Opinion
A129573
11-09-2011
THE PEOPLE, Plaintiff and Respondent, v. BOBBY LEE STANFIELD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. VCR198800)
Bobby Lee Stanfield (appellant) appeals the revocation of his probation and imposition of a state prison sentence, contending that he is entitled to additional presentence conduct credits and that the court abused its discretion in revoking his probation and imposing the 12-year sentence. The People argue the trial court awarded appellant excessive presentence credits and ask us to correct that error. We conclude appellant is entitled to two additional days of presentence conduct credit and otherwise affirm.
BACKGROUND
On July 11, 2008, appellant attempted to sell cocaine to an undercover police officer. On July 15, a complaint was filed in Solano County Superior Court alleging transportation of cocaine base for sale (Health & Saf. Code, § 11352, subd. (a)) (count 1) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5) (count 2). As to both counts, the complaint alleged appellant had three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a), one prior conviction within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c), and four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). One of these prior prison terms was imposed as a conviction for first degree burglary (Pen. Code, § 459).
On August 14, 2008, the parties negotiated a plea agreement. Appellant entered a plea of no contest to count 2, admitted two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a), and admitted two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The People concede there was no specification as to which prior convictions or prison terms appellant admitted. The remaining charges and enhancements were dismissed.
All undesignated section references are to the Penal Code.
On August 29, 2008, appellant was sentenced to 12 years in state prison. Imposition of sentence was suspended and he was placed on three years' formal probation, conditioned in part on his successful completion of the Delancey Street Foundation residential treatment program (the program).
On September 10, 2008, appellant entered the program. He absconded from the program on March 5, 2010, without successfully completing it. Appellant admitted that he knowingly violated two program rules during his 18 months at the program: he had a relationship with a female participant and possessed undisclosed money in excess of the permitted amount. He asserted he was asked to leave the program for violating program rules. The probation report indicated that appellant chose to leave the program to avoid punishment for violating program rules. It recommended that appellant's probation remain revoked and his 12-year suspended prison sentence be imposed.
On March 26, 2010, appellant admitted the probation violation. On June 24, the trial court revoked probation and imposed the 12-year prison sentence. On July 22, the court awarded appellant 833 days of presentence credit: 737 days of actual time served,and 96 days of conduct credit pursuant to section 4019.
These 737 days were comprised of the following: 61 days in the Solano County Jail from July 12 to September 10, 2008; 542 days in the program from September 10, 2008 to March 5, 2010; and 134 days in the Solano County Jail from March 11 to July 22, 2010.
Appellant received six conduct credits for every four days of actual custody through July 22, 2010.
On August 11, 2010, appellant timely filed his notice of appeal.
DISCUSSION
I. Presentence Credits
Appellant contends his first day of jail custody began on July 11, 2008, when he was arrested; therefore, pursuant to section 2900.5, he is entitled to an additional day of actual custody credit. The People concede the error, but assert that due to an additional calculation error by the court, the total award of actual custody credit for the period between July 11, 2008, and March 5, 2010, was correct.
Appellant also contends he is entitled to additional days of conduct credit under the amended version of section 4019, effective January 25, 2010, providing for one-to-one conduct credit. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50 (hereafter, amended section 4019).) The People rejoin that appellant is not qualified to receive one-to-one conduct credit because (1) he was in custody prior to January 25, 2010, the effective date of amended section 4019; (2) amended section 4019 should not be applied retroactively; and (3) the court could properly consider his prior first degree burglary conviction to disqualify him from earning one-to-one credits under amended section 4019. The People additionally assert appellant's resentence custody and conduct credits should be reduced by 42 days for the time spent in custody between June 24, 2010, when he was sentenced, and July 22, 2010, when he reported back to court for a determination of his presentence credits.
Effective September 28, 2010, the Legislature again amended subdivisions (b), (c) and (f) of section 4019. (Stats. 2010, ch. 426, § 2.) Because appellant was sentenced in June 2010, amended section 4019 governs his entitlement to conduct credits.
A. Standard of Review
We resolve the parties' dispute over the proper number of actual custody credits by interpreting section 2900.5, and their dispute over conduct credits by construing section 4019. Statutory interpretation presents a question of law, which we review de novo. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474.)
B. Legal Framework for Actual Custody and Conduct Credits
A defendant is entitled to actual custody credit for "all days of custody" in county jail and residential treatment facilities, including partial days. (§ 2900.5, subd. (a); People v. Smith (1989) 211 Cal.App.3d 523, 526 [partial days].) Calculation of these credits begins on the day of arrest and continues through the day of sentencing. (People v. Bravo (1990) 219 Cal.App.3d 729, 735 (Bravo).) Presentence credits are awarded at the time of sentencing. (See Cal. Rules of Court, rules 4.310, 4.472.)
All further rule references are to the California Rules of Court.
Section 4019 provides that a criminal defendant may earn additional presentence credit against his sentence for being willing to perform assigned labor (§ 4019, subd. (b)) and for complying with applicable rules and regulations (§ 4019, subd. (c)). (See People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 [these presentence credits are collectively referred to as conduct credits].) Conduct credits are based on presentence days spent in jail, but not days spent in a rehabilitation facility like the program. (§ 4019, subd. (a)(1)-(4).)
Before January 25, 2010, former section 4019, subdivisions (b) and (c) provided that "for each six-day period in which a prisoner is confined in or committed to" a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Former section 4019, subdivision (f) also provided that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Stats.1982, ch. 1234, § 7, p. 4554.)
Effective January 25, 2010, however, amended section 4019 provided for accelerated credits that accrue at twice the previous rate. (Amended § 4019, subd. (f) ["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"].) Defendants who are required to register as sex offenders, defendants committed for a serious felony, and defendants who have a prior conviction for a serious or violent felony are specifically denied eligibility for the accelerated credits. (Amended § 4019, subds. (b)(2) & (c)(2).)
C. The Trial Court's Award of Actual Custody Credits
Appellant argues that in calculating his actual custody credits (§ 2900.5), the trial court incorrectly failed to count the day he was initially arrested, July 11, 2008, entitling him to one additional day of presentence credit. Because appellant is entitled to actual custody credit for partial days spent in jail (Bravo, supra, 219 Cal.App.3d at p. 735), we count both appellant's arrest date, July 11, 2008, and the date he was transferred to the program, September 10, 2008, as days in jail, giving him a total of 196 days in jail, one more than the trial court calculated.
The People do not dispute that the court failed to count July 11, 2008, as an actual day in custody, but note that September 10, 2008, the date appellant was transferred from county jail to the program, was counted twice. The People are correct; the two errors offset each other, and the total of 737 days of actual presentence custody credits awarded by the trial court is correct.
The People argue the period between June 24, 2010 (when the court sentenced appellant to a 12-year prison term), and July 22, 2010 (when the court calculated appellant's presentence credits), should not be credited under section 2900.5 as presentence credits, because on June 24, "the court remanded appellant to state prison until his next court appearance, on July 22, 2010, for 'credit calculation' by the probation department." We disagree.
There are two problems with the People's argument. First, the record before us does not reflect that the court remanded appellant to state prison on June 24, 2010.Second, rules 4.310 and 4.472 each provide that "[a]t the time of sentencing, the court must cause to be recorded on the judgment or commitment the total time in custody to be credited on the sentence . . . . Any challenges to the report must be heard at the time of sentencing." At the conclusion of the June 24 hearing, the court continued sentencing until July 22 for preparation of a credit calculation by the probation department. Thus, the period between June 24 and July 22 was presentence. We agree with the trial court that the 28-day delay between June 24 and July 22, 2010, counts in calculating presentence credits.
Although the clerk's minutes from the June 24, 2010 hearing indicate that appellant was remanded on that date to state prison, the reporter's transcript from that hearing does not reflect any such remand by the court.
D. The Trial Court's Award of Conduct Credits
Appellant has a total of 196 actual days in county jail from which conduct credits are calculated. He argues he is also entitled to 196 days of conduct credit representing the accelerated conduct credits prescribed by amended section 4019. We disagree.
Appellant does not dispute that, in 1993, he was convicted of first degree burglary, a prior serious felony as defined in section 1192.7, subdivision (c)(18), or that amended section 4019, subdivisions (b)(2) and (c)(2) bar accelerated conduct credits for a person who has suffered this prior conviction. He contends, however, that this bar is inapplicable because it implicitly requires that the prior conviction be pled and proven beyond a reasonable doubt in the current proceeding before the defendant can be deemed ineligible for the accelerated conduct credits. Appellant argues that because his prior burglary conviction was neither proven nor admitted in the trial court, he is entitled to such credits. We disagree. A prior serious felony conviction is not a matter that must be pled and proven under amended section 4019. Instead, it is a sentencing factor that disqualifies the defendant from receiving accelerated credits, even though it was not proven below.
Several cases have analyzed this issue in the slightly different context of deciding if the trial court has the discretion under section 1385 to strike a prior serious felony allegation in order to permit the defendant to take advantage of the accelerated credits granted by amended section 4019. The courts have disagreed on the result, and the Supreme Court has granted review to resolve this issue. We side with those courts that have rejected appellant's argument.
Pleading and proof required and section 1385 motion to dismiss available: People v. Jones (2010) 188 Cal.App.4th 1165, review granted December 15, 2010 (S187135); People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011 (S192784).
Pleading and proof not required: 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).
Failing to allege and prove a prior conviction, like the dismissal of a prior conviction allegation under section 1385, " 'is not the equivalent of a determination that [the] defendant did not in fact suffer the conviction.' " (People v. Garcia (1999) 20 Cal.4th 490, 496, 499.) Even after a court strikes or dismisses a prior conviction allegation, "the [prior] 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." (Garcia, at p. 499; accord, In re Varnell (2003) 30 Cal.4th 1132, 1138 (Varnell).)
In Varnell, the defendant was charged with possession of methamphetamine and was alleged to have suffered a prior strike conviction. At the defendant's request, the court struck the prior strike allegation, which, among other things, would have rendered him ineligible to be sentenced to a mandatory drug treatment program under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). (Varnell, supra, 30 Cal.4th at p. 1135.) But the trial court ruled that the fact of the prior conviction and the resulting prison term rendered the defendant ineligible for Proposition 36 treatment. The Supreme Court affirmed, concluding the trial court had no power under section 1385 "to disregard petitioner's criminal history, even though petitioner's ineligibility was not a charge or allegation in the information that could be dismissed," and determining that the trial court lacked the power under section 1385 to disregard a sentencing factor that would render the defendant ineligible for Proposition 36 sentencing. (Varnell, at pp. 1134-1135.) In reaching this conclusion, the court distinguished the charges and allegations in a criminal action from uncharged sentencing factors, particularly those that would render the defendant ineligible for certain sentencing options, reasoning: "[A] trial court's power to dismiss an 'action' under section 1385 extends only to charges or allegations and not to uncharged sentencing factors, such as those that are relevant to the decision to grant or deny probation [citation] or to select among the aggravated, middle, or mitigated terms [citation]. [Proposition 36] does not require that the basis for a defendant's ineligibility be alleged in the accusatory pleading. In the absence of a charge or allegation, there is nothing to order dismissed under section 1385." (Varnell, at p. 1139.)
Under Varnell, the question is whether ineligibility for accelerated presentence custody credits under amended section 4019, subdivisions (b)(2) and (c)(2), based on a prior serious or violent felony conviction, constitutes a sentencing allegation that must be pled and proven. Section 4019 does not expressly require this. However, our Supreme Court has implied a pleading and proof requirement in criminal statutes that provide for increased punishment resulting from the fact of a prior conviction.
See People v. Lo Cicero (1969) 71 Cal.2d 1186 [concluding that the absolute denial of the opportunity for probation is equivalent to an increase in punishment, and thus, that the fact of a prior conviction must be pled and proven]; People v. Ford (1964) 60 Cal.2d 772 [recognizing a pleading and proof requirement where the fact that the defendant was armed with a deadly weapon at the time of the offense, or with a concealed weapon at the time of arrest, resulted in increased penalties]; compare Varnell, supra, 30 Cal.4th at page 1140 [holding that the denial of the opportunity to be sentenced to probation under one statute did not constitute an increase in penalty where the defendant remained eligible for probation under another statute].
While the denial of accelerated conduct credits increases the amount of time that a qualified defendant will spend in prison, it does not increase the defendant's punishment for due process purposes. (See, e.g., Varnell, supra, 30 Cal.4th at p. 1135.) The award of custody credits is qualitatively different from the imposition of sentence.
Thus, the prosecution is not required to plead and prove the existence of a prior serious felony conviction as a prerequisite to barring application of the accelerated credit provision of amended section 4019, subdivisions (b)(2) and (c)(2). Appellant's prior serious felony conviction rendered him ineligible to earn custody credits at an enhanced rate under amended section 4019, and we reject his assertion that he is also entitled to 196 days of custody credit.
Because of our ruling on this issue, we need not resolve the People's contention that amended section 4019 should not be applied retroactively to cover appellant.
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However, because we concluded in part I.C. that appellant is entitled to 196 days of credit for presentence time spent in jail, he is entitled to 98 days of presentence conduct credit, instead of the 96 days awarded by the court.
II. Revocation of Probation
Appellant contends that the trial court abused its discretion by refusing to reinstate probation and imposing the 12-year suspended prison sentence because the sentence is disproportionate to his underlying offense and because sending nonviolent drug offenders to prison is contrary to the public interest.
In recommending revocation of probation and reinstatement of appellant's prison sentence the probation report stated: "It is of concern [appellant] is continuing to be dishonest, to both probation and to program staff at [the program]. [Appellant] knowingly broke a program rule, by having money in his possession and could not come up with a valid excuse as to why he needed more money than allowed. It appears that even after 18-months of residential treatment[, appellant] is still practicing manipulative behavior, as well as not being able to be honest and forthcoming regarding his actions. [Appellant] was given the opportunity to address his substance abuse issues at [the program], yet it appears he has yet to address his behavior related issues regarding honesty. Rather than admit he walked away from the program, he instead chose to place the blame on another resident, as well as insist he was asked to leave. [Appellant] was given the opportunity at probation by the [c]ourt in lieu of a lengthy state prison sentence. It was hoped [appellant] would have responded more favorably to treatment, knowing he has a lengthy suspended prison sentence. However, [appellant] absconded from the program and has yet to accept the responsibility of his actions by knowingly breaking program rules. At this juncture, [appellant] does not appear appropriate for continued probation services."
At the probation revocation hearing, appellant's counsel asserted that appellant had dealt with the termination of his probation "honorably," by turning himself in to probation immediately, had learned a lot from his 18 months in the program, had matured and was "ready to put into place the tools of recovery" he acquired in the program. Counsel requested that in the interests of justice, the court not impose the suspended 12-year term and instead, impose a one-year jail term and waiver of all credits. The prosecutor noted that pursuant to his negotiated plea, appellant was given a 12-year suspended prison sentence instead of the maximum 18 years he could have received if convicted of all charges.
In denying probation and imposing the 12-year prison term, the court stated in part: "You got a suspended sentence, and the agreement was that you were supposed to comply with the terms of your probation, and you haven't done that. I'm looking at your rap sheet back in 1990, burglary, 245, assault with a deadly weapon, two years in prison, drug sales, possession for sale, resisting arrest, more drug possession, more drug sales. [¶] I don't think the interest of justice would be served by granting the defendant probation."
Section 1203.2, subdivision (a) states, in relevant part, "the court may revoke and terminate . . . probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation." Subdivision (c) of that section provides, in relevant part: "Upon any revocation or termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced." At a probation revocation hearing, proof of facts supporting the revocation of probation may be made by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447 (Rodriguez).)
After finding a defendant violated probation and revoking the defendant's probation, a court may either reinstate probation on the same or modified terms, or terminate probation and order the defendant committed to prison. (People v. Harris (1990) 226 Cal.App.3d 141, 147.) We review the revocation of probation for an abuse of discretion. (Rodriguez, supra, 51 Cal.3d at p. 443.) In doing so, " 'it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)
The trial court did not abuse its discretion in revoking appellant's probation and in reinstating his 12-year prison sentence. Appellant admitted that he knowingly violated a condition of probation. This, together with his extensive criminal history, is sufficient to support a revocation of probation and a subsequent reinstatement of the full suspended sentence. The trial court had discretion to consider the policy arguments raised by appellant, was not compelled to reinstate probation, and did not abuse its discretion in refusing to do so. Therefore, we affirm.
DISPOSITION
The matter is remanded with directions to the trial court to modify the judgment to credit defendant with two additional days of presentence conduct credit for a total of 98 days of presentence conduct credit, prepare an amended abstract of judgment, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
SIMONS, J. We concur. JONES, P.J. NEEDHAM, J.