P. v. Pitts
Filed 9/30/11 P. v. Pitts CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. LARRY RICHARD PITTS, Defendant and Appellant. | F061077 (Super. Ct. No. MF50843) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Ralph M. Cook, Commissioner.
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant, Larry Richard Pitts, pled no contest to possession of oxycodone and endocet (Health & Saf. Code, § 11350) and was placed on probation for five years. Following several violations of probation, on September 24, 2010, the court sentenced Pitts to a two-year term.
On appeal, Pitts contends: 1) he is entitled to enhanced conduct credit pursuant to the amendment of Penal Code section 4019[1] that became effective on January 25, 2010, for time he spent in custody prior to and after that date; and 2) the court violated his plea bargain. We will affirm.
FACTS
Pitts’s Prior Serious Felony Convictions
Pitts was convicted of robbery (§ 211) on August 16, 1979. On April 27, 1995, he was convicted of first degree burglary (§§ 459, 460, subd. (b)). Additionally, a prior strike allegation (§ 667, subds. (b)-(i)) and a serious felony enhancement (§ 667, subd. (a)), both of which were based on Pitts’s 1979 robbery conviction, were found true. Pitts was then sentenced to an aggregate 13-year term (the middle term of four years, doubled to eight years because of the prior strike conviction and a five-year serious felony conviction).
On May 9, 1995, after Pitts was convicted of possession of a controlled substance (Health & Saf. Code, § 11377) and a prior strike allegation was found true, Pitts was sentenced to a consecutive 16-month term (one-third the middle term of two years, doubled to 16 months because of Pitts’s prior strike conviction). He was paroled in both cases on August 6, 2008.
The Instant Case
On March 2, 2009, a Merced police officer arrested Pitts for displaying a sign with the intent to receive money. During an ensuing search of Pitts, an officer found several tablets of oxycodone and endocet.
On March 4, 2009, the district attorney filed a notice that Pitts was ineligible for Proposition 36 probation or deferred entry of judgment because of his “prior serious felony convictions and his state prison confinement in August 2008.” (Original all in capital letters, italics added.) Also on that date, the district attorney filed a complaint charging Pitts with possession of oxycodone and endocet and a prior prison term enhancement (§ 667.5), and alleging that Pitts has a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). The prior prison term enhancement and the three strikes allegation were both based on Pitts’s 1995 first degree burglary conviction and the prison term he served on that conviction.
On March 23, 2009, Pitts pled no contest to the drug charge in exchange for the court placing him on three years’ regular felony probation and striking the prior strike allegation and the prior prison term enhancement. Paragraph 21 of Pitts’s change of plea form stated: “The following promises have been made to me in return for my plea: All enhancements stricken[,] stipulated custody credits of 22 actual days plus 10 conduct credit for a total of 32 days.” The agreement also had a Harvey[2] waiver that was marked out. Additionally, Pitts signed a copy of the court’s probation order which stated that Pitts was not being placed on Proposition 36 probation and which had a section that applied to Proposition 36 probation marked out.
After taking Pitts’s plea and suspending imposition of sentence, the court placed Pitts on regular probation on the condition that he serve 180 days in county jail and it awarded him 32 days of presentence custody credit.
On July 13, 2009, after Pitts admitted violating his probation, the court reinstated probation and ordered him to serve eight days with credit for eight days served.
On April 1, 2010, after Pitts admitted violating his probation, the court reinstated probation on condition that he complete a six-month drug rehabilitation program at the Salvation Army.
On May 25, 2010, after Pitts admitted violating his probation by failing to complete the six-month Salvation Army program, the court reinstated probation on the condition that Pitts serve 72 days[3] and complete a year-long program at the Salvation Army.
On August 27, 2010, Pitts admitted violating his probation by not completing the one-year Salvation Army program in exchange for the court sentencing him to a two-year term. The court also continued the matter to determine Pitts’s entitlement to presentence custody credit.
At a hearing on September 16, 2010, defense counsel objected to the probation department’s use of the burglary conviction underlying the stricken strike allegation and prior prison term enhancement to limit Pitts to two-for-four conduct credit. He also asked the court to use the “one-for-one” conduct credit formula available pursuant to the version of section 4019 in effect at that time to award Pitts 256 days of presentence conduct credit for the 256 days he had spent in presentence custody.[4] The court then continued the matter to allow the parties to research the issue.
At a hearing on September 24, 2010, defense counsel again objected to the probation department’s recommendation of presentence custody credit calculated on a two-for-four basis. In addition to reiterating the arguments he made at the previous hearing, defense counsel argued that the prior conviction had to be pled and proved before it could be used to limit his conduct credit and, although the conviction had been pled, it had not been proved. After the prosecutor argued that he should be allowed to prove the prior conviction, the court allowed him to do so by introducing documents pertaining to Pitts’s burglary conviction and the prison term he served on that conviction. It then used a two-for-four formula to award Pitts 396 days of presentence custody credit: 264 days of presentence actual custody credit and 132 days of presentence conduct credit.
DISCUSSION
Pitts’s Prior Serious Felony Convictions Disqualified
Him from Earning Enhanced Conduct Credit Pursuant to Section 4019
Section 4019 permits a defendant to earn additional custody credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)) or by good behavior during confinement (§ 4019, subd. (c)). Such credits are collectively referred to as “conduct credits.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 (Dieck).) Section 4019’s scheme for presentence credits “‘“focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed....”’ [Citations.]” (Dieck, at p. 939.)
Senate Bill No. 18, enacted in October 2009, amended section 4019 (eff. Jan. 25, 2010) to enhance the rate at which certain offenders could accrue conduct credits. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, p. 4427.) The amendments allowed defendants to earn conduct credits at an accelerated rate of four days’ credit for every two days actually served. (Former § 4019, subd. (f).) However, the amendments specified sex offender registrants and defendants with a prior, serious felony conviction were ineligible to earn credits at the accelerated rate. (Former § 4019, subds. (b)(2), (c)(2).) Such defendants continued to earn credits at the pre-January 25, 2010, rate of “six days ... for every four days spent in actual custody.” (Compare, former § 4019, subd. (f) [Stats. 1982, ch. 1234, § 7]; former § 4019, subd. (f) [Stats. 2009-2010, 3rd Ex. Sess., ch. 28 (S.B. 18), § 50, eff. Jan. 25, 2010].)[5] Therefore, Pitts’s first degree burglary conviction rendered him ineligible for the enhanced credit available pursuant to the amendment of section 4019 which became effective on January 25, 2010, because it is a serious felony (§ 1192.7, subd. (c)(18)).[6]
The Court Did Not Violate Pitts’s Plea Agreement
“When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.
“‘“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” [Citation.] [¶] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.’ [Citations.]” (People v. Walker (1991) 54 Cal.3d 1013, 1024.)
Pitts’s plea bargain did not expressly address whether the court could consider Pitts’s stricken burglary conviction for sentencing purposes. However, Pitts cites the deletion of the Harvey waiver from his written change of plea form and his receipt of two-for-two conduct credit at the May 25, 2010, hearing as evidence that his plea bargain contained an implicit condition prohibiting the court from allowing the People to prove the prior burglary conviction which, in turn, allowed the court to consider the stricken burglary conviction to deny him enhanced conduct credit.[7] We will reject these contentions.
Section 1385 authorizes the trial court to “order an action to be dismissed” in the furtherance of justice. (§ 1385, subd. (a).) In In re Varnell (2003) 30 Cal.4th 1132, 1138 (Varnell), the court explained the scope of the authority granted by this section:
“‘The only action that may be dismissed under … section 1385, subdivision (a), is a criminal action or a part thereof.’ [Citation.] We have consistently interpreted ‘action’ to mean the ‘individual charges and allegations in a criminal action’ [citations] and have never extended it to include mere sentencing factors. Thus, our courts have refused to permit trial courts to invoke section 1385 to dismiss sanity proceedings or a plea of insanity [citation]; to reduce a verdict of first degree murder to second degree murder [citations]; to reduce the offense of conviction to an uncharged lesser related offense [citation]; or to enter a judgment of acquittal [citations]. A ruling that section 1385 could be used to disregard sentencing factors, which similarly are not included as offenses or allegations in an accusatory pleading, would be unprecedented.
“It also would be inconsistent with our description of the effect of a section 1385 dismissal. As we have repeatedly emphasized, dismissal of a prior conviction allegation under section 1385 ‘is not the equivalent of a determination that defendant did not in fact suffer the conviction.’ [Citations.] ‘When a court strikes prior felony conviction allegations in this way, it “‘does not wipe out such prior convictions or prevent them from being considered in connection with later convictions.’”’ [Citations.] Thus, while a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use.” (Varnell, supra, 30 Cal.4th at pp. 1137-1138, italics added.)
“In Harvey[, supra, 25 Cal.3d 754,] the Supreme Court held that it was improper for a sentencing court to consider facts underlying a dismissed, but transactionally unrelated, count, for purposes of aggravation of the admitted offenses. The court said: ‘In our view, under the circumstances of this case, it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three for purposes of aggravating or enhancing defendant’s sentence. Count three was dismissed in consideration of defendant’s agreement to plead guilty to counts one and two. 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 count.’ [Citation.]” (People v. Alvarez (1982) 127 Cal.App.3d 629, 634 (Alvarez), italics added.)
Since section 1385 does not allow the court to strike the fact of a conviction underlying a dismissed or stricken enhancement or three strikes allegation, Harvey cannot be extended to infer in a negotiated plea an implicit condition that prohibits the court from considering the fact of such a conviction for sentencing purposes.[8] (Also cf. Alvarez, supra, 127 Cal.App.3d at p. 635 [Harvey does not apply to striking a prior conviction because “‘strike’ is a term of art which operates only to void ‘punishment for the enhancements’” and “does not apply to the separate use of a prior conviction to aggravate a sentence”].)
Moreover, even if Harvey applied to the fact of a conviction underlying a dismissed or stricken enhancement or three strikes allegation, for the reasons discussed below, we would find it inapplicable here.
“Proposition 36 outlines an alternative sentencing scheme for those convicted of certain narcotics offenses. In effect, it acts as an exception to the punishment specified in an individual narcotics offense. [¶] Section 1210.1, subdivision (a), which was added to the Penal Code by Proposition 36, provides that ‘any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.... A court may not impose incarceration as an additional condition of probation.’” (Varnell, supra, 30 Cal.4th at p. 1136.)
Proposition 36 excludes some defendants from its ameliorative provisions including:
“Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense….” (§ 1210.1, subd. (b)(1).)
Although Pitts’s current offense, possession of oxycodone and endocet, qualifies as a nonviolent drug possession offense, Pitts was disqualified from receiving a grant of Proposition 36 probation by his prior burglary conviction and the prison term he served for that conviction.
As noted earlier, on March 4, 2009, the prosecutor filed a notice stating that Pitts was not eligible for Proposition 36 probation because of his “prior serious felony convictions and his state prison confinement in August 2008.” (Original all in capital letters.) This language obviously referred to Pitts’s 1979 robbery conviction, his 1995 burglary conviction, and the prison term he served on his burglary conviction. Further, when Pitts originally entered his plea in the instant matter, the court placed him on regular probation, not Proposition 36 probation, and Pitts signed an acknowledgement that day stating he received a copy of the court’s probation order. This order specifically stated that Pitts was not being placed on Proposition 36 probation and it had the terms for Proposition 36 probation marked out.
It can be inferred from the use of Pitts’s burglary conviction to disqualify him from being placed on Proposition 36 probation that Pitts’s plea bargain included an implicit agreement that the fact of that conviction could be used for sentencing purposes. Thus, even if Harvey could be extended to permit an inference that the fact of Pitts’s burglary conviction would not be used for sentencing purposes, any such inference was rebutted here by the implicit, contrary agreement of the parties. (Harvey, supra, 25 Cal.3d at p. 758.) For all these reasons, we conclude the court did not violate Pitts’s plea bargain when it used his prior burglary conviction to deny him enhanced conduct credit pursuant to the amendment of section 4019 that became effective on January 25, 2010.
DISPOSITION
The judgment is affirmed.
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* Before Levy, Acting P.J., Gomes, J., and Kane, J.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
[3] The court’s order provided that Pitts would serve 36 days in actual custody and that he would receive 36 days of two-for-two conduct credit pursuant to the version of section 4019 in effect at that time.
[4] As, discussed infra, the amendment of section 4019 that became effective on January 25, 2010, allowed certain defendants to earn two-for-two credit, i.e., “a term of four days will be deemed to have been served for every two days spent in actual custody[.]” (Former § 4019, subd. (f).) Defense counsel’s characterization of this enhanced conduct credit as “one-for-one” credit is technically incorrect because a defendant who was entitled to this enhanced credit and served an odd number of days in presentence custody would earn an equal amount of days for conduct credit, less one day. For example, a person who was entitled to this enhanced credit who served three days in presentence custody would get only two days of presentence custody conduct credit.
[5] Effective September 28, 2010, the Legislature again amended section 4019, returning to the earning rate in effect prior to January 25, 2010, and deleting the sections excluding sex registrants and defendants with a prior, serious felony conviction from enhanced credit-earning eligibility. The September 28, 2010 amendments apply only “to prisoners who are confined to a county jail, ... for a crime committed on or after the effective date of that act.” (§ 4019, subd. (g).)
[6] Since Pitts’s 1979 robbery conviction was also a serious felony (§ 1192.7. subd. (c)(19)), it too rendered Pitts ineligible for the enhanced credit he seeks. However, this conviction was not discussed by the parties and we find it unnecessary to do so either in order to resolve the issues Pitts raises.
[7] It is clear from Pitts’s arguments, including his reliance on Harvey, supra, 25 Cal.3d 754, that he is really challenging the court’s use of his prior burglary conviction to deny him enhanced conduct credit pursuant to the amendment of section 4019 that became effective on January 25, 2010.
[8] Pitts’s award of two-for-two conduct credit on May 25, 2010, does not help Pitts either because nothing in the record indicates that the court relied on Pitts’s original plea agreement to grant him this credit and it appears that the enhanced credit was awarded through a mutual error of the court and the parties.
