IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
August 15, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DUSTIN LEE COLE SCOTT, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F3635)
The opinion of the court was delivered by: Hoch , J.
P. v. Scott
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 the additional credit formula and may only accrue conduct credit at the prior rate of "one-for-two." (§ 4019, subds. (b)(2) & (c)(2).)
The first question we must resolve is whether ineligibility for the amended custody credit calculation in section 4019 results in increased punishment to those ineligible defendants. The weight of authority supports the conclusion that categorical ineligibility for additional presentence custody credits, which necessarily results in a defendant spending additional time in prison, is an increase in penalty. (See People v. Lo Cicero (1969) 71 Cal.2d 1186, 1193 (Lo Cicero) [categorical ineligibility for probation based on prior conviction is "equivalent to increase in penalty"]; People v. Hunter (1977) 68 Cal.App.3d 389, 392-393 [amendment to section 2900.5 allowing presentence custody credits lessens punishment within meaning of Estrada]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [same].) An example of how ineligibility for the amended custody credit calculation results in increased punishment is to consider two defendants who have spent the same amount of time in jail before sentencing and received the same sentence. The first defendant has no prior convictions and the second has a prior strike conviction. The second defendant will remain in prison after the first has been released because of his ineligibility for the additional custody credits. For those inmates who qualify, the effect of these amendments is to reduce the amount of time in prison, and thereby mitigate their punishment; for those who are ineligible, the amendments extend their time in prison and thereby increase their punishment. (See Lo Cicero, supra, 71 Cal.2d 1186; In re Estrada (1965) 63 Cal.2d 740, 748.)
The next question is whether the prior conviction must be pled and proven. "'[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.]" (Lo Cicero, supra, 71 Cal.2d at pp. 1192-1193.) Accordingly, because the prior strike conviction serves to increase punishment, it must be pled and proven before it can serve as the basis for increasing defendant's punishment by denying him additional presentence custody credits under the amendments to section 4019.
Here, the prior strike conviction was alleged in the complaint; thus, it was pled. Defendant did not admit the truth of the allegation, nor did the People submit competent evidence on this point. There is a detailed statutory procedure for charging and proving prior convictions. (See Lo Cicero, supra, 71 Cal.2d at p. 1192; §§ 969-969b, 1025, 1158.) Those procedures were not followed here. Rather, pursuant to a plea agreement, the prior strike allegation was dismissed and the prior strike charge was unproven. There was no Harvey waiver and no mention of one-for-one presentence conduct credits. "Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed [prior conviction enhancement]." (People v. Harvey, supra, 25 Cal.3d at p. 758.) That implicit agreement was violated here. There was a direct adverse sentencing consequence to the defendant which pertained solely to the dismissed prior conviction. The court expressly relied on his prior strike conviction to deny him additional custody credits under section 4019 and the defendant will spend a longer time in custody.
Since defendant's ineligibility for additional presentence credit was based on a prior conviction and resulted in increased punishment, that prior conviction had to be pled and proven. Since it was not proven, we must modify the award of conduct credits to 52 days.
The judgment is modified to reflect that defendant is entitled to 52 days' presentence custody credits and 52 days' presentence conduct credits. As so modified, the judgment is affirmed. The trial court is directed to amend the order of probation to reflect this modification and to forward a certified copy of the amended order to the probation department.
We concur: RAYE , P. J. NICHOLSON , J.