Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA077563 Thomas R. Sokolov, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Daniel C. Chang and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant Gregory Lee Boylan (defendant) pled no contest to grand theft (Pen. Code, §§ 487, subd. (a) ) and petty theft with a prior conviction (§§ 484, subd. (a), 666). On appeal, defendant contends that the trial court erred in sentencing him. We affirm the judgment.
All statutory citations are to the Penal Code unless otherwise noted.
BACKGROUND
The District Attorney of Los Angeles County filed a felony complaint charging defendant with grand theft in violation of section 487, subdivision (a) and petty theft with a prior conviction in violation of sections 484, subd. (a), and 666. The felony complaint also alleged, inter alia, that defendant suffered one prior serious or violent felony conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
Defendant pleaded no contest to both counts and admitted the prior serious or violent felony conviction. On May 25, 2010, the trial court sentenced defendant to four years in state prison. The trial court credited defendant with 103 days in custody consisting of 69 days actual custody credits and 34 days conduct credit.
DISCUSSION
Defendant’s sole contention on appeal is that the trial court had the discretion to dismiss or strike his prior serious felony conviction under section 1385 in order to award him additional presentence credits under section 4019, and failed to exercise it. We disagree.
This issue is currently before the California Supreme Court in People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784, People v. Koontz (2011) 193 Cal.App.4th 151, review granted May 18, 2011, S192116, and People v. Jones (2010) 188 Cal.App.4th 165, review granted Dec. 15, 2010, S187135. Defendant contends that, “[T]he trial court possessed [the discretion under section 1385 to dismiss or strike the prior serious felony conviction in order to award him additional presentence credits] but failed to exercise it, most likely because it never understood that it possessed such discretion.”
A. Authority to Consider Appeal
The Attorney General argues that defendant’s contention challenging the trial court’s award of presentence custody credits is not cognizable pursuant to section 1237.1 because defendant did not first present the claim in the trial court at the time of sentencing nor did he make a motion before the trial court to correct the record. Defendant’s appeal is not precluded by section 1237.1.
Section 1237.1 provides that, “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” Section 1237.1 only applies when the sole issue raised on appeal “involves a criminal defendant’s contention that there was a miscalculation of presentence credits.” (People v. Acosta (1996) 48 Cal.App.4th 411, 420.) The issue presented here does not involve a contention that there was a “miscalculation” of defendant’s presentence custody credits. The issue here is whether the trial court had the discretion to (or not to) dismiss or strike defendant’s prior serious felony conviction under section 1385 for purposes of awarding him additional presentence credits under section 4019.
B. Discretion to Strike Defendant’s Prior Serious Felony Conviction
A criminal defendant in presentence custody “may... be eligible for presentence good behavior/worktime credits (collectively referred to as conduct credits)” pursuant to section 4019, subdivisions (b), (c) and (f). (People v. Cooper (2002) 27 Cal.4th 38, 40.) Under the version section 4019 that was in effect until January 25, 2010, “a defendant receives two days of conduct credit for each four-day block of time served.” (People v. Kimbell (2008) 168 Cal.App.4th 904, 908.)
The version of section 4019 that was in effect until January 25, 2010, (Stats. 1982, ch. 1234, § 7) stated in pertinent part, “(a) The provisions of this section shall apply... [¶]... [¶] (4) When a prisoner is confined in a county jail... following arrest and prior to the imposition of sentence for a felony conviction. [¶] (b) [F]or each six-day period in which a prisoner is confined in or committed to a [county jail] 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.... [¶] (c) [F]or each six-day period in which a prisoner is confined in or committed to a [county jail] 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 not satisfactorily complied with the reasonable rules and regulations established.... [¶]... (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....”
In October 2009, the legislature passed Senate Bill number 18 (SB 18), which amended section 4019 and went into effect on January 25, 2010. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50 (SB 18).) The amended version of section 4019 provided for the accrual of presentence credits at twice the previous rate—a defendant received two days of conduct credit for each two-day block of time served. However, amended subdivisions (b)(2) and (c)(2) of section 4019 restricted presentence custody credit to the former formula—that is, two days of conduct credit for each four-day block of time served—if the defendant had “a prior conviction for... a violent felony, as defined in Section 667.5....” (§ 4019, subds. (b)(2) & (c)(2).)
The version of section 4019 effective January 25, 2010, states in pertinent part, “(a) The provisions of this section shall apply... [¶]... [¶] (4) When a prisoner is confined in a county jail... following arrest and prior to the imposition of sentence for a felony conviction. [¶] (b)(1) [F]or each four-day period in which a prisoner is confined in or committed to a [county jail] 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.... [¶] (c)(1) [F]or each four-day period in which a prisoner is confined in or committed to a [county jail] 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 not satisfactorily complied with the reasonable rules and regulations established.... [¶]... (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....”
Section 1385, subdivision (a), states that the trial court, in furtherance of justice, may “order an action to be dismissed.” Subdivision (a) authorizes the trial court to strike a prior conviction allegation “that would otherwise increase a defendant’s sentence.” (People v. Garcia (1999) 20 Cal.4th 490, 496.)
The trial court did not have the discretion to dismiss or strike defendant’s prior serious felony conviction under section 1385 in order to award him additional presentence credits under the version of section 4019 that went into effect on January 25, 2010. Defendant’s ineligibility for additional presentence custody credits does not increase his sentence. The trial court sentenced defendant to four years in state prison. That sentence was not changed by virtue of the trial court having awarded defendant pre-sentence credits to which he was entitled no matter how they are calculated.
The court in People v. James (2011) 196 Cal.App.4th 1102, holding that the prosecution is not required to plead and prove the existence of a prior strike conviction for purposes of applying section 4019, subdivisions (b)(2) and (c)(2), stated that, “[W]hile the enhanced custody credits [of section 4019, subdivisions (b)(2) and (c)(2)] reduce the amount of time that a qualified defendant will spend in prison, their application does not reduce the defendant’s punishment for due process purposes. [Citation.] The awarding of custody credits is qualitatively different from the imposition of sentence.” (Id. at p. 1109.)
In In re Pacheco (2007) 155 Cal.App.4th 1439, the court held that the defendant’s pretrial custody credits were limited by section 2933.1 because the defendant was previously convicted for inflicting great bodily injury. The court stated that, “A reduction in the worktime credits allowed by section 2933.1 may feel like ‘additional punishment’ to a prisoner.... However, a reduction in credits is not considered ‘punishment’ under the law. Rather, such credits are benefits a prisoner earns based on good conduct and participation in qualifying programs.” (Id. at p. 1445.)
Defendant relies on People v. Lo Cicero (1969) 71 Cal.2d 1186, in support of his contention that defendant’s ineligibility for additional presentence custody credits as a result of his prior serious felony conviction increases his punishment and therefore the trial court can strike the prior conviction. The court in People v. Lo Cicero stated, “In People v. Ford (1964) 60 Cal.2d 772..., we held 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, and if the defendant pleads not guilty thereto the charge must be proved and the truth of the allegation determined by the jury, or by the court if a jury is waived.’ (60 Cal.2d at p. 794.) The denial of opportunity for probation involved here is equivalent to an increase in penalty, and the principle declared in Ford should apply.” (People v. Lo Cicero, supra, 71 Cal.2d at pp. 1192-1193.) People v. Lo Cicero is distinguishable because it concerned the defendant’s ineligibility for probation, which “increased penalties,” and not his ineligibility for additional presentence custody credits, which is not considered an increase in the penalty. Also, unlike in the situation in People v. Lo Cicero, supra, 71 Cal.2d 1186, here it was not required that the prior conviction causing defendant to be ineligible for the additional presentence custody credits be alleged in the accusatory pleading, nor was it required to be proved true. (People v. James, supra, 196 Cal.App.4th at p. 1109.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.