Cooper

Certified for Partial Publication. [1]

Defendant was charged with the murder of his wife, and the jury found him guilty of second degree murder. [2] In the unpublished portion of this opinion we discuss defendant's assertion that the trial court should have instructed the jury on the lesser included offense of voluntary manslaughter. In the published portion we review whether the trial court miscalculated defendant's sentencing credits. We conclude that the sentence must be modified but the conviction otherwise affirmed.

Defendant was sentenced under Penal Code [6] section 190 to 15 years to life. At the time of the offense, section 190 allowed prisoners convicted of murder to earn custody credits so as to reduce their minimum term. Subdivision (a) of section 190 provided: "Except as provided in subdivision (b) [relating to murder of a peace officer], Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term of 15, 20, or 25 years in the state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time." (As amended by Stats.1993, ch. 609, § 3, p.…