Opinion
C063721 Super. Ct. No. 09F01848
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. DELLONAMAYE SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Dellonamaye Smith of evading a peace officer with willful and wanton disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)) and lynching (Pen. Code, § 405a). Following her conviction, defendant admitted four prior prison term enhancements (§ 667.5, subd. (b)), and the trial court sentenced her to six years and eight months in prison.
Further unspecified statutory references are to the Penal Code.
Defendant was sentenced to two years (the low term) for lynching, a consecutive eight months (one-third the middle term) for evading, plus one year for each of the four prior prison term enhancements.
On appeal, defendant contends the four prior prison term enhancements must be stricken because she did not admit that she served a separate prison term for each conviction and there was no evidence that she had. Defendant also contends she is entitled to additional presentence conduct credit under the recent amendments to section 4019.
We shall conclude, based on the totality of the circumstances, that defendant admitted the allegations set forth in the first amended information, which included an allegation that she served a separate prison term for each conviction. We shall further conclude that defendant is entitled to additional presentence conduct credit. Accordingly, we shall modify the judgment to reflect those additional credits and affirm the judgment as modified.
DISCUSSION
In light of the issues raised on appeal, a recitation of the underlying facts is unnecessary.
I
Prior Prison Term Enhancements
"[T]he prosecution bears the burden of proving each element of a sentence enhancement beyond a reasonable doubt; a reviewing court must review the record in the light most favorable to the judgment to determine whether substantial evidence supports the factfinder's conclusion, i.e., whether a reasonable trier of fact could have found that the prosecution had sustained its burden of proving the defendant guilty beyond a reasonable doubt." (People v. Jones (1999) 75 Cal.App.4th 616, 631.)
"Imposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (People v. Tenner (1993) 6 Cal.4th 559, 563.)
Defendant contends there was insufficient evidence to prove the prior prison term enhancements because she "did not admit that she had served a separate prison term for each conviction and there was no evidence before the court establishing that she had." We are not persuaded.
The first amended information alleged defendant had four prior felony convictions within the meaning of section 667.5, subdivision (b): (1) possession of a controlled substance for sale on November 18, 1997; (2) possession of a controlled substance on October 25, 2000; (3) receiving stolen property on November 9, 2001; and (4) possession of a weapon inside a penal institution on March 22, 2004. As to each of the prior convictions, the information further alleged that defendant "served a separate term in state prison of [one] year [or] more for the said offense, and that she did not remain free of prison custody for, or did commit an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of said term . . . ."
After defendant was convicted, the trial court asked defense counsel whether defendant would be "going forward . . . with a trial on the priors." Counsel responded that he had spoken to defendant, and that she was "prepared to admit her priors at this point." After addressing issues related to her co-defendants, the court then addressed defendant directly, stating: "[Y]our lawyer has indicated to me that you want to go ahead and admit to having suffered the prior convictions that are addressed in the Information. And that would follow Count 3, and there's four prior convictions that are here in the Information. [¶] Is that what you want to do? You want to waive or give up your right to trial as to those priors?" (Italics added.) Defendant indicated that she did. The court asked defendant if she needed any additional time to talk to her lawyer, and she said she did not.
The court then advised defendant of her right to a court trial, as well as her right to remain silent, right to put on evidence, and right to confront witnesses. Defendant indicated that she understood that if she admitted "the priors" she would be waiving those rights, and that she "wanted to waive or give up those rights." Thereafter, the following colloquy ensued:
By that time, defendant had already waived her right to a jury trial.
"THE COURT: All right. The prior conviction charged as prior conviction one charges that on November 18, 1997, you were convicted of possession of a controlled substance for sale, that was a violation of Penal Code Section 11352.
"As to that prior conviction, do you admit or deny?
"DEFENDANT SMITH: I admit.
"THE COURT: The second prior charges that on October 25th, 2000, in the County of Woodland, you were convicted for possession of a controlled substance, in violation of Section 11350 of the Health and Safety Code.
"As to that prior conviction, do you admit or deny?
"DEFENDANT SMITH: I admit.
"THE COURT: Prior conviction three charges that on or about November 9, 2001, in the Superior Court here in Sacramento, you were convicted of receiving stolen property, that's a violation of Section 496(a) of the Penal Code.
"As to that prior conviction, do you admit or deny?
"DEFENDANT SMITH: I admit.
"THE COURT: And prior conviction four states that on March 22nd, 2004 in the County of Madera, you were convicted of possessing a weapon inside a penal institution, that's a violation of Section 4502(a) of the Penal Code.
"As to that prior conviction, do you admit or deny?
"DEFENDANT SMITH: I admit."
The trial court found "the prior convictions charged in the Information to be true," and that defendant "voluntarily, intelligently and knowingly made the waivers and made the . . . decision to . . . admit those prior convictions . . . ."
Relying on People v. Epperson (1985) 168 Cal.App.3d 856 and People v. Lopez (1985) 163 Cal.App.3d 946, defendant contends there is insufficient proof of the prior prison term enhancements because the colloquy only refers to the fact of her convictions.
In Epperson, the court concluded that the defendant's admission of his prior convictions, which did not include an explicit admission of the separate prison term requirement, could not be construed "as including admissions of all the necessary elements of the enhancements alleged under Penal Code section 667.5, subdivision (b)." (168 Cal.App.3d at pp. 864-865.) In Lopez, the court stated: "[T]he record does not indicate that the amendment to the felony complaint was read to defendant, that he waived a reading thereof, or that he was ever advised that by admitting the validity of the prior convictions he would also be admitting that he served separate prison terms therefor. Thus, his admission that the prior convictions were valid cannot be construed as an admission of the allegations that he served prior, separate prison terms for each of those convictions." (163 Cal.App.3d at p. 951.)
To the extent Epperson or Lopez may be understood to require per se reversal of a prior prison term enhancement under section 667.5, subdivision (b) where the defendant's admission of a prior conviction does not include his or her express admission of the separate prison term element, we decline to follow them. Rather, we are persuaded that whether a defendant has admitted to having served the requisite separate prison term turns on the totality of the circumstances. (See People v. Mosby (2004) 33 Cal.4th 353, 356.)
Here, the entire point of the proceedings was to address the enhancement allegations relating to the prior convictions alleged in the first amended information, and defendant was so advised by the trial court. Before defendant admitted the priors, the trial court told her: "[Y]our lawyer has indicated to me that you want to go ahead and admit to having suffered the prior convictions that are addressed in the Information. And that would follow Count 3, and there's four prior convictions that are here in the Information." (Italics added.) As previously discussed, the first amended information alleged defendant had served four prior prison terms within the meaning of section 667.5 , subdivision (b). The allegations in the amended information state that defendant was previously convicted of a felony, had served a prison term for the felony, and did not remain free of custody for five years after serving the term.
Viewing defendant's admissions in the context of the entire proceedings (Mosby, supra, 33 Cal.4th at p. 356), it is clear defendant was admitting the allegations set forth in the first amended information. (See People v. Ebner (1966) 64 Cal.2d 297, 303 ["[d]efendant's admission of the prior convictions is not limited in scope to the fact of the convictions but extends to all allegations concerning the felonies contained in the information"]; People v. Cardenas (1987) 192 Cal.App.3d 51, 61 ["admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served"]; see also People v. Welge (1980) 101 Cal.App.3d 616, 623 ["admission of prior convictions cannot be construed as an admission that separate terms were served therefor, in the absence of an allegation in the information or complaint that the defendant served separate terms on the prior convictions"].) Accordingly, defendant's contention that there was insufficient evidence that she served a separate prison term for each conviction lacks merit.
II
Conduct Credit
Defendant also contends she is entitled to additional custody credits under the amendments to section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits. We agree defendant is entitled to additional credits.
The Attorney General contends the amendments should not be given retroactive effect. Until the issue is finally decided by the California Supreme Court (People v. Brown (2010) 182 Cal.App.4th 1354, rev. granted June 9, 2010, S181963), we conclude, for the reasons that follow, that the amendments apply to all defendants sentenced prior to those effective dates.
In October 2009, the Legislature passed Senate Bill No. 3X 18, which, among other things, revised the accrual rate for conduct credits under section 4019. The amendment became effective on January 25, 2010. (Stats. 2009 (3d Ex.Sess. 2009-2010) ch. 28, § 50.)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Stats. 2010, ch. 426, § 1), which amended section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (§ 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18, when the person served an odd number of days in presentence custody. (Stats. 2009 (3d Ex.Sess. 2009-2010) ch. 28, § 50.) Section 2 of Senate Bill No. 76 also eliminates the directive in former section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (§ 4019, subd. (e).)
Neither of the amendments states that it is to be applied prospectively only. Consequently, we conclude the amendment increasing the rate for earning presentence conduct credit applies retroactively to defendants sentenced prior to those effective dates. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying the rule of Estrada to an amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits].)
Defendant was sentenced on December 11, 2009. She does not have a present or prior conviction for a "serious" or "violent" felony and is not subject to registration as a sex offender. (§ 2933, subd. (e)(3).) Consequently defendant, having served 150 days in presentence custody, is entitled to 150 days of conduct credit, rather than the 74 days previously awarded. (§ 2933, subd. (e)(1).) This gives her a total of 300 days' credit, rather than the 224 days previously awarded. We shall order the judgment modified accordingly.
Section 2933, subdivision (e)(3) reads: "Section 4019, and not this subdivision, shall apply if the prisoner is required to register as a sex offender, pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5."
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DISPOSITION
The judgment is modified to award defendant 150 days' conduct credit for a total of 300 days' presentence custody credits. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
BLEASE, Acting P. J.
We concur:
HULL, J.
MAURO, J.