Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR1005668.
Marchiano, P.J.
Defendant Loren Wayne Millsap pleaded no contest to felony evasion of a peace officer. He was also charged with, but did not admit, a prior serious felony conviction for burglary. Defendant appeals on the ground that the trial court miscalculated his presentence credits under Penal Code sections 4019 and 2933. As discussed below, we conclude the court did not err in calculating defendant’s credits, and the prior serious felony did not need to be pleaded and proved to disallow credits. We affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On September 11, 2010, defendant Millsap drove a motorcycle at a high rate of speed in Humboldt County while eluding the pursuit of a peace officer’s motor vehicle which had its lights and siren activated. He was charged with felony evasion of a peace officer and two misdemeanors: driving on a suspended license, and resisting arrest. (Veh. Code, §§ 2800.2, subd. (a), 14601.2, subd. (a), and Pen. Code, § 148, subd. (a)(1).) In addition, he was charged with having suffered a prior conviction and served a prior prison term for burglary, a serious felony. (§§ 459-460, 667, subds. (a), (b), 667.5, subd. (b).) On October 1, 2010, pursuant to a negotiated disposition, defendant pleaded no contest to felony evasion in exchange for dismissal of the remaining counts and allegations. On October 29, 2010, the trial court denied probation and sentenced defendant to state prison for the aggravated term of three years. Despite a defense argument that defendant should “actually get halftime on the 4019 credit, ” the court awarded defendant 43 days of presentence custody credit and 20 days of presentence conduct credit, on the ground that his prior serious felony conviction rendered him ineligible for enhanced conduct credits under former Penal Code section 4019, subdivision (c)(2). (Stats. 2009-2010, 3rd Ex.Sess., ch. 28 (Sen. Bill 18), § 50, eff. Jan. 25, 2010.) Defendant timely appealed.
DISCUSSION
The parties agree that defendant earned 43 days of actual custody credit in this matter. The question presented is whether defendant is entitled to 43 days of conduct credit (instead of the 20 he received), under the ameliorative provisions of either (1) the January 25, 2010 amendment to section 4019 (Sen. Bill 18), or (2) the September 28, 2010 amendment to section 2933 (Sen. Bill 76), in light of the reasoning of People v. Lara (2011) 193 Cal.App.4th 1393 (review granted May 18, 2011, No. S192784).
This issue is presently pending before the California Supreme Court in People v. Jones (2010) 188 Cal.App.4th 165 (Jones), review granted December 15, 2010, S187135, and People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011, No. S192784. At the time defendant cited Lara in his reply brief, our Supreme Court had not yet granted review. 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 argued here. Nonpublished appellate decisions have been divided on the issue.
Since the issue presented involves the interpretation of statutes and the application of those statutes to undisputed facts, we review it independently under a “de novo” review standard. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) For the reasons discussed below, we conclude that the Senate Bill 18 version of section 4019 in effect on the commission date of the offense–September 11, 2010–applies to defendant’s credits, and that defendant’s prior serious felony conviction did not have to be pleaded or proved to disqualify him from earning day-for-day credits under the Senate Bill 76 (Sen. Bill 76) version of section 2933, or four-for-two credits under the Senate Bill No. 18 (Sen. Bill 18) version of 4019. Therefore, the trial court correctly calculated defendant’s credits.
The Statutory Framework.
Current section 4019 permits a criminal defendant to earn additional credit prior to being sentenced by performing assigned labor (§ 4019, subd. (b)) or by his or her good behavior during his confinement. (§ 4019, subd. (c).) Such credits are collectively referred to as “conduct credits.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Section 4019’s scheme for presentencing credit “ ‘ “focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed....” ’ [Citations.]” (Dieck, at p. 939.)
Senate Bill No. 18, enacted in October 2009, amended section 4019, effective January 25, 2010, to enhance the rate at which certain offenders could accrue conduct credits. (Stats.2009-2010, 3d Ex.Sess., ch. 28, § 50.) Senate Bill No. 76, enacted later in 2010, changed the accrual rate established by Senate Bill 18.
The January 25, 2010 amendments to section 4019 in Senate Bill 18 allowed some prisoners to earn good conduct and work credits at an accelerated rate of four days credit for every two days actually served. (§ 4019, subd. (f).) However, the amendment made a prisoner ineligible to earn credits at that accelerated rate if he or she “ha[d] a prior conviction for a serious felony, as defined in Section 1192.7.” (§ 4019, subd. (b)(2), (c)(2).) Such a prisoner continued to earn credits at the pre-January 25, 2010 rate of “six days... for every four days spent in actual custody.” (Compare, former § 4019, subd. (f) [Stats.1982, ch. 1234, § 7, p. 4553]; former § 4019, subd. (f) [Stats. 2009-2010, 3rd Ex.Sess., ch. 28 (Sen. Bill 18), § 50, eff. Jan.25, 2010].)
As relevant here, former section 4019 (effective Jan. 25, 2010 to September 27, 2010) provided:
Effective January 25, 2010, the Legislature also amended section 2933 to award one day of earned conduct credit for every day served in county jail “after the date [the prisoner] was sentenced to the state prison as specified in subdivision (f) of Section 4019.” (§ 2933, subd. (e) [Stats.2009-2010, 3rd Ex.Sess., ch. 28 (Sen. Bill 18), § 38, eff. Jan. 25, 2010].) As noted, section 4019, subdivision (f) limits conduct credits to “six days... for every four days spent in actual custody” for persons who have a prior serious felony conviction, among others. Thus, consistent with section 4019, the amendment to section 2933 in Senate Bill 18 denied the increased day-for-day credits for postsentence custody in county jail to any prisoner who “has a prior conviction for a serious felony, as defined in Section 1192.7.” (former § 4019, subds. (b)(2), (c)(2), (f).)
However, effective September 28, 2010, the Legislature again amended sections 4019 and 2933. In its current version, section 4019 reverts to the former formula for earning credits in effect prior to January 25, 2010, i.e., six days of conduct credit for every four days of actual custody. (§ 4019, subd. (f).) It also deletes the section excluding prisoners previously convicted of a serious felony from credit-earning eligibility. However, the Legislature decreed that “[t]he changes in this section as enacted by the act that added this subdivision shall apply to prisoners who are confined to a county jail... for a crime committed on or after the effective date of that act. (§ 4019, subd. (g), fn. omitted, italics added.)
Section 4019 (effective September 28, 2010) now provides in relevant part:
The current version of section 2933 awards earned conduct credits on a day-for-day basis to a prisoner who has been “sentenced to the state prison under Section 1170 for whom the sentence is executed” 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, ” except that persons who have a prior serious felony conviction (among others) are not eligible for day-for-day credits under section 2933; instead, they earn six days credit for every four days served under former section 4019. (§§ 2933, subds. (e)(1), (e)(3), 4019, subd. (g), (eff. 9/28/10), 4019, subd. (f) (eff. 1/25/10).)
Section 2933 now provides in relevant part:
The Trial Court Properly Applied the Versions of Sections 4019 and 2933 in Effect on September 11, 2010.
Defendant committed the crime for which he was sentenced to state prison on September 11, 2010 (while the January 25, 2010 version of section 4019 was in effect) and was sentenced on October 1, 2010 (after the September 28, 2010 versions of 4019 and 2933 went into effect). Defendant asserts that “[s]imply put, the trial court followed the wrong law.” The right law, he contends, is the version of section 2933 which went into effect on September 28, 2010 and awards day-for-day conduct credits to state prison inmates for presentence time spent in county jail from arrest to delivery in state prison. We disagree.
Ordinarily, the statute in effect at the time of sentencing is the statute that applies to the calculation of credits at sentencing. However, in this case, applying current section 2933 to defendant’s case does not help his argument that he is entitled to day-for-day conduct credit. Under the newest formula provided in current section 2933, “[n]otwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed” accrues day-for-day conduct credit from the date of arrest until eligibility for state prison credits begins, unless the prisoner “has a prior conviction for a serious felony” (or is otherwise disqualified.) (§ 2933, subd. (e)(1), (e)(3); italics added.) In that case, pursuant to subdivision (e)(3), “[s]ection 4019, and not this subdivision, shall apply.” (§ 2933, subds. (e)(1), (e)(3).)
Under the current version of section 4019 that was enacted as part of the same legislation as the current version of section 2933, any qualifying county jail inmate is entitled to one day of assigned labor credit and one day of good behavior credit for six days of confinement in county jail (§ 4019, subds. (b) & (c)), or six days for every four days spent in actual custody (§ 4019, subd. (f)), but not day-for-day credit. This version of section 4019 expressly states that it applies prospectively only. (§ 4019, subd. (g).) Defendant’s crime occurred on September 11, 2010, before the current version of section 4019 went into effect. Thus, the version of section 4019 in effect at the time defendant committed the offense was the former version in effect from January 25 until September 27, 2010 that excluded prisoners with prior serious felony convictions from eligibility for enhanced conduct credits. Consequently, whether the law applicable to defendant is current section 2933, current 4019, or former section 4019, defendant is ineligible to earn day-for-day conduct credits. At most, he can earn six days of credit for every four days spent in county jail custody.
However, defendant argues the legislative history of the September 28, 2010 legislation demonstrates section 2933 “was intended to change the credits for those committed to jail, not those committed to prison.” “ ‘When construing a statute, we must “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” ’ [Citations.] ‘[W]e begin with the words of a statute and give these words their ordinary meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, then we need go no further.’ [Citation].” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.) In our view, the plain meaning of the proviso that “[s]ection 4019, and not this subdivision, shall apply” if the prisoner has a prior serious felony conviction is clear and requires no statutory interpretation. (§ 2933, subds. (e)(1) &(e)(3); italics added.) We therefore reject defendant’s argument as inconsistent with the plain meaning of the words of the statute.
The Attorney General argues that subdivision (e)(1) of section 2933 “applies only to days spent in actual local custody. It does not apply to local conduct credit earned while awaiting sentencing.” We disagree. Subdivision (d), which addresses the procedure for restoring forfeited credits, speaks of “serious disciplinary infractions punishable by a credit loss” and a prisoner’s refusal or failure “to perform in a credit qualifying assignment.” (§ 2933, subd. (d).).
The Prior Serious Felony Conviction Need Not Be Pleaded and Proved to Make Defendant Ineligible for Day-for-Day Conduct Credits.
Citing People v. Lo Cicero (1969) 71 Cal.2d 1186 (Lo Cicero), defendant argues that he is entitled to day-for-day credits under section 2933, despite his prior conviction, because reliance on a prior conviction to disqualify a prisoner from accruing additional credits constitutes an increase in punishment. He reasons that since it increases punishment, the prior conviction must be pleaded and proved before it can be used to limit his presentence conduct credits.
The Attorney General argues that the Legislature’s decision to exclude persons with prior serious felony convictions from eligibility for the accelerated accrual of conduct credits does not increase such persons’ punishment, since they continue to accrue conduct credits at the same rate as they enjoyed before the change in the law. We agree with this rationale. Put differently, the fact that a statutory scheme for earning credits may ameliorate punishment for some, does not necessarily mean that it increases punishment for others, at least where the rate at which credits may be earned stays the same as it was before the ameliorative change in the law. The reasoning of Lo Cicero does not demand a different result.
In Lo Cicero, the defendant’s prior conviction made him absolutely ineligible for a grant of probation. Our Supreme Court concluded 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 pleaded and proved. Similarly, in People v. Ford (1964) 60 Cal.2d 772, our Supreme Court struck the increased penalties that attached to a defendant’s sentence as a result of prior convictions and deadly weapon allegations that had not been pleaded or proved. (Id., at p. 794, overruled on another point in People v. Satchell (1971) 6 Cal.3d 28, 35-38.) In contrast, in In re Varnell (2003) 30 Cal.4th 1132, the defendant’s prior conviction made him ineligible for probation under Proposition 36, but he continued to be eligible for probation under other statutes. The Varnell Court distinguished Lo Cicero and Ford and concluded the denial of the opportunity to be sentenced to probation under one statute did not constitute an increase in penalty requiring pleading and proof of the disqualifying prior conviction where the defendant remained eligible for probation under another statute. (Varnell, supra, 30 Cal.4th at p. 1140.)
In our view, this case is more akin to Varnell than to Lo Cicero and Ford. Defendant’s prior conviction does not absolutely disqualify him from earning conduct credits. He remains eligible to earn credits at the same accrual rate that had been applied to presentence conduct credits until the Legislature decided to incentivize good conduct for the least dangerous prisoners by increasing their ability to earn conduct credits. Therefore, the People were not required to plead and prove defendant’s prior serious felony conviction. It is the fact of a serious felony conviction that disqualified defendant from earning conduct credits at an accelerated rate. Since dismissal of the prior conviction as part of the plea bargain for sentencing purposes did not erase the prior conviction from defendant’s prior record (Varnell, supra, 30 Cal.4th at p. 1138), the fact of defendant’s prior conviction continued to disqualify defendant from eligibility to earn credits at an accelerated rate under section 4019, as amended on January 25, 2010, and section 2933, as amended September 28, 2010.
We note further that neither the January 25, 2010 amendments, nor the September 28, 2010 amendments, show any intent on the part of the Legislature to embrace a pleading and proof requirement. The statutory language sets forth no such requirement. (See Varnell, supra, 30 Cal.4th at p. 1139, 1141 [“ ‘when a pleading and proof requirement is intended, the Legislature knows how to specify the requirement’ ” quoting People v. Dorsch (1992)3 Cal.App.4th 1346, 1350]). Nor are sections 4019 and 2933 constituent parts of a statutory scheme that otherwise include such a requirement. For example, section 4019 is not like section 667.8, which is one of a number of enhancement statutes under the three strikes law, most of which expressly required that the enhancements be pleaded and proved. (See People v. Hernandez (1988)46 Cal.3d 194, 200-201 [lack of requirement in section 667.8, “in contrast to the numerous other sentence enhancements specifically required to be pled and proven, ” created “an ambiguity inviting inquiry into the Legislature’s intent in enacting this statute”] disapproved on other grounds in People v. King (1993) 5 Cal.4th 59, 78, fn. 5.) We therefore discern no legislative basis for reading an implied pleading and proof requirement into sections 4019 or 2933.
CONCLUSION
Defendant is not entitled to additional credits under the current versions of sections 4019 and 2933.
DISPOSITION
The judgment is affirmed.
We concur: Margulies, J., Banke, J.
“(a) The provisions of this section shall apply in all of the following cases:
“(1) When a prisoner is confined in or committed to a county jail... including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding.
“(4) When a prisoner is confined in a county jail, ... following arrest and prior to the imposition of sentence for a felony conviction.
“(b)(2) If the prisoner... has a prior conviction for a serious felony, as defined in Section 1192.7, ...subject to the provisions of subdivision (d), for each six-day period in which the prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
“(c)(2) If the prisoner... has a prior conviction for a serious felony, as defined in Section 1192.7... for each six-day period in which the prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
“(f) 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).” (Stats.2009-2010, 3rd Ex.Sess., ch. 28 (Sen. Bill 18) § 50, eff. Jan.25, 2010.)
“(a) The provisions of this section shall apply in all of the following cases:
“(1) When a prisoner is confined in or committed to a county jail... including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding.
“...
“(4) When a prisoner is confined in a county jail... following arrest and prior to the imposition of sentence for a felony conviction.
“...
“(f) It is the intent of the Legislature 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.
“(g) The changes in this section as enacted by the act [Sen. Bill 76] that added this subdivision shall apply to prisoners who are confined to a county jail... for a crime committed on or after the effective date of that act. (Stats.2010, ch. 426 (Sen. Bill 76), § 2, eff. Sept. 28, 2010.)
“(a) It is the intent of the Legislature that persons convicted of a crime and sentenced to the state prison under Section 1170 serve the entire sentence imposed by the court, except for a reduction in the time served in the custody of the Secretary of the Department of Corrections and Rehabilitation pursuant to this section and Section 2933.05.
“(b) For every six months of continuous incarceration, a prisoner shall be awarded credit reductions from his or her term of confinement of six months. A lesser amount of credit based on this ratio shall be awarded for any lesser period of continuous incarceration. Credit should be awarded pursuant to regulations adopted by the secretary. Prisoners who are denied the opportunity to earn credits pursuant to subdivision (a) of Section 2932 shall be awarded no credit reduction pursuant to this section. Under no circumstances shall any prisoner receive more than six months’ credit reduction for any six-month period under this section.
“(c) Credit is a privilege, not a right. Credit must be earned and may be forfeited pursuant to the provisions of Section 2932. Except as provided in subdivision (a) of Section 2932, every eligible prisoner shall have a reasonable opportunity to participate.
“(d) Under regulations adopted by the Department of Corrections and Rehabilitation, which shall require a period of not more than one year free of disciplinary infractions, credit which has been previously forfeited may be restored by the secretary....
“(e)(1) Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner.
“(2) A prisoner may not receive the credit specified in paragraph (1) if it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by, or has not satisfactorily complied with the reasonable rules and regulations established by, the sheriff, chief of police, or superintendent of an industrial farm or road camp.
“(3) Section 4019, and not this subdivision, shall apply if the prisoner... has a prior conviction for a serious felony, as defined in Section 1192.7....
“(f)....” (Stats.2010, ch. 426 (Sen. Bill 76), § 1, eff. Sept. 28, 2010.)
And, subdivision (e)(1) makes no sense if it refers to custody credits, rather than to conduct credits, in providing that the prisoner “shall have one day [of custody credit] 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.” (§ 2933, subd. (e)(1).)