 244, 254.) 

                        3.  The trial court did not abuse its discretion

            Notwithstanding that waiver, there was no coercion.  Section 1140 provides, “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.”  The California Supreme Court has held:  “‘The determination whether there is reasonable probability of agreement rests in the discretion of the trial court.  [Citations.]  The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment “in favor of considerations of compromise and expediency.”  [Citation.]’”  (People v. Sandoval (1992) 4 Cal.4th 155, 195-196, quoting People v. Breaux (1991) 1 Cal.4th 281, 319; see also People v. Proctor (1992) 4 Cal.4th 499, 539; People v. Pride (1992) 3 Cal.4th 195, 265; People v. Rodriguez (1986) 42 Cal.3d 730, 775.)

            In Proctor, the California Supreme Court emphasized:  “[T]he court may direct further deliberations upon its reasonable conclusion that such direction would be perceived ‘“as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.”  [Citation.]’”  (People v. Proctor, supra, 4 Cal.4th at p. 539, quoting People v. Miller (1990) 50 Cal.3d 954, 994; see also People v. Dennis (1998) 17 Cal.4th 468, 540.)  Nothing in the record suggests that the jury was coerced to reach a verdict.  The trial court did not express an opinion that a verdict should be reached.  Rather, the trial court randomly questioned various jurors about whether the jury was basing its deliberations on the evidence or emotion.  Based upon their responses, the trial court reemphasized that the jury should consider only the evidence presented at trial.  (People v. Dennis, supra, 17 Cal.4th at p. 540; People v. Proctor, supra, 4 Cal.4th at pp. 538-539.)  The trial court properly reread several instructions to assist the jury in further deliberations.  (People v. Miller, supra 50 Cal.3d at p. 994 & fn. 17; People v. Sheldon (1989) 48 Cal.3d 935, 958-959.)  The trial court could properly conclude there was a reasonable probability that the jurors could agree on a verdict.  No abuse of discretion, coercion, invasion of jury secrecy, or pressure on minority jurors occurred.

                        4.  Instruction with CALJIC No. 17.41.1

            Defendant argues that the trial court’s instruction with CALJIC No. 17.41.1 reinforced the coercive nature of the court’s inquiry.  CALJIC No. 17.41.1 was given as follows:  “The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions.  Accordingly, should it occur that any juror refuses to deliberate or expresses and intention to disregard the law or to decide the case based on penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediately advise the court of the situation.”  Several California courts have recently revisited the issue of jury nullification.  In People v. Fernandez (1994) 26 Cal.App.4th 710, 714, the court noted:  “Jury nullification, or the power to disregard the court’s instructions and the evidence presented and return a verdict of acquittal or a lesser charge, has been the subject of eloquent praise as an historical lynchpin of democracy and also the subject of heated debate concerning its propriety in modern jurisprudence.”  (Fn. omitted.)  However, the Fernandez court and others readily acknowledge that a trial court need not instruct the jury on the power of nullification.  (People v. Fernandez, supra, 26 Cal.App.4th at pp. 714-715; see also United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1136; People v. Miller, supra, 50 Cal.3d at p. 1009; People v. Dillon (1983) 34 Cal.3d 441, 487-488, fn. 39; People v. Baca (1996) 48 Cal.App.4th 1703, 1707.)  Furthermore, as was recently pointed out in People v. Cline (1998) 60 Cal.App.4th 1327, “Courts have long recognized that ‘a jury, in rendering a general verdict in a criminal case, necessarily has the naked power to decide all the questions arising on the general issue of not guilty; but it only has the right to find the facts, and apply to them the law as given by the court.’  (People v. Lem You (1893) 97 Cal. 224, 228 [] overruled on another ground in People v. Kobrin (1995) 11 Cal.4th 416, 427, fn. 7 [].)  Because juries have no right to disregard the court’s instructions, it is inappropriate to instruct juries on their power to nullify the law.”  (People v. Cline, supra, 60 Cal.App.4th at p. 1335, original italics; People v. Nichols (1997) 54 Cal.App.4th 21, 24-26.)

            With those precepts in mind, we turn to the instructions in question.  The California Supreme Court has held:  “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.  [Citations.]”  (People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 753; People v. Holt (1997) 15 Cal.4th 619, 677 [instructions are not considered in isolation].)  Much of CALJIC No. 17.41.1 reiterates other properly given instructions.  For instance, CALJIC No. 1.00 instructed the jury to follow the law as it was given to them by the trial court.  CALJIC No. 17.40 instructed the jurors to deliberate by discussing the evidence and instructions with the other jurors.  Finally, pursuant to CALJIC No. 1.03, they were instructed:  “You must not independently investigate the facts or the law or consider or discuss facts as to which there is no evidence.  [¶]  This means, for example, that you must not, on your own, visit the scene, conduct experiments, or consult reference works or persons for additional information.” 

            When the instructions are taken as a whole, there is no likelihood the jurors’ duty to find guilt beyond a reasonable doubt was undermined by CALJIC No. 17.41.1.  There was no likelihood the instructions as a whole misled the jurors.  Defendant’s contention to the contrary is without merit.  (See Boyde v. California (1990) 494 U.S. 370, 380; People v. Holt, supra, 15 Cal.4th at p. 677; People v. Burgener, supra, 41 Cal.3d at p. 541.)

            C.  Presentence Credits

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

            Defendant argues and the Attorney General concedes that the trial court improperly denied him any presentence credits pursuant to section 2933.2, subdivision (c).  Section 2933.2 precludes the award of any presentence custody credits following a conviction for murder.  However, the statute’s application is specifically limited to those offenses occurring after the date it became operative.  (§ 2933.2, subd. (d).)  Section 2933.2 became effective on June 3, 1998, following voter approval in the June 2, 1998, Primary Election.  The murder in this case occurred February 27, 1996.  Hence, section 2933.2 can have no effect on this case.  Defendant is therefore entitled to 724 actual days spent in custody prior to sentencing.  We disagree though with both defendant and the Attorney General regarding the amount of presentence conduct credits that must be awarded.  Both argue that defendant should be awarded 362 days pursuant to section 4019.  However, section 2933.1, subdivision (a), provides for the award of only 15 percent work time credits in cases of murder.  Section 2933.1 became operative on September 21, 1994.  (People v. Caceres (1997) 52 Cal.App.4th 106, 110; People v. Camba (1996) 50 Cal.App.4th 857, 862-867.)  Since the murder occurred after September 21, 1994, defendant’s first degree murder conviction involves a violent felony within the meaning of section 667.5, subdivision (c)(1) and he therefore is subject to the 15 percent limitation on presentence credits.  (See People v. Sylvester (1997) 58 Cal.App.4th 1493, 1495-1497; People v. Palacios (1997) 56 Cal.App.4th 252, 255, 258; People v. Ramos (1996) 50 Cal.App.4th 810, 817.)  For murders occurring on or after September 21, 1994, and before June 3, 1998, presentence conduct credits are awarded pursuant to section 2933.1, subdivision (a).  Defendant is entitled to 724 actual and only 108 days of conduct credits for a total of 832 days.

IV.  DISPOSITION

            The judgment is modified to reflect that defendant is to receive 832 days of presentence credits, consisting of 724 days of actual credit and 108 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:

            ARMSTRONG, J.

WILLHITE, J.*