Opinion
E051904 Super.Ct.No. FSB1001855
11-16-2011
THE PEOPLE, Plaintiff and Respondent, v. LANCE D. PRUITT, Defendant and Appellant.
Cynthia A. Grimm, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Michael M. Dest and John N. Martin, Judges. Affirmed in part; reversed in part with directions.
Cynthia A. Grimm, 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 Lance D. Pruitt contends the limitation in the January 25, 2010 version of Penal Code section 4019 should not have been applied to him because his disqualifying conviction was not pled and proven. We decline to impose a pleading and proof requirement, but remand the matter for a hearing to determine whether defendant has a prior limiting conviction.
Undesignated statutory references are to the Penal Code.
BACKGROUND
On May 5, 2010, defendant possessed cocaine. (Health & Saf. Code, § 11350, subd. (a).) A complaint filed against him on May 7, 2010, listed only the possession charge and did not state any prior convictions.
On May 17, 2010, defendant's case was referred to a different department for drug court consideration. On May 25, 2010, defendant agreed to participate in a treatment program; however, he was subject to a parole hold. On June 2, 2010, the trial court was informed that the parole authorities would not lift the hold. However, the trial court granted a continuance so that defendant could speak with his parole officer. The minute order from June 14, 2010, states that a settlement could not be reached and returned defendant's case to the prior department. While there is no amended complaint in our record, the June 14, 2010 minute order recites the charges against defendant as including six prison prior enhancements. (§ 667.5, subd. (b).)
On July 1, 2010, after being denied drug court, defendant pled guilty and waived preparation of a probation report in exchange for a concurrent low term sentence of 16 months and delaying pronouncement of judgment to July 30, 2010. At the start of the hearing, the trial court noted a new complaint had been filed and inquired as to whether defendant was "pleading on the old complaint," or needed to be arraigned on the new complaint. The People responded, "Let's go with the old complaint. People withdraw." The trial court confirmed that they were withdrawing the new complaint.
On July 30, 2010, the parties agreed to continue sentencing until August 12, 2010, so the trial court could obtain information about restitution. The trial court, Judge Michael Dest, told defendant that on August 12, 2010, his credits "will be 98 days actual. It will be 98, new 4019 for a total of 196."
On August 12, 2010, the trial court, Judge John N. Martin, called defendant's case. Defendant's trial counsel objected to defendant "not getting the new 4019. [The prosecutor] claims that [defendant] had something in his record that he did not qualify for the new 4019's. I'm going to object and say [defendant] should get the new 4019's because the alleged strike has not been pled or proven." Without further discussion, the trial court stated it would set defendant's credits at 146 days consisting of 98 actual days and 48 conduct days, and then proceeded to impose the agreed upon sentence.
Our record includes a police report containing a printout of database entries concerning defendant's criminal history. Among the entries is a conviction for robbery (§ 211), which is a serious and violent felony as defined in sections 667.5 and 1192.7.
DISCUSSION
Under the version of section 4019 that was in effect when defendant committed his offense, during his presentence local custody, and at sentencing, two days of conduct credit could be earned for every two days spent in actual custody. (Former § 4019, subd. (f).) However, sex offenders, those committed for a serious felony (§ 1192.7), or those previously convicted of a serious or violent felony as defined in sections 667.5 and 1192.7, are only eligible for two days of conduct credit for every four days spent in actual custody, and no pleading and proof requirement is stated. (Former § 4019, subd. (f).)
Defendant contends that due process requires that a limiting prior offense be pled and proven because limiting presentence conduct credits results in increased punishment. He also contends his due process rights were violated because he did not have sufficient notice that he would be subject to reduced conduct credits. Defendant also raises a new issue in his reply brief; he contends that the trial court had discretion under section 1385 to dismiss a prior conviction to permit increased custody credits but was unaware of this discretion. The People contend that because custody credits do not "touch on punishment," there is no pleading and proof requirement. The People acknowledge that defendant "is entitled to minimal procedural safeguards before the trial court may withhold conduct credits" and contend that defendant had sufficient notice "from the probation report, which included his CLETS rap sheet . . . including a conviction for robbery," and had the opportunity to rebut that allegation at the sentencing hearing. We hold that no pleading and proof requirement is implied, but remand the matter for rehearing because defendant was not provided notice of the potential limitation on his conduct credits. Accordingly, we do not address defendant's late contention as to the discretion to strike the limitations on conduct credits under former section 4019.
Defendant relies on People v. Lo Cicero (1969) 71 Cal.2d 1186 for the proposition that defendant's prior conviction had to be pled and proven because the limitation on conduct credits increases punishment. At issue in Lo Cicero was a prohibition on granting probation for a narcotics offense when a defendant had previously been convicted of certain narcotics offenses. (Id. at pp. 1191-1192.) The defendant's previous conviction was not pled, 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 concluded one had to be imposed. (Id. at pp. 1192-1193.) The Lo Cicero court 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, . . . ' The denial of opportunity for probation involved here is equivalent to an increase in penalty . . . ." (Ibid.)
However, the conduct credit scheme is a means of encouraging and rewarding behavior and not a matter of penalties. (See, e.g., People v. Brown (2004) 33 Cal.4th 382, 405 [" 'section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody' "]; People v. Sage (1980) 26 Cal.3d 498, 510 (conc. & dis. opn. of Clark, J.) ["The purpose of conduct credit is to foster good behavior and satisfactory work performance"]; People v. Saffell (1979) 25 Cal.3d 223, 233 ["The purposes of the provision for 'good time' credits seem self-evident. First, and primarily, prisoners are encouraged to conform to prison regulations and to refrain from engaging in criminal, particularly assaultive, acts while in custody. Second, [prisoners are induced] to make an effort to participate in what may be termed 'rehabilitative' activities"].) Moreover, imposing a pleading and proof requirement during the appellate process would defeat the legislative purpose of the credit limitation for serious and violent felons, which is to protect the public from early release of dangerous criminals. (See, e.g., People v. Goodloe (1995) 37 Cal.App.4th 485, 490 (Goodloe) [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].)
Defendant has not cited, and we were unable to locate, any viable authority for the proposition that a limitation on presentence conduct credits, based on a prior conviction, must be alleged in an accusatory pleading in order to satisfy due process. (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 alternative punishments"].) 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, implied pleading and proof arguments have already been rejected in similar contexts. In People v. Fitzgerald (1997) 59 Cal.App.4th 932, the defendant contended that due process precluded limiting his presentence credits to 15 percent under section 2933.1 because the information did not apprise him of the possibility of the credit reduction and the limitation was analogous to an enhancement that had to be alleged in a 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.) Thus, a credit limitation is not the equivalent of an enhancement but a "method for computing presentence credits." (Id. at p. 937.) Due process was satisfied because the information identified offenses that could result in a limitation on credits, which was in itself sufficient to provide notice a credit limitation could apply. (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 limited.
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 Goodloe, supra, 37 Cal.App.4th 485, 490, the trial court found that the defendant was "a person described in Penal Code section 2933.5" because of prior felony convictions, as well as his current convictions. As a result, the defendant was statutorily ineligible to earn presentence conduct credit or prison worktime and good behavior credits. (Id. at pp. 488-490.) The defendant contended he was not barred from earning credits because section 2933.5 should be read to include a 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, 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 contention was rejected because section 2933.5 is not analogous to sentencing enhancements but is instead part of an "elaborate statutory plan concerning sentence reduction credits," which should be analyzed in this context. (Goodloe, at pp. 492-493.) Based on the credit scheme as a whole, the Court of Appeal concluded the omission of a pleading and proof requirement was deliberate. (Id. at pp. 493-496.) In other words, there was no " 'inevitable pattern' " in the statutory framework demonstrating any intention by the Legislature to require a pleading and proof requirement for limits on custody credits. (Id. at p. 491.)
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.
Accordingly, we hold that there is no implied pleading and proof requirement in former section 4019.
Nonetheless, before a sentencing court may reduce or limit conduct credits, defendants are entitled to prior notice and an opportunity to contest the basis for the reduction. (People v. Duesler (1988) 203 Cal.App.3d 273, 277 [reducing § 4019 credits due to jail violations].) As indicated above, reciting a limiting prior offense in a charging instrument is sufficient; (People v. Fitzgerald, supra, 59 Cal.App.4th at p. 937) so is the suggestion of limiting credits in a presentence report (Duesler, at p. 277).
The complaint against defendant did not recite a limiting prior offense, nor was there a presentence report indicating defendant had a limiting prior offense or that the imposition of a limitation on credits would be sought. To the contrary, defendant was expressly told by Judge Dest that he would receive full credits under former section 4019. Yet, at the sentencing hearing, without a showing that defendant had a limiting prior conviction, Judge Martin granted limited former section 4019 conduct credits. Accordingly, we shall remand the matter for a hearing to determine whether defendant has a prior serious or violent felony that would limit his conduct credits under former section 4019, subdivisions (b)(2) and (c)(2).
The People erroneously assert that the database printout of defendant's criminal history, including a conviction that would limit his credits under former section 4019, is sufficient notice because it was included in the probation report. However, no probation report was prepared. The printout is attached to a police report that is included in our record, with no indication that it was ever reviewed by the trial court.
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DISPOSITION
The award of conduct credits is reversed. The superior court is directed to hold a hearing to determine whether defendant is subject to limited conduct credits under the January 25, 2010 version of section 4019, subdivisions (b)(2) and (c)(2), and then impose appropriate conduct credits. If the credits differ from those set on August 12, 2010, the superior court clerk is directed to forward certified copies of the minute order and amended abstract of judgment reflecting the changed credits to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.