Opinion
B226207
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD BROADNAX, Defendant and Appellant.
Kelly Lynn Babineau, 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, Assistant Attorney General, Jaime L. Fuster and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA 358453)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald Rose, Judge. Affirmed in part; reversed and remanded in part.
Kelly Lynn Babineau, 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, Assistant Attorney General, Jaime L. Fuster and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Richard Broadnax appeals from the trial court's determination of his presentence conduct credits. We reverse and remand for the court to reconsider appellant's credits, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 18, 2009, appellant pled no contest to one count of sale of cocaine and admitted a prior conviction for sale of a controlled substance. An allegation that appellant had suffered a prior strike for a serious or violent felony (assault with a deadly weapon) was stricken. The trial court sentenced appellant that same day to one year in county jail and three years of probation. The court gave appellant 74 days of credit, consisting of 50 days actually served and 24 days of conduct credit.
On December 28, 2009, appellant pled guilty to one count of possession of cocaine base. The trial court suspended imposition of appellant's sentence and placed him on probation for one year under the terms and conditions of Proposition 36.
On January 12, 2010, appellant was observed exchanging off-white solids resembling cocaine for currency and was found in possession of more off-white solids. Appellant was arrested for possession of cocaine base for sale. On January 14, 2010, the People filed a request to revoke appellant's probation. The court revoked appellant's probation on January 28, 2010 and he was remanded to custody.
The court held a probation violation hearing on July 8, 2010. It found appellant in violation of his probation in both the Proposition 36 case and the August 2009 case and proceeded to sentence him. For the Proposition 36 case, the court reinstated his probation and ordered him to serve 266 days in county jail, but granted him 266 days of credit, consisting of 178 actual days in custody and 88 days of conduct credit. For the August 2009 case, the court denied probation and sentenced appellant to seven years total in state prison. He was given 631 days of credit, consisting of the original year in county jail plus 178 actual days in custody and 88 days of good time/work time credit under Penal Code section 4019. Appellant argued that he should receive 178 days of conduct credit instead of 88, but the court disagreed because he "had a strike in his background." The version of section 4019 then in effect awarded prisoners two days of conduct credit for every two days served. (§ 4019, subds. (b)(2), (c)(2), (f).) However, if the prisoner had a prior strike for a serious or violent felony, or if the prisoner was required to register as a sex offender, the prisoner received credits at the lower rate of two days of conduct credit for every four days served. (Ibid.) Thus, the court determined that the strike in appellant's "background" rendered him ineligible for day-for-day conduct credits and awarded him credits at the lower rate of two for every four days served.
All statutory further statutory references are to the Penal Code.
At the time of appellant's sentencing in July 2010, then-section 4019, subdivision (f) stated "a term of four days will be deemed to have been served for every two days spent in actual custody," except that for ineligible defendants, "a term of six days will be deemed to have been served for every four days spent in actual custody."
Appellant filed a timely notice of appeal under both case numbers on July 12, 2010.
DISCUSSION
Appellant contends that he is entitled to day-for-day conduct credits equal to 178 days of credit, rather than the 88 days the court awarded him. He argues that because the People did not prove a prior strike, nor did they prove he was required to register as a sex offender, he is entitled to the day-for-day rate of accrual that was available under then-section 4019. The Attorney General contends that he is ineligible for the additional credits because his probation report and the request for revocation of probation contain numerous references to the prior serious felony conviction, and they also refer to a 1974 conviction for rape and his status as a sex offender registrant. We agree with appellant that he is entitled to the additional credits.
People v. Lo Cicero (1969) 71 Cal.2d 1186, 1194 (Lo Cicero) holds that the prosecution must plead and prove the validity of a prior conviction to use it to increase a defendant's punishment. "'[B]efore a defendant can properly be sentenced to suffer the increased penalties flowing from [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.'" (Id. at pp. 1192-1193, quoting People v. Ford (1964) 60 Cal.2d 772, 794 (Ford).) The effect of using the less favorable accrual rate for appellant's conduct credits is 90 more days in prison. Increased time in prison is increased punishment. Accordingly, the People were obligated to prove, or appellant needed to admit, the prior conviction before the court could use it to reduce appellant's conduct credits. This is true whether the prior conviction was a serious or violent felony or whether it was a sex offense that required registration as a sex offender. Either way, the circumstance was used to increase punishment.
Appellant did not admit, nor did the People prove, either of the disqualifying circumstances at issue here. The information alleged a prior strike for assault with a deadly weapon, but appellant never admitted it. The People never presented any evidence to support the allegation, and the court never found that the allegation was true. An allegation that appellant had a prior sex offense or was required to register as a sex offender was not contained in the information, nor was there evidence taken or a finding made on it.
The Attorney General argues that section 4019 does not expressly contain a pleading and proof requirement, and while Lo Cicero implied a pleading and proof requirement, Lo Cicero does not apply here. The Attorney General relies on In re Varnell (2003) 30 Cal.4th 1132 (Varnell) to support this argument. Varnell held that the absence of a pleading and proof requirement in Proposition 36 meant that a court could use an unpled and unproven prior conviction to deny a drug offender probation for drug treatment. (Id. at pp. 1138-1139.) Varnell reasoned that the absence of a pleading and proof requirement in the statute made a prior conviction a "sentencing factor," which need not be pleaded and proved, instead of a sentencing enhancement or allegation, which must be pleaded and proved. (Ibid.)
The Attorney's General's reliance on Varnell is misplaced. In fact, the Varnell court drew a distinction between its case and Lo Cicero:
"There is authority for finding an implied pleading and proof requirement in criminal statutes. In [Lo Cicero], we recognized an implied pleading and proof requirement in [a narcotics statute], which prohibited probation for any defendant convicted of certain narcotics offenses if the defendant had previously been convicted of a narcotics offense. The statute did not expressly require the prior conviction establishing the defendant's ineligibility be pleaded and proved, but we recognized an implied pleading and proof requirement under [Ford], in which 'we held that "before a defendant can properly be sentenced to suffer the increased penalties flowing from [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."' [Citation.] We concluded that '[t]he denial of opportunity for probation involved here is equivalent to an increase in penalty, and the principle declared in Ford should apply.' [Citations.]This key distinction, drawn by Varnell, is what makes Lo Cicero the governing authority in this case. Presentence conduct credits may be earned only under section 4019, and appellant has no alternative means to regain those credits denied to him. Lo Cicero, not Varnell, thus applies here.
"However, this case differs from Lo Cicero in one key respect: [defendant's] prior conviction and the resulting prison term did not eliminate his opportunity to be granted probation [because he remained eligible for probation under another statute.] Thus, unlike Lo Cicero, this is not a case where the prior conviction absolutely denied a defendant the opportunity for probation." (Varnell, supra, 30 Cal.4th at p. 1140.)
We note that a split of authority exists among our appellate districts on whether the version of section 4019 in effect from January 25, 2010, to September 27, 2010, contained a pleading and proof requirement. The Supreme Court has granted review of cases finding a pleading and proof requirement (see e.g., People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011 (S192784)), as well as those not finding such a requirement (see, e.g., People v. Voravongsa (2011) 197 Cal.App.4th 657, review granted Aug. 31, 2011 (S195672)).
In light of our conclusion, we need not reach appellant's alternative argument based on equal protection.
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As a final note, the trial court appeared to believe that it did not have the discretion to disregard appellant's prior strike for section 4019 purposes:
"[Defense Counsel]: He gets 178 [credits].
"The Court: No he doesn't because he has a strike in his background.
"[Defense Counsel]: But they struck the strike.
"The Court: It doesn't matter. Under the law, if he has a strike, even if it is not alleged, it still will limit his time credits."
Section 1385 specifically contemplates that enhancement allegations may be stricken for some purposes and not others. As the statute puts it, the court may strike or dismiss the enhancement, or it "may instead strike the additional punishment for that enhancement." (§ 1385, subd. (c)(1).) But as this case illustrates, the allegation of a prior strike may support more than one kind of "additional punishment" the additional prison term described in the enhancement statutes (§§ 1170.12 & 667), as well as the additional term of imprisonment attributable to a reduction in presentence conduct credits. The court's power to strike only the "additional punishment" presumably includes the power to strike some but not all of the punitive consequences flowing from a prior strike allegation. (See People v. Burke (1956) 47 Cal.2d 45, 51 ["The power to strike or dismiss the proceeding as to a prior conviction is within the power referred to in section 1385 . . . . The authority to dismiss the whole includes, of course, the power to dismiss or 'strike out' a part"].) It is unclear from the record whether the intent of the parties' plea agreement was to strike the prior for all purposes, or merely for purposes of the additional prison term in the enhancement statutes. The record merely states that the allegation was being "stricken" or "dismiss[ed]."
In this situation, the trial court had the discretion to decide whether, in the interests of justice, the prior conviction should be stricken for purposes of awarding section 4019 day-for-day conduct credits. The proper course is thus a remand to give the trial court the opportunity to exercise its discretion. If the trial court does not strike the prior conviction allegation for these purposes, it should proceed to adjudicate the prior strike allegation consistent with this opinion.
DISPOSITION
We reverse and remand to the trial court to determine whether, pursuant to section 1385, the allegation of appellant's prior strike for assault with a deadly weapon should be stricken for purposes of awarding section 4019 day-for-day conduct credits. If the court strikes the allegation for section 4019 purposes, the trial court is directed to award additional presentence conduct credits and send an amended abstract of judgment to the Department of Corrections and Rehabilitation. If the court does not strike the allegation for section 4019 purposes, the trial court is directed to adjudicate the allegation consistent with this opinion. In all other respects the judgment is affirmed.
FLIER, J.
I CONCUR:
RUBIN, Acting P. J.
GRIMES, J., DISSENTING
Respectfully, and with brevity, I dissent.
I disagree with the conclusion of the majority that a prior serious felony conviction must be pled and proven to disqualify a defendant from receiving enhanced pre-sentence custody credit under the version of Penal Code section 4019 that was in effect when defendant was sentenced. I will be brief because, as the majority observed, the Courts of Appeal in previous opinions have thoroughly examined this question. The Supreme Court has granted review in some of those cases. (See, e.g., People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784.) It is unnecessary here to repeat the previously published, thorough discussions of the issue, and I will only summarize the basic reason why, in my view, section 4019 should not be construed to impliedly require pleading and proof of a prior serious felony conviction.
Due process does not require pleading and proof of defendant's prior serious felony conviction because the denial of enhanced conduct credits did not increase the penalty for defendant's crime beyond the prescribed statutory maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466.) Conduct credits decrease a defendant's time in custody; denying the enhanced conduct credits of Penal Code former section 4019 did not increase defendant's punishment; it simply did not decrease the punishment as much as it otherwise would have without the disqualifying prior serious felony conviction. Even if it were correct to construe section 4019 as a sentence enhancement, Apprendi does not apply to "sentence enhancement provisions that are based on a defendant's prior conviction." (People v. Sengpadychith (2001) 26 Cal.4th 316, 326; see also Apprendi, supra, 530 U.S. at p. 490.)
Moreover, in In re Varnell (2003) 30 Cal.4th 1132, the Supreme Court rejected the claim that a trial court may disregard "sentencing factors" (an aggravating or mitigating circumstance that supports a sentence within the range authorized by the jury's finding of guilt) and found a prior offense barring a defendant from eligibility for Proposition 36 drug treatment need not be pled and proved. Varnell reasoned in part: "And even if petitioner's criminal history were to bar him automatically from probation, due process would not require that the facts supporting imposition of a mandatory prison term be pleaded and proved." (Varnell, at p. 1142, citing McMillan v. Pennsylvania (1986) 477 U.S. 79, 87-88 and Harris v. United States (2002) 536 U.S. 545, 568.) With no due process basis for implying a pleading and proof requirement, I see no reason justifying the majority's conclusion. (See Varnell, at p. 1141 [Legislature knows how to specify a pleading and proof requirement, and none should be implied absent due process/fair procedure concerns].)
Neither the holding nor principle of People v. Lo Cicero (1969) 71 Cal.2d 1186 supports the implied imposition of a pleading and proof requirement under Penal Code former section 4019. That case implied a pleading and proof requirement for a prior conviction that barred the sentencing court from considering probation as an alternative to imposing a prison term. The Lo Cicero court concluded that denying the opportunity for probation was the same as an increase in punishment, so the prior conviction had to be pled and proven. (Lo Cicero, at p. 1193.) Barring probation removes a sentencing choice from the trial court and requires imposition of a prison (or, in some cases, jail) sentence for a convicted defendant. In contrast, former section 4019 does not impinge on the trial court's sentencing choices. The due process and fair procedure principles that apply to a trial court's sentencing choices do not apply to section 4019.
GRIMES, J.