IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
January 24, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMAAL ANTHONY JOHNSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09-5631)
The opinion of the court was delivered by: Nicholson , J.
P. v. Johnson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to a bargain, defendant Jamaal Anthony Johnson pleaded no contest to one count of unlawful intercourse with a minor more than three years younger than himself (Pen. Code, § 261.5, subd. (c)),*fn1 in exchange for a stipulated three-year prison sentence and the dismissal of two similar counts, a strike allegation, and a misdemeanor case. The trial court sentenced defendant to prison for three years, and defendant timely filed this appeal.
On appeal, defendant contends he is entitled to additional presentence conduct credits, because the strike was not pleaded and proven. We agree, accordingly, we modify the judgment to award defendant additional credits, and otherwise affirm.
The information alleged three counts of unlawful sexual intercourse with a person three years younger than defendant, and alleged a prior strike, a 2000 carjacking conviction under section 215.
Defendant pleaded no contest to one count in exchange for a three-year sentence and dismissal of the other counts, the strike, and a trailing misdemeanor case. The factual basis, taken from the preliminary hearing transcript, shows that in June 2008, defendant had intercourse with a 16-year-old girl in a motel room.
The probation report showed that defendant's criminal history included a 2000 carjacking conviction, a strike. It recommended that defendant receive conduct credits at the normal rate, as if defendant did not have a strike. However, at sentencing the probation officer stated the report was in error and "[o]ur position is that the prior serious or violent felony does not have to be proven." Defense counsel did not contest the fact that defendant had a prior strike, but argued that because it had not been pleaded and proven, it should not be used to calculate his conduct credits. The trial court continued the hearing to allow the parties to brief the issue.
At the continued sentencing hearing held on August 12, 2010, the trial court adopted the view that dismissal of the strike did not render it invalid for purposes of limiting defendant's conduct credit award. The trial court awarded defendant 255 days of actual custody credits for the period from December 1, 2009, to August 12, 2010. The trial court awarded 126 days of conduct credits, rather than the more generous amount of credits that would have been available but for defendant's strike.
Defendant timely filed this appeal.
Effective January 25, 2010, and September 28, 2010, two different custody credit formulae grant most defendants the opportunity, upon good behavior, to earn conduct credits at a greater rate than under the prior statutory scheme. (Compare Stats. 2009, 3d Ex. Sess., ch. 28, § 50 and Stats. 2010, ch. 426, § 1 with Stats. 1982, ch. 1234, § 7, pp. 4553-4554.)*fn2
In In re Kemp, formerly at 192 Cal.App.4th 252, we held that a defendant is entitled to retroactive additional credits under the applicable formulae based on equal protection principles, regardless of when the conviction became final. The California Supreme Court has granted review in Kemp. (In re Kemp, review granted Apr. 13, 2011, S191112.) We adhere to the reasoning expressed in Kemp, which we briefly summarize here.
"The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in a similar fashion." (People v. Leng (1999) 71 Cal.App.4th 1, 11.)
We first ask whether two classes are similarly situated with respect to the law in question, but treated differently. (See Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)
The applicable credit formulae apply to persons who are neither required to register as sex offenders, nor committed for serious felonies, nor previously convicted of serious or violent felonies (if pleaded and proven). Within this larger group are persons whose judgments became final before and after the effective dates of the statutory amendments. The purpose of those amendments was to address a "fiscal emergency" by reducing incarceration costs. (See Stats. 2009, 3d Ex. Sess., ch. 28, § 62.) Where the Legislature has expressed the purpose of an enactment, we will not speculate about other possible legislative motives. The amendments identify a class of persons deemed safe for early release by virtue of increased credits, and that saves money regardless of when a given qualified person's judgment became final. Thus, both groups are similarly situated with respect to the law in question.
We see no rational reason justifying this disparate treatment. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 1200-1201.) The finality of the judgment itself does not provide a rational basis for distinguishing between the two groups. (See In re Kapperman (1974) 11 Cal.3d 542, 544-550.)
We also see no separation of powers violation in the applicable credit formulae, even when applied retrospectively. (See Younger v. Superior Court (1978) 21 Cal.3d 102, 115-118.)
Accordingly, we conclude prisoners are entitled to have their conduct credits calculated under the applicable formulae regardless of when their convictions became final. We reject the Attorney General's contention that defendant is not entitled to the retroactive application of these amendments.
Under the applicable conduct credit statute, a qualifying defendant sentenced to prison is entitled to one day of conduct credit for each day of good behavior while in actual custody. (Former § 2933, subd. (e)(1)-(3).) One circumstance that disqualifies defendants from the applicable formulae is when a defendant "has a prior conviction" for a serious or violent felony. (Former § 4019, subds. (b)(1) & (c)(1), as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50; former § 2933, subd. (e)(3), as amended by Stats. 2010, ch. 426, § 1.)
The applicable statutory formulae do not state that the disqualifying prior conviction must be pleaded and proven. However, we conclude that because the presentence conduct credits authorized by the statutes in effect reduce punishment, having a prior conviction in this context is a condition that increases punishment and requires that the conviction be pleaded and proven.
In People v. Lo Cicero (1969) 71 Cal.2d 1186 (Lo Cicero), the California Supreme Court held that ineligibility for probation based on a prior conviction "is equivalent to an increase in penalty." (Id. at p. 1193.) We conclude that if ineligibility for probation because of a prior conviction is increased punishment, then ineligibility for additional presentence credit is also increased punishment.
The Attorney General argues that this reasoning is flawed, citing In re Pacheco (2007) 155 Cal.App.4th 1439 (Pacheco) for the proposition that ineligibility for conduct credit is not increased punishment. We disagree.
In Pacheco, the petitioner was convicted of inflicting corporal injury on a cohabitant with an enhancement for inflicting great bodily injury. At sentencing, the court struck the punishment for the great bodily injury enhancement but did not strike the enhancement itself. Later, the prison authorities determined that, because the petitioner was convicted of a crime involving great bodily injury, the amount of worktime credit he could accrue in prison was limited to 15 percent of his sentence, pursuant to section 2933.1, rather than the typical 50-percent credit. (Pacheco, supra, 155 Cal.App.4th at pp. 1441-1442.) Responding to his petition for writ of habeas corpus, Pacheco determined that the limitation of worktime credit was proper because the trial court did not strike the enhancement, merely the punishment, and therefore the petitioner was ineligible for credit beyond the 15-percent limitation. (Id. at pp. 1444-1445.)
Having concluded that the petitioner was limited to 15 percent worktime credit because he stood convicted of a crime in which he inflicted great bodily injury even though the trial court had stricken punishment for the enhancement, Pacheco stated: "A reduction in the worktime credits allowed by section 2933.1 may feel like 'additional punishment' to a prisoner, a result seemingly inconsistent with the sentencing court's order in this case under section 1385. However, a reduction in credits is not considered 'punishment' under the law. Rather, such credits are benefits a prisoner earns based on good conduct and participation in qualifying programs." (Pacheco, supra, 155 Cal.App.4th at p. 1445.)
The Attorney General quotes this part of Pacheco to support the proposition that ineligibility for additional presentence credit does not constitute increased punishment. However, Pacheco is distinguishable. That case did not involve presentence conduct credit calculated by the trial court at sentencing; it involved a post-sentencing conduct calculation by the Department of Corrections and Rehabilitation. (Pacheco, supra, 155 Cal.App.4th at p. 1442.)
To the extent the Attorney General would extend Pacheco by analogy to presentence credits, we disagree with the Attorney General that a decrease in presentence credits merely "feel[s]" like extra punishment. It is extra punishment.
The California Supreme Court has held that when a trial court fulfills its obligation to calculate a defendant's presentence credits, the credit award "'in effect, becomes part of the sentence.'" (People v. Duff (2010) 50 Cal.4th 787, 793.) Thus, the effect of not applying the more generous credit formula in the presentence context is to increase a defendant's sentence.
Because ineligibility for additional presentence credit due to a prior conviction results in increased punishment, such conviction must be pleaded and proven.
Quoting one of its previous cases, the Lo Cicero court 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.'" (Lo Cicero, supra, 71 Cal.2d at pp. 1192-1193, quoting People v. Ford (1964) 60 Cal.2d 772, 794.)
The California Supreme Court later held that if the prior conviction does not make the defendant ineligible for probation but merely precludes an alternative means of obtaining probation, it need not be pleaded and proven. (In re Varnell (2003) 30 Cal.4th 1132 (Varnell).) Varnell held that a trial court may not strike a prior serious felony conviction to make a defendant eligible for Proposition 36 probation because there is no pleading and proof requirement. Proposition 36 created an alternative sentencing scheme for some narcotics offenses. The trial court, however, found Varnell was ineligible for the alternative sentencing scheme because he had a prior serious felony conviction. (Id. at pp. 1135-1136.) Varnell stated that "trial courts may not 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.)
In the presentence context, the amendments to the credit statutes do not fall within the exception to the pleading and proof requirement discussed in Varnell, because a prior conviction eliminates the possibility of receiving the additional credit. As Varnell stated, in its discussion of Lo Cicero:
"There is authority for finding an implied pleading and proof requirement in criminal statutes. In [Lo Cicero, supra, 71 Cal.2d 1186], we recognized an implied pleading and proof requirement in the predecessor to Health and Safety Code section 11370, 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 . . . . We concluded that '[t]he denial of opportunity for probation involved here is equivalent to an increase in penalty . . . .' (Lo Cicero, supra, at p. 1193; see People v. Ibarra (1963) 60 Cal.2d 460, 467-468; People v. Huffman (1977) 71 Cal.App.3d 63, 82.)
"However, this case differs from Lo Cicero in one key respect: petitioner's prior conviction and the resulting prison term did not eliminate his opportunity to be granted probation. Although petitioner was ineligible for probation under the terms of section 1210.1, he was eligible for probation under section 1203, subdivision (e). 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, original italics, fn. omitted.)
This case is more like Lo Cicero because the prior conviction denies a defendant the opportunity for additional presentence conduct credit under the amendments to sections 2933 and 4019. Therefore, a prior conviction must be pleaded and proven before it can be used to deny a defendant additional presentence credit.
Because defendant's prior conviction was not pleaded and proven, he was not disqualified from the applicable credit formulae. Accordingly, we modify the judgment (§ 1260) to award defendant 255 days of presentence conduct credits, instead of the 126 days awarded by the trial court.
The judgment is modified to award defendant a total of 255 days of presentence conduct credit and as so modified is affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment reflecting the modified credit award.
We concur: BLEASE , Acting P. J. MAURO , J.