Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. Nos. 211097, 206159.
Margulies, J.
In 2009, the Legislature amended Penal Code section 4019 to increase the presentence custody credits available to convicted offenders, but the amendment denied the increased credits to offenders who were required to register as a sex offender or had a prior serious felony conviction. Defendant Alfredo Ortiz was subject to both disqualifications.
All statutory references are to the Penal Code unless otherwise indicated.
The prosecution alleged defendant’s prior convictions in the information, but it did not submit them to the jury or otherwise prove them formally. Nonetheless, on stipulation of defendant’s attorney, the trial court denied him the increased custody credits available under the amendment to section 4019. Defendant contends the prosecution was required to prove the prior convictions because the denial of additional custody credits constituted an increase in his period of incarceration. Finding no legal basis for his contention, we affirm.
I. BACKGROUND
In 2008, defendant pleaded guilty to second degree burglary and was placed on three years’ probation. During the probationary period, he was charged in an information, filed December 28, 2009, with one count of grand theft (§ 487, subd. (a)) and one count of receiving stolen property (§ 496, subd. (a)). The information also alleged a number of prior convictions, including serious felony convictions for first degree burglary and assault with intent to commit rape. (§§ 667, 1170.12.) After the charge of receiving stolen property was dismissed as unsupported by probable cause, defendant proceeded to trial on the remaining charge. Although the jury acquitted defendant of grand theft, it convicted him of the lesser included charge of petty theft. (§ 484.) Neither the jury nor the court was asked to make findings with respect to the various prior conviction allegations.
Defendant’s probation in the 2008 matter was revoked, and he was sentenced to a term of three years on the earlier second degree burglary conviction and a concurrent term of six months on the petty theft conviction.
In 2009, section 4019, which governs the credit an offender receives as a result of presentence confinement, was amended to increase the amount of custody credit available. (Stats. 2009–2010, 3d Ex. Sess., ch. 28, § 50 (hereafter former section 4019).) Under the amendment, defendants who were required to register as a sex offender or had been convicted of a serious felony were ineligible for the increased credits. (Former § 4019, subds. (b)(2), (c)(2).) Presumably for this reason, defendant’s attorney stipulated at sentencing that he was not entitled to the additional custody credits available under former section 4019, and the trial court’s award of custody credits did not include them.
Although the statute has since been restored to its original form, the parties agree that defendant should be considered under the 2009 version.
II. DISCUSSION
Defendant contends he is entitled to the additional custody credits available under former section 4019 because his prior serious felony convictions and sex offense requiring registration, although alleged in the information, were neither admitted nor proved. The identical issue is presented in People v. Jones (2010) 188 Cal.App.4th 165 (Jones), review granted December 15, 2010, No. S187135, 119 Cal.Rptr.3d 415, and People v. Lara (2011) 193 Cal.App.4th 1393, 1397 (Lara), review granted May 18, 2011, No. S192784, both of which have been accepted for review by the California Supreme Court. Jones and Lara held that pleading and proof of prior convictions are required before a defendant can be denied the additional credits granted by former section 4019, using the same rationale raised here. Nonpublished appellate decisions have been divided on the issue.
Defendant is entitled to raise this issue despite his attorney’s stipulation at sentencing because a wrongful denial of additional custody credits in these circumstances would constitute an “unauthorized” sentence. (E.g., People v. Anderson (2010) 50 Cal.4th 19, 26.)
Defendant argues that, under People v. Lo Cicero (1969) 71 Cal.2d 1186 (Lo Cicero), disapproved on another point in Curl v. Superior Court (1990) 51 Cal.3d 1292, 1301–1302, footnote 6, any prior conviction used as the basis for increasing his “punishment, ” defined as the duration of his incarceration, must be pleaded and proved. Because the denial of additional credits under former section 4019 resulted in a longer period of incarceration, he contends, it constituted an increase in his punishment, necessitating formal proof under Lo Cicero.
We conclude that accepting defendant’s argument would constitute an unwarranted extension of Lo Cicero. Contrary to the premise of his argument, Lo Cicero does not hold that any fact that leads to an increase in a defendant’s period of incarceration must be pleaded and proved, either in its language or intent. Yet even if we were to accept his premise, we do not agree that the denial of additional credits under former section 4019 constituted an increase in his punishment, as so defined.
The defendant in Lo Cicero was charged with sale of marijuana. Although he had suffered a prior conviction for possession of marijuana, which he admitted during trial testimony, the prior conviction had not been alleged in the indictment. On the basis of this conviction the trial court ruled defendant ineligible for probation under Health and Safety Code former section 11715.6, which precluded a grant of probation to persons with a prior conviction for various crimes, including possession of marijuana. On appeal, the defendant contended the ruling was error because, contrary to Penal Code section 969, his prior conviction had not been pleaded. (Lo Cicero, supra, 71 Cal.2dat pp. 1191–1192.)
Section 969, unchanged since the time of Lo Cicero, reads: “In charging the fact of a previous conviction of felony, or of an attempt to commit an offense which, if perpetrated, would have been a felony, or of theft, it is sufficient to state, ‘That the defendant, before the commission of the offense charged herein, was in (giving the title of the court in which the conviction was had) convicted of a felony (or attempt, etc., or of theft).’ If more than one previous conviction is charged, the date of the judgment upon each conviction may be stated, and all known previous convictions, whether in this State or elsewhere, must be charged.”
In holding that pleading and proof of the conviction were required under section 969 and related statutes, the Lo Cicero court quoted and followed an earlier decision, People v. Ford (1964) 60 Cal.2d 772 (Ford). In that case, the defendant had been convicted of murder and other crimes in the course of a burglary. (Id. at pp. 775–776.) Although the judgment declared that a prior conviction and possession of a deadly weapon during the murder had been “ ‘charged and proved or admitted, ’ ” in fact neither had been alleged in the information or submitted to the jury. (Id. at p. 794.) The defendant contended, as a result, that sentence enhancements associated with these allegations should not have been imposed. The court agreed, holding, “Before a defendant can properly be sentenced to suffer the increased penalties flowing from either such finding [citations][, ] the fact of the prior conviction or that the defendant was thus armed must be charged in the accusatory pleading, and if the defendant pleads not guilty thereto the charge must be proved and the truth of the allegation determined by the jury, or by the court if a jury is waived.” (Ibid.) Quoting much of this language from Ford, Lo Cicero held, “The denial of opportunity for probation involved here is equivalent to an increase in penalty, and the principle declared in Ford should apply.” (Lo Cicero, supra, 71 Cal.2d at pp. 1192–1193.)
As is clear from the foregoing, the principle declared in Ford is the now-familiar and uncontroversial rule that a prior conviction or other fact that is used as the basis for a statutory sentence enhancement must have been pleaded in the charging document and admitted or proved if it is not a necessary element of the charged offenses. Although Ford based its ruling on statutory provisions, the principle has subsequently been elevated to a matter of due process, on the theory “due process requires that an accused be advised of the specific charges against him so that he may adequately prepare his defense.” (People v. Hernandez (1988) 46 Cal.3d 194, 208.) Lo Cicero constituted a reasonable extension of that doctrine to another aspect of sentencing, the decision whether to grant probation or impose a prison term. Under Lo Cicero, a fact that will be used to deny a defendant probation as a matter of law must be pleaded and proved.
Lo Cicero was later limited to its facts by In re Varnell (2003) 30 Cal.4th 1132, which held that a prior conviction need only be pleaded and proved if it precludes a grant of probation as a matter of law. Under Varnell, the rule of Lo Cicero was held, at least implicitly, not to extend to “sentencing factors, ” making it unnecessary to plead and prove a prior conviction that is considered as a factor for denying probation in the exercise of the court’s discretion. (Varnell, at pp. 1140–1141.) Varnell suggests the holdings of Ford and Lo Cicero are not to be casually extended.
Simply as a matter of language, Lo Cicero never holds that a fact that increases a defendant’s “punishment” must be pleaded and proved. The court’s language echoed the holding of Ford that any fact leading to “an increase in penalty” must be pleaded and proved. (Lo Cicero, supra, 71 Cal.2d at p. 1193.) The word “punishment” was not used in either decision.
Further, we find no basis for equating “penalty, ” as used in Lo Cicero, with “punishment, ” defined as the duration of a defendant’s incarceration. As the facts of both Ford and Lo Cicero make clear, “penalty” as used in those decisions refers to a defendant’s sentence, not to the ultimate duration of his or her incarceration. In Ford, the phrase “increased penalties” refers to statutory sentencing enhancements; when Lo Cicero adopted the phrase, it was referring to an increase in the severity of sentence in the form of a denial of probation. (Ford, supra, 60 Cal.2d at p. 794; Lo Cicero, supra, 71 Cal.2d at p. 1193.)
A defendant’s sentence and the length of his or her incarceration are entirely different matters, both legally and practically. A trial judge’s decision at sentencing determines whether a defendant will be incarcerated or granted probation and, if the former, sets an upper limit on his or her period of incarceration. Although a defendant’s sentence is one factor in determining the actual duration of his or her incarceration, a number of other factors also operate. Section 4019, for example, has no impact on a defendant’s sentence, but it contributes directly to determining the duration of his or her period of incarceration in prison. Section 4019, subdivision (b) reduces the period of a defendant’s prison incarceration on the basis of the period of his or her confinement prior to the imposition of sentence, while section 4019, subdivision (c) reduces the period of incarceration on the basis of a defendant’s good conduct while confined prior to sentencing. Similarly, section 2933, subdivision (b) reduces the period of incarceration on the basis of a defendant’s period of confinement and conduct while in prison, again without affecting his or her sentence. (See, e.g., In re Pacheco (2007) 155 Cal.App.4th 1439, 1443.) In addition, the statutes governing parole, section 3040 et seq., permit the effective termination of a defendant’s incarceration. All of these statutes therefore can have a significant impact on a defendant’s “punishment, ” as defendant defines the term, but none of them affects his or her sentence, the “penalty” addressed by Ford and Lo Cicero.
There is no legal basis for extending the pleading and proof requirements for sentencing, established by Ford and Lo Cicero, to the various other statutory determinants of the duration of incarceration. In establishing those requirements, Ford and Lo Cicero relied on section 969 and related statutes that describe the manner in which a prior conviction must be pleaded and proved. None of these statutes purports to require pleading and proof of a prior conviction under the circumstances presented here.
Similarly, the due process requirements for sentencing have never been extended to the other procedures that determine the duration of a prisoner’s incarceration. The reduction of a defendant’s period of incarceration under the various statutes discussed above turns on any number of factual circumstances. Reduction of incarceration under section 4019, for example, depends upon both the term of a defendant’s presentence incarceration and his or her conduct while in jail. Reduction of a sentence under section 2933 similarly depends upon the same matters while the defendant is in prison. It has never been held that such facts must be proved to a jury. A prior conviction considered under former section 4019 is no different from the other factual circumstances that must be considered in the application of the various statutes affecting the duration of an offender’s incarceration.
Yet even if we accepted defendant’s premise that a conviction increasing his punishment, as so defined, must be pleaded and proved, we would not agree that a denial of the additional custody credits available under former section 4019 constitutes an increase in his punishment.
Defendant argues his punishment was increased because the denial of the benefit of former section 4019 diminished the reduction in the duration of incarceration he otherwise would have received from custody credits. We do not agree. A lesser reduction does not constitute an “increase.” Even without the additional custody credits available under former section 4019, the effect of section 4019 was a decrease in the period of defendant’s incarceration, not an increase.
In order to characterize the denial to defendant of the additional credits of former section 4019 as an increase in his punishment, it is necessary to view those additional credits as having been granted to him. Only in that case could the exclusion be regarded as increasing his punishment by taking the additional credits away. In fact, however, neither former section 4019 nor its predecessor statute ever granted the additional credits to excluded defendants. As a result, the exclusion did not increase defendant’s punishment. It simply did not decrease it. The fact that another offender who is given the benefit of former section 4019 will serve a shorter term of incarceration similarly fails to prove an increase for defendant. It merely means that defendant’s reduction is less than the reduction received by another offender under section 4019. A change in the statutory scheme for earning credits that reduces punishment for some does not create an increase in the punishment of others, particularly when the rate at which their credits may be earned stays the same as it was before the change in the law. For this reason, our rationale is consistent with those decisions finding former section 4019 retroactive because it affords a decrease in the defendant’s punishment, following In re Estrada (1965) 63 Cal.2d 740. If the grant of additional credits under former section 4019 constitutes a decrease in a defendant’s punishment, the denial of such credits to a second defendant does not constitute an increase in his or her punishment. The denial merely prevents a potential decrease.
We find no error in the trial court’s consideration of the undisputed fact of defendant’s prior conviction in deciding whether to award credits under former section 4019, despite the failure of the prosecution formally to prove that fact.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Dondero, J.