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The People v. Dustin Lee Cole Scott

August 15, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DUSTIN LEE COLE SCOTT, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F3635)

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

P. v. Scott

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Dustin Lee Cole Scott pled no contest to assault by means of force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).)*fn1 As a part of the plea agreement, the remaining counts and allegations, which included allegations defendant had a prior strike conviction, were dismissed. At sentencing, defense counsel argued defendant was entitled to additional custody credits under the amended version of section 4019. Citing defendant's prior violent felony conviction, the court disagreed.

Relying on our opinion in People v. Jones (2010) 188 Cal.App.4th 165 (review granted Dec. 15, 2010, S187135),*fn2 defendant reiterates his contention that he is entitled to the additional custody credits under the amended section 4019. The Supreme Court having granted review, Jones is no longer citable authority. Nonetheless, as to the issue raised in this appeal, we conclude that the denial of additional presentence custody credits under the amendments to section 4019 results in increased punishment and as such, the People must plead and prove such a prior serious felony conviction before it may be used to deny the defendant additional presentence credit under the amendments to section 4019. Accordingly, we modify the judgment.

Relevant Procedural History and Factual Background*fn3

Defendant was charged with two counts of assault with a deadly weapon. (§ 245, subd. (a)(1).) As to the first assault charge, it was also alleged defendant inflicted great bodily injury on the victim. (§ 12022.7.) As to both assault charges, it was further alleged the offense was a serious felony (§ 1192.7, subds. (c)(23) & (c)(31)), defendant had served two separate prior prison terms (§ 667.5, subd. (b)), and had a prior strike conviction (§ 1170.12).

The complaint was amended to change the second assault count from a charge of assault with a deadly weapon to an assault by means of force likely to cause great bodily injury, and the serious felony allegation attached to that count was dismissed. As amended, defendant pled no contest to this second count of assault by means of force likely to cause great bodily injury. On the prosecution's motion, the court dismissed the balance of the charges in the complaint, including the prior strike conviction allegations. There was no Harvey*fn4 waiver.

Prior to sentencing, defendant accrued 52 days of presentence custody credits. At sentencing, defense counsel requested the court grant defendant 52 days of conduct credit under the amendments to section 4019. The court denied the request, stating: "If he didn't get the full 4019 credits, it probably has to do with something in his prior record which would prohibit that, and that is having the violent felony conviction for the 245 [assault] with great bodily injury. I think those full credits don't apply when somebody has that prior conviction, if I recall the section." Defense counsel noted that the prior conviction had not been proven at a hearing. The court responded there had been "a prelim . . . or at least a partial prelim."*fn5 The court then awarded defendant 26 days of local conduct credit.

DISCUSSION

Defendant contends he is entitled to the additional credits under section 4019 because ineligibility for those additional custody credits constitutes increased punishment. As such, for the trial court to use a prior conviction to limit those credits, the prior conviction must be pled and proven. In this case, defendant contends the prior conviction was neither found true nor admitted. Accordingly, defendant argues he should be granted 52 days of conduct credit. The People respond that the "enhanced custody credit scheme does not directly increase [defendant's] punishment"; accordingly, there is no pleading and proof requirement. We conclude that defendant is entitled to additional credits under section 4019.

Under section 4019, a person imprisoned in local custody may earn credit against his or her term of confinement under specified conditions. Effective January 25, 2010, section 4019 was amended to provide that certain defendants may earn presentence credit at an increased rate, commonly referred to as "one-for-one credits." (Stats. 2009, 3d Ex. Sess. 2009-10, ch. 28, § 50.)*fn6 Any inmate who is required to register as a sex offender, has committed a serious felony, or has a prior strike conviction is not entitled to the benefit of ...


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