Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F96567037 Jonathan B. Conklin, Judge.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.
Defendant Francisco Javier Rivera failed to report for his sentencing hearing in 1996. He was apprehended in 2009. He appeals his sentence to state prison, arguing that in denying his request for probation the trial court erred in considering a conviction he received while he was out of custody after his guilty plea but before his sentencing. We reject this argument and in addition we hold defendant is not entitled to conduct credits pursuant to Penal Code section 4019.
Facts and Procedural Background
Defendant was charged with several drug-related crimes after his car was searched on June 1, 1996. He entered a guilty plea to one count of transportation of heroin and one count of possession of cocaine base for sale, with the agreement that he would receive no more than three years in prison. He was released prior to sentencing because of jail overcrowding. He did not show up for sentencing and a warrant was issued. He was arrested in 2009 while illegally crossing the border.
In the original probation report prepared in 1996, the probation officer found that defendant was not a suitable candidate for probation because he was in this country illegally, he lived a transitory lifestyle, and he was less than truthful in the interview by the probation officer.
A new probation report was prepared for the 2009 hearing. It was noted that defendant was convicted in Texas in 1999 for driving under the influence and was convicted in Texas in 2006 for felony possession of a controlled substance.
At sentencing, the trial court noted that defense counsel argued very strongly that defendant should receive a probationary sentence. The court stated that it understood the argument and might be willing to follow it, but that the court’s greatest concern was the new felony defendant committed in Texas. The court found that probation was not appropriate and sentenced defendant to prison for three years for each count, with the sentences running concurrently.
Although the court stated that defense counsel argued very strongly for defendant to be given probation, this argument is not part of the record on appeal.
Defendant’s notice of appeal was filed 61 days after he was sentenced. The notice of appeal was mailed from prison by defendant before the expiration of 60 days. Respondent concedes that under the “prison delivery rule” the notice was timely filed. (In re Jordan (1992) 4 Cal.4th 116, 131.)
Discussion
I. Use of Interim Conviction to Deny Probation
Defendant contends the trial court could not consider his conduct after his plea but before sentencing in denying him probation. In addition, defendant asserts that if the issue is deemed to be forfeited then he received ineffective assistance of counsel. Respondent claims this issue has been forfeited because defendant did not raise it at sentencing, any claimed error was harmless, and defendant has not shown he received ineffective assistance of counsel.
The doctrine of waiver applies to the trial court’s failure to properly make discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353.) A decision to grant or deny probation is a discretionary sentencing choice. (People v. Welch (1993) 5 Cal.4th 228, 233.) The rule that a timely and specific objection be made in the trial court was not satisfied because defendant did not object on the basis now asserted on appeal.
We shall nevertheless address the merits because the determination crucial to the trial court’s ruling is purely legal, dealing with whether a trial court can consider convictions occurring between the finding of guilt and sentencing in determining whether probation should be granted. In addition, it appears the trial court’s decision to deny probation was based primarily on defendant’s Texas conviction; thus, if defendant’s claim is found to have merit, his counsel was ineffective in failing to raise it.
There are two concepts relied on by defendant regarding the use of prior convictions in determining a defendant’s sentence; on close inspection neither of those concepts apply here. First, defendant argues that in order for a prior conviction to be admissible at sentencing, the conviction must have been entered before the current crime was committed. It has been consistently held that when a statute or a rule calls for the consideration of “prior” convictions in reaching a sentencing decision, the prior conviction must have occurred prior to the commission of the current crime. (People v. Balderas (1985) 41 Cal.3d 144, 201.) For example, in determining whether to impose the death penalty Penal Code section 190.3 allows the jury to consider the presence or absence of any prior nonviolent felony convictions. These convictions must have been entered before the capital crime was committed. The material purpose of the “prior” limitation is “to demonstrate that the capital offense was undeterred by prior successful felony prosecutions.” (Balderas, supra, at p. 202.)
Although it is well settled that when a statute or rule allows for the consideration of a prior conviction that conviction must have occurred before the commission of the crime, the rule does not prohibit the consideration of prior convictions for other allowable purposes outside of the prior conviction prohibitions. For example, in People v. Gonzales (1989) 208 Cal.App.3d 1170, the trial court used a defendant’s conviction that occurred years after the charged offense as an aggravating factor in imposing the upper term. While Gonzales’s prior conviction could not be used as a circumstance in aggravation under the rules allowing the use of “prior” convictions in aggravation, the judge was not limited to the aggravating factors listed in the rule and could consider additional criteria related to the decision of choosing the proper term. The defendant’s prior conviction could properly be viewed as fitting one of the criteria of the Rules of Court because it demonstrated “‘a pattern of violent conduct which indicates a serious danger to society.’” The appellate court found that “unless there exists some flat prohibition against using a defendant’s conduct subsequent to the offense to aggravate a sentence, the judge acted properly.” The court found no such prohibition existed. (Id. at p. 1172.)
We find no prohibition in the rules regarding the granting of probation forbidding the use of criminal behavior between conviction and sentencing. “In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408 (a).)” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.) A “[g]rant of probation is... qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither ‘punishment’ [citation] nor a criminal ‘judgment’ [citation.]. Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].” (People v. Howard (1997) 16 Cal.4th 1081, 1092.) Receiving a new conviction between the time of the original conviction and sentencing could properly be considered as demonstrating that a defendant is not a likely candidate for rehabilitation.
To further support his argument, defendant points to the rule that when a sentence is imposed after revocation of probation, “[t]he length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term.” (Cal. Rules of Court, rule 4.435(b)(1).)
This rule “was drafted in response to In re Rodriguez (1975) 14 Cal.3d 639 …, which held, under former sentencing law, that the Adult Authority could not use a defendant’s postoffense conduct in fixing the ‘primary term’ of an indeterminate sentence. Postoffense considerations rested within the Adult Authority’s broad parole powers under that scheme. The holding hinged on perceived constitutional problems of disproportionate sentencing [citations] should events after the offense be used in the ‘primary term’ decision.” (People v. Harris (1990) 226 Cal.App.3d 141, 146.)
Neither this rule of court nor the reasoning in Rodriguez is applicable to considerations of whether to grant or deny probation. They do not aid defendant’s position.
Defendant argues that this is an issue of first impression. While we have found no recent authority on the issue, it is not a concept new to the law. In People v. Superior Court (1930) 208 Cal. 688, the court discussed matters that could be considered in granting probation. In 1930 a defendant was ineligible for probation if he had suffered any previous conviction of a felony. The Supreme Court held that a “previous conviction” meant one that occurred prior to the current conviction because the law “bears down more heavily on those who have failed to respond to the corrective purposes inherent in the prior conviction.” (Id. at p. 691.) The court went on to explicitly state that it was not holding that in exercising discretion the court may not take into consideration any fact or circumstances concerning the defendant developed at any time prior to the court’s final action. “Circumstances might arise after the commission of the offense or even after conviction which would render a probationary order inadvisable.” (Ibid.)
The trial court here did not err in considering defendant’s Texas conviction in exercising its discretion to deny a grant of probation to defendant because that conviction was relevant to the issue of whether defendant was a suitable candidate for probation.
As a final argument defendant claims that his Texas felony conviction would not have been a felony in California but was the equivalent of a California misdemeanor; therefore it was wrong for the trial court, without obtaining further information, to characterize his conviction as a felony when it denied him a grant of probation. The court was well aware that defendant’s conviction was from Texas and was a felony in Texas. Defendant has not shown that the trial court’s decision would have differed if this same conviction was not a felony in California.
The decision to use a conviction from a jurisdiction outside of California in determining whether to grant or deny probation is not subject to prohibitions contained in laws such as the three strikes law where the conviction from the other jurisdiction must include all of the elements of the specified California felony before it can be utilized as a strike. (See Pen. Code, § 1170.12, subd. (b)(2), People v. Zangari (2001) 89 Cal.App.4th 1436, 1440.)
II. Section 4019 Conduct Credits
The Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender, and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.
This court, in its “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010, ordered that in pending appeals in which the defendant is arguably entitled to additional conduct credit under the amendment, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment violates the intent of the Legislature and equal protection principles. We deem these contentions raised here.
That amendment is not presumed to operate retroactively and does not violate equal protection under law. Defendant is, therefore, not entitled to additional conduct credit under the amendment to section 4019. (People v. Rodriguez (2010) 183 Cal.App.4th 1.)
Disposition
The judgment is affirmed.