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The People v. Michael Anthony Kistler


April 28, 2011


(Super. Ct. No. 10F01932)

The opinion of the court was delivered by: Nicholson , J.

P. v. Kistler



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Sometime between March 15, 2010, and March 19, 2010, defendant Michael Anthony Kistler stole a Honda Pilot. He had a prior conviction for vehicle theft. (Veh. Code, § 10851, subd. (a).)

Defendant was charged with unlawful taking of a motor vehicle (Veh. Code, § 10851, subd. (a)) with a prior vehicle theft enhancement (Pen. Code, § 666.5, subd. (a)) (count one),*fn1 and possession of a stolen vehicle (§ 496d, subd. (a)) (count two). Defendant pled no contest to unlawfully taking a motor vehicle and admitted the enhancement; count two was dismissed. He also pled no contest to welfare fraud (Welf. & Inst. Code, § 10980, subd. (g)) in an unrelated case.

The court imposed a stipulated term of two years in prison, and awarded 14 days' presentence credit, consisting of 10 days' custody credit and 4 days' conduct credit.

Defendant appeals, contending he was entitled to 10 days' conduct credit because the alleged prior strike was never pled or proven. We agree.


The Legislature amended section 4019, effective January 25, 2010, to provide for the accrual of presentence credits at twice the previous rate. "[I]f 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 . . . ." (Former § 4019, subd. (f); as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Excepted from this increased calculation of presentence credits are defendants who are convicted of a serious felony, or have a prior serious felony conviction, or are required to register as a sex offender. (Former § 4019, subds. (b)(2) & (c)(2).)

After the briefing closed in this case, the Legislature enacted Senate Bill No. 76, which amended section 2933 regarding presentence conduct credits for defendants sentenced to state prison. This amendment, effective September 28, 2010, gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (§ 2933, subd. (e)(1)-(3), as amended by Stats. 2010, ch. 426, § 1), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by the section 4019 when the person served an odd number of days in presentence custody. Section 2933 also eliminates the directive in section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (See § 2933, subd. (e)(1)-(3).) One circumstance that disqualifies defendants from the new formula in section 4019 is when a defendant "has a prior conviction" for a serious or violent felony. (§ 2933, subd. (e)(3).)

There is no practical difference between the provisions as they relate to defendant's award of credits. Defendant served 10 days' presentence custody. Since this is more than three days and an even number of days, his entitlement to custody credits is the same under either provision. Although defendant committed his crime after the effective date of the January 25 amendments, we conclude the September 28 amendments, being the last enacted, apply retroactively to defendant's award of credits. (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. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)

Defendant objected to the award of credits, arguing he was entitled to 10 days' conduct credit pursuant to the January 25 amendments to section 4019. The trial court countered that defendant was ineligible for the extra conduct credits because he had a prior strike conviction. Defense counsel asserted the strike was never pled or proven; the court replied it was aware of defendant's record, and declined to change the award of credits.

This was an abuse of discretion, as the strike was neither pled nor proven.

The record contains no more than a passing reference to defendant having a prior strike. There is no probation report, which was waived by defendant and the People. The plea to misdemeanor welfare fraud in the unrelated case was described as "no contest to Welfare and Institutions Code 10980(g) as a misdemeanor for 120 days concurrent with striking the strike allegation." The court interjected, "If it is a misdemeanor, you don't have to strike the strike." At sentencing, the court told defense counsel defendant would not get the extra conduct credits because of his strike. Counsel replied: "We are disputing [section] 245(a)(1) as a strike." There was no further mention of the alleged strike conviction.

The Attorney General argues the serious felony conviction did not have to be pled or proven because the loss of credits did not enhance defendant's sentence, but merely "limits an individual's ability to obtain an earlier release from that sentence." Not so.

"'[B]efore 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.' [Citation.]" (People v. Lo Cicero (1969) 71 Cal.2d 1186, 1192-1193.)

"[T]he direct consequence of the trial court's taking notice of defendant's strike prior was to increase the length of time he would in fact spend in prison." (People v. Lara (Mar. 30, 2011, H036143) ___ Cal.App.4th ___, ___ [2011 Cal.App. Lexis 373].) Serving a longer term not only feels like increased punishment, it is "an increase in punishment." (People v. Koontz (2011) 193 Cal.App.4th 151, 155.)

Because ineligibility for additional presentence credit due to a prior conviction results in increased punishment, such conviction must be pleaded and proven. Since the strike was never pled or proven, we modify the award of conduct credits to 10 days.


The judgment is modified to reflect that defendant is entitled to 10 days' presentence custody credits and 10 days' presentence conduct credits. As so modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

We concur: BLEASE , Acting P. J. MAURO , J.

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