Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE286295, Peter C. Deddeh, Judge.
HUFFMAN, J.
John Manuel Diego appeals a judgment entered after he pleaded guilty to one count of unlawfully possessing ammunition. (Pen. Code, § 12316, subd. (b)(1).) Diego contends the court erred by denying him half-time credits (§ 4019, subd. (f)) when calculating his credit for time served. We affirm the judgment.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURE
On the night of December 8, 2008, San Diego County Sheriff's Deputy Christy Lucidine found Diego pulling on the doors of businesses that had closed for the night and looking over his shoulder nervously while doing so. Lucidine approached Diego and asked him what he was doing, and he replied that he was "window shopping." Diego then volunteered that he was on felony probation.
Because Diego kept reaching into his pockets, Lucidine asked him whether he had anything on him that could harm her. Diego replied that he had two shotgun shells in his pocket. Lucidine asked if she could remove the shells from his pocket, and he consented. Lucidine arrested Diego for being a felon in possession of ammunition.
Diego pleaded guilty to unlawfully possessing ammunition. At sentencing, the court exercised its discretion under section 1385 and struck Diego's prior conviction. The court sentenced Diego to prison for the middle term of two years. In calculating Diego's good behavior credits (section 4019 credits) the court found he had served 84 actual days and was entitled to another 42 days of section 4019 credits, giving him a total of 126 days of credit at the time of sentencing.
After sentencing, the Legislature amended section 4019 to allow all eligible prisoners to accrue half-time credits. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010.) Diego filed a motion to correct his presentence credits to reflect the new half-time policy. The sentencing court denied the motion, stating that although Diego's prior conviction was stricken, it did not make him eligible for additional section 4019 credits, and his prior serious felony conviction made him statutorily ineligible for them.
DISCUSSION
Diego contends the court incorrectly calculated his section 4019 credits. Specifically, he asserts the 2010 amendment to section 4019 that provides for one day of credit for every one day served in prison (half-time) applies to his case. (§ 4019, subd. (b)(2).) We disagree and hold that Diego falls into one of the statute's exceptions.
I
RETROACTIVITY OF AMENDMENT
Diego pleaded guilty on July 28, 2009 and was sentenced on November 4, 2009. The amendment to section 4019 providing for one day of credit for every day of good behavior did not go into effect until January 25, 2010. Diego contends this amendment applies retroactively to his sentencing date, while the People contend this is a prospective amendment that only applies to defendants sentenced after January 25, 2010.
Currently, the appellate courts are split on the issue of whether section 4019 credits apply retroactively. The California Supreme Court has granted review of the issue and is currently considering it. (People v. Brown, review granted June 9, 2010, S181963.)
We will neither attempt to resolve the split among the districts nor attempt to resolve the issue while it is pending before the Supreme Court. For purposes of our discussion, we will presume that section 4019 is retroactive to Diego's sentencing date.
II
DIEGO'S ELIGIBILITY FOR ADDITIONAL SECTION 4019 CREDITS
The half-time credit applies to all prisoners "except as provided in... paragraph (2) [of subdivision (b)]...." (§ 4019, subd. (b)(1).) Paragraph (2) of subdivision (b) states:
"If the prisoner... has a prior conviction for a serious felony, as defined in section 1192.7... 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...." (§ 4019, subd. (b)(2).)
This section specifically excludes defendants who have prior serious felonies on their records from accruing half-time section 4019 credits. Section 1192.7 defines robbery as a serious felony. (§ 1192.7, subd. (c)(19).) Diego pleaded guilty to one count of robbery in May 2007 and was serving felony probation for it at the time of the incident.
Diego contends that, because the sentencing court struck his prior conviction, he does not have a prior serious felony on his record and should be granted additional half-time section 4019 credits. We disagree.
The Supreme Court has consistently held that striking a prior conviction for the purpose of imposing sentence does not strike the felony from the defendant's record. "When 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 is part of the defendant's personal history...." (People v. Garcia (1999) 20 Cal.4th 490, 499.) "[W]hile a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use." (In re Varnell (2003) 30 Cal.4th 1132, 1138.)
Here, although the court struck Diego's prior conviction at sentencing, it was not removed from his record. Section 4019 excludes defendants such as Diego who have prior convictions for serious felonies from receiving half-time credits. (§ 4019, subd. (b)(2).) Diego has a prior serious felony conviction on his record, and is therefore not eligible for additional section 4019 credits.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.