California Court of Appeal Mar 26, 2013 No. E054360Unpublished
Filed 3/26/13 P. v. Saldana CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054360
v. (Super.Ct.No. FSB1003108)
JOSE SALDANA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest,
Judge. Affirmed in part; reversed in part with directions.
Phillip I. Bronson and Howard C. Cohen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Kevin Vienna, Meredith S. White
and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jose Saldana appeals after a guilty plea, sentence, and
admission to probation. He contends that he should receive additional presentence
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custody credits under an amended version of Penal Code section 4019.1 We remand for
cooperation and good behavior by persons temporarily detained in local custody”];
People v. Sage (1980) 26 Cal.3d 498, 510 (conc. & dis. opn. of Clark, J.) [“The purpose
of conduct credit is to foster good behavior and satisfactory work performance.”]; People
v. Saffell (1979) 25 Cal.3d 223, 233 [“The purposes of the provision for ‘good time’
credits seem self-evident. First, and primarily, prisoners are encouraged to conform to
prison regulations and to refrain from engaging in criminal, particularly assaultive, acts
while in custody. Second, [prisoners are induced] to make an effort to participate in what
may be termed ‘rehabilitative’ activities.”].) Such conduct credits are by no means
guaranteed, and may be lost for refusal to work, or for engaging in bad behavior as
determined by the institution. (Cf. In re Rothwell (2008) 164 Cal.App.4th 160, 165
[deprivation of credits is a sanction authorized for misconduct].)
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In re Varnell (2003) 30 Cal.4th 1132, is instructive. There, the defendant was
charged with possession of methamphetamine. The information further alleged that the
defendant had suffered a prior strike conviction. The strike prior would have rendered
the defendant ineligible for drug treatment under Proposition 36 (the Substance Abuse
and Crime Prevention Act of 2000). The defendant therefore asked the trial court to
dismiss the prior strike allegation. The trial court did dismiss the strike allegation under
section 1385, but nevertheless found that the fact of the prior conviction, and the resulting
prison term, rendered the defendant ineligible for Proposition 36 treatment. (Varnell, at
p. 1135.) The California Supreme Court ultimately affirmed the trial court’s
determination. Although section 1385 authorizes a trial court to “order an action [or a
part thereof] to be dismissed,” in the furtherance of justice (§ 1385, subd. (a)), dismissal
of a prior conviction under section 1385 “‘is not the equivalent of a determination that
[the] defendant did not in fact suffer the conviction.’” (People v. Garcia (1999) 20
Cal.4th 490, 496.) Thus, even if a court dismisses a prior conviction allegation, “the
[prior] conviction remains part of the defendant’s personal history, and a court may
consider it when sentencing the defendant for other convictions, including others in the
same proceeding.” (Id. at p. 499.) In Varnell, the California Supreme 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 . . . or to select among the aggravated, middle, or
mitigated terms. . . . [Proposition 36], . . . does not require that the basis for a defendant’s
ineligibility be alleged in the accusatory pleading. In the absence of a charge or
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allegation, there is nothing to order dismissed under section 1385.” (Varnell, at p. 1139.)
Eligibility for an enhanced rate of earning conduct credits is not a “charge” or an
“allegation” that must be included in an information or indictment. Therefore, a
disqualifying serious felony need not be pleaded and proved before the court may take
notice of a conviction, which “remains a part of the defendant’s personal history.” (Id. at
p. 1138.)
Defendant argues that Varnell is distinguishable from Lo Cicero and Ford,
because the matter at issue in Varnell—whether the defendant was eligible for
Proposition 36 probation—did not of itself preclude the defendant’s eligibility for
probation under other provisions. In other words, there was no categorical exclusion
from probation, which would have amounted to an effective increase in the defendant’s
punishment. The California Supreme Court found a pleading and proof requirement in
Lo Cicero, however, where the prior conviction resulted in an absolute bar from the
opportunity for probation, and thus effectively increased the defendant’s punishment.
Defendant urges that the use of his prior felony conviction to disqualify him from earning
conduct credits at the enhanced rate is an absolute bar to that benefit, which otherwise
would have effectively decreased his punishment.
We disagree. In Lo Cicero, former Health and Safety Code section 11715.6
established an alternate punishment scheme for recidivist drug offenders, such that a
person convicted of a listed prior drug offense was categorically ineligible to be
considered for probation. At the time, Penal Code section 1203 provided generally that a
defendant was eligible to apply for probation in all felony cases, except in certain
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substance abuse cases, if the defendant had suffered a prior felony conviction. However,
the court distinguished the preclusive effect of Health and Safety Code section 11715.6—
ineligibility for probation—from a denial of probation “on the merits.” (People v.
Lo Cicero, supra, 71 Cal.2d at p. 1195.) That is, even when a defendant is not statutorily
barred from eligibility for probation, the eligibility for probation does not guarantee that
probation will be granted. But denial of probation—which effectively yields the same
result as ineligibility for probation in the first instance—does not require the facts leading
to the denial of probation to be pleaded and proved. “In deciding whether [a] defendant
should receive probation the trial judge may properly consider the probation report,
including prior convictions appearing in that report but not charged in the pleadings.”
(Id. at p. 1195.)
No separate sentencing scheme absolutely prohibited defendant from eligibility to
earn conduct credits at the enhanced ratio under the version of section 4019, which
applied to defendant’s case. Rather, the trial court was called upon to decide whether
defendant would or would not earn credits at the enhanced rate, in the same manner as it
was called upon to decide whether or not to grant probation in the first instance. The
court could appropriately consider any prior felony conviction—which fully remained a
part of defendant’s personal history—in this case. (In re Varnell, supra, 30 Cal.4th at
p. 1138.)
Our analysis is now bolstered by the California Supreme Court’s decision in one
of the cases in which review was granted. The court decided People v. Lara (2012) 54
Cal.4th 896, on July 19, 2012, holding that the historical facts of a particular defendant’s
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background, which might limit the defendant’s ability to earn conduct credits, are not a
part of the charges and allegations in a criminal pleading. (Id. at p. 901.) Thus, in this
case, the court could properly consider defendant’s prior felony convictions in
determining the rate at which defendant was eligible to earn conduct credits. This
conclusion does not, however, end the matter.
As defendant argues and as the People concede, defendant’s personal history in
this case, as it appeared before the trial court, did not establish that the prior conviction
under section 246.3 constituted a disqualifying serious prior felony.
A violation of section 246.3 qualifies as a violent or serious felony if the defendant
is found to have personally used a firearm. But, “[i]t is possible to be convicted of
grossly negligent discharge of a firearm under section 246.3 without personally using a
firearm, e.g., as an aider and abettor.” (People v. Golde, supra, 163 Cal.App.4th at
p. 112.) In Golde itself, the information alleged a prior conviction of violating section
246.3, and alleged it was a serious felony (strike). At a bifurcated hearing on the strike
allegation, the defendant admitted on the record that he had suffered the conviction, but
he did not admit that he had personally used the firearm. He did not admit that the
conviction constituted a serious felony. The documents submitted by the prosecution did
not establish that the defendant had personally discharged the firearm with respect to that
offense. The Court of Appeal therefore ruled that there was insufficient evidence to show
that the conviction was a prior serious felony. (Id. at p. 113.)
The People acknowledge that Golde is applicable, and that the record herein does
not establish defendant’s personal use of a firearm with respect to his section 246.3
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conviction. Thus, the record was inadequate to determine that the conviction constitutes
a serious prior felony. The People urge, therefore, that the matter be remanded to the trial
court for a further inquiry, to determine whether it may be a serious or violent felony
under sections 667.5 or 1192.7. If, upon further inquiry, the trial court should determine
that the offense is not a serious prior felony, then defendant’s conduct credits should be
recalculated. The People refer to Monge v. California (1998) 524 U.S. 721 for the
proposition that the matter should be remanded for the purpose of determining whether a
prior conviction is a serious or violent felony.
Defendant counters that Monge is inapplicable, because the defendant in that case
had been placed on notice in the charging pleading of prior serious felony and prior
prison term allegations. After a court trial, the allegations were found true. On appeal,
the Court of Appeal had found that the evidence was insufficient to prove the strike and
serious felony allegations, and had also ruled that the double jeopardy clause precluded
retrial. (Monge v. California, supra, 524 U.S. 721, 724-726.) The United States
Supreme Court ultimately decided that the double jeopardy clause does not apply to
noncapital sentencing proceedings, so that remand for a retrial on the strike and serious
felony allegations of the complaint was permissible. (Id. at p. 724.)
Here, by contrast, there was never any allegation made or notice given to
defendant that his prior conviction would be considered for any purpose. There was no
trial on the matter at all, and no evidence presented. Defendant complains that remand to
revisit the issue would give the prosecution an unfair “‘two bites of the same apple.’”
The People have conceded that the present record is deficient to establish that the prior
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conviction constitutes a proper disqualifying serious prior felony. That deficiency is
attributable to the prosecution’s failure to exercise due diligence in making its case. It
cannot be presumed that the offense is a serious felony. Without a remand, defendant
may obtain a benefit, but “only because [the People] chose not to carry its burden
originally. . . . [O]n the other hand, a remand [may] give[] a windfall to [the People], i.e.,
the opportunity to prove (if they can) what they forfeited originally (or waived in any
discussions with [deceased attorney] Wade, whom [defendant] cannot call.)”
However, we discern no reason why the matter should not be remanded for
reconsideration. If the section 246.3 conviction cannot be shown to constitute a serious
prior felony, then defendant will be eligible for and will be granted the enhanced conduct
credits. On the other hand, if the prior conviction actually does constitute a disqualifying
serious felony, defendant will be no worse off than he is now; in addition, he will have
notice and an opportunity to present a defense on the issue, which is the gist of his
complaint here.
Accordingly, we will order the matter remanded for further proceedings, to permit
the trial court to determine whether the prior conviction on which it relied to deny
enhanced credits does or does not constitute a serious prior felony, i.e., whether or not
defendant personally used a firearm in the commission of the offense.
DISPOSITION
The trial court’s order at sentencing, that defendant is limited to earning conduct
credits under Penal Code section 4019 at the old rate, is reversed. The matter is
remanded for further proceedings, to permit the trial court to determine whether
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defendant’s prior conviction under Penal Code section 246.3 constitutes a serious prior
felony, so as to disqualify him from receiving the more favorable credit accrual rate
under the version of Penal Code section 4019 in effect at the time of his offense.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant's eligibility for enhanced conduct credits under Penal Code section 4019 does not require the prosecution to plead and prove a prior serious felony conviction, but remanded the case because the record was insufficient to establish that the defendant's prior conviction under section 246.3 qualified as a serious felony.
Issues
Whether the trial court's denial of enhanced conduct credits is an appealable issue despite a general waiver of appeal rights.
Whether a prior serious felony conviction must be pleaded and proven to disqualify a defendant from earning enhanced conduct credits under Penal Code section 4019.
Whether the record sufficiently established that the defendant's prior conviction under Penal Code section 246.3 qualified as a serious felony.
Disposition. Affirmed in part; reversed in part with directions.
Quotations verified verbatim against the opinion
“The certificate of probable cause requirement does not apply to appeals based on grounds that arise after entry of the plea, and which do not challenge the validity of the plea.”
“Eligibility for an enhanced rate of earning conduct credits is not a “charge” or an “allegation” that must be included in an information or indictment.”