Opinion
E053642 Super.Ct.No. FVA1001920
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. JESUS MORENO, Defendant and Appellant.
Brendan M. Hickey, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore and Douglas A. Fettel, Judges. Affirmed.
Brendan M. Hickey, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jesus Moreno appeals a ruling made by the trial court at his sentencing hearing, that his custody credits are limited under section 2933 and/or section 4019, because of his prior conviction for first degree burglary.
FACTUAL AND PROCEDURAL HISTORY
Following an incident on December 15, 2010, defendant was charged with criminal threats (count 1—Pen. Code, § 422) and resisting an executive officer (count 2—§ 69). The complaint further alleged defendant had previously been convicted of first degree burglary (§ 459) which qualified as a serious felony (§§ 667, subd. (a)(1)) and a strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The facts of the offense are not relevant to the issues raised on appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
Pursuant to a written plea agreement, defendant pled guilty on March 10, 2010, to count 2, resisting an officer, and all remaining counts and allegations were dismissed and stricken. Defendant was sentenced on May 19, 2011, to the middle term of two years in state prison. The court awarded conduct credit of 78 days for a total of 156 actual days served.
DISCUSSION
Defendant argues he is not disqualified under subdivision (e)(3) of section 2933 to earn presentence credits at the rate of one day for each day served under subdivision (e)(1) of section 2933, because a pleading and proof requirement is implied in section 2933. According to defendant, the prosecution did not plead and prove his disqualifying prior serious felony. Although he concedes the prosecution did allege the prior serious felony in the complaint, defendant argues it could not be used to render him ineligible for these credits, because he did not admit it, and it was stricken as a result of the plea agreement. Defendant therefore seeks reversal of the trial court's order and modification of his "total presentence credits."
Defendant made the same argument during his sentencing hearing, but the trial court concluded there was no pleading and proof requirement. In response to counsel's argument, the court stated as follows: "The probation report clearly reflects a prior conviction for [a] strike offense. Based on that, I am going to . . . follow the language of 2933 subsection (e)(3) and limit the credits in this to the so-called old credits under 4019[.]" Those have been computed by probation. The court later made the following finding: "Credits are being computed pursuant to Penal Code section 2933(e)(3) because of the defendant's prior strike conviction." The court's minutes for the sentencing hearing state presentence credits were allowed under section 4019 at the "old" rate of "1/3 time."
Preliminarily, we must disagree with defendant's contention the trial court could not use defendant's prior serious felony under subdivision (e)(3) of section 2933 to render him ineligible for credits under subdivision (e)(1) of section 2933, because the allegation was stricken as a part of the plea agreement. "[W]hen a court has struck a prior conviction allegation, it has not „wipe[d] out' that conviction as though the defendant had never suffered it; rather, the conviction remains a part of the defendant's personal history, and a court may consider it when sentencing the defendant for other convictions, including others in the same proceeding." (People v. Garcia (1999) 20 Cal.4th 490, 499.) Here, the plea agreement indicates the prior strike was stricken as part of the plea bargain to reduce defendant's overall prison sentence. There is nothing to indicate it was stricken for all purposes. The trial court was therefore entitled to consider the prior conviction for purposes of determining defendant's eligibility for these pre-sentence credits.
Defendant in this case pled guilty to an offense committed on December 15, 2010. Custody credit for offenses committed between September 28, 2010, and October 1, 2011, are governed by the provisions of sections 4019 and 2933 effective September 28, 2010. (§ 4019, subd. (g), eff. Sept. 28, 2010; § 4019, subd. (h), eff. Oct. 1, 2011; § 2933, subd. (e), eff. Sept. 28, 2010.) At the relevant time, subdivision (e)(1) of section 2933 read as follows: "Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, . . . from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner." However, section (e)(3) of section 2933 states in part as follows: "Section 4019, and not this subdivision, shall apply if the prisoner . . . has a prior conviction for a serious felony, as defined in Section 1192.7. . . ." During the relevant time period, section 4019 provided for presentence custody credits at the lower rate of two days for each six-day period of confinement. (§ 4019, subds. (b)-(c), (e).)
In our view, the trial court in this case correctly calculated defendant's presentence custody credits at the lower rate provided in subdivisions (b) and (c) of section 4019, effective September 28, 2010. We reach this conclusion, because there is no express or implied pleading and proof requirement under sections 2933 or 4019, and the probation report states defendant was previously convicted of a first degree burglary, which qualifies as a serious felony under subdivision (c)(18) of section 1192.7.
In support of his implied pleading and proof argument, defendant cites our Supreme Court's decision in People v. Lo Cicero (1969) 71 Cal.2d 1186. The statute at issue in Lo Cicero prohibited probation for a new narcotics offense if the defendant had previously been convicted of certain narcotics offenses. (Id. at pp. 1191-1192.) The defendant's previous conviction was not pled in the indictment, but he admitted it during cross-examination, and it was mentioned in a probation report. (Id. at p. 1192.) On appeal, the defendant argued he could not be barred from probation, because the prior conviction was not charged in the pleadings. (Ibid.) Although the statute did not expressly include a pleading and proof requirement for any prior narcotics convictions, our Supreme Court essentially concluded one was implied. (Id. at pp. 1192-1193.) Quoting People v. Ford (1964) 60 Cal.2d 772, the Supreme Court in Lo Cicero reasoned that "'before a defendant can properly be sentenced to suffer the increased penalties flowing from . . . [a] finding . . . [of a prior conviction] the fact of the prior conviction . . . must be charged in the accusatory pleading['] [because t]he denial of opportunity for probation involved here is equivalent to an increase in penalty . . . ." (Lo Cicero, at pp. 1193-1194.) However, Lo Cicero is factually distinguishable and not helpful to our analysis because it does not involve the use of a prior conviction to render the defendant ineligible for the privilege of earning presentence custody credits.
In our view, defendant has not cited, and we were unable to locate, any convincing authority for the proposition that ineligibility for presentence conduct credits at a particular rate, based on a prior conviction, must be alleged in an accusatory pleading. (See, e.g., In re Varnell (2003) 30 Cal.4th 1132, 1141 ["[A] defendant is [not] entitled as a matter of due process to notice in the accusatory pleading of his ineligibility for less restrictive alternate punishments."].) In our view, it is also significant that "'when a pleading and proof requirement is intended, the Legislature knows how to specify the requirement.' [Citation.]" (Ibid.)
More importantly, defendant's implied pleading and proof argument has already been rejected in similar contexts. In People v. Fitzgerald (1997) 59 Cal.App.4th 932, the defendant argued on due process grounds that his presentence credits could not be limited to 15 percent under section 2933.1 because the information did not apprise him of the possibility of the credit reduction. He argued the credit reduction was analogous to an enhancement, which must be alleged in the charging document. The appellate court disagreed, explaining that "[a] charging document, be it an indictment, information, or complaint, in order to fulfill due process requirements must meet the following standards: '[T]he purpose of the charging document is to provide the defendant with notice of the offense charged. (§ 952.) The charges thus must contain in substance a statement that the accused has committed some public offense, and may be phrased in the words of the enactment describing the offense or in any other words sufficient to afford notice to the accused of the offense charged, so that he or she may have a reasonable opportunity to prepare and present a defense.' [Citations.]" (Fitzgerald, at p. 936.) According to the appellate court, the credit reduction is not the equivalent of an enhancement, but is a "method for computing presentence credits." (Id. at p. 937.) Due process was satisfied because the information specifically identified offenses that could result in a reduction in credits. This alone was sufficient to put the defendant on notice he could be subject to a credit reduction. (Ibid.) In other words, the prosecution was not required to include an allegation in the charging document that specifically advised defendant his credits could be calculated at a reduced rate if he was convicted of the charged offenses.
Subdivision (c) of section 2933.1 limits the amount of presentence worktime credits under section 4019 to 15 percent of the actual time served prior to trial when the defendant is convicted of a violent felony.
In People v. Goodloe (1995) 37 Cal.App.4th 485 (Goodloe), the court found at the time of sentencing that the defendant was "a person described in Penal Code section 2933.5" because of prior felony convictions, as well as his current convictions, which included rape with personal infliction of great bodily injury. As a result, the defendant was statutorily ineligible to earn worktime and good behavior credits in prison under section 2933.5, or pretrial custody credit. (Goodloe, at pp. 488-490.)
Section 2933.5 renders certain defendants ineligible to earn credits against their prison terms. These defendants include, but are not limited to, those convicted of crimes such as murder, mayhem, and kidnapping, and who have two or more prior convictions and have served two or more prior prison terms.
On appeal, the defendant in Goodloe argued he was not barred from earning credits because section 2933.5 should be read to include an implied pleading and proof requirement, and the information did not notify him that his prior convictions were being alleged to determine his credit eligibility under section 2933.5. (Goodloe, supra, 37 Cal.App.4th at p. 490.) In support of his contention, the defendant argued section 2933.5 was analogous to sentencing enhancements and additional terms, such as those included in the "Three Strikes" law, which do require pleading and proof. (Goodloe, at p. 492.) The appellate court rejected this argument, concluding section 2933.5 was not analogous to sentencing enhancements but was instead part of an "elaborate statutory plan concerning sentence reduction credits," which should be analyzed in this context. (Goodloe, at pp. 492-493.) In other words, "[a] statute must be considered in the context of the relevant statutory framework." (Id. at p. 491.) Based on the statutory scheme as a whole, which included presentence credits under section 4019, the Court of Appeal concluded the omission of a pleading and proof requirement was deliberate. (Goodloe, at pp. 493-496.) In other words, there is no "'inevitable pattern'" in the statutory framework demonstrating any intention by the Legislature to require a pleading and proof requirement for sentence reduction credits. (Id. at p. 493.)
Presentence conduct credits under section 4019 are part of the "elaborate statutory plan concerning sentence reduction credits," because section 2900.5 states that "all days of custody of the defendant," including those credited under section 4019, "shall be credited upon his or her term of imprisonment . . . .'" (Goodloe, supra, 37 Cal.App.4th at pp. 492, 495.)
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Based on the foregoing, we reject defendant's argument there is an implied pleading and proof requirement in sections 2933 or 4019. In reaching our conclusion, we disagree with recent cases cited by defendant which reached a different conclusion and which are currently being considered by our Supreme Court, such as People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784; and People v. Jones (2010) 188 Cal.App.4th 165, review granted December 15, 2010, S187135. These cases assume that ineligibility for increased credits constitutes increased punishment, so disqualifying prior convictions must be pleaded and proved. Under this analysis, serious and violent felons who are actually ineligible for increased credits based on a prior conviction may be released early on a windfall, putting public safety at greater risk, simply because a pleading and proof requirement was implied during the appellate process when one has not previously been mandated. The analysis leads to results that are entirely contrary to the legislative purpose of the credit reduction for serious and violent felons, which is to protect the public from the early release of dangerous criminals. (See, e.g., Goodloe, supra, 37 Cal.App.4th at p. 490 [the purpose for reducing custody credits for offenders convicted of serious and violent felonies is to protect the public against violent conduct, which is greater than the need to reduce overcrowded prisons].)
We also reject the prosecution's contention a trial court has no authority to determine a defendant's eligibility for credits under subdivisions (e)(1) and (e)(3) of section 2933. The sentencing court is responsible for calculating the number of days the defendant has been in custody before sentencing, and for reflecting the total credits allowed on the abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 30-31.) The credits at issue in this appeal under subdivisions (e)(1) and (e)(3) of section 2933 are accrued, if the defendant is eligible, "from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner." (§ 2933, subd. (e), eff. Sept. 28, 2010.) State prison credits are not applicable until the defendant has been sentenced. (§ 2900.5, subd. (e).) In other words, credits accrued under subdivisions (e)(1) and/or (e)(3) of section 2933, are presentence credits that must be calculated by the trial court.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.