Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR259548.
Jenkins, J.
Defendant and appellant Nicholas Tyrone Brown appeals the sentence imposed after a jury found him guilty of evading a police officer with willful and wanton disregard for public safety, in violation of Vehicle Code, section 2800.2, subdivision (a). Defendant contends that the trial court erred at sentencing by denying him custody credits at the accelerated rate under Penal Code section 4019 on the basis of a prior felony that was neither alleged as a serious felony in the information nor proved beyond a reasonable doubt to be a serious felony at trial. Finding defendant’s contention unpersuasive, we affirm.
Further references are to the Penal Code unless otherwise specified.
Factual and Procedural Background
According to the probation report, on September 26, 2008, a Fairfield police officer noticed defendant riding a motorcycle without a rear license plate and initiated a traffic stop. Defendant drove to the side of the road and stopped his motorcycle. When the officer pulled in behind him, defendant rode off at a high rate of speed. The officer pursued defendant through city streets. During the pursuit, defendant drove in excess of the speed limit, almost collided with a vehicle at an intersection and ran a red light. The pursuit ended after defendant successfully evaded police. Three hours later, police were patrolling the area in search of the pursuit suspect. An officer observed defendant on the sidewalk and conducted a parole search. The officer found keys to a motorcycle, which was subsequently located at defendant’s residence. The motorcycle was registered to defendant and was identified as the one involved in the pursuit.
In an information filed on February 25, 2009, the Solano County District Attorney charged defendant in count 1 with evading a police officer with willful disregard of public safety, a felony in violation of Vehicle Code, section 2800.2, subdivision (a). For purposes of section 667.5, the information also alleged as to count 1 that defendant suffered a prior conviction in 2004 under “VC2800.2/PC245, ” that he served a prison term for the prior conviction, and thereafter committed an offense within five years subsequent to the conclusion of that prison term.
A jury found defendant guilty as charged in count 1 of the information. After the jury returned the verdict, the trial court conducted a bench trial on the allegation defendant had suffered a prior felony with a prison term. The prosecution submitted a certified document from the Department of Corrections, which was marked into evidence as People’s Exhibit No. 8. Based on People’s Exhibit No. 8, the trial court found “that the prior prison term pursuant to 667.5(b) as alleged in the information has been proved beyond a reasonable doubt, that the defendant did not remain free of prison custody for five years subsequent to execution of his term, [and] did not remain free of felony conviction during that five year time period.”
People’s Exhibit No. 8 contains an abstract of judgment showing defendant’s 2001 conviction under section 245, subdivision (c) (assault with a deadly weapon or instrument on a peace officer) and his sentence of four years in state prison on that offense.
At a sentencing hearing on April 27, 2010, the trial court denied the request for a grant of probation. The court imposed, at the agreement of the parties, the upper term of three years for the offense of conviction, plus a consecutive one-year term for the prior prison term allegation under section 667.5, subdivision (b), for a total term of four years in state prison. Thereafter, the court stated its opinion that defendant was ineligible for “the new 4019s because of his criminal history.” Defense counsel concurred in the court’s opinion and thereafter the court awarded custody credits as “58 actual days, plus 28 days pursuant to 4019 for a total of 86 days credit” pending receipt of a “specific credit calculation from the [county] jail.” The abstract of judgment filed on April 30, 2010, lists 62 actual days and 30 days credit for total custody credits of 92 days. Defendant filed a timely notice of appeal on May 5, 2010.
In return for defendant’s agreement to the upper term in this case, the prosecution dismissed a trailing case against defendant.
Discussion
A defendant committed to state prison is entitled to credit against the prison term for all days spent in custody prior to sentencing. (§ 2900.5, subds. (a), (c).) Moreover, pursuant to section 4019, a defendant may earn additional presentence credit for good behavior and work performance (collectively, “conduct credit”). (See § 4019, subds. (b)-(c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under the version of section 4019 that was in effect until January 2010, a defendant was deemed to serve six days for every four actual days spent in actual custody. (Former § 4019, subds. (b), (c).) In October 2009, the Legislature amended section 4019. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Effective January 25, 2010, section 4019, as amended, provided that a defendant is deemed to serve four days for every two days spent in actual custody (ibid.), thereby increasing the rate at which prisoners could accumulate local custody credits. However, not every prisoner qualified for the new accelerated rate. Rather, section 4019, as amended, provided that the new accelerated rate does not apply, inter alia, if defendant “has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.” (Ibid.) Defendants who have sustained prior convictions for serious or violent felonies continue to accrue custody credits at the rate set forth in former section 4019. (Ibid.)
After defendant was sentenced in April 2010, the Legislature again amended section 4019 in September 2010. The version of section 4019 as amended in September 2010 is not at issue here.
Defendant asserts the accusatory pleading here failed to specifically allege that his prior conviction was a serious or violent felony and that the trial court’s finding, based on the pleading and proof submitted, established only that appellant served a prior prison term and had not remained free from custody for five years under 667.5, subdivision (b). Therefore, defendant contends that his prior felony conviction cannot be relied upon to deny him accelerated credits under section 4019. We disagree.
In his opening brief, defendant relies principally on People v. Jones (2010) 188 Cal.App.4th 165. On December 15, 2010, the California Supreme Court granted review (People v. Jones (Cal. Dec 15, 2010) (No. S187135) 244 P.3d 1062), therefore the case may not be cited as legal authority.
Whereas nothing in section 4019 requires that the accusatory pleading must allege the basis for a defendant’s ineligibility for the accelerated rate of credits, defendant urges us to find an implied pleading requirement under the authority of People v. Lo Cicero (1969) 71 Cal.2d 1186 (Lo Cicero). In Lo Cicero, defendant was convicted of drug offenses and was ruled ineligible for probation, which required proof that he suffered a prior conviction for possession of marijuana. (Id. at p. 1192.) The accusatory pleading failed to allege defendant’s prior conviction. Instead, defendant admitted to his prior conviction on cross-examination at trial and the probation report prepared for sentencing also referenced the prior. (Id. at p. 1192.) The court in remanding the matter for sentencing noted that the Penal Code requires a previous felony conviction to be charged (§ 969), tried (§ 1025) and found true (§ 1158). (Ibid.) These statutes, the court stated, provide a “safeguard” to the accused, and mean 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....’ ” (Lo Cicero, supra, 71 Cal.2d at pp. 1192-1193.) Because “[t]he denial of opportunity for probation involved here is equivalent to an increase in penalty” (id. at p. 1193), the Court held that “the prior conviction should be charged and proved according to the relevant provisions of the Penal Code.” (Id. at p. 1194.)
Defendant asserts that his ineligibility for accelerated custody credits under section 4019, like the defendant’s ineligibility for probation in Lo Cicero, “is equivalent to an increase in penalty, ” therefore Lo Cicero applies here. Assuming, without deciding, that defendant’s ineligibility for accelerated custody credits under section 4019 is equivalent to an increase in penalty, we believe the pleading requirements addressed in Lo Cicero were fully met here because the prior conviction that rendered defendant ineligible for accrual of custody credits at the increased rate was “charged and proved.” (Lo Cicero, supra, 71 Cal.2d at p. 1194.) In this regard, unlike Lo Cicero, defendant’s prior conviction under section 245 was alleged in the accusatory pleading, tried before the court after defendant waived a jury trial, and found true by the court beyond a reasonable doubt. In our view, Lo Cicero requires no more. Thus, at sentencing the court did not violate the holding in Lo Cicero by relying on defendant’s prior serious felony conviction to deny him the higher rate of custody credit under section 4019.
Lo Cicero is also distinguishable on the grounds noted in In re Varnell (2003) 30 Cal.4th 1132 (Varnell). The court in Varnell held that section 1210.1 (stating that a person convicted of a non-violent drug possession offense shall receive probation) “does not require that the basis for a defendant’s ineligibility be alleged in the accusatory pleading.” (Id. at p. 1139.) The court also declined to find an implied pleading requirement under Lo Cicero because, “unlike Lo Cicero, this is not a case where the prior conviction absolutely denied a defendant the opportunity for probation.” (Id. at p. 1140.) As in Varnell, this is not a case where defendant’s prior serious felony conviction “absolutely denied” him custody credits. (Ibid.)
Pursuant to section 1192.7, subdivision (c)(11), the crime of assault with a deadly weapon or instrument on a peace officer is a serious felony.
Our conclusion on this point moots defendant’s ineffective assistance of counsel claim.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.