Opinion
A130048
11-14-2011
THE PEOPLE, Plaintiff and Respondent, v. SWEVEN WATERMAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Alameda County Super. Ct. No. C163227
Defendant Sweven Waterman appeals a judgment entered upon his plea of no contest to two crimes. His sole contention on appeal is that the trial court improperly denied him the full presentence good conduct and work credits (collectively conduct credits) to which he was entitled under Penal Code section 4019. We shall affirm the judgment.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
Defendant was charged by information with evading an officer on February 25, 2010 (Veh. Code, § 2800.2, subd. (a)) (count one), and driving under the influence of alcohol or drugs on the same date (Veh. Code, § 23152, subd. (a)) (count two). The information further alleged that defendant had suffered three prior convictions, including one for robbery. (§ 211.)
Defendant pled no contest to counts one and two. It appears from the transcript of the hearing that he was on probation in an "old case." At the hearing the trial court said, "And for purposes of the deal on the new case, the priors will be stricken for sentencing." After finding defendant guilty based upon his plea, the trial court continued, "I understand there's other portions of the Information or Complaint which will be stricken for purposes of sentencing; is that right?" The prosecutor confirmed the trial court's understanding.
The underlying facts are not germane to the issue defendant has raised on appeal, and we will not recite them here.
At the September 30, 2010, sentencing hearing, the trial court calculated presentence credits as 218 actual days, plus 108 days of conduct credit, for a total of 326 days of credit.
II. DISCUSSION
Defendant contends the trial court erred in its calculation of his presentence credits. Effective January 25, 2010, the Legislature amended 4019 to increase the number of presentence credits available to defendants never convicted of a serious or violent felony or required to register as a sex offender. (Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50 (Sen. Bill No. 3X 18).) Under this amendment, an eligible inmate earned conduct credits at twice the previous rate—up to two days of conduct credit for every two days of custody. (Former § 4019, subds. (a)(4), (b)(1), (c)(1) & (f), as amended by Sen. Bill No. 3X 18, eff. Jan. 25, 2010.) The Legislature prospectively eliminated these "one-for-one" conduct credits in September 2010; these changes applied to prisoners confined "for a crime committed on or after" the effective date of the changes, September 28, 2010. (§ 4019, subd. (g); see Stats. 2010, ch. 426, § 2 (Sen. Bill No. 76).) Under the September 28, 2010, version of section 4019, an inmate accrues up to two days of conduct credit for every four days of custody. (§ 4019, subds. (b), (c) & (f).)
Serious felonies for purposes of former section 4019 included robbery. (See § 1192.7, subd. (c)(19).)
The trial court calculated defendant's conduct credits under the September 28, 2010, version of section 4019, which took effect two days before the sentencing hearing. Defendant contends, and the Attorney General concedes, that the trial court erred in doing so, as the September 28, 2010, amendments were prospective only, and applied only to crimes committed on or after the effective date of the amendments. (§ 4019, subd. (g).)
The Attorney General contends, however, that even under the January 25, 2010, version of section 4019, defendant is not entitled to "one-for-one" conduct credits because he had a prior conviction for a serious felony. As we have explained, the prior convictions were stricken for purposes of sentencing. We must decide whether the trial court had discretion to dismiss the prior serious felony conviction for purposes of calculating conduct credits under section 4019.
The probation report states that defendant had suffered a conviction for second degree robbery and had been sentenced to two years in state prison. (§ 211.) It appears that no other evidence of the conviction was presented to the trial court.
Section 1385 authorizes a judge to order an action dismissed in the furtherance of justice, and further provides, "If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)." (§ 1385, subds. (a) & (c)(1).) The question of whether a trial court has discretion to dismiss or strike a prior serious felony conviction under section 1385 in order to award the defendant additional presentence credits under section 4019 is currently pending before our Supreme Court. (People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784.)
The parties frame their disagreement in terms of whether the prior conviction must be pleaded and proven. The Attorney General draws our attention to In re Varnell (2003) 30 Cal.4th 1132 (Varnell). There, our Supreme Court concluded a trial court could not permissibly use section 1385 to disregard " 'sentencing factors' that are not themselves required to be a charge or allegation in an indictment or information." (Id. at p. 1135.) The pleading in Varnell charged the petitioner with possessing methamphetamine and alleged a prior "strike" and prior prison term enhancement. (Ibid.) The trial court dismissed the alleged strike, allowing petitioner to avoid the " 'Three Strikes' " law, but concluded that the fact of the prior conviction and resulting prison term rendered the petitioner ineligible for treatment under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36), which mandates probation and drug treatment for certain drug offenders but excludes offenders who have previously committed serious or violent felonies and have not remained free of prison custody for five years. (Ibid., citing § 1210.1, subd. (b)(1).) Our Supreme Court noted that it had consistently interpreted the term " 'action' " for purposes of section 1385 to mean " the 'individual charges and allegations in a criminal action' " and had never extended it to include "mere sentencing factors," and concluded that to allow section 1385 to be used "to disregard sentencing factors, which . . . are not included as offenses or allegations in an accusatory pleading, would be unprecedented." (Varnell, supra, 30 Cal.4th at p. 1137.) The court went on to note that "the trial court's dismissal of the 'strike' allegation in this case did not wipe out the fact of the prior conviction and the resulting prison term that made petitioner ineligible" for treatment under Proposition 36. (Id. at p. 1138.) The court held that "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 [citations]. Section 1210.1 . . . 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. The Court of Appeal thus erred in finding uncharged historical facts could be disregarded under section 1385." (Varnell, supra, 30 Cal.4th at p. 1139, second italics added.)
Defendant argues, however, that an award of conduct credits under section 4019 constitutes " ' amelioration of punishment' " (see People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240), and must be pled and proved under the rule of People v. Lo Cicero (1969) 71 Cal.2d 1186 (Lo Cicero). In Lo Cicero, our high court recognized an implied pleading and proof requirement in a statute that prohibited probation for any defendant convicted of certain narcotics offenses if the defendant had previously been convicted of a narcotics offense. In doing so, the court stated, "In People v. Ford (1964) 60 Cal.2d 772 [(Ford)], 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.' ([Ford, supra,] 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." (Lo Cicero, 71 Cal.2d at pp. 1192-1193.)
The court in People v. Doganiere applied the rule that laws granting amelioration of punishment should be applied retroactively to nonfinal judgments. (Doganiere, supra, 86 Cal.App.3d at pp.239-249,)
In Ford, prior conviction and weapon allegations that had not been alleged in the information or submitted to the jury, and our Supreme Court concluded sentence enhancements based on those factors should not have been imposed. (Ford, supra, 60 Cal.2d at p. 794.)
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Defendant contends that under the rule of Lo Cicero, he suffered an increased penalty by not being awarded the one-for-one conduct credits to which he would have been entitled had he not been convicted of a serious felony, and that therefore the prior conviction had to be pleaded and proved. We disagree with his premise. The effect of an award of credits under section 4019 was not to increase defendant's punishment, but to decrease it. The fact that others were entitled to greater conducts credits does not mean defendant's punishment was increased. Defendant would not have been entitled to one-for-one credits under the earlier version of the statute, and a change in the statutory scheme that granted greater credits to those who had not suffered convictions of serious felonies did not increase his punishment. That is, a change in section 4019 that results in greater credits for some does not create an increase in penalty for others.
Moreover, it is not clear that the rule of Lo Cicero would apply even if we concluded that defendant suffered an increased length of incarceration as a result of his prior conviction. In both Lo Cicero and Ford, the "penalty" at issue was the defendant's sentence, not the length of the time the defendant ultimately spent incarcerated. In Ford, the increased penalties were the statutory sentencing enhancements, and in Lo Cicero, the increased penalty was ineligibility for probation. (Ford, supra, 60 Cal.2d at p. 794; Lo Cicero, supra, 71 Cal.2d at pp. 1192-1193.) Here, on the other hand, defendant's sentence remained the same whether or not the one-for-one credits were granted.
Accordingly, defendant's prior conviction was not subject to a requirement of pleading and proof, and under the rule expressed in Varnell, could not be dismissed for purposes of calculating credits under section 4019.
III. DISPOSITION
The judgment is affirmed.
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RIVERA, J.
We concur:
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RUVOLO, P.J.
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REARDON, J.