Opinion
A131702
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. ARTURO PLEITEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC072881A)
Following a plea of no contest to a single count of possession of a controlled substance, defendant Arturo Pleitez was sentenced to a two-year term in state prison. His sole challenge on appeal is that the trial court erred in calculating his presentence conduct credits. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 22, 2011, an information was filed charging defendant with a felony count of possession of a controlled substance (phencyclidine) (Health & Saf. Code, § 11377, subd. (a)) (count one), a misdemeanor count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) (count two), and two misdemeanor counts of resisting a peace officer (Pen. Code, § 148, subd. (a)(1).) (counts three and four). The district attorney further alleged defendant was presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(4), due to five prior felony convictions. The district attorney also alleged that defendant had a prior strike under the Three Strikes Law, and had served two prior prison terms (§ 667.5, subd. (b)). It was alleged that defendant committed the current offenses on October 29, 2010.
All further undesignated statutory references are to the Penal Code.
The district attorney alleged defendant had a prior strike conviction for assault with a deadly weapon or with force likely to cause great bodily injury (§ 245, subd. (a)(1)), sustained in 1992.
On March 15, 2011, defendant pleaded no contest to count one. In exchange, the People moved to dismiss the other charges and allegations. The trial court granted the motion. The plea agreement states that the parties had stipulated to a two-year term in state prison. Defendant waived his right to a probation report and none was prepared.
Prior to sentencing, the People filed a brief arguing that because defendant had suffered a prior strike conviction, his credits for time served should be restricted under former section 2933, subdivision (e)(3), to two days' credit for every four actual days spent in custody, as set forth in section 4019, due to the prior strike conviction. At the sentencing hearing on March 22, 2011, the trial court agreed with the People's position, finding that a prior conviction did not need to be pleaded and proved to exclude a defendant from an accelerated rate of conduct credit accrual. The court sentenced defendant to the midterm of two years in prison. It awarded him 90 days of presentence credits—60 actual days and 30 days of conduct credit. This appeal followed.
Former section 2933, subdivision (e)(3), provides, in part: "Section 4019, and not this subdivision, shall apply if the prisoner is required to register as a sex offender . . . , was committed for a serious felony . . . , or has a prior conviction for a serious felony . . . , or a violent felony . . . ."
DISCUSSION
I. The 2010 Amendments of Sections 2933 and 4019
Prior to January 25, 2010, a defendant held in county jail prior to sentencing would typically earn six days of credit (i.e., reduce his remaining time by six days) for each four days actually served—in effect, a three-to-two ratio of credits allowed for days served. (Former § 4019, subds. (b), (c) & (f); Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) Effective January 25, 2010, section 4019 was amended to provide that certain defendants may earn presentence credit at the rate of two days for every two days in custody, commonly referred to as "one-for-one credits." (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) The Legislature said: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody, except that a term of six days will be deemed to have been served for every four days spent in actual custody for persons described in paragraph (2) of subdivision (b) or (c)." (Former § 4019, subd. (f).) Thereafter, on September 28, 2010, the Legislature deleted section 4019 one-for-one credits.
These subdivisions pertained to a defendant required to register as a sex offender, or who had a prior conviction for a serious or violent felony. (Former § 4019, subds. (b)(2) & (c)(2).)
Section 4019, subdivision (f), currently provides: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (Stats. 2011, ch. 15, § 482 (AB 109), effective April 4, 2011, operative October 1, 2011.)
Section 2933 pertains to credit reductions awarded for continuous incarceration. Effective September 28, 2010, section 2933 was amended to provide one-for-one conduct credits, but only for qualifying defendants sentenced to state prison. (Former § 2933, subd. (e).) Former subdivision (e)(1) provided, in part: "Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison . . . 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." Thus, when defendant committed the instant offenses, the version of section 2933, subdivision (e) preserved much of the effect of the first amendment of section 4019, despite different phrasing, of entitlement to credits against a prison confinement for periods of custody served in jail.
Section 2933 was subsequently amended to delete these provisions. (Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 16 (AB 17), effective September 21, 2011, operative October 1, 2011.)
While section 2933, subdivision (e)(1) appeared to award one day of conduct credit for every day in actual local custody, subdivision (e)(2) made this award contingent on both performing labor and complying with rules and regulations. The extra conduct credit was unavailable if the prisoner had either refused to perform assigned labor or had not complied with applicable rules. The scheme was limited to qualified prisoners who were not required to register as sex offenders, were not committed for a serious felony, and did not have prior strikes. (§ 2933, subd. (e)(3).) Those disqualified by their status were limited to the section 4019 scheme of two days of conduct credit for four days in custody.
II. There Is No Plead-and-Prove Requirement
Defendant argues that the trial court erred in denying him day-for-day presentence credits under former section 2933, subdivision (e), because the court had already granted the prosecutor's request to dismiss the prior serious felony allegation. He contends that he was eligible for the enhanced credits because his prior conviction was stricken as part of his plea bargain, and was neither admitted nor proven. He claims the People had the burden to plead and prove that he was ineligible for the increased (day-for-day) presentence custody credits added by the Legislature to section 2933 in 2010.
The asserted requirement is drawn from People v. Lo Cicero (1969) 71 Cal.2d 1186, 1188 (Lo Cicero), which held that a trial court erred by finding a defendant categorically ineligible for probation based upon a prior conviction not charged in the accusatory pleading or formally found to have been sustained. The Supreme Court held that the "denial of opportunity for probation" was "equivalent to an increase in penalty," which triggered the following rule: " '[B]efore 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, 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.' " (Id. at pp. 1192— 1193, quoting People v. Ford (1964) 60 Cal.2d 772, 794, overruled on another point in People v. Satchell (1971) 6 Cal.3d 28, 40—41.) In defendant's view, if ineligibility for probation because of a prior conviction is increased punishment, then ineligibility for additional presentence custody credit, under former subdivision (e)(3) of section 2933, is also increased punishment.
The Courts of Appeal have taken opposing views on whether prosecutors must plead and prove prior convictions before the trial court can deny additional conduct credits, and the Supreme Court has granted review of the issue. This court previously concluded there is no pleading and proof requirement (People v. Voravongsa, supra, 197 Cal.App.4th at p. 674, review granted August 31, 2011, S195672), and we reach the same conclusion here. In brief, we discern no legislative intent to include a pleading and proof requirement in the 2010 amendments to section 2933. The statutory language mentions no requirement. (See In re Varnell (2003) 30 Cal.4th 1132, 1139, 1141 [" 'when a pleading and proof requirement is intended, the Legislature knows how to specify the requirement' "].) Nor are the amended sections part of a statutory scheme that otherwise imposes such a requirement. (See People v. Hernandez (1988) 46 Cal.3d 194, 200-201, abrogated on other grounds in People v. King (1993) 5 Cal.4th 59, 78, fn. 5 and on other grounds as stated in People v. Rayford (1994) 9 Cal.4th 1, 9 [discussing such a scheme].) Further, given that section 2933 allows the authorities to wholly foreclose (not merely reduce) conduct credits when a confined defendant refuses to satisfactorily perform assigned labor or fails to comply with reasonable rules and regulations (former § 2933, subd. (e)(2))—facts that cannot plausibly be pleaded at the outset of a criminal prosecution—it makes no sense to imply a pleading and proof requirement especially for facts foreclosing merely additional conduct credits under the 2010 amendments—for instance, a prior serious or violent conviction. Similarly, it has long been recognized that a sentencing judge can deny probation on the basis of an uncharged, prior serious felony conviction. (See People v. Wiley (1995) 9 Cal.4th 580, 586.)
Cases rejecting pleading and proof requirement: People v. Fuentes (Nov. 16, 2010, H035286) (nonpub. opn.); People v. Smith (Jan. 14, 2011, E050923) (nonpub. opn.); People v. Ortiz (June 10, 2011, A129049) (nonpub. opn.); People v. Millsap (July 7, 2011, A130626) (nonpub. opn.); People v. James (2011) 196 Cal.App.4th 1102, review granted August 31, 2011, S195512; People v. Voravongsa (2011) 197 Cal.App.4th 657, review granted August 31, 2011, S195672.
Cases requiring pleading and proof: People v. Jones (2010) 188 Cal.App.4th 165, review granted December 15, 2010, S187135; People v. Tolbert (Nov. 22, 2010, B221747) (nonpub. opn.); People v. Koontz (2011) 193 Cal.App.4th 151, review granted May 18, 2011, S192116; People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784.
We note prior serious or violent felony convictions are among the "traditional facts of a crime or of a defendant's criminal history usually taken into account by sentencing judges." (People v. Hernandez, supra, 46 Cal.3d at p. 206.) Nor do constitutional due process concerns necessitate pleading and proof requirements for the conduct credit statutes, when they themselves create no such requirement. To comport with due process, only a "fact that increases the penalty for a crime beyond the statutory maximum prescribed for that crime" must be proven. (In re Varnell, supra, 30 Cal.4th at pp. 1141-1142.) Conduct credits do not increase the statutory maximum penalty for any offense, they can only decrease the defendant's period of incarceration.
In sum, we conclude the trial court properly found defendant ineligible for enhanced conduct credits under former section 2933, subdivision (e). Accordingly, we need not consider the Attorney General's remaining arguments.
DISPOSITION
The judgment is affirmed.
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Dondero, J.
We concur: ____________
Marchiano, P.J.
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Banke, J.