THE PEOPLE v. LISA THOMAS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Carlo Andreani, 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, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.

Lisa Thomas appeals from the judgment entered after she pleaded guilty to second degree commercial burglary in violation of Penal Code section 459 ¹ and admitted that she had served a prior prison term within the meaning of section 667.5, subdivision (b).  Thomas contends that the trial court erred by declining to award her the increase in conduct credits provided for in former section 4019, as amended January 25, 2010.   We affirm.

PROCEDURAL BACKGROUND

1. The Information

An information, dated March 16, 2010, charged Thomas with one count of second degree robbery under section 211 and one count of second degree commercial burglary under section 459.   The information specially alleged that Thomas had two prior serious or violent felony convictions for second degree robbery under section 211 (case no.   BA067404 with a conviction date of March 8, 1993, and case no.   BA209470 with a conviction date of May 8, 2001) that constituted “strikes” under the Three Strikes law (§§ 667, subds.(a)(1) & (b)-(i), 1170.12, subds. (a)-(d)) and that she had served five prior prison terms within the meaning of section 667.5, subdivision (b), including one for the May 8, 2001 conviction for second degree robbery in case no.   BA209470.

2. The Guilty Plea and Sentencing

On August 5, 2010, after the trial court, pursuant to section 995, subdivision (a), dismissed the second degree robbery count, Thomas pleaded guilty to second degree commercial burglary and admitted that she had served a prior prison term within the meaning of section 667.5, subdivision (b), as a result of her conviction on May 8, 2001 in case no.   BA209470.  The court dismissed all remaining special allegations in the information.   It sentenced Thomas to the upper term of three years for the second degree commercial burglary conviction, plus one year for the prior-prison-term enhancement, and awarded her 429 days of presentence credit, consisting of 285 actual custody days plus 144 conduct days.

DISCUSSION

Thomas's only argument on appeal is that she is entitled to additional days of conduct credit under former section 4019, as amended on January 25, 2010.   According to Thomas, although she has prior serious and violent felony convictions, which would disqualify her for the increased credits, those convictions cannot prevent her from benefitting from the January 25, 2010 statutory amendment because no such conviction was proved in the trial court.   We disagree.

Before the January 25, 2010 amendment, former section 4019 provided that, if a defendant earned conduct credit, six days were deemed to have been served for every four days spent in actual custody.   The January 25, 2010 amendment to the statute increased the number of conduct credit days earned, providing that, if a defendant earned conduct credit, four days were deemed to have been served for every two days of actual custody.  (Stats.2009–2010, 3rd Ex.Sess., ch.   28 (Sen. Bill No. 18), § 50, eff.   Jan. 25, 2010.)   The more generous conduct credit provision in the January 25, 2010 amendment, however, does not apply when, among other instances, the 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.  (Id. (former § 4019, subds. (b)(2) & (c)(2)).)   In such a case, the defendant is not entitled to the increase in conduct credit and receives six days of conduct credit for every four days spent in custody, as the statute provided before the January 25, 2010 amendment.²  Robbery is both a serious and a violent felony. (§§ 1192.7, subd. (c)(19), 667.5, subd. (c)(9).)

We need not decide Thomas's overarching argument that a prior serious or violent felony conviction cannot disqualify a defendant from benefitting from the increased conduct credit provided for in the January 25, 2010 version of section 4019 unless it is pleaded and proved by the People in the trial court.³  That is because the information charged her with two prior serious or violent felony convictions for robbery under section 211 and the record sufficiently demonstrates proof of a prior serious or violent felony conviction for robbery, thereby disqualifying her from receiving the increased conduct credit provided for in the January 25, 2010 version of section 4019.   Along with her guilty plea to second degree commercial burglary, Thomas admitted the special allegation in the information that she had served a prior prison term within the meaning of section 667.5, subdivision (b), as a result of her conviction on May 8, 2001 in case no.   BA209470.  That special allegation sets forth that Thomas's May 8, 2001 conviction in case no.   BA209470 was for second degree robbery under section 211.   As a result, in connection with her admission of a prior prison term within the meaning of section 667.5, subdivision (b), Thomas admitted that she had prior conviction for second degree robbery, which is both a serious and a violent felony.⁴  Thomas, therefore, is not eligible for the increased conduct credit as provided for in the January 25, 2010 version of section 4019.

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

FN2. On September 28, 2010, section 4019 was amended to eliminate the more generous credit provision from the January 25, 2010 version of the statute.  (Stats.2010, ch.   426 (Sen. Bill No. 76), § 2, eff.   Sept. 28, 2010.)   The September 28, 2010 amendment, however, applies only to prisoners confined for a crime committed on or after that date. (§ 4019, subd. (g).)  Because Thomas's crime was committed before September 28, 2010, the January 25, 2010 version of the statute applies to her..  FN2. On September 28, 2010, section 4019 was amended to eliminate the more generous credit provision from the January 25, 2010 version of the statute.  (Stats.2010, ch.   426 (Sen. Bill No. 76), § 2, eff.   Sept. 28, 2010.)   The September 28, 2010 amendment, however, applies only to prisoners confined for a crime committed on or after that date. (§ 4019, subd. (g).)  Because Thomas's crime was committed before September 28, 2010, the January 25, 2010 version of the statute applies to her.

FN3. The Supreme Court will address the related issue whether a trial court has discretion under section 1385 to dismiss or strike a prior serious felony conviction in order to award a defendant the additional conduct credit under the January 25, 2010 version of section 4019.   (People v. Lara (2011) 193 Cal.App.4th 1393 (Sixth Dist.), review granted May 18, 2011, S192784.).  FN3. The Supreme Court will address the related issue whether a trial court has discretion under section 1385 to dismiss or strike a prior serious felony conviction in order to award a defendant the additional conduct credit under the January 25, 2010 version of section 4019.   (People v. Lara (2011) 193 Cal.App.4th 1393 (Sixth Dist.), review granted May 18, 2011, S192784.)

FN4. Thomas does not dispute that her May 8, 2001 conviction in case no.   BA209479 was for second degree robbery, and such fact is reflected in her probation report as well..  FN4. Thomas does not dispute that her May 8, 2001 conviction in case no.   BA209479 was for second degree robbery, and such fact is reflected in her probation report as well.

MALLANO, P. J. JOHNSON, J.