Opinion
A130754
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT E. HARDIG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City and County of San Francisco Super. Ct. No. 211635)
Defendant Robert Hardig entered a guilty plea to one count of second degree burglary and one count of passing a counterfeit bill. He was denied day-for-day presentence conduct credits due to a prior conviction for the serious and violent felony of attempted carjacking. We hold that there is no requirement a prior disqualifying conviction must be pleaded or proved to deny a defendant one-for-one presentence conduct credits that would otherwise be awarded under Penal Code section 2933. Thus, we affirm.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Hardig was charged in an information with three felonies: second degree burglary, passing a counterfeit bill and possessing a counterfeit bill; and two misdemeanors: battery and possession of another's personal identification. The information also contained allegations that Hardig's sentence should be enhanced because he served two prior terms in state prison. One was for forgery and the other was for possession of a deadly weapon. Pursuant to negotiation, he entered a guilty plea to the second degree burglary and passing counts, and the remaining allegations were stricken or dismissed.
On December 21, 2010, Hardig was sentenced to the two-year midterm for the burglary and a consecutive eight-month term for the passing charge, along with applicable fines and fees. At sentencing, Hardig argued that he was entitled to presentence day-for-day conduct credits. The district attorney advised the court that Hardig was ineligible for day-for-day credits because he had a prior conviction in 1998 for the serious and violent felony of attempted carjacking. The court denied Hardig day-for-day credits over his objection that he remained eligible for credits because the prior conviction was neither pleaded nor proven. He was awarded 329 days of credit for time served and an additional 164 days of conduct credit. He timely appealed.
DISCUSSION
Pursuant to the version of sections 2933 and 4019 in effect at the time of Hardig's sentencing, a defendant otherwise eligible for an award of day-for-day conduct credits was limited to one day for every three days served if the defendant was required to register as a sex offender, convicted of a serious felony, or had a prior serious or violent felony conviction. (§§ 2933, subd. (e)(3), & 4019, as amended by Sen. Bill No. 76 (2010 Reg. Sess.) ch. 426.)
Hardig claims that he was eligible for the day-for-day credits that may be earned under section 2933 because his prior conviction for the serious and violent felony of attempted carjacking was neither pleaded nor proven by the prosecution. We disagree. There is no requirement for the prosecution to plead and prove a defendant's ineligibility for day-for-day credits.
We disagree with those courts that have identified a pleading and proof requirement. (See, People v. Jones (2010) 188 Cal.App.4th 165, rev. granted December 15, 2010, S187135; People v. Lara (2011) 193 Cal.App.4th 1393, rev. granted May 18, 2011, S192784.) As we shall explain, we do not consider a defendant's inability to earn enhanced credits to be a form of increased punishment.
There is no constitutional right to sentence reduction credits. (Wolff v. McDonnell (1973) 418 U.S. 539, 557 [94 S.Ct. 2963; 41 L.Ed. 2d 935].) They are a statutory creation that the legislature has declared to be a privilege, not a right. (§ 2933, subd. (c).) Credits must be earned and are subject to forfeiture in certain circumstances. (Ibid.)Though credits may not be taken away without minimal procedural protections (Wolff v. McDonnell, supra, 418 U.S. at p. 558), they may be lost as a consequence of misbehavior (§ 2932). There is no guaranty or entitlement to credits awarded for conduct or work time, and the legislature has determined that prisoners with certain histories like Hardig's should not earn them at the same rate as others. (Former § 4019 (Jan. 2010), subds. (b)(1) & (c)(1) as amended by Stats. 2009 Ex. Sess., Ch. 28, sec. 50; Sen. Bill No. 76 (2010 Reg. Sess.) ch. 426.) Nothing about the sentence reduction credit scheme convinces us that the prosecution must plead and prove a prisoner's ineligibility for day-for-day presentence conduct credits.
To argue otherwise, Hardig relies upon People v. Lo Cicero (1969) 71 Cal.2d 1186 (Lo Cicero). In Lo Cicero, the court considered whether the prosecution was required to plead and prove a defendant's prior convictions when their effect was to render the defendant ineligible for probation. (Id. at p. 1192) Relying, in part, upon its earlier opinion in People v. Ibarra (1963) 60 Cal.2d 460, the court concluded that since the effect of the prior offenses upon Lo Cicero was the equivalent of an increase in the penalty for the crime, they must be pleaded and proven. (Lo Cicero, supra, 71 Cal.2d at p. 1193.) Because Lo Cicero was no longer eligible for probation, he was required to serve his sentence in prison.
In People v. Ibarra, supra, 60 Cal.2d 460, the court held that a prior conviction allegation must be pleaded and proven when its effect was to bar the defendant from eligibility for a narcotics treatment program as an alternative to incarceration. (Id. at pp. 466-468.) Thus, both Ibarra and Lo Cicero impose the pleading and proof requirement when the prior conviction renders the defendant ineligible for an alternative to state prison.
Hardig's prior offense neither increases his sentence nor compels his incarceration; rather, it disqualifies him from receiving the privilege of day-for-day presentence credits extended to some prisoners by the legislature. These are differences of substance from Ibarra and Lo Cicero that dispel any need to plead or prove Hardig's prior offense.
It is exclusively within the province of the legislature to define crimes and fix penalties. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631; People v. Rhodes (2005) 126 Cal.App.4th 1374, 1385.) The Penal Code requires that prosecutors plead and prove sentence enhancements. (§ 1170.1, subd. (e).) An enhancement is "an additional term of imprisonment added to the base term." (Cal. Rules of Court, rule 4.405(3); People v. Hernandez (1988) 46 Cal.3d 194, 207-208.) The reason for the pleading and proof requirement is simple. A defendant is entitled to notice that the prosecution is seeking enhanced punishment for a crime and should have an opportunity to defend against it. (People v. Wandick (1991) 227 Cal.App.3d 918, 926; People v. Neal (1984) 159 Cal.App.3d 69, 72-73.) Indeed, the federal constitutional rule to determine what must be pleaded and proven by the prosecution similarly focuses on facts that increase the punishment for a crime beyond the statutory maximum. (Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856; 166 L.Ed. 2d 856].)
A defendant's credit earning status due to prior crimes does not lengthen a base term of imprisonment or the statutory maximum. For credit calculation purposes, prior convictions may affect the length of a defendant's incarceration, but do not do so in a way that exceeds or extends the statutorily prescribed penalty. We simply do not agree with Hardig's fundamental premise that his punishment is increased because he is ineligible for enhanced credits allowed under section 2933. Both sections 2933 and 4019 operate to decrease the time defendants must spend in prison, albeit more for some than others. It seems odd at best that we would consider them an "increase" in punishment. Moreover, when the legislature determines a credit earning limitation must be pleaded and proved, it says so. (§ 1170.12 [when a prior serious or violent felony is pleaded and proven, defendant's credit against time in prison is limited to one-fifth of the term].) It has not said so in sections 2933 or 4019. Neither California law nor the United States Constitution require that a defendant's prior crimes be pleaded or proven to establish a defendant's eligibility to earn presentence reduction credits.
DISPOSITION
The judgment is affirmed.
Siggins, J. We concur: Jenkins, J. McGuiness, P.J.