Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. VA114494, Michael D. Abzug, Judge.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle, and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
In a felony complaint filed by the Los Angeles County District Attorney, defendant and appellant Adrian Aranda was charged with possession of marijuana for sale in violation of Health and Safety Code section 11359 (count 1). It was further alleged that appellant had suffered prior convictions pursuant to Penal Code section 667, subdivisions (b) through (i), section 667.5, subdivision (b), section 1170.12, subdivisions (a) through (d), and Health and Safety Code section 11370, subdivisions (a) and (c). Appellant pled no contest. Probation was denied, and appellant was sentenced to 16 months in state prison. Appellant was awarded 24 days of presentence custody credits, consisting of 16 actual days and eight days of good time/work time.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant timely filed a notice of appeal. He contends that he is entitled to an additional eight days of conduct credit pursuant to section 4019, in effect at the time of his March 25, 2010, sentencing.
Because appellant was previously convicted of a serious and violent felony, he is not entitled to the new accrual rate of good time/work time credits set forth in section 4019. Accordingly, we affirm.
FACTUAL BACKGROUND
Because the issues on appeal only involve presentence custody credit and the imposition of fines and fees, the facts of appellant’s underlying crime and probation violation are omitted. (People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
DISCUSSION
Proceedings Below
On March 25, 2010, appellant and the prosecution reached a plea agreement in this case. Specifically, appellant pleaded no contest to count 1 in exchange for the low term of 16 months in state prison. Appellant did not admit the strike or any other alleged prior, and all priors were stricken.
Following the plea, the trial court sentenced appellant to 16 months in state prison and awarded him 24 days of presentence custody credit. The trial court explained the sentence as follows: “The statute effecting the calculation of good time/work time does not specifically address, as has been noted in other proceedings, whether the one-third credit should be applied to a defendant who has a strike but is not pled and proven, but based on my research and analogous case authority [In re Varnell (2003) 30 Cal.4th 1132] I believe that even though the strike has not been proven in this case and stricken as part of the plea agreement, I’m nevertheless compelled to apply the one-third credit, so I do so over defense objection.”
The Trial Court Did Not Err
Section 4019, amended as of January 25, 2010, provides, in relevant part:
“(b)(1) Except as provided in... paragraph (2), subject to the provisions of subdivision (d), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
“(b)(2) If the prisoner... has a prior conviction for a serious felony... or a violent felony... subject to the provisions of subdivision (d), for each six-day period in which the prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
“(c)(1) Except as provided in... paragraph (2), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
“(c)(2) If the prisoner... has a prior conviction for a serious felony... or a violent felony... for each six-day period in which the prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶]... [¶]
“(f) It is the intent of the Legislature that if 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.” (§ 4019.)
Appellant argues that pursuant to section 4019, he is entitled to eight additional days of presentence credit. Although he agrees that he “would normally fall within [subdivisions (b)(2) and (c)(2), the exception for prisoners with prior convictions for serious or violent felonies] because he has a prior conviction for a serious felony, ” those subdivisions do not apply here because “appellant did not admit suffering the prior strike conviction and, pursuant to the plea, the strike prior was dismissed pursuant to Penal Code section 1385.” We disagree.
The statute means what it says. The new, more favorable accrual rate set forth in section 4019 does not apply to defendants who were previously convicted of a serious or violent felony. (§ 4019, subds. (b)(2) & (c)(2).) Appellant falls squarely within this statutory language as he was previously convicted of assault with a firearm, a serious and violent felony. (§§ 1192.7, subd. (c)(31) & 667.5, subd. (c)(8).) Therefore, he is not entitled to the new accrual rate of good time/work time credits.
The fact that appellant’s disqualifying conviction was stricken and not proven beyond a reasonable doubt does not change our conclusion. “[W]hen a court has struck a prior conviction allegation, it has not ‘wipe[d] out’ that conviction as though the defendant had never suffered it; rather, the conviction remains a 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.” (People v. Garcia (1999) 20 Cal.4th 490, 499.)
Our conclusion is bolstered by In re Varnell, supra, 30 Cal.4th 1132. In that case, the petitioner pled no contest to a charge of simple drug possession and admitted the truth of a prior serious felony conviction allegation and a prior prison term allegation. (Id. at p. 1135.) The trial court exercised its discretion under section 1385 to strike the prior conviction so as to remove the petitioner from the provisions of the Three Strikes law. (In re Varnell, supra, at p. 1135.) However, the trial court still ruled that the fact of the prior conviction and resulting prison term still rendered the petitioner ineligible for probation and drug treatment under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). (In re Varnell, supra, at p. 1135.)
Our California Supreme Court affirmed the trial court’s order, holding that a trial court may not strike a prior serious felony conviction to make a defendant eligible for probation and drug treatment under Proposition 36 because there is no pleading and proof requirement. (In re Varnell, supra, 30 Cal.4th at p. 1135.) It stated, “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.” (In re Varnell, supra, at p. 1135.)
Similarly, appellant’s prior conviction was a sentencing factor with respect to section 4019. Accordingly, there was no proof requirement. Had the People sought to use appellant’s prior conviction to increase appellant’s punishment pursuant to the Three Strikes law, it would have been required to plead and prove that allegation. Here, however, the prior conviction was not used to increase appellant’s punishment. The existence of the prior conviction simply makes him ineligible for increased conduct credits or additional rewards for good behavior. Rewarding a defendant with fewer conduct credits than other defendants without prior serious or violent felony conviction is not the same thing as imposing additional punishment.
The cases cited by appellant in his appellate briefs are inapposite. People v. Jones (2010) 188 Cal.App.4th 165 is not citable in light of the Supreme Court’s December 15, 2010, order granting review of the Court of Appeal’s decision. (Cal. Rules of Court, rules 8.500, 8.1105, 8.1115.) In People v. Lo Cicero (1969) 71 Cal.2d 1186, the California Supreme Court construed Health and Safety Code former section 11715.6’s (repealed by Stats. 1972, ch. 1407, § 2) prohibition against probation in the case of a prior offender. The Court held that since such a bar to probation “is equivalent to an increase in penalty, ” the principle that increased penalties based on the fact of a prior conviction must be charged and proven requires that any prior conviction that serves the basis for the former section 11715.6 bar be charged and proven. (People v. Lo Cicero, supra, at pp. 1192–1193.) In contrast, section 4019’s exclusion of defendants with prior strike convictions from the new credit calculation is not an “increase in penalty.” Rather, it is simply a “sentence ‘reduction’ mechanism.” (People v. Garcia (2004) 121 Cal.App.4th 271, 277.)
Finally, In re Pacheco (2007) 155 Cal.App.4th 1439 does not aid appellant on appeal. Like the court in People v. Garcia, supra, 121 Cal.App.4th 271, the court in In re Pacheco, supra, 155 Cal.App.4th 1439 held that a limitation on presentence conduct credits does not operate to increase the maximum punishment for a crime. While “[a] reduction in the worktime credits allowed by section 2933.1 may feel like ‘additional punishment’ to a prisoner... such credits are benefits a prisoner earns based on good conduct and participation in qualifying programs.” (In re Pacheco, supra, at p. 1445.) We see no meaningful difference between section 2933.1 and section 4019. Accordingly, we hold that reduced custody credit under amended section 4019 is not increased punishment.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD , Acting P. J., CHAVEZ , J.