Filed 3/26/13 P. v. Saldana CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           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

                                                             1
custody credits under an amended version of Penal Code section 4019.1 We remand for

further proceedings.

                         FACTS AND PROCEDURAL HISTORY

       On or about July 24, 2010, defendant sold two ounces of methamphetamine and

two ounces of heroin to a confidential informant who was working with police. The

confidential informant used $3,200 in bills to purchase the drugs; the serial numbers of

those bills had been recorded by police before the transaction. Police stopped the car

defendant was driving after he left the location of the narcotics transaction. Defendant

had one of the recorded bills when he was arrested.

       A few days later, on July 27, 2010, the San Bernardino County District Attorney

filed a felony complaint, charging defendant and two codefendants with one count of sale

of methamphetamine (Health & Saf. Code, § 11379, subd. (a))(Count 1), one count of

sale, transportation or offer to sell cocaine (Health & Saf. Code, § 11352, subd.

(a))(Count 2), and one count of conspiracy to commit a crime (sale of methamphetamine

and cocaine) (Pen. Code, § 182, subd. (a)(1))(Count 5). Counts 3, 4, 6 and 7 of the

felony complaint charged offenses against persons other than defendant and the other

codefendants named in counts 1, 2 and 5.

       Defendant initially entered a plea of not guilty to the charges in December 2010.

The preliminary hearing was continued numerous times over the course of the ensuing

months. On May 13, 2011, without proceeding to a preliminary hearing, defendant


       1   All further statutory references are to the Penal Code unless otherwise indicated.


                                              2
changed his plea pursuant to a plea bargain. Defendant agreed to plead guilty to count 1

and count 2. Count 2, sale, transportation or offer to sell cocaine, would be designated

the principal term with a state prison sentence of five years (aggravated term). As to

count 1, the court would impose one additional year (one-third the middle term of three

years) to be served consecutively, for a total state prison commitment of six years. Any

other charges as to defendant would be dismissed. The bargain called for a stay of

execution of the sentence, and defendant would be placed on supervised felony probation

for three years. The sentencing court would set the terms of probation, but it was agreed

that one of the terms of probation would require defendant to serve 270 days of straight

time in the county jail. Defendant affirmatively acknowledged these terms, conditions

and consequences of his plea. Nothing was said at the time of defendant’s change of plea

about conduct credits, aside from the custody days defendant had already actually served

(four days), and nothing about the rate at which any applicable credits would be earned.

The agreement as stated in open court was for 270 days “straight time,” with no mention

of half-time or other fractional time of actual custody. The court accepted defendant’s

change of plea, and set a hearing for sentencing on June 20, 2011.

       At the hearing on June 20, 2011, the court imposed sentence of six years state

prison, as agreed, then suspended execution of the sentence and granted supervised

probation for 36 months. The court ordered, as a condition of probation, that defendant

serve 270 days in the county jail, with credit for 4 days actually served, “plus conduct

credit pursuant to PC4019.” The trial court granted credits under “Old PC4019 (1/3

time).”


                                             3
       Defendant filed a notice of appeal on August 18, 2011, asserting that his trial

attorney (who had died between the taking of the plea and the sentencing hearing) had

repeatedly promised him that he would be eligible for enhanced conduct credits, so that

he would serve only one-half the stated term. “I was in agreement in serving 270 days

with halftime. My attorney repeatedly told me it would be halftime in which I would

serve 135 days total. When I appeared for sentencing on June 20th I was informed my

attorney had passed and was appointed a private attorney . . . . And was not informed

that I was going to serve 2/3’s time according to PC 4019 (old) which has turned in to

174 days.” Defendant requested a certificate of probable cause to pursue the issue on

appeal, but the request was denied.

                                       ANALYSIS

                                I. The Issue Is Appealable

       “In general, a defendant may appeal from a final judgment of conviction, unless

otherwise limited by sections 1237.1 and 1237.5. [Citations.] Section 1237.5, which is at

issue here, provides in full: ‘No appeal shall be taken by the defendant from a judgment

of conviction upon a plea of guilty or nolo contendere, or a revocation of probation

following an admission of violation, except where both of the following are met: [¶]

(a) The defendant has filed with the trial court a written statement, executed under oath or

penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds

going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a

certificate of probable cause for such appeal with the clerk of the court.’ The purpose of

section 1237.5 is ‘to weed out frivolous and vexatious appeals from pleas of guilty or no


                                             4
contest, before clerical and judicial resources are wasted.’ [Citations.]” (People v.

Maultsby (2012) 53 Cal.4th 296, 298-299, fn. omitted.)

       Here, defendant did apply for a certificate of probable cause, but the trial court

denied the application. A certificate of probable cause is required for issues that

challenge or attack the fundamental validity of the plea. However, 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. (People v.

Placencia (2011) 194 Cal.App.4th 489, 494-495; see Cal. Rules of Court, rule 8.304(b).)

       Here, although defendant’s notice of appeal initially phrased his contention in

terms suggesting that his plea was not valid (i.e., that he would not have pleaded guilty if

he had not been promised credits at the accelerated rate), the issue he raises actually

addresses matters which arose after the plea and which affect the terms of his probation.

That is, at sentencing after the plea, the trial court changed the credits defendant would be

able to earn against the period of custody his probation required him to serve.

       Defendant also urges that, even though he signed a general waiver of his appeal

rights as part of the plea bargain, that waiver did not include an appeal based on the

conduct credits issue. Defendant agreed that, “I waive and give up any right to appeal

from any motion I may have brought or could bring and from the conviction and

judgment in my case since I am getting the benefit of my plea bargain.” Defendant

further argues that he was never given written advisement of his appellate rights and no

oral waiver of his appellate rights was taken on the record.




                                              5
       The People agree that defendant’s general waiver did not encompass or

contemplate a waiver of appeal on the claim for conduct credits, because that matter had

not yet occurred at the time the plea agreement was entered.

       We agree also, and we conclude that the issue is properly appealable.

            II. Defendant Should Be Awarded Credits at the Accelerated Rate

       A.     Statutory Background

       Before January 25, 2010, a person held in county jail prior to sentencing, or

serving a term in county jail as a condition of probation, would earn six days’ credit for

each four actual days served, pursuant to former section 4019. Effective on January 25,

2010, section 4019 was amended to provide that certain classes of county inmates could

earn conduct credits at an accelerated rate: four days’ credit for each two days of actual

custody. (Former § 4019, subds. (b)(1), (c)(1), (f); Stats. 2009, 3d Ext. Sess., ch. 28,

§ 50.) However, some classes of inmates would continue to earn credits at the old rate

(i.e., they would be ineligible to earn at the enhanced rate), including any inmate who

“has a prior conviction for a serious felony, as defined in section 1192.7.” (Former

§ 4019, subds. (b)(2), (c)(2).)

       Effective as of September 28, 2010, the Legislature amended section 4019 again,

restoring the old six-for-four ratio of credits. The latest amendment also deleted the

exclusion from credit-earning for inmates previously convicted of serious felonies. The

amendments effective September 28, 2010, do not apply to the appeal in this case,

however. Here, defendant committed his crime on July 24, 2010, after the effective date

of the amendment of January 25, 2010, providing for enhanced credits, and before the


                                              6
effective date of the amendment of September 28, 2010, restoring the old six-for-four

ratio. (See current § 4019, subd. (g) [“The changes in this section as enacted by the act

that added this subdivision shall apply to prisoners who are confined to a county jail . . .

for a crime committed on or after the effective date of that act”]; Stats. 2010, ch. 426, § 2,

eff. Sept. 28, 2010.) Ostensibly, then, defendant was entitled to earn conduct credits at

the enhanced rate, under the version of section 4019 in effect at the time he committed

his crime, unless he came within an exception, such as a prior serious felony conviction

as defined in section 1192.7.

       B.     Trial Court Proceedings

       As noted, in the interim between the plea and the date of the sentencing hearing,

June 20, 2011, defendant’s trial attorney had died. Another attorney “stood in” as

defense counsel for purposes of the sentencing hearing.

       In the meantime, the probation department had prepared a report for the

sentencing hearing. The report outlined defendant’s prior record, which included a 1991

felony conviction of Penal Code section 246.3, “Willful Discharge Firearm:

Negligence”; a 1994 felony conviction of possession of a narcotic controlled substance

(Health & Saf. Code, § 11350, subd. (a)); a 1996 felony conviction of unlawful sexual

intercourse with a minor (Pen. Code, § 261.5, subd. (c)); and a 2003 felony conviction of

corporal injury to a spouse, cohabitant, or parent of a child (Pen. Code, § 273.5,

subd. (a)). Defendant had been granted probation in two of these cases, but had

performed poorly on probation; in both cases, defendant’s probation was eventually

revoked and he was committed to state prison. Defendant had also performed poorly on


                                              7
parole, with several parole violations. Indeed, defendant had been discharged from

parole on his 2003 offense on July 1, 2010, only about three weeks before he committed

the current offenses.

       The first hurdle defendant faced was his ineligibility for probation. Section 1203,

subdivision (e), provides that, “Except in unusual cases where the interests of justice

would best be served if the person is granted probation, probation shall not be granted to

any of the following persons: [¶] . . . [¶] (4) Any person who has been previously

convicted twice in this state of a felony . . . .” Defendant had been previously convicted

of four felonies. The probation report noted that defendant was statutorily ineligible for

probation, because of his four felony convictions, unless the court found it was an

unusual case. Thus, honoring the plea bargain would require an order of the court.

       At the hearing, the court did make the requisite finding: The court found, “under

[California Rules of Court,] rule 4.413 subdivision (c)[(1)(A)], to justify probation in that

the fact or circumstances giving rise to the limitation of probation is in this case

substantially less serious than the circumstances typically present in other cases involving

the same probation limitation and defendant has no re[c]ent record of committing similar

crimes or crimes of violence to justify probation.”

       The probation report also contained notations with respect to the credits defendant

would receive against his time in custody. In the list of defendant’s prior offenses, a

handwritten circle was drawn around the 1991 felony conviction for negligent discharge

of a firearm (§ 246.3). The “Order of the Court” prepared by the probation officer listed

the proposed terms of probation, including the 270 days in custody (term 1) that had been


                                              8
negotiated. Term 1 stated: “Serve two hundred seventy (270) days in a San Bernardino

County Jail Facility, with credit for time served, a matter of four (4) days, plus conduct

credit pursuant to PC 4019, and abide by all rules and regulations of the facility without

the possibility of county parole.” This provision was interlineated by hand, as “plus

conduct credits pursuant to PC ^old 4019,” with a handwritten notation in the margin, that

restricting conduct credits to the old rate was “based on 246.3 prior + Harvey waiver

¶ 15c.” (See People v. Harvey (1979) 25 Cal.3d 754, 758 [court may consider dismissed

charges for purposes of sentencing and restitution].) Presumably, the notation referred to

paragraph 15c of defendant’s change-of-plea agreement; defendant had initialed a

provision stating: “15. . . . [¶] c. (Harvey Waiver) I waive my rights regarding

dismissed counts and any charges the district attorney agrees not to file to the extent that

the court may consider these factors in deciding whether or not to grant probation and in

deciding whether or not to impose a midterm, aggravated, or mitigated prison term, and

as to restitution.”

       After making the finding that probation should be granted, despite defendant’s

statutory ineligibility, the court then proceeded to the terms and conditions of probation.

These included term 1, which required defendant to serve 270 days of custody in the

county jail. As to that term, consistent with the handwritten notations on the probation

report, the court indicated it would impose “old 4019 credits, and that will be based on

the 246.3 prior conviction and the Harvey waiver on paragraph 15C.”

       The court ultimately did impose the agreed sentence of six years in state prison,

suspended execution of the sentence, and granted supervised probation pursuant to the


                                              9
plea bargain. The court recited that term 1 required defendant to “serve 270 days in San

Bernardino county jail with credit for time served of four days plus old 4019 credits and

abide by rules and regulations of the facility without the possibility of county parole.”

       Defendant stated on the record that he understood and accepted the terms of his

probation. Defendant was immediately remanded into custody to begin serving his

custody term.

       A few weeks after beginning his custody service, defendant executed a notice of

appeal, on July 28, 2011. That notice was filed with the court on August 18, 2011.

Defendant’s notice of appeal complained about the reduced accrual of conduct credits.

       In preparation for assigning appellate defense counsel, the case was reviewed by

an attorney at Appellate Defenders, Inc. (ADI). During the screening process, in

preparation to assigning appellate counsel, the ADI attorney realized that the salient issue

was the calculation of credits, and that delaying the matter for appeal could result in

defendant serving “dead time,” if the court viewed his claim as meritorious. To avoid the

“dead time” problem, the ADI attorney deemed it prudent to bring the matter directly to

the trial court’s attention for prompt resolution. The ADI attorney therefore wrote

directly to the trial court.

       The ADI attorney’s letter, dated October 14, 2011, noted, first, that the trial court

must have treated defendant’s prior conviction under section 246.3 as a serious prior

felony in order to exclude defendant from earning conduct credits at the more favorable

rate in effect at the time he committed his crime. Second, substitute defense counsel,

who had stepped in for defendant’s deceased trial attorney, most likely did not know that


                                             10
the trial court intended to deny defendant the more favorable rate of custody credits.

Third, defendant’s Harvey waiver, on which the trial court also relied in denying the

more favorable custody credits ratio, may have waived defendant’s right to contest the

use of counts dismissed or not charged with respect to the plea bargain, but a Harvey

waiver does not apply to the use of prior convictions to affect sentencing. Finally, even if

the trial court were to consider past convictions, rather than dismissed or unfiled charges,

the record before the court did not demonstrate that the conviction it relied on—violation

of section 246.3—was a serious felony. Under People v. Golde (2008) 163 Cal.App.4th

101, the reviewing court held that personal use of the firearm must be shown before a

conviction under section 246.3 may be considered a serious felony. As in Golde, the

record here was insufficient to establish the requisite personal use of the firearm with

respect to defendant’s conviction under section 246.3. Therefore, it could not qualify as a

serious felony.

       In response to the ADI letter, the court reviewed the matter on November 10,

2011, and stated in a minute order, “Perhaps an evidentiary hearing should be held [to

determine] whether:

       “1) The D.A. considered defendant’s background in not filing a strike in exchange

for the old 4019 credits.

       “2) Whether the prior conviction of 246.3 is a strike

       “3) Whether a requirement of ‘pled and proven’ exists




                                             11
       “Since there are so many issues the appeal process should continue. Defendant’s

request [i.e., to modify probation conditions to allow for earning of enhanced credits] is

denied.”

  C. Merits of the Appeal: The Trial Court Erred in Denying Defendant the Ability to

                             Earn Credits at the Enhanced Rate

       Defendant urges that he is entitled to earn custody credits at the enhanced rate of

four-for-two under the amended version of section 4019, which was in effect at the time

he committed the charged offenses. He argues several points in favor of his contention.

First, he maintains that the trial court improperly relied on his 1991 conviction under

section 246.3, because that offense was not pleaded and proven as a basis for effectively

increasing punishment. (See People v. Lo Cicero (1969) 71 Cal.2d 1186.) Second, the

trial court’s reliance on the old conviction as a reason to deny him eligibility to earn

credits under the enhanced rate was improper, because the 1991 conviction was not

shown on the record to qualify as a prior serious felony. Under People v. Golde, supra,

163 Cal.App.4th 101, a conviction under section 246.3 does not qualify as a serious

felony unless the defendant is shown to have personally used a firearm in the commission

of the offense. The record here was inadequate to show that defendant had personally

used a firearm in the commission of his offense.

       The People argue in response that no pleading and proof requirement applies to

section 4019. Thus, the People argue, there was no need to specifically include an

allegation in the complaint that defendant had suffered a prior serious felony conviction,

in order for the court to find him ineligible to earn conduct credits at the enhanced rate.


                                             12
However, the People acknowledge that a conviction under section 246.3 is not

necessarily a serious felony; the People request a remand to determine whether or not the

conviction constitutes a prior serious felony, so as to disqualify defendant from earning

enhanced credits.

       The California Supreme Court granted review in several cases dealing with the

“pleading and proof” issue. (See, e.g., People v. Voravongsa (2011) 197 Cal.App.4th

657, rev. granted Aug. 31, 2011, S195672 [no pleading and proof requirement]; People v.

James (2011) 196 Cal.App.4th 1102, rev. granted Aug 31, 2011, S195512 [same]; People

v. Jones (2010) 188 Cal.App.4th 165, rev. granted Dec. 15, 2010, S187135 [pleading and

proof required]; People v. Lara (2011) 193 Cal.App.4th 1393, rev. granted May 18, 2011,

S192784 [same].)

       Defendant contends that, in People v. Lo Cicero, supra, 71 Cal.2d 1186, the

California Supreme Court concluded that the absolute denial of the opportunity for

probation was equivalent to an increase in punishment; thus, the fact of a prior

conviction, used to disqualify the defendant from eligibility for probation, must be pled

and proven. However, the matter at issue in Lo Cicero was a statutory preclusion from

eligibility for probation as a recidivist drug offender, under former Health and Safety

Code section 11715.6 and Penal Code section 969. (Lo Cicero, at pp. 1191-1192.)

People v. Ford (1964) 60 Cal.2d 772, an earlier case, also had recognized a pleading and

proof requirement for enhancement allegations (i.e., that the defendant was armed with a

deadly weapon at the time of the offense, or with a concealed weapon at the time of

arrest), where such enhancements were the basis for increased penalties.


                                            13
       We incline to the view that pleading and proof of the prior serious felony

conviction, such that it may be dismissed in the discretion of the court under section

1385, is not required with respect to a decision under section 4019, that an inmate is

ineligible for or disqualified from earning conduct custody credits at the enhanced rate.

The amendment to section 4019 was enacted as a fiscal emergency measure, and not

primarily for the purpose of directly reducing punishment. In addition, the purpose of

awarding custody credits is to give inmates some incentive for constructive behavior

during incarceration. The statute affects incentive credits, and not the actual sentence.

The provision for custody credits does not inevitably result in a reduction or amelioration

of punishment, i.e., a reduction in the amount of time served. (See People v. Brown

(2004) 33 Cal.4th 382, 405 [“section 4019, focuses primarily on encouraging minimal

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].)


                                             14
       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


                                              15
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


                                             16
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


                                             17
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


                                              18
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


                                             19
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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